The Benefits of Using a VA Claim Appeal Attorney
Published April 29, 2022
You’ve finally decided to apply for VA disability benefits or to appeal your VA disability claim denial or rating. How do you get started? Do you need a lawyer? Let’s walk through your options and discuss the benefits of using a VA claim appeal attorney.
How do I file a disability claim?
The VA disability process is complicated and can be stacked against the veteran, but knowing what to expect and how the process works makes it easier.
First, filing your initial VA disability claim is mostly a solo project. According to 38 USC 5904(c)(1) –
[A] fee may not be charged, allowed, or paid for services of agents and attorneys with respect to services provided [to a veteran on a disability claims application] before the date on which a claimant is provided notice of … the … initial decision …”
What that means is that no lawyer or anyone else helping you prepare your initial disability claim application can charge you, the veteran, for those services. That doesn’t mean there is no one to help – there are VSOs and non-profits that help veterans prepare initial disability claims. There are, unfortunately, some who try to wiggle around this prohibition of charging a fee for this assistance. Whether calling themselves a “VA disability claim attorney,” a consultant, or whatever, if you are asked to provide money for help with your initial claim, don’t pay.
The downside to this prohibition is that you don’t have any extensive experience on your own proving complicated physical or mental health conditions and their connection to your military service. This is the type of work that attorneys are trained to do – you have been trained to do other important things.
In view of this prohibition on hiring highly skilled assistance for your initial VA disability claim application process, it is little surprise that, according to VA statistics, approximately 70% of initial applications are denied. However, that is not the end of the process. Once that initial decision has been given, you are free to hire a VA claim appeal attorney to represent you on an appeal. For appeals, veterans represented by private attorneys have the highest rate of favorable decisions – around 79%.
What if my claim is denied?
That initial decision letter, and the accompanying detailed explanation of the reasons underlying the decision, might be complicated to read for the non-lawyer. The key things to look at first is whether the claim was granted or denied and the details which led to their decision. Sometimes your claim is denied in its entirety, but there may be a list of facts that were favorable to your request being granted. Those favorable facts, along with some new evidence to fill in some of the missing gaps identified by the VA, could be a roadmap to a successful appeal. In other instances, your claim may be granted, but the disability rating is at a lower level than you believe is appropriate. Again, a close analysis of the explanatory details may show favorable facts that can be built on for a successful appeal to increase your rating.
What is your next step? Talk to a VA disability appeals lawyer to discuss the initial decision and your options for proceeding with an appeal. Instead of going it alone, you can now look for an experienced attorney to guide you through the next level of the VA disability claims appeal process. You’ve only done one claim, so your knowledge of how to fix things is quite limited. A lawyer who specializes in VA disability claim appeals, however, has handled hundreds or thousands of cases similar to yours. They are going to know what is likely to work and what isn’t. They are going to know how to find missing pieces of evidence and provide the VA with a simple guide to issuing a new decision in your favor.
The cost of this appeal is likely one of the first concerns you have. Fortunately, the majority of VA disability appeals attorneys work on a contingent basis – unless and until you get a monetary award from the VA, they don’t get paid. In fact, if their fee percentage is 20%, the VA will directly pay your lawyer at the end of your appeal, saving you that much additional paperwork.
Remember that you have one year from the date of your initial decision letter to file an appeal, so calendar that date and then get started finding yourself an experienced and skilled VA disability appeals attorney to represent your interests.
What are the benefits of using a VA claim appeal attorney?
The most obvious benefit of using a VA claim appeal attorney is that they are an experienced guide to navigating an unfortunately complicated process. Because they have done thousands of appeals, they know all the forms to file and the deadlines for doing it. When there are complications in getting the right people the right information, they know who to call to get things where they need to be. That is the logistics benefit.
The real substantive benefit, however, is the VA disability claims attorney’s legal training and experience to be able to analyze the details of your particular situation, the VA’s initial decision, and how to bridge the gap between the two. They have been trained, and then long practiced, the skill of building a case that decision-makers can understand whether it’s just a more experienced rater or an appeals judge. You may know how serious your PTSD is on a day-to-day basis, and your spouse may also painfully understand how much you may be struggling to keep a job or maintain social and family relationships. But decision-makers at the VA aren’t with you every day and don’t have that first-hand experience you have. A skilled attorney, however, knows how to translate and convey that information.
In the process of analyzing your options on appeal, a VA disability claims attorney can decide which of the current three pathways for appeal would be best for your case. There is a Higher Level Review, a Supplemental Claim, or Board Review – read more about these appeal pathways here. Each has its pros and cons, and each has a special application to your case.
There are some particular benefits to certain attorneys over others also. While most attorneys specializing in the niche practice of VA disability claims will handle any disability claims, some shy away from certain types of claims, though they may not advertise that. One example of that is Military Sexual Trauma (MST) cases, a subset of PTSD claims. MST claims are complicated to prove, especially when there was no concurrent reporting of the rape or other traumatic event (as is often the case). These cases can be proven, but they are more difficult and lawyers tend to pick cases they feel confident handling.
If you could successfully convince the VA to approve your VA disability claim at the level you believe is appropriate, you wouldn’t be reading this article. If you had a denied claim or a VA disability rating that you believe is incorrect, you need help from an attorney who knows how to turn that decision around in a positive way. No attorney can promise you guaranteed success on appeal, but especially if they are working on a contingency basis, they won’t take on your case unless they believe they can get a better outcome for you.
How to get a VA Disability appeal attorney?
Although you would think finding a VA disability appeal attorney would be easy, handling VA disability appeals is a very niche type of legal work. You don’t want just any attorney, no matter how smart or successful they are in another area of the law. You need a focused and specialized attorney who has extensive experience in this particular VA claims appeal process.
VA disability attorneys can be located online or sometimes through lawyer referral services. Be specific in your quest, however. Attorneys listed as handling “military law” may know nothing about VA disability claims or appeals. You need a VA disability attorney or VA disability claims appeal attorney.
Find out how and how much the attorney charges and make sure you are okay with that arrangement. Many handle VA disability appeals on a contingent basis, which is often the preferred mode for a veteran, but there are other arrangements too.
Law firms will often ask for a power of attorney to allow them to review your claim file before committing to taking on your case. This is important for both of you. You don’t want a law firm agreeing to take on your case without having done some due diligence to convince themselves that it is worth all of the work of an appeal, that although there is no guarantee of success, there is a decent likelihood of success. You want that as much as they do.
What should you look for in a good VA claim attorney?
When you check out any particular law firm, make sure they have substantive knowledge about the claims appeal processes. Make sure they are comfortable with handling the type(s) of disability you are claiming and have experience handling those types of claims. Some handle only physical disabilities and stay clear of mental health issues, including PTSD. Don’t hire a law firm that isn’t up to the task.
Are you ready to have the experienced attorneys at Veterans Law Group do a free evaluation of your case? Take the first step to a better outcome on your VA disability claim than the initial decision.