VVA's Guide on VA CLAIMS and APPEALS
Table of Contents:
The purpose of this guide is to assist you, the veteran, dependent or survivor, in presenting your claim in the best way possible to the U.S. Department of Veterans Affairs (VA). To accomplish this, it is best that you work with a trained veterans representative.
This guide mainly focuses on the VA service-connected disability compensation program. This program makes monthly payments to veterans with disabilities related to their military service. These payments are intended to make up for the lost wages that the disability causes.
Details about other VA programs like health care, education benefits, nonservice-connected disability pensions, insurance or home loans are not explained in this guide. However, the description in this guide of the method of gathering evidence to present a compensation claim and of the process followed by the VA in compensation claims generally applies to all claims at the VA. Other resources are available to help understand other VA programs and to learn more details of the compensation program. (See last page.)
Not all of the tips given here fit every case. The tips described below, however, should be followed unless you hear a very convincing argument not to.
STEP 1: GET HELP
It is a good idea to get a representative to help you present your claim to the VA. VA laws, regulations and procedures are very complicated and time-consuming. It can be frustrating to make sense by yourself of how the VA works.
Because there is a legal limit on when you can pay an attorney to represent you at the VA, you will probably not be able to get a lawyer to help you unless the lawyer is willing to handle your case pro bono (free of charge). If the Board of Veterans’ Appeals denied your appeal within the past year, you can hire and pay an attorney. (For more on getting a lawyer, see last page.) Most veterans rely on one of the veterans service organizations or state or county veterans service agencies.
No matter who you select to represent you, it is important that you be personally involved in your case and make certain that everything that should be done, is done.
Although it can be a difficult task, shop around for the best representative. Talk to the prospective representative; ask if there are any limits on their service; get a feel for the person who will be working for you before you sign a power of attorney appointing the person as your representative.
STEP 2: APPLY
Warning: Do not be discouraged by a VA employee who says you are not entitled to the benefits. Put your claim in writing and insist on a written reply from the VA.
- When to Apply: You should notify the VA of the benefits you want at the earliest possible time. From anywhere in the U.S., you can call the nearest VA Regional Office (VARO) by using the following number: 1-800-827-1000. Do not wait until you have gathered all the evidence you think you need. Every day you delay can mean another day of benefits lost forever. If you were discharged less than one year ago, it is vital to apply before that first year is up because a special rule applies in your case.
- How to Apply: To help you apply and remember important deadlines, use the Worksheet provided at page 7. To apply, you do not need to go to the VA or get the official VA form. Just send the VA a letter. This is called an informal claim and will count as an application (although you will eventually be required to fill out some VA forms). If you have not heard back from the VA within a month you should call to confirm that your application has been received.
- What to Apply For: Be clear about what you are applying for. If you have several health problems, list each of them and their impact on your daily activities. Work with your representative to be specific about the disability(s) you list.
STEP 3: GET EXAM
If your application lays out a specific health problem, the VA should schedule you for an examination by a doctor at a VA hospital. This exam should be to find out if your current condition is related to your military service and to find out how serious your condition is.
One strategy to consider before the VA exam is to get a private exam first. Your representative can give you the official examination procedures used by the VA doctors. Ask your own doctor to follow these procedures to be sure to get a detailed report. Present the private report to the VA Regional Office; it might decide that a VA exam is not necessary. If you do have to have a VA exam, give a copy of the private report to the VA doctor. It is very important to have the VA doctor agree that your medical problem exists and record when the condition first appeared.
The VA may reimburse some of the cost of traveling to a VA exam.
STEP 4: COLLECT EVIDENCE
To win VA benefits, you must have convincing reports or documents—some kind of evidence—to support your application. Collecting good evidence and presenting it properly to the VA are the keys to winning. These are also the most time-consuming chores you and your representative will have to do.
Before you collect evidence, be sure you know what is relevant to your claim. Review the VA regulations with your representative so you will know what is important to provide and what is unnecessary. For example, if you want to prove your present condition is related to problems you had on active duty ten years ago, you need to show three things: (1) you have a current medical problem, (2) you had this same medical problem in service, and (3) you continued to have this problem during the ten years that have passed since your release from active duty. You cannot skip over one of these factors and expect the VA to grant your claim. Other times, you only may need to show that your condition began within one year of your release.
Also, if you have a 10 percent evaluation and think you should get more, review the VA Schedule for Rating Disabilities so you will know exactly what symptoms are necessary to get a higher evaluation. Your representative will have this Schedule or you can find it in a public library (ask for Title 38, Code of Federal Regulations, Part 4).
Even though the VA may try to get some of your records, it is important that you and your representative also get the records. Do not assume the VA will get all the records that are important.
The VA may contact you for evidence or for permission to write to your doctor for your medical records. Your response to any VA request for evidence should be made only after consulting with your representative.
The following records are some of those you and your representative may need to get.
You have a right to a free copy of your entire VA file. You should exercise this right so that you will know what records or decisions have been made about you and to make sure the VA records are accurate. Write a letter that says: “I am exercising my rights under the Privacy Act of 1974 to obtain a free copy of all my VA records.” Send that letter to the VA Regional Office holding your claims file and to each VA Medical Center that treated you.
Get a free set of your complete military personnel records. Request military records yourself (or through your representative) directly from the National Personnel Records Center in St. Louis using a Standard Form 180, Request Pertaining to Military Records. This form is available from your representative or any VA office. Other military records may be important such as records documenting your combat experiences in Vietnam. These records may be available through the Environmental Support Group, 7798 Cissna Road, Springfield VA 22150.
Evidence of treatment in a military hospital is the best way to show that the disease or injury began in service. If you were seen at sick call or treated as an in-patient or out-patient at a military hospital, state you want those records and, if possible, include the name of the unit you were attached to when seen at sick call (and the year) and the name of the hospital (and the year) and the type of medical treatment you received.
If you were hospitalized in a private, non-VA hospital, or obtained treatment from a private doctor or clinic, the VA may want to see those records. You can wait for the VA to get them or you can ask for copies yourself. You may have to pay a fee to get the records.
Sometimes no treatment records are available. If you simply tell the VA that in your opinion your current problem is related to your military service, the VA is likely to deny your claim. Sometimes a medical textbook can describe how your original in-service problem could turn into your current problem. Referring to such a textbook can force the VA to look more carefully at your claim. Research on medical conditions can be done through the nearest public library, medical school library or library at the nearest VA Medical Center, VARO or private hospital.
- Military Personnel Records
STEP 5: PRESENT EVIDENCE IN WRITING
You do not help yourself if you simply dump a wad of loose records on the VA. Organize the records and explain their significance in a letter you and your representative prepare together. The material submitted to the VA should be the evidence you and your representative have obtained which is relevant to your case. You must have a neatly typed (or really neatly handwritten) statement of what the evidence shows and why it supports your claim.
A typical statement lays out the important facts of your case in a clear fashion and then argues how the law or the VA regulations apply to these facts. The statement should also argue against any reasons the VA might give for denying your claim, and argue that these reasons are not valid.
STEP 6: PRESENT EVIDENCE AT HEARING
You almost always want a hearing at the VA Regional Office if it denies your claim. The hearing will be before an official (the hearing officer) who has not been involved with your case. A hearing gives you and your representative the opportunity to address the reasons given by the VA in its denial letter. In almost 40 percent of cases considered by a hearing officer, the benefits are granted. If you have nothing to add or if your representative has a good reason for not having a hearing, it may not be worth taking the time to have one.
IF YOU LOSE AT VARO: APPEAL
If the VA Regional Office (VARO) says your disability is not service-connected or if the percentage of disability is lower than what you think is fair, or if the VARO otherwise turns you down, you have the right to appeal to the Board of Veterans’ Appeals (BVA).
Notice of Disagreement
The first step in making your appeal is to send the VARO a “Notice of Disagreement” (NOD). A Notice of Disagreement is a letter saying that you “disagree” with the denial. Be sure to include in your NOD, the date of the VA’s denial letter and be sure to list the benefits you are still seeking.
Statement of the Case
In response to the Notice of Disagreement, you will get a “Statement of the Case” (SOC) from the VARO. This will repeat the reasons stated in the VA’s denial letter why your claim was denied and will recite the relevant VA regulations.
Once you get the SOC, you have two options. First, if you think that you can overcome the reason for the denial by getting more evidence or by better explaining things to the VARO, you should hold off going to the Board of Veterans’ Appeals until you have tried again at the VARO. This should be done with the help of your representative who can help you do this without losing your right to eventually go to the BVA.
Second, if nothing further can be done at the VARO, you should complete the process of appealing to the BVA by filling out a VA Form 9, “Appeal to Board Veterans’ Appeals,” which is usually sent with the Statement of the Case.
Deadline: You have 60 days from the date on the SOC to file the VA Form 9 OR you have the remainder of the one year from the date the VA first denied your application. Whichever deadline is later applies.
Appeal to BVA
An Appeal to the BVA is a statement on a VA Form 9 (or in a letter) explaining what is wrong with the VARO decision and why your claim should be granted. You mail it to the VARO. Your representative can help you with this form.
Request Hearing: The VA Form 9 asks if you wish to appear at a hearing at the BVA. You almost always want a formal hearing where you appear in person to present your case to the BVA. If you do not want to appear in person or cannot, you will have an “informal” hearing which is only a review of your VA claims file and any other papers you submit.
If you want a hearing, you must decide the location of the hearing:
(1) whether to go to Washington, D.C.; or
(2) whether to wait for a travel Board panel of the BVA to come to your VARO.
A travel BVA hearing is before a member of the BVA who travels from Washington, D.C., to hear cases at a VARO. The advantage of having your case heard by a travel BVA hearing is that it may be easier for you physically (and financially) to get to your VARO for a hearing than to travel to Washington, D.C. One disadvantage is that it is sometimes over a year before the BVA travels to a VARO.
BOARD OF VETERANS’ APPEALS
The first thing to remember about your case at the Board of Veterans’ Appeals (BVA) is that you should not be pushed into having a hearing before you are ready. If you need a postponement of the hearing, notify the BVA as soon as possible.
You should also be sure that your representative has thoroughly prepared your case before the hearing. Discuss your case with your representative well in advance of the hearing. Ask to see all statements written by your representative and other documents before they are submitted.
At a hearing you can expect your representative to make an opening summary of your case and then to ask you a series of questions to highlight the important facts. Following that, the BVA member may ask you questions and then your representative should make a closing statement.
1999 DISABILITY COMPENSATION RATES
IF YOU WIN AT THE BVA
About 20 percent of persons win their appeal at the BVA. Winning at the BVA can mean different things: (1) If you applied to show your disability was related to your military service, winning can mean the VA agrees your disability is service connected. Getting the VA to agree your disability is service connected does NOT necessarily mean you will start getting money. The VARO still must decide what percentage of disability you should have assigned to your condition. If you disagree with that decision, you have the right to appeal it to the BVA, following the same procedures as before. (2) If you applied to have your disability rating increased, winning can mean increased monthly payments.
- Money for you: If you are successful, you are not done with the VA. You still need to start getting payments and keep getting them regularly. Watch out to make sure that you are getting the right amount. (See rates in box on page 5.) If you believe you are being paid less than you should be (or more), ask the VA for a “paid and due statement” to confirm the accuracy of the amount it is sending. You should notify the VA if it is not paying you the correct amount. If the VA discovers that it overpaid you, it can require that you repay that amount.
Note: Depending upon the disability rating of the veteran, allowances for a spouse range from $34 to $112; and for each additional child, $18 to $60.
- Money for your family: If you succeed in getting a 30 percent or greater evaluation, and you have family, you can get a little bit more for them. You will have to submit copies of birth and marriage certificates to get this “dependents allowance.” You may get an extra allowance for certain children who are attending school.
Deadline: The Notice of Disagreement must be mailed to the VARO within one year of the denial of your claim or you cannot appeal. (You still can reopen your claim if you miss this deadline but you lose an earlier “effective date” for an award of back benefits.)
IF YOU LOSE AT BVA: APPEAL TO COURT OR START OVER
If you lose at the BVA, you have four choices: (1) do nothing; (2) appeal to the U.S. Court of Veterans Appeals; (3) ask the BVA to reconsider its decision; (4) reopen your case at the VARO.
If your representative agrees that you just did not have enough evidence to win and that you cannot get any good evidence, it may not be worth your time to pursue an appeal.
If your representative believes the BVA did not properly address the evidence in favor of your claim or did not make sure all the evidence was obtained or just thinks the BVA was wrong, consider filing an appeal to the U.S. Court of Veterans Appeals.
To appeal to the court, send your name, address, phone number, and the date of the BVA decision, to:
To help you decide if an appeal to the court is a good idea, ask the Clerk of the Court (1-800-869-8654) to send you a list of persons who practice at the court. Review your case with a few people on that list. More help is available; see last page.
If you can spot an “obvious error of fact or law” in the BVA’s decision, ask it to reconsider its denial. Successful reconsiderations are extremely rare.
If you can get additional evidence which is both new and material (that is to say it is really relevant), reopen your claim at the VARO and start all over again. Of course, if your condition gets worse and you think a higher percentage of disability is called for, tell the VARO that.
Clerk of the Court
U.S. Court of Veterans Appeals
625 Indiana Avenue NW
Washington DC 20004
NOTE: Whether the VA agrees to pay you benefits or not, don’t forget that you also might have a good claim for Social Security disability benefits. Contact the nearest SSA office to file a claim.
- Protection from cuts. There are rules that require the VA to give you 60 days advance notice and a chance for a hearing before reducing your benefits. Work with your representative to exercise your rights. To postpone a reduction, you must request (in writing) a hearing within 30 days of the notice of the pending cut.
- If you cannot work. If you are rated less than 100 percent disabled, but your disability keeps you from getting or keeping a job, you should apply for increased compensation based on unemployability. Ask the VA for a VA Form 21-8940.
Important: Keep a copy of everything you mail to the VA and keep everything you receive from the VA.
Keep in touch: You should talk to your representative at least once per month while your claim is pending. Whenever you get mail from the VA, call your representative to make sure s/he has gotten it and that you both understand it.
Ask questions: If you do not understand something about your case, ask about it. Don’t worry about asking a stupid question—your representative works for you and part of his or her job is making sure that you understand everything.
Be insistent: If something needs to be done, insist that it happen. Do not be talked out of anything unless you understand what is going on. Insist that your representative:
If your representative will not do these things, you should find another one.
- discuss your case with you;
- be familiar with your VA file;
- be able and willing to discuss what the VA regulations require to win your case and what evidence is needed to win;
- discuss your case in-depth well before any hearing;
- submit a written statement to the VA before your hearing. S/he should let you read the statement before it is submitted.
Important: It is important in answering VA requests to completely explain what you are and are not sending them. If they ask for documents they already have, tell them that. If you and your representative cannot get all of the evidence the VA is requesting, explain why you cannot get the evidence and why VA already has enough evidence to allow your claim.
WORKSHEET FOR VA CLAIM
The purpose of this worksheet is to help you keep track of important deadlines and to help guide you in working on your claim.
WARNING: The description of the VA claims and appeals process contained in this guide is not intended to substitute for advice from a competent representative. Important laws, rules or procedures may have changed since this guide was published. Consult a representative for the latest information.
Your Name _________________________________
VA Claim #: _________________________________
Address, Phone of VARO handling your case
(The nearest VARO can usually be reached by calling 1-800-827-1000):
Representative’s name: _________________________
date signed Power of Attorney: ___________________
date of first contact with VA: _____________________
name of VA employee: __________________________
date formal application filed: _______________________
VA INFORMATION REQUESTS
date of 1st VA request: ___________________________
date you mailed to VA: ___________________________
date scheduled for VA medical exam: ________________
name of examiner: _______________________________
Did the examiner have your C-file on hand? ____________
date scheduled for VARO hearing: ___________________
date of VARO denial: _____________________________
AFTER VARO DENIAL
deadline to file Notice of Disagreement (add one year to date of VA denial) =
date you filed NOD with VARO: ______________________
date VA mailed Statement of Case: _____________________
date VA mailed Supplemental SOC: _____________________
deadline to file appeal, VAF 9: (whichever comes later:)
60 days from date VA mailed SOC = OR _________________
one year from date of VA denial = ________________________
date you mailed appeal, VAF 9, to VARO: __________________
date pre-hearing appointment with rep: ______________________
location of BVA hearing: _________________________________
date of hearing before BVA: ______________________________
date of BVA decision: BVA docket #: _________________________
BVA action: _____ denial _____ allowance ____ remand
AFTER BVA PROCEEDINGS
deadline to file Notice of Appeal with U.S. Court of Veterans Appeals
(120 days from date of the BVA decision) = ________________
date you mailed appeal: ________________
CVA docket #: __________________
CONTACT FOR STATUS OF CASE
Once your file has been transferred to the BVA, you can call the BVA (202-565-5436) to find out whether your case in undergoing active consideration at the BVA. If you are told the case is in “quality review,” you should receive a decision within a few days. The BVA allows less than 20 percent of appeals, denies about 30 percent, and returns about 50 percent to the VARO for it to collect more information or to conduct another exam.
As of 1996, it was taking the BVA about two years to make a decision. If you are about to lose your home or are terminally ill, the BVA can consider your case before others. Work with your representative to document the need for the BVA to advance your case on its docket.
The following publications are a few of the resources that may give you additional help with your claim:
- Service Reps and other advocates; one-year subscription is $25; to order, call: (202) VVA-1316.
- Veterans Benefits Manual and Supplement—written for representative; details on filing, presenting claims for full range of VA benefits; offered by National Veterans Legal Services Program; to order, call 202-265-8305.
- Title 38, Code of Federal Regulations—the official set of VA regulations; available from the Government Printing Office; to order, call 202-512-1800.
- Veterans Appeals Reporter—contains decisions of Court of Veterans Appeals; published by West Publishing Co.; available at nearest VARO.
VIETNAM VETERANS OF AMERICA
The Vietnam Veterans of America (VVA) is a non-profit, congressionally chartered veterans service organization, dedicated to helping Vietnam-era veterans and their families obtain all the benefits and services to which they are entitled. VVA has accredited Service Representatives in most states who can provide representation at the VARO level. A list of the nearest VVA Service Representatives can be obtained by writing to:
Many other veterans organizations offer a wide range of services. Most states operate a department of veterans affairs and many states have a network of county veterans representatives. To locate accredited representatives, call or visit the nearest VARO.
VVA National Service Representative
8605 Cameron Street, Suite 400
Silver Spring, MD 20910-3710
There are limits on when you can pay a lawyer to help you with a VA claim. Generally, you can hire a lawyer only after the BVA has decided your claim. Then you have only one year to hire a lawyer. Many lawyers work on a contingency basis that means you do not have to pay them a fee up front and if you do not win benefits, you will not have to pay a fee.
There are no limits on when someone else (a so-called third party) can use his or her own money to hire and pay a lawyer to represent you. This third party cannot be a family member who may benefit from your claim. If you use a third party to hire a lawyer, the lawyer can represent you at the beginning of a claim. Also, there are no limits on hiring a lawyer when the VA is coming after you because of a home loan guarantee debt.
Some private lawyers and some legal aid or legal services offices provide representation free of charge at all stages of a VA claim.
There is an organization of attorneys and non-attorneys who regularly practice before the Court of Veterans Appeals. Its members are available to represent you at the Court or, through a third party contract, before a VARO or the BVA. For a list of these members, contact: Nat’l Organization of Veterans’ Advocates, (800) 810-8387.
If no private practitioners are willing to represent you at the Court of Veterans Appeals, it might be possible to obtain pro bono representation through the Veterans Pro Bono Consortion. The Court will send you information about this opportunity. It is available only to a limited number of persons who meet income guidelines.
Copyright © 1996, Vietnam Veterans of America. All Rights Reserved. ISBN 0-964-3980-5-2.
This guide may be excerpted or reproduced for counseling, self-help, and scholarly purposes, but not for profit, without further permission; we request only that proper credit be given. Any other use requires written authorization of VVA, ATTN: National Service Representative, 1224 M Street, NW, Washington DC 20005-5183. This guide is one of a series that is being published by VVA under a contract with Keith D. Snyder of the Veterans Education Project. 3/96
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