7 Costly Mistakes to Avoid When Filing for Veterans Disability Benefits
This Guide offers 7 practical strategies for disabled veterans when filing for VA benefits.
7 Costly Mistakes to Avoid When Filing for Veterans Disability Benefits7 Costly Mistakes To Avoid When Filing For Veterans Disability Benefits MISTAKE #1: Failing to learn how the Department of Veterans Affairs decides whether to give you benefits. Many veterans think it's just a matter of filling out forms - sending them in - and waiting for their check. But the process of getting your disability claim approved is much more complicated. The VA decides whether to award benefits based on whether you can prove the presence of all of the following criteria: ? Question #1: Are you eligible to receive VA benefits? First, VA determines whether you are eligible to receive benefits. This means that VA will determine if you were discharged or separated under other than dishonorable conditions. If you were discharged or separated under conditions other than honorable you will ordinarily be barred from receiving VA benefits. (There are exceptions to this rule). ? Question #2: Do you have a current disability? You must have a current diagnosis of an actual medical condition that existed at the time you filed your claim. If your condition existed in the past, but later healed, your claim will not be successful unless the medical condition existed at the time you filed your claim or during the time the claim was pending. If your claim is based only on pain, without a diagnosis, you will likely not be successful. Your pain must be the result of a diagnosed condition. For example, neck pain by itself will not qualify as a disability. But if the neck pain is shown to be the result of a herniated disc or degenerative disc disease of the spine, then you will satisfy the "current disability" requirement. To prove a current disability you must have a medical report from a doctor or other trained medical professional. (Keep in mind that VA regulations provide that "developmental or congenital" defects are not disabilities for VA purposes. This means that such things as personality disorders and refractive eye error (you wear glasses) will not count as a disability by VA standards.) ? Question #3: Do you have proof that something happened in the service? You must submit evidence to prove that the disease, event, or injury that later caused your current disability actually happened during your service. Although your own statements as to what happened can be sufficient proof, the VA will generally place more weight on your service medical and personnel records. As such, it is best to obtain a copy of your service records to make sure there is documentation that proves something happened. If you served during World War II or during the Korean Conflict era, there may be a chance your records burned up in the 1973 National Personnel Records Center fire in St. Louis. Unfortunately, even though the fire was not your fault, VA does not give you a break and make it easier for you to prove your claim. They have a duty to obtain alternative evidence, but you still have to prove something happened in the service. ? Question #4: Do you have medical evidence linking your current disability to something that happened in the service? Out of all the necessary criteria to win your claim, the failure to have evidence connecting your current disability to something in service is probably the most common reason why VA denies claims. You may strongly believe that your disability is related to service, but the difference between success and failure in disability compensation claims frequently involves proving the connection with service. You can state your opinion that your disability is linked to service, but VA will not give your opinion any weight unless you show that you are a doctor or have medical training. There are five basic ways to show that your disability is linked to service. The five ways are as follows: 1. Your condition is directly shown to exist in service. If you can show that your condition had its onset or was diagnosed in service then you will be able to directly show that your condition is linked to service. For example, after a blood test in the service you are diagnosed with diabetes. If you later file a claim for diabetes, you will likely win this claim due to the in-service diagnosis of diabetes. However, an actual diagnosis of a condition in service is not always possible. When you don't have an in-service diagnosis of a chronic disability, you must use a medical expert to link the current disability to something that happened in the service. You accomplished this by having a doctor or other medical professional review your medical records and write a report stating that your current disability was caused by or had its onset during service. We strongly recommend that you obtain a doctor's report linking your current disability to service. (a) If you have a condition that is shown to be "chronic" during service, if you later have an outbreak of the same problem--even if many years later--the VA regulations allow for your to win service connection . (b) If your condition was not shown to be chronic during service, you must show evidence of continuous symptoms since discharge from service. It is also best to obtain a doctor's report stating that your continuous symptoms are linked to service. 2. Your condition was aggravated by service. If you had a condition before you entered service, and it worsened during service, VA must presume that your pre-service condition was aggravated by service. Under these circumstances, VA can only deny your claim if they can show by clear and unmistakable evidence that the increase in the severity of the condition during service was due to the natural progression of the disease. On the other hand, if your enlistment exam did not note any medical problems, then VA must presume that you were fit for duty and in sound medical condition. The VA is required consider you in sound medical condition at induction unless they can prove by clear and unmistakable evidence that your condition pre-existed service and was not aggravated by service. Note: The law provides that "clear and unmistakable evidence" is evidence that is beyond debate. 3. Your condition is on a list of diseases that are presumed to be related to service. If you develop certain chronic diseases within a certain time frame, VA will presume that it is related to service. Here is a partial list: Within one year after discharge from service: examples include: arteriosclerosis, arthritis, brain hemorrhage, cirrhosis of the liver, diabetes, epilepsy, leukemia, psychosis (not mood disorders like depression, anxiety, etc.) or malignant tumors. Within three years of discharge: examples include tuberculosis, and leprosy. Within seven years of discharge: examples include multiple sclerosis. If you develop certain tropical diseases within one year of discharge VA must also presume it to be related to service. Examples include cholera, dysentery, and malaria. If you were a POW and you develop certain diseases at any time, they will be considered service-connected. Examples include cirrhosis of the liver, beriberi, peptic ulcer disease, malnutrition, irritable bowel syndrome, psychosis, anxiety disorders, atherosclerotic heart disease, hypertension, and stroke. If you are a veteran of the Persian Gulf War and you manifested no later than December 31, 2011 a medically unexplained chronic multisymptom illness or a chronic undiagnosed disability with symptoms such fatigue, skin rashes, headaches, muscle pains, joint pains, neurological and respiratory symptoms, then your condition will be presumed to be related to service. If you had in-country service in the Republic of Vietnam the VA will presume that you were exposed to Agent Orange. If you were exposed to Agent Orange it will be presumed that certain diseases are related to service. Examples include chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, prostate cancer, acute or subacute peripheral neuropathy, porphyria cutanea tarda, Parkinson's Disease, ischemia, soft tissue sarcoma, some respiratory cancers, type II diabetes, prostate cancer and chronic lymphocytic leukemia. If you were exposed to radiation, VA will presume that certain diseases are related to radiation exposure. Examples include: thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, colon cancer, pancreatic cancer, kidney and bladder cancer, prostate cancer, and rectal cancer. Note: It is important to remember that just because your disease is not on the list, does not mean you cannot still prove it is linked to service. For example, if the doctors believe your condition was linked to service it should be service connected even if the disease is not on the list. 4. Your condition is secondary to service connection. If you have a disability that is caused by or linked to a service-connected disability then VA must pay you benefits for the second condition. For example, if you are service connected for a severe spine condition that is disabling and extremely painful, and the constant pain causes depression, then you are entitled to service connection for the depression. Another common example is a veteran who is service-connected for an ankle or knee problem that results in an altered way of walking. Over time, the altered gait causes a low back disability. The low back disability would be eligible for service connection. The other possibility is if a service-connected disability aggravates a non-service connected disability. An example would be if you have a service-connected anxiety disorder and it aggravates an ulcer condition. When it comes to aggravation, you must be able to prove the level of disability before the aggravation. 5. Your disabilities were caused by VA medical treatment. If you sustained an additional disability as a result of VA medical treatment, you may be entitled to compensation benefits if you can show that the additional disability was caused by VA medical negligence. The important thing to remember is that just because a medical procedure turned out bad, it does not mean that there was medical negligence. With any medical procedure there are inherent risks, but you must show that the doctor or medical professional provided substandard or negligent care that caused the additional disability. You cannot prevail on this type of claim unless there is a doctor's report stating that the VA provided negligent medical care. As such, we strongly recommend that you obtain a medical expert's report. ? Question #5: Do you have medical evidence demonstrating the severity of your condition? Assuming you are successful in proving service connection, VA will take the next step in the process, which is rating your disability. In other words, the VA will assign a percentage to your disability. This could range anywhere from 0 percent to 100 percent. You should obtain a copy of VA's rating schedule so that you can see what criteria VA will use to assign a rating. MISTAKE #2: Failing to hire a lawyer after they've been denied. Most people who apply for VA disability benefits do not understand the fine points and technicalities in the law. People hire accountants to make sure their tax returns comply with the law. Likewise, disabled veterans should hire a lawyer to help them through this difficult appeal process. MISTAKE #3: Failing to submit detailed statements from friends and family members. It is important to document the symptoms of your condition and how it has affected your life. Many veterans fail to obtain sworn statements from service buddies, friends, or family members who personally witnessed the symptoms of their disability. If you know a buddy from service who can corroborate what happened in the service, you should obtain a statement from him and send it to VA. If you have friends or family members who have observed your symptoms and suffering over the years, then obtain their statements describing their personal observations of your disability. Your friends and family can document that you were always complaining about the problem, that you were in constant pain, or that you were always limited in some way. MISTAKE #4: Overstating the impact of your disability. Some people think they must exaggerate their symptoms to convince the VA their disability is serious. When you overstate your disability, you call into question your entire claim. Every piece of evidence becomes suspect. And, in the end, all you do is hurt yourself. While you need to explain your case thoroughly, make sure what you present is accurate. The VA doesn't like to accept what a veteran says anyway. When there are inconsistent statements in your file, this gives VA an easy way to discredit you and conclude that you are not credible. MISTAKE #5: Failing to obtain a medical opinion linking your disability to service. One of the biggest reasons why VA denies claims is the absence of medical evidence linking your disability to service. If all you have is your own statements claiming the problem is related to service, VA will almost certainly deny the claim. Make sure your claim contains the written opinion of a medical professional linking your disability to service. In other words, the doctor or other medical professional must state that your disability is related to service. MISTAKE #6: Relying on the VA compensation and pension examiner. Although some VA examiners (called "C&P examiners) write reports that are favorable to veterans' claims, it is a mistake to assume that the C&P examiner will say something favorable about your claim. You must take the responsibility to make sure your file contains a well-written and well-reasoned medical opinion from your doctor (preferably a private doctor). This can be a tremendous value in persuading the C&P examiner to write a favorable opinion. Don't hang your hopes and your future on a C&P examiner. If VA sends you to a C&P examination, make sure you obtain a copy of the exam report. If it is not favorable, we strongly recommend having your own doctor respond to the C&P examiner's report. MISTAKE #7: Failing to pursue your claim and, instead, just giving up. The appeal process is long and cumbersome. Add to that your disability and the financial hardship, and you may decide "It's just not worth it." Please don't give up. If you meet the VA's requirements, you have earned the right to receive disability benefits. In addition, a finding of service connection is required to secure other VA benefits such as healthcare. Hiring a lawyer to represent you can make this appeal process much easier on you -- and greatly increase your chances of success. Over the years I have seen that success comes to those veterans who continue to fight their claims.
11 Secrets for Winning Veterans Disability Benefits11 Secrets For Winning Veterans Disability Benefits SECRET #1: Recognize the problem (disability) when it arises. If you are like most veterans, you muster out of the service when you are relatively young. You are anxious to get out and the last thing you feel like doing is complaining about any medical conditions. You don't want to be held over and you want to get home as soon as possible. As a result, you don't make a big deal about any problems. Since you're young you think you can handle it or that it will go away. You deal with the problem on your own for many years without going to the doctor. Finally, after decades the problem becomes too severe and you finally breakdown and see a doctor. By this time, years have passed and the VA now doesn't believe you when you say you had the problem ever since service. You must document ongoing problems even if you perceive them to be minor. If you failed to do this, you must explain the gap in medical treatment, and provide alternative forms of evidence such as statements from friends who can corroborate that you had the problem all these years but just did not go to the doctor or just took over the counter medicines. SECRET #2: File your claim as soon as possible. The sooner you apply, the sooner you'll receive your first benefits check. More importantly, the sooner the VA receives your claim, the sooner you will lock in your back pay date. SECRET #3: Use the statements of friends and family to document the nature and symptoms of your disability. Unless your friends and family members are medical professionals, their statements should address their personal observations of symptoms and the impact of your disability on your daily life. SECRET #4: Obtain a complete copy of your claims file, including your service treatment records and post service treatment records. In order to properly develop your case, you need to analyze what evidence exists and then be able to assess whether you have evidence sufficient to meet all the required criteria. For example, assume that you have a current disability of a low back disorder. A review of your service records shows numerous treatment notes for back pain. The missing link would be a medical expert's report linking your current disability to the back pain from the service. Without a complete copy of your claims file, you will not know what is missing. You need to know what's missing so that you can take steps to obtain and submit missing evidence. SECRET #5: Pursue all possible theories in support of your claim. The VA is required to develop your claim under all possible theories. But VA often fails in its duty. Therefore, you should be prepared to assert all theories that are supported by the evidence. For example, let's assume you have a current disability of depression that you claim resulted from being mistreated by fellow servicemen during service. You also happen to be service connected for a severe low back disorder that causes extensive pain. The records suggest that some of your depression is linked to the back pain. You should make sure that your claim also includes a theory that the depression is linked to the service-connected low back disability. SECRET #6: Do not limit your claim to one diagnosis. Frequently, veterans will make a claim based on their own idea of the correct diagnosis. Later, medical evidence suggests a different diagnosis. Although VA is required to consider all possible diagnoses, you cannot be assured that VA will perform its duty correctly. Make sure your claim includes all possible medical conditions that relate to your symptoms. The law presumes that veterans will be making claims for the symptoms and effects of a disability regardless of the label or "diagnosis". For instance, don't lock yourself into a claim only for anxiety when the evidence may also suggest you have depression. SECRET #7: Continue to make periodic requests for your current VA treatment records. If you are already service connected, a change in your condition could give rise to an increased rating claim, and the treatment for the condition could impact the effective date for any increased rating. Also, new medical records may contain evidence that could be helpful to your claim. Therefore, you should periodically obtain your updated VA treatment records. SECRET #8: Obtain your own medical expert report linking your disability to service. This strategy cannot be over emphasized. To substantially increase your chances of success, you should have your own medical expert review your claims file and provide a written opinion as to whether your current condition is related to service. If you can afford it, your own private medical expert is almost always better than relying on the VA doctors. SECRET #9: Obtain a copy of the VA compensation and pension examiners report. If VA sends you for a C&P examination, make sure you obtain a copy of the doctor's report. If it is not favorable you will then be able to submit rebuttal evidence from your own doctor. SECRET #10: Don't accept "no" for an answer. A high percentage of all first-time applications for VA disability benefits are denied. Often, this is because applicants don't know the facts the VA requires before it can award benefits. Many applicants hire a veterans' disability lawyer to help them prove their case. SECRET #11: If the regional office or the BVA denies your claim, file an appeal. You have the legal right to appeal your claim if your benefits are denied at the administrative level. Once you file a notice of disagreement, you are permitted to hire an attorney. We recommend that you hire a veterans' attorney. Your veterans' disability lawyer can advise you if he thinks he can win your case on appeal.