What Constitutes an Unfavorable or Bad Decision for Veterans Benefits?
The Department of Veterans Affairs is required to notify you of any actions whether positive or negative concerning your claim. We discuss the notification process as well as some common issues why a claim decision may be unfavorable.
Notification Requirements with Veterans Claims
The Veterans Claims Assistance Act of 2000, (VCAA) was enacted on November 9, 2000, and eliminated the requirement from Morton v. West, 13 Vet.App 205 (1999), that a claimant must submit a well-grounded claim before VA can assist in developing the claim. This law mandated specific notice requirements regarding information that is necessary to substantiate a claim. The specific notice requirements under this law and subsequent laws are called by VA "Section 5103 Notices."
The VCAA and subsequent legislative acts require VA to follow these actions regarding Section 5103 Notices
- On receipt of an incomplete application, the 5103 notice will provide the claimant information necessary to complete that application and defer assistance until that application is submitted
- VA will provide 5103 Notices by the most effective means available including electronic communication
- VA will provide 5103 Notices included as a part of standard claims forms in order to guide claimants to proper completion with an initial application
- VA will ignore sending subsequent 5103 Notices on a current claim if the same type of notice has already been sent within one year
- VA is authorized to utilize email as a way to transmit 5103 Notices although VA currently does not elect this method due to some strange excuse for privacy and security
- VA will not send 5103 Notices for supplemental claims, for higher-level reviews and for requests for a decision from the Board of Veterans Appeals
- VA will refrain from or provide any additional notifications for a claim that has no plausibility and which is inherently incredible or clearly lacks merit
- VA will exclude mention of conditions and diagnostic criteria for specific disabilities and which will not be included in a Section 5103 notice letter.
- VA will include with the standard 5103 letter sent in response to an initial application, a VA Form 21-4142 to allow the claimant to give VA permission for requesting private medical records
Requests for any additional information with the initial 5103 notice must be completed within 30 days or the VA has the right to make a decision based on evidence currently in the file.
One of the most frustrating issues with submitting claims for veterans benefits is what appears to be a lack of these mandated communications or notifications discussed above. After submitting an initial application it may take months before the claimant receives confirmation of that application. If the application is what is considered substantially complete, no further communication may be received for months on end. Typically, any information on that substantially complete application that is missing will be requested in the initial 5103 Notice. Perhaps the only additional notification on a submitted claim will come with a Notice of Decision which we discuss further on.
Notifications provided by VA will come through the U.S. Postal Service. As mentioned above email is allowed by law but VA refuses to use it. If the initial application is made through eBenefits or through vets.gov, the 5103 Notices will be posted online on those private accounts and notices will not be sent through the mail. This means that the applicant must check his or her online accounts regularly rather than expect a letter from VA.
As you can see from the requirement for notification in the list above, VA is determined to hold its communications with the claimant to a minimum. Presumably this is to save time in the Regional Office to provide for more productive activities.
If the Regional Office decides to order a medical examination, a number of notices will be mailed regarding this examination and instructions will be given on how to conform with the order for the examination. No notification will be sent after the examination regarding the outcome of that examination.
If the application is what is considered incomplete, additional inquiries which are not regarded as 5103 Notices will be sent to the claimant to request further information. These are typically called development letters and we will discuss these below.
Additional Requests for Information – Development Letters
If the Section 5103 notice has been provided to the claimant but there is additional information needed from claimants to support their claim, then Regional Offices are obligated to notify claimants of this required information. In such cases, this does not include redundant Section 5103 notice information in the letter to claimants.
Pension and burial applications electronically submitted on-line via www.Vets.gov (Vets.gov) will not include FDC information, What The Evidence Must Show or application instructions in the electronic claims folder. Claimants are provided this information when they submit the application using Vets.gov.
In some special issue or special circumstance claims, the standard 5103 notice letter does not inform the claimant that additional information or evidence is necessary to develop and adjudicate the claim. In these situations, VA will send a subsequent development letter to the claimant soliciting the information needed. Here is a list of those special issue or special circumstance claims.
- asbestos exposure
- Camp Lejeune contaminated water
- Chemical Biological Radiological Nuclear and Explosives (CBRNE) claims entitlement to compensation under 38 U.S.C. 1151
- environmental hazards (not covered under 38 CFR 3.317)
- fire-related STRs (service treatment records that were destroyed in the fire at the records center in St. Louis) hepatitis requiring risk factor development
- herbicide exposure
- military sexual traumas
- military treatment facility records related to a sensitive diagnosis
- mustard gas or Lewisite exposure
- former prisoner of war (FPOW) status
- radiation exposure under 38 CFR 3.309(d)
- radiation exposure (ionizing) under 38 CFR 3.311
- Shipboard Hazards and Defense (SHAD) project exposure
- special operations participation Southwest Asia service (qualifying disability under 38 CFR 3.317)
- Vet Center records (Vet Centers are mental health treatment centers for veterans)
Responding to Development Inquiries
If more information is required by the Regional Office concerning a claim, a phone call will be made to get that information. If that attempt fails, a letter will be sent. VA will send the claimant what is called a "development letter " when it needs more information to help decide a claim. Phone inquiries or letters may be initiated for a variety of reasons, including:
- insufficient marital history for all marriages
- missing death certificate
- lack of evidence of financial information for pension claims
- lack of care service information for pension claims
- insufficient proof of payment for a certain medical expense for pension claims
- possible re-imbursements for care or funeral expenses for pension claims
- clarification of tax events from past years' statements for pension claims
- insufficient medical evidence to determine a rating
- unsigned forms
- incomplete forms
- poor quality or photo-copied discharge records
- lack of in-service duty assignments to establish service connection
- special issue claims that require additional information for development
If a development letter is sent, do not assume this is a denial. Generally, a response with the proper additional evidence will satisfy an inquiry and give the Regional Office enough information to continue processing a claim. Read the development letter carefully from top to bottom and pay attention to any response time requirements. You generally have 30 days to respond to such a letter and if you fail to do so, adjudicators have the right to decide the claim based on the evidence in the file. This likely means a denial.
To respond to a development letter, use Form 21-4138 as a cover letter. Complete any other form the letter asks for. Also consider including outside evidence to support any new information you need to give VA. Remember, the more detailed your response, the more likely VA can continue processing the claim. Ask yourself, "did I cover the who, what, when, where and why of the items in questions?"
Understanding Decision Notices
When a decision is made on a claim, VA will issue a letter describing that decision. This is currently called by VA a notice of decision or a decision notice. Effective February 19, 2019, 38 CFR 3.103(f) requires VA's written notification of decisions to include all of the following elements:
- identification of the issues adjudicated
- a summary of the evidence considered
- a summary of the applicable laws and regulations
- identification of findings favorable to the claimant
- in the case of a denial, identification of elements not satisfied leading to the denial
- an explanation of how to obtain or access evidence used in making the decision
- if applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation, and
- a summary of the applicable review options under 38 CFR 3.2500 available for the claimant to seek further review of the decision.
Having received a notice of decision that is not favorable, the claimant can either accept that decision or challenge that decision. The information in this section on this website describes the various ways that a decision notice can be challenged.
Two Types of Unfavorable Decisions
VA may reject the claim outright with a denial or in many cases the desired disability rating is not what was expected. For example a veteran claiming PTSD may get rated at 50% when he or she feels like the 70% rating threshold was more in line with his or her expectations. With Pension claims, an unfavorable decision might be an award for less than the Maximum Annual Pension Rate.
Thus there are two types of unfavorable decisions. One where there is an outright denial and another where the monthly benefit payment is less than expected. In subsequent sections we will talk about how to challenge unfavorable decisions. See the table of contents to the right. Below we introduce some information on unfavorable decisions found on other websites.
How to Avoid Bad Decisions – What Makes a Good Claim
By Catherine Cornell, Attorney – The Veterans Practice, Ltd. Let's take things back to basics: what makes a good VA disability compensation claim? VA disability is like worker's compensation for veterans. When hurt on active duty, veterans can get VA compensation, just as a civilian worker could get worker's compensation if hurt on the job. This sounds simple, but the process can be trickier than you might think.
If not handled correctly from the outset, a compensation claim could be denied, possibly leaving the veteran mired in the appeals process for years. Yes, that's right. Years.
The following tips can help veterans avoid the delay and frustration of a denial and have a better chance of obtaining VA benefits from the outset.
- Understand what's required for the claim. Basically, VA compensation requires the veteran to show he has the condition he is claiming, usually through a doctor's diagnosis. The veteran must also prove an in-service incident or injury caused the condition or that it showed up for the first time in service. That's usually done with the help of a medical professional. Finally, in most cases the veteran needs to prove the incident, injury, or the manifestation of the condition actually occurred by using service records, buddy statements, newspaper articles or other proof. Other VA benefits, such as unemployability, have different requirements. There can also be other proof required depending on the time period and location of service. Veterans should carefully research what's needed for a specific benefit, or get help from a veterans service officer. Many of those officers can be found in each state's VA regional office.
- Don't claim un-winnable conditions. After veterans nail down requirements for specific claims, they may realize a certain condition is not worth claiming. For example, a back injury from a car accident after service will not lead to VA compensation. Veterans should save time and possible frustration by not claiming disabilities that are clearly not service connected.
- Be proactive. The VA has a duty to assist veterans in obtaining information that might establish compensation claims. However, the reality is that the VA is overwhelmed, so it's in the veteran's best interests to gather as much evidence as possible for the claim herself.
- Use the correct forms. For example, the form for a new claim is different than the one needed to appeal a claim that was denied. The same goes for a veteran seeking unemployability benefits. The VA has forms for almost everything and they can generally be found on the Internet. If the correct form isn't used, a claim can be delayed or rejected.
- Get military records. If a veteran doesn't already have a complete copy of his Official Military Personnel File, he should request it, usually from the National Personnel Records Center in St. Louis. The military file might contain helpful evidence to prove claims. Again, the VA has a duty to help obtain records to establish claims, but the veteran is best served by taking an active role in this process.
- Send in evidence with the claim. After a veteran gathers all the evidence and information possible, it should be sent in with the claim. Helpful evidence may include: service and medical records; witness statements; private doctor statements; and any additional information or documentation that might help the VA make a favorable decision faster.
- Show up to VA exams. If the claim has merit, the VA will likely schedule a Compensation and Pension exam. That's when a VA examiner meets with the veteran and renders an opinion on the likelihood that the claimed condition did stem from service, and the degree to which the condition is disabling. If a veteran doesn't show up for the exam without re-scheduling it, the VA may deny the claim.
- Know what the VA exam is about. Often veterans submit claims for many conditions but are then scheduled for just one exam. Don't go in blind. Contact the VA to ask what the exam will cover. That way the veteran can be prepared to explain the condition and how it resulted from service.
- Don't miss deadlines or fail to respond. After getting a claim, the VA might send additional forms for the veteran to fill out or ask for clarification of a claim and set a deadline to respond. If a veteran lets these forms go or misses a deadline the VA might issue a denial.
- Don't give up. The VA process can be wildly confusing and frustrating. Despite best efforts to send in correct forms and supportive evidence, compensation claims are often still denied. Veterans shouldn't be afraid to seek help from knowledgeable people if necessary and, above all, shouldn't give up on the benefits they deserve.
Top Six Reasons VA Denies a Claim
The following was taken from the website of the law firm Hill and Ponton at hillandponton.com/top-six-reasons-va-denied-my-claim/
November 21, 2014 | in Featured | by Matthew Hill
1. VA did not have proof of your injury in service
You must show that your disability is related to an in-service incident. If VA said that there was no proof of what happened in service then you need to find something to back up what you say happened. The most common evidence to prove your incident in service is service records. These can be either medical records or records of your duty stations or performance evaluations. If VA said it could not find these records and you believe that they exist then it is worth writing to the National Personal Record Center to obtain them.
Even if the records are missing, proof of an in service incident can be found through other means. Find others who served with you and have them write buddy statements describing the incident. These statements count as evidence. Also, you can look for unit records through the National Archives or records of your base, ship or unit on the internet.
2. VA says you do not have a disability
To obtain service connected disability benefits your disability must have a diagnosis. Pain is never a diagnosis. Exposure to deadly substances like Agent Orange in Vietnam or TCE in Camp LeJuene is not enough if the exposure does not result in a current diagnosis. So if a Vietnam veteran, exposed to Agent Orange, develops Diabetes then that is a diagnosis.
Two common areas where this is a problem are back problems and mental illnesses. Often veterans will treat for back pain but the doctor will not give a diagnosis. With mental illness you might be treating with a doctor for mental health problems but VA will deny benefits because VA's doctor will state that you do not meet all that is needed for the diagnosis. This problem happens a lot with PTSD cases. It is important if you are treating with a doctor that you ask for them to give you a diagnosis. If it is a mental health case like PTSD, then you need to ask the doctor to lay out all the elements of the diagnosis in the medical record.
3. VA says that your illness is not related to service
To get service connected benefits, you have to show that there is a link, or nexus, between what happened in service and the current diagnosis. If VA says that they are not connected then it probably did so based on an exam from its own doctors, a C&P exam. If the C&P doctor says that there is no connection then you should go get an opinion from your doctor or an independent medical exam from outside doctor. You should give them the service records and medical records that they need to not only say that your disability is related to service but to explain why it is.
4. VA says you did not show up to your C&P exam
It has recently come to light that VA was setting C&P exams, the exams VA uses to determine of a veteran's service connected compensation benefits, and not telling the veteran. Then VA would deny the benefits and say that the veteran did not show up to the C&P exam and that is why it was denied. VA gets an automatic denial if the veteran does not attend the C&P exam. Unfortunately, VA has been denying on this reason when it never told the veteran about the exam. In this case, you should write VA and state that you were never informed. If you were informed and did not attend then you should also write and state why you could not attend. If you do not hear back from VA after a couple of months then you should file an NOD and appeal the case.
5. VA doesn't believe your doctor
If you got your doctor to write a favorable opinion for your claim and VA rejected it then you need to go back and look at the opinion to see if it is thorough enough. VA routinely rejects opinions from treating doctors—both VA and private doctors. There are certain areas that VA always looks to in dismissing your doctor's opinion:
• Your doctor did not review your C file. The doctor does not have to review the whole file, just the part relevant to your claim.
• Your doctor must review everything in the C file and outside of it that relates to your claim and state he did so in the report. An opinion that states the doctor discussed the claim with the veteran and nothing else will be rejected.
• Your doctor must use VA's language—that the disability is ‘it is likely as not' to service
• Rational: the doctor must state why he believes that they are connected
6. How do I know that VA got the evidence to prove my claim? VA has a duty under the law to get the evidence needed to prove your claim. This duty includes getting medical records, service records, Social Security records and medical exams. But how do you know that VA did this? You need to request from VA your C file. This is the folder that the VA benefits section keeps on you. It will have all information about every claim you have filed since getting out of service. Most importantly, it will show you the evidence VA used in its decision on your case. You want to check this to make sure that all the favorable evidence you sent, or asked VA to get, is in the file. You don't know what VA is using against you until you review your file
The following was taken from the website "Veterans Disability Info" found at veteransdisabilityinfo.com/how-discredit-unfavorable-va-exam.php
How to Discredit an Unfavorable VA Exam
Nothing is more frustrating than a VA compensation and pension ("C&P") exam report that wrongly concludes service connection is not warranted. And most of VA's denials are based on these VA exam reports.
Therefore, having several techniques for discrediting a VA doctor is a necessary part of a veteran's strategic arsenal. First, if VA conducts a C&P examination the veteran should obtain a copy of the exam report as soon as possible. Without the exam report, it is difficult to know what the VA doctor said.
Once a veteran obtains the VA doctor's report–and assuming the report is unfavorable–there are several items that should be evaluated. A veteran should make sure that the VA doctor reviewed the claims file. Failing to review the claims file is not always required, but in cases where service-connection is the issue, it is important to evaluate the historical evidence. Thus, if the VA examiner did not review the claims file, then the veteran should submit written argument that the VA examiner's opinion is uninformed since he failed to review the claims file.
Besides failing to review the claims file, the VA examiners will often assume facts that are not true. A veteran should carefully look at the underlying factual basis for the VA examiner's conclusion. If the facts upon which the examiner relied are contradicted by the evidence in the file, then the veteran should submit an argument asserting that the VA exam report is entitled to zero weight since it relied on an inaccurate factual premise.
Another basis of attack concerns the VA examiner's rationale. It is becoming more common to see the VA exam reports in the form of a checklist. These reports simply ask the doctor to check-off certain boxes. Typically, the VA doctors do not provide adequate reasons for their opinions. In other words, the VA doctor will simply give a bottom-line conclusion that it is less likely than not that the disability is linked to service. Under these circumstances, the veteran should submit argument attacking the examiner's report as being inadequate due to the lack of a rationale. The VA doctor must give reasons to support his conclusion, and the failure to do so should entitle the opinion to zero probative weight.
Keep in mind that if you do not object to the competency of the VA examiner while the case is still at the administrative agency, you will not be able to argue that issue on appeal at the U.S. Court of Appeals for Veterans Claims.
But perhaps the best way to discredit a VA examiner is to obtain a rebuttal opinion from a private medical expert. The private medical expert must have reviewed the claims file first. The private medical expert must then thoroughly explain why the VA examiner is wrong and point out factors that the VA examiner failed to consider. To add more weight to the rebuttal opinion, the VA examiner should also cite to scientific articles or treatises.
Please refer to the table of contents in the top right column of this page for more topics on Unfavorable Decisions.
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TABLE OF CONTENTS
- Understanding Bad Decisions
- What Led to the New System
- What Is the New System
- Advantages of New System
- Legacy Claims and Appeals
- Help with the New System
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