SERIOUS LAWYERS WHO KNOW HOW TO WIN.
Andrew J. Roberto is a serious veterans disability lawyer, who knows how to win. We serve our veterans with the same character and commitment with which they served our nation.
Veterans who have a disability that developed while in service, or that was caused or aggravated by military service, may be entitled to disability benefits from the United States Department of Veterans Affairs (VA). These disabilities are rated as “percentages” from zero to 100, depending on the seriousness of the problem and the symptoms associated with it. Unfortunately, once an application is made and denied, the process of appealing a Rating Decision is often confusing and complex. Such appeals frequently suffer many delays.
In addition, veterans who have current disability benefits may be entitled to increased ratings if the original percentage assigned was incorrect, or if their conditions have worsened over time. Requests for upgraded ratings go through the same complex decision making and appeal process that applies to new claims.
The Lawyers of Brown & Roberto assist veterans whose claims have been denied, or who are seeking increased ratings. ANDREW J. ROBERTO is accredited as an attorney for the preparation, presentation and prosecution of claims before the VA and he is a member of the National Organization of Veterans' Advocates.
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Call 865-691-2777 in Knoxville or East Tennessee to set up an initial consultation to discuss your Veterans’ Disability case, or reach us through our convenient ONLINE FORM for more information about our practice. For Veterans’ Disability claims, we represent you and charge a contingent fee, where you pay no attorney’s fee unless we recover compensation for you. (Other types of fees – not contingent fees – apply to requests for discharge upgrades.)
Since our fee for handling Veterans’ Disability claims is contingent on being successful for you, there are cases we do not take if we do not believe the chances of success are good. We cannot guarantee results in any case, but we do not want to waste your time trying to pursue a case that does not have a reasonable chance of success. In any case, we are happy to discuss your claim with you, answer any questions that you have, and advise you on your best course of action.
VA DISABILITY CLAIMS PROCESS
Following is a summary of the VA Claims process:
Step 1: File a Claim
A claim can be filed at your local VA office, known as a Regional Office (RO), at a VA Medical facility, or online at the VA’S WEBSITE. As of March 25, 2015, a Veteran who wants to file a claim for compensation has to submit VA FORM 21-526EZ.
The surviving dependent of a Veteran can file a claim for dependency and indemnity compensation (DIC), death pension, and accrued benefits by filing VA FORM 21-534EZ with the RO or online.
Step 2: Claim Decided
Your RO will send you a decision on the claim (the “Rating Decision”). If you are not satisfied with the Rating Decision, you have ONE YEAR from the date the decision is issued to file a Notice of Disagreement (NOD).
Step 3: Notice of Disagreement
A Notice of Disagreement (NOD) must be submitted in writing to your RO or online, and express dissatisfaction with the claims addressed in an unfavorable Rating Decision. Veterans who disagree with a rating decision must now use VA FORM 21-0958, which can be supplemented by additional written arguments and objections. The NOD should express the Veteran’s desire to have the Rating Decision appealed to the Board of Veterans’ Appeals (BVA). The NOD must be submitted within one year from the date the Rating Decision was issued. The Lawyers of Brown & Roberto will assist you in filing the NOD.
After submitting the NOD, the RO will eventually contact you and give you a choice of following a traditional appeals process, or of having a Decision Review Officer (DRO) from the RO review your file. If you select a DRO, that person will do a complete review of the file, as if it had not been previously reviewed, and can hold a personal hearing with you and your attorney.
The Form 21-0958 is not currently required for use by Veterans or their survivors who are seeking pension or survivor benefits (as opposed to compensation), though this may change in the future.
Step 4: Statement of the Case
After reviewing the NOD, the RO will mail you a Statement of the Case (SOC), which will provide you with a detailed explanation of the laws, evidence, and regulations used in deciding your case. In addition to the SOC, the RO will also mail you a VA FORM 9 (SUBSTANTIVE APPEAL FORM) to confirm that you still want the appeal to go forward. If you DO NOT receive a Form 9 from the RO along with your SOC, contact the RO immediately, or obtain the form on line at the VA website. The Lawyers of Brown & Roberto will assist you in filing the VA Form 9.
Step 5: Substantive Appeal (VA Form 9)
Your attorney at The Lawyers of Brown & Roberto will usually prepare the Form 9 for you. This form must be filed with your RO by fax or mail, or be submitted online. You should receive a confirmation letter from the RO certifying your case to the Board of Veterans’ Appeals (BVA) and allowing you 90 days, or until the Board makes a decision (whichever comes first), to submit evidence to the Board in support of your claim. After that time, your claim will be on the waiting list until it is assigned for review (where no hearing has been requested), or a hearing is held by an attorney (“Judge”) who works for the BVA. Unfortunately, the wait time before the BVA gets to your case can be quite lengthy.
The RO must receive your Form 9 WITHIN 60 DAYS of the date they mailed you the SOC, or WITHIN 1 YEAR of the date they mailed you the original decision, whichever date is later.
In filling out the Form 9, you can ask for a personal hearing with a Judge from the BVA. This hearing may be at the RO, or by video conference. An attorney from The Lawyers of Brown & Roberto will prepare you for the hearing and present your case, either in writing or by attendance at the hearing.
Step 6: Decision by Board of Veterans’ Appeals (BVA)
The BVA will eventually review the case. Appeals are reviewed in the order in which the Form 9 is received by the BVA (which determines the “docket date”). As a result, it could take 2 years or more for a claim to be reviewed and a hearing to be held, and even longer for a decision to be made.
The BVA will mail you the decision: either your claim will be granted, denied, or remanded (returned) back to the RO for further action. Typically, even if the BVA grants a claim, the case is remanded back to the RO to determine the percentage of disability assigned to the rating, as well as the effective date of the award.
If your claim is denied, and you wish to continue the appeal, you have several options at this point. You can:
Step 7: Appeal to the U.S. Court of Appeals for Veterans Claims
If the BVA denies a claim, an appeal may be filed with the U.S. COURT OF APPEALS FOR VETERANS CLAIMS (CAVC), which has exclusive jurisdiction (authority) to review adverse decisions from the BVA. This special Federal Court of Appeals, which only handles Veterans’ cases, will review the record to determine if the BVA decision was “clearly erroneous.”
The CAVC is not a trial court. There are no witnesses and no new evidence can be submitted. Previously, there were no VA attorneys who were formally designated to oppose the Veteran, but that situation changes at this point at the CAVC. The VA will be represented by attorneys who will likely oppose your appeal and who will seek to have the Court affirm the decision of the BVA, effectively ending your appeal.
In limited cases, if you lose at the CAVC, you may be able to appeal to the U.S. Court of Appeals for the Federal Circuit. In even rarer cases, a Veteran’s case might be appealed all the way to the U.S. Supreme Court.
*Substantial portions of this material were prepared by the National Organization of Veterans Advocates (NOVA), and was copyrighted, 2013. This material has been edited and updated, and is used with NOVA’s permission, as Andrew Roberto is a NOVA member. However, NOVA is not responsible for the content here, or the edited content, and NOVA is not providing any legal advice of any kind to any reader. The edited content was copyrighted by The Lawyers of Brown & Roberto, 2015. All of the material here is considered promotional or advertising material and is not legal advice. If you have a specific legal question about your VA claim, please consult one of The Lawyers of Brown & Roberto.
WHY WAS MY DISABILITY CLAIM DENIED?
Many Veterans’ claims are denied because the applicant was unable to establish a service connection for his or her disability. It is not enough to show that you have a physical or mental impairment. You must establish a service connection for the impairment.
There are several ways to establish a service connection to your disability. The law does not require you to prove that you were specifically diagnosed with a disability or illness while you were in military service; what is required is for there to be a connection – or “nexus” to use VA’s term – between your military service and the claimed injury or disability.
You may be entitled to benefits if your current disability can be linked to an incident that occurred while you were in military service, or if a pre-existing condition was aggravated by your service, or it may be presumed to be connected to your exposure to certain chemicals while in specific locations (such as Vietnam or Iraq or Afghanistan). You may also be entitled to benefits if a condition or illness develops that is secondary to a disability that is definitely due to your service – for example, back pains that come from walking in an usual manner, when one or both legs were injured in combat, boot camp, or a training accident.
It is possible that a disability claim will be denied if the Veteran received a discharge that was not either Honorable or General (Under Honorable Conditions). The types of discharges – or “bad paper” – that VA says are a bar to disability benefits are: Undesirable (now called Under Other than Honorable Conditions, or UOTHC), Bad Conduct, and Dishonorable (which is also known as a Dismissal for officers). Unfortunately, some Veterans were given administrative discharges that were “bad” due to multiple episodes of minor misconduct, or certain types of drug offenses. Other Veterans got their bad discharges from courts-martial.
In some situations, it is possible to request a discharge upgrade from the Board for Correction of Military Records (BCMR). Each military service also has its own Board. If a discharge upgrade is granted, this new discharge can be presented to VA to show that a Veteran is eligible for disability benefits. A discharge upgrade from the BCMR is binding on VA.
It is also possible, even without action by the BCMR, for VA to determine that a Veteran’s Character of Discharge (COD) does not qualify him or her for benefits – in other words, that it is dishonorable. (The term here has a different meaning than the worst kind of discharge from a court-martial.) This decision can be appealed; if it is not overturned, VA will deny the Veteran Disability benefits.
It is important to remember that a Veteran who has multiple enlistments may qualify for VA Disability benefits because an injury or illness occurred in a period of service that resulted in an Honorable or a General discharge. This may be true even if the last enlistment ended with “bad” paper that would otherwise be disqualifying.
HOW DO I APPEAL WHEN MY CLAIM IS DENIED?
If your VA disability claim is turned down, or if the disability rating that is assigned is not as high as the regulations allow, or the effective date of the VA award is not correct, you can appeal the Regional Office decision at the local level, or you can take your appeal to the Board of Veterans’ Appeals (BVA). With the right kinds of facts and legal arguments, decisions of the BVA may be appealed to the U.S. Court of Appeals for Veterans Claims (CAVC), a federal court located in Washington, D.C., that only hears appeals of Veterans related cases.
Further appeals to other Federal Courts, including the U.S. Supreme Court, may be an option for a select group of cases. The Lawyers of Brown & Roberto can assist you at every step from filing the Notice of Disagreement with a Rating Decision to representing you at a hearing before a BVA judge to appealing to the CAVC and beyond.