Veterans Benefits Blog

VA Form 526 is used to initiate a new claim. Use this form if you wish to file a new claim for disability or pension benefits. VA Form 526b is also used to file claims for increased ratings or to reopen a previously denied claim. Be sure to follow the directions closely. Claims for VA benefits are initially made in writing to your VA Regional Office (“RO”). You can contact your local RO to obtain forms for filing your claim by calling 1-800-827-1000. After developing your case, the RO will send you a decision, called a “rating decision.”

The following information is provided as a general guideline. Providing the information listed below is not a guarantee that you will win your case, however, if VA doesn’t have this evidence, it is likely that your claim will be denied.

Service connection: In order to have the best chance of getting a claim for service connection granted, you should make sure VA has the following evidence: (1) medical evidence (in writing from a doctor) saying what your current disability is, (2) evidence (from yourself or your service records) showing that you had some sort of injury in service, or medical evidence that you contracted a disease or that your condition got permanently worse in service, and (3) evidence in writing from a doctor that the condition you now have began in service, or, if it began before service, that it was permanently aggravated during service.

If you are applying for service connection for post-traumatic stress disorder (PTSD), a veteran will now be able to establish the occurrence of an in-service stressor through his or her own testimony, provided that: (1) the Veteran is diagnosed with PTSD; (2) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted confirms that the claimed stressor is adequate to support a PTSD diagnosis; (3) the Veteran’s symptoms are related to the claimed stressor; and (4) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary.

Reopening a claim: If you have made a claim for service connection for a disability and the claim was denied, but not appealed, the law requires that you “reopen” your claim before VA will consider it again. In order to reopen the claim, you must first submit “new and material” evidence. Basically, this means you must look at the reasons the VA denied the claim the first time, and submit some new evidence that fixes the problem. For example, if your claim was denied the first time because you had no evidence that your current condition was related to service, you will need to submit some evidence that does link your condition to service.

Increased rating: If your claim is for entitlement to an increased rating, you can learn what criteria will be used to assign your rating, by looking at 38 C.F.R. (Code of Federal Regulations) Part 4. (This should be available at your local library or courthouse). If you look at a rating decision, there will be a four-digit code listed next to each condition. These codes, called “Diagnostic Codes” are listed in the CFR. You can see there what you need to show in order to get a higher rating for your condition. The best thing to do to prove your case is to document (preferably through medical evidence) that you have the symptoms listed for the higher rating.

Total disability due to individual unemployability: To receive unemployment benefits from VA, you must have evidence that your service-connected disabilities, by themselves, make it so that you can’t work or that even if you can work a bit, you can’t do so in such a way as to make income to meet the poverty line. The best way to document this is to have your doctor explain that you can’t work as a result of your service-connected disabilities by themselves. Just showing that you can’t work or that you can’t find work is not enough to receive this benefit.

Brenda Keener is a paralegal with Goodman Allen & Filetti.

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When a veteran is not satisfied with the decision reached by the Regional Office (RO), he/she must file a Notice of Disagreement (NOD). The RO then offers two options for appeal, review by a Decision Review Officer (DRO) or the traditional appeal process. The RO will issue a letter outlining these two options. You have 60 days from the date of the letter to respond with your selection. If you do not respond, your appeal will be sent through the traditional process. In either process, the reviewer can (1) award a full grant of benefits, (2) award a partial grant of benefits, or (3) confirm the original RO decision.

Traditional Appeals Process
This process involves a review of the claims file and any additional information that is submitted. The reviewer can hold a formal hearing with the veteran to gather additional evidence. However, he is only allowed to change the original decision in two instances, (1) new evidence has been submitted, or (2) the original decision was based on clear and unmistakable error. This means the original reviewer made a mistake. The decision can also be changed based on a difference of opinion, BUT the new decision must be approved by the Central Office.

The RO will then issue a Statement of the Case (SOC) explaining the decision. In order to continue to appeal to the Board of Veterans Appeals, you must return the enclosed Form 9 with 60 days of the mailing of the SOC, or within one year of the original decision, whichever is later.

DRO Review Process
This process also involves a review of the entire claims file and any new information that is submitted; however, the DRO considers the evidence without deference to the original decision made by the RO.

DROs can hold formal hearings, just like in the traditional review process, but they are also allowed to hold informal conferences with the veteran or his representative to discuss the appeal.

If the DRO does not award a full grant of benefits, a Statement of the Case (SOC) will be issued and the appeal process will continue in the same way as the traditional appeal process explained above.

Why Should You Choose a DRO Review?
1. DROs are senior level RO employees; therefore, they are more experienced than the average VA decision makers that denied your original claim.

2. DROs have broader powers than regular reviewers. This includes the power to change the original decision without approval from the Central Office.

3. DROs have the ability to hold informal conferences with veterans to discuss the facts or evidence.

4. The DRO process takes, on average, a month longer than the traditional appeals process. This is the time period between when you file a NOD and when you receive a SOC. However, a study by the U.S. Government Accountability Office (GAO), found that you are more likely to receive at least partial benefits if you choose the DRO process instead of the traditional appeals process.

5. According to the same report, the average wait time for decision by the Board of Veterans Appeals is more than 1,000 days from the time a NOD is filed. The average wait time for a decision by a DRO is only 266 days from the time the NOD is filed. Therefore, if you receive a partial grant from the DRO, you will begin receiving your benefits much faster than if you appealed directly to the Board.

6. If your claim is not granted by the DRO, you can still continue your appeal to the Board without having to start the process over again.

Overall, the DRO review process gives veterans an additional chance for a favorable decision, is more likely to result in a grant of benefits early on, provides an opportunity to speak directly with the individual making the decision, and does not forfeit the right to appeal to the Board of Veterans Appeals. There is no real downside to choosing this option, and it may end up being more beneficial.

You can find the complete report by the GAO at:
http://www.gao.gov/new.items/d11812.pdf

Krystle D. Waldron, J.D. is a May 2011 graduate of William and Mary Law School.

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Filing a claim for VA benefits can be a daunting task. It often requires the veteran to fill out and submit many forms or documents to the VA. Gathering this information can be very time consuming and in some cases costly. Therefore you want to ensure that the documents you sent are received at the VA and added to your claims file eliminating the need to resubmit if lost or misplaced.

Keeping track of what documents or forms that are sent to the VA can be challenging yet very important. The VA is a large agency and the possibility of documents being lost or misplaced is great. Here are few things to remember when submitting anything to the VA:

1. Always maintain a copy of what you are sending to the VA for yourself.
2. Do not send the original document unless otherwise instructed by the VA to do so.
3. If possible, send documents to the VA by certified mail requiring a signature confirming receipt.
4. Make sure the documents you send have your name and claims file number clearly listed on the document.
5. If you received a letter from the VA requesting that you send a document(s) pay close attention to what address you are instructed to send the document to.
6. Make a phone call to the VA to confirm receipt of the documents you sent.
7. If you are represented by an Attorney or Service Organization, before you submit anything to the VA discuss with them best practices when mailing documents to the VA.

Following these simple tips may alleviate the need to resend documents and diminish the possibility of your documents being lost or misplaced.

To locate VA forms or find out more information regarding the VA claims process, visit the VA’s website at www.va.gov .

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The United States Supreme Court does not often hear cases from the veterans claims system, but it recently issued a decision in Henderson v. Shinseki that was favorable to veterans, though the claimant in this case is not completely out of the woods.

All appellate systems have prescribed periods for appealing to a higher court. In many instances the filing of a document to initiate the appeal, a notice of appeal (NOA), is “jurisdictional,” meaning that failure to file it properly deprives the court of the power to hear the appeal. The issue for the Supreme Court was whether Mr. Henderson’s claim had suffered this fatal blow when, because of a paranoid schizophrenic episode, he missed the filing deadline for his appeal to the Veterans Court. That court and the Federal Circuit above it held that this failure required dismissal of the claim.

The Supreme Court reversed, however. It recognized that veterans’ appeals are part of a unique administrative scheme, and it said that the statute containing the appeal deadline indicated Congressional concern for veterans, such that Congress would not have intended the deadline to be jurisdictional.

The high court noted that the deadline was an important rule, however, and it sent the case back for further consideration as to whether there was any exception that should be applied. There is a principle called “equitable tolling” that may allow the court to hear the appeal if it is found that ultimate fairness and justice so requires.

While it is a victory for veterans that the court allowed for the possibility of some exceptions to the strict deadline, there is no assurance in advance that an exception would apply. This reinforces the crucial importance of filing a notice of appeal on time and in the proper place.

To appeal to the Veterans Court from the agency (Board of Veterans’ Appeals), the notice must be filed within 120 days of the Board’s decision and it is filed with (sent to) the Veterans Court itself, not the agency. To appeal from the Veterans Court to the Federal Circuit, one has 60 days from the entry of judgment by the Veterans Court (usually about 21-22 days after the decision), but the filing is made with the Veterans Court, not the Federal Circuit.

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One of the most frequent questions I hear from veterans sounds something like this:

“Why did I get retroactive benefits for only a few months when I was injured (or when my disease started) years ago?”

Another similar question is “I filed my first claim 20 years ago—so when I won my case, why didn’t my benefits go back to when I filed my first claim?”

Here’s the answer.

Under the law and VA regulations, it is illegal to pay any benefits before the date you filed your claim that led to the grant of service connection.

There are a few exceptions to this rule, that allow a veteran who files a claim within a year of separation from service to receive benefits retroactively to the date after separation from service, or that allow for retroactive payments when the law changes. These really are exceptions—and 99 percent or more of cases will follow the regular rules.

As a practical matter, let me explain how this works.

Let’s say that a soldier (we’ll call him “Joe Veteran”) was in service from January 1966 to January 1969. In June 1968, Joe was loading supplies into the back of a truck when he slipped and fell, injuring his right knee. Joe was treated in service and diagnosed with a twisting injury. He was put on profile, and when he left service six months later, the knee was still painful. Joe now has been diagnosed with severe arthritis in the right knee, and might need to have surgery to replace the joint. Joe is now service-connected for his right knee, and receives a 40 percent disability.

Let’s look at how the date the claim is filed affects when benefits can be paid:

(1) Six months after leaving service, in July 1969, Joe files a claim for service connection. It takes the VA two years to process the claim, but it is granted in 1972. Because Joe filed his claim for service connection less than one year after he separated from service, Joe will be service-connected effective in January 1969, the day following separation from service. Joe’s benefits will be paid prior to the date he filed his claim.

(2) Six months after leaving service, in July 1969, Joe files a claim for service connection. This time, however, the claim for service connection is denied by the VA Regional Office (the “RO”) in 1972 because Joe doesn’t provide the RO with any evidence showing that his in-service injury caused him to have a permanent disability. Even though his knee is still painful, Joe is busy raising his new family, and working, so he moves on with life, and does not appeal. By June 2002, however, his knee is getting really painful. He goes to the doctor who X-Rays him, and learns that he may need a knee replacement in a few years. Joe decides to file a new claim in October 2002. This time, he gives the RO the X-Ray reports, and his claim for service connection is granted in a decision in January 2005. Because Joe’s claim was denied in 1972, and he did not appeal, that decision became final. Under the law, Joe’s benefits can’t be paid prior to the date he filed his claim to reopen in October 2002. This means that even though Joe’s disability has been there since service, and even though he tried to get the benefits in 1969, he can only receive benefits back to October 2002.

(3) Let’s change things around a bit. This time, when Joe gets out of service, he is too busy going to school, and raising his family, to file a claim. Not to mention that he’s not the type to complain about pain or go to the doctor. He deals with the pain in his knee for many years, but it’s so bad by June 2002, that he finally goes to the doctor. He learns that he has severe arthritis and may need to have his knee replaced. Joe’s buddy encourages him ask the VA for compensation, and he files a claim for service connection in October 2002. When he wins his claim three years later, his benefits are awarded retroactively to October 2002, not back to when he left service, like Joe hoped. The reason is that because Joe didn’t file his first claim for service connection until October 2002, it would be illegal for VA to pay him before his date of claim.

Here’s the text of the law and VA’s regulations:

38 U.S.C. § 5110(a) Unless specifically provided otherwise in this chapter [38 USCS §§ 5100 et seq.], the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

38 U.S.C. § 5110(b) (1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

38 C.F.R. § 3.400: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.

38 C.F.R. § 3.400(b)(ii)(B)(2) Direct service connection (§ 3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.

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When you file a claim for benefits at the Regional Office (“RO”), there are a number of steps in the process:

1.  File claim.
2.  Decision.
3.  If you’re not satisfied with the decision, you must file a Notice of Disagreement (“NOD”) within a year.
4.  The RO will offer you a review either through the traditional process or by a Decision Review Officer.  If your claim is denied again, they will send you a Statement of the Case (“SOC”) along with a Form 9.  You must return the Form 9 to appeal the denial to the Board of Veterans’ Appeals (“BVA”).  This must be done within 60 days of mailing of the SOC, OR, within one year of the original decision, whichever is later.
5.  If any additional evidence is submitted, the RO will then issue a Supplemental Statement of the Case (“SSOC”).  Many SSOCs can be issued, as new evidence is obtained by the RO.
6.  The appeal is certified to the BVA.
7.  BVA makes a decision.
8.  If you’re not satisfied with the BVA decision, you have 120 days to appeal to the Court of Appeals for Veterans Claims.

The Senate Veterans Affairs committee held a hearing on February 11, 2009, regarding the delays in processing claims and suggestions for improving the process.  The representative from Disabled American Veterans presented some interesting statistics on average time lengths for some of these steps:

From the NOD to the SOC: 213 days.
From the SOC to filing Form 9:  44 days
From filing Form 9 to certification to the BVA:  531 days
Much of this delay is caused by obtaining additional evidence and issuing additional SSOCS.From receipt at the BVA to decision:  273 days.

So, altogether this would be 1,061 days from filing an NOD to receiving a BVA decision.  This, of course, doesn’t even include the amount of time it took to get that initial decision after filing a claim, and it doesn’t include the amount of time that it will take if an appeal to the Court is necessary.

You can find the complete testimony at the hearing at the following link:

http://veterans.senate.gov/public/index.cfm?pageid=16&release_id=11839&view=all

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