How Do I Appeal an Underrated VA Disability Rating?
Last updated on May 13th, 2022 at 07:50 am
Underrated VA disability ratings are successfully appealed every day.
This article will walk you through the process for appealing a VA disability decision that contains a disability rating that you consider to be too underrated.
How do VA Decisions work?
Just to recap, this is how the VA disability claims process works.
A Veteran, sometimes with the assistance of a Veterans Service Officer (VSO) files an initial claim for disability benefits for a service-connected injury, illness, or disability. The VA reviews the application and all of the supporting paperwork such as service records and medical or psychological records relevant to the claim.
The VA then may, or may not, request a Compensation & Pension Exam (C&P Exam) at which the Veteran will be examined by a VA doctor or a VA-designated medical professional. That examination, along with a review of the underlying records, will result in the generation of a report for the VA.
At this point, a VA claims examiner will review the entire file and make a decision on the following:
(1) is this Veteran suffering a disability that is connected to his/her military service?
(2) if so, what is the severity of the disability (on a rating scale of 10% – 100%)?
(3) what is the effective (or starting) date for this disability?
Having made those decisions, the VA will then send out a notification letter advising the veteran of the decision. That decision is often just the first of many steps in the whole VA disability process. VA claim appeals of various types are available and you as the Veteran have one year from the decision to file. A VA disability claim attorney can help you evaluate your options and represent you in your appeal.
Why Do They Get Denied?
Approximately 70% of initial VA disability claim applications get denied. Another portion of claim applications are granted but are unrated and the rating level is lower than the Veteran believes it should be under the circumstances. Denials or underratings happen for many reasons – sometimes simple paperwork problems (the wrong documents were submitted, or the right ones weren’t) or other administrative reasons that are easy to fix. Sometimes the VA disability rater overlooked some relevant findings by a doctor, or sometimes the doctor failed to document some of your symptoms that are key to determining the level of severity of your disability.
The fact is that VA disability claims, on their initial application, are denied more often than not. That is no reason to give up, however. Just consider it Round #1 of a sometimes long process. An underrated VA disability rating just means it’s time to find an experienced VA disability claim appeals attorney.
What Happens If My Claim Does Not Get Denied, But Is Underrated?
Whether your VA disability claim is outright denied, if it is granted at an underrated level, or for that matter, if it has an improper effective date, your appeal options are the same. There is an older, legacy system of appeals that the VA is phasing out, and there is also a system with three types of appeal. It can get a little complicated as to which type of appeal to file, but we’ll walk you through the basic concepts so that when you are talking to a potential VA disability claims lawyer, you’ll already have a framework for discussion.
How Do I Appeal an Underrated VA Disability Rating? Can It Even Be Done?
Yes, you can appeal an underrated VA disability rating using the same appeal procedures as you would appeal a claim denial.
The old, single pathway process for appeals is now referred to as the legacy VA appeals process and it applies to VA decisions dated earlier than February 19, 2019. Many of those VA disability appeals are still circling through the system, so the legacy appeals process isn’t going away anytime soon.
However, for VA decisions dated on or after February 19, 2019, you can choose from three decision review options, depending on what the problems are with the initial decision. The three review options are Supplemental Claim, Higher-Level Review, or Board Appeal. If you don’t agree with the outcome of the first option you choose, there are opportunities for further review after that.
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.
For an underrated VA disability rating, you will need to determine where the VA went astray in its decision-making in the first place. Did the examiner 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 of the Rating Decision.
Assistance from a law firm experienced in handling VA disability claim appeals is highly recommended because they will be able to help you sort out what appeal pathway makes the most sense in your particular situation. You’ve only done this once; experienced VA disability appeals attorneys have done this hundreds of times.
The appeal process often will take 2-3 years depending on what route of appeal you take so don’t expect a quick turnaround. The VA regularly publishes the time it takes from docketing of an appeal until a decision is given, but because of changing priorities and staffing at the VA, it is hard to predict how long your particular appeal will take.
At some point, however, after you have submitted any supplemental information and after any hearing you have requested has been held, the VA will issue their decision on your appeal.
If the appeal results in an increase in disability rating or change of the timeframe for eligibility for benefits, increased payments will be specified and you will thereafter start receiving the increased payments and any back payments. If your attorney has filed a direct-pay fee agreement with the VA (this is a common arrangement and allows veterans to pursue appeals without having to pay upfront for legal costs), the VA will withhold their fees from the veteran back pay and pay the attorney directly.
If your claim is still underrated or you are otherwise dissatisfied with the appeal decision, you will most likely be able to ask for an additional review.
Just a word of caution, however. Do not confuse this option for additional appellate review of your initial claim decision with VA “reconsideration” or VA “revisions of decisions.” “Reconsideration” (or more specifically, a “motion for reconsideration”) is not, within the VA disability claim process, the same as an appeal. It is a legal maneuver that some people have tried to use in an effort to bypass the usually long and tedious process of waiting for an appeal decision. It can have unfortunate consequences, like screwing up your effective date for benefits. Never ever do a motion for reconsideration without consulting a lawyer, maybe two lawyers – and even then probably not.
Similarly, a VA “revision of decision” is a separate and distinct process from an appeal. This revision procedure can be 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, and is only infrequently used for cases that cannot be otherwise corrected on appeal.
Why and How To Get a VA Disability Appeal Attorney?
The reason why you need a VA disability appeal attorney is simple – if you knew how to get the VA to grant your VA disability claim at the rating level you believe is appropriate, you would have already done it (and wouldn’t be reading this article). There are levels of details and nuance that you missed in your initial claim because, well, you haven’t done one of these before. Additionally, statistics show that Veterans represented by attorneys tend to have better outcomes on appeal.
VA disability appeals attorneys are a small niche specialty within the legal profession. Not just any lawyer, no matter how skilled, has the experience and knowledge of the intricacies of VA bureaucratic processes to give your claim that necessary review and expertise to handle an appeal.
Look for a law firm that specializes in VA disability claim appeals, especially one that works exclusively in that area of practice. A more generalized law firm won’t cost you any less, and cannot have the same level of the sheer volume of past experience to draw on.
Keep in mind that many VA disability appeal attorneys work on a contingent basis – they only get paid when you get paid – and you can arrange for payment directly from the VA when your appeal is successful. Don’t pay upfront for a VA disability appeal if you don’t have to.
Are you ready to get a free, expert review of your underrated VA disability claim decision and see if an appeal is a good step for you to take? VLG has helped thousands of veterans just like you, and recovered millions of dollars for our clients on appeal. It’s all we do, every day.