What Is The Process of a VA Disability Appeal?
VA Disability benefits are tax-free monetary benefits paid to veterans with disabilities resulting from disease or injury incurred or aggravated during active military service. Disabilities that are related, or secondary, to such disabilities, either directly occurring during active military service or which are presumed to be related to military service, even if arising after service may also be compensable.
These are called service-connected disabilities.
Benefit amounts are determined on a graduated scale based on the severity of the injury or disability, on a scale from 10 percent to 100 percent disability. The degree of disability and benefits available take into account actual or anticipated loss of working time from these disabilities. This is called a disability rating.
In order to obtain disability benefits, you, the veteran, need to file a claim. If you believe the eventual decision is incorrect (many times it is), you have a right to appeal and often, though not always, can get an increase in your disability rating and/or scope of payments.
This article outlines the initial claims process and then the appeal process if you are unsatisfied with the VA’s initial decision on your disability claim.
Overview of The Typical VA Disability Claim Process
- Original claim filing for benefits. A veteran makes his/her original claim by filing an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). This can be done online, by mail, or in person at a local VA regional office. No one, by law, is allowed to charge a veteran a fee for preparing an original claim. Original claims are usually prepared and filed by veterans themselves, or with help of a veteran service officer (VSO).
You will also want to submit relevant medical or psychological records and any other relevant statements to provide enough evidence to demonstrate that your claimed disability is (1) service-connected; and (2) its level of severity.
- Compensation & Pension (C&P) Exam (at the option of the VA). After filing the paperwork for disability benefits, the VA may ask you to undergo a C&P exam (also known as a Compensation and Pension exam). A medical professional designated by the VA will review your medical records and then conduct an exam to verify things, fill in blanks of information, and generally provide additional information to help the VA claims decision makers. A report will be written after the C&P exam which will be submitted to the VA and made part of your disability claim file.
The purpose of a C&P Exam is to assist the VA to verify your condition and assign a disability rating from 10% (least severe) – 100% (total disability). This rating will then, in turn, affect the amount of disability payments you will be entitled to receive. If enough medical evidence has been provided to support the claim, a C&P Exam may not be required.
- Notification Letter and Rating Decision. After reviewing the claim file, completion of any requested C&P Exam, and collection of any additional necessary evidence, the VA will issue a written decision called a Rating Decision with a dated Notification Letter. As of February 2021, the average time from claim filing until decision was approximately five months.
The Notification Letter will indicate (1) whether the claim is accepted or denied; (2) if accepted, what the disability rating is; (3) designate an effective date for the disability compensation; and (4) disclose what payments will be due to you. The Rating Decision will break down the reasons for the VA’s decision. Payments will usually involve a lump sum covering the period from the effective date until the date of decision, and then continuing monthly payments thereafter. If you are given at least a 10% disability rating, you should receive your first payment within 15-20 days thereafter, either by direct deposit or check.
- Appeal. If you are dissatisfied with the decision outlined in the Rating Decision you have a right to file an appeal within one year of the date on the Notification Letter.
Overview of the VA Disability Appeal Process
If you disagree with any portion of the Rating Decision from the VA, you have the opportunity to appeal that decision. Often incorrect decisions are made because of some gap in supporting evidence or other fixable reason. Your deadline to appeal is one year from the date on the Notification Letter.
The good news is that you can hire a law firm to assist you on appeal, often without any cost upfront; they’ll get paid when you get paid. A law firm can work with the VA to make sure that they have the necessary information, medical records, witness testimony, and any other evidence necessary to correct the VA decision.
This may involve an independent medical examination and attendance at a hearing, most often by videoconference.
Here are the typical steps for a VA disability claim appeal process.
- Determining what and how to appeal. The decision review and appeals process for VA disability claims has recently changed in an effort to reduce the amount of time for the processing of appeals.
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. For VA decisions dated on or after February 19, 2019, you can choose from three decision review options or pathways, depending on what you want to have reviewed. The three review options are: Supplemental Claim, Higher-Level Review, or Board Appeal. (Don’t worry, if you don’t like the results of the first option you choose, you will have the opportunity to later pursue a different option).
A Supplemental Claim appeal may be chosen if you have new, relevant evidence that wasn’t part of the initial claim file. Sometimes this is a result of mere oversight on your part in submitting necessary records, clerical errors, or sometimes a C&P exam report that overlooked key information. Sometimes in more complicated matters, such as MST (military sexual trauma) cases, you may not have known what information you had that would be helpful and necessary to establish the existence of MST or its connection to your service.
A Higher-Level Review appeal may be chosen if you want a more experienced rater to review the file again. This may be appropriate if all the necessary information is in the claims file, but a less-experienced rater may not have appreciated the nuances of the evidence in front of them. Sometimes they overlooked certain pieces of evidence within the file, or misread what was there. No supplemental evidence can be submitted as part of this option.
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 may be appropriate when you want to request a hearing and talk to the judge directly. For a Board Appeal, you can select either a direct review (review of the claims file as is) or you can submit more evidence to supplement your file (understanding that this will take longer). In either event, you can also request a hearing. You can attend the hearing virtually from home, by videoconference from a nearly VA location, or in person in Washington DC.
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.
- Decision Review Request. Within one year of the date of the Notice of Decision, you, hopefully with assistance of a lawyer, will file the appropriate notice with the VA requesting one of the three types of appeals discussed above.
A Supplemental Claim appeal can be filed at anytime, but if you file the supplemental within one year from the date of the Notification Letter it is considered an appeal and you will be able to maintain the original effective date. The document you will need to file is the Decision Review Request: Supplemental Claim (VA Form 20-0995). You will need to identify what issues you want the VA to review, and also submit your supplemental information. The form will allow you to designate records you want from VA facilities, and also designate any records you want the VA to access from private, non-VA providers.
A Higher-Level Review must be filed within one year of the Notification Letter on the Rating Decision you want reviewed. The document you will need to file is Decision Review Request: Higher-Level Review (VA Form 20-0996). As with a Supplemental Claim, you will need to identify what issues you want a senior reviewer to look at, but no additional evidence can be provided.
A Board Appeal must be also be filed within one year from the date on the Notification Letter of the Rating Decision you want reviewed. .The document you will need to file is Decision Review Request: Board Appeal (VA Form 10182). You will have the options to request a direct review (no new evidence being added) or to submit more evidence (you’ll have 90 days after you file the request form to provide it, or 90 days after the hearing, if you request one). You can also request a hearing and specify whether you want a virtual hearing from home, videoconference from the nearest VA facility, or in person in Washington DC.
- Decision. After reviewing your appeal documents, obtaining any additional evidence, if requested, and having a hearing, if requested, the VA will issue a new decision on the issues appealed.
The time from filing Decision Review Request (i.e. appeal) until a decision differs depending on the type of appeal you have requested and current workloads of the VA. A Higher-Level Review and Supplemental Claim usually take less time than a Board Review.
If the appeal results in an increase of disability rating or change of the timeframe for eligibility to benefits, increased payments will be specified and you should get your first increased payments and any back payments as soon as the VA processed their decision. If your attorney has filed a direct pay fee agreement with the VA, the VA will withhold their fees from the veterans back pay and pay the attorney directly.
- Possible additional review. If you are unhappy with the outcome of the new Rating Decision or Board Decision, you can continue to request Decision Reviews. Remember for Supplemental Claims you have to have new and relevant evidence to request a Decision Review. Additionally, you can not ask for a Higher Level Review on a decision based on a Higher Level Review. It can get cumbersome and complex but your representative can help you decide whether a Decision Review is worth pursuing and which option to choose.
Why Is It So Difficult To Have a Claim Approved Initially?
Reports are that around 75% of VA disability claim applications are denied on initial decision. That may sound depressing, but the reasons for this high rate are understandable and often fixable reasons.
By law, no one can charge a Veteran for work performed in preparing or filing a claim for VA disability benefits. Because of this, most veterans just prepare the disability application forms by themselves or work with a VSO. There are many great VSOs out there, but some do not have the same extensive knowledge as law offices, especially for complicated claims such as PTSD and MST.
On the bright side, as soon as an initial decision is given from the VA, a law firm can be hired to assist, and experienced VA disability claim lawyers can provide a wealth of experience in fixing mistakes made in those initial claim decisions. Many times all that is needed is providing additional medical records or reports that the veteran didn’t know were needed in the first place, or explaining legal or factual intricacies that were missed on the first review.
Don’t be discouraged if your initial Rating Decision has a claim denial or an underrated disability finding. Both may be fixable upon appeal.
What Are Some Cases Where a Claim Typically Doesn’t Require an Appeal
Not all VA disability claim initial decisions will require an appeal. In many cases the service-connection status of a disability is readily apparent (for example, losing a limb during an IED explosion while on active duty in Afghanistan) and the severity of the disability is easy to determine. There are also cases that are presumptively service-connected conditions, such as certain types of cancers being diagnosed after service in Vietnam and Korea where Agent Orange was used.
There is also the simple reason that sometimes the VA makes the right decision on the first pass. If you receive a Rating Decision that acknowledges that you have a service-connected disability and 100% disability rating, even if you may quibble about certain things said in the letter, there may be no reason to file an appeal of any kind.
Why Should You Appeal Rather Than Just Giving Up?
Never give up if you receive a decision on your VA disability claim that you believe was incorrect, or at least don’t give up without first talking with an experienced VA disability lawyer and pursuing any viable avenues of appeal.
You should also not give up on the possibility of filing a Supplemental Claim for an increase if your condition gets worse, or when there have been changing in eligibility for certain types of claims. For example, there have been shifting views over time regarding service-connected PTSD and MST, in terms of how they are evaluated and proven. Additionally, as to Agent Orange claims, there is a growing list of conditions that the VA is acknowledging as being presumptively connected to Agent Orange exposure decades ago.
Even if you got your VA disability claims denied years, even decades ago, there are options for asking for renewed or supplemental review of your claim, and the opportunity to provide new and updated information about your condition. Sometimes these very old claims can be given new life through the assistance of attorneys who know what to look for and what documentation to collect for the VA.
What is The Chance of a Better Outcome on Appeal?
There is no single answer to that question, but it is undeniable that having an attorney represent you on appeal gives you a better chance of success statistically. In 2021, the VA reported that 21% of legacy appeal cases were denied, but only 15% of appeal cases with an attorney representing the veteran were denied. In every category of case, veterans with lawyers had better outcomes than those who didn’t.
Beyond the statistics, the chance of a better outcome depends on the unique facts of your own case. A careful and competent review of the Rating Decision should provide a great deal of guidance.
There are three pieces to a decision on a VA disability claim – is your condition service-connected? how severe is it? and what is the effective (or start) date for your claim. If you are reading your Rating Decision, you will probably already have a general idea what you would need to do to overturn the decision. Does the VA need more evidence to support the connection between your military service and your condition? Do they need more information detailing the nature and extent of your condition? or is it just about timeframes?
A skilled VA disability appeals lawyer may be able to see problems (and solutions) with your decision with greater ease because they have reviewed, and appealed, thousands of cases before yours. They know how to make sure the VA has all the information it needs for a successful outcome, and know how to explain why the VA should decide in your favor.
How Long Does a VA Disability Claim Take?
It depends. It depends on the VA’s workload, how they allocate their personnel, and how they process their paperwork. It also depends on the complexity of your case.
That being said, the VA does try to get out its initial decision in 4-5 months after the application is filed. If you proceed to appeal, your choice of appellate path has much to do with the additional length of time for processing the appeal. Obviously a simple Higher-Level Review with no additional documentation and no hearing is likely to be completed in less time than a Supplemental Claim or a request for a Board Review.
There is, however, a method for expediting the process.
The VA will consider an expedited track of processing your VA disability claim if you have a diagnosis of Amyotrophic Lateral Sclerosis (ALS or Lou Gehrig’s Disease), if you have extreme financial hardship (for example, homelessness, recent personal bankruptcy, home in foreclosure, eviction for non-payment of rent, inability to pay utility bills with accounts in collection, inability to pay for essential needs, terminal illness, age of 85 or older, being a Medal of Honor recipient, or being a survivor of a Former Prisoner of War. Click here for more information.
What Do You Need For a VA Disability Appeal?
The most important thing you need for a VA disability appeal is to have an evaluation of your Rating Decision by someone who knows what to look for and who can identify any grounds for appeal. You need to talk to an experienced VA disability lawyer, a law firm that can bring their wealth of experience in working on other veterans’ cases to bear on developing the best plan for handling your appeal.
You and your representative will need to choose the best pathway for appeal, obtain and submit any necessary supplemental information, and to actually make your arguments to a judge or the VA.
A review of your case for possible appeal will look at the three prongs of the initial claims decision: (1) is this service-connected condition? if so, (2) what is its severity? and (3) what is the effective date? Depending on your particular situation, you may need to buttress your evidence of a connection between your condition(s) and your military service. Sometimes you’ll need to provide more information, or argue existing documentation, to show that your condition is more severe than the VA initially decided. Other times, the effective date for the starting point of your benefits is wrong. Sometimes more than one of these prongs needs to be addressed.
It’s important to remember that each appeal will involve some measure of picking apart the VA’s decision and then either pointing out or adding the information necessary for the VA to reach the appropriate decision. Some claims are more complex than others.
For example, combat PTSD is easier to prove than non-combat PTSD, and mental health issues as a whole are harder to prove than other types of injuries.
Once decisions are made on how to proceed, the proper form requesting your chosen appeal process will need to be submitted, along with any supplemental information for the VA to consider. You will also need to make yourself available for a hearing if you request one.
Why and How to Get a VA Disability Appeal Attorney?
Navigating the VA disability claims appeal process is complicated and a successful outcome is based upon expert preparation and presentation. Look for a law firm that focuses on this specific type of law, not one that just does VA disability appeals now and then on the side.
When you find a possible law firm, ask the questions you need answered, find out how many VA disability claim appeals they have handled before, ask them if they have handled the type of condition(s) that you are dealing with. A little bit of research goes a long way to help you confidently choose a law firm to represent your interests before the VA.
Veterans Law Group works exclusively on VA disability claims and has for over 25 years. VLG specializes in PTSD (including non-combat PTSD), MST, unemployability and orthopedic cases, all of which require special knowledge and experience. Additionally, most of our team are either veterans themselves or family members of Veterans so we know and understand what you are going through.
Are you ready to see if VLG can help you with your VA disability claims appeal? Join thousands of other veterans who have received successful outcomes on appeal. Get a free evaluation of your case.