WHAT YOU NEED TO KNOW ABOUT THE VA DISABILITY CLAIM PROCESS

Has your VA disability claim been denied?

You have the right to appeal.

The VA appeals system has changed as of February 2019. The appeals process is now a review process that allows you to choose from three decision review options:

• Supplemental Claim
• Higher-Level ReviewHigher-Level Review
• Board Appeal

If you have new and relevant evidence that is pertinent to your case, you can choose to file a Supplemental Claim. You can supply the new evidence yourself or request the VA to obtain the evidence from places like a VA medical center, other federal facilities, or even from your private medical providers.

According to the VA: “New Evidence is information that the VA didn’t have before the last decision. Relevant Evidence is information that could prove or disprove something in your claim.”

You can file a Supplemental Claim at any time, however, it is best if you can file within one year from the date of your decision letter in order to preserve the earliest possible effective date.

Once your Supplemental Claim is submitted, your new evidence will be reviewed and a new decision will be rendered.

Here are the steps to take:

• Complete the Decision Review Request: Supplemental Claim (VA Form 20-1995).
• Gather your new and relevant evidence.
• Apply by submitting your application by mail (same address as above), in person, or by fax (844-531-7818).

You can expect this process to take between four and five months.

If you get a Supplemental Claim decision that you do not agree with, you can request a Higher-Level Review or file for a Board of Appeal.

If you disagree with the decision made on your Supplemental Claim, the next step is to request to have a senior reviewer take a look at your case. This request must be filed within one year of the date on your Supplemental Claim decision.

Here are three things to note:

• This option is available to you only one time. You can not file again after you have received a Higher-Level Review decision unless you first file a new Supplemental Claim.
• You will not be able to submit any evidence. If you have new evidence, you will have to go through the Supplemental Claim process again.
• You can speak to the reviewer by phone to articulate the reason(s) you do not agree with the decision made on your Supplement Claim.

• Complete the Decision Review Request: Higher-Level Review (VA Form 20-0996).
• Apply by submitting your application by mail (same address as above), in person, or by fax (844-531-7818).

If you disagree with the decision on your Higher-Level Review, the next step is to make a request for a Board of Veterans’ Appeals (BVA) Review.

A BVA hearing is a request to present your disability claims case before a Veterans Law Judge.

With this process, you can request a video conference hearing where you can present testimony about your disability claim to a judge. This hearing will be translated and becomes a part of your appeal file.

Please note that a hearing is not required for this appeal process.

If you decide that a BVA hearing is the best option for you, here are the steps to follow:

• Complete the Decision Review Request: Board Appeal (VA Form 10182).

In Part II of this VA form, you need to check one of three boxes. These are:

Box 11A: “Direct Review by a Veterans Law Judge.” Checking this box means you are requesting a judge to review your disability claim file, but you do not want a hearing and you do not want to submit any evidence.

Box 11B: “Evidence Submission Reviewed by a Veteran Law Judge.” Checking this box is a request for a judge to review new evidence that supports your disability claim. This is not a request for a hearing, it is only a review. All evidence must be submitted to the judge within 90 days of filing the Notice of Disagreement (NOD).

Box 11C: “Hearing with a Veterans Law Judge.” This is a request for a hearing with a judge. With this process, you can also submit new evidence that supports your disability claim. However, all new evidence must be submitted to the judge within 90 days of the hearing.

• Apply by submitting your application by mail (same address as above), in person, or by fax (844-531-7818).

Here is a snapshot of how this process works:

• Once you have filed your request for a BVA hearing, it is put on the Board’s docket. All requests are registered in the order in which they were received and the BVA is required to decide cases in docket order.
• After your BVA hearing is scheduled, you will receive a notification by mail at least 30 days before your hearing date.
• A hearing in front of a judge can be formidable. For many veterans, hiring a professional to help prepare for a BVA hearing is the best option. Please note that your representative must be a VA-accredited lawyer, claims agent, or someone from a Veterans Service Organization (VSO). Your representative will be allowed to attend the video hearing with you.

If your appeal with the Board of Veterans’ Appeals is denied, you can pursue further action. You may:

• File a Supplemental Claim with your local VA office;
• File a motion asking the Board of Veterans’ Appeals to reconsider the decision.
• File a motion requesting the Board of Appeals to revise its decision based on “clear and unmistakable “clear and unmistakable” error (commonly referred to as CUE).
• File a Notice of Appeal with the United States Court of Appeals for Veterans Claims.

Here is what to expect at a BVA hearing:

If your appeal with the Board of Veterans’ Appeals is denied, you can pursue further action. You may:

• File a Supplemental Claim with your local VA office;
• File a motion asking the Board of Veterans’ Appeals to reconsider the decision.
• File a motion requesting the Board of Appeals to revise its decision based on “clear and unmistakable “clear and unmistakable” error (commonly referred to as CUE).
• File a Notice of Appeal with the United States Court of Appeals for Veterans Claims.

With all the earlier appeal stages discussed above, it is a good idea to have some sort of VA-certified representation.

However, once you are at the level of a CAVC appeal, you can try to tackle this alone—but realistically, a VA-certified lawyer is a necessity.

Here is an overview of the CAVC appeals process:

• A Notice of Appeal (NOA) with the CAVC must be filed within 120 days of your BVA decision.
• The case will be put on the Court docket and you will be issued a Notice of Docket from the court clerk. At this point, your appeal claim officially becomes a court case.
• The VA will supply you with a complete copy of your file (which is called the Record Before the Agency—or RBA) and the Court will issue you a 60-day Notice to File a Brief.
• You will need to develop a strategy and a plan of action to deal with the Court. Here is where a VA attorney is invaluable.
• If you have an attorney, through a conference with the Court’s Central Legal Staff (CLS), you will present your case and try to get your original decision overturned. Self-represented or pro se appellants at CAVC do not have the opportunity to participate in a CLS conference.
• If all issues aren’t resolved, you will be able to proceed to briefing. (Briefs are written arguments to the Court.)

Once the Court has received all records and briefs, your case will be assigned to a Veterans Claims Judge who will render a decision.

In general, there are two classifications of a veteran’s disability: High-value VA claims, and low-value VA claims.

High-value claims receive disability compensation at a rate of 30% to 100%. The most common types of injuries or illnesses that fit this category are:

• Post Traumatic Stress Disorder (PTSD)
• Major Depressive Disorder (MDD)
• Generalized Anxiety Disorder
• Somatic Symptom Disorder
• Sleep Apnea
• Migraines
• Respiratory Conditions (e.g. heart and lung conditions)
• Cancer or other serious disease processes.

Low-value claims receive a 0% to 20% rating. The most common type of conditions that fit this category are:

• Tinnitus
• Hearing Loss
• Scars
• Musculoskeletal conditions

Obviously, to get a higher rating you need to focus on your high-value condition(s).

Here is where you have to deal with the VA’s mystifying math.

Multiple disabilities are NOT cumulative. They are factored into each other in numerical order from highest VA rating to the lowest, then multiplied against each other to determine your overall combined VA disability rate.

Here is an example:

You have a 60% heart condition and a 30% foot condition, which would seem like you have a 90% disability rating.

Not so.

Here is how it works:

60% of your body is disabled, so you are 40% healthy
100% – 60%= 40% healthy

Now the 30% disability is factored into your 40% healthy rate.

.30 x .40= .12 (or 12%)

Next you take your 60% disability and add it to your factored disability of 12%.

60% + 12%= 72%

The VA only works with 10% increments so your rate of 72% is rounded down to 70% which is now your combined rating.

Rather than trying to do the math yourself, you can refer to the rate calculator referenced above.

If your injury or illness has worsened, you may decide to apply for an increase of your disability compensation rate.

Here are a few tips:

• Know exactly what your current rating is: You can download letters that certify your current disability level and/or print out information on what disabilities are service connected on the VA’s eBenefits site.
• Get the ball rolling with the VA: You can establish an effective date by filing an Intent to File a Claim for Compensation (VA Form 21-0966).
• Find out what your options are: Educate yourself as to what disability rate your condition is eligible for by checking out the Schedule for Rating Disabilities.
• Gather evidence and records: Make sure you have any civilian medical records, buddy letters, or any other documents that support your claim for an increase.
• Consider obtaining an Independent Medical Opinion (IMO): An IMO needs to be completed by a physician who specializes in the area of your disability. An IMO is not a medical examination—but rather a medical opinion based on a review of all evidence currently of record.
• Now you are ready to file for a claim increase: File a claim on the VA’s standard application form (VA Form 21-526EZ)

Caution: When you ask the VA to open your file to consider a disability compensation rate increase—you open the door for a complete review. Many veterans have reported that they received an unwelcome surprise when instead of getting the rate increase they wanted, they got a proposal to decrease one or more ratings. So, make sure you have all your ducks in a row before you tackle this process.

Frequently Asked Questions

What do I do if my VA claim is denied?