Why Did the VA Deny My Physical Disability Claim and How Do I Appeal
You have finally received a Notification Letter on your VA Disability Claim for a physical disability and your heart sinks when you see those words “claim denied.”
You are not alone – approximately 70% of veterans applying for VA disability benefits get an initial denial. That includes both physical and psychiatric disabilities..
This is not a final answer – initial denials or underratings can be appealed, sometimes more than once. Over 70% of appeals result in either acceptance or remand back for further actions.
With expert assistance, you may be able to turn that denial into a grant of benefits or that underrated decision into a higher rating. According to VA statistical information, the highest success rates on VA disability appeals are for veterans who are represented by private attorneys.
Did I do everything right?
“What did I do wrong?” might be your first question upon receiving your denial. The truth is that maybe you did everything right, but the VA just got it wrong. Many times your initial VA disability claim was deficient in some way. After all, you are highly trained in many things, but probably not preparing claims for governmental agencies. Whatever happened that resulted in a claim denial or underrating, know that you can appeal and try to get a better decision.
Don’t take it too hard that you did not succeed on this initial round of request for disability benefits. The VA disability process is complicated, even for lawyers.
You may wonder whether you should have hired a VA disability claim attorney to help you with that initial claim preparation and filing, but the fact is that you cannot. According to federal law, no one can be paid by a veteran to help prepare a VA disability initial claim.
The good news is that as soon as you get into the appeal level of the VA disability claims process, you can (and should) hire an experienced VA disability appeals attorney to help you. A majority of errors you may have made in your initial application can be fixed on appeal.
Why did the VA deny my physical disability claim?
Every claim is unique and the specific reasons why your claim was denied will be explained in the narrative decision that accompanies your notification letter. There are, however, some common reasons for claim denials.
As you are likely already aware, physical disability claims are a lot less complicated for diagnosis and treatment than psychiatric disability claims. You may have both. Although it may seem there isn’t much ambiguity in diagnosis or recognizing a loss of a limb or other physical illnesses, proving all of the necessary elements to obtain disability benefits may have more nuance than you think.
More often than not, denials fall into three categories – no diagnosis, no in-service evidence, or no nexus evidence.
The VA is looking for a specific diagnosis from your doctors that falls within their criteria for acknowledging the existence of a disability. No diagnosis and the claim will be denied. For example, you may have been exposed to Agent Orange, but you might not have a doctor’s diagnosis of a presumptive illness caused by exposure. If you don’t have a diagnosis for one of the presumptive illnesses, you need one to fall under to get the benefit of the presumption of service-connection injury.
This may be fixable on appeal with either a C&P Exam or an Independent Medical Examination (IME).
No In-Service Evidence:
Other claims have a different problem. You may have sufficiently established that you have Diabetes Mellitus Type 2 (one of the diseases presumptively caused by Agent Orange exposure), but you didn’t serve during specified timeframes and locations of service where you were presumed to have been exposed to Agent Orange. Maybe you were exposed during service in some other location, but your claim file must show documentation of in-service exposure before assuming there is a connection to your diabetes diagnosis.
This may be fixable on appeal by providing evidence of in-service exposure.
This final area is a combination of the previous two issues. The VA may have found a disability to exist and also recognize a service trigger, but don’t see any connection between the two. Maybe you suffered damage to your eardrums during an explosion when you were deployed but recovered fully. Then later you may have started to lose your hearing because of a genetic problem unrelated to your service.
The VA may change their decision on appeal, however, if you and your lawyer can demonstrate that there is a nexus. This connection need not be direct cause and effect; any relationship suffices. Often the evidence you need to connect the dots comes from C&P exam results or from an independent medical exam, or a more thorough review of your service record.
Upon reading the VA’s decision on your initial claim, you may have an idea of how to fix it on appeal. However, you will probably significantly increase your chance of success on appeal by hiring an experienced VA disability appeal attorney to walk you through your options.
How do I appeal this decision?
You have one year from the date of the notification letter to appeal the VA’s initial disability claim decision. In previous years, there was only a single type of appeal to file, but since early 2019, the process has changed. Now there are three types of decision reviews (aka appeals) that you can request. You can request a Supplemental Claim, Higher-Level Review, or Board Appeal.
There are pros and cons to each type of appeal process, and deciding which one to use is a case-specific process.
A Higher-Level Review appeal is asking for a more experienced examiner to review the file again. This might be a preferred mode when evidence already in the file seems to have been inadvertently missed.
A Supplemental Claim appeal asks the VA to consider new supplemental evidence. This might be a preferred route if the initial decision indicates that there are some holes in your file, perhaps a missed diagnosis, or maybe insufficient questioning during your C&P exam.
A Board Appeal asks for a live hearing (either virtual or in-person) before an actual Veterans Law Judge at the Board of Veterans’ Appeals in Washington, D.C. Some cases are better explained in conversational form (board appeal hearings are not adversarial like court hearings).
The choice of how to frame your appeal is something you may want to discuss with a VA disability claims appeal attorney who has been specifically trained and has experience in making that type of decision. The most important thing to remember is that you have options and you do not have to abandon your request for VA disability benefits simply because the VA did not agree with you during the initial claim process.
How to get a VA disability claim appeal attorney
VA disability claim appeal attorneys are part of a small niche within the legal community. It is unlikely that your longtime family attorney or another lawyer you have crossed paths with over the years has any expertise in the unique world of VA disability claims processes. However, you can find experienced specialized attorneys who have made it their life’s work to help veterans pursue VA disability claim appeals. Your goal is to find such a law firm, with experienced lawyers who know how to collect, assemble, and present your case in a manner most likely to result in a successful outcome. Whereas a VSO has been trained to fill out VA paperwork, an attorney has been trained to advocate for their client on the basis of carefully compiled evidence.
“But I don’t have money to hire an expert attorney,” you may be thinking. You should be relieved to know that you often don’t need to pay any money upfront. Many VA disability appeals attorneys work on a contingent fee basis which means that they don’t get paid unless, and until, you get paid. In other words, their interest in a successful outcome is aligned with yours. It’s not a guarantee of success, of course, but if a law firm takes your case that means they see a potential pathway to a satisfactory resolution and will put all their efforts towards that goal.
What should you look for in a good VA disability attorney?
As noted above, VA disability claim appeals attorneys are a very small niche among the broad pool of lawyers. You don’t want your VA disability appeal handled by just any smart lawyer. You want a law firm whose attorneys have done thousands of cases and spend all of their time increasing their knowledge base and skills.
The search for the right VA disability claims appeal attorney is a little different from looking for a good trial lawyer. “Aggression” which is often sought after in, say, a personal injury lawyer, is not a needed or even appropriate quality for the lawyer handling your appeal with the VA. The VA disability claim appeals process is not adversarial like a courtroom. The VA is willing to acknowledge when mistakes are made. In fact, over 70 percent of appeals are either granted or remanded back to the lower level to fix mistakes.
You want a meticulous and detailed lawyer – someone who understands what information the VA needs to grant your VA disability claim, is able to dig through your records or get additional medical opinions to prepare your case in a way that makes it easy for the VA to say “yes.”
Are you ready to have Veterans Law Group review the denial of your physical disability claim and see if they can help you successfully appeal? We have successfully represented thousands of veterans just like you.