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.

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.

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.

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.

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.

In a previous video, I talked about the three things you have to prove in your VA disability claim. The third of those three things that you have to prove, there’s a connection between your current disability and your service, usually through an injury or an illness or some other event. The VA calls this service connection. You may also hear some people call it a nexus or a medical nexus. It’s important to remember that you have the obligation to prove this as the veteran making the claim. And it’s also important to realize that the lack of service connection is one of the main reasons the VA denies claims for disability benefits. So it’s important to get this right now.

I’m going to be talking about service connection as it relates to direct service connection, aggravation, and secondary conditions. There are other issues related to service connection that I won’t get into today with this video. But to get right to the point, I’ll say that nine times out of 10, if not more often than that, in order to prove a service connection, you are going to need a doctor to write an opinion letter that says it is at least as likely as not that your service caused your disability.

Now that phrase, “at least as likely as not” is critical, it is the minimum level of certainty that your doctor needs to have in order for the VA to grant your service connection. It doesn’t have to be more than that. It’d be great if your doctor is willing to say it’s likely or very likely. I don’t see those often, but, those are nice. At a minimum, your doctor needs to say, it’s at least as likely as not that your service caused the disability. Now that likely language is very important. The VA often denies claims when the medical opinion says it’s possible that the service caused the disability or the service may have caused the disability. The officer deciding the claim. We’ll often say that’s too speculative as far as opinions go. So the likeliness language is important. Keep that in mind when you talk to your doctor about the opinion that you need

But let me step back a little bit. So why is a medical opinion important in the first place? The answer revolves around the complicated nature of medical causation. What specifically causes a medical condition. You know, even doctors are hesitant to say with certainty that this thing or this event caused a medical condition or disability. Because doctors are so uncertain, the VA is just frankly, not going to take your word for it.

Take an example like migraines, for instance. So if you suffer from migraines, and you can link it to some very specific things that happened in your service. The VA is still not just going to take your word for it. They’re going to need a doctor to say that these, those events in your service are the reason you have migraines today, or rather, it is at least as likely as not, those are the reasons you still have migraines today. Similar for say, joint issues. You can probably point to a long list of injuries you suffered in service. You’re running every day, jumping, you know, all sorts of things. The military is hard on the body, and everybody knows that, but you walk into the VA and showing, you know, the long list of times that you went to sick call, it’s not good enough. You need a doctor to say it’s at least as likely as not that all of these injuries caused the current joint issues today.

So, just keep that in mind. There are other issues with service connection. And like I said, I’m not going to get into those today, but those are things like presumptive conditions around exposure to agent orange or service connection for chronic medical conditions. And obviously I can go into a longer video about aggravation and secondary service connection, but I’ll save those for other videos later. The main thing right now, and it’s the most important thing for the vast majority of VA disability claims is that you have to get your doctor to say that it is at least as likely as not that your service caused your disability. That’s the main point. And as always, if you’re struggling with the VA and you’d like some help send me an email, a text, give me a call. I’m happy to see if maybe I can help you out.

In a previous video, I talked about the three things you have to prove your VA disability claim. The second of those things is you have to prove that you experienced an injury or an illness in your service or an aggravation of a previous injury or illness. In this video, I want to expand on that a little bit and talk about what the evidence will look like to prove that.

Once again, medical records are the go-to record here. If you can show that you were treated in a military hospital, or really any hospital, while you were in the service for a specific injury or illness, that’s probably all you’re going to need. But you probably didn’t always go to sick call. I remember what it was, like, suck it up and drive on. The result is that. Now when you need those records,, they may well not exist. But not all is lost.

You can also submit a lay statement, which is a written statement from you that describes in as much detail as possible. What happened and when it happened. Write all of the facts and circumstances around it and also talk about your symptoms. You really got to go into detail here. Talk about, you know, the pain, lack of mobility you experienced when the thing happened and how your symptomes tracked over time. It’s very important to talk through the consistency of those symptoms in this statement. This is not the time to be tough. You know, I’m certainly not asking you to lie or embellish, but you need to be accurate. The VA needs to know exactly what this thing feels like. Exactly what your symptoms are.

You should also try and get statements from other veterans who witnessed the event happened. If it’s a mental health issue, you can get statements from friends and family who knew you before the incident happened and can describe a change in your personality, mood, temper, everything. You should also try and get your service records. So here I’m talking about anything that can help corroborate an injury or an illness. Things like orders, proving you were on a deployment. There’s usually lots of paperwork to show you were on a deployment. If it’s a jump injury, get your jump log, you know, all sorts of things like that.

Now, another thing to keep in mind when proving that you had an in-service injury or illness is your entrance physical. So if you recall, when you went to MEPs before you joined the military and you took that physical, the folks that gave you that physical, we’re supposed to document make a note of anything that you had at that time, that was preexisting. So if they didn’t note something and you have that something now, then the VA is obligated to assume that you were in a sound condition when you joined. Now, there’s an exception to that. If the VA can show clear and unmistakable evidence that you, that you had a preexisting injury, they can get around this presumption of soundness. But, for the most part, if it’s not in your entrance examination, and then you’re usually good to go in terms of proving that you were, you didn’t have it when you joined.

But even if you do have a preexisting condition, not all is lost. Remember it’s not just about experiencing an injury or illness and service, it can also be about, aggravating, a preexisting injury or illness. So again, all the same things help establish that, your statement from friends and family and so on.

If you’re struggling with the VA and would like some help, give me an email call, text, whatever works for you. I’ll see if I can help you out.

In a previous video, I talked about the three things you have to prove in your VA disability claim. Now the first of those three things is that you have to prove you have a disability right now. This is what the VA calls a current disability. So in this video, I want to expand on that a little bit and talk about what you need to do to prove you have a current disability.

The short answer is you’re going to need competent evidence that you’re currently experiencing some type of injury or illness or disease. Most of the time, this is going to require medical evidence. And unless you went to medical school, the VA is not going to consider you competent enough to diagnose yourself with a specific medical condition. You’ll need to be able to point to somewhere in your medical records or in an opinion from a doctor that says you have the disability that you say you have.

And that’s what the VA means by competent. So if you have something that you believe is a disability, but don’t have the medical evidence to prove it, you have a couple of options. The first thing you can do is make an appointment with your doctor, go in and see them. Describe the symptoms you’re experiencing and see if he or she will diagnose you. If you don’t have a doctor, or if you don’t have insurance, you can roll in VA healthcare. In fact, if you don’t have insurance, you should enroll in VA healthcare as an aside. Once you’re in the VA system, you can see your VA primary care provider about that issue.

Now, if, if neither of those two things is an option, there’s, there’s still another way. And it goes back to this idea of competence. Just because you are probably not competent enough to diagnose yourself, doesn’t mean you’re incompetent in all respects. You are perfectly competent to describe those things that don’t require specialized training. For example, if it’s a TBI situation, you are perfectly competent to describe your symptoms such as your persistent headaches. You are also perfectly competent to describe the situations around what you believe caused your injury or your illness.

When you submit your claim to the VA, you can provide a lay statement where you described these symptoms, describe the injury or the event or the illness that you believe caused those symptoms. Now, the VA has to consider those statements and you’ll likely trigger the VA’s obligation to assist you by providing you a medical examination.

So those are the things you can do to prove you have a current disability. If you’re struggling with the VA and you’d like some help, give me a call or a text, and I’ll see if I can help you out. Links to contact me are in the description below this video.