Veterans Appeals

If you are a veteran of the United States armed forces and have suffered a physical or psychological condition due to your active military duty, you may be eligible for benefits provided by the United States Department of Veterans Affairs (VA). Attorney Charles Zamora has been accredited by the VA and can answer your questions and represent you in your claim or appeal for VA benefits. If your claim was denied or if you received an insufficient disability rating, call us today. There are time limits which may jeopardize your claim if you wait too long.

Claims for Benefits

Generally, in order to establish a valid claim for service-connected disability benefits, four (4) requirements must be met:

• First, you must be a "veteran," meaning you must have served in active duty in the military, and you must have been released from service on terms other than dishonorable.
• Second, you must be suffering from a "current" disability.
• Third, your disability must be the result of an in-service occurrence or aggravation.
• Finally, you must have medical evidence of a causal link between your active military service and the disability.

There are several ways to show a causal connection. Causation may be demonstrated by direct notations in service, such as in your medical records. A causal link can also be proven by the "presumption of soundness," meaning your entrance exam was negative, but then the condition appears or develops while in service or afterwards. A chronic condition may be related to service if it was diagnosed during service and was noted to be of a chronic nature at that time. A causal connection may also be demonstrated by proof of continuous symptomatology following discharge, for instance a back strain that continued beyond service. Finally, aggravations of pre-existing conditions are considered service-connected if the symptoms in service were not due to the natural progression of the disease.

Types of Claims

There are generally five (5) types of claims for service-connected injuries:

1. Original Claims. VA Form 21-526 is the initial form, which should be completed by the veteran only once in his/her lifetime. All subsequent claims need only a written request. If the veteran lists several medical conditions for which he/she is seeking VA service-connected benefits, then the VA's rating decision should have adjudicated each of those medical conditions listed on the Form 21-526.
2. Secondary Service Connected Claims. These claims are similar to "flow-through" claims made in state workers' compensation cases. The veteran is eligible for compensation just as if the condition was service-connected on a direct causation basis.
3. Claim to Reopen. If the VA previously denied the veteran's claim and the veteran has new and material evidence of a causal relationship of the medical condition, he/she may file a claim to reopen the previously filed claim. There is no time limit to file for a claim to be reopened, and there is no limit to the number of times a veteran may request his/her claim be reopened.
4. Claim for Increased Rating. If the veteran has already been awarded a service connection for his/her medical condition, and the veteran believes the service-connected condition has worsened, a claim for increased rating may be filed. There is no specific form to be used, but the veteran may use VA Form 21-4138 (Statement in Support of VA Claim), or a simple letter requesting the VA reevaluate his/her disability rating. The veteran should be aware it is possible the VA may reduce his/her rating as a result of the review.
5. Claim for Total Disability based on Individual Unemployability. This is essentially a claim for an increased rating to 100%. The veteran must provide his/her employment history on VA Form 28-8940. To prove this type of claim, the veteran must have at least one service-connected condition of 60% or more, or two (2) or more service-connected conditions totaling 70% (with one being at least 40%), and proof the veteran cannot maintain substantial gainful employment.

Death Benefits

The VA uses different criteria to determine whether death benefits will be paid, depending upon whether the decedent was a "service member" or a "veteran."

Service Members are those individuals who were on active duty at the time of death, including Guard members or Reservists. Service-connection is assumed, i.e. the cause of death is not an issue unless there was misconduct. Also, there will not be an issue of accrued benefits for the survivors/dependents.

Veterans are those individuals who were previously on active duty, including active duty as a Guard member or Reservist. The cause of death is an issue to be adjudicated. The survivors/dependents may be entitled to the veteran's accrued benefits.

There are four (4) types benefits and compensation for survivors/dependents:

1. Dependent & Indemnity Compensation (DIC). This is a flat rate monthly sum paid to families of service members and veterans. For service members, death during active duty is presumed to be service connected, as long as the death did not occur as a result of misconduct (e.g. drinking or drugs). For veterans, the veteran must have died as a result of the service connected condition, or the veteran must have been declared at 100% for ten (10) or more years prior to death; the 100% service connected disability need not have been the primary or even a contributing cause of the veteran's death. There are no percentages for DIC; the award is either granted or denied. It is noteworthy that 38 C.F.R. 3.153 provides that a claim for Social Security benefits also constitutes a request for DIC. Often, a survivor will receive DIC without even knowing that he/she had applied for the DIC benefit. The surviving spouse must have been married to the service member or veteran for at least one (1) year, and not be separated. DIC benefits cease upon the spouse's remarriage, but DIC may be resumed if the remarriage ends.
2. Education Benefits to Spouses & Dependent Children. Up to forty-five (45) months of education benefits may be paid to the unremarried surviving spouse, or for children aged 18 to 26.
3. Accrued Benefits. These are benefits which were due to the veteran/decedent, but which had not yet been paid by the VA.
4. Death Pension. This is a pension paid to the spouse and family of certain deceased veterans, and which is predicated upon proof of financial need. Proof of service connection is not required.

Appellate Process

Initial claims for veterans benefits are filed at the VA Regional Office (RO) level. There are fifty-seven (57) ROs across the United States. The veteran files the application, usually on his or her own, or with the assistance of a veteran service organization. After the claim is filed, the RO sends a claim and/or rating decision to the veteran. Usually, the claim is denied or the rating is too low. The veteran has one (1) year to file a Notice of Disagreement (NOD). There is no specific form to be used; the veteran files the NOD with the RO.

After the NOD is filed, the VA will issue a Statement of the Case (SOC). The purpose of the SOC is to provide the veteran with the basis(es) for the VA's decision. This will help the veteran prepare his/her case for the next level of decision-making.

The veteran is required to respond to the SOC by filing VA Form 9 within sixty (60) days from the SOC or within the remainder of the one-year time period for the filing of the NOD. The Board of Veterans Appeals (BVA) will then issue a decision, sometimes taking up to two (2) years from the appeal date.

After the BVA issues its decision, the veteran has 120 days to request reconsideration, or file an appeal to the Court of Appeals for Veterans Claims (CAVC), also called the "Veterans Court."

A further appeal is possible to the United States Court of Appeals for the Federal Circuit.