Top 10 claim mistakes not to fall for. Dont take bad advice!

[broncovet]

We are often given bad advice on our VA disability claims, by VA employees, VSO's, or even well meaning hadit members.  However, if a hadit member posts bad advice, mostly others challenge it, and even correct it.  This rarely happens with VA employees or VSO's advice.  

Here are my top 10 bad advice statements: (Dont make these mistakes)

1.  If you apply for an increase, you will be decreased instead.  Its actually difficult for VA to reduce you, especially if you refuse to roll over and allow them to do it. 

Source: 38 CFR 3.344

2.  "Wait" until issue "A" is completed until you apply for "issue B".  This costs Veterans retro.  Your effective date cant be earlier than the date you applied.  (Exception:  If you apply for benefits within a year of discharge, you can get an effective date back to your date of discharge)

3.  Ignore letters VA sends you.  They often contain deadlines for additional evidence, or other deadlines.  Keep VA up to date on your address, you may not get letters you need to have!  

4.  Solely relying upon information a VA employee or VSO tells you, especially if it smells fishy.  If you smell fish, chances are good there is a dead fish nearby.  Give the advice the "smell test".  

5.  Solely relying upon information "you were told".  I cringe whenever I hear "I was told...."  Usually, this precedes bad information.  Check this information on hadit, review the CFR's to see if its consistent, or check the VBM (Veterans Benefit Manual) instead.  Remember, neither VA employees (nor  VSOs)  nor politicians keep promises 100 percent of the time.  VA will not hold accountable an employee who gives you bad advice.  

6.  Not reading your decision.  Bad idea.  How do you know whether or not to appeal it?  

7.  Not reading or knowing whats in your cfile, and guessing instead.  What did your doctor say?  Did he WRITE DOWN what he said in his office?  Find out and read it.  Its your claim. 

8.  "NOT" enlisting the services of a professional (lawyer or claims agent) when necessary.  For example if the retro potential is large, or your claim is complex.  Your bias against attorneys can often cost you money.   Hiring an attorney "does not" always cost you money.  In fact, it should never cost you money...you should get more, much more, with an attorney than without him.  While there are many circumstances when an attorney is not necessary, such as your initial claim, when you dispute the decision you got, its a great time to consider your options as far as a representative goes.  Not all Veterans have the resources or skills to do their own claim.  Did you know that some law firms will "up front" the costs of an IMO in order to win your claim (especially when the Vet can not afford an IMO).  Incredibly, there are many "Pro Bono" law firms (such as NVLSP) which do not charge Veterans for their services.  Also, EAJA (Equal access to Justice Act) pays many/most Vets attorney fees at the CAVC level). 

9.  Poor reasearch/no research.  Chances are great other Vets have had a similar issue before, and its already been decided by the BVA or CAVC.  You can check to see what happened to them so that you either dont make the same mistake as they did, or you can do it the way they did and succeed.  

10.   Giving up too soon.  If you truly feel that you deserve the benefit sought, there is a great time to give up:  NEVER!  Persistence often pays off when giving up does not.   

Edited July 8, 2021 by broncovet

[KC3]

Great Post Broncovet! I am guilty of a few of those during my endeavors. Thank you!

[pacmanx1]

Great post as always. Another mistake veterans make is the emotional response that can go both ways. The happy, excited, overwhelmed response is when the Veteran finally gets a granted decision form the VA that they (the veteran) don’t pay attention to the rating percentage and or the effective date.  The veteran is so relieved that they just won their decision they are happy and content until they finally decide to file for an increase or notice that something is off in their decision and the one-year appeal time has past and they have to either file a CUE claim or try to file a reopen claim.  

The other emotional mistake veterans make when they get a denial letter from the VA. The veteran is so pissed off that they quickly read through the denial letter and failed to fully understand their decision and they can’t believe how the VA denied their claim and they (the veteran) put their decision in a desk draw or in the trash or somewhere, where they forget and then later try to figure out how they can appeal a decision that the VA made over a year ago.  Now the have to reopen the same claim with new, material or pertinent evidence.

[McRay]

1 hour ago, broncovet said:

2.  "Wait" until issue "A" is completed until you apply for "issue B".  This costs Veterans retro.  Your effective date cant be earlier than the date you applied.  (Exception:  If you apply for benefits within a year of discharge, you can get an effective date back to your date of discharge)

This one is applicable for me. I have other claims I would like to file (OSA, sinusitis, rhinitis, etc.) but my atty tells me to hold off until current appeal is decided. Current appeal is for higher MH rating and EED to '78. He was able to get SMR's that weren't considered in original denial. The EED is warranted under 38 CFR 3.156 (c) so I imagine VA will do anything to not have to pay retro. I searched the BVA website and found only 1 instance of a case with 38 CFR 3.156 (c) in the past 3 years.

I've read that it doesn't make any difference filing under the new AMA system, that the different lanes don't overlap but I guess I'll just hold off on filing the other claims. Seems a shame to pay top dollar legal fees and then not take my atty's professional advice.

Edited July 8, 2021 by McRay

[pacmanx1]

I was in a similar situation where my VSO told me not to file an appeal and not to file new claims. I fired him and filed an appeal and filed new claims. I won my 100% P & T a little over a decade ago, but my appeal had to go to the CAVC where they finally remanded it and the BVA finally granted it. My BVA grant went back well over two decades, long before the VARO implemented my 100% P & T. So, that meant that while I have been being paid at the 100% level, the VA, BVA and the CAVC had been deciding my appeal and I finally won with a retro that went back to one of my original claims. I don’t think I could have survived without being paid at the 100% level. But we all do what we have to do to survive.  

Years ago, the veteran’s C-file could only be in once place at a time, either the BVA waiting for an appeal to be considered or at the VARO waiting for a claim to be considered. Now this is not the case, and the VA can do more then one thing at a time, but they won’t tell veterans that most of our claims are E-Files instead of C-Files. Have you noticed that most decisions no longer have Regional Office information anymore? It just says from The Department Of Veterans Affairs.  

[broncovet]

McRay:

With rare exceptions, I dont recommend going against your attorney's advice.  You see, he has read your file, and I have not.  

In your specific case, I would follow your attorney's advice.  If you have an appeal at CAVC, along with multiple other appeals and claims, it could "weaken" your case at the CAVC.  

"The court" does not want to adjudicate claims in the first instance.   And, if you have something called "inextricably intertwined claims", then "pulling the (fishing line) on a tangled mess" can serve to "tighten up the mess" and make it still harder to untangle.  

There are only rare circumstances when I would advise AGAINST your attorney's advice, and this is not one of those.  

Example:  You are 50 percent for PTSD and the CAVC is "on that".  You are considering applying for TDIU, and your attorney may make a judgement call that you should wait, because he feels you should get 100 percent PTSD, which could be better for you than tdiu, especially if he thinks this would mean you get SMC S, too.  You see, its possible, or even likely, you could wind up with additional benefits by following his advice.  A "win" on tdiu, for example, could mean you are ineligible for SMC S, while a win on 100 percent PTSD may automatically make you eligible for SMC S.   In this example, if you also had 50 percent for back issues, and 20 percent for hearing loss,  then TDIU, where VA often says its based on "all" your disabilities, not just PTSD, would likely mean you fall short of SMC S.  But, an increase to 100 percent PTSD would mean you automatically qualify for statuatory SMC S.  

  Its always best to "run it by your attorney" before sending papers to VA, because "you often dont know what papers he filed."  You can ask your attorney if this is a good time to file for TDIU, if he says "wait", then at least listen to his reason(s).  They may well be valid. 

An appeal at the CAVC changes things.  

 

Edited July 8, 2021 by broncovet

[McRay]

Broncovet:

Thanks for the thoughtful response! Only thing I want to add is that I'm not at the CAVC -- just waiting for appeal to go before a BVA judge.