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How To Appeal A Denial  

VAWatchdog estimates that over 50% of all initial applications for benefits will be denied. It doesn't matter if the claim is well grounded or not. It is likely that your claim will require an appeal.



VAWatchdog advises that veterans must expect that their benefit application will be denied and that the veteran should be prepared to appeal. This is a routine and ordinary part of the process.

Denial of the initial claim  should not cause the veteran undue anxiety. Most claims are won on appeal.

In every award (denial of award) letter there is information about why the veteran was denied. Now is the time to carefully read through that. You may want to read it a number of times. The information contained in the letter may be full of errors itself and it won't always be easy to understand.



Jim's Mailbag 

Jim;

In thinking ahead, I wanted to be prepared when the VA denies either all or part of my claim. Appealing is a time consuming process. I understand that there is a "reconsideration" process, that might be more useful.  Is this the case?  I am sure there are examples on the website, sorry for asking this as a duplicate question.  Thanks.

Reply;

I don't recommend reconsideration. When VA sends you a denial, the claim has been adjudicated by a Ratings Veterans Service Representative (RVSR). The RVSR is at the top of the food chain at that level of decision makers. The claim was perfected (prepared for the RVSR) by a Veterans Service Representative (VSR).

To request reconsideration sends your folder right back to them. Unless you have *new* evidence that hasn't been reviewed previously and is *material* to the claim and *not repetitive*, the reconsideration will very likely give you the same denial for the same reasons.

The next level up the chain of command is the Decision Review Officer Process (DRO). The DRO is a more senior person who (at least in theory) is better trained and more experienced than the RVSR. The DRO Process assures you of a de novo review. The DRO is not allowed to be a person who has had any dealings with your claim earlier so you have a fresh perspective. The DRO has authority to agree with the original decision, modify a part or parts of the earlier decision or throw out the earlier decision for something completely new and different.

We have had great luck with the DRO Process. I believe that the DRO is often the first person who will actually read the claim folder front to back. I do not trust that the RVSR does that since that person is on a production quota with a bonus tied to volumes of claims completed.

We recommend that most denied veterans retain an attorney, even for the relatively simple DRO Process appeal. This is a change in my thinking. Prior to 2007 veterans couldn't hire a lawyer to represent them to a DRO Process appeal. Now that the laws changed and there are lawyers with plenty of skill and experience, I'm finding it to be an advantage to just proceed right to a good lawyer rather than messing around with what can be a very complex and unfriendly process.

This depends on the veteran. If the vet feels good about arguing his own appeal, then he or she should dive right in. If the veteran has any doubts, it's time to talk with a lawyer.

Do your best to decipher the reasoning VA offers you for the denial. That may be the very problem you need to correct to perfect your appeal.

Or, there may be a lack of evidence that VA overlooked. The rater may not have understood your claim as well as he or she should have.

In any case, don't get angry, get analytical and smart. Anger wastes time and you have deadlines to meet.

Once you've read and you understand the reasons for denial, you now must think of how to explain your appeal clearly.

We'll use the example of evidence that wasn't considered or seems to have been overlooked in the decision process.

Let's say that your claim was for a knee injury that occurred during active duty. You were treated at a clinic and then a hospital. Then your knee continued to bother you for the duration of your active duty service. You had 2 more clinic sick calls prior to discharge.

In the denial letter VA may have told you that; "There is no evidence of a knee injury occurring during your service." Don't worry about that. It happens all the time. Overlooking or ignoring information that you're sure is in your record is common at your VA.

(Are you sure the information is in your record? Have you retrieved a copy of your records? If not, as you file your appeal you should also seek out a copy of every document that you are able to find.)

Within a month of receiving the denial letter, you should proceed to formally appealing it. This is easy and you don't need any help to do it. It's as simple as using the template below and writing a letter to the Regional Office. 

The Steps To An Appeal   

* Veteran files a claim per the usual way.

* The usual process occurs; C & P exam, letters from VA, etc. This may take 12 to 24 months.

* The veteran receives the letter from VA that denies the benefit.

* The veteran then chooses how to appeal. There is a one year time limit.

* The veteran may then retain a lawyer, tell VA that a DRO Process appeal is desired or seek a BVA appeal.

* If DRO Process is the path, the appeal is handled at the Regional Office.

* If BVA is desired, the claim will be "perfected" by the RO prior to being sent to BVA. This may equal DRO Process.

* If BVA claim is denied, the veteran may proceed to the CAVC.

* VAWatchdog does not recommend reconsideration.

* VAWatchdog recommends that almost all appeals be handed over to an expert attorney.

The Notice of Disagreement (NOD) Letter   


DATE

VIA Certified Mail, RRR

VARO Address

Reference (Your Name, SSN and any reference numbers on the award [denial] letter)

Dear Sir/Madame;

I am in receipt of your letter of DATE. In that letter you have denied my application for a disability rating I claimed DATE.

Please accept this letter as my Notice of Disagreement (NOD) with your decision.

My reason for this NOD is (briefly describe).

I request a Decision Review Officer Process (DRO) appeal and I request a personal hearing.

Respectfully,

YOUR NAME
ADDRESS
Etc.


Read: How to effectively communicate with VA.

It Can Be Done: Suing The Veterans Administration
Jeffrey A. Milman, Esq. Founding Partner at Hodes-Milman-Lieback

Note that the appeal letter doesn't go into great detail. That can come later. There is no anger expressed. This is a business letter and it's counterproductive to believe that you should tell them all that's on your mind.

You will soon receive a notice that your appeal is in process. Now you have to decide to DIY retain a lawyer to represent you.

VAWatchdog urges most veterans to retain a veterans attorney to represent them for almost every appeal. Learn how to hire an attorney by clicking here.

The DRO Process  

Veterans who are confident in their ability to appeal their own claim to the DRO Process at their VARO are often successful.

Read more about the DRO Process by clicking here.



We urge vets to talk with an attorney. It doesn't cost anything to discover your options.

VAWatchdog does not recommend that any veteran proceed beyond the DRO Process unless he/she is represented by a skilled attorney. The BVA is not the venue for veterans to try to win their case without professional representation.