Posts Tagged ‘Notice of Disagreement’

Scheduled For Your Veterans Administration C & P Exam ~ What You Need To Know First

Written by Maurice Abarr on . Posted in Veterans Disability

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You’d probably expect me to recommend consulting with an Accredited Attorney BEFORE going to a Compensation & Pension Exam. But, there are IMPORTANT considerations for this. The best way for me to demonstrate this is by way of an actual client example:

“Jane Veteran” was discharged from the military in 2010. She saw combat and was directly engaged on multiple occasions. At the time of discharge, she “just wanted to get home.” Making a claim for a mental injury or disability was not a priority at that time. As time went by, she struggled with nightmares, insomnia, flashbacks, physical and mental fatigue. “Jane” wanted to put the trauma she experienced in service behind her. But she couldn’t. It was, as she put it, “eating [her] alive.” She had trouble keeping a job. She had trouble in her relationships. She began to socially withdraw and isolate herself.

Then, “Jane” encountered a fellow veteran from her time in the service. He shared that he too was having a hard time back in civilian life but that he’d been helped by the treatment he had received from the VA–and that he was now receiving monthly benefits from the VA as compensation for his disability. He urged her to make a claim.

So, five years after her discharge, “Jane” does so for several specific disabilities and begins treatment at her local Veterans medical facility for (among other things) PTSD. She is evaluated by a doctor the VA scheduled her to see. The exam was brief. To her surprise, the VA eventually decided that her claim for PTSD should be denied because there had been no “clinical diagnosis” of her PTSD. (This is the reason frequently given by the VA for denying a claim for such a disability.) “Jane” does the right thing by taking the first step in her appeal–filing a Notice of Disagreement (NOD) with the VA’s denial of her PTSD claim. She hires an Accredited Attorney (us) to represent her in her appeal.

Soon thereafter, “Jane” receives notice from the VA that it has again scheduled her to be seen by an ‘independent’ doctor. The appointment letter is similar to the one for the first doctor—the one that the VA relied upon to deny her claim. But she knows she has to go or her appeal ends if she doesn’t show up.

We carefully review with “Jane” the areas that the VA doctor should cover in order for the evaluation to be fair and unbiased. This time the VA sees it her way and she is awarded 50% in disability following this evaluation.

We believe that “Jane’s” preparation—both mentally and informationally—helped in achieving that outcome. (Of course, it’s possible that the VA recognizes she has competent counsel and they need to get real on the merits of the claim.) We are still appealing “Jane’s” claim because the Effective Date they gave her (for when her compensation STARTED) was the date of the LAST evaluation, not the date she made her claim.

If you see your situation reflected here, contact us for a free case evaluation. My staff and I are here to serve you.

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.

SOC, Form 9, & You

Written by Maurice Abarr on . Posted in Veterans Disability

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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.

Appealing Your Case To The Veteran’s Administration

Written by Maurice Abarr on . Posted in Veterans Disability

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Okay…

You’ve served our country, done everything asked of you and more, and now you’ve come home. Unfortunately, like too many of your comrades in arms, you’re suffering from a disability because of your time in service. So now, you’ve followed all the steps for filing your disability claim with the VA. After waiting for their response, you finally get a response. But, it’s a ratings decision that values your disability lower than you think it should be. Or, it’s a rating decision that grants you some of what you are due and denies you other parts of your claim. Or, it denies your claim entirely.

Sound familiar? Unfortunately, this happens all too often. The good news, though, is that it’s not the end of the road. There is a process by which you can appeal the VA’s determination.

As a veteran, you know the government loves its abbreviations and acronyms. As attorneys representing veterans, we have to know what they mean. We at the Law Offices of Maurice L. Abarr can help you get through all of the confusion of the VA’s abbreviations and acronyms.

The first step is to file a Notice of Disagreement (NOD) with the VA. It’s just what it sounds like. It’s your way of letting the VA know that you received their determination but you think they got it wrong. More importantly, it preserves your right to appeal all of the errors in the VA’s decision to deny you benefits.
There are some key points to know about filing an NOD. Perhaps the most important of these is the timing. You have a one-year deadline to file your NOD. That’s one year from the date on the cover letter that accompanies the decision you want to appeal–not one year from when you received it. Frequently the VA sends its decision with a cover letter and the cover letter is dated later than the decision. The date of the cover letter is what controls the process.

IMPORTANT: While one year may seem like a lot of time, this is a deadline you don’t want to miss; if you don’t file your NOD in time, the VA’s determination is considered final.

The VA has a new form–the VA Form 21-0958 Notice of Disagreement–for filing your NOD. It’s important to note that the use of this form to file your NOD is not mandatory. You can use the much simpler VA Form 21-4138 Statement in Support of Claim or even write a plain letter to the VA.

If you’ve received a determination from the VA, you’ll probably have a copy of this new VA Form 21-0958 and you can see the level of detail it requires. So why would you use such a complicated form that’s not mandatory when a much simpler approach exists? According to the VA, the primary benefit of using this form is that it will expedite the processing of your appeal. The specific issues of your appeal are brought to the VA sooner and more clearly and it helps jump start the process. It’s our contention that you want to make things as easy as possible for the VA to say, “Yes,” to your appeal. On the other hand, there is a potential risk in how you fill out the 21-0958 form. It asks for specific reasons for your disagreement. If, however, you don’t include certain information or raise certain objections, you may have trouble introducing them later.

Our recommendation is a question of timing–especially where you are up against that all-important one-year deadline. If you’ve just gotten your determination and the clock just started, then it makes sense to work through the 21-0958 form and take advantage of the benefits it can bring. It’s important that you don’t hurt your appeal before it has even started. Considering the potential pitfalls the form brings, it may be a good idea to get qualified legal assistance in filling out your 21-0958. If, however, you’re up against the one-year deadline, it probably makes more sense to use the simpler approach: the VA Form 21-4138 Statement in Support of Claim. If your situation lends itself to going with the 21-4138 or letter approach, then it’s important to keep a couple of things in mind.

There are two specific things you need to say:

1. That you disagree with the VA’s ratings decision and the date of that decision. (“I disagree with the VA’s decision of date .”)
2. That you say that you intend to appeal that decision. (“I want to appeal this decision.”) It is imperative that you include both of those statements.

You don’t need to get any more specific than that. In fact, too much specificity at this point may hurt your appeal later down the road.

Regardless of how you prepare your NOD, once you’ve completed it (and saved a copy for yourself), send it to the VA office that sent you the denial letter. We strongly recommend that you send it in a way that provides proof of delivery (e.g., certified mail with return receipt) so that you’ll have proof that you met the filing deadline. If you send by certified mail, return receipt requested, you will receive a green card confirming the date of receipt. Keep that card in a safe place. It may be very important later.

The VA will respond with a Statement of the Case (SOC); this is a summary of the decision and how they arrived at their determination. This will also include the very important VA Form 9, Appeal to Board of Veterans Appeals. Form 9 is much more complicated than a NOD and what is (and isn’t) included can be critical to your appeal. This form has a much shorter deadline–60 days–and is the time where you will be expected to get specific with your appeal.

Depending upon your particular situation, it may be advisable to seek qualified legal help. Whether it’s at the NOD stage and deciding which way to start the process or at the Form 9 stage, the last thing you want to do is make a small technical error that can hurt your appeal later down the road.
Feel free to contact us to ensure that you get a fair hearing of your case. You’ve earned it.

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