If you have applied or appealed for VA disability and you think the VA made a mistake in their decision, you aren’t alone.
Filing a VA disability benefits application is a long, grueling process. You have to jump through a thousand hoops, navigate miles of red tape, and make sure every form is filled out correctly and submitted on time. But what do you do when the VA makes a mistake with your disability benefits application?
There is help for disabled veterans whose application the VA has mishandled. Read on to discover some common mistakes the VA makes and what you can do about it.
In This Article about Mistakes with VA Disability Applications:
- Failure to Notify of Required Evidence
- Not Helping You Obtain Records
- Not Providing a Medical Examination
- Inadequate Medical Examination
- Not Explaining a Decision
- Ignoring Favorable Evidence
- Wrongly Considering Age
- Considering Non-Service-Connected Conditions
- Denying TDIU Because a Veteran Is Working
- Failing to Consider Functional Loss
- Assigning Wrong Effective Dates
- Adding Nonexistent Qualifiers
- Denying for Lack of Stressor
- Deleting Applications Improperly
- When the VA Says Approval was a Mistake:
- Get Help for Disabled Veterans
Failure to Notify of Required Evidence
One of the most common mistakes the VA makes is failing to notify you when they need evidence. After you submit an application, the VA must tell you what evidence they’ll need to make a decision about your case. This notice should also tell you which evidence you’ll be responsible for gathering and what they’ll gather on your behalf.
This rule applies to all claims that were in process starting on November 9, 2000. If you filed a claim on or after that date and the VA did not send you this evidence notice, it could be grounds for an appeal. You will need to be able to show you have evidence that would have been helpful to your claim if you had known you needed to submit it.
Not Helping You Obtain Records
You may be surprised to learn that the VA must help you obtain records needed for your claim. Although you may be able to access many of the documents you need on your own, you do not have to. If you’ve identified which documents you need to submit to the VA, they have to provide you any help you need in getting them.
There are a few guidelines on this requirement that could impact your ability to make a successful appeal. First, you must be able to identify when and where you were treated for your condition so the VA can reasonably locate your records. Then the records you’re requesting must be related to your disability benefits claim.
Not Providing a Medical Examination
There may be some cases in which the VA has to provide you with a medical examination to verify and rate your disability. Oftentimes, your family doctor or another licensed, VA-approved physician will be able to provide a diagnosis and medical nexus that will serve the purpose for your disability claim. But if there is insufficient evidence and the following extenuating circumstances, the VA must provide you with a medical exam.
The VA will have to provide you a medical exam if there is evidence you have a current disability. You must also have evidence that you experienced an in-service event or injury. And, finally, you must be able to show evidence that this in-service event might have caused your current disability.
Inadequate Medical Examination
Even if the VA does give you a medical exam, it may still not be adequate to meet disability application standards. For one thing, the doctor performing the exam must meet VA standards for the examination. They must be knowledgeable in the type of disability being examined; an ENT specialist cannot diagnose you with PTSD or depression.
The VA doctor must also provide adequate documentation for your claim. Whether or not they feel your condition is related to your service, they must provide a strong justification for their opinion. They must also give a direct opinion about whether or not they believe your condition was related to the incident in your military service.
This is why we have doctors experienced with VA disability applications on staff at Woods and Woods. They know what the VA is looking for and how to present the details of your disability in a clear and concise way.
Here are some tips on your C&P exam from one of our VA disability lawyers.
Not Explaining a Decision
Aside from the doctor who performs your exam needing to provide an explanation for their decision, the VA must also explain their final decision about your application. When the review board makes a decision, they will send a letter letting you know whether they approved or denied your application. Either way, they must explain the reasoning behind their decision.
If you filed an appeal with the VA and they denied it, they must address the evidence you submitted to support your claim. You may want to hire a lawyer specializing in veteran law to help you determine whether they met their obligations in that department. An inadequate explanation could be grounds for a second appeal.
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Ignoring Favorable Evidence
The VA must provide you with an explanation about why they denied your claim. But they must also address all the evidence you submitted, both positive and negative. Ignoring favorable evidence in their explanation can be grounds for an appeal.
In their explanation, the VA must explain why the evidence you submitted was inadequate. They cannot simply ignore this and focus on the evidence they gathered against you. Again, hiring a lawyer to help you review your decision letter may be helpful.
Wrongly Considering Age
There are a number of mistakes the VA makes when it comes to assessing total disability based on individual unemployability. TDIU is a way for veterans to get 100 percent disability ratings, even if all of their combined conditions don’t add up to a 100 percent rating. First of all, they may consider a veteran’s age when determining if that person is eligible for TDIU.
The VA may say that you are ineligible for TDIU if you are of retirement age or are no longer working for reasons other than your disability. However, the question is not whether you are currently working. It’s whether your condition prevents you from working if you wanted to, and the VA is not allowed to consider age when making that determination.
Considering Non-Service-Connected Conditions
The VA can also sometimes overstep their boundaries when looking at which conditions cause your inability to work. Often, veterans may have other non-service-connected conditions which may impact their ability to work. But the VA is not allowed to consider these conditions when determining if a veteran is eligible for TDIU.
The VA must limit their decision to whether the service-related condition impacts your ability to work. Even if you have other conditions contributing to your unemployability, they must examine your situation as though you were in perfect health except for your service-related conditions. If these conditions would prevent you from working, you are eligible for TDIU benefits.
Denying TDIU Because a Veteran Is Working
Although TDIU states that a veteran is unable to reasonably work due to their condition, it doesn’t mean you cannot hold a job. Your employer may be willing to make accommodations to support your condition, or you may be able to find a job suited to your needs in our modern world. But sometimes, the VA may try to penalize you for working while on TDIU.
You can receive TDIU benefits and still hold a job if you are only marginally employed or if you are working in a protected environment. Marginal employment means your work is limited enough that your income does not put you above the national poverty threshold. A protected environment is one in which your employer has made significant accommodations to make it possible for you to work with your condition.
Failing to Consider Functional Loss
When the VA is determining your disability rating, they’ll look at which symptoms you show and how severe your symptoms are according to a predetermined metric. For orthopedic conditions, part of this assessment may look at things like range of motion and whether you have frozen joints. But sometimes, the VA can fail to account for functional loss, looking at only the range of motion limitations.
If you have a back injury, you may only be able to bend to 70 degrees, but you may start having pain at just 40 degrees. This means that, functionally, you cannot bend past 40 degrees. Your VA disability rating should reflect your 40-degree limitation, rather than your 80-degree absolute loss of function.
Assigning Wrong Effective Dates
Your effective date is the date on which your claim with the VA first became active. In most cases, this is the date you submitted your application, either by mail or online. Your effective date matters because, when your claim gets approved, the VA will send you back payments for the months between your effective date and the date of your decision.
If you’re applying for TDIU, the VA may sometimes try to set your effective date as the day you submitted your form applying for increased compensation based on individual unemployability. In fact, your effective date should be the day you submitted a claim for a service connection or an appeal for an increased rating.
Likewise, they may try to set your effective date as the date of your C&P exam, rather than the date your entitlement to disability compensation actually arose.
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Adding Nonexistent Qualifiers
Rating mental health conditions is trickier in the VA system, since one rating scale is used to cover all types of mental illness. These criteria are obviously very broad and may not cover every set of circumstances. However, the VA is not allowed to add nonexistent qualifiers when evaluating your mental health disability claim.
One example of these nonexistent qualifiers shows up around suicidal ideation. If a veteran thinks about suicide, they are entitled to a 70 percent disability rating. The VA may try to argue that the veteran never intended to follow through on these thoughts, but that criterion is not included in the rating schedule; suicidal thoughts, no matter how “serious”, grant you a 70 percent rating.
The VA Rating formula for mental health conditions like PTSD, depression, and other mental health disorders is explained by one of our veterans’ disability lawyers in this video:
Denying for Lack of Stressor
When you’re applying for VA disability benefits, you must be able to point to an event in your service that caused your condition. In mental health conditions, this cause is referred to as a stressor, and it is a required piece of evidence for PTSD claims. However, even though all mental illnesses are evaluated on the same scale, not all conditions require you to prove a stressor.
The VA may try to deny your claim for disability based on the fact that you don’t have a specific stressor that caused your condition. But if you’re filing for anything other than PTSD, you don’t have to prove a specific stressor. The stress of military service is enough to cause a variety of mental health challenges, and the VA can’t deny your mental health claim on those grounds.
Deleting Applications Improperly
Sometimes, the mistakes the VA makes are based on clerical errors, rather than a misinterpretation of the law. The Department of Veterans’ Affairs Office of Inspector General published a report stating that as many as 10,000 records were removed from their processing system.
Most of these wrongful deletions happened because unprocessed applications were improperly marked as completed. The VA acknowledged in December 2010 that employees had hidden and falsified applications due to workload and process issues, but the VA didn’t do anything about the problem until September 2013.
When the VA Says Approval was a Mistake:
If you believe the VA has made a mistake with your application, you can always appeal their decision. This can include appeals for denied claims or for approved claims with ratings that are too low. You can even appeal all the way up to the BVA in Washington, D.C. if needed.
If you plan to file an appeal, you may want to hire a lawyer to help you navigate the process. For one thing, there are dozens of deadlines and requirements they can help you keep up with during your appeal. But they can also give you insider tips and tricks to help you ensure your appeal is as successful as possible.
Get Help for Disabled Veterans
The VA process can be confusing to everyone involved, and sometimes mistakes happen. From misinterpreting symptoms and failing to communicate properly to wrongfully deleting applications, a number of things can go wrong during this process. If you feel the VA has made a mistake with your application, file an appeal to get the compensation you deserve.
If you’d like to find the best help for disabled veterans, call Woods and Woods, The Veteran’s Firm. We fight for veterans every day and you don’t pay unless we win. Contact us today to start making your application and appeals process more successful.