Can I dispute my VA Disability Rating?
Last updated on September 27th, 2022 at 08:24 am
You’ve received your decision letter on your VA disability claim. Although the VA agreed that you had a disability, the VA disability ratings assigned (either individual or overall) don’t seem right to you. Can you dispute and increase your VA disability ratings? Yes, you can, through the VA claim appeals process and other ways. This article will explain how the VA disability rating dispute process works.
What is a VA Disability Rating and what does it mean?
First, to recap, a VA disability rating is a number assigned by the VA to your individual disability claims during the VA disability process and another number for an overall VA disability rating that combines multiple disabilities into a single percentage number. The overall VA disability rating is what determines your monthly benefit payment amount.
Is my VA Disability Rating permanent?
No, a VA disability rating is not “permanent” unless and until the VA deems it permanent. If you are unsure if the VA has determined your disability to be “permanent,” call the VA or your local VSO and ask.
There are several ways that a VA disability rating (either an individual rating or a combined rating) can change over time. However, the “permanence” of a rating tends to be more certain as time passes unless it was fraudulent.
Sometimes the VA will change your VA disability rating. Between the second and fifth year after your VA disability rating(s) effective date, the VA may ask for a re-evaluation of your condition. Unless your condition is in sustained improvement, the VA generally will not reduce the disability benefits, and you won’t have to continue to be re-examined. Sometimes this limitation is referred to as the “5 Year Rule,” meaning if you have been rated for an issue for five years or more, the VA cannot reduce you without two examines showing improvement, which provides some measure of stability of your disability benefits.
While we are on the subject of “rules,” there are some other restrictions on changes to your disability benefits decision over time that you may have heard of. The so-called “10 Year Rule” means that the VA cannot change their service-connection finding (agreeing that your disability has a connection to your military service) when ten years have passed since the effective date of your claim unless there was evidence of fraud.
Similarly, the so-called “20 Year Rule” keeps the VA from reducing a continuous rating below the initial disability rating after 20 years have passed unless they discover fraud. The so-called “55 Year Rule” means that when a veteran is over the age of 55, they would not be subject to a future examination for that condition unless there was clear evidence that the condition would improve over time.
Your VA disability rating can also change if you dispute it or ask for a re-examination after the appeal timeframe has passed.
Can I dispute my disability rating? Or does it have to go through an appeal?
Yes, you can dispute your VA disability rating, and you do that by filing an appeal (sometimes also referred to as a request for decision review). You can do this within a year through the VA disability appeal process, and you (and your attorney) may convince the VA to increase your VA disability rating. Changes to one or more individual ratings may also end up increasing your overall disability rating and your monthly benefit payments.
The other way that you as the veteran can initiate a change in your disability rating is through a request, after your appeals timeframe has passed, for the VA to re-evaluate your VA disability rating(s), which would be the procedure if your condition has substantially deteriorated.
Just a word of caution. It is easy to confuse concepts like “dispute” and “appeal” with “reconsideration” and “revision of decisions.” These are not the same things, and misunderstanding can cause many problems. “Disputing” a claim decision is just a general reference to not liking the decision and wanting to do something about it; it is not a technical term. An “appeal,” also called a “request for decision review,” is taking formal action to have your claims decision reviewed at a higher level through the VA disability appeals system. If you are reading this article, you are most likely considering “disputing” your VA disability rating through an appeal/request for decision review.
Do not confuse these concepts with “reconsideration” or “revision of decisions.” “Reconsideration” (or, more specifically, a “motion for reconsideration”) is not the same as an appeal. It is a legal maneuver that some people have tried to use to bypass the long wait for an appeal decision. However, it can have unfortunate consequences, such as resetting the clock on your effective date for benefits. Never ever make a motion for reconsideration without consulting a lawyer first. Similarly, a VA “revision of decision” is a separate and distinct process from an appeal. This procedure is generally used when a “clear and unmistakable error” in a decision has been made, usually a mistake in a claim that was not timely appealed. “Clear and unmistakable error” is a very high standard of proof, much more than you need within the ordinary course of an appeal, so don’t make things harder for yourself.
How do I appeal my VA Disability Rating?
For VA disability claims decisions dated on or after February 19, 2019, you can file three types of appeal: Higher Level Review, Supplemental Claim, or Board Review. Each type has its pros and cons and needs to be considered within the context of your specific case and the reasons why the VA’s decision was made. You might need to file a Supplemental Claim appeal if there was missing evidence. If the VA missed something already in your claims file, maybe you just need a Higher Level Review, which is the process of having a more experienced VA decision maker review the file with your explanation of what was missed. If you need to put a more personal touch on your claim, providing testimony of something that happened in service that may not be in your records, a Board Review where you request a hearing might be the best choice. If you disagree with the outcome of the first option you choose, there are opportunities for further review after that.
When you appeal an underrated VA disability rating, you will need to show the VA where it made a mistake. Did the decision reviewer overlook something already in the file? Is your file missing some crucial information that you need to add? Do you just need an opportunity to talk to a judge to explain things? There are many considerations.
Whatever you choose, the appeal must be filed within one year of the notification letter that contains the rating decision.
Assistance from a VA disability attorney is highly recommended because they will be able to determine what appeal pathway is appropriate for your individual situation and needs. You’ve already done this once (and not entirely successfully). An experienced VA disability claim attorney has gone through the process hundreds, if not thousands, of times before and has learned the best ways to increase a VA disability rating successfully.
Be prepared for a lot of wait time. The VA disability appeals process often takes 2-3 years, depending on various factors and backlogs of cases at the VA. If your appeal is successful and you obtain an increase in your overall disability rating, this can result in increased monthly benefit payment amounts.
If your claim is still underrated, or you are otherwise dissatisfied with the appeal decision, you can usually seek an additional review.
Are you ready to find out if you have a case for disputing your VA disability rating? Veterans Law Group has been exclusively helping veterans appeal VA disability claim decisions since 1996. Click below to get a free evaluation of your case.