According to VA statistical information, approximately 70% of initial VA disability claims are denied, and that includes VA psychiatric disability claims. The good news, however, is that for VA disability appeals, the statistical odds of success are highest when you are represented by a VA disability attorney.
This article will outline what may have happened to your VA disability claim and what your next steps should be.
Your first question is probably going to be “did I do everything right when I filed my initial disability claim?” In fairness, despite your best efforts, your VA disability claim was either deficient in some way or the VA made a mistake despite you doing everything right. Whichever one might be the case, the good news is that you have avenues of appeal.
Don’t take it too hard that you did not succeed on this initial round of request for disability benefits. The VA disability process is complicated to begin with and then the deck is stacked against the veteran in several ways. As already noted, the VA denies a lot of disability claims. They know what criteria need to be met, they can quickly see where there are holes in the disability claim application, and they have a lot of files to review.
Another way the deck is stacked against veterans is by forcing veterans to prepare their initial claim themselves or with a Veteran Service Officer. You may wonder whether you should have hired a VA disability claim attorney to help you, but the fact is that you cannot. According to federal law, no one can be paid by a veteran to help prepare a VA disability initial claim. The good news, however, is that as soon as you go into the appeal level of the process, you can (and should) hire an experienced VA disability appeals attorney to help you. A majority of errors you may have made in your initial application can be fixed on appeal.
Every claim is unique and the specific reasons why your claim was denied will be explained in the narrative decision that accompanies your notification letter. That being said, there are some common reasons for claim denials.
Keep in mind that psychiatric disability claims are more complex than physical disability claims. There is not much ambiguity about an amputated limb or diabetes presumptively caused by Agent Orange exposure. However, in matters involving mental health, diagnosis and treatment often evolve over time and records may not be explicit enough.
More often than not, denials fall into three categories – no diagnosis, no in-service evidence, or no nexus evidence.
The VA is looking for a specific diagnosis from your doctors that falls within their criteria for acknowledging the existence of a disability. No diagnosis and the claim will be denied. For a PTSD claim, you may have initially presented to your doctors with depression or anxiety and been in treatment with the understanding that you are being treated for PTSD. That’s fine for purposes of treatment, but not enough for the VA. The VA needs a DSM 5 diagnosis of PTSD in order to approve your PTSD claim.
This may be fixable on appeal with either a C&P Exam or an Independent Medical Examination (IME).
Other claims have a different problem. You may have sufficiently established that you have a psychiatric disability, but there is no evidence that your condition is connected to your veteran service record. Everyone has stressor events in their lives that could lead to a PTSD diagnosis, but without any specific documented incidents that occurred during your service, your claim will be denied. This is very common for Military Sexual Trauma (MST) claims because soldiers subjected to MST often will not directly report what happened for fear of retribution, embarrassment, or other reasons. If you are a combat veteran, the VA may concede your stressor.
This may be fixable on appeal if there is a good reason for the lack of documentation of the stressor event or if indirect evidence can be produced. This is often an available option on appeal of MST denials. An experienced VA disability appeals attorney who understands the subtleties of MST fact patterns can often find the indirect pattern evidence that shows the trauma incident occurred, even though never formally reported.
This final area is a combination of the previous two issues. The VA may have found a disability to exist and also recognize a service trigger, but don’t see any connection between the two. Maybe you had a traumatic event during your service, but by all accounts, you handled it well with no apparent long-term effects. However, after your service you witnessed your spouse and child be killed in a car accident and since then you can’t sleep and suffer nightmares, anxiety, and other PTSD symptoms. The VA could say yes, you had a traumatic incident in service, and yes, you have PTSD, but we don’t believe your PTSD is connected to your in-service incident.
The VA may change their decision on appeal, however, if you and your lawyer can demonstrate that there is a nexus. This connection need not be direct cause and effect – any relationship suffices. Often the evidence you need to connect the dots comes from C&P exam results or from an independent medical exam.
Upon reading the VA’s decision on your initial claim, you may have an idea of how to fix it on appeal but you will probably significantly increase your chance of success on appeal by hiring an experienced VA disability appeal attorney to walk you through your options.
If you choose to appeal the VA’s initial decision on your VA disability claim application, you have one year from the date of the notification letter. Note that the narrative explanation of the reasons for their decision may have a different date on it, but it is the notification letter date that governs your deadline for appealing.
There are currently three decision review (appeal) pathways that you can pursue, depending on what you want to have reviewed. These three pathways are Supplemental Claim, Higher-Level Review, or Board Appeal.
A Higher-Level Review appeal may be chosen if you want a more experienced examiner to review the file again. No new evidence is added to the file, but you may be pointing to information already in the file that was improperly overlooked or disregarded. The form for a Higher-Level Review is the Decision Review Request: Higher-Level Review (VA Form 20-0996).
A Supplemental Claim appeal may be appropriate if you have new relevant and necessary evidence that needs to be added to the initial claim file. The form for a Supplemental Claim is the Decision Review Request: Supplemental Claim (VA Form 20-0995).
A Board Appeal may be chosen if you want an expert Veterans Law Judge at the Board of Veterans’ Appeals in Washington, D.C. to review the file. Some cases need the decision-maker to actually meet, even virtually, with the veteran and be able to ask questions and evaluate the situation. You can request an in-person hearing in Washington, DC, or the hearing can be done by videoconference (either at home or the nearest VA office). The form for a Board Appeal is the Decision Review Request: Board Appeal (VA Form 10182).
Even if you don’t get a favorable decision in your first round of appeal, there are additional options for adding new information and conducting additional appeals. Don’t give up until the VA gets it right.
VA claim appeals are complex and the stakes are high. You don’t want to muddle through the process on your own. You want an experienced, specialized VA disability appeals attorney on your side, evaluating your options and putting all of the proverbial “ducks in a row” to make it easy for the VA to reach a favorable decision on your claim.
In case you are wondering how much such expertise is going to cost and how you can possibly afford to hire a lawyer, you should know that many VA disability appeals attorneys work on a contingency fee basis – they don’t get paid unless, and until, you get paid. In other words, they work for free, sometimes for several years, until they are able to obtain an acceptable disability decision for you (or explore all avenues for doing so). If the contingency fee is 20% (a much lower percentage than would be expected for personal injury lawyers or other contingent fee cases), you can sign a form authorizing the VA to pay your attorney out of your cash payment at the end of your appeal.
VA disability appeals is a highly specialized niche law practice. Although you may know a number of very intelligent and experienced attorneys in other areas of legal work, you don’t want your claim handled by someone who has only done one or two of these appeals before. You want a law firm that has done thousands of cases and spends all of their time perfecting their craft
This is not the time to look for the most aggressive lawyer you can find. The VA disability claim appeals process is not adversarial like a courtroom. The VA is willing to acknowledge when mistakes are made, and in fact, over 70 percent of appeals are either granted or remanded back to the lower level to fix mistakes.
Instead of an “aggressive lawyer,” you want a meticulous and detailed lawyer – someone who is able to dig through your records and find the holes and plug them. You need someone who understands the dynamics at play, especially with psychiatric disabilities, so they can help you get the right diagnosis documented and all of the relevant factors reviewed.
Are you ready to have Veterans Law Group review the denial of your psychiatric disability claim and see if they can help you successfully appeal? We have successfully represented thousands of veterans just like you. Click below to request a consultation.