If you've been denied disability compensation from the Department of Veterans Affairs (VA) or believe your disability should have received a higher rating, you have the right to appeal the VA decision. You may be able to win an appeal if you can show that the VA made a mistake on your claim; for instance, the VA evaluated your disability under the wrong code in the Schedule of Rating Disabilities, which gave you a lower rating. Sometimes veterans are denied benefits because of procedural mistakes made by the VA.
Below is a review of some typical legal errors the VA makes that you can appeal.
After you apply for VA benefits, the VA is required to tell you what evidence is necessary to prove your claim so that you can be awarded benefits. This notice must specify what evidence you are responsible for submitting, as opposed to evidence the VA will gather on your behalf.
This notification is required for all claims that were pending on, or filed after, November 9, 2000. If you did not receive this notification and can show that it harmed your case, this can be a basis for appeal. You will need to demonstrate that there is evidence helpful to your claim that you would have provided had you known it was needed.
By law, the VA must help you obtain records that support your claim for benefits. If you have identified these records adequately, the VA has a duty to get these records for you. This means you must provide enough information about when and where you were treated so that the VA could reasonably locate your records. This is only relevant if the records you identified are related to your claim for benefits.
In certain cases, the VA is required to provide you with a medical examination to obtain an opinion about whether your disability is service-connected. The VA is required to provide this exam when there isn't sufficient medical evidence in the file and there is:
If the VA did provide a required medical examination, it must meet certain requirements. For example, the VA physician or medical provider should be knowledgeable in the type of disability being evaluated. The doctor must explain in detail the reasoning behind his or her opinion about whether the current disability is linked to service and must give an actual opinion about whether this linkage exists or not.
If you appealed to the Board of Veterans Appeals (BVA), the BVA is required to include in its decisions a discussion of the facts and law on which the decision is based. You will need an attorney's help to check whether the BVA failed to properly address medical or lay evidence that helped your claim. Consult with a VA disability attorney to determine if this is a basis for appeal in your case.
You can appeal a denial of benefits or low rating to the VA Regional Office where you originally submitted your application and ask for a Decision Review Officer (DRO) to review your file and issue a new decision and/or ask for a hearing before a DRO. After a DRO reviews your case, or instead of having a DRO review your case, you can appeal directly to the Board of Veterans Appeals (BVA).
If the BVA denies your appeal, your options are to bring an appeal to the U.S. Court of Appeals for Veterans Claims, ask the BVA to reconsider its decision, or file a reopened claim at the VA Regional Office. At this stage, it's best to have the assistance of a VA disability attorney to help you determine the best course of action.
Sometimes, at the Regional Office or at the Board of Veterans Appeals (BVA), the VA fails to adhere to the laws and regulations that govern its operations. When this is the case, the oversight of the U.S. Court of Appeals for Veterans Claims may be necessary to obtain a successful outcome in your case.