Al Walsh

Where to Find What the VA Must Put in Every Decision

Disability Claims, Understanding VA Decisions /

In this video I talk about where to find all of those things the VA is supposed to put in their rating decisions. In a previous video, I talked about what those things are and for the sake of a quick review, I’ll walk through that list:

  1. Identification of the issues adjudicated.
  2. A summary of the evidence considered by the Secretary.
  3. A summary of the applicable laws and regulations.
  4. Identification of findings favorable to the claimant.
  5. In the case of a denial, identification of elements not satisfied leading to the denial.
  6. An explanation of how to obtain or access the evidence used in making the decision.
  7. If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.
  8. Options for appeal, or review of a decision you don’t like.

In that video, I also mentioned that the VA is likely to include each of these in either the rating decision itself or a notice letter that they send with the rating decision.

Now, with that little review out of the way, let’s walk through the list of things the VA must include and talk about where to look for them.

For the identification of the issues adjudicated, by the way, the word adjudicated here, pretty much just means decided, you’ll want to go to the rating decision and look under the heading titled DECISION. In this section the VA will typically use a numbered list to state the claims they have decided and whether it was denied, granted, and if granted what percentage you were rated.

For the summary of the evidence considered, again go to the rating decision and look under the heading EVIDENCE. Pay attention to the list in this section. Make sure that everything needed to prove your claim is listed in there. But understand that sometimes it may be hard to tell if everything is there. For example, the VA will sometimes write in here something like all private medical records received on say, May 8th of 2013. And you won’t know from looking at that list, what was included in those records. In that instance, you have to get a copy of your claims file to know what’s in there. But… you need a copy of your claims file anyway…

For the summary of applicable laws and regulations, you’ll most often find in the section titled REASONS FOR DECISION. It’s rare to see the VA reference statutes in here. In fact, I don’t think I’ve ever seen it. But you will see references to VA regulations, and usually, these will be spread out by each claim or issue. Does the VA provide a complete list? I think they could be a little more complete in some instances, but they probably provide enough to meet their obligation under the law.

Also under this heading, you will find favorable findings, if the VA makes favorable findings, again broken down by each claim or issue. And you’ll also find an identification of the elements not satisfied which lead to the denial, the criteria you need to satisfy to be granted service connection, and the criteria you need to satisfy for the next higher rating. Now not all of those will apply to every decision, or even in every claim or issue, so they won’t all be present every time.

In the case of denials, particularly when the VA denies service connection, I think the VA does a pretty poor job of explaining what you were supposed to prove but didn’t. Often it just a basic statement of the law, which I think again probably meets the bare minimum requirements for the VA, but it’s a far cry from what I think is the intent of the law, which is to actually help veterans understand exactly where and why their claim failed.

For the explanation of how to obtain or access the evidence used in making the decision, which is basically your claims file, you’ll have to leave the rating decision and turn to the notice letter. Somewhere in that letter, you’ll find a phrase which says something like: “If you would like to obtain or access evidence used in making this decision, please contact us by telephone, email, or letter as noted below letting us know what you would like to obtain.”

That sounds ok, right? But if you actually pay attention to every phone number, email address, or mailing address listed in the rest of the notice letter you’ll see that none of them have anything to do with you getting copies of the evidence. None of them. I think the VA utterly fails on this one. It is a huge pain for a Veteran to get a copy of their claims file, and it’s something I wish the VA would fix.

Ok, now the last thing is your appeal or review options. The VA does a good job with this one. By that I mean they just include some standard forms at the end of every notice letter that talks about appeal options. So, not a lot for me to gripe about there.

I think that does it for how to find everything on that list, but before I wrap up I need to point out that the VA is not required to put any one thing in a specific place. So if you don’t find something where I just told you to look for it, before you get worked up about it, go back through everything the VA sent you and double-check to make sure it’s not hiding somewhere else.

I hope you found this helpful. If you did, please give it a like, that will help other Veterans find it. And if you want me to help you with your VA claim, you can reach out to me through my website.

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What the VA Must Include in Every Decision

Disability Claims, Understanding VA Decisions /

This video is the first of a series of videos about reading a VA decision, understanding it, and then what to do with a bad one. A good place to start is just a quick review of the things the VA is supposed to include in all their decisions.

38 U.S.C. § 5104 requires the VA to send you and your representative if you have one, notice of the decisions they make on your claim for benefits. And that notice is required to include some specific things such as:

  1. Identification of the issues adjudicated. (generally each disability you’ve claimed)
  2. A summary of the evidence considered by the Secretary.
  3. A summary of the applicable laws and regulations.
  4. Identification of findings favorable to the claimant.
  5. In the case of a denial, identification of elements not satisfied leading to the denial.
  6. An explanation of how to obtain or access the evidence used in making the decision.
  7. If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.
  8. Your options to appeal the decision if you don’t like it.

The VA’s regulation, 38 C.F.R. § 3.103(f), restates all of these although slightly different.

So that’s the information the VA has to give you, but how do they go about it. As I’m sure you know, when the VA sends you a decision, you get a lot of paper in the mail, which can usually be broken down into two primary documents, the notice letter and the rating decision. All of that information needs to be somewhere in the notice letter or the decision.

The notice letter looks more typical letter, and it will usually start with the phrase “We made a decision on your claim….” Or “We made a decision on your VA benefits…” Also, the notice letters will include all the standard VA documents that describe your appeal options and other benefits that may be available to you. 

On the other hand, the rating decision has a much different heading with a lot of the main information centered on the page and should have the phrase “Rating Decision.” And the rating decision, of course, is where the VA gets into the details of why they granted or denied your claim. Or at least they are supposed to, but they don’t always, which is very frustrating.

Now, I’m going to make more videos going into more depth on VA decisions, so watch for those coming up. I’m afraid if I did it all in one video, it would be much longer than I like these videos to be. But I hope that you found this quick overview helpful. If you did please give it a thumbs up, that’d help other veterans find it. And if you want me to help you with your disability claim, you can reach out to me through my website, walshvetlaw.com. Thanks for watching.

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How to Appeal to the Board of Veterans Appeals

Board of Veterans Appeals, Disability Claims /

Okay, so you just received a bad decision from the VA on your claim, and you want to appeal to the Board of Veterans Appeals. What do you do now? And just clear, I’m only going to be talking about post-AMA Board appeals. If you’re not sure what that is, please go check out a previous video I did on how to tell if your claim is in the old system or the new system.

When you’re thinking about appealing your decision to the Board. First, you have to make sure that you can appeal your decision to the Board. This means you have to have a decision from an initial claim, a request for an increase, a higher-level review, or a supplemental claim. Any one of those types of decisions you can appeal to the Board. Now, of course, when you appeal, you have to use the right form, which is VA Form 10182. (By the way, you should always get your VA forms from the VA website directly). You have to file this form within one year of the decision that you’re trying to appeal. Now, the VA titled this form Decision Review Request, Board Appeal (Notice of Disagreement). It kind of feels like they wanted to call it three different things. Couldn’t make up their mind and just went with all three.

In part two of this form, you have to check a box, letting the VA know which appeal lane you want to use. There are three appeal lanes:

  1. Director Review Lane
  2. Evidence Submission Lane
  3. Hearing Lane

Which land you use depends on what’s going on with your car claim. And unfortunately, how long you want to wait.

In the Direct Review Lane, you will not get a hearing before a Veteran’s Law Judge. And you cannot add any new evidence. You’re stuck with whatever was in your file on the date the decision that you were trying to appeal was made. But you can, and you absolutely should submit a written argument with your appeal. Now you can submit that argument at any point up until the board decides your appeal, but I think you should submit it right away with the appeal. Remember, your argument is not new evidence. That is just you explaining in great detail why the VA messed up your claim.

When do I like to use this option? Well, first of all, you have to have a claim file that is complete. In other words, that there’s just no more evidence that we need and the VA can absolutely grant this claim with just what’s in the file. The second thing I like to consider here is whether the thing that the VA has messed up is a legal issue. And the more tricky that legal issue is, the more likely I’m going to want to take it straight to the board, rather than mess around with a higher-level review or something like that.

In the Evidence Submission Lane, you will also not get a hearing before a Veteran’s Law Judge. However, in this lane, you can submit new evidence. But you have to do it within a specific window. The VA allows you to submit evidence within 90 days after the Board gets your appeal. Now you should be on the ball and submit that evidence with your appeal. That way, it’s all done at once and you don’t have to worry about it. Also, you can, and you also should submit an argument using this option as well. Again, explaining why the VA got your claim wrong.

Whether I think a veteran should use this lane depends a lot on first of all, whether you’ve got new evidence that needs to be a part of your claim. But then it gets really tricky after that because you’ve got to decide, whether it makes more sense to file a supplemental claim and keep working the claim at the regional office a little bit longer, or if this is something that needs to go straight to the Board. It really depends on the specific details of what’s happening in your claim.

In the Hearing Lane, you of course get a hearing before the Veteran’s Law Judge who will be deciding your claim. And that can be a really good thing. You can also add new evidence, but the window is a little bit different. You still have 90 days, but your 90-day window to add evidence does not start until your hearing. That’s good because it gives you time to track down and find evidence for something that may have popped up in the hearing.

When do I think veterans should use this lane? Well, I mean, first and foremost, if a veteran wants a hearing, you should take this lane and get a hearing. That’s the overriding consideration for me, anything else I want to do from one of the other two lanes, I can do in a hearing lane, just as well. Now, of course, I’ll talk to a veteran about what I think the pros and cons are of the Hearing Lane and whether I think it makes sense in their specific set of circumstances, but it’s still the veteran’s decision because it’s the veteran’s claim.

Now let’s talk about the timeframe because that’s another important consideration. I’m getting this information from statistics posted by the board of veterans appeals. As of right now, it is currently taking the board of veterans appeals:

  1. 305 days to complete an appeal under the Direct Review Lane
  2. 357 days to complete an appeal under the Evidence Submission Lane
  3. 497 days to complete an appeal under the Hearing Lane.

So when you’re thinking about a hearing, you have to ask yourself, is the hearing worth the extra 150 to 200 days that it’s probably going to take for the VA to decide your claim.

As always, if you’d like me to help you with your VA claim, please reach out to me through the links on my website.

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A little bit about the Board of Veterans Appeals

Board of Veterans Appeals, Disability Claims /

I want to talk a little bit about the board of veterans appeals. I’m specifically talking about the board post AMA. The AMA is the appeals modernization act. If you don’t know what that is, please go see an earlier video I recorded about how to tell if your claim is in the old system or the new system. The Board of Veterans Appeals as part of the Department of Veterans Affairs. But it is separate from all the other parts of the VA, like the Veterans Health Administration, and more importantly, for disability claims purposes, the Veterans Benefits Administration. With that separation comes independence. So how independent are they? On paper, quite a bit. The Chairman of the Board reports directly to the Secretary of Veterans Affairs. So it’s about as independent as you can be and still be inside the VA. However, I do realize that when you get a bad decision back from the Board, it doesn’t always feel like they’re so independent.

So how do you get your claim in front of the Board? For the most part, you can appeal any initial decision, higher-level review, or supplemental claim straight to the board. You cannot appeal a board decision back to the board. There is another set of circumstances where a case can be remanded from the Court of Appeals for Veterans Claims and ended up back at the Board on its way back down. But that’s a separate set of circumstances that we’re really not going to get into here.

So what happens to your claim when it’s actually at the Board? Well, the board is made up of Veterans Law Judges, one of whom will review your claim. Now that VLJ is a lawyer and he, or she has a staff of other lawyers to assist them in reviewing each claim. This is the first level where you’re going to have lawyers looking at your claim, at least on the VA side. So if you are working with your claim yourself and presenting arguments before the board, just know that you have to persuade a judge with a trained legal staff. So that means you’re going to have to point to the law that the VA was supposed to follow, explain how they didn’t follow it, and how that led to the wrong decision in your claim.

Prior favorable findings are binding on the board. I do have a separate video about favorable findings. You should check that out if you’re curious. Aside from favorable findings, the board is required to review your claim de novo. That is a Latin phrase. I don’t know why lawyers to these lab phrases, but we do. What it means, in basic terms, is that the board is supposed to review your claim with totally fresh eyes. They’re not to give any weight to the decision made by the regional office. They don’t have to ignore the decision from the regional office, but they can’t give it any weight.

The board does not have a duty to assist you with your claim. So what is likely going to happen if the board finds that there was a duty to assist error is they’re just going to kick it back to the regional office and tell them to try again and fix it. One exception to that is if it’s possible for the Board to grant you the maximum benefit under the claim that you’re seeking based on all the information that is currently available to the board, even with that duty to assist error. In that case, the board can, and in fact, should go ahead and grant you that maximum benefit. Do they do it all the time? I think not often enough. There are probably more that they should grant that way.

I hope you found this post helpful. If you’d like me to help you with your disability claim, please reach out to me using the contact information on this website.

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Supplemental Claims: When Should You File One?

Disability Claims /

What is a supplemental claim, and should you file one in your fight for VA benefits? In my oversimplified definition, the way I describe it is when you want the VA to redecide your claim with information that they didn’t have the first time around, or rather, the last time they made a decision.

When can you file it? Well, pretty much whatever you want, as long as you’re filing it in response to a VA decision. There are some instances where you can switch your appeal lane, but that’s a separate video for another day. For right now, if get a decision and you’ve got new evidence and relevant evidence, you can file a supplemental claim at any time. But the key here is that you do have to include new and relevant evidence.

If you don’t include that, the VA is just going to send you a letter that says they don’t have any new evidence so they can’t, re-decide your claim. And so they’re not going to do anything with it. And it makes sense because if you’re not giving the VA anything new, you’re essentially asking for a higher-level review. And if that’s what you want, then that’s what you should do if you don’t have new evidence.

So what is new and relevant evidence? New evidence is anything that was not before the VA when they decided your claim. It doesn’t have to be new in the sense that it’s a medical record that was created a week ago or a brand new statement from your buddy. It could have existed for a while. It just has to be something that the VA didn’t have in front of it when it made the decision on your claim.

Relevant evidence is something that tends to prove, or disprove one of the important parts of your claim. So for example, one of the elements of service connection, or the extent to which you are injured or your injury or disability affects you which gets to the percentage at which you’re rated.

Let me walk through an example. Let’s say the VA service connects you for PTSD, but they rate you too low. Let’s say you had a great lay statement from your spouse that talks about how you were a totally different person after you came back from deployment and it walks through in great detail, all the effects that PTSD has had on your life and your ability to function with your family, in society, everything. It’s a great statement, and you had it, but you just didn’t submit it with your claim. You can file a supplemental claim and include that last statement. And only that last statement and the VA will take that, look at that and say, is it new? Yes, because the VA didn’t have it before. Is it relevant? Yes, because it tends to prove, the effects of your PTSD on your life, which is going to get at, those percentage ratings that you’re trying to increase. So they will take that statement. And re-decide your claim.

That’s all you need for a supplemental claim. Now I’m not going to say that one statement is going to make a huge difference in the outcome of your claim. It may, it may not. That depends on the specifics of your situation. What I’m talking about is what you need to reopen a supplemental claim with the VA.

As another example, which speaks to relevant evidence, another thing you can do that’s relevant is present the VA with a new theory of service connection. Let’s say you’ve got sleep apnea and you file a claim for direct service connection. As in, your service caused your sleep apnea and that gets denied. You can file a supplemental claim and say, as an alternative, that your traumatic brain injury, caused your sleep apnea. That is a secondary condition. That’s a new theory. And that can be the basis of a supplemental claim.

If you want to keep your effective date, you have to file your supplemental claim within a year of the VA’s most recent decision on that issue. If you miss that, then the VA’s decision will be considered final, and you’re going to lose any past-due benefits you may have had on the table. But, 10 years down the road, 40 years down the road, whenever you’ve got new and relevant evidence, you can file a new supplemental claim. But your effective date is going to be the date you filed that claim. So be aware of that. Deadlines are critical, but I’m sure you already knew that.

Another thing about supplemental claims, the VA does have a duty to assist. So if you file a supplemental claim, new relevant treatment records. The VA has a duty to go get those, and then redecide your claim.

I hope this information was helpful as always, if you’d like help with your VA claim, feel free to reach out to me through my website.

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Higher-Level Review: What is it and should you do it?

Disability Claims /

What is a higher-level review? And should you request one in your VA disability claim? Well, first of all, let me say that higher-level reviews are only available if you have a claim under the Appeals Modernization Act. It is not on the table with a legacy claim. To describe what it is in my wildly oversimplified language, which is always a little dangerous… I’d say that a higher-level review is you going to the VA and saying “Hey look, all the evidence is there, the answer’s obvious, You guys just got it wrong, and I’d like somebody with a little more experience to take a look at this claim again, so try again.

To be more specific, a higher-level review is when a more experienced VA employee reviews all the evidence in your claim and then gives you another decision. Now, this new reviewer is supposed to look at your claim with totally clean eyes. They’re not supposed to give that original decision or any sort of deference with the exception of findings that have been made in your favor.

Specifically, what can a higher-level reviewer do? What decisions can they make? Well, a few things. First, they can come back and say, VA got it right the first time. They can completely agree with that original rater. I see that a lot, a little too much, honestly.

Another thing they can do is they can grant your claim or increase your rating. And that’s usually what you want them to do.

A third thing they can do is deny a claim that’s already been given to you, or they can reduce your rating. Now those are hard for them to do. And for them to deny a claim that’s already been granted they have to find clear and unmistakable error.

The other thing that a higher-level reviewer can do is can send your claim back to the original regional office that handled it and tell them they failed to uphold their duty to assist you and make them try again.

So in making those decisions, what information is available? Well, the higher-level reviewer is stuck with only the information that was available when that decision being reviewed was made. So if you’ve gone to the doctor since then, or if you’ve gotten new statements since then, and you try to try to add them, the higher-level reviewer isn’t going to look at them.

Now they can consider arguments, and you should make arguments. Arguments are different than new evidence. Arguments are just you pointing out how the VA messed up. Now, when I submit the form for a higher-level review, I include a letter and that letter describes in great detail, the errors in the original decision. And if you’re doing this yourself, you should do the same thing. Absolutely submit it in writing and submit it at the same time, you request a higher level of review. Make sure you’re not trying to add something new in there and make sure you clearly state, this is an argument, not new evidence. And then just walk through the errors.

One other thing about higher-level reviews. You can ask for an informal conference where you will speak directly with the higher-level reviewer. I think that generally, these are a good idea. Especially if the errors the VA made are complicated and you want the chance to explain them to a human.

Should you request a higher-level review? the first thing I do is ask if your evidence weak? Do you need more evidence? Do you need another doctor for a medical opinion? Do you need more statements from people you served with, from your spouse, from whoever can help support the facts that you’re trying to lay out for the VA? If you need more evidence, don’t do a higher-level review. It’s going to be just a waste of your time. Get the evidence and file a supplemental claim. On the flip side, if all the evidence is there, you’ve got all the medical opinions you could want, same with buddy statements and any other evidence, maybe a higher-level review makes sense. It really does completely depend on your claim, your claim alone. And no two claims are alike. If you’d like me to take a look at your claim, you can reach out to me through the links on my website.

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Final Decisions and other things the VA can’t (easily) take back.

Disability Claims /

Dealing with the VA is a pain, even when things are going fairly smoothly or reasonably well, it’s still a pain because the VA is a huge bureaucracy with an insane number of rules that they have to follow and they don’t always apply them correctly. And then you’ve got to appeal, which means you have to get them to jump through even more rules. You have to follow a bunch of rules while you do all that. It’s exhausting to get the VA to make the final correct decision. It’s a slog. It takes a long time, but you already know that. Now, one of the things that helps you in that slog is that the VA is bound by some of the decisions, decisions they make along the way, kind of like a no backsies rule.

Of course, there are exceptions and I’m going to talk about some. There are always exceptions. But for the most part, for certain key decisions that the VA makes, the VA is stuck with them. Now I’m going to be oversimplifying things a bit with this video, and think that’s true with every general video. None of this is specific about anyone’s claim, definitely not your claim, but let’s dive in.

The first thing that the VA is stuck with is actual decisions. So let’s say the VA sends you a decision letter where they have found that you are disabled at a 10% rating for a certain disability. That decision, that you have a service-connected disability and it’s rated at 10%, the VA stuck with that. No, backsies there. They can’t go back unless they find that there was clear and unmistakable error in a finding or decision leading up to the service connection, or if they, if they find that the current effect of that disability is less severe than, than what they had originally rated, then they can reduce the rating.

Those exceptions are pretty rare and the VA has to jump through some hoops of their own in order to apply those exceptions. So for the most part, once the VA has decided you’ve got a service-connected disability and you’re rated at a certain percentage, they’re stuck with it. And when you file a higher-level review, supplemental claim, appeal to the board, or anything else you do to try and increase that rating or add other disabilities, the VA can’t take back that first one, they can’t take back what they’ve given you again without working really hard at it.

The next type of thing that the VA stuck with is administrative decisions. These are things like the character of your discharge, the number, and type of dependence that you have, whether an injury occurred in the line of duty if that’s an important part of your claim, and similar. The VA is stuck with these. Unless again, they can show a clear and unmistakable error. Now I’ve mentioned that a couple of times, I should say briefly again, in an oversimplified way, what is a clear and unmistakable error. Basically a super obvious undeniable error.

For example, let’s talk about dependents. Let’s say you are receiving additional compensation for a dependent that was born in 1997. Now let’s say the VA is looking at your file and says, well, this kid was actually born in 99, they can go back in and readjust that based on that. The date on the birth certificate is something that’s obvious to anybody who looks at the birth certificate. So that’s an example of a clear and unmistakable error because it simply was an error by the person who read it and entered the wrong information.

The third thing is something new that came out with the Appeals Modernization Act, and that was favorable findings. So the VA is stuck with favorable findings that they’ve made while they’re adjudicating your claim. And to give an example of that. We can talk about migraines. Let’s say the VA sends you a decision letter where they’re talking about your migraines. And they have a finding that says, yes, this veteran has debilitating migraines. They occur once a week and, once they have those the Veteran is out all day.

If you go continue to fight that claim for a higher rating, the VA can’t go back on that initial finding of the severity of your migraines unless they have clear and unmistakable evidence. So that’s different. Before I talked about clear and unmistakable error, this is clear unmistakable evidence. So it’s a slightly lower bar, but it’s still a decent size hurdle that the VA has to get over.

I don’t want you guys to get too caught up in the exceptions. For the most part, these really are things that the VA isn’t going to be able to take back from you unless they jump through a lot of hoops.

As usual, if you’re struggling with your fight with the VA and you’d like me to take a look at your claim, feel free to reach out to me through the links on my website.

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How to Get your VA Health Records from the VA Website

Being a Veteran, VA General /

It is possible for you to access all of your VA medical records through the VA’s website. I’m going to talk you through how to do that, but first, you’ll need to make sure you have created an account to access the VA system. There are three different options for that. You can use a DS log on if you have one, my healthevet, if you’ve already signed up and have one of those, or a third website called id.me. And if you don’t have any of those, I recommend using the id.me. It is far and away, the most convenient way for you to prove you are who you say you are and get access to the VA’s website.

It is just a super convenient way for you to get this all set up. All you need is a computer, a phone that takes pictures and, a couple of pieces of government issued ID. You don’t have to leave your house. You literally do it all in a few minutes. There’s one caveat. If you’re an Iraq or Afghanistan vet and need to sign up for the VA’s the national burn pit registry, I’m pretty sure you can only do that with a DS log on account. But even if that is you, if you haven’t done any of this before, I still recommend go ahead and go ahead and getting the id.me account. It’s it’s super fast and easy, and it’ll get you to your VA medical records in the quickest way possible.

Id.me has produced a great video on how to create an account, and they’ve done a much better job than I could have. So I’m going to link to that video to the right. I recommend you go watch that video, sign up for an id.me account, and then come back here, and I’ll walk through how to then log in to the VA system and get access to your records.

For this next video, I’m going to just go straight to my computer screen and I’ll walk you through how to navigate the VA’s website and find your medical records. I generally like to put a transcript here for people who’d rather read than watch the video but in this case, I recommend just watching the video.

As always, if you feel like you need some help in your fight with the VA, reach out to me through the contact information on this website. I’m happy to see if I can help.

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Options to keep fighting a VA disability claim.

Disability Claims /

Below I’m going to walk you through your options for what you can do if the VA denies your disability claim. And the information is also helpful if the VA has granted your claim, but it just rated you too low and you want to appeal that.

The first thing you need to know is whether your claim falls under the old legacy system or the new system under the appeals modernization act, also known as the AMA. This is important because your options vary depending on which of those two camps you’re in. I’ve got a separate post on that topic which you should check out here if you aren’t sure about your claim. For right now, I’m just going to talk about your options under the AMA.

To dive right in… after you get that initial decision from the VA, you have three options. You can request a higher-level review, you can file a supplemental claim, or you can appeal to the Board of Veterans Appeals. And as long as you do one of those three things within one year of the initial decision, you will maintain your effective date, which as you know is key.

Now, if you requested a higher-level review and that was denied, then you have another year to do one of two things. You can file a supplemental claim or appeal to the Board of Veterans Appeals. You cannot request a higher-level review of a higher-level review. That one’s off the table.

If you file a supplemental claim and that gets denied, you are back to the same three options you had from your original decision. You can request a higher-level review file, another supplemental claim, or you can appeal to the board of veterans appeals. And again, you have one year to do any of those three things.

If you appeal to the Board of Veterans Appeals and your claim is denied, then you only have two options. And this is where it gets a little different. So you still have one year to file another supplemental claim. Or if you want to go higher up past the Board of Veterans Appeals, you can appeal to the Court of Appeals for Veterans Claims, but then you have a deadline of 120 days from the board of veterans appeals decisions. That’s the only deadline that isn’t a year. And you cannot request a higher-level review of a Board of Veterans Appeals decision.

There’s a lot of nuance and in each of these options, and I’ll try to cover that in more detail in the future. But what I want to say right now is that you don’t have to take these in any specific order. You should do the thing that makes the most sense for your claim at that specific moment in time. For example, if you can keep finding new and relevant evidence, you can keep filing supplemental claims. You can keep pushing this thing for a long, long time. Again, you always have a year except for appeals to the Court of Appeals for Veterans Claims where you only have 120 days.

As always, if you are struggling with your fight with the VA and you’d like me to help you out, you can reach out to me through my website, and I’m happy to see if I can help.

Options to keep fighting a VA disability claim. Read More »

How to tell if your VA Claim is in the old Legacy system or the new AMA system.

Disability Claims /

If you get a bad decision from the VA on your disability claim, before you can do anything about it, the first thing you need to do is know whether your claim falls under the old legacy system or the new modernized review system. The modernized review system took effect after the passage of the Appeals Modernization Act. And it’s also referred to as the AMA. So the key words here are legacy and AMA? Eventually, all claims are going to fall under the AMA. It’s the new system, and where everything’s going. And in fact, the majority of the cases that I’m working on right now are in the AMA system.

The basic rule is that if the initial decision from the VA that you are trying to appeal was made on or after February 19th, 2019, then your claim falls under the AMA. I think that’s the case for a lot of veterans and that’s just going to increase as time goes on and eventually. But there are still a lot of legacy claims working their way through the pipeline.

So if you have an initial decision from the VA that was made before February 19th, 2019, you might fall under the AMA or you might not. First of all, we are two years out from that date. It’s February 2021. So if you got an original decision from the VA before February 19th, 2019, and you haven’t done anything with it up to now, you’ve got some other problems. You’ve probably lost your effective date and you’re most likely going to have to start over essentially under the AMA anyway.

But if your initial decision was before February 19, 2019, on a claim you’ve been continuously pursuing and fighting the VA on, since that time, and you’ve never missed any type of a deadline for an appeal or anything like that, then my gut is it’s probably still legacy system unless you specifically opted in to the AMA.

To know for sure, the things to look for are, whether the VA sent you a statement of the case or a supplemental statement of the case, which, the VA will send you in response to a notice of disagreement and any new evidence as developed in you. There’s a little more to it than that, but to my point, if you’re receiving those documents from the VA, that’s a clear sign you’re in the legacy system. Now, if you filed a supplemental claim and specifically opted in to the AMA, then you’re under the AMA.

So those are, those are the things you need to look for on those older claims. I know this can be confusing, but it’s important to take the time and actually look at the documents you’re getting from the VA and, and figure out where you fall. So that, again, you know what your options are.

And as always, if you want me to take a look at your claim, you can reach out to me through my website. I can’t promise I’ll help you, but I’m happy to take a look and see if I can.

How to tell if your VA Claim is in the old Legacy system or the new AMA system. Read More »