Military Veterans' Lawyer Blog
If the Department of Veterans Affairs (VA) denies your request for benefits, don’t be shocked. If VA gives you a lower disability rating than you merit, don’t be shocked. Since 2014, in an effort to reduce its backlog of disability benefits claims, word is that VA is simply shoveling responses out the door. Many are complete denials. Some are just sloppy, giving you “something” (a low disability rating) in the hope you will be happy and go away.
When VA denies your request or offers a deceptively low rating, don’t be shocked: be smart! Seek legal advice and promptly file a Notice of Disagreement (NOD).
Prior to March 24, 2015, it was a lot easier to file a “Notice of Disagreement” or NOD. Now, VA requires use of a specific, fairly prejudicial form, the VA Form 21-0958. The form is being challenged, but until it is overturned, here are some tips to help you in the meantime.
Tip #1: Use a VA-Accredited Advocate
Since 2007 (when VA implemented a law passed in 2006), Veterans have been entitled to formal assistance in preparing and prosecuting their NOD. Not just anyone can provide this assistance. VA accredits attorneys and other representatives. Make sure your advocate is on VA’s list.
Bottom Line: Your advocate should be heavily involved in completion of your NOD form. Your advocate should always review your NOD before you submit it to VA.
Tip#2: Delegate for Question 8
VA Form 21-0958 has a lot of deceptive questions. Question No. 8 sounds friendly, but really isn’t. Question No. 8 asks: Would you like to receive a telephone call or e-mail from a representative at your local Regional Office regarding your NOD? Of course you would, you think. No way. It’s a trick.
Read the fine print. VA says it will make “up to two attempts to call you.” That means they can make zero or one attempt. If VA does get in touch with you, you are unlikely to be fully prepared to talk to them with all your paperwork and information. That means VA will be able to use any of your statements against you.
The right way to handle Question No. 8? Have your advocate check the “No” box. Your advocate can put in “Please call my representative” next to Question No. 8.
Bottom Line: Don’t be duped. Ensure the playing field between you and VA is as level as it can be. Don’t talk with VA’s Regional Office (RO) employees about your claims unless your representative is present.
Tip#3: Trick Question 10
This is where VA Form 21-0958 really shows its true colors. The purpose of this form is to eliminate most benefits claims and reduce the disability rating for those few that do get through. Question No. 10 says: Please list each specific issue of disagreement and note the area of disagreement. If you disagree on the evaluation of a disability, specify percentage evaluation sought, if known. Please list only one disability in each box. You may attached additional sheets if necessary.
Here’s the con in Question No. 10. What if you put a percentage? You run the significant risk of under-estimating the severity of your condition. Also, you run the risk of not fully considering all your disabilities.
Question No. 10 is why an advocate is so important. Your advocate knows how to complete Column C of Question No. 10 in a manner which will ensure you maintain eligibility for the maximum disability evaluation available.
Bottom Line: Don’t cheat yourself out of benefits. Consult with your advocate.
Tip#4: Don’t Be Brief in Your Response to Question 11A
Question No. 11A says: In the space below, or on a separate page, please explain why you feel we incorrectly decided you claim, and list any disagreement(s) not covered above.
The whole question is really a trap. VA invites you to “explain why you feel” it incorrectly decided your claim. By using the word “feel,” VA is pushing you to respond in an emotional manner. Responding emotionally only bolsters VA’s position that you aren’t entitled to any benefits (or to only a low rating) because you don’t have any facts – only “feelings.”
An advocate can wipe that smirk off VA’s face. An advocate can spell out, both in legal and factual terms, precisely where and how VA has erred in assessing your claims. An advocate has experience, not only with your situation, but with VA’s claims handling process in general and with the way VA interprets medical information. Also, an attorney can discuss both the applicable law and the inaccuracies in the way VA represents the law.
Some people prefer to do the necessary legal and medical research themselves and then become familiar with VA practice and procedure before responding. For the rest of us, using a VA-certified advocate is probably the most reliable way to ensure VA receives a “Guess what? You’re not the only one who knows what’s going on!” response to its initial decision.
Bottom Line: Be represented by a VA-certified advocate. Don’t let VA dupe you into going it alone.
As you can see, VA has plenty of procedural tricks to cheat you of your benefits. That simply isn’t fair. It’s not your full-time job to keep up with the law, with VA’s forms, or with VA’s procedures. You are not an expert in so-called “weasel words” and what they really mean. Fortunately, you are entitled to a representative. Someone whose job it is to decipher what VA really means and help you.
Veterans – are you receiving all the benefits to which your service entitles you? If you have doubts, there’s good news. By taking prompt, early action, you are in the best position to maintain or improve your benefits situation. DON’T WAIT. Contact the Law Office of Robert B. Goss, P.C. today for your FREE consultation.