Understanding the Department of Veterans Affairs (VA) disability claims process can be a complicated and often frustrating experience. For many veterans, the initial application is denied, or they receive a disability rating lower than what they believe they deserve. In such cases, the appeal process becomes critical.
While veterans can certainly move through this process independently, the assistance of a qualified and experienced VA disability lawyer can significantly increase their chances of a successful appeal and outcome.
This comprehensive document will detail how a lawyer can help with a VA disability appeal, covering everything from understanding the initial denial to representing the veteran before the Court of Appeals for Veterans Claims (CAVC).
Understanding the Initial Denial
Before delving into how a lawyer can help with an appeal, it's essential to understand why a VA disability claim might be denied in the first place. The VA requires several key elements to be established for a service-connected disability claim to be approved:
- Service connection: There must be a link between a current disability and military service. This can be direct, presumptive, or secondary.
- Current diagnosis: The veteran must have a current medical condition diagnosis.
- Medical nexus: There must be evidence linking the current diagnosis to an event, injury, or disease during military service.
Common reasons for denial include a lack of sufficient medical evidence, an unclear nexus between the condition and service, or a finding that the condition existed before service and was not aggravated by service. The denial letter from the VA often briefly explains the decision, but it may not always be clear or comprehensive.
A lawyer's first step in assisting with an appeal is thoroughly reviewing the initial denial letter and the veteran's VA claims file (C-file). This file contains all the documents the VA considered when making its initial decision.
By meticulously examining these documents, a lawyer can identify the reasons for the denial and pinpoint any errors or omissions in the VA's initial review. This initial assessment forms the foundation of the appeal strategy.
Deciding on an Appeal Strategy: The Legacy Appeals System vs. the Appeals Modernization Act (AMA)
Until recently, the VA had a complex "Legacy" appeals system. This system was notoriously slow, with appeals often taking years to resolve. Recognizing the need for reform, Congress passed the Appeals Modernization Act (AMA), which was enacted on February 19, 2019. The AMA created a new, streamlined appeals system to give veterans more choices and faster resolutions.
A key role of a lawyer is to help the veteran understand the differences between the Legacy system and the AMA and to choose the most appropriate appeal path.
Gathering and Submitting Evidence
One of the most significant contributions a lawyer makes to a VA disability appeal is in evidence gathering and submission. The VA operates under a "duty to assist," meaning it is supposed to help veterans obtain necessary evidence. However, in practice, the VA's efforts may be insufficient, and it often falls to the veteran (or their representative) to ensure all relevant evidence is submitted.
A lawyer can:
- Identify missing evidence: After reviewing the C-file and denial letter, a lawyer can determine what critical evidence is lacking to establish service-connection or a higher rating. This might include medical records from military service, private treatment records, lay statements (buddy statements), or expert medical opinions.
- Assist in obtaining medical records: Lawyers can help veterans get their military service medical records, private medical records, and VA treatment records. They understand the proper procedures for requesting these documents and can follow up with medical providers to ensure timely receipt.
- Secure expert medical opinions (Independent Medical Opinions—IMOs): In many cases, especially when the medical nexus is unclear, a private physician's IMO can be significant.
A lawyer can help identify qualified medical experts, explain the questions that must be addressed, and ensure the opinion is legally sound and compelling. These opinions can be expensive, and a lawyer can advise on the cost-benefit analysis and whether an IMO is necessary for the appeal.
- Draft compelling lay statements: Lay statements from friends, family, or fellow service members can provide valuable firsthand accounts of a veteran's symptoms, the impact of their condition on their daily life, or events that occurred during service. A lawyer can help the veteran and their witnesses draft these statements clearly, concisely, and persuasively, ensuring they address the relevant legal criteria.
- Challenge VA medical examinations (C&P Exams): If a veteran received an inadequate or unfavorable Compensation and Pension (C&P) exam from the VA, a lawyer can challenge its findings. This might involve arguing that the examiner was not qualified, that the exam was not thorough, or that the examiner failed to consider all relevant evidence. A lawyer can also help veterans prepare for C&P exams to ensure they accurately convey their symptoms and limitations.
- Organize and present evidence effectively: A lawyer can organize all the gathered evidence clearly and logically, making it easier for the VA adjudicator or the BVA to review. They can create exhibits, summaries, and arguments that highlight the most critical aspects of the veteran's case.
Crafting Legal Arguments and Briefs
VA disability law is complex, with numerous statutes, regulations, and precedential court decisions. A lawyer's legal experience is paramount in crafting compelling arguments to support a veteran's appeal.
A lawyer can:
- Interpret VA regulations and statutes: Lawyers are trained to interpret complex legal texts. They can identify the specific rules and statutes that apply to a veteran's claim and use them to construct strong legal arguments.
- Cite relevant case law: The decisions of the Court of Appeals for Veterans Claims (CAVC) and the Federal Circuit set legal precedents that the VA and the BVA must follow. A lawyer can research and cite relevant case law to support a veteran's arguments and demonstrate that the VA's initial decision was in error.
- Identify legal errors: The VA or the BVA may make legal errors in their decisions. These errors can include misapplying a regulation, failing to consider all relevant evidence, or providing an inadequate statement of reasons and bases for their decision. A lawyer is adept at identifying and using these legal errors as grounds for appeal.
- Draft persuasive briefs: Whether appealing to the BVA or the CAVC, a lawyer can draft comprehensive and compelling legal briefs. These briefs lay out the case's factual background, present the legal arguments, and explain why the veteran is entitled to benefits. A well-written brief can significantly impact the outcome of an appeal.
- Address issues of continuity of symptomatology: Establishing continuity of symptomatology from service to the present can be challenging for some conditions, particularly mental health conditions. A lawyer can help compile evidence to demonstrate this continuity.
Contact a VA Disability Lawyer Now
Do you have a question about your VA disability appeal? Maybe you are concerned about a denial? If so, you can gain clarity with legal support. Contact a VA disability to receive the legal help you need.