Veterans who are going through the process of seeking VA disability benefits often ask how many times they can appeal an adverse decision from the VA.
The simplest answer is as many times as it takes.
Although, as with any legal matter, that depends on many factors. In some cases, you’ll have to provide new and relevant evidence to continue to appeal your decision.
Preferably, you will never have to appeal a VA disability claim decision. The VA might get it right the first time, upon your initial claim paperwork and with or without a C&P exam. They may decide you do have a service-connected disability. They may give you a disability rating that is rated at a level that you believe is accurate and with a benefits effective date that you believe is correct. This may happen in approximately 30% of initial claims.
However, if you are not satisfied with the initial Notification Letter, there are things you can do – including appealing the VA’s decision. This article will walk you through that process to provide a better understanding.
How do VA decisions work?
Just to recap, here is how the VA disability process works.
You, the veteran, prepare and file an initial claim for disability benefits. The claim form and accompanying documentation are your effort to answer the following questions to the VA’s satisfaction:
- Are you qualified for VA disability benefits, meaning that your disability is service-related?
- Does your disability impact your day-to-day?
- When did your disability begin?
In some cases, this is a very straightforward case. If you received an obvious injury or illness while you were active military, there will be less paperwork and convincing needed than if you suffer from PTSD that started to manifest several months after discharge.
The VA then engages in a fact-finding process. They review what you sent them. They then may request additional documentation and may send you a notice requiring you to be examined by a doctor to evaluate your condition with Compensation & Pension (C&P) exam. A C&P exam involves a review of your prior medical records, an in-person doctor visit at a VA medical facility or somewhere designated by the VA, and a subsequent report sent to the VA. After that, the entirety of the claim file is reviewed and a decision made. The decision will be conveyed to the applying veteran by a letter outlining the decision made and the reasons for it.
If your claim was denied entirely, the rating level seems too low, or the effective date is wrong, you may want to appeal that decision and try to get a better decision. You can request an appeal within one year of that Notification Letter.
Why did your claim get denied?
You may wonder why around 70% of VA disability claim applications are denied in the first place. There are many reasons, but the good news is that many reasons for the denial are fixable on appeal.
Unlike criminal or civil lawsuit appeals where you have to meet a really high standard to reverse a court ruling, the VA often will change its decision if they are shown that a mistake has been made. No egos, no need for blame. The VA realizes that they process a lot of paperwork and though they try to make the right decisions, sometimes they don’t.
Additionally, instead of highly trained lawyers and paralegals preparing the claim applications, it’s just regular veterans who have no prior experience in filing administrative claims. In fact, there’s a law against lawyers and paralegals charging veterans for helping them with their initial claims.
Sometimes VA disability claim applications get denied because of simple clerical errors. A box may have not been checked that should have, some paperwork may not have been attached, and other oversights like that.
Sometimes they get denied because the critical information is buried in the documentation and the VA missed it.
For example, if a service member was raped by a superior officer while they were on active duty, there may not be any notation in their service record or medical records recording that event. They maybe didn’t report the incident for fear of retaliation, because they just wanted to pretend it didn’t happen, or possibly because they were embarrassed and didn’t want anyone to know. Military Sexual Trauma (MST) is a complex matter and, like PTSD, symptoms may not appear until significantly later in time. It is common for an MST claim to initially be denied. Veterans are highly skilled in many ways, but proving the existence of MST may not be one of those skills. However, an attorney who specializes in MST may be able to see indirect indicators that the event happened within service records and medical records – levels of nuance that may be missed upon first review.
If your claim is denied, don’t give up. You can appeal and may get a better outcome than the initial decision.
Your claim has been denied…now what?
After receiving a Notification Letter denying your claim, you may feel discouraged and defeated. Take a minute to absorb that, then look at your options for VA disability appeals.
First, mark your calendar with the one-year deadline for your VA decision appeal to be filed. Second, get assistance from a professional to help you understand why your VA disability claim was denied and evaluate your appeal options.
Statistically, your odds improve on appeal. Over 70% of appeals will be successful in either being granted or at least remanded (sent back) for a closer look. That probability is even higher if you have a lawyer represent you. Your case is unique though and your likelihood of success on appeal depends on your own facts and circumstances.
How many times can you appeal a VA Disability Decision?
With any luck, you will not need to appeal a VA disability claim decision more than once. The reality is that there is no absolute number of times you can appeal.
The first step of an appeal is to choose one of three types of appeal. The three review options are Supplemental Claim, Higher-Level Review, or Board Appeal.
A Supplemental Claim appeal may be the right choice if you have new relevant evidence to present that wasn’t part of the initial claim file.
A Higher-Level Review appeal may be the right choice if you don’t need to add new information but just want a more experienced examiner to review the file again.
A Board Appeal may be the right choice if you want an expert Veterans Law Judge at the Board of Veterans’ Appeals in Washington, D.C. to review the file. You may also ask for a live hearing. Some things don’t translate well on paper and having a live (albeit often video conference) hearing will be the best way to present your case and arguments.
The assistance of a law firm experienced in handling VA disability claim appeals is highly recommended because they will be able to help you determine what appeal pathway makes the most sense for your case and help you execute that plan.
Once your appeal is filed, reviewed, and a hearing held if one was requested, the VA will issue their appeal decision. If you don’t like the appeal decision on a Supplemental Claim or a Higher-Level Review, you can file an appeal to have a Board of Veterans’ Appeals review the decision. You can also file another Supplemental Claim if you have new and relevant evidence to submit.
Just a few words of clarification if you are mixed up on terminology. VA reconsideration (more specifically, a “motion for reconsideration”) is not the same as an appeal. It is a legal maneuver that some people have tried to use in an effort to bypass the usually long and tedious process of waiting for an appeal decision. However, it can have unfortunate consequences, like screwing up your effective date for benefits. Never ever do a motion for reconsideration without consulting a lawyer, maybe two lawyers, and even then probably not.
Additionally, a VA “revision of decision” is separate and different from an appeal. This is a mechanism that can be used at other times when a “clear and unmistakable error” in a decision has been made. That is a very high standard of proof and is a mechanism only infrequently used for cases that cannot be otherwise corrected on appeal.
Why and how to get a VA Disability appeal attorney
Whether to hire a VA disability claim attorney to help with your appeal is an easy question to answer – yes, if you want to maximize your chances of success. You have gone through the VA disability claim process once and never handled an appeal. An attorney specialized in this area of the law has handled hundreds, if not thousands, similar cases to yours. Getting your claim approved is important, and if you knew how to make that happen, you would have done it already. You don’t know what you don’t know, so look for an expert to be on your side to navigate the process and increase your chances of a positive outcome.
As with any other area of the law, finding just any VA disability attorney isn’t too hard, but finding the right one for you requires looking for the right thing. VA disability claims appeals is a unique niche of law practice and you’ll want to find a law firm that understands you as a veteran as well as has the expertise to review your adverse decision and determine whether there is a good chance of it being changed into a positive decision.
Find a law firm that specializes in VA disability claim appeals. Find a law firm that has veterans on staff. Find a law firm that understands the nuances of your type of injury or disability, especially for more complex cases such as PTSD and MST.
Many law firms offer a free, initial review of your case before you commit to hiring them. See if they are willing to be candid with you about whether or not they think they can help. Most law firms handle these appeals on a contingent fee basis – they don’t get paid until you get paid – so they won’t even offer to take on your case if they think they don’t have a solid chance of improving your outcome.
So short answer to your initial question – yes, you can appeal an adverse decision from the VA on your VA disability claims decision, maybe more than once.
And we can help.
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Are you ready to have your adverse decision on a VA disability claim reviewed by Veterans Law Group? Veterans Law Group, a law firm staffed almost exclusively with veterans, has helped thousands of veterans just like you. That is all we do. We handle cases ranging from simple to highly complex, including MST cases. Contact us today.
