If you are not satisfied with the VA’s decision in step 3, you can appeal. The first step in the administrative appeal is optional: you can seek a review of your VA Disability Claim by a DRO (Decision Review Officer), or you can “perfect your appeal” by filing several forms in a particular sequence and on a specific timeline. You can get a review by a Veterans Law Judge (VLJ) at the BVA (Board of Veterans Appeals).
- You can have that review in an in-person hearing in DC, a video conference hearing from a VA facility near you, or submit a “brief” with “exhibits” and have the VLJ review your claim “on the record” before it.
- Deny your appeal (also known as affirming the VA Denial of your VA Disability claim);
- Grant your appeal (also known as reversing the VA Denial of your VA Disability claim).
Step 5: The Court Appeal Phase
- If you are not satisfied with your BVA Decision, so long as it is not a remand, you can appeal to the Court of Appeals for Veterans Claims (aka, the “CAVC” or the “Veterans Court”). That Court only decides whether a BVA decision is proper under the law or properly applied the law to fact….it cannot make factual findings.
- On average, between 70-80% of BVA Decisions contain a reversible or remandable legal error, so if you have a BVA Decision, please talk to an attorney with experience at the Veterans Court to discuss appealing it.
- Veterans do not pay out-of-pocket for lawyers at the CAVC…if the Veteran wins at the CAVC, the VA has to pay the lawyer out of IT’S pocket and NOT out of the Veteran’s past-due benefits.
- The CAVC can do any of the following: affirm (uphold) a BVA Decision, reverse (reject) a BVA decision, vacate (erase) a BVA decision, and remand (send a decision back to the BVA for the repair of legal errors. Depending on the case, it can also combine two or more relief types.
Step 6: Judicial Review phase
Suppose you are not satisfied with your CAVC Decision. In that case, you have a limited opportunity for judicial review at the Federal Circuit Court of Appeals (Fed Circuit) and then the Supreme Court of the United States. The Fed Circuit only has the ability to decide PURE questions of law… I’d be willing to bet that 80-90% of Fed Circuit decisions in Board cases are “Rule 36’s”….decisions without a written opinion, typically because the Court does not have jurisdiction over the appeal.
Getting review at the Supreme Court is much harder, and appeals to both courts can be costly filing fees alone at the Federal Circuit cost $500, and the cost of copying and filing the brief and the record of proceedings below costs between $2,000 and $5,000. Hence, attorneys and Veterans tend to be more conservative about appeals to these courts.
3. When do I file a VA Disability Claim?
Ideally, you want to file your VA disability claim within the first year after leaving service. (Learn about the one VA Program I like – the Benefits at Discharge Delivery, or BDD, Program)
However, most conditions do not get diagnosed for years or decades after service. In those cases, if you are filing an original VA Disability claim (i.e., for the first time), you should file at least the informal claim mentioned above as soon as you suspect your condition is related to military service.
This protects the earliest possible effective date for your VA Disability benefits.
If you are filing a claim for increased compensation, you want to file the claim for increased rating as soon as you believe your condition is worsening.
4. Where do I file a VA Disability claim?
Technically, your VA Disability claim is filed with the VA Regional Office for your geographic area.
However, you can file your VA Disability claim online through the eBenefits portal for Veterans, or, if you want to be sure that you create a paper trail for your claim to make sure the VA does not lose it, you can file it by sending it to the Evidence Intake Center (also known as the VA’s EIC in Janesville, Wisconsin).
5. Who Can Help Me with a VA Disability Claim?
Anyone that you trust can help you with a VA Disability claim.
However, nobody can charge you a fee for filing your VA Disability claim – attorneys and accredited agents are only allowed to charge a fee for filing or helping you in your VA Disability claim after the VA has denied the claim.
So, while an illegal immigrant can hire an attorney to fight deportation whenever they can afford it, Veterans who served our country in uniform are not legally allowed to pay for an attorney or experienced professional accredited agent’s help until the VA denies them a benefit.
While a criminal charged with a crime has a constitutional right to an attorney, veterans who fought and bled to preserve the Constitution are prohibited from exercising their right to hire and pay an attorney or experienced professional until the VA screws them over first.
Some national organizations, like the Disabled American Veterans (DAV), Veterans of Foreign Wars (VFW), and the American Legion (Legion or AL), have what are called “Veteran’s service representatives” or VSOs that volunteer to help with filing initial claims. The quality of work or help you get varies widely, and I’ve seen both extremes: VSOs that do amazing work for free and VSOs that pull the rug out from under their “client” or “member.
Organizations like the Paralyzed Veterans Association (PVA) and the Vietnam Veterans of America (VVA) get consistently high marks for the work they do for their members.
6. How Long Does a VA Disability Claim Take?
The amount of time that it takes for the VA to decide on a VA Disability claim can vary greatly and depends on a lot of variables: how difficult your claim is, how many conditions you include in the VA Disability claim, how well your claim is prepared, whether your claim is a Fully Developed Claim or not, how big your VA Regional Office is, etc.
Here are some general rules:
- If you click here, the VA says that time is 114 days (ish) for a Fully Developed Claim and 121 days (ish) for a non-FDC claim. In 10 years of representing hundreds of Veterans and talking with tens of thousands more, I’ve never met a Veteran that got a decision in 125 or fewer days. I’ve met a couple that had a decision within 3-6 months. Most Veterans should plan on the process taking about 12-18 months, from file to decision. And that’s not counting the appeals.
- If you are bored or like looking at small numbers on mind-numbingly complicated spreadsheets, click here to see how long claims are currently taking in your geographic region. These spreadsheets are consistent with everything the VA does….hard to understand, loaded with jargon, and obvious number juggling to hide problems in the system. Pour a scotch or glass of wine.
- Claims for VA disability benefits that are filed with smaller urban and rural VA Regional Offices are faster than VA Disability claims filed with larger metropolitan VA Regional Offices.
- Once you file an appeal, it can take 3-10 years to get a decision, depending on variables that are too numerous to list here.
- Veterans can speed up the timeframe by filing well-developed and well-documented Fully Developed Claims, as we teach here on the Veterans Law Blog.
7. How Do I Check the Status of My VA Disability Claim?
That, right there, is the million-dollar question.
The VA will tell you to call their VA toll-free number 1-800-827-1000 to get the status. Veterans that use this approach find that they can enjoy their favorite hobby while waiting to talk to someone at the VA: some Veterans relax and enjoy 2-3 hours of hold “muzak,” others read the week’s newspapers or a few magazines, and others have actually written a book while waiting on hold. If you are among the patient and lucky few that get through to a human being on the 1-800 line, here are some tips and pointers on how to get more value and information out of the call.
The VA also suggests that you check your status on eBenefits. Be forewarned, though – eBenefits is a glitchy and inaccurate tool. For example, if you log into my eBenefits account, it shows that the VA held a hearing on my VA Disability Claim 2 years before I filed it. That’s a true story, folks. Now that is efficiency – maybe the VA will start a new pilot program: the pre-claim denial process.
Be careful what you see on eBenefits it’s not always your claim status, it’s not always accurate, and it’s rarely up to date.
8. How Are Benefits in a VA Disability Claim Calculated?
I wish I could tell you that the VA simply added up your disability ratings from individual conditions to reach your total disability rating and paid you according to that rating.
But the VA doesn’t do it that way. They use a unique “VA Math” system to “combine” your individual disability ratings into a total. Then they award a monthly compensation amount corresponding to the resulting total impairment rating.
You can read more about impairment ratings here – Veterans have much more control over these ratings than they have been led to believe. I teach Veterans how to improve or maximize their ratings for a TON of conditions – knee/arthritis, sleep apnea, PTSD, Tinnitus, Hearing Loss, Fibromyalgia and Chronic Fatigue, Gulf War, Migraines, Diabetes, Parkinson’s Disease, and many more!
In my 5+ hour video training course, “How to Prove the 4 Pillars of a VA Claim “, I teach Veterans how to prove the 4 Pillars of a VA Claim, including a lot of specific ways to prove the degree of disability you experience and get the highest rating possible.
9. Are VA Disability Benefits Retroactive?
Yes, they are. The question is, “how far do they go back”?
There is a whole set of rules that helps the VA decide how far back in time to go to pay retroactive benefits. These rules are called the effective date rules, and there are hundreds of them.
There are a few general guidelines; it’s not all the rules for every type of VA Disability Claim effective date, but it should give you an idea of how much you have NOT been told about VA disability benefits over the years.
- In most VA disability claims, the effective date will be the LATER of the date you filed your claim and the date the entitlement arose. Click here to learn more about what that means.
- If you file your VA disability claim within one year of leaving service, your effective date will typically be your date of separation from military service.
- Claims for Increased compensation rates follow the general effective date rule, except that if you can show that the worsening of your condition started to occur BEFORE you filed your claim, you can get up to 1 year earlier.
- In some cases, if the law changes while you are trying to prove a claim or after you’ve been denied a claim, and your claim is granted pursuant to that change in the law, that makes it easier for you to win (in other words, the change in the law is a “claim liberalizing rule”) you may be able to get up to 1 year prior to the date of your claim as your effective date.
- Suppose you reopen a previously denied claim by submitting New and Material Evidence, and you win the reopened VA Disability claim based on military records, military service records, or military medical records that were previously unavailable to the VA or that the VA neglected to get in the prior claim. In that case, you can use the effective date rule in 38 CFR 3.156(c) to get an effective date of your original VA Disability claim date.
- Suppose you submit New and Material evidence within one year of the date your rating decision denied your VA Disability claim. In that case, your claim is “open and pending” until the VA issues a new ratings decision. If your benefits are granted based on that new and material evidence, your effective date could be the original date of your claim. This is a dangerous path to take, though, because if the VA denies your claim because the evidence wasn’t New and Material, then you may have lost your original effective date if you did not file an appeal within that same year after the VA Ratings Decision.
- If you are a “Nehmer Class Member,” meaning a veteran exposed to dioxin (aka, Agent Orange in Thailand, Vietnam, Korea, or other places), a whole set of effective date rules apply due to the VA’s settlement of a class action lawsuit in the 1980s. These are called the “Nehmer Rules,” and they can get pretty complicated pretty quick.
- A survivor who files a claim for survivor benefits (DIC, service connection of the cause of death and substitution, for example) will get survivor benefits retroactive to the date of the Veteran’s death if they filed their VA Form 21-534 within one (1) year of the Veteran’s death. If they file the claim for accrued benefits within that year, they may be able to get retroactive benefits paid to the date of any VA Disability claim or appeal pending on the date of the Veteran’s death.
10. Are VA Disability benefits permanent?
I’ll answer this question along with #11.
11. Are VA Disability Benefits Permanent?
Generally speaking, they can be.
If a medical condition substantially improves, the VA can propose to reduce your disability compensation benefits to different levels. The rules that they have to follow to do this can differ depending on certain factors, but here are a few considerations; you can click here to learn more about how the VA tries to pick Veterans’ pockets by reducing benefits and get an idea how to stop it.
- The VA can only reduce “continuous ratings” (those that have been in effect for 20 years or more) after showing that they were awarded based on actual fraud by the Veteran.
- There are three types of ratings in VA Disability claims that are considered “protected” ratings, which the VA cannot reduce without showing first a “substantial improvement” in your medical condition.
- Suppose a VA Disability rating is considered “unprotected.” In that case, the VA can reduce it, but they have to send you notice of their intent to respond, give you an opportunity to respond and submit evidence and, if you request it, provide a hearing. The timelines on this type of reduction are pretty friendly to the VA and pretty hard for the person filing the VA Disability claim to understand, no less follow, so be ready to move quickly and do plenty of legwork to understand what is happening and how to stop it.
- If you are incarcerated for more than 60 days, on the 61st day, the VA can reduce your VA Disability compensation to no less than 10% and must reinstate it after your release from jail. Click here to learn more about each time of rating and how long they stay in effect.
12. Are VA Disability Benefits Subject to Child Support?
In every state I am aware of, VA Disability benefits are considered income for calculating child support.
Child support laws differ in each state, so there may be nuances from state to state how much is subject to child support, particularly when military retirement payments offset a portion of your VA Disability benefits. The best thing to do is get out ahead of this situation by talking to a local family law attorney and making sure you do right by your kids, state law, and federal law.
If you need a referral to a family law attorney in Texas or Arkansas, fill out a support ticket. I know a lot of family law attorneys in both states and may be able to give you a couple of referrals.
13. Are Benefits From My VA Disability Compensation Claim Taxable?
At least not under Federal law. Amounts paid to Veterans or their families for education, training, subsistence allowances, clothing allowances, disability compensation, and/or pension payments are not taxable by the Feds.
As to whether these benefits are taxable at the State level, consult your state’s income tax agency, as the answer will vary state by state.
14. What Conditions Are Most Common in a VA Disability Claim?
The VA actually publishes a report of the conditions it service connects, the average ratings for each, and more. Click here to check out the report.
If you don’t have the stomach to read MORE VA propaganda – and honestly, who can blame you – here are the Top 10 conditions that the VA reports as being part of most original VA Disability Claims ((click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)
Here are some other conditions that I see very frequently in many a VA Disability Claim (click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)