Overcoming VA Denials: Your Guide to Appeals | South Portland, ME

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Overcoming VA Denials: Your Guide to Appeals

Atty. Kristian Terison: [00:00:00] What should my first steps be after getting that denial?

Atty. Francis Jackson: Well, obviously the first step should be to read it with care and see what they said. But I think for most people what a denial really says is that, you are not familiar enough with the system to be effectively presenting this claim.

And so, it really is a message that it’s time to get help, and there’s lots of help out there. You know, we obviously specialize in handling veterans claims. But for less complex or less sophisticated claims, there are a number of veterans organizations, American Legion, Disabled American Veterans, Paralyzed Veterans of America, Vietnam Veterans, etc., who have what they call veteran service officers that will help with these claims.

Atty. Francis Jackson: [00:01:00] Welcome to Victory Over VA, your guide to unlocking your disability benefits. This is our weekly, podcast about veterans benefits. If you’re a veteran applying for benefits, subscribe to our podcast for the latest developments in VA disability.

So welcome, I’m Francis Jackson, this is Kristian Terison, and we’re doing a weekly podcast on Veterans Disability Benefits issues.

So, what is this about? This is about Why You need To Appeal.

And, who are we? Well, as I said, I’m Francis [00:02:00] Jackson, this is Kristian Terison. We work at Jackson MacNichol, which is a law firm which specializes in handling veterans disability benefits. Our job is to get justice for veterans on their VA disability claims.

So, who’s this show for? It’s for veterans, but in addition to veterans, it’s for those who are interested in veterans, care about veterans, whether we’re talking families, whether we’re talking friends, whether we’re talking community support for veterans, anyone who’s interested in veterans and wants to see them get justice on their claims, this is the podcast for you.

So, let’s launch into this week’s podcast.

Atty. Kristian Terison: All right. For this week’s podcast, we’re talking about the persistent myth that because a claim was denied, that’s the end of the road and there’s nothing to be done. And as you and I know, there’s you know, that’s just the beginning, the tip of the iceberg, if you will.

[00:03:00] So, I guess, how often do you work with veterans whose claim was initially a denial?

Atty. Francis Jackson: Basically all the time, since we do appeals. But it’s a sad thing that people have been socialized to think of the VA claims process as a government determination. And while it is a government determination, that has sort of a certain aura about it.

You know, the government decided that this, well, in the VA disability context, it’s really more like the insurance company denied my claim. What do I do now?

So, keep in mind that individual disability claims are not some sort of government pronouncement of a policy from on high. They’re a perfectly ordinary person sitting behind a desk at the VA doing claims processing.

Just like, a [00:04:00] social security disability claim, or an insurance claim, or any other situation where you’re asking someone to pay money based on a certain set of facts the VA claims are just that, a claim, and the VA looks for certain information to support the claim. It is often not immediately apparent to the VA that the claim should be granted when they get the initial information.

It’s often that other information will be necessary in order to persuade them to grant the claim and to show that all the criteria have been met. So, an initial denial, while annoying and sometimes unfortunate in other ways, is not the end of the claim. That’s the critical point.

Atty. Kristian Terison: All right. So, can you talk a little bit about the appeals process?

What comes after that initial denial?

Atty. Francis Jackson: Sure. The VA, a few years ago, effective [00:05:00] February of 2019, changed the appeal process pretty dramatically.

So now, if you’re denied, you have options about how to proceed. It used to be if you were denied, you simply had to either file another claim or appeal to the Board of Veterans Appeals. But now it’s different. You can still file another claim. We don’t recommend that, but you can.

But there are three alternative approaches to appeal. One is what’s called a higher level review. If you think that the VA made an obvious mistake, and, you know, sometimes they do. But if you think they made an obvious mistake, that having somebody just take a second look at the information that’s already there will result in a different determination, then there’s a process called higher level review.

And all that happens in higher level review is that, the claim goes from one person [00:06:00]in the claims processing office to a person with more experience in the same office based on exactly the same information.

So, unless there’s a really obvious problem with the decision, the second person is typically going to say the same thing that the first person said. You know, this is the information we’ve got, based on this, you don’t qualify, but there are other options.

So, a second approach is what’s called a supplemental claim. Supplemental claims are particularly useful in situations where the VA turns the claim down saying that you had previously filed a claim and you haven’t provided them with any new and relevant evidence when you filed this current claim.

The reason supplemental claims are so helpful there is that, with the supplemental claim you have a year from the time of the denial to file a supplemental claim and to provide with it the additional [00:07:00] information that the VA said was missing.

So, if you were denied because the VA said, Hey, you made a claim 10 years ago, we denied it. You’ve come back now and you’re making the same claim all over again, we’re still denying it because you haven’t given us any new information.

You can go make a supplemental claim, submit that with the new information, as long as you submit it within a year, you’ll keep the same date for the effective date for your benefits if the claim is granted. So that’s two.

The third alternative is to go to the Board of Veterans Appeals, which is what the system required before. But now it’s an alternative, it’s a choice if you don’t think higher level review or supplemental claim will fix your problem.

So, the good news is that the Board of Veterans Appeals has judges. You get to actually talk to the judge if you want, you can have a video hearing with the judge, talk to him or to [00:08:00] her, explain the situation, answer all the questions that they may have about your claim, anything that they couldn’t puzzle out from the record. And you have someone who is legally trained, who is hearing your case, and has other legally trained attorneys to assist them in reviewing and assembling the information.

And so, your chances of success at the board statistically are higher, and that’s, just the government’s own statistics. If you go to the board there’s a significant chance that your claim will either be granted or remanded. Remanded means that the board decided that the initial decision was probably wrong, but they need more information.

So, they send it back to the regional office and tell them what additional steps need to be taken so that they can fairly analyze your claim, but that’s the good news.

The bad news is that lots of people have made claims, there’s recently within the last couple of years, the PACT Act, which has [00:09:00] created a very broad array of new presumptive claims.

So, lots of people are filing claims, and so, there’s an awful lot of people kind of ahead of you in the system when you make an appeal to the board. And so, the bad news is it takes a long time, we’re seeing claims that are going three and four years.

Now let me also add that in the appeals process at the board level, again, there are three alternatives.

You can take what’s called a direct appeal, which means that you simply say to the board, I think the regional office got it wrong, I want you to look at it. You don’t get to offer any new evidence, you can send them a written argument saying why you think the decision was wrong, but they’re going to review it based on the same evidence that was looked at the regional office.

And going back to my discussion about the higher level review, mostly, if you give the same information to people applying the same [00:10:00] standards, you’re going to get the same result. I mean, just, that’s the way it works.

So, we don’t typically encourage direct review unless there was a really glaringly obvious error. I mean, sometimes they just get stuff factually, obviously, facially wrong. And you can get it fixed on direct review, but those are rare.

The second alternative way to go to the board is the evidence submission lane. And in that lane, you file your Notice of Appeal and either with the appeal or within 90 days after the appeal, you submit additional evidence that wasn’t looked at before that you think will change the result and you bring that to the board.

The third alternative, and the one that I typically recommend to clients because I think it’s the most useful, is a hearing at the board. And in a hearing, as I mentioned earlier, you get a chance to actually talk to the judge. You get to explain [00:11:00] what the situation is, answer questions that the judge has after having looked at the file.

You get to supply new information for a period of up to 90 days after the hearing, and so, you have in my opinion, the best chance of persuading the board to grant or re-manage your case if you go to hearing.

Now, the VA, in a number of things it sends out, suggests that if you ask for a hearing that will delay your case. The fact is, the VA is obligated to take cases in docket order, which essentially means chronological order when the case came in that sequence.

So, what we’ve found is that, direct review and evidence submission rarely result in a faster decision. Now, I won’t say it’s impossible because sometimes somebody at the VA actually really pays close attention to a particular case and they turn it around quite [00:12:00] quickly.

But that’s the exception, not the rule. Ordinarily, they just take them in docket order and doesn’t really matter how you got there or what the evidence is, they just work through them. We typically encourage people to ask for a hearing, the statistics are that, cases that go to hearing have a 10 percent greater chance of success.

So, you know, if you were going to the craps table in Reno or Las Vegas and somebody said, hey, chances are 10 percent better at that table or 10 percent better at this table. Most people would go to the table with the higher chance. And that’s pretty much our view of how it works at the board.

If you have a hearing, you have a better chance. And, you know, nine out of ten times it doesn’t matter. But if you’re the 10th one, it makes a heck of a difference.

So, that’s kind of how the appeals process unfolds.

Atty. Kristian Terison: And I know you mentioned earlier that, you know, virtually all of the clients [00:13:00] that we’re working with have had an initial denial.

It’s really, you know, a prerequisite for you know, coming in as a client. So out of that population, what have been some of the most? Amazing successes, folks who have come back from that initial denial.

Atty. Francis Jackson: Well, I think one of my favorite ones is one that my partner, Alexandra did.

And this is a World War II veteran, he was denied because the VA was unable to find evidence that he participated in a situation where a companion ship was sunk by, I’ve forgotten now whether it was the Japanese or the Germans, but one of them. And a number of sailors were drowned and he participated in the rescue operation and in fishing bodies out of the water. And they couldn’t seem to get themselves together to find this evidence.

So, Alexandra did some research, went to the military history records and was able to get [00:14:00] records showing the torpedoing of the ship, that his ship participated in the rescue, she already had the records showing he was on the ship at the relevant time, and in all fairness to the BVA, they turned that case around very quickly, granted this gentleman who was by then, I think in his early 90’s benefits right away. And it was very gratifying to see that happen.

Atty. Kristian Terison: So, I guess, piggybacking on, that, how critical is fresh evidence or additional documentation when you are undertaking an appeal?

Atty. Francis Jackson: I think it’s almost always critical, keep in mind that, the folks who adjudicate these claims originally at the regional office level are not necessarily particularly sophisticated people, they don’t have law school training. But most of them have a reasonable degree of training and experience and, you know, have some common sense.

So, if you presented the information to them and got a [00:15:00] denial, logic suggests that if you present that same information to someone else, it’s likely that you’ll get that same result, another denial.

So, I think it’s very important to have additional evidence when you go up on appeal. Now, there are exceptions. Don’t misunderstand, there are times when the people at the regional office simply didn’t understand or didn’t appreciate the significance of particular things. But usually, same stuff gets the same decision, and that’s just the way it works.

Most of the time, what we find is that, the bulk of the cases that get denied because the VA is not convinced of the medical connection between whatever happened in the service and the current disability.

And so, the way you solve that is with a medical opinion that explains medically how you got from point A in the service to point [00:16:00] B, the disabling condition you have now.

And one of the things that I really, really like about our firm is that, we have developed over the years a working relationship with a large number of experts, so that we know, most of the time, who to go to for a particular kind of case, who can analyze it and tell us one of two things. Either, yes, I can show the VA how we got from A to B and submit a nice report explaining that or once in a while, say to us, No, there’s just, the VA’s right, there’s just no relationship here and this is not a claim you should continue to pursue.

That doesn’t happen often, but it happens some. But mostly, we are able to find an expert who can explain why it is that this veteran believes so strongly that this event in service caused his current disability and explain how those two are connected.

And [00:17:00] that is a very large part of what we end up doing.

Atty. Kristian Terison: So, you know, say I’m a veteran, I go out and I check the mail, and unfortunately there’s a denial letter. What should my first steps be after getting that denial?

Atty. Francis Jackson: Well, obviously the first step should be to read it with care and see what they said. But I think for most people what a denial really says is that, you are not familiar enough with the system to be effectively presenting this claim.

And so, it really is a message that it’s time to get help, and there’s lots of help out there. You know, we obviously specialize in handling veterans claims. But for less complex or less sophisticated claims, there are a number of veterans organizations, American Legion, Disabled American Veterans, Paralyzed Veterans of America, Vietnam Veterans, etc., who have what they call veteran service officers that [00:18:00] will help with these claims.

They don’t charge anything, a lot of states have either state level or county level systems of providing people to assist veterans. In Massachusetts, in fact, every town over, I think it’s 12,000 in population, something like that, maybe it’s 10,000 in population. Anyway, they have a person whose specific job it is, to assist veterans.

But the point is, there are lots of sources of help out there. Some of it’s free if you’re concerned about cost. I would mention, though, that most veterans attorneys do these cases on what’s called a contingent fee agreement, meaning there’s no upfront charge that the only charge is if in the event that you win the case, then you have to pay a percentage of your veteran’s benefits, and that’s only out of the back benefits.

And unlike the typical personal injury case where the fee may be a third or [00:19:00] 40% of the amount recovered in these veteran’s benefits cases, it’s typically only 20%. But Putting aside the cost, there are lots of sources of help and when you get an unfavorable decision that’s a sign you should get help.

Atty. Kristian Terison: And I’m always reminded of that the one client who put it so succinctly, they’d rather have 80% of something than 100% of nothing when it comes to the contingent fee uh,

Yep. arrangement.

Atty. Francis Jackson: Yeah. I’ll never forget that. That was just such a funny line.

Atty. Kristian Terison: Well, and I guess speaking of percentages what percentage of denied claims do you see that can be brought to a successful conclusion?

Atty. Francis Jackson: We win about 95% of all the cases where the person sticks with us over the period of time. And I add that caveat because, unfortunately, as I mentioned earlier, the process, particularly at the BVA level, can be quite slow. It adds on even [00:20:00] further time if you get denied there and you have to file an appeal to the court or a supplemental claim to keep the claim going.

But if you will stick with us, we know how to win these cases. You know, I’ve had people come to me and say, I hired you to get my case to go more quickly, and I always say to them, then you made a mistake. Because it is unlikely that we are going to be able to make your case go much faster.

We know some little tricks that sometimes help a little here and there. But mostly, your claim is going to take as long as it takes. And that’s often measured in years, not days, or weeks, or months. But the point in all that is that, if you will stick with us, we will stick with your claim, and we win about 95% of them.

Atty. Kristian Terison: And then, what are some of the things that, you know, we as a firm are able to do to address the sort of mental and emotional toll that the process can take on a veteran going through those [00:21:00] appeals?

I’m thinking specifically of you know, taking on the burden of worrying about notices, deadlines, things of that nature.

Atty. Francis Jackson: I think you’ve hit on the major thing. For most people, having one of these claims pending is a source of worry and frustration and what we tell every client and what we do for every client is we say to them, look, you know, you focus on, you get yourself healthier, you know, focus on whatever you need to do to improve your situation independent of this claim, let us focus on the claim, we will do the worrying about that, making sure stuff gets filed on time, making sure we get the evidence that’s out there.

I think that’s really the the biggest benefit that we bring to most clients. The other part of that, of course, is that we make sure that we cross the T’s and not the I’s and do get things filed on time and do get the evidence.

And generally, move the claim forward as best we can. And once in a while, we can find [00:22:00] ways to get the claim expedited. Unfortunately, that’s not something we can do for everyone, so I don’t want to sit here and suggest that if you come to us magically, we’re going to get your claim expedited. No, it’s probably not going to happen, but for some people we can find a way to shoehorn them into these little exceptions that allow the VA to expedite the case.

So, I think that’s the long winded answer to your question.

TNM. Sure, we’re coming up on the end of the episode, but just lastly, what would your advice be to a veteran who’s disheartened by a denial and thinking of throwing in the towel?

Well, in a word, don’t. But would say to someone who’s at a denial is, it’s time for you to sit down with someone with significant experience with these claims and get an objective analysis. There are some claims that simply are not possible, are not factually you know, approvable.

A very sad case a few [00:23:00] years ago where a gentleman came to us, had a claim for PTSD. He’d already been denied, he had an appeal deadline coming up. So, we filed the appeal to make sure we met the deadline.

But as we developed the case, what it turned out was that, the PTSD was very real and very disabling to him, but it had nothing to do with his service. It was unfortunately all about the loss of his son in an auto accident and simply not related to his service in any way. And we, had to ultimately tell him that was not a claim that we could go forward with, that there simply wasn’t any basis for it.

We, we paid for a psychological evaluation for this gentleman to see if there was a relationship to service. And it was one of those rare cases where the answer was no. There was not.

And so, that happens sometimes, but as I said earlier, 95% of the time, if you have a claim that you in good faith think is related to service, we can prove it for [00:24:00] you.

Atty. Kristian Terison: All right. And on that hopeful note, this has been another episode of Victory Over VA.

Please be sure to subscribe and tune in next week.

Atty. Francis Jackson: We’ll see you then.


Welcome back to another episode of Victory Over VA Podcast! In this episode, we have a special focus on helping you overcome VA denials and providing you with a comprehensive guide to appeals. Whether you or a loved one have faced a denial from the VA, this episode is a must-listen. Join me as we dive into the intricacies of the appeals process and equip you with practical tips and strategies to increase your chances of success.

1. Understanding VA Denials:
We start off by delving into the common reasons for VA denials. It’s essential to understand why your claim may have been denied in order to navigate the appeals process effectively. From lack of evidence to errors in documentation, we discuss the most common pitfalls and how to avoid them. Armed with this knowledge, you’ll be better prepared to tackle your appeal head-on.

2. The Appeals Process:
Navigating the appeals process can be complex and overwhelming. That’s why we break it down for you step by step. From filing a Notice of Disagreement (NOD) to presenting your case before the Board of Veterans’ Appeals (BVA), we provide a comprehensive overview of the appeals process. Understanding the various stages and timelines involved will help you stay organized and focused on your goal of securing the benefits you deserve.
In this episode, we go beyond the basics and offer practical tips and strategies to increase your chances of success during the appeals process. From gathering strong evidence to working with a qualified attorney, we provide valuable insights that can make a significant difference in the outcome of your appeal. These tips are based on years of experience and expertise in dealing with VA denials, ensuring you have the best possible chance of overturning your denial.

If you or a loved one have faced a denial from the VA, don’t lose hope. Victory Over VA Podcast is here to empower you with the knowledge and resources needed to navigate the complex VA system. In this episode, we’ve covered the common reasons for denials, the appeals process, and offered practical tips and strategies to increase your chances of success. 

By tuning in, you’ll gain valuable insights that can make a significant difference in your appeal. Don’t miss out on this opportunity to arm yourself with the tools needed to overcome VA denials and achieve the benefits you deserve.

Listen to the full episode now and take the first step towards victory over VA denials!

AND MORE TOPICS COVERED IN THE FULL INTERVIEW!!! You can check that out and subscribe to YouTube.

If you want to know more about Attorneys Francis Jackson and Kristian Terison, you may reach out to them at:

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