PTSD & You

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PTSD—It’s a term that veterans hear quite often. As a psychological condition, it’s commonly associated with those who have experienced the realities of combat. But diagnoses of PTSD are not limited just to service members who’ve been in combat.

So what exactly is PTSD and what’s the best way to present your claim to the VA? Let’s start by defining it and the standard that the VA uses. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is a guidebook published by the American Psychiatric Association. It catalogues recognized mental illnesses—including the symptoms of those illnesses as well as the ways to diagnose them. The DSM is currently in its fifth major edition—which is called, not surprisingly, the DSM 5. The VA relies upon it for diagnosing and determining impairment levels for PTSD (and other mental health issues). It’s important to know against what yardstick the VA measured your claim—and to assess whether your claim measures up.

PTSD, as you may already know, is an acronym for Post Traumatic Stress Disorder. In very broad terms, it refers to a person’s generally negative response, after the fact, to an event (or series of events) that threatens his/her safety. The DSM 5 lists eight indicators to assess a diagnosis of PTSD.

  1. Stressor: Was there exposure (real or threatened) to death, serious injury or sexual violence?
  2. Intrusion: Is the traumatic event persistently re-experienced?
  3. Avoidance: Is there avoidance of things that are associated with the trauma?
  4. Negative Alterations: Are there negative alterations in thought processes, mood, or both since the trauma?
  5. Alterations In Arousal/Reactivity: Are there physiological responses to the trauma? These could include (but are not limited to) things like insomnia or hyper-vigilance?
  6. Duration: Have these symptoms lasted over 30 days?
  7. Functional Significance: Do these symptoms have a “clinically significant distress or impairment” into regular aspects of life?
  8. Exclusion: Is there anything else that can explain these symptoms?

These factors are in the context of the standard three elements for a successful disability claim with the VA—a current disability, an in-service injury/stressor, and the link between the disability and the in-service stressor. If the VA has denied your claim for PTSD, their Statement of the Case (SOC) should specify exactly which part they thought was lacking and why. Was it the diagnosis itself? Was it the perceived lack of an in-service stressor? Was it a problem with the link between the two? The SOC will be your guide to an effective appeal.

The Current Disability

It’s important that you have a doctor’s report that explains a diagnosis of PTSD. In that report, the doctor who diagnoses the PTSD should fully describe why he/she feels that it’s PTSD under the criteria of the DSM 5. This can be especially important in cases where another doctor suggests that the symptoms are caused by something else.

The In-service Injury/Stressor

PTSD can result from a single event or a series of events. It’s important to identify all of the stressors in your claim as specifically as possible. In broad terms, any traumatic event or series of events that satisfy the diagnostic criteria in DMS 5 are acceptable. You still need to be clear on what that event or those events are, such as:

Combat

If the trauma you suffered was a result of experiencing combat, you’ll need to provide evidence that you actually were in combat. A DD-214 is a good start since it should have records of medals and awards you may have received, your military occupation, the units with which you had served, and the dates of that service. You provide as much specific evidence as you can about dates of specific service, units to which you were attached, events, campaigns, missions, locations, and so forth.

Non-combat

Proving a non-combat stressor is a little more challenging. Examples of non-combat stressors can include things such as experiencing a traumatic accident or serving duty with a graves registration unit. You need to provide credible evidence that the claimed in-service stressor occurred. Again, the more corroborating evidence you can provide, the better your chances of a successful claim (and, if necessary, appeal) will be. It may help to have corroborating statements from others in service with you about specific events you experienced.

Rape, Domestic Violence, Harassment, Physical or Sexual Assault

It’s an unfortunate truth that horrible things that have nothing to do with military service can still happen to service members. Your military service record may not have a specific record of this kind of stressor but you can still find corroborating evidence to support your claim. This might be in the form of a police report or emergency medical services records. Statements from fellow veterans and witnesses can also help legitimize your claim.

The Link Between The Two

This is where a doctor’s findings are crucial. It’s important that the doctor who diagnosed you with PTSD specifically state that it is “at least as likely as not” that your PTSD is the result of the traumatic event or events that you experienced while in service.

Because of the complexities involved in a PTSD claim, successfully filing a PTSD claim with the VA can be a challenge. After suffering the trauma that led you to this point, you may be facing another fight to get what you deserve. If you’ve filed your claim and had it denied, it’s a good time to consider seeking qualified help. We at The Law Offices of Maurice L. Abarr are uniquely qualified to advocate for you. Contact us for a free consultation.

Buddy Letters

Written by Maurice Abarr on . Posted in Veterans Disability

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VA claims generally start with a statement from the veteran. The VA then examines all of the additional evidence to make a determination on that veteran’s claim. Typically, that evidence includes medical and service records. Unfortunately, those can be woefully incomplete.

That’s when additional evidence can fill in some very important blanks. The VA would call one type of additional evidence a “Statement in Support of Claim.” These are commonly referred to as “Buddy Letters” or “Buddy Statements.” There are various kinds of Buddy Letters. The best ones are those written by fellow service members who actually witnessed what you went through. The closer they were to you, the more compelling Buddy Letters will be to the VA.

For example, suppose you were an 11B Infantryman making a claim of PTSD today. An effective Buddy Letter might come from your platoon sergeant. That would be a person who saw you from the time you arrived in theater to the time you left. In the Buddy Letter, the service member could recount the actual missions or campaigns in which you were involved, provide first-hand observations of what you experienced and witnessed, and comment on any changes he observed in you over that time.

Though less effective, a Buddy Letter could be from another service member who served in the same theatre but didn’t actually serve alongside you. The service member might be able to recount general information about the circumstances of your service. Unfortunately, the specifics of what you experienced and how it might have affected you would be missing. A letter like this wouldn’t necessarily hurt your claim, but it might do little to support it.

Buddy Letters can be helpful in proving that you served in combat—especially if you didn’t have a combat MOS or if your official service record doesn’t specifically list it. Unfortunately, the VA applies a very limited definition of “combat” requiring “[e]vidence that the veteran participated in attacking or defending an attack of the enemy.” That means that service in a general “combat area” or “combat zone” is not enough to prove that a veteran served in combat. Buddy Letters, in conjunction with other evidence, can support your claim that you served in combat.

Another way Buddy Letters can have a positive impact is in cases where injuries during service aren’t always apparent. A series of small strains and sprains can lead to a much bigger problem later in life. If those smaller injuries didn’t warrant going on sick call or reporting to sick bay, there may not be a record of them. Buddy Letters from your co-workers can discuss how you hurt your back lifting equipment day in and day out. Or, how your job required typing all day leading to a current condition of carpal tunnel syndrome. Or, how you worked around toxic fumes all day leading to respiratory issues.

The best Buddy Letters will always come from those who were closest to you at the time of your injury—whether it was a single event or on-going trauma. The closer to you the letter writer was, the more impact the letter will have. So, it should come from someone in your company, rather than someone in your battalion. Better yet, it should come from someone in your platoon, rather than someone in your company. Better still, it should come from someone in your squad, rather than in your platoon. The key is that they can state what they directly witnessed of your service experience and the basis for your claim.

We at the Law Offices of Maurice L. Abarr are uniquely qualified to assist you with any issues related to disabilities caused by your military service. Contact us for a free case evaluation.

Veterans Administration’s Duty To Assist

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Dealing with the VA to make a claim for your veteran’s disability benefits can often feel like an adversarial process from the moment you get started. After all, you feel you’re due a benefit and you have to go through a long and complicated process to get to it.

Though many don’t realize it, it’s actually the VA’s responsibility to assist you in filing disability claims. In 2000, Congress passed the Veterans Claims Assistant Act. This requires the VA to help veterans file their disability claims. This is a unique requirement among federal agencies that have application processes for benefits.

So what does this really mean and what does the VA have to do? The rules under which the VA operates cover a wide range of duties. They include:

  1. Notifying a veteran of what’s needed to complete an application.
  2. Considering all possible claims.
  3. Helping to gather evidence.

If you submit an incomplete application, the VA cannot use that as a reason to deny benefits to you. It’s the VA’s responsibility to tell you what’s needed. For instance, if your application is missing evidence of the in-service event that is the cause of the current disability, then it is the duty of the VA to inform you how to complete the application with evidence relating to that event.

In other bureaucratic agencies, something as simple as a forgotten signature can kill an entire application—forcing an applicant to start from scratch, if they’re allowed to re-apply at all. But for veterans, it’s the VA’s duty to make sure that you have been given a reasonable opportunity to complete your application.

It’s even the VA’s duty to consider disabilities that you may not have specifically claimed. For example, if a veteran doesn’t make a claim for hearing loss but a medical record suggests hearing problems and a service record suggest prolonged exposure to loud noises during service, then the VA is duty-bound to consider whether an additional claim for hearing loss should be considered.

If there’s something specific that the VA needs in order to approve your application for disability benefits—for example, medical evidence to prove a service connected disability (in addition to what you’ve already submitted)—then the VA is obligated to let you know what records are required. In addition, the VA is duty-bound to assist in gathering that evidence.

The requirements for assistance aren’t absolute, of course. For instance, while the VA’s responsibilities would include obtaining relevant records from any federal agency, you are still responsible for obtaining private medical records or records from state or local governments. Furthermore, you would need to provide enough information to help the VA facilitate getting such federal records.

Another example of how the requirement for assistance isn’t absolute concerns medical exams. Veterans are entitled to medical examinations provided by the VA to help substantiate a claim. But the VA cannot compel you to participate in such an exam—that’s your responsibility. It’s important to remember that not showing up for such medical examinations will count against your application.

If the VA fails to meet any of its duties in assisting you in filing your claim—and your claim is denied—you may have grounds for an appeal. Because the duties of the VA cover so many areas and because the requirements, as well as the limits of those duties can get complicated, it’s a good idea to consult with a qualified attorney to see if the VA missed any of its obligations in your claim. We at The Law Offices of Maurice L. Abarr are uniquely qualified to assist you. Contact us for a free and confidential consultation.

Military Sexual Trauma

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It’s a sad truth that a significant number of veterans experienced sexual trauma during their service in the military. It’s a big enough issue that the VA has given it a name—Military Sexual Trauma (MST). Generally speaking, MST is defined as sexual assault (up to and including rape) or repetitive, threatening, or coercive sexual harassment. If you were a victim of MST, in addition to the initial trauma, you may find that it has continued to impact you in psychological and physical ways.

If there’s any kind of silver lining here, it’s this: If you suffered MST and it impacts your current life, you may be eligible for disability compensation from the VA. As with other service-related disabilities, you still need to have three elements to prove your case. These are:

  1. You experienced MST while on active duty.
  2. You are currently diagnosed with a mental or physical disability/disabilities, and
  3. Your current mental or physical disability/disabilities were caused by, or were worsened by, the MST you suffered in service.

In other words, as with other service related disabilities, the MST by itself is not a basis for receiving compensation. You must have a compensable health condition, such as post-traumatic stress disorder (PTSD), depression, or substance abuse that can be connected to the MST.

MST includes instances of any sexual activity where someone is involved against his/her will. This includes not only physical force but also coercive threats—such as threats abusing the chain of command (e.g., threats of negative performance reviews or, conversely, promises of faster promotions)—or instances where a service member was unable to consent. Other forms of MST can include patterns of unwanted sexual advances, inappropriate physical contact, or offensive or harassing language about your body or sexual activities. Additionally, there may be instances of retaliation that occur after such an event is reported—assuming that it was reported at all.

Unfortunately, there may not be many records of such an event (or events). Not only has there been a stigma against such reporting but there may also be a gap in time between the event and when it is ultimately reported. Fortunately, the VA understands this and makes some allowances for the potential lack of medical or military records related to MST. Other forms of proof of the incident or incidents that the VA will consider include:

  1. Police records.
  2. Records from a rape crisis center.
  3. Pregnancy tests/records of pregnancy tests.
  4. Records of sexually transmitted diseases.
  5. Statements from your friends in service, counselors, or clergy.
  6. Writings in a journal, diary, or personal correspondence at the time of the MST.

Indirect evidence that might be considered includes things that changed after MST. For example:

  1. A request for a transfer after the MST.
  2. Evidence of a drug or alcohol problem that didn’t previously exist.
  3. Marital difficulties that didn’t exist prior to the MST.
  4. A sudden decrease in job performance for which there is no other explanation.

Because we’re dealing with the VA, of course, nothing is guaranteed. If you’ve made a claim based on MST and the VA has denied it, you, of course, have the option to appeal that decision. The goal of a successful appeal is to make it as easy as possible for the VA to say, “Yes.” In MST cases, mounting a successful appeal may hinge upon collecting and framing the evidence in the best possible way. Because of the special nature of cases involving MSTs, it’s a good idea to seek legal help. We at The Law Offices of Maurice L. Abarr are uniquely qualified to assist you with sensitive cases of this type. Contact us for a free and confidential consultation.

Service Connection By Legal Presumptions

Written by Maurice Abarr on . Posted in Veterans Disability

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As we’ve mentioned before, there are 3 keys to a successful claim with the VA. These are:

  1. Proving your current disability.
  2. Proving your in-service injury or illness.
  3. Making the connection between the two.

Unfortunately, proving that connection can be a challenge. It can be extremely difficult to prove any kind of causality with certain conditions—much less making the connection to something that happened while you were in the service.

Fortunately, Congress has written into law certain legal presumptions—that is, under certain specific circumstances, your disability would be presumed to be service connected. In broad terms, that means if you have a particular disability and you served under certain circumstances, then you don’t have to prove any connection between the two.

The GOOD news is that the list of potentially presumed disabilities is extensive. The BAD news is that certain presumptions apply only to a few limited circumstances of service. In general and with just a few exceptions, the presumptions only apply if you served during a time of war. And, certain disabilities apply to certain circumstances of your service. For example, certain disabilities are presumed to be service connected if you have been a POW. A different list of disabilities is presumed to be service connected for veterans who had been exposed to radiation. On top of that, for many of the included disabilities, symptoms needed to start showing to a specified degree within in a certain time after separation from the military.

To further complicate matters—even with the legal presumptions in place—the VA can deny a claim. They have the option to rebut a presumption. The GOOD news is that the presumption means that the burden of proof has shifted. The VA would need to provide affirmative evidence that your condition was caused by something else—something not service connected.

As you can see, it can be a complicated matter to match up a disability to a condition of service to determine whether your case falls under a legal presumption. Or, to fend off a rebuttal from the VA. It’s in your interest to seek qualified legal assistance. Many lawyers are not certified to appear at all levels of the administrative appeal process of a Veterans’ claim for disability. Contact us at The Law Offices Of Maurice L. Abarr for a free consultation about your Veterans Disability case.

Service Connection (continued)

Written by Maurice Abarr on . Posted in Veterans Disability

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We’ve already discussed the obvious cases of service connected disability—where a current disability is caused by a service-related illness or injury. But not every VA disability claim has to involve something quite that direct. There are a few other ways that you can make the connection to your time in service.

There is something called ”service connection by aggravation.” If you had a medical condition when you entered the military, then there should be a record of that from your entrance physical examination (which should, of course, be in your all important C-File). If that condition got worse while you were in the service, you have a potential service connection by aggravation.

As an example, let’s say at the time you entered the military, your physical showed you had some minor hearing loss. Let’s say it was not bad enough to keep you from joining the military, but it was sufficient to be recorded in your entrance examination files. As veteran, you’ve been suffering from an even higher degree of hearing loss. That could be a case for service connection by aggravation.

Of course, as with other situations, the VA could rebut the presumption of aggravation. Continuing our example, the VA might argue that your hearing loss is worse because that’s just what happens as one ages–that it’s not aggravation but rather due to natural processes.

There is good news. Generally speaking, the rule is that, “Clear and unmistakable evidence…is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.” What that means is that it’s the VA’s responsibility to prove that it WASN’T because of your service. The bad news is that the VA isn’t perfect; they can make mistakes regarding the presumptions of aggravation.

The key point here is that you shouldn’t think that just because you had a medical problem BEFORE joining the military that it will derail your claim. The specifics of your case do matter. Since we’re talking about the VA and complicated rules and regulations, the reality is that for every rule there are all kinds of exceptions. Those exceptions could work for you or against you. The best thing you can do if you think your denied claim might be a case of service connection by aggravation is to contact a qualified attorney. We at the Law Offices of Maurice L. Abarr have the necessary skills to help you. Feel free to contact us for a free consultation.

Notice of Disagreement Update

Written by Maurice Abarr on . Posted in Veterans Disability

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Everything we said in previous blogs about your Notice of Disagreement (NOD) was true—when we said it. But the Department of Veterans Affairs recently announced a significant rule change that has a big impact on how veterans can file an appeal. The currently optional VA Form 21-0958 Notice of Disagreement will become mandatory in March of 2015. This means that the “I disagree with the VA’s ratings decision & I plan to appeal” letter or even the VA Form 21-4138 Statement in Support of Claim will NOT start your appeal.

So what does this mean to you? There’s still a ONE-YEAR deadline from the date of any VA decision you wish to appeal within which to start your appeal. Because of the inherent detail involved in the new NOD form, it means that it’s even MORE important to start your appeal process as soon as possible. As soon as you get your determination from the VA on your claim, request a copy of your Claim File (C-File)—more about that will be coming soon—and start work on the new NOD form.

The rule change notwithstanding, everything else we said before is still true. Form 21-0958 can be tricky and it may be a good idea to get qualified legal assistance to fill it out. You still need to keep a copy of it. And, it still needs to be sent to the VA office that sent you the decision letter from which you are appealing. Of course, you still need to send it in a way that proves that you sent it…and so on.

This VA rules change highlights a critical and overriding concept that you’ll need to keep in mind during the process of your appeal: the governing law and the rules that come from that law are NOT set in stone. It’s the responsibility of anyone that helps you during this process—whether you hire an attorney or go to a Veteran’s Service Organization—to keep abreast of those changes and make sure that they’re followed to ensure a fair hearing of your case. We, at The Law Offices of Maurice L. Abarr, are fully-equipped to help you. Contact us for a free consultation.

Deadlines Matter

Written by Maurice Abarr on . Posted in Veterans Disability

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We’ve mentioned a few times how important deadlines are when you’re going through the appeals process on your VA disability claim. After all, you could do everything right, have all the necessary evidence assembled, and have all the forms filled out properly. But, if you miss a deadline, all that work is for naught. So we can’t emphasize enough the importance of keeping an eye on all the important deadlines in your appeals process.

An issue that’s come up recently is when the countdown actually starts. You probably know that you have one year to file your Notice of Disagreement (NOD) but when does that year actually begin? It used to be a fairly simple date to find:

NOD1a

The VA formerly delivered a very clear response to a veteran’s initial claim with a cover letter that said “Ratings Decision” along with a date. That date (or the date of the cover letter accompanying the Rating Decision) was the starting bell for the one-year deadline.

The VA, however, has changed the format of their “decision” letter. It now looks like this:

NOD2

As you can see, there is no longer a clear heading that reads, “Rating Decision.” Unfortunately, this has led to some confusion as to whether the clock has started on the deadline.

Make no mistake, the clock is most definitely running. Even though that nice “Ratings Decision” heading (along with a date right underneath that heading) is no longer a part of the VA’s decision letter, this is their legal response to your claim for service-connected disability and the deadline for your NOD is counting down. Unfortunately, to find the start date and to figure out the corresponding deadline, you have to scrutinize this new decision letter more closely. There is usually a date stamped some place on the letter. You count from this date. If there is none, we suggest that you save the envelope the decision came in–assuming that it is clearly postmarked. If you have lost the envelope (or the postmark is not legible), we recommend that you write a letter to the Regional Office issuing the decision letter–enclose a copy of the undated decision letter–and request the VA to tell you the date they have in their records as the date it was sent to you.

If you’re at all unclear as to whether you’ve received your actual Ratings Decision or whether the countdown for the deadline for your NOD has started, then please seek qualified legal assistance. This is too important to lose your right to appeal because of a missed deadline. If you need help with your case, feel free to call upon us at The Law Offices of Maurice L. Abarr for a no-cost initial consultation.

Establishing Service Connection

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For the VA to approve your claim, they’re looking for these three things:

  1. Evidence of a current disability.
  2. Evidence of something that happened in-service.
  3. Evidence connecting the first two.

Simply put, the VA needs to know that you’re currently disabled and that the something that happened while you were a service member is connected to your current disability. Here’s an example:

You have trouble getting around because your knee hurts; that’s the current disability. When you were in the service, you hurt your knee during training and you went on Sick Call to get it treated. There will be a record of treatment that should now be a part of your C-File. This is the in-service incident. The next part is up to a doctor to provide evidence that the past injury is, at least in part, causing your current disability.

A key point to remember is that it’s not enough to have a bad knee. Nor is it enough to have had an injury during your time in the service. The medical evidence connecting the two is crucial.

Of course, if your disability claim was initially rejected by the VA, it may not have been such an obvious case. In other words, in the eyes of whoever reviewed your application, one of the necessary elements was lacking. When you file your Notice of Disagreement (NOD), the VA is required to respond with a Statement of the Case (SOC). The SOC should outline the reasons that the VA came to the decision that they did–referring to specific claims and the evidence that they evaluated to reach their conclusions. So, that means it should be a guide to which of the three elements of service connection needs to bolstered in your appeal.

This highlights why it’s so important to have your Claim File (C-File): It contains the evidence that the VA used to evaluate your claim. Having the C-File allows for verification that records of in-service injuries are actually there. Or, that medical reports regarding your current disability are being included. Or, that a current medical opinion is actually connecting the two.

Consequently, it’s advisable to seek qualified legal help. It’s easy to believe that your situation is as obvious as the example above. After all, you lived it and you’re still living it. But, a trained and experienced professional can look at what you’re telling the VA, find the parts that need to be shored up, and put you on the path for a favorable ruling.

The best way to approach your appeal will depend upon the “what’s” in the VA’s SOC. For example, if there’s not enough evidence of an in-service injury, you may need to get “buddy letters” from your fellow service members to confirm what you experienced. Sometimes you may need a private doctor to perform a medical examination and write a report to provide evidence of service connection. Such a report will frequently contradict the findings from the Compensation & Pension Exam, done by a doctor that the VA themselves selected.

We at The Law Offices of Maurice L. Abarr are familiar with appealing VA Disability claims and can guide you to the specific elements you need to prove Service Connection. Contact us for a free consultation.

SOC, Form 9, & You

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So you’ve filed your Notice of Disagreement (NOD). The VA must respond with a “Statement of the Case” (SOC). The SOC is designed to explain all reasons that the VA reached their decision. It should refer to your specific claims, the evidence that they used to evaluate your claims, and the laws and regulations they applied to reach their conclusions.

Depending upon your particular claim, an SOC can get long and complicated. It may comprise many pages of arcane language regarding the laws, regulations, and rules that the VA Regional Office used as the basis for their decision. It’s important to know and understand everything that’s in there, however. Did the VA miss an important piece of evidence in your C-File? Did they rely on an outdated rule?

Once you have the SOC, it is your responsibility to respond with VA Form 9, “Appeal to Board of Veterans Appeals,” or as it’s more commonly called Form 9. This may be the most important form that gets filed in your appeal and you may hear it referred to as the “Substantive Appeal.” That’s because this is where you specify all of the reasons you believe the VA got it wrong.

On the Form 9, you’ll need to state each decision with which you disagree–and state every reason for your disagreement. The idea is to include everything that you want the VA to consider. This might include new evidence that should have been in your C-File but turned out to be missing. And, since the goal is to make it as easy as possible for the VA to say, “Yes,” to your appeal, it’s also a good idea to include what you think is the right decision.

Another important consideration is that while you had one year to file your NOD, you have only 60 days to file your Form 9. Just like the NOD, if you don’t meet the deadline, your appeal is pretty much over.

Once you’ve completed your Form 9, you’ll send it to the VA office that denied your initial claim. As with all paperwork sent to the VA, you should (a) save a copy for yourself and (b) send it to the VA in a way that provides proof of delivery.

Once the VA has your Form 9, a number of different things can happen. If you’re very lucky, the decision might get changed right there. But it’s just as likely that your appeal will continue. If you submitted something new for the VA to consider, you’ll receive a “Supplemental Statement of the Case” (SSOC)–to which you would respond with another Form 9. And, of course, all the same rules and deadlines would apply to the new submission.

Filling out an effective Form 9 can be tricky. Overlooking something at this stage can derail your appeal. Considering all the technicalities involved in this, if you haven’t contacted and retained qualified legal assistance now may be a very good time to consider it. We at The Law Offices of Maurice L. Abarr are at your disposal. Contact us for a free consultation.

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