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Denial of VA disability benefits – Options for review before appeal

By   /  January 14, 2013  /  4 Comments

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If you’ve received a denial of your VA disability benefits claim, there are some options to consider before filing an appeal.

Don’t be discouraged when you receive a denial. You should be aware that the VA has admitted to a high error rate in processing its claims. The denial could be due to an error that can be cleared up, or it could be due to missing or misread evidence that can also be fixed. See our article explaining more about denials.

You are always entitled to appeal all or part of an initial decision, within one year from the date the decision was mailed to you. If you agree with part of the decision, you can appeal only the part you disagree with. In addition, if you were given a compensation award, you can appeal the rating assigned to your condition, which determines the benefit level.

There are two steps in filing a formal appeal, whether you filed a standard or FDC claim. The first is to file a notice of appeal, called a Notice of Disagreement (“NOD”). After receipt of the NOD, the VA sends you a Statement of the Case. You then file the formal appeal, referencing the items you disagree with in the Statement of the Case. Click here for details about the appeal process.

Depending on what type of claim you filed, there are options for review before moving to a full blown appeal request:

Standard Claim – Review by Decision Review Officer

If you filed a claim through the standard, traditional claims process and you disagree with a decision, you can request a review by a Decision Review Officer. Technically, you must first file the Notice of Disagreement (NOD), stating that you disagree with all or part of the decision and you want to appeal.

According to the VA, “after you send your NOD you may request that your file be reviewed by a Decision Review Officer (DRO) from your local VA office. DROs offer a second review of your entire file and can also hold a personal hearing on your claim.”

The DRO conducts a complete review of the decision based on the record. The DRO can pursue additional evidence, and/or conduct an informal meeting with the applicant. After this review, the DRO can uphold or overturn the original decision.

If the DRO review does not fully resolve your dispute, you can continue to the next phase of the appeal process, which is to file a VA Form 9 (Substantive Appeal). If you choose not to utilize the DRO process, you can move straight to the appeal.

You should know that the U.S. Government Accountability Office (GAO) issued a report on DROs, finding that they are often not well trained. The report also found that veterans are often not given enough information to make informed decisions. While the option for a DRO review before launching a lengthy appeal may bring some advantages, be aware of the limitations. This is a good time to seek advice from a Veterans Service Organization or an experienced attorney to fully understand your rights and what you can expect based on your particular claim.

Fully Developed Claim

If you decide to utilize the new Fully Developed Claim (FDC) process, it contains a layer built in that allows for reconsideration. If you disagree with all or part of the decision on your FDC, you can work with your representative to get additional evidence needed and possibly resolve the problem at that point by requesting reconsideration. With FDCs, the process is usually that the VA notifies the veteran in detail about the reasons for denial. The vet then has the option to obtain any needed evidence and ask for reconsideration as a FDC.

There is some evidence in the pilot programs that this avenue can help avoid the long appeals process.

Getting advice

It is always a good idea to get legal advice when you’re deciding how to contest or appeal all or part of your claim. There is free assistance available at state veteran’s affairs offices, and through several VSOs (Veterans Service Organizations). But when you’re facing a denial, it’s certainly worth your time to set up a free consultation with a VA accredited attorney. Attorneys who are experienced at handling VA disability benefits claims can advise you of how your unique case is likely to fair under different appeal scenarios. If you decide to hire an attorney, most work on contingency and only charge you fees if you are successful on appeal. See “Can Veterans disability lawyers help?” and “How much does a VA disability attorney cost?“ for more information on hiring attorneys.

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  1. Patrick Dooley says:

    In 1997 I lost my spleen in a APC accident. For that I received a 70% rating and for also having 2 screws in my ankle and burns on my leg. I had a reevaluation in July and had my rating dropped to 30% because of my spleen. What do i need to help me on my appeal for this rate adjustment?

    • Kay Derochie says:

      Dear Patrick,

      This benefit reduction is a serious matter. You should consider engaging an accredited VA attorney in the area where you live.

      Craig L. Ames
      Accredited VA Attorney

  2. John bratton says:

    I was hit by lighting in July 1970, was in basic training at the time, I was only 17 years old, was hospitalized at Ft. Dix, NJ, I have been in and out the VA for many different things, from 1974-present. In 1998, I went to the VA for HepC, Depression, and PTSD. I was being treated for all issues, so I put a claim in 2003-04, all at one time, HepC, Depression Secondary to HepC, PTSD Secondary to Hep C, and was denied for lack of evidence. I founded proof of the Depression and PTSD, in the New York Times. It took me 6 years to obtain this evidence. Once I got this evidence I reported to the VA Office DAV, 2010, they filed a New case and I was approved for 50%, I put in another claim and was approved to 100%, with back pay from 2010. I have had a BVA Appeal for a New Effective Date of the 2004 Claim, now I haven’t got an answer, but will I lose my 100% rating, which is Perm. Without reval. What are chances with this Earlier effective date and me losing my 100%.

    • Kay Derochie says:

      Dear John,

      When a new claim is filed like in the situation you describe, the effective date of benefits would be the date the new claim application is filed. Benefits are not retroactive to the date the medical event was occurred in-service.

      When a new claim application is filed, the VA will conduct a “de novo” review. This means it will evaluate your claim as if the claim were never filed before. In other words, if the current VA staff believe that the earlier 100% rating is incorrect, the VA can adjust the rating downward. This is the risk you take when you file a new claim application.

      Craig L. Ames
      Accredited VA Attorney

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