Today, I would like to talk about some of the common mistakes I see when I talk with veterans regarding the filing of their disability claim. First, I will start by saying, I know that the process of filing a claim can be extremely frustrating. Everyone knows about the delays and that the appeals process is backlogged to no end. However, you should file your claim. Here are some of the more common mistakes I see:
Failing to file a Claim as Soon as Possible
Why wait?! While you may not have all the evidence at the moment, the VA has what is called the Duty to Assist. What that means, is that although you may not have all the evidence to support your claim at the moment, the VA is required to help you develop it. By filing your claim, you are preserving the effective date of that claim and thereby preserving your entitlement to retroactive benefits. If you have new evidence, file it! When your claim is granted, the VA will pay based on the date of the claim, whether that is yesterday, six months, or a year and six months ago. Why only shoot for yesterday?
Giving Up Your Claim
As anyone reading this post is well aware, the process is arduous. It is complicated. Add to that that you may have financial hardships that you are dealing with, and it may seem easier to just give up. Do not give up. Let me repeat DO NOT GIVE UP. More often than not, the rating board gets the decision wrong, and it is overturned on appeal. In again, appealing preserves that effective date.
With regards to the appeal, it is also worth mentioning. Do not ask for “reconsideration.” The VA does not consider this an effective appeal. It is not a notice of disagreement, or disagreement at all for that matter. Asking for reconsideration is essentially asking for a rubber stamp on the initial denial all while running out the clock for you to file an appeal. From the date of the initial decision, you have one year. To find a fillable Notice of Disagreement (NOD) also known as VA Form 21-0958, click here.
Failing to Understand the Process
You know that you have a disability, and that the disability is related to service. Do not assume the VA knows that. Do not assume that they will dig to hard to find out what the problem is. Do not assume that they will get it right. Service connection requires three things:
- An in-service event or occurrence,
- A current disability, and
- A medical nexus between the two.
I cannot relate how many times I have seen the VA get this wrong. If you have a condition that you know is related to service, make sure the VA knows that it is related to service. Gather evidence, submit it, get a medical opinion from your treating physician, submit your service records, or find a buddy who can write about what happened to you. Do not count on the VA to get it right.
Not Filing for Secondary Conditions
Many veterans that I speak with do not realize that they may be entitled to benefits in addition to what they are already receiving. This is called secondary service connection. If you have a service connected condition that has caused other problems, you are entitled to additional compensation. This is true whether the secondary condition is caused by the service connected condition, or the service connected condition aggravates a non-service connected condition beyond the ordinary course of the disease.
An example that comes to mind is sleep apnea. Sleep apnea can be caused by posttraumatic stress disorder (PTSD). I am beginning to see the VA get this right more often, but for a long time it took a medical opinion from an outside provider to get service connection for this, and even with that opinion it usually required an appeal.
Failing to Obtain a Medical Opinion
As you have seen in the points above, a medical opinion is paramount to other evidence in your file. The main reason the VA denies claims is the lack of a medical nexus. Lay statements alone will not suffice to support service connection. A medical opinion can make all the difference. If you have a doctor who is willing to support your claim, get his or her opinion in writing. The standard is “as likely as not.” That means, if the doctor is comfortable there is a fifty (50) percent chance that your condition is related to service, he can support your claim.
As you can see, there are a number of easy traps to fall into when filing a claim, but the first is: not filing the claim. File your claim, you can work from there, but once it is filed, you have preserved your effective date and triggered the duty to assist.
Article by: Nicholas Simpson