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.