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Appealing Veterans disability claims denials

By   /  March 3, 2016  /  91 Comments

Find out how long you have to appeal denial of Veterans disability claims. Learn the steps in the appeal process, what to expect from a hearing, and how to get help with your appeal.

veterans-disability-claims-appealIf your claim for disability benefits is denied, you have the right to appeal. You must file the appeal within one year of the initial decision. Much media attention has been given to the high error rate in denials, so it makes sense to consider appealing the denial. Appeals represent almost one-third of the 800,000 pending veterans disability claims. A recent report found that the Board of Veterans Appeals found mistakes in 73% of reviewed cases.

What you can appeal

According to the VA, an appeal is “a request for the Board of Veterans’ Appeals to review a local VA office decision on your claim.” You have the right to appeal the decision for any reason. You may have received only a partial denial, while another part of your claim was approved – in that case, you can appeal the partial denial. Or, if the VA granted your disability claim, you can appeal the level of benefits awarded.

According to the VA, the two most common reasons for appeals are:

  1. The VA denied benefits for a disability the veteran believes began in military service, and
  2. The veteran believes the disability is more severe than the VA rated it.

Appeals of local decisions are made to the Board of Veterans’ Appeals (also known as “BVA” or “the Board”). The Board is part of the VA and is located in Washington, D.C. The Board members are attorneys with experience in veterans issues.

The appeals process

Filing an appeal is a two-part process. You begin the appeal process by sending a form called a “Notice of Disagreement” to your local VA office. You have to file your notice within one year from the date the VA mailed its initial decision. After the local office receives your Notice of Disagreement, it will prepare and send you a Statement of the Case. The Statement will explain the evidence, laws and regulations relied on to decide your case. Along with the Statement, they will send you a Substantive Appeal Form (VA Form 9).

The second step you take in filing an appeal is to fill out the Substantive Appeal Form. In this form, you state the benefits you are seeking, identify any mistakes in the Statement of the Case, and clarify whether you would like a personal hearing. The Substantive Appeal Form is also supposed to be filled out within one year from the date of the VA’s initial decision. However, if the VA sent you its Statement of the Case near the end of that year, you still have 60 days from the date that they mailed you the Statement of the Case to file your Substantive Appeal Form..

For example, if the VA mailed you its initial decision on November 1, 2012, you file your Notice of Disagreement on February 1, 2013, and the VA mails you its Statement of the Case on October 20, 2013. You would have 60 days from October 20, or until December 19, 2013, to file your Substantive Appeal Form.

You can request a personal hearing, either with someone from your local VA office or with a Board of Appeals member. The quickest way to get a hearing with a Board member is via videoconferencing.

Hearings are informal, and you can attend with your representative. They are mostly an opportunity to clarify the issues at hand. After the hearing, the Board member will send you a decision. If they deny the appeal, you have certain additional avenues to contest the appeal.

Getting help – Most people use representatives

Most veterans use representatives to help make their case on appeal. Anyone helping a veteran with an appeal must be accredited by the VA. You can receive assistance from various Veterans’ Service Organizations, like the American Legion and the Disabled American Veterans, and many have staff inside local VA offices.  Or choose to be represented by a VA-approved attorney who is experienced and knowledgeable on VA disability matters.

See the article “Can Veterans Disability Lawyers Help?” for more information.

The appeals process can take years, unfortunately, so consider any advantage you can take to speed along your claim and to make it thorough. Seeking help from a VA approved disability attorney can help you present your case as clearly and strongly as possible to improve your chances of collecting your disability benefits.

For more information on filing an appeal, see “Strengthening your VA disability appeal.”

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  • Dear Bruce,

    Your claim is a matter of a formal legal appeal. Going it alone in dealing with a complex medical-legal case is a difficult process at best. Most persons would not file a lawsuit when injured in a serious car accident. Yet many veterans decide to handle their own cases themselves with the VA without having any background in federal laws, litigation and judicial processes.

    I strongly suggest you engage the services of an accredited VA attorney who can evaluate the merits of your case and determine the prospects of a further award. Statistically about 70% of all claims submitted to the VA are those claims seeking an increase in benefits. The VA denies the overwhelming majority of these cases. It takes the experience of a seasoned VA attorney to effectively prosecute a VA claim. You can find such a lawyer at the VA website or with the bar association of the state in which you reside.

    Sincerely,
    Craig L. Ames
    Accredited VA Attorney

  • Dear Cedrick,

    The length of time it takes to process an appeal is increasing and not decreasing. More than one million claims are in backlog status. Most of these claims (more than 70%) deal with requests by veterans for an increase in a disability rating. Most of these claims are denied. If you believe you have strong medical evidence supporting your claim, then consider filing the appeal and staying the course. The additional comment you made does not alter the reality of your claim or how long it takes for an appeal process. The only other course of action you need to consider is to pay for an independent medical evaluation by obtaining from a private physician a consultation and medical examination which you can submit to the VA.

    Sincerely,
    Craig L. Ames
    Accredited VA Attorney

  • Dear Allison,

    In order for the Disability Advisor to answer your question, we need more information. Explain the context of your question by providing
    (1) What do you mean by “higher proof”?
    (2) Provide the date the person passed and from what causes.
    (3) Which type of benefit are you thinking of applying for?
    (4) Have any benefits been issued in the past for the deceased person?
    (5) If so, what was the benefit?

    Sincerely,
    Craig L. Ames
    Accredited VA Attorney

  • Dear Allison,

    It would be difficult to provide a targeted response to your question since a specific answer would require a review of your father’s complete benefit claim file.

    In general, the VA claim process involves medical issues that necessitate a legal review of the medical opinion letter issued by your father’s physician. In the final analysis, a VA claim determination is not a medical decision but rather it is a legal one that answers the question “Does the medical condition match up to the law that describes when benefits can be awarded. . So each claim review is based on the legal elements and their sub-components. and decided by a VA decision maker, who is a layperson and not a physician

    Most oncologists are not versed in the legal definitions applicable to VA laws as to what constitutes a coverable agent orange case. Even with agent orange cases, there are multiple types of classifications of diagnoses. Most cancer diagnoses involving agent orange are not presumptively covered by VA compensation benefits. Most case require higher proof than an opinion letter from a doctor.

    Sincerely,
    Craig L. Ames
    Accredited VA Attorney

  • Catherine Maye

    I deployed to a location in SouthEast Asia in 2010, where I became ill (gastrological issues). Less than a year later, I became grossly ill and was diagnosed with an uncommon autoimmune disorder that is similar to MS. I filed a claim in October 2012, one year after being diagnosed.

    According to the VA, my claim was denied because my condition wasn’t diagnosed within the presumptive time period of one year and there was nothing in my record indicating illness while I was active duty (I was a reservist, and they only had one active duty time period on file).

    I had to call my old unit, obtain my travel voucher and CID, and send them to the ARPC for them to create a DD214 for me. I provided the new information to my regional office with my appeal. Later, I provided a medical opinion from a physician along with a medical journal stating that my symptoms while deployed were indicative of conditions that could be linked to my particular autoimmune condition.

    I had a C & P on 8 July. I just found out from my so called rep at the DAV (he didn’t seem to have any knowledge of my appointment or of my file), that the examiner provided a negative opinion because my condition isn’t MS, so it can’t be connected to military service.

    From everything I’ve read, when a condition isn’t coded (for lack of a better term), the VA is to use a condition that is similar to determine connection, which in my case is MS. MS typically has to be diagnosed within 7 years to be service connected. I also learned in my reading that ANY inexplicable condition diagnosed after deploying to any region in Southeast Asia within the presumptive time period should be deemed service connected.

    According to their laws I should be protected, but it’s been two months. I haven’t heard anything. I told my rep that it sounds like they’re looking for a reason to deny my claim, despite the fact that their laws say otherwise. As far as im concerned, he’s not fighting for me. He wants to wait to send it to the board. Why should I wait potentially several more years for something that was owed to me years ago? I’m 28. I was diagnosed when I was 22. After I briefly lost my ability to walk, I was still relieved after the diagnosis. At least the doctors have a name for it. I survived that, and if I could get through the muscle spasms, I would be fine.

    I’ve been diagnosed with other conditions that are secondary to my condition that affect my ability to walk at times, but I’m making it. The idea though, that the VA is looking for a reason to say, “no, what you said can’t be right,” is deplorable.

    I sympathize with anyone who can’t say they’re making it. It’s complete and utter bs that they clearly look for reasons to deny claims as opposed to assisting those in need. If they actually looked in my medical record, they would’ve seen the sick call sheets my time during deployment. It’s ridiculous.

    • Kay Derochie

      Dear Catherine,

      As I understand the context of your claim, you have engaged the services of an accredited VA organization to process your claim. In this situation it is best to contact your claim representative as to any issue dealing with a denial of your claim. In the alternative, you can terminate the services of your claims representative and have an accredited VA attorney review your claim to determine the viability of your claim appeal.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Catherine Maye

        Dear Sir,

        It has been one month since I initially posted my statement. Since then, I provided a letter from my treating physician stating that my condition is “more likely than not” connected to military service. He was also kind enough to provide his CV.
        I’m still waiting for a decision although I elected a DRO nearly two years ago. If you can recommend an attorney from Delaware that could review my claim, and prayerfully address this unnecessary timeline, it would be appreciated. It causes undue stress, especially during the holidays. I’ve read another of your articles regarding clear and unmistakable errors. Can you explain more of that?
        Thank you for your time, attention, and consideration.

        Sincerely,

        Catherine

        P.S. Happy Thanksgiving

        • Kay Derochie

          Dear Catherine,

          You can check the VA website to locate an attorney who practices in the city in which you live. Reopening a case file based upon a clear and unmistakable error is rarely granted. This concept is widely understood except by a knowledgeable VA accredited attorney. This procedure involves a decision review based upon facts which already are on the record and involving a technical error was made by the judge. New evidence cannot be submitted. Your local VA accredited attorney can render a professional opinion as to whether or not your claim can realistically be reopened.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • Joneysa

    It almost feels like I am being punished for not complaining about my aches and pains right after retirement. Now 15 years later they are saying that its not service connected. I was in the military since the age of 19, I don’t know what I could have possibly have done as a teenager to have a busted left and right knee and degenerative diseases today. I was told in the letter that because I did not complain about any of the pain within a year of getting out of the military my requests were denied and found not service connected. Frustrated!!!!

    • Kay Derochie

      Dear Joneysa,

      A VA claim proof is complex and necessitates submission of objective records involving to prove three things: (1) you incurred an in-service medical event; (2) a current medical diagnosis; and (3) linkage proving your current medical issue relates back to that in-service event. It is not sufficient that you have a disability now. The hard part of the claim is showing a medical relationship to what incurred in-service. You will need proof of an in-service medical condition being caused by your military service.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Randall Hollis

    i was denied va disability and was not given a doctor doctor exam to determine my disability

    • Kay Derochie

      Dear Randall,

      If you have a question, please post again with the question and I will forward it to a VA attorney to respond.

      Sincerely,
      Kay

  • Adrian

    My time frame to appeal a disability claim has expired(past one year). Is there anything that I will be able to do?

    • Kay Derochie

      Dear Adrian,

      Unless you were unable to appeal due to very severe incapacitation such as a being hospitalized throughout the time, you probably will not be successful appealing and asking the appeal to be accepted late. Accordingly, you can file a new claim and claim a date of disability of the day after the date of your last denial.

      Sincerely,
      Kay

      • Sean huntsman

        Kay can u answer a question for me regarding a denial but awarded 6 years later for same thing I was denied?

        • Kay Derochie

          Dear Sean,

          Without having any details about your claim, I can say that being approved now after being denied earlier could have occurred because your condition worsened or because the more recent documentation of your condition is more complete.

          Sincerely,
          Kay

  • Max Bassett

    I served 25 years on the weather decks of ships and on flight lines working in the sun without being able to wear a hat. Six years after retiring I got a nasty melanoma on the top of my head that my Cancer Dr. said was caused by all those years in the sun on active duty. Included that letter and pages of substantiating records and VA response was “We received your medical evidence which discusses the symptoms of your medical condition. The VA medical opinion found no link between your diagnosed medical condition and military service. While you submitted positive medical evidence to support your claim, we found other medical evidence more persuasive because it is better supported in its rationale and conclusions. The evidence does not show that your disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection.”

    Doctor said melanoma on top of head is caused by UV-B exposure and takes many years to present.

    Any recommendations on what to reference in my appeal?

    • Kay Derochie

      Dear Max,

      You need to engage the services of a VA accredited attorney to prosecute your case, which involves a claim denial by the VA. The VA laws, regulations, and rules are complex. You need a professional who knows how to develop documentation meeting the burden of proof necessary in a court of law.

      Sincerely,
      Craig L.Ames

  • Nicole Garcia

    My father-in-law recently passed away due to stomach cancer, but before he passed away we were in the process of claiming his benefits from the VA. Before he got sick the VA sent us a letter saying he needs to get checked due to contaminated water at Camp Lejeune, so he did. Now we just received a letter saying he would get denied due to lack of medical records for a couple years. As a family we don’t know what to do next. Can we file an appeal? What can we do to try to get the decision overturned?

    • Kay Derochie

      Dear Nicole,

      You can attempt to file an appeal “pro se” (on your own), or in the alternative you can obtain an opinion from an accredited VA attorney.To find an attorney, go to the VA’s website in your locale or contact your State Bar Association for a referral to an appropriate lawyer in your area.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Vicky L. GIll

    After 30 years of receiving Dental Care at VA for service connected disability, I am now being denied care, despite having obtained letters from VA office showing eligibility. I went to the VA eligibility office and he sent me up to the VA surgeon, who said I was not eligible. Please advise. Frustrated with the VA …

    • Kay Derochie

      Dear Vicki,

      You should request a determination letter from the VA for eligibility of medical benefits. But, distinguish a decision about being eligible for benefits from that of once qualifying if you are being placed on a waiting list for scheduling an appointment for eligible services. Alternatively you might be classified as wanting services which are not eligible for treatment.

      The VA is limiting services to veterans and are prioritizing treatment plans by classifications. The more discretional the treatment sought, the less likely you will be seen. And even if treatment is essential, the newspapers are filled with articles about the time it takes to get an appointment. Hence, it might be difficult to pin down in writing the reason why you can’t currently receive treatment.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Mario Ayala

    At the present time I have a disability rating for a clavicle fracture which was originally rated 10%. In 2013 I had C&P exam from my right dominate shoulder which the exam noted that I had developed arthritis. I had submitted a claim for this condition. Along with that I had an MRI which noted that I had a torn labrum, torn bicep tendon along with arthritis. Upon completion of my claim they added degenerative arthritis 5201-5003 but did not include the finding from the MRI.

    I submitted an appeal on their findings and decision based on the fact that my other conditions weren’t noted in their final decision within the time noted to file an appeal. Since then I have had shoulder surgery in which I had applied for 100% temporary compensation. I was just notified that this claim is now being included in the appeal claim which the RO has notified that this has been transferred to the BVA. Is there anything that I should be doing or is it just a long waiting period. My surgery was in February. Any helpful tips would be greatly appreciated.

    • Kay Derochie

      Dear Mario,

      The proving of a compensation claim is complex. You should consider engaging the services of a professional who is accredited to handle appeals. In the alternative, you can go it alone, but remember that 70 percent of all claims pending before the VA are submitted for an increase in benefits. The overwhelming number of these claims are denied. You need to be proactive in the claims process by understanding the medical and legal issues involved in proof of a claim. The VA website contains a lot of information about the claim process. Or you can research the issues of proof of claim at your local law library.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Ryan

    I have a total of 120% disability rating but only getting compensation for a total of 80%….ptsd alone is 70% amongst other things. I strongly disagree with 80% payable compensation ….is this something appeal worthy?

    • Kay Derochie

      Dear Ryan,

      The percentage of combined ratings is based upon the entirety of your disabling conditions taken together, not the sum of the individual ratings. What is important with an appeal are the medical-legal issues which you dispute. You should have an accredited VA attorney review the determination to determine if you have any viable grounds to file a response to a benefit rating or denial of benefits.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Sean

    I have recently been given 10% for tinnitus by the VA and my depression/anxiety/PTSD have been deferred so I am awaiting for the results on them. But I had also claimed and was given 0% (service connected) bilateral patella tendinitis, which is something I dealt with a lot in the military. I was seen by numerous doctors and physical therapy twice and seen after separation. Since being discharged almost a year ago, my tendinitis has only become worse, and I mentioned this to the VA Doctor but yet was still denied a rating. I am in shock I did not get something for this. My question is where do I go from here and should I appeal this ?

    • Kay Derochie

      Dear Sean,

      You are misunderstanding the nature of a rating. There is a difference to a VA determination in which the VA rules that this is no rating. “No rating” means that the contentions raised by the veteran to substantiate a claim for compensation benefits have not been proven.

      A “Zero (0%) rating, on the other hand, means the contentions raised by the veteran that an in-service medical condition linking to a current medical condition are accepted as being proven. However, the current medical condition is of an insufficient degree of disability so as to justify payment of a compensation income monthly benefit.

      Hence, you must prove that your zero (0%) percentage rating of tendinitis has been exacerbated to such an objective and measurable degree to be increased to at least 10%, which would result in a monthly compensation income benefit award.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Dear Seth,
    I received my decision on 22 claims for service connected compensation Dec 4 2015, that was filed back on Feb.13 2014. They determined that the following conditions were not related to military service, so service connection couldn’t be granted. One reason was the evidence does not show that my disease developed to a compensable degree within the specified time period after release from service to qualify for the presumption of service connection. Another example for denial on a claim was that there was no continuity of symptoms from service to present. My question is should I file an appeal in spite of their determination? All the diseases and injuries I listed are in my service medical records. I also sent my private medical records to support my claim. I am scheduled to see a VA Representative Jan. 4th to assist with NOD. What should I bring to the VA Rep’s office when I go?

    • Kay Derochie

      Dear Robert,

      You should bring all your records. But, you may be better served by engaging the services of an accredited VA attorney to file the appeal for you. The VA rep will only devote limited time resources to assist you for free. Basically the free service will direct you to the correct form(s) and will not really substantially assist with advice on the best way to prove your claim. The average VA rep has several hundred active veterans to help at any time in the process, so the service is quite limited.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Randal graham

    I was honorably discharged in 1987. In 1992 I began having balance problems, numbness and tingling and I went to the emergency room; no cause was found. It wasn’t until several “episodes” and years later in 1995 that I was diagnosed with multiple sclerosis. The hospital that I visited in ’92 did not maintain records long enough to show the VA proof of visit. 7 years is what the VA gives as length of time you have to make MS, service related. What are my options to prove this disease was service related? Ty in advance.

    • Kay Derochie

      Dear Randal,

      MS is considered by the VA to be a specific chronic condition presumed to be service connected. There are 41 specific chronic conditions which the VA will consider as being presumptive. But those conditions must manifest itself to a degree of disability of 10% or more within one year after discharge from military service. MS is an exception to the one year rule. There is a 7 year rule in case of MS.

      Manifesting does not necessarily mean medical diagnosis only that legal and medical evidence shows that it existed within that one year. Your challenge is, if you never filed a claim for MS and it has been a number of years since leaving the service, you have to demonstrate some sort of evidence that the condition manifested itself within seven years of discharge. Otherwise, you can have the condition, but VA will assume that you did not incur it in service. So your challenge is to find written proof such as medical records or other records within years of discharge to prove the claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Robert Pyles

    I am in the process of an appeal for increase in my percentage due to t-12 deformity in my spine. Right now I am filling out my VA Form 9 and awaiting a video conference in my regional office. I currently live in the Philippines. I was wondering if there were any accredited lawyers that could help me in the Philippines?

    • Kay Derochie

      Dear Robert,

      You can check through the local Bar Association for a referral to a licensed attorney who practices VA law. You can also check the yellow pages your phone book or conduct an online web search.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Bradley Henry

    I have recently recieved my Veterans Health Benefits Handbook with a disability rating of 0 under Priority Group 5, however I am still scheduled for disability claim appointments to determine my eligibility? Is this a mistake or will they change my percentage whenever the claim appointments are complete?

    • Kay Derochie

      Dear Bradley,

      I cannot answer this question. I have no way to determine the internal current practice of VA on medical treatment options.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • jay

    Just got my denial for fibro and Chronic fatigue both diagosed by a Rheumatologist after years of going from doctor to doctor. The RO ‘s denial explanation is so comical but here goes. Service connection denied because this disability is determined to result from a known clinical diagnosis of s, which neither occurred in nor was caused or aggravated by service. The evidence does not show an event, disease or njury in service. Your service treatment records do not contain complaints, treatments or diagnosis for this condition. Service connection may be established for a disability resulting from undiagnosed illness or a medically unexplained chronic multi-symptom illness that is defined by a cluster of symptoms , or a diagnosed illness that is determined by VA regulation to warrant a presumption of service connection which manifested itself ether during active service in the Southwest Asia theater of operations during the Gulf War, or to a degree of ten percent or more after the date on which the Veteran last performed service in the Southwest Asia theater of operations during the Gulf War. The evidence does not show the locations of your military service or the events you experienced therein, qualify for the presumption o service connection for your disease. This is verbatim to what the VA sent me. My last tour in the Gulf War was 1999 I was on the USS Enterprise CVN-65 in the Persian Gulf prior to that in 1996 I was on board the USS Roosevelt CVN-71 in the Persian Gulf. This is how incompetent the VA is, both my claims were submitted on their DBQ’s it took them a whole 1 month and 1 week to come back with this weak reply.

    • Kay Derochie

      Dear Jay,

      If you have a question, please post it and I will forward it to an accredited VA attorney to reply.

      Sincerely,
      Kay

  • Ron

    I was denied for sleep apnea today I recently had a sleep study done 9/15 that showed I had it. I retired 12/05 with a rating of 60% 8 different disabilities 10% each. One was insomnia and med annotation of sleep problem in 2004 stating having problems sleeping since coming back from desert storm wakes up during the night for no reason. I never set down with the C & P doctor he did (ACE). He wrote did not need to see claimant there seem to be no evidence that his past history lead to have been cause by military service. Its has been 10 years since getting out sleep apnea primary risk factor age gender. there is no nexus the veterans history of symptoms of sleep disturbance beginning during service is noted

    • Kay Derochie

      Dear Ron,

      If you have a question, I will forward it to an accredited VA attorney for response.

      Sincerely,
      Kay

      • Dennis Smiley

        Hello Kay,
        I received my 2nd denial from the VA a few months ago. I was in Desert Storm in 1990 and 91. I’ve had problems ever since! Sleep Apnea, Back problems, Breathing problems, and so much more. The VA doctor that they used for my exam didn’t even go into my issues. He just determined that I had only back problems that weren’t service connected. Any suggestions? #Frustrated

        • Kay Derochie

          Dear Dennis,

          You can consider contacting an accredited VA attorney who will be versed in the VA law, rules, regulations, and procedures. The VA makes it easy to file a claim. But, proving a disability and receiving benefits can be difficult to accomplish.

          Sincerely,
          Craig L. Ames
          Accredited VA Attorney

  • Ulysses Davis

    I have been awarded 20% disability comp for AO induced diabetes. I also have neuropathy in my legs and feet. When my VSO filed for neuropathy, he did not refer to it as secondary to the diabetes. The claim was denied. Should I appeal with my diabetic neuropathy diagnosis or start a new claim?

    • Kay Derochie

      Dear Ulysses,

      You should seek the assistance of a VA accredited attorney. A claimant usually does not generally understand the legal nature of a compensation claim and what response to the VA determination should be filed and how to prove a claim. It is best to have a professional represent you in the claim process.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Linda Parks

    My father filed a claim when he was honorably discharged (20yrs of
    service) for headaches, this was in 1971. The claim was denied.

    2011 I filed a complected claim for my father, one of the claims were for his headaches, he was awarded 50% for his headaches. That is the highest rating for that type of claim. My father died 11/2014, while awaiting an appeal for aid and attendant and for a monetary error. He died with a 100% disability.

    I was going through my fathers papers looking for my older brothers born abroad paper work when i came across my fathers 1971 separation V.A. claim. This is the claim he submitted for headaches 40 yrs ago and was denied.
    My questions are:
    1) Is there any claim on the headache claim that he was denied back in 1971 when he separated from the air force? 40 years later he was given an award of the highest rating for headaches 50%.
    2) What happened to the appeal he was awaiting on?

    • Kay Derochie

      Dear Linda,

      You do not have complete evidence of the VA claim file. Rather you have one document from that file. You would need to request the complete claim file from the VA under the Freedom of Information Act.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Noel Prejusa

    I have a service connected rating for both knees and right ankle. I was diagnosed with patella femoral compression syndrome on both knees while on active duty. I injured my right ankle while on active duty which required an open reduction surgery. I was initially rated at 10% in 1996 when I left the Army. In 1999, the rating increased to 30% plus a 0% for hearing loss and 0% for deformed right optic nerve. May of 2015, I filed a claim for increase in rating. I went through the medical tests in May through mid-August 2015. I was told that the review will take at least 6 to 8 weeks due to the back log. I received the decision letter on August 27, 2015 to my surprise. The decision letter maintained the 30% rating. I really believe this is too low because my ankle and my knees are significantly worse since 1999. I will definitely file my NOD promptly. Is there any other advice that you can give me on how to proceed?

    • Kay Derochie

      Dear Noel,

      VA claims are complex and most appeals are denied. Laypersons do not understand legal theories and methodology to prove a disability. You should consider engaging the services of an accredited VA attorney in the locale where you live.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • DW

    Hello,

    I did a quick search and didn’t find anything addressing my concerns, so here it goes.

    Background: Several years ago I had a retinal detachment in my left eye.. The doctors reattached it and it never really had the same vision as before. Over the 2 years since it has got worse. I went to specialists and received a few more surgeries and now I am blind in my left eye. I have diabetes II at 30% and was given Macular degeneration as Non Svc Connected (NSC) and Diplopia NSC…but this is controllable and due to my Migraines–which is rated at 30%. (I would like to see the previous two as Svc Connected, however.) This said, I received a 30% rating for retinal detachment and repair with macular scar, left eye. I cant seem to figure out a rating for this with being blind in my left eye. I had visions test completed before retirement set up by the VA. I haven’t physically read the test results (I asked the facility to send me a copy and said I would have to do a FOIA request???) I cant imagine the results confirming anything other than I am blind in my left eye.

    My concern/questions are two fold. Do I have to specifically mention blindness on my claim? The VA rep at my base said the VA will determine the acuity by my vision tests and therefore it doesn’t have to be specific. Secondly, I have a good overall rating and don’t want to jeopardize it,(just received it after submitting it 4 months ago. I am blessed in this area and my heart goes out to those who are still in limbo) but I feel that if in the future I need additional medical attention on my eye, the VA wont cover it. I would really like to have the blindness specified…even if at 0% Svc connected. If I do chose to follow up on this with the VA, how is it best to do so? How can I get all the medical results, tests, opinions and judgments made by the VA sent to me w/o a FOIA request?

    Thanks in advance.

    • Kay Derochie

      Dear DW,

      VA benefit claims are complex. You need to have a professional review all paperwork about your prior claims as well as all VA correspondence to render an opinion as to the possibility of winning a favorable rating. Whenever you submit a new claim, the VA subjects the claim to a de novo review. This means benefits can be increased or benefits can be reduced or even eliminated. So it takes an accredited attorney to review a claim properly.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Carol Lawson

    My son served in the military for over 7 years. During the period it was documented he had hypertension but never given a diagnose, his 5 year exam was never placed in his record nor did they ever audit his records . A total of 4 doctors seen my son not one ever suggestion he needed to be treated for his hypertension. Both his S\D was high . His medical record was misplaced after following up from his last unit which was the reserve the records was located after over 2 years. The first denial stated since he had no records his claim was denied. He is pending an appeal will not having been diagnosed hurt his claim? My son almost died having uncontrollable hypertension, kidney problem and congested heart failure. Along with taking over8 medication and seeing specialist. His hypertension was documented well over 2 or 3 years time span.

    • Kay Derochie

      Dear Carol,

      The claim that you describe appears complicated. You should consider having a professional review any decision which has been issued by the VA. If the decision was issued more than one year ago, then it is too late to file an appeal. If the decision was made within the past year, then it might be possible to submit an appeal if the grounds to appeal can be properly developed.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • I forgot to add that the end result was I received a total knee replacement for loss of cartilage because of wear and tear from that bone chip..

  • I initially filed my claim in 2012 for right knee pain and swelling and lower back pain. In 1986 while serving in Germany I injured my right knee. It was diagnosed that I had chipped a bone. X-rays showed a confirmation. I also injured my lower back lifting weapons ( chemical ) and warehousing and re-warehousing ammunition boxes. I was denied for both injuries , filed a NOD, in April 2014 , still no answer…. what should my next move be?????

    • Kay Derochie

      Dear Fred,

      Your claim is obviously being affected by the terrific volume of benefit applications being placed on hold due to the backlog of claims within the VA system. You may want to seek the help of an accredited VA lawyer to assist with your appeal.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • I retired in 2008 and finally went to the sleep clinic which digos. me with Sleep apnea 2011. I have been using my machine for the last four years properly. My wife and mother -in -law notices that I stop breathing after coming from the gulf war. Since then and before retirement I have deployed 3 times to Iraq. I do have PTSD and was awarded 30%. But for some reason they just don’t want to award me with sleep apnea. I know I developed it from being in the military for 21years 6 months. I spend 11 years in Special Forces (so I was airborne , air assault, etc.) and the rest as of my time as a regular soldier. My appeal is being reviewed currently, but I don’t understand why the struggle is so hard to get what is truly my right. Any advice?

    • Kay Derochie

      Dear Cleo,

      You need to consider hiring an accredited attorney to review your claim denial. The VA laws, regulations and processes are complex. It takes a skilled professional, who knows what proof is needed as well as how to obtain it, to analyze a denial of benefits and determine the correct course of action.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Deana

    I got out the Army in 1988. I have repeated tmc visits showing symptoms of Rheumatoid Arthritis complication during 1982-1984 while under vigorous training. The doctor documented upper and lower extremities???bursitis???? for over 6 month pain and swelling along with flu like symptoms. I have been treating symptoms off an on up to 2010 when menopause started and was diagnosed with RA/FMS/Depression. It seem the flood gates open. I had filed a claim in 2004 for bilateral knee pain and sinus condition was denied. I was referred to a VA rhemy in 2004 but was sent back to my VA pcp without even a blood test. I am in appeal. Do I have a chance? This delayed arthritis has an insidious onset and can go and stay in remission for years.

    • Kay Derochie

      Dear Deana,

      To render a professional opinion as to the degree of probability of being awarded benefits is not a simple matter. If you do not have an accredited VA lawyer representing you in your appeal, you undoubtedly do not know the evidence needed to prove your claim. This is a complex legal arena in which you are playing. An accredited lawyer would need to review the claim application, the claim decision, and all evidence before the court or the BVA or the Regional Office of the VA, dependent upon which forum your claim is before.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Eric

    Good afternoon,

    I filed a claim last year for multiple symptoms such as hearing loss and digestive disorders caused by my extensive work on aircraft and flying over war zones underneath hazardous conditions. Prior to leaving the United States to attend school, I filed a VA disability claim and informed the local VA office that I was leaving the country and left them my forwarding address.

    A couple months later I discovered that my address had not been updated and attempted multiple times to get my address updated prior to the schedule of my exam. I successfully updated my information on eBenefits, DEERS, and with the hospital in Chicago. However, they still sent correspondence to my old address and even scheduled an appointment back in my home town. After a few more phone calls I was assured that my information was updated and to wait the process out.

    Last week I received notification that I was denied disability compensation due to my conditions not being service connected. I had not received a medical exam and, according to eBenefits, any outreach to gather more information such as an audiogram request had been canceled.

    I would like to file an appeal and am currently gathering evidence to support the mishandling of my case. I was wondering what advice you might have for my situation?

    Thank you very much and have a nice day.

    • Kay Derochie

      Dear Eric,

      An appeal is one of various methods to respond to a claim denial. The VA law is complex, and the rules of evidence and proofing a claim are difficult. More than 70% of new claims are denied. You should find an accredited lawyer or organization to assist you in the response process.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • JEFFERY HAILEY

    While serving active duty I went on my lunch break at a restaurant in uniform I was attacked by a civilian over a parking space. He hit me in the head with a bat. I went to the emergency room for head injuries. I filed a claim for migraine headaches. My claim was denied.
    I live in the northern Virginia area can you please recommend a lawyer to file my appeal.

    • Kay Derochie

      Dear Jeffrey,

      You may call me at my office at (904) 374-2136 to discuss your VA claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney
      ALG Law Group

  • Robert

    Hello,

    I recently filed a disability claim (Aug 2014) and received a rating on 2 June 2015. What surprises me and the question I am asking is on 24 May my package was still pending. I contacted the VA through eBenefits using the Chat option and was informed that I needed one more medical assessment for bilateral knees and bilateral feet. Both of which I had VA forms Disability Benefits Questionnaires for my feet and knees reviewed, diagnosed, ICD codes provided, and signed by medical providers with supporting documentation that injuries/ailments were service connect. On 2 June when I saw that my claim was now closed through eBenefits with both ailments listed as “Not Service Connected” is the appeal process my only option? This seems quite suspicious to me that one week the VA is awaiting for another medical assessment and then a week later the claim is closed with no rating for two service connected issues. Your advice is eagerly sought.

    Respectfully,
    Robers

    • Kay Derochie

      Dear Robert,

      There are at least three different departments within the VA, involving at least five to six persons, who are involved in preparing a claim to be staged for a decision. It seems there are overlaps in information and at what step in the claim process your case is at within what is commonly referred to as the Pre-Determination stage. So there is really no mystery here. One person within the VA may have had access to information which was updated by another staff member within the VA.

      You will need to actually receive a decisional letter from the VA and then analyze your rights to respond to a claim denial or an unfavorable rating percentage. There are multiple approaches to responding to a VA decisional letter. You will need to research the law as to steps you can take or in the alternative seek out the help of an attorney or accredited organization to guide you through the process. An appeal is only one avenue and there are different types of appeals.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • beanei

    My va claim for Ptsd due to a MST was denied because the incident happened while I was in the stockade. They said I wasnt active duty. Can you please help, I cant find any information on this. Thank you.

    • Kay Derochie

      Dear Beanei,

      One of the legal elements that is needed for a benefit award for VA compensation is that a veteran meet a “service requirement.” There are multiple components for this determination. One of requirements is that your medical condition must have been incurred “in-service.” Being in the stockade is not an in-service activity. This is a major disqualification because you were not performing “in-service duties,” but you presumedly were in the stockade due to misconduct.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • jon metrick

    I was recently denied a claim for sleep apnea. I was active duty in 2003-2008, and reserves 2010-2014. I met my wife in spring 2008, right before I got out and she insisted I had a problem so I went to medical and was diagnosed with snoring after a take-home sleep test. the report says that further testing is recommended with an in-hospital sleep test. I got out in may 2008, and did not put in a claim because I was told snoring isn’t worth anything. Everyone told me that I had to lose weight, lose weigh etc. I kept having difficulty sleeping, requiring 10+ hours to get a decent amount of rest where I didn’t wake up. Finally in 2013 I went to a doctor complaining of jaw pain. they said I must grind my teeth at night and I had tmj. Went to a dentist to get a mouth guard, who said I should prolly have a sleep test done. I was in the reserves, passing my pfa(navy) and I had been told that obesity caused sleep apnea. I went for testing and got diagnosed with sleep apnea in august 2014, my reserve contract ended oct 2014. my claim was denied because they said ‘while you do have sleep apnea, a diagnosis of snoring does not lead to it, nor is it service related because it wasn’t diagnosed during your time in service’ this is confusing because I was still under contract as a reservist. what are the rules regarding that and can I/should I appeal?

    • Kay Derochie

      Dear Jon,

      To file a claim, one needs to have a plausible claim. Snoring is not in itself a medical illness nor injury. So you first need to consider how snoring constitutes an in-service medical illness or injury or medical event which directly led to a current disability. You somehow will need proof to argue that medical theory.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • jesse hammond

    I have been trying to research lately and i have a question. I got out of the marines in 2010. Everyone said hurry up and file some claims to make surebthey are documented. I have some obvious issues after serving three combat deoyments in iraq and afghanistan. My ptsd is undeniable. I filled out the claims paperwork initially. The va set up so many appointments to the va hospital over an hour away i didnt make it to the proper appointments. One of my symptoms is avoidance issues. This was taking place in the thickest of my transition back to civilian and i was a complete and total mess. I fell apart and accomished nothing at this point in my life. It would have been 2013 i got a denial letter but mind you i never even finished the claims as far as i thought. Now reading up i am seeing that after one year you have no recourse for filing your claims. This seems outrageous considering the citcumstances. I only filed because people told me too. Am i able to start this over properly. I was denied because i didnt do it properly. What are my options. I plan to get a lawyer or talk to one. I am still picking up the pieces of my life. I cant imagine that i have no options because on one day i filled out a piece of paper and thats that. What are my options.

    • Kay Derochie

      Dear Jesse,

      You may want to consider filing a new claim. But, before you do you may want to seek out an accredited VA attorney for an initial consultation.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • thomas conger

    132 Fulwood RD East Palatka Fl 32131 last Sept 2014 I had a hearing for
    PTSD, I was not feeling well at the time my eyes were hurting , I have macular degeneration, the person doing the hearing was wearing a strong scent. could not think , could not do any thing , I JUST WANTED TO GET OUT OF THERE . we talk a few minutes nothing about my PTSD. i was granted 30% . after about 6 months of thinking about it I think I am being cheated, can I request another hearing or what ever

    • Kay Derochie

      Dear Thomas,

      VA cases are complex medical-legal proceedings. You can not have a redo on a hearing. The time to object was during the hearing. You need to review all your legal options. You might want to visit the hearing office for an informal discussion as to any options you might have available to you.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Dan

    I am currently receiving 20% disability. If I appeal and it gets denied, will I still receive my 20% or do I lose that?

    • Kay Derochie

      Dear Dan,

      It is difficult to tell what type of response you are making to a claim denial. If you are filing a formal appeal to BVA then you cannot lose your current disability rating. I suggest you have your claim denial reviewed by an accredited VA attorney who will know how to present the appeal in its best light. You do not have to pay any legal fees up front and you will pay attorney fees only if you are approved for benefits.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Alejandro Maqueda

    I recently got denied for disability compensation, There is no medical evidence that I injured my back because I was that knuckle head that ignored and tolerated pain, now I’m paying for it now that I’m older. Do I have any shot of winning an appeal?

    • Kay Derochie

      Dear Alejandro,

      You must be able to prove that you had an in-service medical diagnosis or condition. You will need to find service records to prove this claim. There are other elements which must be proved but the in-service medical condition is your primary issue here.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

      • Alejandro Maqueda

        Thank you very much

        • Kay Derochie

          You are welcome, Alejandro.

  • marilyn priest

    I filed my claim and was awarded 50% disability on sept 2013. I am finding as I uncover and discover more about my PTSD and MST trauma that I do not agree with the 50% and would like to appeal for a higher rating. Since it has been more than 1 year can you please advise the correct way to file for this consideration of increased disability?

    Also, I did not use the MST as the primary claim. Since I did not report it at the time, not many women did, is it possible for me to claim that? Does the burden of proof rest with me? I will never forget the name of my attacker, but other than that, I have no evidence.

    • Kay Derochie

      Dear Marilyn,

      A VA claim is finalized if an appeal has not been filed within one year of a claim denial. It appears that you will need to start over by filing a new claim. When you file a substantially complete claim application under federal law the VA has a duty to assist the Veteran with proof of the claim. However, due to inefficiencies within the VA system, the Veteran is best advised to be proactively involved in the process and not to default to the VA staff in proving a claim.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Thomas Olson

    I completed my VA claim after I was discharged in Decbet of 2011. In 2012 I moved to another city and attempted to appeal my claim. However, the VA representative from the new city said he was unable to assist me due to the fact my claim was from another VA Office. It has now been longer than one year since I received my claim, can I still appeal it?

    • Kay Derochie

      Dear Thomas,

      You state that “it has now been longer than one year since I received my claim…” In the way you phase your question, I cannot tell what you mean by “since I received my claim.” The general rule is that you have one year to file an appeal as measured from the date of your VA denial letter. So look at the date of your denial letter to verify if you are still within the one-year period. If you are, then you will need to file a Notice of Disagreement (NOD) as soon as possible. If the one year appeal period has expired, then you will need to file a new claim or file a request to reopen that closed claim. The Regional Office of the VA can explain the difference between these two different processes. It is best if you visit the Regional Office in person so you can understand your options.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Gregg Murray

    My disability claim was denied stating…that I indeed had a stressful event while on active duty, but I didn’t have a current disability diagnosis for the PTSD I am claiming. When the results of my C & P exam clearly state a diagnosis of PTSD with all the criteria. I met with my American Legion rep who helped me file a RECONSIDERATION request for due to the obvious error in the denial decision. I have also contacted my U. S. Congressman’s staff, who also agrees about the clear denial error. Am I on the right track? Is there anything goes else I can do?

    • Kay Derochie

      Dear Gregg,

      It appears with the help of the American Legion that you have taken steps by filing an appeal. You state you have elected to file a claim reconsideration. I assume you mean that you have filed a request for reconsideration with a Determination Review Officer at your VA Regional Office. Your case will have to wait its turn among all the other reconsideration requests pending in the VA Regional Office.

      Contacting your U. S. Congressman’s staff is one avenue to possibly get some attention of your case status. But, since you have already taken appropriate action, the Congressman’s staff is probably unable to provide any meaningful assistance. It is unlikely that your claim review will be expedited because there are about two million VA cases pending.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • Glen Cannon

    I injured my foot when I was young. Have always had pain.while in Navy reinjured same foot ,they preformed surgery to to try to repair it.filed a claim VA denied. Said there is no evidence that it was service connected. Yet all my medical records show the evidence of surgery,and still persistence pain today. Where do I go from here

    • Kay Derochie

      Dear Glen,

      File an appeal and go to the VA to request your “C” file, which is your complete record. It will give you the reasons they made the decisions. Once you know the reasons, you will now if you need an attorney or not.

      James Mitchell Brown
      Attorney

  • seth kamara

    i need to know aboutmy claim i filed in 2003 after being in service with service related injuries and informing them that i have my medical records from going to get checked out and got denied. mind u i was new to this and seeing the denial i looked to the wrong people in the VA for advice. they didnt have my best interest in mind anyway. go to iraq in 2009 and i get some approval for injuries but the denied injuries are still in denial. what i am confused with is, wasnt the VA supposed to backdate or continue the claim from when i initially filed in 2003?

    • Kay Derochie

      Dear Seth,

      It appears your 2003 claim has been denied and the claim file is closed.
      The VA will be reluctant to ever reopen that file. It is stale claim. The veteran has the responsibility to provide medical information to the VA, in your case to prove the basis for the 2003 claim. Under rare and highly unlikely circumstances, a claim might possibly be reopened but it would require a case evaluation by a skilled VA advocate. Most professionals would not be willing to do so due to the time investment involved.

      Sincerely,
      Craig L. Ames
      Accredited VA Attorney

  • I am currently receiving a disability from the VA. 3 years ago I tried to re open my claim with no success. Can I re submit a new claim for the one I was previously denied?

    • Kay Derochie

      Dear Mark,

      I need more information to respond. What was the claim for? How much disability are you receiving? Did you appeal? Do you have new evidence?

      Sincerely,
      James Mitchell Brown
      216-621-2022

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