It’s a complaint we often hear at our office: “The VA lowballed my disability rating.” We have handled many, many cases where we were able to successfully appeal a bad rating and were able to get increased benefits for Veterans. There are two important questions to be answered here: “How do I know if the VA lowballed my VA disability rating”, and “What can be done about it?”
Here are some key indicators that the VA rated your disability too low.
- Your disability has a major impact on your life, but the rating doesn’t reflect this.
If you are rated at 30% or lower, but your disability affects your everyday life—you don’t sleep well, you can’t maintain a steady job, you have chronic pain, or you have difficulty maintaining personal relationships with friends and family—then your rating is probably too low.
- The VA missed a secondary condition.
All too often, the VA overlooks secondary disabilities and Veterans miss out on much-needed benefits they are entitled to. You’re eligible for secondary disability benefits if your illness or injury has caused another different or separate condition. For example, a secondary disability might be depression caused by the loss of a leg in combat. Or suppose a Vietnam Veteran is eligible for VA disability benefits because they have diabetes from Agent Orange exposure. Any medical condition that is caused by diabetes is now considered a secondary service-connected impairment.
- Your C&P examiner made mistakes.
As you might expect, errors can occur in administering a Compensation and Pension Exam which can result in an improper rating or denial of VA disability benefits. Let’s look at some of the more common types of errors which can happen.
Sometimes the examiner will rely on speculation to support a poor rating. The VA says that medical opinion based on speculation—rather than supportable facts—is inadequate.
The examiner may misreport what you said to him or her during the exam, so be sure to carefully check the written report of your C&P exam. It also may be that you misunderstood what the examiner said or asked you about during the exam. This can happen easily when the examiner is tossing around unfamiliar medical terms.
In some instances, we see outdated medical information used as the rationale for establishing a disability rating. If the medical research the examiner references in the C&P report is more than five years old, you may have a legitimate reason for an appealing you rating.
Perhaps the examiner was not qualified to evaluate your condition. Unfortunately, it is not uncommon for C&P exams to be conducted by non-physicians like a nurse or a physician’s assistant. Or maybe the specialty of the examining physician is in an area that is unrelated to your impairment.
If the VA gives you a lower disability rating than your symptoms warrant, you have one year from the date of the decision letter to file an appeal.
Under the Veterans Appeals Improvement and Modernization Act (AMA) you can challenge your rating through the VA's Decision Review System using one of three “lanes”.
Option #1: Higher Level Review Lane
If you have no additional evidence to submit in support of your claim but you believe that there was an error in the initial decision, the Higher Level Review option may be your best choice. The Higher-Level Reviewer will only consider evidence that was in VA’s possession at the time of the prior decision. You or your attorney will not be able to add new evidence if you are in the Higher Level Review lane. You or your attorney can request an optional, one-time, informal telephone conference with the Higher-Level Reviewer to identify specific errors in the case, although this may cause a delay in the processing of your Higher Level Review.
Option#2: Supplemental Claim Lane
If you have additional evidence that is new and relevant to support your benefit claim, then you may want to select the Supplemental Claim Lane. The VA’s review will include any new and relevant evidence submitted since the agency last decided your claim.
What Does the VA Mean By “New and Relevant” Evidence for an AMA Claim?
The VA says that “new” evidence is simply that—new evidence submitted to the VA for the first time. It cannot be information that is already in VA records. It cannot be evidence a Veteran has previously provided to the VA or evidence the VA has legally acquired on behalf of the Veteran.
“Relevant” evidence is a fact (or facts) that VA did not have enough evidence to verify at the time of their prior decision—a fact that is necessary to substantiate the claim.
The VA says that submitted evidence which was previously reviewed in a claim denial is cumulative or redundant. It is not considered new and relevant. Evidence previously reviewed in the decision that denied your claim can be found in your notification letter or rating decision. This may help you determine if the evidence you’re considering for submission is cumulative or redundant.
Here’s an example that may help clarify what is considered new and relevant evidence. Let’s say a Veteran who is pursuing an Agent Orange claim has a private doctor’s medical report that lists non-Hodgkin's lymphoma as one of his diagnoses. If this Veteran has never submitted this report to the VA, and his VA Claims File has no record of this disease, then this private medical report would be both new and relevant evidence.
Option #3: Appeal to the Board Lane
If you prefer, you can appeal your case directly to the Board of Veterans Appeals. With the AMA the VA has created three options for board appeals: Direct Review, Evidence Submission, and Hearing.
- Direct Review: You do not want to submit additional evidence or have a hearing.
- Evidence Submission: You choose to submit additional evidence without a hearing.
- Hearing: You choose to submit additional evidence and have a hearing with a Veterans Law Judge. You will be scheduled for a Board hearing and may submit evidence at the hearing or within the 90 day window following the scheduled hearing.
What the VA Takes into Consideration When a Veteran Looks to Increase Their Disability Benefits Rating
When you request an increase in your disability rating, the VA will closely examine:
- Any new evidence. Many service-connected disabilities can get worse over time, but it is up to the Veteran to prove the extent to which his condition has deteriorated. The VA will look at the reasons you believe you are entitled to an increased rating, the supporting medical evidence you provide in your request, and also any evidence showing how your disability has affected your ability to earn a living. If your rating has increased to the point where you are completely unable to work, you may wish to consider a claim for total disability based on individual unemployability (TDIU).
- All past medical records. While the VA is required to examine all new evidence you provide, it may also examine past medical records as a basis for comparison. The VA may look at medical records submitted with your original claim, as well as supporting evidence you submit while you are waiting for your claim to be approved. If the VA denies your claim based on records that are several years old, you can appeal the decision or request a new medical examination.
- A new medical evaluation. The VA has a duty to assist claimants in filing their claims. Part of this duty is providing an updated medical evaluation to Veterans whose medical records do not reflect their current condition. If you can show evidence that your service-connected disability is noticeably worse, the VA should allow you to undergo a new evaluation to support an increased rating claim.
Be aware, however, that appealing a rating can result in the VA lowering your rating. A decision to appeal a rating should be carefully evaluated in consultation with your attorney.
Our VA Attorneys Can Answer Your Questions
If you need to request an increase in your VA disability benefits rating or need help appealing a decrease in benefits, contact the attorneys at Cuddigan Law today for a free evaluation of your case. For more information on filing a successful claim or appealing a decision, click on the following link to order our free book, The Essential Guide to VA Disability Claims.
