The process for appealing a denied veteran’s disability claim is lengthy and can be confusing for many people. However, this article will provide step by step explanation to the appeals process.
The first step after receiving a denial of benefits is to make a formal application to VA Form 9. The second step, detailed in the next article, explains how to navigate the Board of Veterans’ Appeals. Hiring an experienced disability claims attorney to help you through the process is your best chance of reversing the decision and getting the benefits you deserve.
Some estimate that there are over 400,000 VA disability claims currently awaiting a decision. After you have applied for benefits with a formal claim, established an effective date for your claim, and your claim is denied, the first step in appealing the decision is to file a Notice of Disagreement with the Rating Decision given to you by the government. Once the VA receives your Notice of Disagreement, the regional office in your area will review the case and create a Statement of the Case for your claim.
The first draft of the Statement of the Case then goes to a higher level of review, known as the DRO. The DRO reviews all of the evidence in the file and then publishes a final Statement of the Case with their decision. The Statement of the Case will either grant or deny your benefits If granted, you still need to make sure that the effective date is correct and that the VA gives you the proper rating. If your claim is still denied, the next step is filing another Notice of Disagreement with the VA to keep your case alive. Within 60 days of receiving your denial of benefits through the Statement of the Case, you must file a Form 9 application with the VA. If the 60 days pass without the filing, your claim is dead.
A Form 9 is also known as a Substantive Appeal Form, and it serves as the formal appeal to the Board of Veterans’ Appeals for disability benefits claims. This form escalates the claim denial from the regional level to the national level of appeal. The statute of limitations for filing is 60 days with the single exception for simultaneously contested claims.
Where two people are fighting over the same disability benefit, where one person will benefit from the decision and the other will lose, the statute of limitations is reduced to only 30 days to file a Form 9. An experienced disability claims attorney understands the deadlines and exceptions to the appeals process and can ensure that all of the proper paperwork is filed in time.
At this point in the appeals process, your claim has been denied at the regional level and you have filed the Form 9 within 60 days of that decision. The next step in the appeals process is taking your case to the Board of Veterans’ Appeals. You have two options at this time, either to request a hearing with a judge or waive the hearing for a Board of Veterans’ Appeals review. If you request a hearing, you will go before a judge to hear your case. The judge will listen to the evidence and render a decision. If you choose to waive the hearing, the Board of Veterans’ Appeals will review the evidence as presented in the case file and Form 9 application.
Once you have made a decision and submitted all relevant evidence for the case to the Board, an administrative law judge is assigned to review the claim. The judge has three options for rendering a decision on your claim. The first is to grant your claim, giving you the benefits requested in the appeal. The second option is to deny your claim, siding with the VA in denying benefits. The third option is to remand your claim to the lower level for continued review.
If the administrative law judge denies the claim, you have options. The first is to ask the judge to vacate the decision. The next is to file a motion to reconsider, and the last option is to further appeal the decision to the U.S. Court of Appeals for Veterans’ Claims (CVAC). If you choose to continue to appeal, the motion must be filed with the CVAC within 120 days of the Board of Veterans’ Appeals decision.
It is important to note that the CVAC is a judicial review court, which means that no new evidence can be submitted to this hearing. The CVAC’s job is to review the judicial findings of the administrative law judge and determine whether there was an error in law made at the lower levels of your case. The CVAC will then either affirm the Board’s decision, vacate the decision, remand the case back to the administrative law judge, or reverse the denial of claims.
We know how hard veterans work to readjust to the civilian work after their tours of duty, applying the same commitment and force of will that kept them going during difficult deployments and challenging assignments. Sometimes, though, struggling past service-connected disabilities to perform a civilian job doesn’t seem to be working. It’s possible that even less than total disability seems to be resulting in employment difficulties. It’s worth finding out whether the veteran is eligible for a 100% disability rating under a theory of Total Disability Individual Unemployability (also known as “TDIU”).
The VA generally refers to a claim as a TDIU claim when two conditions are met: 1) the veteran has one service-connected disability with a 60% or more disability rating, or has two or more service-connected disabilities with a combined rating of 70% or more, and 2) there is medical evidence of unemployability (more about that below). If the veteran satisfies these two conditions, then he will be entitled to be paid at the 100% disability rate, even though he does not satisfy that 100% disability rating under the schedule. See 38 C.F.R. § 4.16(a).
A second method of reaching the same TDIU result is called an extra-schedular rating. An extra-schedular rating applies to veterans who are unemployable due to their service-connected disability(ies), but whose disability(ies) does not meet the percentage requirements under § 4.16(a). See 38 C.F.R. § 4.16(b.)
A veteran can be rated 100% disabled under both a TDIU or extra-schedular theory. See Bowling v. Principi, 15 Vet.App. 1, 5-9 (2001).
Medical evidence of unemployability refers to medical findings of conditions or symptoms that would tend to interfere with the maintenance of regular, full-time employment. Examples could be ongoing panic attacks, social anxiety, frequent emotional outbursts as a result of PTSD, etc.
If you think you might be eligible for TDIU and want to appeal your VA disability decision, Veterans Law Group would love to talk with you. Highly respected in their field, VLG has more than twenty years of experience providing legal help for veterans and their families in their quest for benefits. We can help you obtain additional medical opinion evidence to get you the benefits you deserve.
To get started, simply fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge and require nothing from you. With so much on the line, why not explore your legal options?