Artwork for podcast Veterans Access
VAP-004 How To File An Appeal
Episode 4 • 27th March 2023 • Veterans Access • Geoff Geness, Stacey Whitcomb
00:00:00 00:45:10

Share Episode

Shownotes

Hey Veterans! You are finding yourself on the fourth episode in a series of 5 where my co-host Geoff Geness and I are helping you access disability benefits in a streamlined manner.

Today we are discussing how to appeal a decision that the VA has made. So basically, you have filed your 526EZ, had your exams and were awarded benefits. However, you feel like something is awry. You may feel like the VA did not get something right and it all took a long time. The fact that you have to appeal a decision may seem super frustrating. We totally understand and we’re here to help out. 

So here is the scenario. You may get your decision and maybe feel like the rater didn’t look at all of the symptoms or challenges you are facing. You might feel like they didn’t do a thorough enough investigation into all of the information that you provided. In other words you feel like some of your challenges were not properly considered and you’re not being fully compensated. OR you feel like the effective date is wrong and that you might deserve more compensation.

The types of decisions you may need to appeal include;

The level of disability which means your rating and how severe the disability affects you. OR

The effective date which means the date the VA starts paying you.

Geoff is going to walk us through the three types of appeals, explain when you would use each one and then we will go through each form step by step.

If you are finding this podcast series helpful, please share it with another Veteran!

And again, thank you to the UDT Seal Association for sponsoring this series!

To grab the forms and workbook, head over to VeteransAccessProject.org

And last but not least, thank you to our production team!

Producer - Dr. Geoff Geness is a former Navy SEAL Officer, and VA Rater, the Director of Outreach and Education and VSO for the U D T C Association, as well as a chiropractic physician and acupuncturist.

Co-Producer - Stacey Whitcomb is podcast host and producer, civilian and acupuncturist who treats individuals recovering from service acquired injuries, illnesses, and trauma in a highly specialized clinic that serves emergency responders.

Artwork - Jeff Higgs produced the original artwork for the Veterans Access Project. He is a former Navy SEAL, Jujitsu instructor and incredible digital artist.

Workbook - MaryAnn Geness compiled and edited the workbook. She is a chiropractic physician and trauma specialist.

Music - "Super Power Cool Dude" Kevin MacLeod (incompetech.com Licensed under Creative Commons: By Attribution 4.0 License http://creativecommons.org/licenses/by/4.0/

"Bass Walker" Kevin MacLeod (incompetech.com) Licensed under Creative Commons: By Attribution 4.0 License http://creativecommons.org/licenses/by/4.0/

"Ossuary 7 - Resolve" Kevin MacLeod (incompetech.com) Licensed under Creative Commons: By Attribution 4.0 License http://creativecommons.org/licenses/by/4.0/


Transcripts

Geoff Geness:

Hey, veterans.

Geoff Geness:

Before we launch into this episode, let's make sure that you are in the right place.

Geoff Geness:

You're finding yourself on the fourth episode in a series of five

Geoff Geness:

where my co-host Jeff Jennis and I are helping you access disability

Geoff Geness:

benefits in a streamlined manner.

Geoff Geness:

If you're looking for help in how to appeal a decision that the VA has made,

Geoff Geness:

then you are listening to the right.

Geoff Geness:

Really quickly though.

Geoff Geness:

I wanna give a recap of the episodes in case you're looking for something else.

Geoff Geness:

In the first episode, we covered the background and purpose of the

Geoff Geness:

VA and its compensation programs.

Geoff Geness:

in the second episode, we covered the 21 dash 5 26 EZ application, also

Geoff Geness:

known as the 5 26 EZ application.

Geoff Geness:

in episode.

Geoff Geness:

Three.

Geoff Geness:

We explained how to navigate the VA examinations and how to file for

Geoff Geness:

additionally qualified programs.

Geoff Geness:

In this episode, we'll discuss the specifics about the appeals process, and

Geoff Geness:

lastly, in episode five, we're going to share special programs and considerations

Geoff Geness:

for reserve veterans, combat veterans, and severely disabled veterans programs.

Geoff Geness:

My name is Stacy Whittcomb.

Geoff Geness:

I'm a licensed acupuncturist who works in a specialized clinic where I treat

Geoff Geness:

emergency responders and their families.

Geoff Geness:

I'm also a podcast producer and a civilian.

Geoff Geness:

Today I'm here with my friend, Jeff, Jenna, who is a former Navy SEAL Officer,

Geoff Geness:

director of Outreach and Education and Veterans Service Officer with the

Geoff Geness:

U D T Seal Association, a former VA Raider, chiropractor, and acupuncturist.

Geoff Geness:

Good morning, Jeff

Stacey Whitcomb:

good morning.

Geoff Geness:

Do you wanna add anything to my introduction there?

Stacey Whitcomb:

Yeah.

Stacey Whitcomb:

Yeah.

Stacey Whitcomb:

First of all, it's really great to be here with you , and thanks

Stacey Whitcomb:

to the U D T SEAL Association.

Stacey Whitcomb:

Of course.

Stacey Whitcomb:

And also, I just wanted to say that if we're talking about the appeals

Stacey Whitcomb:

process, that this can be a complex and often a frustrating process.

Stacey Whitcomb:

So I just wanna kind of prepare our veterans that this may

Stacey Whitcomb:

take a little bit of time.

Stacey Whitcomb:

It also may take several attempt.

Stacey Whitcomb:

But I am confident that we can help you get the correct information

Stacey Whitcomb:

to the VA and that the VA can make the correct decision for your case.

Stacey Whitcomb:

One more thing before we start.

Stacey Whitcomb:

All the forms that we mentioned, will be linked in the show notes and,

Stacey Whitcomb:

they will also be in the workbook that goes for all the episodes.

Geoff Geness:

So in this episode we're discussing how to appeal

Geoff Geness:

a decision that the VA has made.

Stacey Whitcomb:

also in today's episode, we're gonna go through and give you

Stacey Whitcomb:

step-by-step instructions on how to fill out each of these forms, much

Stacey Whitcomb:

like we did with the 5 26 easy form.

Geoff Geness:

So basically, here's a scenario.

Geoff Geness:

You filed your 5 26 EZ form.

Geoff Geness:

You had your exams and you were awarded benefits, but you

Geoff Geness:

feel like something is awry.

Geoff Geness:

You may feel like the VA did not get something right . You may get your

Geoff Geness:

decision and you may feel like the Raider didn't look at all the symptoms

Geoff Geness:

or challenges that you were facing.

Geoff Geness:

You might feel like they didn't do a thorough enough of investigation into

Geoff Geness:

all of the information that you provided.

Geoff Geness:

In other words, you feel like some of your challenges were not properly

Geoff Geness:

considered and you're not being fully compensated, or you may feel like

Geoff Geness:

the effective date is wrong and that you might deserve more compensation.

Geoff Geness:

So the two types of decisions that you.

Geoff Geness:

Need to appeal include the level of disability, which means you're rating

Geoff Geness:

and how severe the disability affects you, or the effective date, which means

Geoff Geness:

the date the VA starts paying you.

Stacey Whitcomb:

That was great.

Stacey Whitcomb:

You really, you really nailed it.

Stacey Whitcomb:

I think it's important for everyone to understand that you have the

Stacey Whitcomb:

right to disagree with any decision that the VA makes about your claim.

Stacey Whitcomb:

No matter what the VA says, there's always a way to appeal the decision,

Stacey Whitcomb:

but you have to prepare yourself that it may take some time and you

Stacey Whitcomb:

may have to do it more than once.

Geoff Geness:

So what are some of the key things that a veteran needs to know

Geoff Geness:

in order to prep for filing an appeal?

Stacey Whitcomb:

Well, I think one of the first things that they

Stacey Whitcomb:

need to do is they need to really carefully read their rating decision.

Stacey Whitcomb:

And that is, something that can give them a whole lot of information about

Stacey Whitcomb:

what the VA decided exactly and how they may want to, make an appeal to.

Stacey Whitcomb:

. So I was just gonna go through the different sections of the rating decision

Stacey Whitcomb:

and then talk about some specifics.

Stacey Whitcomb:

So if you have a rating decision that you want to review, you might

Stacey Whitcomb:

want to pull it out and use it as we describe what each section is.

Stacey Whitcomb:

The first section of a rating decision, your name and your social

Stacey Whitcomb:

or your VA file number, and who you're represented by will be listed up top.

Stacey Whitcomb:

And then there'll be a short introduction paragraph.

Stacey Whitcomb:

And in that introduction paragraph, it will.

Stacey Whitcomb:

the dates of your service that they are considering for this rating decision.

Stacey Whitcomb:

So it should list all of the dates of service.

Stacey Whitcomb:

If there's a missing date of service, that would be something that

Stacey Whitcomb:

you'd immediately want to correct.

Stacey Whitcomb:

The next section is the decision section, and in that section the VA will make a

Stacey Whitcomb:

short statement about what they decided

Stacey Whitcomb:

following.

Stacey Whitcomb:

There's an evidence section, and in the evidence section they will list each

Stacey Whitcomb:

piece of evidence that was considered.

Stacey Whitcomb:

If you don't see a piece of evidence that you thought would be in there, then that

Stacey Whitcomb:

also is something that you would want to correct and we'll tell you how to do that.

Stacey Whitcomb:

The last section is the reasons for the decision section and in this section.

Stacey Whitcomb:

, the VA will take each item that is being decided in this rating decision

Stacey Whitcomb:

and they will discuss the relative points of why it was either granted

Stacey Whitcomb:

or while it, why it was denied.

Stacey Whitcomb:

And one of the things that I really want to point out is the very last.

Stacey Whitcomb:

Part of that section is a section called Favorable Findings, and it's a section

Stacey Whitcomb:

that you'll find, , associated with each individual, claim or contention

Stacey Whitcomb:

that you're making with the va.

Geoff Geness:

Okay, let's talk about favorable findings.

, Stacey Whitcomb:

well, favorable findings, came about after a court case.

, Stacey Whitcomb:

Favorable findings are the VA telling you which of the three elements of

, Stacey Whitcomb:

service connection have already been met.

, Stacey Whitcomb:

So if they recognize that there was an in-service, , but they don't

, Stacey Whitcomb:

recognize that you have a current disability or they don't recognize that

, Stacey Whitcomb:

there's a nexus between your current disability and the in-service event.

, Stacey Whitcomb:

That's what you'll find out in this favorable findings section.

, Stacey Whitcomb:

So in favorable findings, they will list each one of the elements that

, Stacey Whitcomb:

you've already, proven to them, and you don't have to continue to prove that.

, Stacey Whitcomb:

If they show an in-service event, then the only thing that you need to prove.

, Stacey Whitcomb:

The current disability and the nexus.

, Stacey Whitcomb:

If they don't show an in-service event, then maybe you need to find the proof

, Stacey Whitcomb:

for that event, , which might come in the form of in-service treatment

, Stacey Whitcomb:

records or a notation on your DD two 14 or some other, official paperwork

, Stacey Whitcomb:

that you have from your, um, time and.

Geoff Geness:

So basically what you're saying is that this section

Geoff Geness:

called favorable findings is actually where you can go to find what

Geoff Geness:

missing puzzle piece you need to provide the VA when you're making an.

Stacey Whitcomb:

That's exactly right.

Stacey Whitcomb:

There's usually three pieces to the puzzle, and they're gonna list which

Stacey Whitcomb:

ones that you've already found and you're looking for the last one.

Geoff Geness:

So we're gonna turn a corner now and talk about the appeal types.

Geoff Geness:

So there's an instructional chart that describes all of these appeal

Geoff Geness:

types called the VA form 29 98.

Geoff Geness:

There are three ways to appeal a decision.

Geoff Geness:

Before we start, there are some extremely key details that you need to consider.

Geoff Geness:

Jeff, would you like to address those points?

Stacey Whitcomb:

Sure, absolutely.

Stacey Whitcomb:

There are several options in order to appeal a decision, but you can

Stacey Whitcomb:

only choose one option at a time.

Stacey Whitcomb:

. For each appeal type that we discussed today, you must fill out a different form.

Stacey Whitcomb:

You may not use the 5 26 EZ form to file these types of claims.

Stacey Whitcomb:

If you do try to use that form, your appeal will not be accepted and you'll

Stacey Whitcomb:

be directed to use the correct form that just slows down your claim processing.

Stacey Whitcomb:

So what I suggest is everybody check the show notes and the workbook.

Stacey Whitcomb:

and make sure that you're using the correct form for the type of

Stacey Whitcomb:

appeal that you're trying to do.

Geoff Geness:

on the s summary form that VA form 20 dash oh 9 98,

Geoff Geness:

that describes these processes?

Geoff Geness:

in terms of appeal, the order in which we're discussing is

Geoff Geness:

from simplest to most difficult.

Geoff Geness:

And for the higher level review.

Geoff Geness:

The reason why we consider that to be the simplest is because you're

Geoff Geness:

appealing a decision, but you're not providing any additional information.

Geoff Geness:

You're just asking them to re-look at the facts of the case and make a new decision.

Stacey Whitcomb:

Now for these appeal processes that we're gonna discuss.

Stacey Whitcomb:

Most of the time, you have one year from the date of the decision that

Stacey Whitcomb:

the VA made that you're appealing in order to get your appeal.

Stacey Whitcomb:

If your appeal is successful, then you will maintain the earliest effective

Stacey Whitcomb:

date, which means that if your appeal is, successful, then they will backdate

Stacey Whitcomb:

it to the date , , of the, of the, claim for that particular contention.

Stacey Whitcomb:

It might be the original claim, it might be after the.

Stacey Whitcomb:

There is another way that you can open a claim, either, one of your initial

Stacey Whitcomb:

claims or, an appeal, , after one year, and that you would do with a

Stacey Whitcomb:

supplemental claim, but the effective date will only be from the date of that.

Stacey Whitcomb:

Supplemental claim and it won't necessarily be the earliest possible.

Stacey Whitcomb:

So you really want to get those appeals in within a year of the decision that

Stacey Whitcomb:

the VA made that you're appealing

Stacey Whitcomb:

So, on that, , outline that, , the VA made and the order that we're

Stacey Whitcomb:

discussing these type of appeals, it's not necessarily the order

Stacey Whitcomb:

that they should be attempted.

Stacey Whitcomb:

This is not like a 1, 2, 3 kind of scenario.

Stacey Whitcomb:

It's really an A, b, or C choice.

Stacey Whitcomb:

Um, so the situation and the circumstances for each individual

Stacey Whitcomb:

claim will really dictate which type of appeal is the most appropriate.

Stacey Whitcomb:

As we've said before, you know a VSO is really the best person to

Stacey Whitcomb:

advise you as to which type of appeal is the most appropriate for your.

Geoff Geness:

Great.

Geoff Geness:

So just a quick recap.

Geoff Geness:

Number one, you can only choose one way to appeal at a time.

Geoff Geness:

Number two, there's a specific form for each type of appeals process.

Geoff Geness:

Number three, you cannot use the 5 26 easy form.

Geoff Geness:

Number four.

Geoff Geness:

You have one year from the date of the decision that you are appealing

Geoff Geness:

to file an appeal, and by doing so, if your appeal is successful, you'll

Geoff Geness:

maintain the earliest effective date.

Geoff Geness:

Number five, if you appeal more than a year after the supplemental claim,

Geoff Geness:

which is the second type of appeal, will be discussing, the effective date will

Geoff Geness:

be the date of the new supplemental.

Geoff Geness:

Number six, every circumstance is different and we'll dictate which of the

Geoff Geness:

three types of appeal you'll need to make.

Geoff Geness:

And seven, the best way to navigate this so as not to make any timely

Geoff Geness:

errors is to get the help of a vsso.

Geoff Geness:

Okay.

Geoff Geness:

Jeff, are you ready to walk us through each type of appeal?

Stacey Whitcomb:

Sure.

Stacey Whitcomb:

Yeah, absolutely.

Stacey Whitcomb:

But um, before I do that, I just wanna remind our listeners that I'm explaining

Stacey Whitcomb:

what is on the VA form 20 dash oh 9 98.

Stacey Whitcomb:

And it also might be helpful if they.

Stacey Whitcomb:

Pull that form up and follow along with us.

Stacey Whitcomb:

You can find the form in the show notes, or you can find it on va.gov.

Stacey Whitcomb:

So we're gonna start with, the first, choice that you might

Stacey Whitcomb:

have to appeal a VA decision, and that's called a higher level.

Stacey Whitcomb:

And so this might be the right avenue to pursue when you believe

Stacey Whitcomb:

the VA made a mistake in its determination of your claim.

Stacey Whitcomb:

So this is a situation where you think the VA and or the VA examiner had all

Stacey Whitcomb:

the information they needed at the time they made that decision, and yet

Stacey Whitcomb:

they either discounted the information, didn't notice the information, or

Stacey Whitcomb:

they made a clear and unmistakable.

Stacey Whitcomb:

So that they did not make the right decision or the correct decision?

Geoff Geness:

Do you have an example for us?

Stacey Whitcomb:

Yeah.

Stacey Whitcomb:

Yeah.

Stacey Whitcomb:

I have an example.

Stacey Whitcomb:

Now some of these examples that I give, , might have information that is really.

Stacey Whitcomb:

Mostly accessible by A V S O, but I can remember a case really recently

Stacey Whitcomb:

that I was helping a veteran and he had a denial for a low back condition.

Stacey Whitcomb:

And what they had said was that the low back condition, even though they had

Stacey Whitcomb:

recognized his in-service event, and they recognized that he had a current

Stacey Whitcomb:

low back condition and a disability.

Stacey Whitcomb:

they indicated that there was no link between the two.

Stacey Whitcomb:

The medical examiner had not found a medical link between those two.

Stacey Whitcomb:

, event in service and the current condition.

Stacey Whitcomb:

And I was able to look through the paperwork and I looked at what the

Stacey Whitcomb:

examiner had said, and I realized that the Raider had just made a mistake.

Stacey Whitcomb:

And actually the examiner had said yes, there was a.

Stacey Whitcomb:

And it was written in kind of a little bit of a confusing way,

Stacey Whitcomb:

and so it was just a human error.

Stacey Whitcomb:

And so we were able to go back and just file a higher level review and say, Hey,

Stacey Whitcomb:

could you please look at this paperwork that you already have and check and see

Stacey Whitcomb:

if there was a mistake that was made.

Stacey Whitcomb:

And they in fact found the mistake and then they granted it.

Stacey Whitcomb:

And because he had made his appeal within a year, they were able to grant.

Stacey Whitcomb:

This, claim, , for a low back condition, and they were able to grant it from

Stacey Whitcomb:

the date that he originally claimed it.

Geoff Geness:

Awesome.

Geoff Geness:

Good story.

Geoff Geness:

Glad he got help.

Geoff Geness:

, a minute ago you used this term, clear and unmistakable error.

Geoff Geness:

Can you give a very clear an unmistakable definition for that please?

Stacey Whitcomb:

Absolutely.

Stacey Whitcomb:

a clear and unmistakable error, which is often referred to as A

Stacey Whitcomb:

C U E, uh, involves a situation where the correct facts were known.

Stacey Whitcomb:

And based on the current legislation and VA guidelines, the decision

Stacey Whitcomb:

was not applied correctly.

Stacey Whitcomb:

Now, in this situation, , you're asking the VA to make a new.

Stacey Whitcomb:

, but with only the current evidence that is already in the record

Stacey Whitcomb:

and was that was of record.

Stacey Whitcomb:

Meaning , that it was in the VA's possession at the time that

Stacey Whitcomb:

they made the original decision.

Stacey Whitcomb:

You should understand that requesting a higher level review, will cause your

Stacey Whitcomb:

claim to be sent up to a senior rate.

Stacey Whitcomb:

Who will review all of this previous evidence and they'll

Stacey Whitcomb:

review the decision that was made.

Stacey Whitcomb:

And this process can take on average maybe four months.

Stacey Whitcomb:

But if they do grant it, then the effective date will be the effective

Stacey Whitcomb:

date, which should have been granted with the original decision.

Geoff Geness:

actually, If you file the appeal within a

Geoff Geness:

year of the initial decision,

Stacey Whitcomb:

Right?

Stacey Whitcomb:

You have one year from the date of the decision that you're appealing

Stacey Whitcomb:

in order to file the appeal.

Stacey Whitcomb:

And if you do that within a year, then you will be able to maintain

Stacey Whitcomb:

the earliest possible effective date.

Stacey Whitcomb:

And that's something that the VA is trying to do and they're mandated to do by law.

Stacey Whitcomb:

So again, uh, your claim will be sent to a senior rate.

Stacey Whitcomb:

Who's gonna review all the previous evidence and the decision that was made.

Stacey Whitcomb:

And you may also request to have an optional, informal

Stacey Whitcomb:

conference with that radar.

Stacey Whitcomb:

Usually it's a telephone conference, , to identify the specific errors in your

Stacey Whitcomb:

case that you want them to consider.

Stacey Whitcomb:

, if you're requesting this option, that could also further delay the claim.

Stacey Whitcomb:

, and if you do choose to have a telephone or an informal conference, I highly

Stacey Whitcomb:

recommend that you have a VSO in on that call so that they can advise you,

Stacey Whitcomb:

so that they make sure that all the information comes out correctly to the va.

Geoff Geness:

So , I have two questions.

Geoff Geness:

How would you request this, and then why are you specifically suggesting

Geoff Geness:

that they have a VSO on this call?

Stacey Whitcomb:

Well, first of all, to request a higher level review, you

Stacey Whitcomb:

fill out VA form 29 96 it's called a decision review request, higher level

Stacey Whitcomb:

review, and you want the VSO there.

Stacey Whitcomb:

They are the ones that understand the intricacies of the VA rating

Stacey Whitcomb:

schedule, and they understand which pieces of information you need to

Stacey Whitcomb:

prove,, in order to, prove your case.

Stacey Whitcomb:

And also, they are the experts on where the VA may have made a mistake.

Geoff Geness:

Perfect.

Geoff Geness:

Yeah.

Geoff Geness:

Great.

Geoff Geness:

I totally understand.

Geoff Geness:

I think it's always great to have a second person on any medical exam, any medical,

Geoff Geness:

anything, anytime somebody's talking about stuff that you don't quite understand.

Geoff Geness:

It's really nice to have a second set of ears there, anytime that's happening.

Stacey Whitcomb:

Especially if you're dealing with someone else that's an

Stacey Whitcomb:

expert, like a senior level Raider, , bring your expert to the table as

Geoff Geness:

Agreed.

Stacey Whitcomb:

All right, Jeff, are you ready to walk us through how

Stacey Whitcomb:

to fill out the higher level review?

Geoff Geness:

I sure am.

Stacey Whitcomb:

Okay, fire away.

Geoff Geness:

The first thing that I would like to mention about the

Geoff Geness:

higher level review is that the higher level review cannot be used to review

Geoff Geness:

an already determined higher level review or a case that has already

Geoff Geness:

gone to the Board of Veterans Appeals.

Geoff Geness:

this, a form of appeal, the higher level review is only for

Geoff Geness:

appealing a decision that they.

Geoff Geness:

or it could be appealing, a supplemental claim decision that

Geoff Geness:

they made, they being the va.

Geoff Geness:

That's when you would use this higher level review.

Geoff Geness:

The first section , and by the way, these are in sections on this particular

Geoff Geness:

form, section one, which is just the veteran's identification information.

Geoff Geness:

Just make sure that it matches your information on file.

Geoff Geness:

If you are homeless or at the risk of becoming homeless, definitely

Geoff Geness:

check the circle in box six.

Geoff Geness:

And they will prioritize the handling of your claim.

Geoff Geness:

if there's another reason that your claim needs to be prioritized, you

Geoff Geness:

can also fill out a different form.

Geoff Geness:

It's form 21 0 2 0 7, and it will be on the website.

Geoff Geness:

And that would be if you needed it to be expedited for a reason such as terminal

Geoff Geness:

illness, uh, eviction or hospitalization.

Geoff Geness:

And now in section two we're describing the claimant's identification information.

Geoff Geness:

The claimant is somebody other than the vet often it's a

Geoff Geness:

veteran surviving dependence, that might fill out this form.

Geoff Geness:

Even, uh, survivors might need to appeal a previous decision in order to get the

Geoff Geness:

survivor's benefits that their loved one had earned during their lifetime.

Geoff Geness:

The next section is section three, and that is the benefit

Geoff Geness:

type, you can only select one type of benefit in this section.

Geoff Geness:

And for our purposes, we're choosing either compensation or pension.

Geoff Geness:

But this form can be used to appeal a whole range of VA decisions, that

Geoff Geness:

aren't really being discussed right now.

Geoff Geness:

In this podcast, what we're gonna use it for is to appeal and ask for a higher

Geoff Geness:

level review of either a compensation, decision, or a pension decision.

Geoff Geness:

Section four and the title is optional, informal conference.

Geoff Geness:

And this section you fill out if you want , you or your representative,

Geoff Geness:

to have a phone conversation with a senior rate at the va.

Geoff Geness:

As we described before, you'll mark which hours are best

Geoff Geness:

for you to receive that call.

Geoff Geness:

And you can also just request that your VSO.

Geoff Geness:

Handle that call for you.

Geoff Geness:

The VA will try to call you, , at least twice, but they will only call twice.

Geoff Geness:

Uh, If they don't reach you after the second call, they'll skip the conference

Geoff Geness:

and continue with the higher level review.

Geoff Geness:

But if they do get in contact with you or your representative, then you have

Geoff Geness:

the ability to informally tell them.

Geoff Geness:

in more detail than you probably could on this form.

Geoff Geness:

What the specific issue is that you have with the previous decision

Geoff Geness:

and why you're appealing it?

Geoff Geness:

Section five is titled Issues for Higher Level Review, this section

Geoff Geness:

is where you want to tell the va.

Geoff Geness:

What you are specifically disagreeing with.

Geoff Geness:

So there's two columns.

Geoff Geness:

The first column is what you disagree with, and it could be, there's several

Geoff Geness:

examples listed on the form, and then the second column is the date of

Geoff Geness:

the decision that you're contesting.

Geoff Geness:

Now, if you have more information, then you can put in that form.

Geoff Geness:

you can always use a continuation form and those will also be

Geoff Geness:

available on the website.

Geoff Geness:

And it's a 21 41 38 form, which is just a statement and supportive claim.

Geoff Geness:

So it's just basically a continuation sheet that you can use for any VA form.

Geoff Geness:

So we're almost to the end here.

Geoff Geness:

The last section is section six and that's where you're going to certify and sign it.

Geoff Geness:

And basically you need to sign it ink, and you'll put the date there.

Geoff Geness:

or if your VS O is filing it, then they will sign and certify this form

Geoff Geness:

and they will turn it in for you.

Geoff Geness:

So let's talk about the next type of.

Stacey Whitcomb:

Yeah, absolutely.

Stacey Whitcomb:

The next one is called a supplemental claim, and this is a type of appeal

Stacey Whitcomb:

that you would file if the VA has rejected your claim or it's rated it

Stacey Whitcomb:

at an inappropriately low level and you have new and relevant information.

Stacey Whitcomb:

That was not previously considered and is also important for

Stacey Whitcomb:

making the correct decision.

Stacey Whitcomb:

So in that case, you would want to file a supplemental claim.

Stacey Whitcomb:

So in order to file a supplemental claim, you should submit the new and relevant

Stacey Whitcomb:

information along with the claim, to qualify as new, the evidence must not

Stacey Whitcomb:

have been part of the evidentiary record.

Stacey Whitcomb:

Uh, when they made their first decision.

Stacey Whitcomb:

So the VA didn't have this information before, and in order

Stacey Whitcomb:

for it to be considered relevant, the additional information has

Stacey Whitcomb:

to tend to prove or disprove, um, some matter at issue in the claim.

Stacey Whitcomb:

So it can be anything to do with the claim, but it has to either

Stacey Whitcomb:

prove or disprove something in the claim to be relevant.

Geoff Geness:

And do you have an example for this one?

Stacey Whitcomb:

Yeah, absolutely.

Stacey Whitcomb:

Um, an example might be someone that has a neck condition and maybe they

Stacey Whitcomb:

have some pain and limited ranges of motion in their neck, due to a service.

Stacey Whitcomb:

Injury.

Stacey Whitcomb:

And so maybe the VA made a decision and they did not see that the

Stacey Whitcomb:

person had a current condition.

Stacey Whitcomb:

They didn't see the treatment records,, or they weren't given the treatment

Stacey Whitcomb:

records for the current treatment, which shows that they'd been treated

Stacey Whitcomb:

for this condition for at least six months, that this condition was chronic

Stacey Whitcomb:

and that they had this condition.

Stacey Whitcomb:

And so in that case, they would deny this case based on no diagnosis because

Stacey Whitcomb:

there wasn't a current chronic diagnosis.

Stacey Whitcomb:

And if you have evidence that you do have a diagnosis and you have

Stacey Whitcomb:

had treatment for this condition, then you could submit that with a

Stacey Whitcomb:

supplemental claim and the VA would then consider it and revise their decision.

Geoff Geness:

Okay.

Geoff Geness:

That makes sense.

. Stacey Whitcomb:

Let's go through filling out the supplemental claim form.

. Stacey Whitcomb:

Yeah, in order to file the supplemental claim, again, it's a different form.

. Stacey Whitcomb:

It's VA form 20 dash oh 9 9 5.

. Stacey Whitcomb:

Decision review request, supplemental claim,

Geoff Geness:

This type of appeal, is slightly more complex because in

Geoff Geness:

addition to filling out this form, and we're gonna go step by step how

Geoff Geness:

to fill it out here, you also need to provide new or relevant information

Geoff Geness:

to the VA so that they can reconsider the decision that you're contest.

Geoff Geness:

So this form rather than in sections is in parts.

Geoff Geness:

So part one, claimant's identifying information.

Geoff Geness:

Again, as with the other forms, we just make sure that this section matches

Geoff Geness:

your address on file and make sure that you fill out your birthday and your

Geoff Geness:

social security number or your VA file.

Geoff Geness:

there is a place for both the veteran's name and the claimant's

Geoff Geness:

name, if you're the veteran, leave the claimant name blank.

Geoff Geness:

If you're a claimant other than the veteran, then you must fill out

Geoff Geness:

both the veteran's name and your information under claimant name.

Geoff Geness:

So if you are the claimant, then you can also put which type of claimant you are.

Geoff Geness:

That's item eight.

Geoff Geness:

And then all the way down at item 12, which is the benefit type.

Geoff Geness:

That's the same as the other form where we want to check

Geoff Geness:

either compensation or pension.

Geoff Geness:

Those are the two that we're discussing right now.

Geoff Geness:

But this form can also be used to contest of various number of

Geoff Geness:

other, uh, VA decisions that aren't part of this podcast right now.

Geoff Geness:

Okay.

Geoff Geness:

Now moving on to part two.

Geoff Geness:

Part two is issues for a supplemental claim.

Geoff Geness:

This is the part of the form where you're going to describe which specific issue

Geoff Geness:

you're contesting and the date of the VA decision or notice that you received.

Geoff Geness:

Make sure that when you're putting the specific issue that.

Geoff Geness:

You are referencing the new and relevant information that you're gonna be

Geoff Geness:

providing to the va, and that's often in the form of additional chart notes

Geoff Geness:

or additional documents that you've received or have in your possession.

Geoff Geness:

It's also important to note, a supplemental claim can be used to, appeal.

Geoff Geness:

An original claim, , on a 5 26 ez.

Geoff Geness:

It can also be used to, contest a previous supplemental claim

Geoff Geness:

or a higher level review.

Geoff Geness:

You can use this, form to contest all of those because you're providing new and

Geoff Geness:

relevant information to the VA so that they can then make a proper decision.

Geoff Geness:

Okay, we're moving on to part three, which is the new and relevant evidence.

Geoff Geness:

And like I said, you need to be providing that and it says it in the instructions

Geoff Geness:

right there at the top of the form about what is new and relevant evidence, you

Geoff Geness:

need to provide that evidence along with this claim form or if you have

Geoff Geness:

additional treatment records that might be at a VA medical center or a VA

Geoff Geness:

treatment facility or any other, federal.

Geoff Geness:

Department or agencies, you can put where those records are located and the dates

Geoff Geness:

of the records, and the VA will make attempts to recover those records so

Geoff Geness:

that they can be considered in your case.

Stacey Whitcomb:

I'm sorry, but the, the veteran themselves should

Stacey Whitcomb:

actually submit all of that.

Stacey Whitcomb:

You shouldn't expect the VA to find that information for you.

Geoff Geness:

Yeah, I agree.

Geoff Geness:

If you're filing a supplemental claim, you should be providing

Geoff Geness:

the new and relevant information.

Geoff Geness:

If you're filing a supplemental claim and expecting the VA to then find it for you.

Geoff Geness:

Even if you put it on this form.

Geoff Geness:

I don't think that you're, , doing the best for your claim.

Geoff Geness:

I think you need to provide it to them so that it's easy for them to see

Geoff Geness:

what you're, , trying to contest and the information that you're provid.

Geoff Geness:

That you want them to make a new decision on.

Stacey Whitcomb:

Would it be safe to say that they actually have to go

Stacey Whitcomb:

to the VA to obtain that information with which then to submit to the

Stacey Whitcomb:

VA to use this supplemental claim?

Stacey Whitcomb:

form

Geoff Geness:

Sometimes that's the case, especially if someone is

Geoff Geness:

being treated at a va , healthcare facility, so VA Medical Center.

Geoff Geness:

And at the medical center there might be treatment records, and that's where

Geoff Geness:

you could put it on this form and you could list that medical center

Geoff Geness:

and the dates of the records and the VA would attempt to get those.

Geoff Geness:

you could also go to the release of information office at the VA Medical

Geoff Geness:

Center, obtain copies of them and submit it with your form, and that

Geoff Geness:

would probably streamline the process.

Stacey Whitcomb:

Cool.

Stacey Whitcomb:

That's what I thought.

Stacey Whitcomb:

Thank you.

Geoff Geness:

Yeah.

Geoff Geness:

Part four is a really simple section.

Geoff Geness:

It's a 51 0 3 notice acknowledgement.

Geoff Geness:

. And basically what that means is always check yes so that your

Geoff Geness:

case will be adjudicated quicker.

Geoff Geness:

Um, the 51 0 3 is a, a rights notice that the VA will send you, but it's part

Geoff Geness:

of the original forms, , that you had.

Geoff Geness:

And so if you haven't had a decision within a.

Geoff Geness:

The VA is mandated to send you one of these unless you waive that, right?

Geoff Geness:

If they have to send you one, it'll add at least a month to your claim.

Geoff Geness:

Part five is the certification and signature, and that is where you're gonna

Geoff Geness:

sign, as the veteran or as the claim.

Geoff Geness:

And date it in Inc.

Geoff Geness:

Unless you have a vs.

Geoff Geness:

O as your representative.

Geoff Geness:

And then they will sign for you this bottom box, which is the alternate

Geoff Geness:

signer certification and signature.

Geoff Geness:

That box is usually not used very often.

Geoff Geness:

It's only used in a case.

Geoff Geness:

The veteran is going to be signing the form, but they're not physically capable

Geoff Geness:

or mentally capable of signing it, and so other family members sign that

Geoff Geness:

indicate that they, that their mark on the form is acceptable as a signature.

Stacey Whitcomb:

and just like you did when you filed your first claim, you'll

Stacey Whitcomb:

probably have to wait several months to see if the VA changes their decision and

Stacey Whitcomb:

if the decision is changing your favor.

Stacey Whitcomb:

the correct rating will be backdated to the time that you filled out,,

Stacey Whitcomb:

your first, , claim paperwork if you, appealed , within the year, timeframe.

Stacey Whitcomb:

, also like we mentioned before, at any time in the future, This is

Stacey Whitcomb:

even past the one year timeframe.

Stacey Whitcomb:

If you have additional information and you want to appeal a previous decision, you

Stacey Whitcomb:

still can with a supplemental claim, but the effective date will likely only be the

Stacey Whitcomb:

date that you made this new supplemental claim, but you still are able to appeal a

Stacey Whitcomb:

past VA decision even if it's decades ago.

Geoff Geness:

Okay, so let's talk about the last type of appeal.

Stacey Whitcomb:

Yeah, absolutely.

Stacey Whitcomb:

And this one is definitely , the most lengthy and the most complicated,

Stacey Whitcomb:

and this is when you decide to make a appeal to the Board of Veterans Appeals.

Stacey Whitcomb:

, if you do this, definitely contact your v s O to help you with this type of appeal.

Stacey Whitcomb:

They will help you plead your case before the Board of Veterans Appeals.

Stacey Whitcomb:

And it's important to know that this process can take, like I said, a long

Stacey Whitcomb:

time, like usually a year or longer.

Stacey Whitcomb:

, and it's why you probably want to consider the first two options, a higher

Stacey Whitcomb:

level review or a supplemental claim, , first before this, but it's still an.

Geoff Geness:

So can we talk a little bit about the Board of Veteran

Geoff Geness:

Appeals so that our listeners have kind of an idea of what to expect,

Geoff Geness:

cuz this one seems like court

Stacey Whitcomb:

Yeah, it's very much like court.

Stacey Whitcomb:

In fact, , the Board of Veterans Appeals, is a collection of

Stacey Whitcomb:

administrative law judges who work for the VA for this specific purpose.

Stacey Whitcomb:

, they are literally the experts that set precedent regarding VA regulations

Stacey Whitcomb:

So if you wanna file this type of appeal, you have to choose.

Stacey Whitcomb:

A particular method, you would like the judge to use.

Stacey Whitcomb:

The first one is called direct review, and this one is where you want the

Stacey Whitcomb:

judge to review the case and you don't want to provide any additional.

Stacey Whitcomb:

And the judge will review all the evidence and they'll also review what the VA's

Stacey Whitcomb:

current determination, something called, a supplemental statement of the case.

Stacey Whitcomb:

And after that, they will make a ruling, either in your favor or, , siding

Stacey Whitcomb:

with the va, uh, original decision.

Stacey Whitcomb:

The second type of appeal to the Board of Veterans Appeals is evidence.

Stacey Whitcomb:

In this type of circumstance, you have new and relevant information

Stacey Whitcomb:

that you want the judge to consider.

Stacey Whitcomb:

And so they will consider that new evidence, along with all the existing

Stacey Whitcomb:

evidence and make their decision.

Stacey Whitcomb:

The third type of Board of Veterans Appeals, proceeding is a hearing.

Stacey Whitcomb:

And in this situation, you're requesting to have a hearing with the

Stacey Whitcomb:

veterans Administrative Law Judge.

Stacey Whitcomb:

Now you'll be notified in advance the date of your hearing and it

Stacey Whitcomb:

will likely be held remotely.

Stacey Whitcomb:

You should absolutely have your v s O with you for this hearing, and the judge will

Stacey Whitcomb:

take testimony, legal testimony from you and or your V s O and he'll also examine,

Stacey Whitcomb:

any evidence associated with your.

Stacey Whitcomb:

After that, the judge makes a ruling.

Stacey Whitcomb:

So once a judge makes a determination,, it is essentially the final determination.

Stacey Whitcomb:

Once the Board of Veterans Appeals makes that ruling, the only way

Stacey Whitcomb:

to , go higher than that is to go to the US Court of Appeals,, for veterans

Stacey Whitcomb:

claims, and then for the US Supreme.

Stacey Whitcomb:

And that happens, sometimes when there are legislative changes, it's due

Stacey Whitcomb:

to a case that's gone up that high and then applies to all veterans.

Geoff Geness:

So how would they file a request

Geoff Geness:

so.

Geoff Geness:

we're covering , an appeal to the Board of Veterans Appeals last because

Geoff Geness:

it usually is the most complicated, and as we mentioned before, it

Geoff Geness:

also takes usually at least a year for this process to, work its way

Geoff Geness:

through the Board of Veterans Appeal and for you to get a final decision.

Geoff Geness:

that process actually can take much longer.

Geoff Geness:

One year is about the minimum, so if you're making an appeal and you make one

Geoff Geness:

to the Board of Veterans Appeals, you just should not expect a quick turnaround time.

Geoff Geness:

If you feel like you could make one of the other appeals, either a higher

Geoff Geness:

level review or a supplemental claim to, to get action on what you disagree.

Geoff Geness:

that would be a far quicker and, uh, more efficient way to, to get it done,

Geoff Geness:

so on this form, which is the VA form 1 0 180 2, and it's a, board appeal, and

Geoff Geness:

it's also sometimes known as a notice of disagreement, and that is under the title

Geoff Geness:

of the form, and it's in parentheses be, but that's what it used to be called.

Geoff Geness:

And that's basically you putting the VA on notice that you disagree with

Geoff Geness:

their decision and you're asking a higher authority, which is the Board

Geoff Geness:

of Veterans Appeals to then adjudicate between you and the veterans Adminis.

Geoff Geness:

So this form is also laid out in parts, and part one is your personal information.

Geoff Geness:

And you can see that this is much simpler, but you still need to put the

Geoff Geness:

veteran's name and their file number.

Geoff Geness:

file number refers to their social security number or their VA file

Geoff Geness:

number, whichever is used for them.

Geoff Geness:

You need to put their date of birth.

Geoff Geness:

And then if you're not the veteran, then you need to put your information there.

Geoff Geness:

In item four, if you have a representative, then you'll put them

Geoff Geness:

and you'll also put your contact number in that part one if you

Geoff Geness:

are homeless or at risk, they will prioritize processing your claim.

Geoff Geness:

So definitely provide a preferred phone number and an email address

Geoff Geness:

so that they are able to contact you as quickly as possible.

Geoff Geness:

It is difficult, obviously, but you should have a representative,

Geoff Geness:

at the B A if you are homeless.

Geoff Geness:

They do have case officers track their homeless popul.

Geoff Geness:

Now we're moving on to part two, which is the board review option.

Geoff Geness:

Um, and you can only check one of these options, and it's probably

Geoff Geness:

the most important part of the form.

Geoff Geness:

What you're deciding here is first either A, B, or C.

Geoff Geness:

So you have to decide whether or not you want to have a direct review by

Geoff Geness:

the veterans law judge, and you're not gonna submit any information, you

Geoff Geness:

just wanna send it directly to the judge and have them make a decision.

Geoff Geness:

Item 10 B.

Geoff Geness:

If you check that one, then you do submit evidence to the veterans law

Geoff Geness:

judge, and then you want them to go ahead and, um, make a decision

Geoff Geness:

unless you provide any other additional information within 90 days.

Geoff Geness:

So item 10 C is when you want a hearing with the veterans law judge and.

Geoff Geness:

You want to provide the opportunity to not only provide evidence in

Geoff Geness:

written form, but you actually want to schedule a hearing so that then you

Geoff Geness:

can get your testimony into the record.

Geoff Geness:

And this is kind of important when you have a case that's very

Geoff Geness:

complex, or if you're disagreeing with, VA examiners or Raider.

Geoff Geness:

You can choose to have this, hearing either at the central office in

Geoff Geness:

Washington dc Not many people choose that unless you live in the local area.

Geoff Geness:

You can also do a video conference hearing, where you go to a regional

Geoff Geness:

office in your area and then you have a conference with the administrative

Geoff Geness:

law judge, at the Board of veterans.

Geoff Geness:

And you can also do a virtual tele hearing, where you do it, via, , your

Geoff Geness:

own, computer, and then you provide an email address to be able to do that.

Geoff Geness:

So part three, which is specific issues to be appealed to a veteran's law.

Geoff Geness:

At the board, first you need to check a box there in item 11.

Geoff Geness:

And those boxes, you only check if they apply.

Geoff Geness:

The first box is if you're asking for a extension of time to provide information

Geoff Geness:

to the administrative law judge.

Geoff Geness:

So you're asking for more than the 90.

Geoff Geness:

The second box there is if you're specifically appealing a decision by

Geoff Geness:

the Veterans Health Administration, then you need to check that box because

Geoff Geness:

they will expedite it if you're in need of healthcare, and it's a decision

Geoff Geness:

that they can decide in your favor.

Geoff Geness:

Beyond that, there's the same two columns as on the other forms where you

Geoff Geness:

list what the specific issue that you disagree with and that you're contesting.

Geoff Geness:

And then in the next column you list the date that decision was made.

Geoff Geness:

Okay, this is just a one page form.

Geoff Geness:

So as we move down to part four, it's just the certification and

Geoff Geness:

signature, and it's really just a place for you to sign it and date it.

Geoff Geness:

And on this form, , it's, , either again, the appellant, so that's the veteran.

Geoff Geness:

The claimant, or it can be their representative as

Geoff Geness:

well that signs this form.

Geoff Geness:

and you really should have your V S O help you prepare this case and

Geoff Geness:

prepare the evidence Unless you're a lawyer or a doctor and have experience

Geoff Geness:

with these types of complex, uh, legal and medical cases, don't

Geoff Geness:

expect to win this type of appeal, unless you have, a VSO helping you.

Geoff Geness:

Okay, so at the beginning of this episode, we said that there are two main

Geoff Geness:

circumstances where you might want to appeal a decision made by the va, and

Geoff Geness:

they were, number one, the level of disability, which means your rating and

Geoff Geness:

how severe the disability affects you.

Geoff Geness:

Or number two, the effective date, which means the date the VA starts paying you.

Geoff Geness:

So let's shift gears a little bit and talk about effective dates.

Geoff Geness:

Jeff, can you explain effective dates to us please?

Stacey Whitcomb:

Yeah, absolutely.

Stacey Whitcomb:

So the VA has the responsibility to provide the earliest effective

Stacey Whitcomb:

date allowed by law or regulation.

Stacey Whitcomb:

The effective date is based on when Veteran submits a claim or

Stacey Whitcomb:

based on the date of discharge.

Stacey Whitcomb:

Now, if the VA gets an original claim within one year of the veteran

Stacey Whitcomb:

exiting the service, the effective date is usually the day after D.

Stacey Whitcomb:

There are some exceptions to that, but usually most things

Stacey Whitcomb:

that have have occurred within a year of separating the service.

Stacey Whitcomb:

The VA

Stacey Whitcomb:

assumes that those are more likely to be service connected than otherwise.

Stacey Whitcomb:

So if we're talking about effective,

Stacey Whitcomb:

It's a relatively common appeal for the veteran to believe that maybe there's

Stacey Whitcomb:

evidence in there that the effective date should be earlier than what the VA says.

Stacey Whitcomb:

An example of that might be that there was medical evidence that

Stacey Whitcomb:

provided an onset for this condition earlier that the VA overlooked

Stacey Whitcomb:

another example might be that the VA rate, , used the date of your VA exam

Stacey Whitcomb:

as the effective date instead of the date that, , the claim was submitted.

Stacey Whitcomb:

Another possibility is, That you filed an intent to file and they didn't

Stacey Whitcomb:

notice it in the system, and so they didn't give you the earliest possible

Stacey Whitcomb:

effective date, they will likely, , correct those errors with a higher

Stacey Whitcomb:

level review or a supplemental claim.

Stacey Whitcomb:

Those are pretty simple errors for the VA to correct.

Geoff Geness:

But in this situation, you would wanna use the higher level review.

Stacey Whitcomb:

Yeah, for the most part, for effective dates, I would

Stacey Whitcomb:

mostly just, , appeal it using a higher level review unless there

Stacey Whitcomb:

was new and relevant information.

Stacey Whitcomb:

And then I would use supplemental claim.

Stacey Whitcomb:

So when you make this type of appeal, you should also include a veteran statement.

Stacey Whitcomb:

Usually that's done on a form 41, 38.

Stacey Whitcomb:

It's included in the workbook, and you should basically explain.

Stacey Whitcomb:

what the mistake was, why you think the effective date should be earlier, and

Stacey Whitcomb:

then that will point the senior rate to the information and hopefully they

Stacey Whitcomb:

can grant your earlier effective date.

Geoff Geness:

And that's just another situation where the VSO

Geoff Geness:

can, , aid and give great assistance.

, Stacey Whitcomb:

and that should be something that's, that's of note to

, Stacey Whitcomb:

our listeners is that the VSOs have the ability to look into the VA record system

, Stacey Whitcomb:

and see what they have in there and then point them to the right information.

. Geoff Geness:

All right, that's it.

. Geoff Geness:

Once again, we really wanna emphasize the importance of having a vso.

. Geoff Geness:

I know you heard it 17,000 times before, guys, but it's super important

. Geoff Geness:

to have one through the whole process.

. Geoff Geness:

and mainly so that it doesn't get slowed down by any mistakes that you might make.

. Geoff Geness:

And also I just wanted to remind everybody that getting help

. Geoff Geness:

should not cost you anything.

. Geoff Geness:

Having a VSO is free.

. Geoff Geness:

So please do not make that a barrier to getting help.

. Geoff Geness:

Jeff, is there anything else that you would like to add?

Stacey Whitcomb:

I would just like to say again that.

Stacey Whitcomb:

For any decision that the VA makes, there's always a

Stacey Whitcomb:

way to appeal that decision.

Stacey Whitcomb:

So I don't want our veterans to be frustrated, unnecessarily, and

Stacey Whitcomb:

I just want them to understand that these processes take time.

Stacey Whitcomb:

But it's absolutely possible to make sure that the VA gets the

Stacey Whitcomb:

appropriate information and that they make an accurate decision.

Geoff Geness:

Okay.

Geoff Geness:

Thanks so much, Jeff, for your time and all of your effort in doing this.

Geoff Geness:

I appreciate it.

Stacey Whitcomb:

Absolutely.

Stacey Whitcomb:

I appreciate you Stacy,

Geoff Geness:

Thank you.

Links

Chapters