Military Advantage

Proven Tips #4: Beat VA Denials and Lowball Ratings

Here’s a recap of where we’re at with this process. I’ve written about the disability claim process up through the VA appointment with an evaluator and supplying evidence to the VA about your claim. Now, we will go through what to do when you get your adjudicated claim back with an approval or denial. You will generally have one of three outcomes: 1) full grant of your claim; 2) a partial grant: for example, they gave you TBI but at 10 percent instead of 40 percent; 3) full denial – do not pass go, do not collect $200. With the paperwork the VA sends you, you may never know what your true rating should be.

Be in the know. Request a copy of your file from the VA first. This is the only way to know everything the VA examiners found and how the VA then adjudicated your claim based on that information. Click here for a copy of the Freedom of Information Act (FOIA) letter you can send for a copy of your file.

In my own case, I had filed a claim for Traumatic Brain Injury (TBI). I had a head injury while in service and received a Psychoeducational Evaluation in college. The evaluator believed my head injury caused some degree of memory loss. When the VA performed their own evaluation, the Neurologist gave me a hard time because I like to drink beer, wine and whiskey in typical Portland-style quantities. A psych evaluator reaffirmed the memory loss during another test. An MRI found brain scarring. Good to go, right?

Wrong. I received a letter back from the VA confirming my condition, kind of. The TBI was rated at 10 percent because the memory loss was related to the fact that I enjoy my drink, according to the neurologist, with no mention of the brain scarring. Note: the neurologist did not have a copy of my C-File for the exam, so his opinion could carry less weight during an appeal than a rebuttal opinion that did review my file. The brain scarring was claimed to be likely from Multiple Sclerosis and not a head injury. I do not have MS. “What the F?!” I thought. That’s the difference between a 10 percent and 40 percent rating, or $523 per month (Vet + Child). So, that little bob and weave allowed the VA to keep $6,200 of my money every year, if I gave up.

Beat the machine. I requested a copy of my file to read through the full analysis. Coincidentally, I also had an appointment with the Speech Pathology person at the VA. He reviewed my MRI and the evaluation from the neurologist. “That’s BS…” he told me. There is no way drinking can cause the memory loss that I have unless I was drunk and still drinking at the evaluation. I wasn’t. In addition, the MRI brain scarring claimed as Multiple Sclerosis was completely off base. One little VA trick was that the radiologist probably did not have a copy of my claim (C-file) but was just given the MRI and some notes to review.

I then received new evaluations from the VA on the Health care side that rebutted the claims from the Benefits side. I did not drink for one month before the evaluation of another psychologist, to rule out the "booze effect." The MRI was reviewed and rebutted by another radiologist. The radiologist stated Multiple Sclerosis was not the cause of the scarring, leaving only the head injury. Both evaluators reviewed my C-File during the process. My note to readers: the Health side of the VA can be very helpful in fighting against the dark side of the VA, especially when they have your C-File handy to review the mistakes of the Benefits side. It’s very “Star Wars.”

Abracadabra. Once all the information was assembled, I walked over to my friendly Veterans Service Officer (VSO) at the VFW and filed a Notice of Disagreement. I personally elected for DRO review. The VSO told me it was the best appeal he had ever seen from a veteran. The claim went from 10 to 40 percent. And out of the top hat popped $6,200 per year plus a lump sum for retroactive pay. I didn’t give up and I didn’t die in the process. Hooray for me, and hooray for my daughter.

To look at how I document my claims, check out my Sinusitis claim. You’ve now walked through the process of filing for your disability claim and appeal with me, soup to nuts. Click here to read the whole process and good luck!

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Voc Rehab Survival GuideBenjamin Krause is an award winning investigative journalist, attorney, and disabled veteran of the US Air Force, where he served in its Special Operations Command. He wrote his guide, the Voc Rehab Survival Guide for Veterans, after winning his long fight for benefits against VA to help other veterans do the same. Benjamin is a graduate of Northwestern University and the University of Minnesota Law School using VA Vocational Rehabilitation. Show Full Article

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