Did The Department of Veterans Affairs Deny Your Disability Claim? You Have 1 year to reply with a Notice of Disagreement (NOD)
Disclaimer: The content of this web site is NOT offered as legal advice and does not serve to assist any claimant with their personal claim(s). But, this web site does provide you with the opinions of the Author, based on his actual personal experience(s) with VA Disability Claims and the collection of other relevant information. You should not rely on any information contained within the contents of this web site, without first obtaining independent verification from a trusted and qualified professional source of your choosing.
While there are so many systemic problems within the VA, which if stacked high,
might even rival the size and scope of the entire backlog of VA Claims, the
primary focus of this web site, is to warn other Veterans to be very careful
before choosing to request, elect or otherwise authorize a VA Regional Office (RO) to Reconsider their
initial decision to deny your claim, as opposed to proceeding directly with a formal
Appeal before the Board of Veterans Appeals (BVA.)
Let me give you one example, based on my own personal experience with the VA. I have currently maintained a 40% VA Service-Connected
Disability Rating since the end of the Viet-Nam era. During May of 2008, I
filed a VA claim seeking an increase of that rating based on solid facts. My
claim was ultimately denied as are most claims in what many Veterans rightfully
describe as a rubber stamp style denials on a wholesale basis by the VA and I then filed my Notice of Disagreement (NOD) over 2 years
Unfortunately, I was enticed and duped into electing a Decision
Reconsideration Review of my claim at the RO level instead of simply proceeding
with my formal Appeal before the Board of Veterans Appeals. While the
overwhelming advice you may find from varied sources, tends to suggest any
Veteran should choose Claim “Reconsideration” first, over a formal Appeal, since
there is nothing to lose, let me assure you, if time is of any value to you, you
have much more to lose than you probably ever imagined.
Here it is now, during the Summer of 2013 while my claim has been accumulating dust in VA
storage, having already aged by more than 5 years since I filed that claim
during May of 2008 and I just found out last week through an exceptionally reliable source, the pending review and reconsideration of my claim is still
sitting behind 2300+ other claims with NOD dates preceding mine! It is anyone's guess however, how many more years the VA Regional Office in St. Petersburg, Florida will continue to delay their reconsideration of their initial decision to deny my claim and furthermore, by some unverified accounts, VA Reconsideration of denied claims, may only overturn as few as 2 percent of denied claims
It is inconceivable that Congress has not already stepped in to prevent the VA from continuing to use their claim "Reconsideration" tactics to delay claim resolutions at the appeal level, because the entire process is a massive waste of money and resources which only compounds the overwhelming backlog of unresolved claims.
Think about this. The VA whines to Congress about the time it takes to fully develop a claim, including the need to obtain medical records, etc., before a decision can be rendered (thus, this is where the backlog is perceived to begin.) But no matter what statistical goals or results the VA touts about their handling times for those initial claim decisions (you'll hear goals of 180 days or 125 days, etc.) the VA denies the vast majority of those claims. Now this is where it gets really absurd, because while the VA hopes to gain approval from Congress for a job well done, all the VA is actually accomplishing (using the most appropriate analogy) is to sweep their dirt under a rug and just hope Congress doesn't notice anytime soon.
You see, once a Veteran files a Notice of Disagreement along with their anticipated consent for a "reconsideration" of the VA decision, the VA simply moves those claims into long-term storage and this where the most repulsive backlog of unresolved VA claims actually occurs! Now the VA will tell you that the "Reconsideration" process involves a top-notch review of the claim, but that is exactly what every Veteran deserved in the first place! All you'll hear from the VA is excuses and more excuses, but there is just no acceptable excuse to explain why the VA takes "YEARS" to simply and fairly reconsider a claim decision that was supposedly already completely developed, before the VA ever made their initial decision. The entire "reconsideration" process is really a massive waste of money and resources which Congress should not tolerate any longer, because it's all just a shell game of now you see it and now you don't, as the VA moves claims from one backlog to the next.
While the BVA may not seem so encouraging either with their record of only
overturning 25-30 percent or so of claims during formal appeals, those odds are
still far more attractive than what has been produced through the so-called
reconsideration process at the RO level and there is no reason to believe any
chance of prevailing with an RO Reconsideration of a claim, would not also have
the same favorable result at the BVA.
Unfortunately, the overwhelming majority
of claimants who confront years of waiting for an RO Reconsideration of their claim,
will ultimately just find themselves before the BVA with a formal Appeal anyway,
but most likely, long after their claim might have already been settled, if they
had of chosen to proceed directly to the BVA with their Appeal in the first
Everybody wonders just what is the problem with the Regional VA
Offices. Well, among many other unaccountable faults, it seems the RO’s are
under so much pressure to achieve results, the Reconsideration Process has
become their best ploy to manipulate those perceived results. It’s like a shell
game as I mentioned above, where claims are denied in mass while achieving bragging rights for claim
handling times and then those denied claims are just shifted into storage where
the VA can then say to Congress and the public, ‘Oh, those claims? Those are
claims under appeal which have already been handled’ when in fact, the only
serious consideration those claims may ever get by the RO, is just before a
formal Appeal is imminent.
While the BVA is already experiencing their own
multi-year backlog of Appeals, you can rest assured the next waves from the
recent backlog of nearly a million pending claims, will soon overwhelm the Board
of Veterans Appeals too, as pressure mounts on the RO’s to release their grip on
all of the claims they now have stalled in storage. In the mean time, too many
Veterans are giving up when faced with the overwhelming and inexcusable VA claim
delays and too many other Veterans actually die before their claims are ever
resolved, but at least the VA earns another ‘at-a-boy” for every claim they can
close, no matter the means.
Sadly, Congress is continuing to provide the VA
with even more funds and resources which is just feeding the parasitic nature of
growth within the VA and thus the VA earns it’s rewards from Congress by simply
remaining unproductive. I strongly recommend if you do nothing else, to at
least take the time to write a letter to your own Congressional Representative
and urge outsourcing of the work the VA has proven incapable of handling. Only
then will the VA get their wake-up call to do their job, or watch the work and
jobs go elsewhere!
I will be adding more content from time to time ... but here is one more
topic I would like to share with you regarding the fee structure for legal
Think about it. As your claim file may sit in VA storage with little or no
activity for years on end after you submit your notice of disagreement, your
legal fees (if any) will usually continue to accumulate based on any retroactive
pay you may ultimately be awarded. My concern is that some lawyers may (with a
wink of an eye) have little incentive to help speed up the claims process and
unfortunately, may actually earn most of their fees through long delays and with
enough VA Claim cases revolving through the doors of a law office, the cash flow
can be very rewarding, even though a 20% fee arrangement for each claim, can
seem modestly reasonable.
Personally, I might even agree to 33 percent or
even a 50 percent fee arrangement if a lawyer could help me favorably resolve my
claim tomorrow, but I am very uncomfortable with the present legal fee concept
of rewarding a lawyer more for each day, month and years of delay, where there
is no activity at all, but the dust collecting on my claim folder in a VA
warehouse. Instead of a financial incentive being offered to a lawyer for just
accepting the incredulous VA delays, Veterans would be far better served with an
incentive to reward lawyers for avoiding unnecessary delays.
could be accomplished with a mandatory cap on legal fees, similar to the method
the Social Security Administration now mandates for legal representation
involving their disability claims. Since the primary goal is still to entice
good Lawyers to help Veterans, I don’t believe the current $6K fee cap as
mandated by the Social Security Administration is by any means a generous
enough incentive for VA claims, especially considering the size of the existing
backlog with so many Veterans being left out on a limb in near
abandonment by the VA.
However, a much more generous legal fee Cap of $25K or some
other number, would at least reverse the incentives and disincentives for any
lawyer, as their tolerance for unnecessary VA delays would likewise become
capped too, when the VA is holding their maximum legal fees hostage too, with inexcusable
delays, by preventing them from potentially collecting the maximum fees they can
ever earn with no additional fees ever accumulating through continued delays.
In this scenario, the legal community could very well become one of best allies
Veterans could hope for, not just for the sake of individual claim
representation, but for their innovative and professional contributions towards
breaking the shameful backlog of VA Claims.
The bottom line really is ... Until Congress becomes strong handed with the VA, there just won't be any "Real" improvement with the VA claims fiasco and you'll just continue to hear more about meaningless statistical improvements, as the VA can be counted on for one thing only and that is to shuffle unresolved claims from one pile to the next, depending on what particular pile of records Congress may be focused on at any particular moment.