Whether fighting for a higher disability rating or filing your disability claim with Dept. of Veterans Affairs, this article has insider tips that win.
How To Manage Your VA Claim For Disability Compensation
Filing disability claims with the Dept of Veterans Affairs is tricky, confusing, and sometimes seems like a lost cause.
Getting documentation together for one disability claim can be a full-time job.
Try filing two, three or four disability claims at the same time. It can be a mess to get your VA compensation and take years to sort out. But, in the long run, winning my VA disability claim after many years was incredibly rewarding.
I’ll start by explaining what I did and why it was wrong.
Yes, I have screwed up my own disability claims a time or two. And, you can learn from my own mistakes and those of others.
This is yet another case of ‘do what I say, not what I did.’ It is important to not repeat the following because it will cause a lengthy appeal process – and there is nothing worse than a 10-year appeals process.
It’s like waiting for your IRS tax refund, except it’s more money and, like Rip Van Winkle, I look a whole lot older.
The Don’t Be Dumb Rule
I hand wrote my initial application for disability compensation without reviewing my Service Medical Records (SMR). My claim led with the statement: “see supporting medical documentation in my file.”
It did not explain or quote what I was referencing. I did not cite the page number, date, or doctor’s name on the record.
That was dumb, and it cost me thousands of dollars and many years.
Don’t be dumb.
At the time, I had a ‘they owe it to me’ attitude simply because I was a veteran.
I assumed the examiner would simply read through my entire file and look for that one needle in a haystack to help me win thousands in benefits.
I had no concept or understanding as to how much time the doctor could spend on my claim.
Woops. And, you know what they say about assumptions.
Imagine someone sending you a handwritten, 300-page manuscript (doctor’s scribbles plus my own) and allowed you 4 hours to read it.
Then, they ask you a ton of questions that are legally binding. That is what I implicitly asked the VA examiner to do in 2002 when processing my disability claim.
In reality, the VA disability claims process is very complex and time consuming for the veteran, any advocate, and the Dept of Veterans Affairs.
Do not expect the VA to connect the dots. It must be your job. Since you stand to benefit substantially from doing the hard work yourself, it makes sense that you should want to dig in.
If you do choose to take the assignment, you’ll be older and fatter still fighting the good fight, like me.
Start with your Service Medical Records (SMRs)
Get started. For disabled veterans with copies of their SMRs, you should get moving by reviewing what is contained in the records.
Any disability condition diagnosed within one year of separation could be considered service connected, even if it was undiagnosed in service, so long as you still suffer from the condition, disease, or disability, now.
For those without their records, request a copy of your SMR’s from your local Veterans Affairs regional office. Mail in a Freedom of Information Act (FOIA) request. Click here to find a sample FOIA letter.
Once you have the chance to review the documents, you can begin your own research.
Research every disability or condition you have within your medical records (about the possible presumptive conditions that show up within one year – bring these up too). To do this, identify the key terms and find them in 38 CFR Part 4: Schedule of Ratings.
For example, let’s say you have Sinusitis.
Within your records, you can document 5 different occasions that you went to the doctor for the condition (like allergies, congestion, nasal drip, etc). Go to the CFR and find Sinusitis.
A quick way to do this is to click [Control + F] and type in Sinusitis on the web page for 38 CFR Part 4. This should lead you right to the rating criteria.
Notice for the condition, the requirements “either or” tendency.
You either have periods of incapacitation or you have “non-incapacitating” episodes.
Take a look at your present condition and previous symptoms in the record. Decide where you currently fall into the rating schedule. Then, you can Google the condition on either regular Google or Google Scholar. Read about Sinusitis and what causes it.
Repeat The Drill
Get educated on each and every condition you are claiming this same way. The framework above is similar to what I did before I became an attorney.
Write up a summary of all the conditions and include dates of treatment while in service and after you separated from the military until the present. Just note that it is not sufficient to simply experience the condition in the military. It must be a current condition or disability.
That does not mean you do not need to seek medical attention for every issue in order to document it. But, note that many VA examiners and adjudicators at the Regional Office level will likely deny the claim without medical evidence. The Board, on the other hand, has been known to grant claims based on lay evidence in certain situations.
For example, incapacitating episodes are considered episodes that require a doctor’s visit. Non-incapacitating episodes are not. You can document those non-incapacitating episodes by using a lay statement under penalty of perjury.
A person can self-medicate certain conditions. But always remember, the condition needs to be currently impacting you in order to count. If it stopped hurting two years ago, then you will likely not get a rating for it.
Now Enters VA Documentation
Before the doctor’s appointment, be sure to have all your ducks in a row.
I generally bring all documentation relevant to the specific injury or injuries with me along with a summary sheet. Of course, I did not do that at first, which was part of the reason VA denied 90 percent of my claims the first time around.
Like I said at the beginning, avoid dropping your whole file on the person’s lap with the expectation that they will sort through it for you. Try to keep the summary sheet as short as possible — one to five pages — depending on the number of issues.
Your supporting evidence will be in addition to the summary (doctors’ opinions – civilian, VA, military).
Always try to keep things as short as possible. Include a table of contents of your injuries. Here is a copy of an actual claim letter for the following claims: 1) sinusitis disability, allergic rhinitis disability and sleep apnea disability.
It’s mine, so be gentle.
Disability Claim Evidence
The Nexus Letter
One thing your evidence should have is a Nexus letter from a physician or other qualified clinician (hopefully from a doctor) explaining how the evidence in your file is relevant to the condition you have now.
It will connect the dots between service and now. This can be tricky for new conditions secondary to service-connected conditions, so be sure to research your condition thoroughly.
Use Only Copies, No Original Documents
As an aside, never bring your originals anywhere. Take copies of your files with you in a folder to your VSO meeting. VA uses an all-electronic filing system now, and any originals they have are generally shredded after being scanned into the system.
In case you are unaware, lay evidence is a statement from the veteran or buddy letter that supports a claim.
For as long as I’ve been around, Regional Office adjudicators frequently discount or totally disregard lay statements. They claim any lay statement is not “objective” as the basis for not weighing the statements. This is a mistake and not consistent with case law on the subject.
In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Court held:
“In a veteran’s claim for benefits, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, [such as a broken leg, but not a form cancer], (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.”
This means the layperson cannot “render medical opinions, including etiology opinions,” but can provide testimony that is an eyewitness account of medical symptoms. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007).
According to Jandreau, “Contrary to the Veterans’ Court, the relevance of lay evidence is not limited to the third situation, but extends to the first two as well.”
This means Regional Office adjudicators are wrong in disregarding personal statements about symptoms that can be observed by a layperson.
On that note, I would question anyone claiming VA Compensation adjudicators are “objective,” too, given that the government takes an unjustified position in 70 percent of veterans denials.
VA adjudicators are simply not following the law.
How to Select your Veteran Service Officer
About the meeting. Be careful to never overwhelm your audience.
The summary will keep your conversation focused. Also, remember to be as friendly as possible. Many VSO’s do not earn a lot and they should be respected for their sacrifices to help us get the benefits we were promised.
VSO Selection. Not all VSO’s are created equal. Keep an open mind and shop around for the one you feel the most confident with handling your case. Some have less training or experience than others. Others have too many cases to directly manage effectively.
The advantage for you will be the fact that you have your case already together. Talk to the VSO about how to further document your claim prior to filing it. If the VSO feels confident that you’re ready to go, go for it.
One thing to consider, a bad VSO can squash your ability to appeal successfully by failing to notice shortfalls in your documentation before an appeal.
The application step does not require a VSO. Go to VA.gov to fill out the most current form or on eBenefits online. The forms seem to change each year, so I will avoid citing the specific form required now since it might change in a few months.
If doing this on your own, remember that there are many ways to skin a cat.
You can be very general about the condition(s) or very specific. I have had success with both. Do not attempt to diagnose the condition yourself.
For the sinus condition, you could merely state “sinus condition” or “problem breathing” along with supporting evidence hopefully sufficient to trigger the agency’s duty to assist with an examination by a VA contracted examiner.
Or, you can be specific and state “sinusitis” if it is in your file or if that is what a doctor told you. Hearsay is allowed.
However, avoid getting cute by trying to diagnose something that is not stated in your SMRs. List the symptoms like back pain with numbness down the legs, for example.
Now, if you believe you have something like sciatica, then listing that after the symptoms may be fine. Again, this depends on your specific situation, comfort level using medical jargon, and whether you have supporting evidence like a doctor’s letter indicating you have the claimed condition.
An informed decision is always the best decision.
Disability Claims And Breathing Problems
Here’s a continuance of my own little story for service connection for the following: Sleep Apnea secondary to Sinusitis and Allergic Rhinitis. I was denied for these conditions right after my separation from service, in 2001.
A little background. I had a sleep study in service conducted by the Fargo VA. The VA had the records of a sleep study and was notified as such.
Yet, during my evaluation, the VA did not request its own files and subsequently denied my condition. I had brief apneas but did not require a machine = 30 percent.
They also denied service connection for the other conditions despite at least 12 instances within my service records requiring treatment. The sinusitis was later confirmed in 2009 via an MRI as were the polyps from allergic rhinitis.
The next year I was given a CPAP machine.
Rubber, meet Road. In 2010, I put the whole claim together with a little documentation help from law school and “The Little Book on Legal Writing.”
To see what I mean, here are the first couple pages of my disability claim. I called the Fargo VA for the actual sleep study from 1998. While on the phone, the FOIA guy at the VA faxed the records to me. I lucked out.
Waiting to the day before the appointment to secure your records is another dumb move worthy of avoiding.
The records verified my apneas. I was also able to find Congressional Reports about the conditions of the dormitories we lived in while at tech school – there were issues of asbestos and leaking sewage along with outdated HVAC systems blowing particles around. I immediately came down with sinusitis and pneumonia after arrival. I included this documentation in case I come down with certain cancers down the road.
I went into the exam armed with the report, my medical records and a typed summary ready for the examiner.
The first appointment was with an Ear Nose and Throat doctor. He said the VA already conceded service connection but he needed to find out how many episodes I have every year. I handed him my documentation.
While he did not read over the documentation in full, he most likely referred to it after the meeting while filling out his exam notes. This is key, especially if the examiner did not take good notes while in the meeting or forgot some key point that you mention.
The summary you hand him may be the difference between a 10 percent rating or 30 percent rating.
My second evaluation was for sleep apnea.
I showed the doctor my current diagnosis along with the former diagnosis while I was in service. She took the time to read over my summary, which explained how the VA missed my earlier diagnosis.
Since I had the old sleep study exam with me, she was able to clearly tell that I had sleep apnea while in service. Because of the way my documentation was set out, she told me on the spot that she was going to tell the VA I had sleep apnea in 1998.
This could result in a decision for retroactive pay if I can prove VA committed a Clear and Unmistakable Error during their 2001 denial.
Release Of Information: VA Claims Investigation
After you file your claim, VA will hopefully send a letter verifying receipt of your claim to also notify you of the information they need.
This will include release forms they will need you to fill out in order to request files from civilian doctors you have seen. Be sure to read everything very carefully. Sometimes the dates can be wrong or VA might be asking for the wrong information.
In addition, you may have better luck getting documents from doctors than will the VA. When you forward medical release letters to civilian medical providers for their records, be sure to follow up with a phone call to ensure they understand what you are requesting, especially for psychologists.
Leave nothing to chance and never expect the VA will figure out how to contact these people for you. They frequently will not, or, the clinic in question may not provide what the agency requests.
At the examination for conditions like PTSD, VA has disability examination criteria online. Google whatever condition to read about the experience of other veterans after their exams. This can help a lot.
First, it will help you frame your condition in terms that the VA examiner will use in their analysis of your condition.
In addition, write a one or two page summary about your condition.
Click here to view my own sample disability claim.
Use bullet points with brief explanations of each and every treatment for that particular condition. Be careful to not overwhelm your examiner. Ask if the examiner has viewed your C-File before the exam. If not, you may have a claim for a review if the examiner gives you an adverse finding.
If the C-File is not present for the exam, be sure to note the fact. A lack of C-File can bias your exam and be a basis for a new one if you do not get the results you think you deserve.
Lastly, be patient. The whole process can take up to one year or longer.
VA Denials and Lowball Ratings
Here’s a recap of where we’re at with this process.
I’ve written about the disability claim process up through the VA appointment with an evaluator and supplying evidence to the VA about your claim. Now, we will go through what to do when you get your adjudicated claim back with an approval or denial.
You will generally have one of three outcomes: 1) full grant of your claim; 2) a partial grant: for example, they gave you TBI but at 10 percent instead of 40 percent; 3) full denial – do not pass go, do not collect $200. With the paperwork the VA sends you, you’ll never know which of the three you are unless you received a 100 percent rating.
Be In The Know
An important step when fighting for your own benefits is to request a copy of your own C-File. This is very important, and I’ll tell you a brief personal story that shows you why this matters in a second.
Getting your file is the only way to know what the VA examiners found and that they told the VA adjudicator who wrote your decision letter.
Many of you probably know I am a TBI survivor. I also represent brain injury survivors and have exposed one of the biggest TBI scandals in the agency’s history.
That scandal was exposed through my own research on my own claim over the course of five years after I ran into major roadblocks trying to service-connect my own claim.
It all started for me when I received a copy of one of my examinations.
At the time, I sought benefits for my TBI residuals.
I saw a VA neurologist who confirmed the TBI and its residuals, at least to me during the meeting. VA sent me to get an MRI that confirmed gliosis. A VA psychologist confirmed residuals of TBI.
Good to go, right?
Not so fast. The VA decision letter awarded a 10 percent rating despite positive neuroimaging of gliosis. What gives?
After I received a copy of the examination reports, I learned the VA neurologist attributed the gliosis to Multiple Scerosis and the TBI residuals to my (at the time) heavy drinking.
Was I wasted during my exam? No. It was far too early in the morning.
What was the impact of the conclusion?
The symptoms not attributed to the TBI residuals was the difference between a 10 percent and 40 percent rating, or $523 per month (Vet + Child). The net effect was VA kept $6,200 each year because of the shake and bake.
Anyone Can Win With The Right Evidence
Beat the machine. As noted above, I requested a copy of my file to read through the full analysis. This is how the lowballed decision came unglued.
At the time, the agency assigned me to a speech pathologist to evaluate me for a different issue. That pathologist took one look at the medical note from the neurologist and knew something was fishy.
“That’s BS…” he told me. “Were you drinking during the exam?” he asked.
Of course I wasn’t.
The MRI gliosis attributed to some fictional Multiple Sclerosis was inconsistent with my medical history. The error likely occurred because the radiologist did not have a copy of my C-File but was only asked to opine about what could be the cause of the gliosis without any additional information.
Again, I would not have realized what the radiologist even wrote had I not requested a copy to then compare it against what the VA adjudicator and neurologist speculated.
A VA radiologist and other clinicians then reviewed the various determinations in more detail and against my medical history. The end result was a substantially different outcome including assessments after I stopped drinking for a while.
The radiologist stated my head injury was the likely cause of the scarring, not MS. My note to readers: the Health side of the VA can be very helpful in fighting against the dark side of the VA. It’s very “Star Wars” over there.
Once all the information was assembled, I walked over to my friendly Veterans Service Officer (VSO) and filed a Notice of Disagreement. I personally elected for DRO review. The VSO told me it was the best appeal he had ever seen from a veteran.
The claim went from 10 to 40 percent. And out of the top hat popped $6,200 per year plus a lump sum for retroactive pay. I didn’t give up and I didn’t die in the process. Hooray for me and hooray for my daughter.
To look at how I document my claims, check out my Sinusitis disability claim.
You’ve now walked through the process of filing for your disability claim and appeal with me, soup to nuts.