Veterans often wonder, when their VA disability claims are denied, should they just reopen a new claim. It’s understandable that the lengthy delay in the appeals process might lead vets to wonder about this option – but there are several key points to keep in mind:
First, if you reopen a claim instead of appealing it, and you are eventually given an award, it may only go back to the date you reopened the claim, and not the date you filed the original claim.
Second, asking for a claim to be reopened after a denial requires a showing of “new and material” evidence. If you don’t have something new and material that you didn’t show them before, you could be out of luck.
It can be a tricky decision on how to handle a denied claim. This is the time you should consider getting experienced opinions to fully review your options. Free advice can be provided by state veteran’s affairs offices and by Veterans Service Organizations. You may also hire an attorney to advise which option is best given your particular situation.
Once a decision is made on VA disability claims, you have one year to appeal. If an appeal is not filed within that time, the decision becomes final. The only way to receive reconsideration of a final decision is with Clear and Unmistakable Error, or to reopen the claim presenting new and material evidence.
It may help to understand that, from the VA’s point of view, there are only three types of claims:
- A new or original claim
- A claim for revision of a previous final decision based on CUE (Clear and Unmistakable Error)
- A reopened claim with new and material evidence
So, if you are still within the one-year window to appeal and you believe your claim should be approved as is, in theory an appeal is the appropriate route. The VA has admitted to having a high error rate, and errors and other issues often can turn your way on appeal.
If you wonder whether you might not appeal and instead try one of the other routes, in theory, this means either (1) there is clear and unmistakable error (this is a very high standard and something you should discuss with an experienced attorney or representative) or (2) you have new and material evidence that was not reviewed before which should therefore be grounds to reopen the claim. If you want to reopen a claim simply because you think you might save time from the appeals process, you are on shakier ground.
Effective dates – When considering your options with reopening and/or appeal, it is vital that you know the impact of all options on the effective date of your claim. If you eventually win an award, or an increase in your award, the award will be backdated to the effective date of your claim. The effective date is usually the date you filed the current claim (with some exceptions that allow the award to go back further). The distinction could cost you tens of thousands of dollars, depending on the award and the time different from your original claim to the reopened claim.
Reopening a claim that was denied
In general, when VA disability claims are denied, a veteran can always reopen a claim with “new and material” evidence. This applies when you are addressing the same condition.
“New” evidence is information not previously considered by the VA. “Material” evidence relates to an unestablished fact necessary to the claim. If the denial was based on lack of a service connection, then witness statements or other evidence can help resolve that question; of the denial was based on your condition, then new medical evidence or opinions may help.
There is little evidence that, given the choice, reopening a case rather than appealing it will improve your chances of approval, or your level of award. However, each case is unique and the distinctions can be highly confusing. You can often request a free consultation with an experienced attorney to help you understand the options.