When a veteran receives a VA decision letter, it states that if they disagree with the decision to let VA know. Included is VA Form 21-0958, Notice of Disagreement (NOD), on which to list disagreement specifics. A NOD must be filed within one year of the decision letter.
However, in many cases, it’s far more expedient to reopen the claim rather than send a NOD if you have evidence proving the decision was in error. Sending a NOD is the first step in the VA appeals process, which is a long one.
For example, service-connection for a claimed disability may be denied because VA says there’s no evidence of a diagnosis in service medical records and/or there’s no evidence of a current diagnosis. If you can provide the missing evidence when you reopen, you’ll likely be successful sooner than through a NOD and appeal. Remember, a well-grounded claim means you provide VA evidence of a current diagnosis of a chronic condition and a “nexus” to service, which means the chronic condition was diagnosed and treated on active duty; or is a presumptive condition (such as a disability related to herbicide exposure in Vietnam); or is a secondary condition of one you are already service-connected for; or, for select disabilities, was diagnosed within a presumptive period after separation.
Veterans often disagree with a percentage assigned for a disability simply because they feel they deserve a higher rating. However, ratings for each disability are based on medical evidence, such as range of motion for joints or specific test results for heart disease, for example. All rating criteria is outlined in the Code of Federal Regulations 38. Each decision letter explains why you got denied or why you got a certain percentage and what needs to be in evidence in order to get a higher percentage.
If you do submit a NOD, you’ll receive a letter acknowledging receipt and asking which appeal process you prefer. After you respond, you’ll wait for many months. If the evidence you’ve outlined in the NOD proves your contention, you’ll get a new decision. However, if you did not submit evidence to support your disagreement, you’ll get a Statement of the Case explaining why the decision was correct according to VA regulation. If you want to continue the appeal, you must “perfect” it by returning VA Form 9, electing a specific Board of Veterans Appeals (BVA) hearing. Currently the average wait from sending Form 9 to BVA hearing in Tennessee is two years. After the hearing, a year or more could pass before you get a decision from the BVA.
One reason it takes so long to get a BVA hearing is that many veterans do not file well-grounded claims or appeals. For example, a veteran will file a claim for a condition diagnosed years after service simply because he feels it began in service even though he was never treated or diagnosed with the condition. Or, a veteran may file for something he thinks is related to Agent Orange exposure in Vietnam, such as colon cancer. However, colon cancer is not on the presumptive list (list of conditions automatically granted service connection in regards to herbicide exposure.) and he will be denied. These veterans may appeal any decision and the VA must adjudicate them whether they have merit or not.
The best course of action is to visit an accredited veterans service officer for advice and guidance on how best to address disagreements, as there are many factors depending on the specific condition and claim, too numerous to highlight here. Sometimes the VA does make mistakes or misses evidence; in other cases, the rating is correct and the service officer can explain why, or give advice on how to gather evidence to be successful, if possible.
Sandy Britt is a Montgomery County veterans service officer. If you have a general question or topic you’d like covered in a future column, email sjbritt@mcgtn.net. Questions about a specific claim can be addressed only by calling the MCVSO for an office appointment with a service officer.