The purpose of this guide is to assist you, the veteran,
dependent or survivor, in presenting your claim in the best way possible to the
U.S. Department of Veterans Affairs (VA). To accomplish this, it is best that
you work with a trained veterans representative.
This guide mainly
focuses on the VA service-connected disability compensation program. This
program makes monthly payments to veterans with disabilities related to their
military service. These payments are intended to make up for the lost wages
that the disability causes.
Details about other VA
programs like health care, education benefits, non-service-connected disability
pensions, insurance or home loans are not explained in this guide. However, the
description in this guide of the method of gathering evidence to present a
compensation claim and of the process followed by the VA in compensation claims
generally applies to all claims at the VA. Other resources are available to
help understand other VA programs and to learn more details of the compensation
program.
Not all of the tips
given here fit every case. The tips described below, however, should be
followed unless you hear a very convincing argument not to.
It is a good idea to get a representative to help you
present your claim to the VA. VA laws, regulations and procedures are very
complicated and time-consuming. It can be frustrating to make sense by yourself
of how the VA works.
Because there is a
legal limit on when you can pay an attorney to represent you at the VA, you
will probably not be able to get a lawyer to help you unless the lawyer is
willing to handle your case pro bono (free of charge). If the Board of
Veterans’ Appeals denied your appeal within the past year, you can hire and pay
an attorney. (For more on getting a lawyer, see last page.) Most veterans rely
on one of the veterans service organizations or state
or county veterans service agencies.
No matter who you
select to represent you, it is important that you be personally involved in
your case and make certain that everything that should be done,
is done.
Although it can be a
difficult task, shop around for the best representative. Talk to the
prospective representative; ask if there are any limits on their service; get a
feel for the person who will be working for you before
you sign a power of attorney appointing the person as your representative.
•
When
to Apply: You should notify the VA of the benefits you want at the earliest
possible time. From anywhere in the
Warning: Do not be discouraged by a VA employee who says you are not
entitled to the benefits. Put your claim in writing and insist on a written
reply from the VA.
•
How
to Apply: To help you apply and remember important deadlines, use the Worksheet
provided. To apply, you do not need to go to the VA or get the
official VA form. Just send the VA a letter. This is called an informal claim
and will count as an application (although you will eventually be required to
fill out some VA forms). If you have not heard back from the VA within a month
you should call to confirm that your application has been received.
•
What
to Apply For: Be clear about what you are applying
for. If you have several health problems, list each of them and their impact on
your daily activities. Work with your representative to be specific about the
disability(s) you list.
If your application lays out a specific health problem, the
VA should schedule you for an examination by a doctor at a VA hospital. This
exam should be to find out if your current condition is related to your
military service and to find out how serious your condition is.
One strategy to
consider before the VA exam is to get a private exam first. Your representative
can give you the official examination procedures used by the VA doctors. Ask
your own doctor to follow these procedures to be sure to get a detailed report.
Present the private report to the VA Regional Office; it might decide that a VA
exam is not necessary. If you do have to have a VA exam, give a copy of the
private report to the VA doctor. It is very important to have the VA doctor agree
that your medical problem exists and record when the condition first appeared.
The VA may reimburse
some of the cost of traveling to a VA exam.
To win VA benefits, you must have convincing reports or
documents—some kind of evidence—to support your application. Collecting good
evidence and presenting it properly to the VA are the keys to winning. These
are also the most time-consuming chores you and your representative will have
to do.
Before you collect
evidence, be sure you know what is relevant to your claim. Review the VA
regulations with your representative so you will know what is important to
provide and what is unnecessary. For example, if you want to prove your present
condition is related to problems you had on active duty ten years ago, you need
to show three things: (1) you have a current medical problem, (2) you had this
same medical problem in service, and (3) you continued to have this problem
during the ten years that have passed since your release from active duty. You
cannot skip over one of these factors and expect the VA to grant your claim.
Other times, you only may need to show that your condition began within one
year of your release.
Also, if you have a 10
percent evaluation and think you should get more, review the VA Schedule for
Rating Disabilities so you will know exactly what symptoms are necessary to get
a higher evaluation. Your representative will have this Schedule or you can
find it in a public library (ask for Title 38, Code of Federal Regulations,
Part 4).
Even though the VA may
try to get some of your records, it is important that you and your
representative also get the records. Do not assume the VA will get all the
records that are important.
The VA may contact you
for evidence or for permission to write to your doctor for your medical
records. Your response to any VA request for evidence should be made only after
consulting with your representative.
The following records
are some of those you and your representative may need to get.
•
VA
Records
You have a right to a free copy of your entire VA file. You
should exercise this right so that you will know what records or decisions have
been made about you and to make sure the VA records are accurate. Write a
letter that says: “I am exercising my rights under the Privacy Act of 1974 to
obtain a free copy of all my VA records.” Send that letter to the VA Regional
Office holding your claims file and to each VA Medical Center that treated you.
•
Military
Personnel Records
Get a free set of your complete military personnel records.
Request military records yourself (or through your representative) directly
from the National Personnel Records Center in St. Louis using a Standard Form
180, Request Pertaining to Military Records. This form is available from your
representative or any VA office. Other military records may be important such
as records documenting your combat experiences in
•
Military
Medical Records
Evidence of treatment in a military hospital is the best way
to show that the disease or injury began in service. If you were seen at sick
call or treated as an in-patient or out-patient at a military hospital, state
you want those records and, if possible, include the name of the unit you were
attached to when seen at sick call (and the year) and the name of the hospital
(and the year) and the type of medical treatment you received.
•
Private
Medical Records
If you were hospitalized in a private, non-VA hospital, or
obtained treatment from a private doctor or clinic, the VA may want to see
those records. You can wait for the VA to get them or you can ask for copies
yourself. You may have to pay a fee to get the records.
•
Medical
Research
Sometimes no treatment records are available. If you simply
tell the VA that in your opinion your current problem is related to your
military service, the VA is likely to deny your claim. Sometimes a medical
textbook can describe how your original in-service problem could turn into your
current problem. Referring to such a textbook can force the VA to look more
carefully at your claim. Research on medical conditions can be done through the
nearest public library, medical school library or library at the nearest VA
Medical Center, VARO or private hospital.
You do not help yourself if you simply dump a wad of loose
records on the VA. Organize the records and explain their significance in a
letter you and your representative prepare together. The material submitted to
the VA should be the evidence you and your representative have obtained which
is relevant to your case. You must have a neatly typed (or really neatly
handwritten) statement of what the evidence shows and why it supports your
claim.
A typical statement
lays out the important facts of your case in a clear fashion and then argues
how the law or the VA regulations apply to these facts. The statement should
also argue against any reasons the VA might give for denying your claim, and
argue that these reasons are not valid.
You almost always want a hearing at the VA Regional Office
if it denies your claim. The hearing will be before an official (the hearing
officer) who has not been involved with your case. A hearing gives you and your
representative the opportunity to address the reasons given by the VA in its
denial letter. In almost 40 percent of cases considered by a hearing officer,
the benefits are granted. If you have nothing to add or if your representative
has a good reason for not having a hearing, it may not be worth taking the time
to have one.
If the VA Regional Office (VARO) says your disability is not
service-connected or if the percentage of disability is lower than what you
think is fair, or if the VARO otherwise turns you down, you have the right to
appeal to the Board of Veterans’ Appeals (BVA).
The first step in making your appeal is to send the VARO a
“Notice of Disagreement” (NOD). A Notice of Disagreement is a letter saying
that you “disagree” with the denial. Be sure to include in your NOD, the date
of the VA’s denial letter and be sure to list the benefits you are still
seeking.
In response to the Notice of Disagreement, you will get a
“Statement of the Case” (SOC) from the VARO. This will repeat the reasons
stated in the VA’s denial letter why your claim was denied and will recite the
relevant VA regulations.
Once you get the SOC,
you have two options. First, if you think that you can overcome the reason for
the denial by getting more evidence or by better explaining things to the VARO,
you should hold off going to the Board of Veterans’ Appeals until you have
tried again at the VARO. This should be done with the help of your
representative who can help you do this without losing your right to eventually
go to the BVA.
Second,
if nothing further can be done at the VARO, you should complete the process of
appealing to the BVA by filling out a VA Form 9, “Appeal to Board Veterans’
Appeals,” which is usually sent with the Statement of the Case.
Deadline: You have 60 days from the date on the SOC to file
the VA Form 9 OR you have the remainder of the one year from the date the VA
first denied your application. Whichever deadline is later applies.
An Appeal to the BVA is a statement on a VA Form 9 (or in a
letter) explaining what is wrong with the VARO decision and why your claim
should be granted. You mail it to the VARO. Your representative can help you
with this form.
Request Hearing: The VA Form 9 asks if you wish to appear at a hearing at the
BVA. You almost always want a formal hearing where you appear in person to
present your case to the BVA. If you do not want to appear in person or cannot,
you will have an “informal” hearing which is only a review of your VA claims
file and any other papers you submit.
If you want a hearing, you must decide the location of the hearing:
(1) whether
to go to
(2) whether
to wait for a travel Board panel of the BVA to come to your VARO.
A travel BVA hearing is
before a member of the BVA who travels from
The first thing to remember about your
case at the Board of Veterans’ Appeals (BVA) is that you should not be pushed
into having a hearing before you are ready. If you need a postponement
of the hearing, notify the BVA as soon as possible.
You should also be sure
that your representative has thoroughly prepared your case before the hearing.
Discuss your case with your representative well in advance of the hearing. Ask
to see all statements written by your representative and other documents before
they are submitted.
At a hearing you can
expect your representative to make an opening summary of your case and then to
ask you a series of questions to highlight the important facts. Following that,
the BVA member may ask you questions and then your representative should make a
closing statement.
About 20 percent of persons win their appeal at the BVA.
Winning at the BVA can mean different things: (1) If
you applied to show your disability was related to your military service,
winning can mean the VA agrees your disability is service connected. Getting
the VA to agree your disability is service connected does NOT necessarily mean
you will start getting money. The VARO still must decide what percentage of
disability you should have assigned to your condition. If you disagree with
that decision, you have the right to appeal it to the BVA, following the same
procedures as before. (2) If you applied to have your disability rating
increased, winning can mean increased monthly payments.
Money for you: If you are successful, you are not done with
the VA. You still need to start getting payments and keep getting them
regularly. Watch out to make sure that you are getting the right amount. (See
rates in box on page 5.) If you believe you are being paid less than you should
be (or more), ask the VA for a “paid and due statement” to confirm the accuracy
of the amount it is sending. You should notify the VA if it is not paying you
the correct amount. If the VA discovers that it overpaid you, it can require that
you repay that amount.
Disability Compensation -
GO HERE for VA Compensation tables:
http://www.vba.va.gov/bln/21/Rates/comp01.htm
Deadline: The Notice of Disagreement must be mailed to the
VARO within one year of the denial of your claim or you cannot appeal. (You
still can reopen your claim if you miss this deadline but you lose an earlier
“effective date” for an award of back benefits.)
If you lose at the BVA, you have four choices: (1) do
nothing; (2) appeal to the U.S. Court of Veterans Appeals; (3) ask the BVA to
reconsider its decision; (4) reopen your case at the VARO.
•
Do
nothing
If your representative agrees that you just did not have
enough evidence to win and that you cannot get any good evidence, it may not be
worth your time to pursue an appeal.
•
Appeal
to court
If your representative believes the BVA did not properly
address the evidence in favor of your claim or did not make sure all the
evidence was obtained or just thinks the BVA was wrong, consider filing an
appeal to the U.S. Court of Veterans Appeals.
To appeal to the court,
send your name, address, phone number, and the date of the BVA decision, to:
Clerk of the Court
U.S. Court of Veterans Appeals
625
To help you decide if an appeal to the court is a good idea,
ask the Clerk of the Court (1-800-869-8654) to send you a list of persons who
practice at the court. Review your case with a few people on that list. More
help is available; see last page.
•
Ask
BVA to reconsider
If you can spot an “obvious error of fact or law” in the BVA’s decision, ask it to reconsider its denial. Successful
reconsiderations are extremely rare.
•
Reopen
your case
If you can get additional evidence which is
both new and material (that is to say it is really relevant), reopen your claim
at the VARO and start all over again. Of course, if your condition gets worse
and you think a higher percentage of disability is called for, tell the VARO
that.
NOTE: Whether the VA agrees to pay you
benefits or not, don’t forget that you also might have a good claim for Social
Security disability benefits. Contact the nearest SSA office to file a claim.
•
Protection
from cuts. There are rules that require the VA to give you 60 days advance
notice and a chance for a hearing before reducing your benefits. Work with your
representative to exercise your rights. To postpone a reduction, you must
request (in writing) a hearing within 30 days of the notice of the pending cut.
•
If
you cannot work. If you are rated less than 100 percent disabled, but your
disability keeps you from getting or keeping a job, you should apply for
increased compensation based on unemployability. Ask the VA for a VA Form
21-8940.
Important: Keep a copy of everything you mail to the VA and
keep everything you receive from the VA.
Keep in touch: You should talk to your representative at
least once per month while your claim is pending. Whenever you get mail from
the VA, call your representative to make sure s/he has gotten it and that you
both understand it.
Ask questions: If you
do not understand something about your case, ask about it. Don’t
worry about asking a stupid question—your representative works for you
and part of his or her job is making sure that you understand everything.
Be insistent: If
something needs to be done, insist that it happen. Do not be talked out of
anything unless you understand what is going on. Insist that your
representative:
•
discuss
your case with you;
•
be
familiar with your VA file;
•
be
able and willing to discuss what the VA regulations require to win your case
and what evidence is needed to win;
•
discuss
your case in-depth well before any hearing;
•
submit a written statement to the VA before your hearing. S/he
should let you read the statement before it is submitted.
If your representative will not do these things, you should
find another one.
Important: It is important in answering VA requests to completely
explain what you are and are not sending them. If they ask for documents they
already have, tell them that. If you and your representative cannot get all of
the evidence the VA is requesting, explain why you cannot get the evidence and
why VA already has enough evidence to allow your claim.
The purpose of this worksheet is to help you keep track of
important deadlines and to help guide you in working on your claim.
WARNING: The description of the VA claims
and appeals process contained in this self help guide is not intended to
substitute for advice from a competent representative. Important laws, rules or
procedures may have changed since this guide was published. Consult a
representative for the latest information.
Keep a notebook and file of you claims, info and all paperwork you
compile and receive.
All
letters sent should always be accompanied with a request for signature receipt
and attached to your copy for further reference.
Your Name
_________________________________
VA Claim #: _________________________________
SSN: _______________________________________
Address, Phone of VARO handling your case
(The nearest VARO can usually be reached by calling 1-800-827-1000):
___________________________________________
___________________________________________
Representative’s
name:
_________________________
organization: _________________________________
address: ____________________________________
___________________________________________
phone: ______________________________________
date signed Power of Attorney: ___________________
APPLICATION
date of first contact with VA: _____________________
name of VA employee: __________________________
date formal application filed: _______________________
VA INFORMATION
REQUESTS
date of 1st VA request: ___________________________
date you mailed to VA: ___________________________
date scheduled for VA medical exam: ________________
name of examiner: _______________________________
Did the examiner have your C-file on hand?
____________
date scheduled for VARO hearing: ___________________
date of VARO denial: _____________________________
AFTER VARO DENIAL
deadline to file Notice of Disagreement (add one year to date of VA denial) =
date you filed NOD with VARO: ______________________
date VA mailed Statement of Case: _____________________
date VA mailed Supplemental SOC: _____________________
deadline to file appeal, VAF 9: (whichever comes later:)
60 days from date VA mailed SOC = OR _________________
one year from date of VA denial = ________________________
BVA PROCEEDINGS
date you mailed appeal, VAF 9, to VARO: __________________
date pre-hearing appointment with rep: ______________________
location of BVA hearing: _________________________________
date of hearing before BVA: ______________________________
date of BVA decision: BVA docket #: _________________________
BVA action: _____ denial _____ allowance ____ remand
AFTER BVA
PROCEEDINGS
deadline to file Notice of Appeal with U.S.
Court of Veterans Appeals
(120 days from date of the BVA decision) = ________________
date you mailed appeal: ________________
CVA docket #: __________________
Once your file has been transferred to the BVA, you can call
the BVA (202-565-5436) to find out whether your case in undergoing active
consideration at the BVA. If you are told the case is in “quality review,” you
should receive a decision within a few days. The BVA allows less than 20
percent of appeals, denies about 30 percent, and returns about 50 percent to
the VARO for it to collect more information or to conduct another exam.
As of 1996, it was
taking the BVA about two years to make a decision. If you are about to lose
your home or are terminally ill, the BVA can consider your case before others.
Work with your representative to document the need for the BVA to advance your
case on its docket.
The following publications are a few of the resources that
may give you additional help with your claim:
•
Veterans
Benefits Manual and Supplement—written for representative; details on
filing, presenting claims for full range of VA benefits; offered by National
Veterans Legal Services Program; to order, call 202-265-8305.
•
Title
38, Code of Federal Regulations—the official set of VA regulations; available
from the Government Printing Office; to order, call 202-512-1800.
Veterans Appeals Reporter—contains decisions of Court of
Veterans Appeals; published by West Publishing Co.; available at nearest VARO.
nearest VARO.
There are limits on when you can pay a lawyer to help you
with a VA claim. Generally, you can hire a lawyer only after the BVA has
decided your claim. Then you have only one year to hire a lawyer. Many lawyers
work on a contingency basis that means you do not have to pay them a fee up
front and if you do not win benefits, you will not have to pay a fee.
There are no limits on
when someone else (a so-called third party) can use his or her own money to
hire and pay a lawyer to represent you. This third party cannot be a family
member who may benefit from your claim. If you use a third party to hire a
lawyer, the lawyer can represent you at the beginning of a claim. Also, there
are no limits on hiring a lawyer when the VA is coming after you because of a
home loan guarantee debt.
Some private lawyers
and some legal aid or legal services offices provide representation free of
charge at all stages of a VA claim.
There is an
organization of attorneys and non-attorneys who regularly practice before the Court
of Veterans Appeals. Its members are available to represent you at the Court
or, through a third party contract, before a VARO or the BVA. For a list of
these members, contact: Nat’l Organization of Veterans’ Advocates.
If no private
practitioners are willing to represent you at the Court of Veterans Appeals, it
might be possible to obtain pro bono representation through the Veterans Pro
Bono Consortion. The Court will send you information about this opportunity. It
is available only to a limited number of persons who meet income guidelines.
This guide was originally produced by
the VVA however it has been removed from the web.
I have re-done it and believe it can be a help
to veterans about to file claims. If there are any problems with this please
let me know.
THIS SELF-HELP GUIDE IS MEANT TO BE "JUST THAT" a Guide and reference to help you, "The Veteran" in keeping a comprehensive record of your information to win your claims.
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