gavel on a desk

Case Spotlight – April 2022

In December 2021 Partner Mandy Kelly received a long overdue win for one of her clients. The Veteran came to Mandy Kelly in 2019 after tirelessly fighting the VA since 2011. When the Veteran reached out to Mandy Kelly he felt defeated after recently receiving a confusing BVA decision.  This decision from November 2018 granting compensation under 38 U.S.C. §1151 for aggravation of a pre-existing anxiety disorder, but failing to give any compensation to the Veteran.

Where a Veteran suffers an injury or aggravation of an injury as a result of VA medical treatment, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service-connected. 38 U.S.C. § 1151 (2012).

What the client couldn’t understand is how he could be granted benefits, but not entitled to any money per month. The VA’s reason for this finding was based upon  what is commonly referred to as Allen Aggravation. A United States CAVC case, Allen v. Brown, 7 Vet. App. 439 (1995), provided for establishing service connection for that amount of increase in an otherwise nonservice-connected condition which was caused by aggravation from a service-connected condition. In this case, although the BVA agreed that due to the care he received at the VA Medical Center his anxiety disorder was aggravated, the Regional Office erroneously determined that the symptoms were the same before and after this aggravation.

Attorney Mandy Kelly was able to review the medical records prior to the VA’s negligent act, as well as the medical records after, and show the Judge that the Veteran’s mental status was in fact forever changed due to VA care.  Mandy Kelly was able to have a psychologist review these records and provide the proper baseline level prior to the VA’s neglect act and provide the Board of Veterans’ Appeals with a well-reasoned medical opinion supporting this conclusion.

A Board of Veterans’ Appeals Decision from December 2021 ultimately determined that the veteran was essentially symptom free prior to the VA’s negligent act and that the requirements for TDIU were met.  The Judge determined that the Veteran’s service connected anxiety condition precluded him from securing or maintaining substantially gainful employment for the entire appellate period.

The lawyers at Disability Law Group understand how complicated this area of law can be. If you, or someone you know, suffers from anxiety due to VA care or due to your time in service, contact Disability Law Group today for your free consultation. Our attorneys and staff specialize strictly in disability benefits, and we will fight to help you win every benefit you deserve. Whether you were already denied or if you would like advice from the very start, contact us today and speak with one of our attorneys to understand your rights and get the representation that you need.

VA disability attorney and client

Documents a Veteran can Submit to Help Win their VA Disability Case

When you file for disability benefits from the U.S. Department of Veterans Affairs (VA), you will need to provide evidence that proves you qualify for that monthly check. The VA will obtain some of your records if you give them permission to do so, but it could be quicker if you send them the supporting documents directly.

Applying for VA disability benefits can be challenging and frustrating. Many people get denied on their first application. A Michigan VA Disability attorney can advocate for you and appeal an adverse decision or help you prepare your initial application.

Supporting Documents the VA Requires with Your Application for VA Disability Benefits

The VA requires specific documents from everyone who files for disability benefits. Regardless of the injury or illness for which you are seeking benefits, you will have to send in these items or authorize the VA to obtain them:

  • All medical evidence involving your injury or illness. For example, your hospital file, doctors’ records, imaging studies like x-rays or CAT scans, and results of other relevant medical tests.
  • Your DD214 or other documents concerning your separation from military service.
  • Records of your service treatment. 

Veterans who got discharged from the Army before 1961 or the Air Force before 1965 might have difficulty obtaining their records because of a massive fire at a record center in 1973. Your lawyer can help you file your claim if your records got destroyed in that event. 

Reasons You Might Need to Submit Evidence of Your Disability to the VA

There are five different situations in which you might need to submit a claim with supporting documentation to the VA proven your disability:

  1. Your original claim for disability benefits; in other words, the first time you file seeking benefits for a service-related injury or illness.
  2. An increased claim, which is a claim for a disability that got worse after the VA awarded you benefits.
  3. A new claim, in which you request additional benefits or other benefit requests in connection with your existing qualifying disability.
  4. A secondary service-related claim, which is a new disability claim that has a link to your existing service-related disability.
  5. A supplemental claim, in which you submit additional supporting documentation regarding a disability claim that the VA previously denied. 

The required evidence will depend on your type of claim and the facts of your situation. 

What Your Documents Need to Show to Win Your VA Disability Case

Your supporting documents will need to prove both of these factors to win your VA disability claim:

  • You experienced an illness, injury, or event during your military service that caused your disability. The illness, injury, or event must be service-connected.
  • You currently have a physical or mental disability. Put another way, something happened during your military service that caused damage to you physically or mentally. This damage prevents you from being gainfully employed or limits your ability to function and perform everyday tasks.

You do not have to battle the VA by yourself. A Michigan VA Disability attorney can handle your VA disability claim or appeal so that you can focus on your health and well-being. Contact our office today for legal assistance, we offer a free consultation.

VA disability attorney and client

5 Common Errors in VA Decisions that Veterans Can Appeal

If the Veterans Administration (VA) denied your claim for VA benefits or awarded you too low an amount, you might be able to appeal that adverse decision. Sometimes, the VA did not follow its own procedures or made a mistake that led to the unfair result.

A Michigan VA Disability Attorney can take a look at your situation and let you know if you have a strong appeal. Here are five common errors in VA decisions that veterans can appeal:

The VA Did Not Explain the Facts or Law on Which They Based the Adverse Decision

If you wish to appeal an adverse decision from the VA, you must decide which appeal avenue is best for you under the law, and file the appeal on the proper forms. The VA must discuss the facts and identify the law on which they based their adverse decision. If you received a letter that merely stated that the VA denied your application for benefits, you might have grounds for appeal.

The VA Did Not Offer a Medical Evaluation or Opinion About a Claim for a Service-Related Disability

If there is not sufficient medical evidence in your file for the VA to form an opinion as to whether the disability is service-related, the VA might have an obligation to provide a medical examination for you. The VA’s duty to provide a medical examination or opinion about whether your disability is connected to your military service exists when all three of these factors are present:

  1. You can show that you have a current disability.
  2. You can prove that you had an in-service injury or event.
  3. There is evidence that the event that happened during your military service might have caused your current disability.

If you can meet all three of the above criteria, and there is not sufficient medical evidence in your file to make a determination about service connection to your current disability, the VA is under an obligation to provide a medical evaluation and opinion for you.

The VA Health Care Provider or Explanation of the Medical Opinion Was Not Sufficient

The VA cannot use just anyone to perform the medical examination and form an opinion as to whether your current disability has a service connection. The doctor must have a sound knowledge base about your type of disability and explain in detail the reasons for his or her opinion about service connection.

The VA Did Not Get Your Medical Records

The VA does not require veterans to chase down all of the medical records that are relevant to their claim for disability benefits. If you gave the VA sufficient information about where you got treated and when, the VA has a duty to obtain medical records that are relevant to your claim. If the VA did not bother to gather the necessary medical records so that they could fully and fairly evaluate your condition, you could appeal a denial of benefits.

The VA Denied Your Claim for Inadequate Evidence Without Proper Notice of Required Proof

If you filed your application for VA benefits in the last 20 years, the VA has certain duties they did not have before that time. One of these requirements is that the VA has to notify you what information you must submit as proof that your medical condition is service-related. The VA will gather some items, like medical records, on your behalf.

If the VA did not tell you which items you have to submit that they will not obtain for you, and the lack of that evidence adversely affected your benefits claim, you may have a strong case for an appeal. The missing evidence must be relevant to your claim. Also, you must show that the missing evidence exists and would have helped your claim.

You will want to talk with a Michigan VA disability Attorney about whether you have any of the listed arguments, or others, to appeal your claim for VA disability benefits. Get in touch with our office today for a free consultation.

Veteran with prosthetic leg, waiting to discuss his disability appeal

Appeals to the Board of Veterans

If you filed a claim for benefits with the U.S. Department of Veterans Affairs (VA), and you are not happy with the decision, you can file an appeal to the Board of Veterans’ Appeals. The process you will use will depend on whether you are filing a new appeal, or if you are in the middle of appealing a decision dated before February 19, 2019. A Michigan veterans appeals attorney can help you navigate either process. 

All new appeals must use the new procedure under the Veterans Appeals Improvement and Modernization Act of 2017 (AMA). Some ongoing appeals of decisions dated before February 19, 2019, have the option during the appeal of staying with the Legacy appeals process (the old method) or continuing the appeal following the new procedures under the AMA. If you have a new disagreement with a decision dated before February 19, 2019, you will need to file a Supplemental Claim. 

The New Process for Appeals to the Board of Veterans’ Appeals

If you want to appeal a VA decision dated on or after February 19, 2019, you have three options for review. If you try one of the options and are unhappy with the result, you can try one of the other options with some exceptions (for example, you are precluded from filing another HIgher-Level Review request on a decision from a Higher Lever Review request). The three decision review options are: 

  • Supplemental Claim 
  • Higher-Level Review 
  • Board Appeal 

If you have new information the VA did not have when it made its original decision, you can submit the relevant evidence with a Supplemental Claim. If you disagree with the original decision but do not have new evidence, you can ask for a more senior reviewer to perform a Higher-Level Review. If you disagree with the result from either of those two options, you can appeal to a Veterans Law Judge which is also known as a Board Appeal or appeal directly to the Board of Veterans’ Appeals. Splitting appeals into these three different pathways is supposed to create a more efficient appeals process and help catch up the seemingly endless backlog of appeals to be processed for thousands of veterans who have been waiting for a decision, or a hearing, many years after an appeal was filed.

The Legacy Process for Appeals to the Board of Veterans’ Appeals

Under the legacy appeal process, the veteran had to file a Notice of Disagreement within one year of the date on the letter that notified the veteran of the claim decision. The VA would review all the evidence in your case again as well as any new evidence you submitted with your Notice of Disagreement. 

The VA could either grant your appeal in full or send you the VA’s findings in a Statement of the Case (SOC). You would have to file a VA Form 9 within 60 days to keep your appeal going. If you submit new evidence after the SOC, the VA might then issue a Supplemental SOC. 

Your appeal then goes to the Board of Veterans’ Appeals. Unless you qualify for “Advanced on Docket” status, a Veterans Law Judge will only start working on your case when it’s one of the oldest appeals assigned to that judge which typically meant years and years of waiting with an appeal pending. At the Board level, you can also request a hearing with the Veterans Law Judge. The judge does not make decisions at the hearing, but rather issues a decision in writing. Ultimately, the Board will review your appeal and either grant the benefits you request in whole or in part, deny the benefits in whole or in part, or remand in whole or in part which could require further development and/or more evidence. 

It could take as long as five to seven years to receive a ruling if you ask for a Veterans Law Judge at the Board of Veterans’ Appeals to review your appeal. With the recent law changes under AMA, these wait times could be much less, particularly if all evidence is obtained in a timely fashion which may include nexus letters and/or Disability Benefits Questionnaire(s) to be completed by a doctor, buddy statements, command history records, medical research, and more. If this next level is denied, there are additional appeal rights.

What Happens After the Board of Veterans’ Appeals

Whether your appeal is still under the legacy process or the new procedures under AMA, a VA-accredited attorney that is well-versed in disability benefits may be able to help you. Our Michigan veterans appeals attorneys at Disability Law Group can help you appeal your adverse decision and pursue the benefits you deserve. Our disability law firm strictly specializes in disability benefits, and we can help you at a time when you need it most so that no deadlines are missed or evidence is overlooked, placing you in the best position to qualify. 

Contact us today for a consultation.