Read More About Veteran Disability Claims

The appeal of the rating decision is decided by an appellate decision maker at a Regional Office. The veteran may elect to have the appeal decided by a Decision Review Officer (DRO) or let the appeal go up through any official designated by the Regional Office to decide appeals. The appeal decision is provided in a Statement of the Case (SOC) which must indicate what issues were decided and provide the rationale for the decisions made. If a veteran wishes to appeal the SOC, they must do so within 60 days of the date on the SOC. An appeal is perfected by submission of a VA Form 9, which can be downloaded from the internet at www.va.gov/vaforms. The Form 9 must clearly and explicitly state what is being appealed to the Board of Veterans Appeals (BVA).

The Board of Veterans Appeals resides in Washington, D.C., and reviews all appeals and final decisions from all Regional Offices. A veteran’s claims file is reviewed by an attorney who drafts a proposed decision. The decision is reviewed by a Veterans Law Judge (VLJ) who can change or approve the proposed decision. A BVA decision has no precedential value; that is, if one VLJ decides something, no other VLJ is bound to follow that decision. So, a single BVA case is not binding on other veterans. It is not unusual for cases with similar facts to be decided differently by different VLJs. Where one VLJ may grant a case, another may deny a very similar case or remand the case for further development. A remand is when the deciding VLJ determines that there is insufficient evidence to decide the case, or for some other reason, the case is not ready to be decided. A remanded case is sent back to the Regional Office or Appellate Center to find new evidence or to take steps to correct the deficiency.

The Board offers the veteran the opportunity to appear at a hearing before a VLJ either at the nearest VA Regional Office or by way of a video conference, which may require the veteran to go to the nearest VA Regional Office to use their video facility. The hearing testimony is transcribed and becomes a part of the record that is reviewed and considered. Generally, a video hearing is scheduled much quicker than a personal hearing before a VLJ. The merits of going to a hearing are something that should be discussed with a legal representative as a hearing is not necessarily going to improve a claim’s chances of success.

A decision denying all or part of a claim from the BVA is accompanied with instructions on how to appeal that decision. Basically, an appeal must be made to the Court of Appeals for Veterans Claims (CVAC). An appeal to CAVC must be perfected by sending a written Notice of Appeal to the Court that includes the current name, address, phone number, and email address of the veteran, the VA file number of the case being appealed and the date of the BVA decision. The Notice of Appeal must be submitted within 120 days of the date on the BVA decision (the date on the BVA decision is the date it was mailed) and payment of a non-refundable $50 filing fee is required at the time of filing unless that fee would cause the veteran to suffer a financial hardship. Notice of Appeal forms is found at the CAVC website (www.uscourts.cavc.gov) along with information regarding how to file and perfect an appeal to the Court from the Board of Veterans Appeals.

Appeals of a CVAC decision may be made to the U.S. Court of Appeals for the Federal Circuit and ultimately to the U.S. Supreme Court.

If a veteran submits a claim for a foot disorder, there should be medical evidence: (1) that the veteran has a diagnosable foot problem at the time the claim is made; (2) something in the veteran's service medical records that indicates he or she suffered an injury or had a foot complaint during service; and (3) an opinion from a medical or other competent healthcare provider that it is at least as likely as not that the current foot problem was caused by or was aggravated by something that happened during active duty service. “At least as likely as not” is a phrase used by VA that essentially means that the medical evidence is at least 50-50 in the veteran's favor.

Increased rating: An increased rating claim is a claim filed by a veteran who is already service-connected for a disability and who is claiming that the disability has gotten worse. A written statement by you that your disability has gotten worse and submitted to VA is generally enough to have the VA reassess your disability. The medical evidence needs to show that the claimed disability meets the criteria for a higher rating. Knowing what the rating criteria is helpful before you go in for a VA medical examination. If the medical evidence supports that it is at least as likely as not that the disability has gotten worse under the rating criteria used for the disability, then VA should award the higher rating. If they don’t, you should appeal the decision.

Effective Date: The effective date of a service-connection claim is generally the date that the claim was received by VA or the date when the medical evidence demonstrates that the disability existed, whichever date is later. The effective date is when you are eligible to start receiving the claimed benefit. The effective date is sometimes the subject of a claim with VA on its own. Sometimes, veterans submit a claim that is never finally decided and in those cases, the effective date can range back to the date that the original claim was received by VA.

Agent Orange or herbicide exposure cases: A statute and a regulation [38 C.F.R. 3.307] provide eligibility for the presumption of Agent Orange exposure if a veteran’s military service involved “duty or visitation in the Republic of Vietnam” between January 9, 1962, and May 7, 1975. The presumption means that if a veteran has certain diseases that have been associated with exposure to Agent Orange, then service connection for the disease is presumed.

VA interprets the phrase “served in the Republic of Vietnam” to mean duty or visitation on land within the Republic of Vietnam or on the inland waterways of Vietnam, often referred to as ‘Brown Water Navy.’ The Navy has provided a list of ships that were deemed to operate within the “inland waterways” during the period of the Vietnam War, but no “blue water” ships have been included on the Navy’s list.

In an April 2015 case, Robert H. Gray v. Robert A. McDonald, Sec. VA, the CVAC found that the VA’s interpretation of what constituted operation of a Naval ship within the ‘inland waterways’ of Vietnam was “inconsistent with the regulation.” The Court first found that “VA distinguishes the “brown water” Navy-smaller vessels that “operated on the muddy, brown-colored inland waterways of Vietnam” from the “blue water” Navy - larger gun line ships and aircraft carriers . . . operate[ing] on the blue-colored waters of the open ocean.” Gray served on a ship that anchored in Da Nang Harbor on multiple occasions and the ship’s deck logs also showed that the ship operated “off the Cua Viet River mouth” and engaged the “enemy in the vicinity of the Cua Viet River.” The Court noted that in locations like Da Nang Harbor, where the blue water meets the brown water, VA did not examine the likelihood of herbicide exposure based on spraying in making its interpretation of “inland waterways.” The CVAC remanded the case back to VA basically telling them to reassess their rationale as to what distinguishes a body of water such as Da Nang Harbor from the inland waterways described in the statute. Since the CVAC decision in Gray, VA has not come out with expanded rationale.

In addition, the Department of Defense and the VA have also acknowledged that Agent Orange, or similar herbicides, were used at other locations, including certain U.S. Air Force bases in Thailand, along with the DMZ in Korea and at certain locations within the Panama Canal Zone. That means that if you served in an area acknowledged being sprayed over by herbicides by the U.S. government, then the presumption of service connection for the listed diseases will operate.

The listed diseases include those found at 38 C.F.R. 3.309(e) and the common diseases listed include, but are not limited to, Type 2 diabetes, Ischemic heart disease and coronary artery disease, Parkinson’s disease, prostate cancer, respiratory cancers, and specific varieties of soft tissue sarcoma.

Post-Traumatic Stress Disorder (PTSD): PTSD is one of the more common claims made by Veterans and because of the number of claims, the VA has become very proficient in handling such claims. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a)(2); (2) medical evidence that establishes a link between the current PTSD symptoms and an in-service stressor; and (3) ‘credible’ evidence that the in-service stressor occurred.

A stressor event is, put simply, an event that puts you under excessive stress. There are a lot of things during service that is stressful and not all can be a basis for a successful PTSD claim. Abnormal stress, such as being involved in a firefight, an IED event, witnessing someone in your unit getting wounded or killed, a sexual assault or a physical assault, are generally among the most common stressors.

A veteran’s service medical records may or may not have evidence that supports a stressor event; this is especially true in claims involving personal or sexual assault. That evidence is more generally found in personnel records, unit records that pertain to combat events, military or base police reports, clergy records, statements from people who served with you at the time of the events, or statements of people who received your letters or phone calls and you told them of the events at or near the time that they occurred. If you served in a combat zone, then there may be a presumption that the events you describe as a stressor did happen. If the stressor happened outside a combat zone, then evidence has to demonstrate that the stressor event happened. Again, the level of proof is “at least as likely as not.” But, you have to be able to present some evidence to have a plausible claim. Simply making a statement that an event occurred is not enough.

Be aware that even if you claim PTSD and the medical evidence turns out to include a diagnosis of depression or some other mental disorder, VA must treat your claim as a claim for that disorder. The claims process does not require you to know exactly what medical disorder you have when you make your claim.

Traumatic Brain Injury (TBI): TBI is a relatively common claim made by the veterans of the Iraq and Afghanistan wars. Thousands of returning veterans were affected by IED explosions and related combat wounds, and a serious head injury was common in those events. VA has changed its regulation regarding what diseases or conditions are presumed to be connected to or associated with TBI. 38 C.F.R 3.310(d) includes Parkinsonism, unprovoked seizures, dementia, depression, and diseases of hormone deficiency. VA has a specific protocol to diagnose TBI and to determine the level of disability. It is important that they follow the protocol to the letter. If they don’t, then that should be the basis for a claim.

Total Disability Individual Unemployability [TDIU]: A request for a total disability rating based on individual unemployability can be raised separately or implicitly when a veteran presents “cogent evidence of unemployability” in a claim for an increased disability rating. If the evidence is at least as likely as not that the Veteran’s service-connected disabilities are of sufficient severity to make the Veteran unable to take on or follow “substantially gainful employment,” and has one service-connected disability rated as 60% disabling or more or more than one service-connected disability including one that is rated at least 40% disabling, then the veteran is entitled to receive total disability benefits. [38 C.F.R. § 4.16(a)]. In the event that a Veteran fails to meet the percentage requirements set out in § 4.16(a), a permanent and total disability rating is authorized on an ‘extraschedular’ basis if the veteran is “unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” [38 C.F.R. § 4.16(b)].

Extraschedular consideration is when VA does not use the ‘Schedule for Rating Disabilities’ (regular schedular standards) found at 38 C.F.R Part 4 which specify what disability ratings are authorized for specific symptoms of a particular disability to determine what disability rating ought to be awarded. VA regulations provide for extraschedular consideration when a veteran demonstrates an “exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards.” [38 C.F.R. § 3.321(b)(1)]. The VA determines whether an extraschedular rating is appropriate by making “a comparison between the level of severity and symptomatology of the claimant’s service-connected disability [and] the established criteria found in the rating schedule for that disability.” Thun v. Peake, 22 Vet. App. 111, 115 (2008). VA must evaluate whether “the rating schedule is inadequate to evaluate a claimant’s disability picture.” The disability picture includes all of a claimant’s service-connected disabilities. The goal of extraschedular consideration is to arrive at “an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.”

In cases where the veteran has disabilities that are not service-connected, in addition to service-connected disabilities, VA only considers the impact of the service-connected disabilities on the veteran’s employability.

Watch out for our Blog for additional excerpts about specific disabilities and other information about VA claims and the claims process.