Appealing Your VA Disability Claim at the CAVC

As a disabled veteran, did you know that you have the right to fight back if the Department of Veterans Affairs (VA) denies your disability claim at the final level of your appeal? You can take your case to the United States Court of Appeals for Veterans Claims (CAVC) in Washington, D.C.

What is the CAVC?

The CAVC is not part of the VA. It is a national court created to give disabled veterans the opportunity to seek an unbiased review of their case after they have been denied at the Board of Veterans Appeals. This is the place to go to if you want to present your reasons for why you deserve the disability compensation that has been denied to you.

Likewise, if you take your case to the CAVC, you can expect that the VA will defend their decision to deny you the disability benefits you believe you deserve.

It is strongly advised that if you choose to take your case to the CAVC, you should get legal representation to help you. Why? Because a VA disability attorney, or non-attorney representative, has experience in appealing claims at the CAVA, and know how to formulate the best possible arguments to help you win.

Who Should Legally Represent You?

You will want to make sure that you get a legal representative who is not only savvy about veterans disability and VA law, but is also someone who really cares about veterans and understands what they are going through.. The person you choose can be either an attorney or a non-attorney who has been admitted to the bar and has an attorney present while arguing your case at the CAVC.

You should know that there is no cost for representation services at the CAVC. This is because of the Equal Access to Justice Act (EAJA), which requires that the federal government take responsibility for paying your legal fees.

Once you find your legal representative, it will be his or her task to develop a convincing argument in your defense. You can expect that the VA attorneys will be doing the same.

When to File For A Review

You have 120 days after the Board of Veterans Appeals has made their final decision about your case to file a Notice of Appeal with the CAVC.

What Could Happen at Court

After arguments from both sides have been heard, the CAVC will decide your appeal. The CAVC could reverse the Board of Veterans Appeals’ decision, in which case you’ll get your benefits. Or they could request that your claim be sent back to the Board of Veterans Appeals for reconsideration.

The important thing to know is you don’t have to settle for a VA disability claim decision that you do not agree with. As a disabled veteran you have rights.

Appealing your claim at the Court of Veterans Appeals is recourse available to you. The CAVC has been in existence since 1988 for the purpose of ensuring that disabled veterans,are getting their fair share from the VA.

How to Claim Veterans Disability Benefits

A veteran who has experienced an injury or disease that was caused or made worse by their military service can receive disability benefits. The amount of time that has elapsed since their active duty does not matter. Anyone who is eligible to receive veterans disability benefits should apply to claim them as soon as possible.

Methods of Application

– The federal government provides an online application for veterans disability benefits. Visit the Department of Veterans Affairs website to initiate the application process.

– Applicants can also submit their paperwork by mail. Visit the Veteran Affairs website to download the correct form, and then mail it to your closest Veterans Affairs (VA) office; they are located throughout the country.

– If you are within the United States, you may call the VA office at 800-827-1000 to submit an application by phone. Veterans located outside of the United States should call 412-395-6272.

Additional Assistance

It’s also possible to receive help filling out and submitting paperwork. A disability lawyer can help you complete your claim, or you can visit a VA organization or service office to receive help from their representatives.

Completing the Paperwork

The application requires information about medical conditions that necessitate the compensation. When completing these forms, include specific information about diagnosed conditions, injuries, and illnesses. If possible, add specific details, such as the date on which you first began experiencing symptoms and the specific medical diagnoses you received from your physicians. Submit copies of your medical records that verify and substantiate your claim for disability, if possible. You have up to one year to submit the necessary documentation. If you don’t have all your records, the federal government can request your records on your behalf.

The Process

When you receive confirmation of your disability or illness, apply for compensation immediately. Early application preserves this date as the effective date for benefits, which can affect the amount of benefits you receive. Do not allow a lack of medical documentation about your disability to stop you from completing the process; you can submit verification paperwork later, if necessary.

Time Line

The approval process for veterans disability benefits can vary. You may receive a decision within a few months, but it can take up to three or more years of processing to reach a decision. Some applicants may be able to fast-track the approval by submitting complete medical records with the initial application. This can effectively streamline the review time and enable the government to more quickly return a decision.

Special Status

Some people are eligible for special fast-track status. Former POWs, as well as those who have suffered sexual trauma in connection with the military or have post-traumatic stress disorder, receive priority processing on their claims. In addition, Vietnam veterans who were exposed to Agent Orange and are submitting a claim will receive special priority processing. Those who are homeless or who have emergency financial needs can also receive priority service.

If you are unsure of how to proceed with an application for veterans disability benefits, ask for professional assistance so that you can submit your claim in a timely manner.

Avoiding a "Self Reported" Disability Claim Nightmare

1,200,100 Social Security Disability applications were filed in 1999 (48 percent or 579,000 were declined). In 2009, ten years later, 2,816,200 Social Security Disability applications were filed (and 65 percent or 1,830,530 were declined). The number of disability applications more than doubled while denials more than tripled. In one year, more than $23 TRILLION dollars of annualized benefits were lost.

In 2011, TRILLIONS of dollars in Insurer, Social Security and Veterans Administration disability claims will continue to be denied unnecessarily.

Disabled Americans diagnosed with serious medical and psychological illnesses are just beginning to process the enormity of the physical, emotional and financial challenges they will be facing. This is the worst imaginable time to be filing a disability claim.

Insufficient preparation and inadequate presentation of a long-term disability (LTD) claim form increases the likelihood that your application will be denied substantially, especially when it’s a claim for chronic fatigue or another “self-reported” (fibromyalgia, carpel tunnel) disability.

Review your LTD policy. Does it offer total disability benefits only or does it provide partial or residual (long-term partial disability) benefits so that you don’t have to be totally disabled to collect benefits? Hopefully it’s the latter. What’s the policy’s definition of partial disability? Does it state your inability to perform one or more of the material daily duties of your occupation and/or is there reference to performing the duties of your occupation in a reduced capacity?

For “self reported” disability claimants, we’d like to share some “tips” to improve your chances of collecting disability benefits.

TIP # 1: It’s been our experience, over a three-decade career specializing in the disability insurance business, that an improperly completed LTD claim form increases the chances of the claim being denied, even when the complete information is submitted to the insurer after the initial claim has been submitted. Remember you are applying for benefits to replace your lost wages. You’ll need to prepare your application for benefits with the same (or better) attention to details as when you applied for your job..

TIP #2: You will need to have a focused conversation with your physician about the specific ways in which you will need his or her cooperation as you navigate the LTD claim process. As noted: You absolutely, positively must have the complete cooperation of your physician as well as his or her agreement with you as to the extent of your disability. Complete documentation of your “self reported” disability, supported by irrefutable evidence from your treating physician(s) (who are recognized experts and authorities in the treatment of your specific condition is absolutely essential in the initial filing of your claim).

TIP #3: Is your treating physician a specialist (an expert) in the treatment of your specific condition? Very few are. If he or she is not, take heed. Due to the specialized nature of a diagnosis, your insurer will expect your physician to have expertise in the treatment of your specific condition. A disability insurer looks for expertise in the treatment of any illness, especially “self reported” disabilities. This, however, does not mean you have to change doctors. Your primary care physician (PCP) has possibly already referred you to a specialist for diagnosis and initial treatment. In such a case, your PCP would probably follow your course of treatment, with an occasional update with your specialist.

TIP #4: What has been your doctor’s experience in helping other patients with “self reported” disabilities obtain disability benefits? Has he or she had significant success or great difficulty? Your physician needs to be your ally in the claims process, especially until you’ve begun receiving benefits.

TIP #5: What type of testing has been utilized to confirm a diagnosis? When “self reported” disabilities first began to be recognized as unique and difficult-to-diagnose illnesses, considerable controversy surrounded the various methods of diagnosis. Leading researchers and clinicians, the Centers for Disease Control and Prevention, and the National Center for Infectious Diseases developed various guidelines for evaluating your condition. (For more, we urge you to do a web search and read “Social Security SSR 99-2P: Your Guide to CFS Claims Success).

Summary

In reviewing a multitude of long-term disability claims that were denied by insurers there’s one predominate theme: the claimants’ personal physician and/or other subsequent medical documentation does not support or validate the extent of the disability. The claimants were expecting a certain outcome (for their claim to be paid) while the medical information attached to their claim form did not validate the extent of the disability. In essence, claimant and physician just have not communicated properly. The Bottom Line… do it right the first time.

Copyright 2016

Allan Checkoway, RHU

How Do You Know If You Should File a Disability Claim?

Should you be wondering whether you are unable to perform your occupational duties because of sickness or injury? This is a very hard question to even ask yourself, let alone to answer. After all, we may not think about it until we have gone through many stages of struggle. Therefore most people are generally not familiar with their disability coverage provisions, whether Employer sponsored, private or public, and how those benefit claims are decided. Then, when the situation becomes urgent there is a complex set of issues to recognize and address quickly. Unfortunately that usually happens during a time of great difficulty, urgency and distraction. There is a better way.

Consider this hypothetical:

Joe worked his way up his career path for 25 years. His duties grew and his stress load increased over time. Family issues coupled to make him depressed. He slept poorly and began drinking heavily. His performance and income diminished. Management duties were transferred from him and he was demoted. Joe’s depression was not observed. His heavy drinking symptoms were observed but not discussed. He began attending Alcoholics Anonymous but relapsed several times. Joe was finally laid off by his Employer on the premise that his position was eliminated while others not similarly impaired remained employed. His disability claim was denied since the insurance company saw his inability to work as due to causes other than sickness or injury–the elimination of his position. There is a very tough knot to be untangled now and it will require time and expert assistance to do it.

Disability can happen suddenly or gradually, as the ability to perform occupational duties diminishes over time. Therefore, disability insurance claims raise a number of “moving targets” for consideration by the insurance company. Here is a short list of some of them: Is there a health related loss of time or duties? If so, did it begin while the insurance was in effect? How are occupational duties to be defined under the policy and applicable state law, especially for physicians, attorneys and other professionals? If occupational duties have changed over time, which ones apply to your claim? Is your partial or total loss of income adequately documented as due to the disability? How do your activities reflect your ability to perform? If you continue to work, is that proof of your ability or are you merely attempting to work in an impaired state?

A person’s ability to recognize that they may have a partially or totally disabling impairment as defined by the policy and state law is quite variable. Most people try to push forward in an attempt to overcome adversity on their own. It is usually only later, when things have become catastrophic, that a claim is submitted. This greatly complicates the resolution of the “moving target” issues. The Insurance Company will see the claim as simply as possible, making assumptions about some issues because of a perceived lack of “persuasive” documentation. Their medical, vocational and financial people will all weigh in but will rarely differ as to a “general perception” of the claim. This “general perception” may be influenced by a culturally defensive posture at the Insurance Company–they see a lot of claims and often feel a need to be skeptical. It has a “snowball effect”–each reviewer influencing the next. The impact of this “general perception” cannot be overstated. It is shared among the people evaluating aspects of the claim through notes in the claim file and sometimes through “off the record” conversations, gestures or other indicators. However if you take action in a timely, appropriate and effective manner, your claim will contain documentation supporting and promoting a more claim-positive “general perception” that will work in favor of your claim from the outset. We want to help you make it easier for the Insurance Company to say yes than no because it is the right thing to do.

Whether your impairment is sudden, gradual, total or partial, there is no reason not to ask yourself whether you are unable to perform your occupational duties because of illness or injury. It is a sad fact that sometimes trying to “tough it out” works against perfecting a claim for disability benefits. Deciding when and whether to file a disability claim requires a great deal of knowledge of the process. Whatever the right decision may be–for you to file a claim now or not or to create a record that may in some future claim influence the Insurance Company to form the right “general perception”– it should be made on a fully informed foundation. Pride, fear, privacy concerns and a lack of basic information can lead to delay and a difficult knot to untangle–like Joe’s.