How Do I Appeal an Adverse Decision on a VA Disability Claim?
Published March 18, 2022
Getting an adverse decision on a VA disability claim is a common thing. In fact, the VA reports that around 70% of all VA disability claims are initially denied. However, perseverance and appellate review can turn a lot of those claims into approved or higher-rated claims.
For 2020 legacy VA claim appeals, 74% of appealed decisions were either allowed or remanded for VA reconsideration. For veterans who are represented by a VA disability claim attorney on appeal, that percentage goes up to 79%.
This article will provide you with an overview of potential reasons why you received a VA disability adverse decision in the first place, what the VA disability claim appeal process looks like, and why and how to get a VA disability attorney to work with you.
Why did you receive an adverse decision?
Veterans are trained in many skills, but navigating the VA bureaucratic processes is not one of those skills. Coupled with a legal prohibition on anyone charging a veteran to help them with preparing a VA disability claim, this means that veterans usually prepare and file their own disability claim.
If you have a simple injury or disability connected to your military service and get help from a VSO (a non-lawyer who is trained to assist veterans with VA claims preparation), you might be part of that lucky 30% of claimants who get an initial approval of their claim. However, many disabilities that are, in fact, service-connected and substantial enough to warrant disability benefits can be more complex to explain and prove to the VA. Mistakes are made by the veteran and by the VA every day. Those often result in VA disability claim denials that should be allowed once they are properly explained and documented.
What the VA is looking for when reviewing a VA disability claim file is (1) whether there is a service-connected disability and, if so, (2) what the level of severity is (from a scale of 10-100%), and (3) what the effective date is for commencement of benefits. If any one of these is missing, the claim will be denied. Some of the most obvious reasons for the initial denial are missing information, in one’s service record or medical records. Sometimes there is insufficient information to establish either connection to military service. Sometimes there is insufficient information about the existence or severity of the disability. For example, PTSD claims and MST claims have many levels of nuance, especially because sometimes the symptoms and diagnosis don’t happen until after discharge. Sometimes there are legal mistakes made.
Don’t despair if you get an initial denial, however, because the VA disability claims appeal process is available to correct mistakes. You have one year from the date of your Notification Letter on the VA’s decision to file an appeal.
Your claim has been denied…now what?
First, mark your calendar with the one-year deadline to appeal the decision. Second, get some help to understand why your VA disability claim was denied and what options and probabilities of success you have on appeal.
Although statistically there is an over 70% chance that your appeal will be successful in either being granted or at least remanded (sent back) for a closer look (even higher probability if you have a lawyer represent you), but each case is unique. Your likelihood of success on appeal depends on the specifics of your case and the nature of the denial.
How do you appeal an adverse decision?
Appealing an adverse VA disability claim decision must be commenced within one year of your Notification Letter. Here are the typical steps for a VA disability claim appeal process.
1. Determining what and how to appeal.
There are currently three decision appeal pathways depending on what you want to have reviewed: Supplemental Claim, Higher-Level Review, or Board Appeal.
A Supplemental Claim appeal may be chosen if you have new, relevant evidence that wasn’t part of the initial claim file. A Higher-Level Review appeal may be chosen if you want a more experienced examiner to review the file again. A Board Appeal may be chosen if you want an expert Veterans Law Judge at the Board of Veterans’ Appeals in Washington, D.C. to review the file. This option allows you to request an actual hearing which can be done virtually, by videoconference or in-person in Washington DC.
2. File a Decision Review Request
Within one year of the date of the Notification Letter, you, hopefully with the assistance of a lawyer, will file the appropriate notice with the VA requesting one of the three types of appeals discussed above. The form for a Supplemental Claim is the Decision Review Request: Supplemental Claim (VA Form 20-0995). The form for a Higher-Level Review is the Decision Review Request: Higher-Level Review (VA Form 20-0996). The form for a Board Appeal is the Decision Review Request: Board Appeal (VA Form 10182). Click here for a more detailed explanation of these options.
After reviewing your appeal documents, obtaining any additional evidence, if requested, and having a hearing, if requested, the VA will issue their decision on appeal. The time from filing an appeal until a decision differs depending on the type of appeal you have requested and the current workloads of the VA. A Higher-Level Review and Supplemental Claim usually take less time than a Board Review.
4. Possible additional review
If you are unhappy with the outcome of a Supplemental Claim decision or a Higher-Level Review, you can then ask for a Board Review of either of those decisions.
Even if you have missed the one-year deadline for filing an appeal, a VA revision of decision process can sometimes be used. At any time after a decision is final, a veteran claimant may request, or the VA may initiate, a review of the decision to determine if there was a clear and unmistakable error in the decision.
Where evidence establishes such an error, the prior decision will be reversed or amended. As you might expect, the standards for having an older decision changed in this matter are much higher than a timely appeal, so your goal should be a timely appeal. Your VA disability claims appeal lawyer may be able to review a situation like this and may be able to assist you.
Why and how to get a VA Disability appeal attorney?
The reasons for hiring a VA disability attorney are simple – getting your claim approved is important, and if you knew how to fix whatever caused your claim to get denied initially, you probably would have done it already. You don’t know what you don’t know, so look for an expert to be on your side who can navigate the red tape and help you choose a course on appeal that is most likely to result in a positive outcome.
Finding just any VA disability appeal attorney isn’t too hard, but finding the right one for you should be the quest. This is a special legal niche and you’ll want to find someone that brings a wealth of experience to the table.
Find a law firm that specializes in VA disability claim appeals. They will have helped hundreds, if not thousands, of veterans similarly situated and had their appeals heard and decided by the VA. They will understand what usually works and what usually doesn’t work. You will also want to find a VA disability claims appeal attorney who understands the nuances of your type of injury or disability, especially for more complex cases such as PTSD and military sexual trauma.
Most law firms have some type of free initial review of your case before you commit to hiring them. This can help give you a feel of what they are all about, and the terms of representation. Most law firms handling these types of cases will work on a contingent fee basis – they don’t get paid until you get paid, and if their percentage of recovery is 20%, the payment can be processed through the VA and you won’t ever have to directly write a check.
Are you ready to get started in having your adverse decision on a VA disability claim reviewed by Veterans Law Group? Veterans Law Group has helped thousands of veterans just like you, and that is all they do. They handle cases ranging from the simple to highly complex, including MST cases. Get your free case evaluation now.