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WHAT TO DO WHEN THE VA DENIES YOUR CLAIM --
More Do-It-Yourself claims advice from
Veterans' Advocate Jim Strickland.
Veterans' Advocate Jim Strickland
provides regular columns for
VA Watchdog dot Org.
If you would like to contact Jim about
his columns, you can email him here...
The archive of Jim's articles
is here...
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The moment you've waited for has arrived.
Months ago you were advised that you were probably qualified to receive
an award of disability benefits from the Veterans Benefits
Administration (VBA). You decided that you would do it yourself since
the application process didn't seem to be all that complex. You gathered
together the records you knew would be necessary, completed all the
required forms and submitted it all via registered mail to your local
Veterans Administration Regional Office (VARO).
During the months since you had some mail from your VARO asking you to
submit more evidence and apologizing for the delay. You found a guy who
had served with you and as he clearly remembered when you were injured,
you asked that he submit a Statement In Support of Claim...a “Buddy
Letter”.
You signed off on the VCAA notice and told VA you had no more evidence
to submit and that they should proceed with arriving at a favorable
conclusion and award you your disability rating.
You pick up your mail as usual today and there it is, a large brown
envelope from your VARO. Its weight is substantial, there's a lot of
paper in there. Your heart beats a little faster as you think about the
immediate future. You begin to calculate the months times the money for
the rating you should get and the bills you can pay. It hasn't been easy
waiting this long but finally, it's done.
You're careful opening the package VBA sent. It may be important that
nothing is accidentally damaged.
You read;
Dear Veteran,
We have reached a decision regarding your claim of June 15th 2005
regarding your condition of PTSD. Your claim that your condition is a
service connected condition is denied.
Below we will explain how we reached our decision and what your rights
are if you disagree with our decision.
Regards,
John Doe
Service Center Director
Enclosures
Your denial letter will be longer than that and it'll have enclosed a
dozen or so pages of required notifications about your right to appeal.
Your letter may reflect something other than an outright denial of your
claim for benefits. If you filed for more than one condition, VBA may
notify you that one of your awards has been approved and the others have
not. You may have been under the assumption that your condition would
allow an award of 50% disabling and VBA has granted only 20% disabling.
If you applied for an increase of an existing award, that increase may
have been denied outright or if awarded, it may be at a lower rate than
you think you deserve.
It's important to note that if you've filed for multiple conditions and
VBA awarded a benefit on one or more, they are not required to notify
you of their denial of other conditions you may have applied for. You
should be aware that if this is the case in your letter, your
opportunity for appeal of those conditions is the same as it would have
been had they notified you. Whether they notify you or not, you have one
year from the date of that letter to appeal.
At the moment though, none of that seems particularly important. Your
only thought is, “Now what do I do?”
The very first thing you do is; Don't panic. That's Rule Number One in
the VBA Fight Club. When the VBA says “No”, it only means that you
didn't tell them what they wanted to hear in the language that was
needed for them to award your benefit. Far too many of us react in a way
that allows anger and frustration to cloud our vision and now more than
ever, we need a clear head. This isn't the end, only a minor setback. We
may have lost a little skirmish but we're going to regroup, attacking on
a new front.
You have a year from the date of the letter to appeal. You never want to
wait that long but nether do you want to make any rash moves. Read over
your letter, put it aside for a day or two and read it over again. In
the denial you'll find precise instructions on what you didn't do that
you now must do to complete your claim. While you have a year to appeal,
you want to accomplish your appeal in 60 days. There's a reason to do
that and I'll explain that in detail later.
Here's a regulation that's supporting you as you go along...
Title 38: Pensions, Bonuses, and
Veterans' Relief
§ 3.103 Procedural due process and appellate rights.
(a) Statement of policy. Every claimant has the right to written
notice of the decision made on his or her claim, the right to a
hearing, and the right of representation. Proceedings before VA
are ex parte in nature, and it is the obligation of VA to assist a
claimant in developing the facts pertinent to the claim and to
render a decision which grants every benefit that can be supported
in law while protecting the interests of the Government. The
provisions of this section apply to all claims for benefits and
relief, and decisions thereon, within the purview of this part 3.
(b) The right to notice —(1) General. Claimants and their
representatives are entitled to notice of any decision made by VA
affecting the payment of benefits or the granting of relief. Such
notice shall clearly set forth the decision made, any applicable
effective date, the reason(s) for the decision, the right to a
hearing on any issue involved in the claim, the right of
representation and the right, as well as the necessary procedures
and time limits, to initiate an appeal of the decision.
|
The regulation requires the VBA to tell you in precise terms what you
must do to win. Whereas during your first submission to VBA claiming a
disability, you were sort of shooting in the dark, you now have precise
instructions for exactly what it is you need to win.
I can't emphasize enough that this is a time for very rational,
calculated thinking. It isn't appropriate to get angry and begin firing
off letters to your Congressman about how you were cheated. Don't get
mad, get smart.
Read your letter carefully. Does it tell you that your C & P exam didn't
support your allegations of the limitations of your condition? If that's
so, you're going to question the qualifications of that examiner to
perform a C & P on you. You may have to provide your own Independent
Medical Examination by seeking out a qualified and experienced physician
who will refute the conclusions of the VBA C & P examiner.
Does that letter make you think that VBA didn't have or didn't take into
consideration a piece of evidence that you know to be very important? As
you proceed with your appeal you're going to bring that up to them.
Give yourself some time to get calm, get organized and develop your plan
of attack. Then write your letter to your VARO to notify them that you
will appeal. Go ahead and get this done soon.
Your letter should read similar to this below;
DATE
VARO ADDRESS
REFERENCE: C-File Number
Veterans Name
Ref # of Denial Letter (This is the 'Reply To' code)
VIA Registered Mail
Dear Sir/Madame:
I am in receipt of your letter of (DATE OF DENIAL LETTER) in which you
deny my application for an award of benefits for (CONDITIONS).
Please accept this document as my NOTICE OF DISAGREEMENT (NOD) with your
decision to decline my application for an award of disability.
I request that at your very earliest opportunity you send me a STATEMENT
OF THE CASE (SOC) as well as a VA Form 9 so that I may begin the process
to appeal your decision.
Thank you for your kind assistance with this matter.
Respectfully submitted,
Veteran's Signature
Name
Address
Telephone Number
Email Address
You'll notice that there is no information in this letter other than
that to put them on notice that you will appeal. The SOC request
probably won't get you much more than what you already know. It'll
rehash the information provided for you in the denial letter but it may
be written in different terms and you may discern something new from
that SOC.
The VA form 9 is one used to send your appeal on to the Board of
Veterans Appeals in Washington, D.C. Requesting it is only a formality,
we will do all we can to keep your case at a local level. Once it goes
off to the BVA, it can be tied up for years with remands back to the
local level and so on. It's much easier and faster to resolve your issue
locally whenever possible.
Your first thoughts should be toward convincing VBA that you are going
to submit “New and Material” evidence to them. Here's a piece of the reg
that defines this;
| § 3.156 New and material evidence.
(a) General. A claimant may reopen a
finally adjudicated claim by submitting new and material evidence.
New evidence means existing evidence not previously submitted to
agency decision makers. Material evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to substantiate
the claim. New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last prior
final denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
|
You won't win your appeal by simply going over the evidence that VBA has
already seen. In fact, you'll have to work hard to convince them that
your evidence is new and not “cumulative nor redundant”. This means that
if you submitted 3 or 4 “Buddy Letters” that support your case,
submitting 10 more won't help you.
Earlier I told you that you have a year to appeal. You've started the
appeals process by requesting an SOC as well as notifying your VARO of
your intent to appeal. That's all well and good but here's where it gets
interesting...and somewhat complex.
You have a much better chance of winning your case at the local level
if, after receiving your denial letter, you prepare your New & Material
evidence and then ask for a “review” or “reconsideration” at the local
level. Your VARO really doesn't want its decisions sent to the BVA. BVA
will often enough either agree with the Veteran or send it back to the
VARO on “remand” so that the VARO will do additional work on the case,
usually favorable to the Veteran. This generates more work for everyone
and doesn't look good for your VARO. Your VARO wants to give you those
benefits and it's up to you to give them another chance to get it right.
Your next correspondence with your VARO will read as follows;
DATE
VARO ADDRESS
REFERENCE: C-File Number
Veterans Name
Ref # of Denial Letter (This is the 'Reply To' code)
VIA Registered Mail
Dear Sir/Madame:
I am in receipt of your letter of (DATE OF DENIAL LETTER) in which you
deny my application for an award of benefits for (CONDITIONS).
Please accept this document as my request for reconsideration and/or
Decision Review Officer (DRO) review and reconsideration processes at
this VARO.
I do not accede any right to future traditional appeals at BVA but I do
wish to resolve our disagreement in a more timely fashion, if possible,
at the local level.
I have included New & Material evidence to support my original claim.
This evidence is (EXPLAIN- IDENTIFY EVIDENCE).
(This is also where you may argue your case. If you believe evidence
wasn't properly considered, say it now. If your C & P wasn't correct,
make that statement now. Be brief, be factual, don't use any emotion.
You may quote applicable regulations that you think apply in this
letter. You're now 'speaking' on a one-to-one basis with another person.
That person wants to follow the law to a degree that if there is ample
evidence to award a benefit, he will. Convince him.)
Thank you for your kind assistance with this matter.
Respectfully submitted,
Veteran's Signature
Name
Address
Telephone Number
Email Address
Below you'll find the regulatory authority giving you the right to take
this route.
| § 3.2600 Review of benefit claims
decisions.
(a) A claimant who has filed a timely
Notice of Disagreement with a decision of an agency of original
jurisdiction on a benefit claim has a right to a review of that
decision under this section. The review will be conducted by a
Veterans Service Center Manager or Decision Review Officer, at
VA's discretion. An individual who did not participate in the
decision being reviewed will conduct this review. Only a decision
that has not yet become final (by appellate decision or failure to
timely appeal) may be reviewed. Review under this section will
encompass only decisions with which the claimant has expressed
disagreement in the Notice of Disagreement. The reviewer will
consider all evidence of record and applicable law, and will give
no deference to the decision being reviewed.
(b) Unless the claimant has requested review under this section
with his or her Notice of Disagreement, VA will, upon receipt of
the Notice of Disagreement, notify the claimant in writing of his
or her right to a review under this section. To obtain such a
review, the claimant must request it not later than 60 days after
the date VA mails the notice. This 60-day time limit may not be
extended. If the claimant fails to request review under this
section not later than 60 days after the date VA mails the notice,
VA will proceed with the traditional appellate process by issuing
a Statement of the Case. A claimant may not have more than one
review under this section of the same decision. |
It's been my experience that keeping your claim at the local level using
the DRO process will often work wonders. The DRO was not part of the
team who made the original decision to deny your benefits. This
individual is usually a senior person with a lot of time in that chair
making the tough calls. The DRO is charged with a review of your case
from beginning to end and if you have provided the evidence necessary to
prevail, you're likely to see an award come your way.
It's apparent that you want to develop your original application so that
you don't have to experience the trauma of a denial letter. The facts
are that a majority of applications for benefits are awarded by VBA upon
the original application. Getting it done the first time is the simplest
for everyone concerned.
If yours is denied, remember the first rule...don't panic. It all
becomes a little more complex now but your benefits award is still very
winnable. Keep it local, do your homework carefully and you'll look back
on all this as a minor inconvenience.
Or, it's off to Washington with you...that's next.
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Larry Scott --
