A veteran who receives a denial letter from the Department of Veterans Affairs (VA) always retains the right to appeal that decision or any aspect of the decision they disagree with. Even if you have been awarded Total Disability based on Individual Unemployability (TDIU), you could appeal the effective date and receive retroactive benefits, since one of the most common errors VA makes is assigning the incorrect effective date when an award of TDIU is made.
Under the old appellate system, known as legacy appeals, which is now technically closed for new appeals to be filed, former servicemembers who received a denial of TDIU only had 60 days to file an appeal. Now, veterans generally have one year after receiving a denial letter to file any appeal with VA thanks to the Appeals Modernization Act. However, it’s generally a good idea to not wait the full year before initiating an appeal, since VA won’t start working on a TDIU appeal until the proper form is filed.
At the same time, there’s a lot of information a veteran could gather during that one year to support an appeal, so it’s also important not to rush in filing an appeal if a veteran is trying to obtain additional proof. Depending on whether a veteran wants to submit additional evidence or not, an appeal may be filed through a higher-level review, a supplemental claim, or the Board of Veterans’ Appeals (BVA), with or without a hearing before a Veteran’s Law Judge.
Every TDIU case is different, and there are a lot of common mistakes that veterans make when applying for TDIU and when appealing VA’s decision to deny benefits. For example, a former servicemember may fill out the appeal form and turn it in without understanding what restrictions are placed on the type of appeal they choose, such as requesting a hearing or waiving the right to submit additional evidence.
A veteran should have a clear understanding of what they are trying to prove on appeal before choosing a specific appellate path. Most veterans will want to choose to submit additional evidence or testify at a hearing, which means that in many cases an appeal to BVA is warranted. A former servicemember should reach out to a veterans’ service organization or an attorney for assistance in navigating the different avenues available and to obtain advice on which one best suits their specific situation.
Just because a former servicemember receives a denial after filing an appeal does not mean their case is over. There are many levels of appeal that can be requested, but obtaining legal counsel can be very helpful during the appeals process. Otherwise, the risk of getting the same answer over and over again is high, since VA typically will not approve a TDIU appeal without additional evidence.
The benefit of hiring an attorney sooner in the process rather than later is the possibility of achieving success in less time. When a lawyer consults with a veteran who has been denied TDIU, they are going to investigate why there was a denial, what evidence might need to be submitted to overturn that decision, and how quickly and easily they could obtain that evidence and submit it to VA through an appeal.
It would be beneficial for someone who is appealing VA’s decision on their eligibility for TDIU to consult an experienced lawyer first, because understanding the reason for the rejection and filing an effective appeal can be difficult without legal assistance. To be successful on an appeal, a veteran should understand the reasoning behind why VA denied them in the first place and how to overturn that denial by proving VA’s determination was wrong.
It is not always clear what VA is trying to say in a rejection letter because the rationale used to deny TDIU is often unclear or simply a boilerplate rejection. Many veterans simply file an appeal and write a statement, but that is not always enough to avoid a subsequent denial. Applicants without legal assistance risk wasting the opportunity to be approved for TDIU earlier on appeal. For this reason, you should contact a TDIU appeals lawyer from our firm as soon as possible to improve your chances of success.
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