How To Win A VA Disability Claim Appeal

How To Win A VA Disability Claim Appeal

Depending on who you ask, 30 to 80 percent of initial claims for Veterans benefits are denied. All agree that a significant number of rejected VA benefit claims are denied inappropriately. In other words, a disabled Veteran can count on having to enter the VA appeals process to obtain benefits they have earned with their service.

The attorneys of Berry Law have dedicated their legal practices to helping fellow military Veterans appeal denied claims and pursue the disability benefits they were promised for their service. Our founder, John S. Berry Sr., is a Vietnam War Veteran and a Bronze Star recipient. Managing partner John S. Berry Jr. served as a company commander in Operation Iraqi Freedom and a platoon leader during Operation Joint Forge in Bosnia. Additional Berry Law attorneys and staff members are former officers and enlisted military personnel, as well.

Our firm focuses on appealing denied VA benefit claims or improper VA disability rating determinations. We don’t just file paperwork. We litigate cases when necessary and have helped to establish law for the Department of Veterans Affairs.

At Berry Law, we are Veterans working for Veterans. We are here to help you fight the VA bureaucracy. Let us show you the way forward.

Requesting a VA Decision Review or Appeal

The VA changed its appeal process as of February 19, 2019. Below, we discuss the new decision review process, which applies to VA decisions made on or after Feb. 19, 2019. If you are already in the middle of appealing a decision dated before Feb. 19, 2019, the legacy appeals process applies. We can assist you with it, as well.

The decision review process provides three options for appealing a denied VA benefits claim. If the results of your first appeal are not satisfactory, you have additional appeal options.

The three avenues of appeal are:

  • Supplemental Claim. In this appeal, the Veteran provides new and relevant evidence of his or her eligibility for benefits. If you choose this approach, the VA has a “duty to assist” you in obtaining evidence you identify, such as treatment records from the VA or private providers. A reviewer should determine within four to five months whether the additional evidence changes the VA’s decision. You cannot file a Supplemental Claim if you have a fiduciary claim or a contested claim.
  • Higher-Level Review. In this appeal, the Veteran asks for a more senior VA reviewer not involved in the original review to examine his or her claim. This approach requires no new evidence and any favorable findings from the initial review continue to be counted in your favor. You and/or your representative can speak to the new reviewer over the phone to tell the reviewer why you think the decision should be changed, such as pointing out errors in your decision notification letter. You can request a Higher-Level Review of an initial claim or Supplemental Claim decision. It should take four to five months for your claim to get through this appeal lane. This option is not available after a previous Higher-Level Review or Board Appeal or if you have a contested claim.
  • Board of Veterans’ Appeals. In this lane, you ask a Veterans Law Judge at the Board of Veterans’ Appeals (BVA) in Washington, D.C., to review your case. There are three options for a board appeal:
    • Direct Review. This is a request for a judge to examine and rule on your claim as-is. You cannot submit new evidence and there is no hearing.
    • Additional Evidence Review. You can submit more evidence for a Veterans Law Judge to review if you do so within 90 days of the VA’s receipt of your Decision Review Request. This form requires you to list each issue decided by the VA that you want to appeal and why you disagree with the VA’s decision. The VA has no duty to assist you in obtaining new evidence for this appeal.
    • Hearing. This is a full hearing before a Veterans Law Judge. The hearing can be held virtually from your home or attorneys’ offices linked by videoconference to a VA office near you. It also can be held in-person at the Board of Veterans’ Appeals in Washington, D.C. You can present new and relevant evidence at the hearing or add it to your claim within 90 days after the hearing. A transcription of the hearing will be added to your appeal file.

A Board appeal can take a year or more to yield a decision. After a Board hearing, a Veteran may file a Supplemental Claim or take their claim to the U.S. Court of Appeals for Veterans Claims.

The U.S. Court of Appeals for Veterans Claims provides judicial review of final decisions by the Board of Veterans’ Appeals. The Court reviews the BVA decision, the written record and each party’s briefs. Cases may be decided by a single judge or, if the case presents a particularly significant legal question with broad application, or presents a question of “first impression,” meaning that the case presents a new legal question not considered by the Court previously, the case may be decided by a panel of three Judges or the entire Court.

The Court may affirm the Board of Veterans’ Appeals decision in whole or in part, meaning the Court agrees with the BVA and will uphold all or part of the decision. In the alternative, the Court may reverse, vacate, or remand the decision of the BVA in whole or in part, sending it back to the BVA or VA regional office for further action. The Court also may dismiss the appeal, leaving the BVA decision in effect, if the Court does not have the legal authority to consider the appeal, if the appellant has not followed the Court’s rules of practice and procedure, or if the appellant withdraws the appeal.

Further appeals are possible, but rare, to the United States Court of Appeals for the Federal Circuit and then the Supreme Court of the United States.

How To Win a VA Disability Claim Appeal

These are our recommended steps to follow on how to present the strongest possible claim to the VA for review, in order to win a VA disability claim appeal:

Document Any Medical Problem and Appeal a VA Disability Claim

Having to appeal a VA claim unavoidably delays your access to disability benefits. This makes it important to choose the best appeal lane for your claim and to be sure you are prepared to request a decision review within VA deadlines.

Request a VA Decision Review

It is important to do this within one year of the date of the Notice of Action letter that advises that your original claim was denied. If you miss that deadline, the decision becomes final and you would have to reopen your VA claim to pursue benefits. Filing an appeal on time also preserves the effective date of your original claim, which will become the start date for VA benefits that you may eventually receive, including retroactive payments.

Get in Touch With a Knowledgeable VA Disability Lawyer

At Berry Law we can review your existing claim file in a timely manner and determine the best appeal lane for you. The objective of an appeal is to prove you have a medically identifiable, service-connected physical or mental condition that meets the VA’s definition of disabled. When possible, we work to make the case for a 100% disability rating or TDIU – Total Disability due to Individual Unemployability – which is equivalent to a 100% scheduler disability rating and ensures you receive the maximum available VA benefit payment.

In most cases, an appeal will be based on new and relevant evidence. We seldom see the file for a denied claim and think that a new VA reviewer will come to a different decision about it.

New evidence is information that the VA didn’t have before its previous decision. Relevant evidence is information that could prove or disprove something about your case. The VA’s duty to assist requires the VA to assist you in getting the evidence needed to support your case, such as medical records. The VA’s duty to assist applies only during an initial claim and a Supplemental Claim.

New and relevant evidence will typically include medical records that diagnose your disability and describe how it limits your ordinary daily activities, including the ability to maintain gainful employment. Medical records should also describe the origins of a Veteran’s disabling condition, symptoms and a prognosis for the future. A claim must also demonstrate a service connection to your disability.

We can assist you with a VA decision review or appeal, including doing the legwork necessary to obtain records needed for a New Evidence Review or a Board of Veterans’ Appeals hearing. We are experienced with Veterans’ appeals to higher courts.

We know what is necessary to prove you have a medically identifiable, service-connected physical or mental condition that causes you to be disabled today. If necessary, we can refer your case to doctors, psychologists or other medical experts we regularly work with to review your records and/or examine you and provide us with their medical opinion. We can also ask vocational experts to appraise a Veteran’s ability to maintain substantial employment.

Get Help with How To Win A VA Disability Claim Appeal

The rules and regulations governing VA disability benefits claims are complex and confusing enough for any Veteran’s valid disability claim to be denied initially. Unfortunately, the appeals process is even more complicated and is governed by strict rules.

The dedicated legal team at the Berry Law is led by experienced Veterans’ law attorneys who are also decorated military veterans. Our firsthand experience with military service and our immersion in Veterans’ law and VA disability appeals can give you distinct advantages when requesting a VA determination appeal.

We represent military Veterans throughout the United States and pursue the full benefits they have earned with their service. Contact us online or phone (888) 883-2483 to set up a free legal consultation about your VA claim.

Berry Law

The attorneys at Berry Law are dedicated to helping injured Veterans. With extensive experience working with VA disability claims, Berry Law can help you with your disability appeals.

This material is for informational purposes only. It does not create an attorney-client relationship between the Firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this blog are not a substitute for legal counsel.

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