Disability Claims

What Happens to Your Rating When the VA Changes the Rating Rules

Disability Claims /
If you’d rather hear about it than read about it, you can watch this video.

The VA has proposed some pretty big changes to how it rates certain disabilities recently, and I’ve been talking to a lot of veterans about what that means for their current ratings. The bottom line is that federal law prevents the VA from using new rules to go back and cut existing benefits that veterans gained under the old rules, at least as long as your disability doesn’t improve and you don’t ask the VA for an increase.

The relevant law is 38 U.S.C. § 1155. This statute gives the VA authority to make and revise its rating tables. The relevant part of that statute for this video is that “The Secretary,” meaning the secretary of the Department of Veterans Affairs, “shall from time to time readjust this schedule of ratings in accordance with experience. However, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced.

That last part gets a little wordy, but let me go through it with an example. Let’s say a new rating schedule goes into effect on March 15. Anyone who got their current rating before March 15 will not be reduced because of the change in the regulations. There is also an unless we should talk about. So going back to the statute, it says the rating won’t be reduced “unless an improvement in the veteran’s disability is shown to have occurred.”

But that’s nothing new. The VA has always had the authority to reduce ratings if a veteran’s disability improves. Of course, there are some ratings the VA can’t reduce, and even for those they can, they have to follow a very specific process. If the VA starts the process to reduce your rating after it has changed the rating regulations, the VA has to prove a reduction was warranted under the old regulations. So even then, the VA cannot use a new regulation against you. But if the VA does prove a reduction is warranted, your new rating will come from the new rating criteria.               

And I should add that if you file for an increase for that disability in the future, the VA will decide whether to grant your increase under the new ratings. That doesn’t mean you should never go for an increase after the VA has changed a rating schedule. It just means you have one more thing to think about when you’re weighing your options.                

I hope I explained that clearly. If you would like me to help you with your disability claim, you can reach out to me through the links on this website.

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Should you file an intent to file while still on active duty?

Being a Veteran, Disability Claims /
If you’d rather not read this post, you can watch the video.

You should not file an intent to file while you are still on active duty. At best it will do nothing for you, and at worst you could end up with an overpayment from the VA and have to pay it back. Although, that scenario is probably unlikely.

The intent to file form is a tool that preserves a veteran’s effective date for a claim. An effective date sets the earliest point in time when the VA will pay you disability benefits. If you file a disability claim within one year of coming off active duty, your effective date will be the day after your separation date. That is as early as it can possibly be. So, filing an intent to file two or three months before you get out can’t help you.

For the same reason, it doesn’t make any sense to file an intent to file during that first year after you separate. Say you file an intent to file two months after you get out and then file a claim 8 months later, your effective date is going to be the day after you separated, not the date of your intent to file. So again, the intent to file did nothing for you, and in that case, if the VA uses it, it actually hurts by costing you two months’ worth of benefits.

Now, if you don’t think you are going to get a claim filed at all in that first year, then an intent to file can help, but in that case, you’re still better off just filing a claim for anything you think is wrong with you. I mean, if all you do is file a claim form that says, my right shoulder’s jacked up. That would probably be better at least in terms of preserving your effective date.

If you are still in service you can file a claim between 90 and 180 days before you get out. That won’t hurt anything. But really, I think the best thing you can do to help yourself disability-wise is to gather all the evidence you can, medical records, orders, awards all that stuff. And for every medical or mental health problem you have, ask yourself, did the Army cause it or make it worse, and if the answer is yes, then file a claim for it.

The word disability makes us think about a person who is missing limbs and has to use a wheelchair. So a lot of veterans won’t file a claim because they don’t think they are broken enough for disability. I felt the same way when I got out. This was before I was ever a lawyer or even thought about helping veterans with VA appeals. The reason I filed a claim was for my wife. Because I knew, eventually everything I did in the Army would catch up to me, and I would be old and broken, and generally grumpy if not completely irritable, and my wife was going be the one who suffered. So I did it for her. And I also knew my claim would be a lot easier to prove right when I got out than 30 years from now.

If you don’t have a similar reason, think about it this way. If the Army broke it or made it worse, the VA has an obligation to take care of it. So file a claim. And start gathering your records before you take your uniform off because afterward, it’ll only get harder.

I hope that helps some of you. If you’d like me to help you with your VA disability claim, you can reach out to me through the links on this page.

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What if your Supplemental Claim doesn’t have New and Relevant Evidence

Disability Claims, Supplemental Claims /

You know that if you file a supplemental claim, you have to include new and relevant evidence. So, what if you don’t, what happens then.

The first thing that happens is the VA will consider your supplemental claim incomplete. That kicks you over into a different set of rules about what happens with incomplete supplemental claims. And the short answer is that the VA will send you a letter that says you have 60 days to do give them some new and relevant evidence.

If you do not send them new evidence or identify new evidence within that 60 days the VA will send you a letter saying basically that they can’t even consider the supplemental claim. You may think that is a decision that denies the supplemental but it’s not. You won’t even get a decision. Legally speaking, it will be as if the supplemental claim never happened.

If you do send them new evidence or identify new evidence, within that 60 days, now you have a complete supplemental claim and the VA gives you the filing date of the incomplete supplemental claim. The VA will treat it as though you filed a complete supplemental claim the first time.

Depending on your circumstances, how you do this can save or lose your effective date. Here’s an example, let’s say you get a decision denying your claim, and you wait one day short of a full year to file a supplemental claim. And let’s say your supplemental claim didn’t have any new and relevant evidence. The VA sends you the letter giving you another 60 days and you still don’t send new evidence. If that happens, that denial, just became final and if you eventually do become service-connected for whatever the claim was, you won’t be able to get an effective date back to your original claim.

But, using that same example, if you do submit new and relevant evidence within that 60 days, then you were able to buy yourself a little extra time because you had the full year after the decision, plus the time it took the VA to process the supplemental claim form and send you that letter giving you 60 days, plus an extra 60 days.

An extra 60 days might be all you need. Maybe you received that decision denying your claim, it made you mad, so you threw it wherever you throw bad VA decisions or bills, or anything you know you shouldn’t throw away but you don’t want to deal with. And then it gets buried and you don’t think about it for a long time until it’s too late, or almost too late.

Anyway, I hope you found this helpful. If you’d like me to help you with your VA disability claim, you can reach out to me through the links on this page.

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Obesity and VA Claims

Disability Claims /
Obesity and VA Claims

Let’s talk about obesity and VA claims. There are a few things you should know if you believe that your service or your service-connected disabilities have caused you to become obese.

First, I want to say I’m talking about medically obese. Not your, or my, subjective idea of whether someone is obese or not. The medical definition of obese is “an increase in body weight beyond the limitation of skeletal and physical requirement, as the result of an excessive accumulation of fat in the body.” That’s from a medical dictionary, Dorland’s if you’re curious. And the threshold for whether someone is medically obese is probably lower than you think. You can check out the CDC’s website on that. I’ll put a link below. It all seems to be based on height and weight, which surprises me a bit, but I’m definitely not a doctor so I’ll leave that alone.

Second, and probably most important, so I probably should have led with this, but obesity is not a disability as far as the VA is concerned. That means, the VA will not pay you any disability for obesity no matter how clearly your obesity is caused by your service. So, obesity alone won’t get you there, but that’s not where things end.

If you have an event, injury, or illness in your service, that causes you to be obese, and that obesity caused a disability, you can service connect that second disability. Same thing if you have a service-connected disability that caused you to be obese and that obesity causes another disability. The rule is that while obesity is not a disability in itself, it can be an intermediate step to another disability.

To give an example, let’s say we have a veteran with service-connected PTSD, and because of that PTSD, the veteran self-medicated for years he has a serious problem with alcohol and those two things caused him to be obese. And because of the PTSD, alcoholism, and obesity, the veteran has sleep apnea. This veteran should claim sleep apnea secondary to PTSD. But he should say that PTSD caused sleep apnea and also PTSD caused alcoholism and obesity which in turn caused sleep apnea. Now, I’ve complicated this example quite a bit by mixing in PTSD and alcohol, but this is a fairly common situation.

That leads me to another point, if you are trying to use obesity as an intermediate step, you still have to line up solid medical evidence. Don’t think that obesity is a magic bullet, it’s not.

One last thing I should mention, if you are going to try to use obesity as an intermediate step you have to explicitly state that in some document that you send to the VA. Just because it says somewhere in your medical records that you are obese or lists your height and weight, or something like that, it’s not good enough to raise the issue of obesity as an intermediate step. You have to explicitly state it. My best advice is to put it on your claim form and put it in your lay statement. Both places, at a minimum. When you have to appeal a bad decision you’re in a much better place if you point to a document and say, see here where I told the VA I was making this claim.

As always I hope that helps. If you want me to help you with your claim, you can reach out to me through the links on this website.

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Date Entitlement Arose

Disability Claims /
Date Entitlement Arose

The date your entitlement to VA disability arose is one of the effective date rules that can cause a lot of confusion, both inside the VA and with veterans.

This phrase comes from the VA’s general regulation on effective dates which is 38 C.F.R § 3.400 and that regulation says an effective date will be “the date of receipt of the claim or the date entitlement arose, whichever is later.” There are exceptions to that general rule on effective dates which I’m not going to get into here because I want to focus on that one phrase “the date entitlement arose.”

Remember, the effective date for a disability determines when the VA starts paying disability. It makes sense that you shouldn’t receive disability before you are actually entitled to receive disability. That is essentially what the VA means by saying your effective date can be no earlier than the date your entitlement arose. Here’s an example:

Let’s say you file a claim for hearing loss and the VA sends you out for a C&P exam and that exam shows you don’t actually have any hearing loss. And for the sake of our example, let’s say you actually don’t have hearing loss. But while you’re waiting on the VA to make a decision, your hearing gets worse, and you convince the VA to give you another hearing exam which shows that you do have compensable hearing loss. In this situation, your effective date isn’t going to be the date you filed your claim because you didn’t have any hearing loss until sometime after you filed your claim.

So what is your effective date in that situation? It’s going to be the date your entitlement arose, which is the date you can show you first had compensable hearing loss. And in this example, I’ve created, that date is going to be hard to figure out. The VA is very likely going to go with the date of that second hearing exam as the effective date. But I think that’s a mistake. And this gets to a very common mistake the VA makes usually on supplemental claims where they assign an effective date as the date of a C&P exam. When they do this, the VA is basically saying your entitlement didn’t arise until a C&P examiner said you had the disability.

Again, this is wrong. It’s pretty obvious when you think about it. Have you ever had a medical problem start when you just happen to be in your doctor’s office? It’s absurd. You go to the doctor because you already have a problem. The Court of Appeals for Veterans Claims has acknowledged this by saying: “Entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.”

Note the use of the words entitlement and arise. The Court is sending a clear message to the VA to stop messing this up and instead of focusing on the exam, look for when the condition first manifested. Let’s go back to our hearing loss example. I would argue that the effective date is whenever your hearing got worse after that first hearing exam. If you can’t fix a specific date to that it this is where lay statements from you and your family and friends can make a big difference.

I hoped that helped. As usual, if you want me to help you with your VA claim you can reach out to me through the links on this website. I’m Al Walsh, a veteran who likes to help other veterans. Thanks for watching.

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VA’s all too common supplemental claim effective date error.

Disability Claims, Supplemental Claims /

I want to talk about one fairly common mistake the VA makes. This particular mistake usually plays out in the following way. A Veteran files a claim gets denied and files a supplemental claim within one year. That supplemental claim has a new medical opinion and the VA grants the Veterans claim. But, and here’s the mistake, the VA sets the effective date as the date of the medical opinion, or the date of the supplemental claim, not the date the initial claim was filed.

I think the VA is pretty much always wrong when they do this. Now I’ll never know what’s going through a particular rater’s head when they make a decision, but I think the mistake falls mostly into two categories. The first is that the rater wasn’t paying close enough attention for whatever reason. The second is that the rater misapplied one of the VA’s effective date rules and the VA is basically saying the date your entitlement arose was the date of the new medical opinion.

When this happens, the first thing you should do is slowly and carefully read the decision. More than once. Look for any reason the VA gave you for that effective date. They may not give a reason, so there might be nothing in there. But if they did give a reason, you need to know about it so you can deal with it.

Second, you are usually going to be able to fix this with a higher-level review. Make sure you file that within one year of the decision. Submit a written letter with your higher-level review form. That letter will contain your argument which explains why the VA was wrong. You should just have to explain that your claim was continuously pursued. What that means is you never let a year pass after a decision before you filed an appeal of some kind.

Higher-level reviewers from what I’ve seen, usually get this right and correct the error. But if they don’t, you can appeal to the Board of Veterans Appeals.

Ok so what if you’ve waited more than a year to deal with this mistake from the VA. Unfortunately, in that case, your only real option to fix that effective date is to file a CUE claim. CUE, if you don’t know, stands for clear and unmistakable error. Unlike most other things in the VA universe, a CUE claim is a one-shot deal and if you mess it up, that’s it. So, you should take CUE claims very seriously. I don’t want really want to get into CUE right now so I’ll stop there. But please do talk to someone before you ask the VA to review a decision based on CUE. Several someones would be even better.

I hope that was helpful. And as usual, if you want me to help you with your claim, you can reach out to me through the links on this page.

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What Counts as New and Relevant Evidence

Disability Claims /

When you file a supplemental claim, you have to include new and relevant evidence. I want to talk about different ways that it’s possible to do that. There are some obvious answers and some not-so-obvious answers.

The bar for new and relevant evidence is set pretty low. And it’s supposed to be. New evidence is anything that was not part of your C-File when the decision was made. And relevant evidence is evidence that has something to do with your specific claimed disability. Those are my definitions. The two terms, new and relevant don’t have a precise definition but I’ll say that I really haven’t seen veterans getting burned by that. The VA is pretty good about accepting evidence as new and relevant and moving on to a decision.

But let me give you some examples of things that won’t work. If you submit a copy of a medical record, a Dr.’s opinion, or anything else and there is already a copy of that exact thing in your C-File, the VA’s going to shut it down because that evidence is not new. If you submit a medical record about a totally unrelated medical condition, that evidence may be new, but it’s not relevant. So again the VA’s going to shut it down. My point with these is that new and relevant is a forgiving standard it is a standard.

So what are examples of things that count as new and relevant? One that I use a lot, with almost every supplemental claim, is a new lay statement. All you have to do is describe your current symptoms of the disability and the effect the disability has on your life. And while you’re doing that, make sure you talk about something that you haven’t mentioned to the VA before.

Another very common example is a new opinion from a Dr. This works even if the only thing that’s new is the opinion. By that I mean, the Dr. can look at all the old medical records that were in your C-File, and nothing else, and offer an opinion, and that counts as new and relevant.

New does not necessarily mean the evidence was created recently. If you find a medical record that’s 40 years old and is not in your C-File, that’s new and you can add it with your supplemental claim.

Now, do you need to submit the evidence with your supplemental claim? No. As long as you submit the evidence before the VA makes a decision on the supplemental claim then you’re ok.  But you don’t know when the VA will do that so don’t drag your feet if you take that approach. If you know there is new evidence in your C-File since that last decision, you don’t have to provide that again, just mention that it is in your C-File and also mention the date it was added. You can also use the duty to assist to ask the VA to get records from other hospitals.

In the past, I’ve mentioned challenging the credibility and qualifications of any VA examiner who’s performed a C&P exam. Once you do that, the VA has to get the examiner’s qualifications under its duty to assist and those qualifications are new and relevant evidence and can support a supplemental claim.

One quirk I should mention, when I talk about the last decision, I mean the last decision where new evidence was considered. For example, let’s say you file a claim, it gets denied, then you appeal with a higher-level review, and that also gets denied. Then you file a supplemental claim. Your window for new evidence goes back to the date of the decision on your claim because the VA is not able to consider any new evidence on a higher-level review.

I hope that last part wasn’t confusing. The main point is you have a lot of options for what counts as new and relevant evidence. I should add, that just because it might be easy to open a supplemental claim doesn’t mean you’ll win. You still want the best evidence you can possibly get.

I hope that was helpful. If you want me to help you with your claim, you can reach out to me through the links on this website.

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My Supplemental Claim Strategy

Disability Claims /

You may be thinking, it’s a supplemental claim, what’s there to strategize about? You get new and relevant evidence and you send it to the VA with the right form. That’s all there is to it. That certainly is the minimum requirement, but you can do more to help yourself.

Before I get into this, I want to say that my strategy for how I approach supplemental claims, and anything else I do, is constantly evolving. That’s a reality of life. We live in the real world where things are always changing and if we stick to a plan after it becomes irrelevant to the real world, we’re asking for trouble. Again this is how I approach supplemental claims now, but no strategy should be used blindly.

Step 1: You have to understand exactly why the VA denied your claim or rated you too low, or whatever the issue is. You have to know this, so you know what you need to prove. Then you know what new and relevant evidence you need to get to prove those things.

Step 2: Gather the new and relevant evidence which can be almost anything. Lay statements and medical opinions are the most common, but anything that is new and relevant and will help you counter the VA’s reason for its denial is fair game.

Step 3 is where I write the argument that I’m going to submit with the supplemental claim. The argument should list all the new evidence and explain why it’s relevant. Now, everything up to this point is pretty run-of-the-mill. But here is where you have to apply some judgment. You need to write something that is convincing, and you have to assume the rater will at best only skim whatever you’re going to write. That second part is a problem for folks, especially lawyers. We think people will be blown away by the power of our words, the light will shine down from above, and they will humbly acknowledge their errors. No, in reality, we usually lose people’s attention very quickly and need to plan for that.

So, know your audience. The rater isn’t going to read your angry screed about how awful the VA is. So leave that stuff out. You aren’t going to get much of their time and attention, use what little you have to highlight the most important parts of that new and relevant evidence and explain why that evidence means the rater should grant your claim. Focus on the biggest and most impactful things. That’s your best chance. I tend to focus on the facts and evidence. I mention some law but don’t hit the law very hard in a supplemental claim.

The other thing you want to put in your argument are things you need to say so you can appeal it later if you need to. Good examples of that are raising the issue of secondary service connection, particularly through intermediate conditions. A very common example of this is Sleep Apnea, secondary to PTSD with an intermediate condition of obesity. You need to say these things somewhere so that eventually if you have to can show the BVA or the Court you raised the issue and the VA ignored it.

Another thing I have started to almost always is to challenge the qualifications of every VA examiner in supplemental claims and invoke the VA’s duty to assist to make them produce the examiner’s qualification.

Step 4: Sometimes your argument will outrun your evidence. So go back and check that your new and relevant evidence actually does support all those things you wrote.

Step 5: file it.

Alright, the argument part of this, step 3, was the most in-depth. That’s appropriate. It’s your chance to persuade the VA they are wrong, be deliberate about it and use it wisely. I hope you found this helpful. If you want me to help you with your claim you can reach out to me through the links on this website.

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Filing Claims to Increase your VA Rating

Disability Claims /

What do you do when your service-connected disability has gotten worse and you believe the VA should increase your rating?

You can file for an increase but you have to use the right form or the VA will scratch your claim right off their enormous claims backlog to-do list.

I have to set this up properly because what I’m about to say won’t apply to every situation. And it’s frustrating that I have to do this because it’s just further proof that this entire VA process is so unnecessarily complicated.

Let’s say you have a service-connected disability and the last VA decision on that disability was made more than one year ago. In the eyes of the VA, this decision is final and you cannot appeal it anymore.

When your disability gets worse and you feel like you’ve crossed into a higher percentage rating category you can absolutely ask the VA to increase your rating. The way to do that is by filling out VA Form 21-526EZ. This is the same form that you use to file an initial claim. In section 4 on that form write your disability, write that this is a claim for increased compensation, and write the approximate date your disability began to get worse. It doesn’t have to give an exact date, month and year, or even just a year is fine.

As the instructions on the form point out, you will need medical or lay evidence that your disability has gotten worse. If you can’t afford to get the medical evidence, you can use lay evidence to make the VA give you a C&P exam.

That’s the right way to file for an increase. You may think you can ask for an increase by using the VA’s supplemental claim form 20-0995. You cannot.

I want to be very careful here because this can get confusing. If you have been granted service connection and your last decision was more than one year ago, use form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits). If you are still fighting just to even get service connection, then use form 20-0995 (Supplemental Claims) no matter when the last decision was, 4 months, 1 year, 10 years. Doesn’t matter, in that case, use the supplemental claim form.

Ok, I hope that wasn’t too confusing. If you want me to help you with your VA claim you can reach out to me through the links on this website.

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Are Higher-Level Reviews a Waste of Time?

Disability Claims /

I’m dealing with a higher-level review in a case I’m working on right now, and it’s one of those decisions where, it’s so bad, you think the higher-level review was a waste of time. Now I talk to veterans and other veterans advocates who think higher-level reviews are always a waste of time. I don’t put myself in that camp, but I got a pretty hard pull in that direction with that decision I read yesterday.

This isn’t the first time I’ve gone down this road. It’s a pretty normal human reaction when you get a higher-level review back, and it’s nothing but a copy and paste of the original decision. But as I wanted to talk a little bit more about my thought process and how I approach higher-level reviews. At least for now. My thoughts on this evolve all the time.

The first thing to think about is what are your options. If a higher-level review is on the table, so is a supplemental claim, and so is an appeal to the BVA. The second thing to think about is whether you need any new evidence to prove your claim. The answer to that is going to remove one of your options because if you are going to add new (and relevant) evidence, you can’t file a higher-level review, and if you aren’t adding new evidence, you can’t file a supplemental claim. Actually, you can file either one. When I say you can’t, what I really mean is the VA will reject them.

So if you don’t need new evidence, your options are higher-level review or appeal to the Board of Veterans Appeals. Here, the huge consideration is that an appeal to the Board will take at least one year. At least. For me, this is where the higher-level review becomes attractive. I am optimistic by nature, and I always think that I can very persuasively point to the controlling law, point to the evidence and the obvious errors, and the VA will do the right thing. I know some of you cynical veterans won’t believe it but, sometimes that works. Other times it doesn’t work at all. You just never know who that higher-level review is going to be and whether they even read what you send them.

But I just have a hard time sending a case to the BVA when I think there’s a chance to get a faster win for a Veteran. The other thing about deciding which of these options to take is, the Board isn’t perfect either. You never know what’s going to come out of a board decision, and once the Board has weighed in negatively on the facts of your case, that can be a harder challenge to get around.

It may help to think of this as a continuum. On one side, you have simple and obvious mistakes. On the other side, you have very technical legal mistakes. If there is anything on that simple and obvious side, I’m going to lean towards an HLR. A classic example is a duty to assist error. It’s very frustrating when you wait a year, and the Board kicks your claim all the way back to the beginning because the original decision had a duty to assist error. Another one is things the VA is supposed to put in the decision that they didn’t put in the decision. Lack of favorable findings is a common one there. I don’t like to take those issues to the Board because I’m always worried the Board is going to find that error and just kick it back without ever dealing with the other, more serious errors.

So I’m still in the HLRs are not a waste of time, at least for some situations. I hope that helps you think through your own decisions on a higher-level review. If you want me to help you with your claim, feel free to set up a call with me through my website.

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