Tips to Avoid Losing Your VA Disability Benefits

Man with back pain

Applying for an increase in your VA disability benefits may seem like an important step to take if your conditions have worsened. However, in some instances, Veterans applying for an increase in benefits may actually walk away with a decreased rating from the VA instead. If you’re looking for VA disability made easy, follow our tips from VA disability lawyers who work every day to help Veterans get the benefits they deserve. 

When is the Right Time to Seek an Increase in VA Disability Benefits?

The process itself in asking for a VA disability ratings increase isn’t difficult. The problem is that you may not end up with the outcome you seek. To file for an increase in your disability rating, simply complete VA form 21-526b. In addition, if you have medical records that need to be released with your application, you can also fill out the 21-4142, which authorizes the doctor to share that information with the VA. 

There are basically three different circumstances to apply for an increase in disability benefits: you may request compensation for a new disability; file for an increase to an existing disability because the condition has gotten worse, or you can disagree with the VA's current disability rating decision.

There are several circumstances that would warrant a ratings increase:

  •       Your condition has worsened, you have an additional condition to report, or you have a secondary disability (a condition caused by an approved disability)  – In this instance, you have new evidence to present, such as medical and service records, VA medical records, Nexus letters from doctors connecting your disability to your service, and VA medical examination results. You would need to submit a claim based on the nature of your increased level of disability.
  •       The VA made an error. If this is the case, you may need to appeal the decision by, for instance, asking for a more senior reviewer to review your claim, submitting additional evidence, or appealing to the Board of Veterans' Appeals.
  •       You have less than 100% disability, but can’t work. If your rating is below 100% and you can prove that you cannot work to support yourself financially, you may qualify for Total Disability Based on Individual Unemployability (TDIU). According to the VA, you must have at least one disability rated at 60% or more disabling, or a combined rating with at least one rating of 40% or more and a combined rating of 70% or more.

Keep in mind that when you apply to increase your disability rating, the VA will order a reevaluation, which will examine all facets of your initial disability claim. In some cases, Veterans may experience a decrease in benefits. How can this happen?

What Happens with a VA Reevaluation of Benefits?

Simply put, when the VA re-evaluates your initial claim in the process of determining if your rating should be increased, they may find evidence they believe supports a decrease in your rating, instead. Of course, this isn’t ideal for the claimant, and may result in the loss of benefits. Before you file for an increase to your rating, be sure that your medical records support your request. Consulting with a VA disability attorney can help make sure that your medical records are in order before you file for an increase. 

If you’re appealing a decision that’s already been made, it’s even more imperative that you work with an attorney group that specializes in VA disability appeals.  

Why Seek Out a VA Disability Attorney for Appeal? 

The VA appeals process for disability claims changed in February, 2019, giving Veterans three review options. Each review option has multiple steps to take, and several forms to complete. If you wish to appeal your claim, you now have these three choices:

  • File a Supplemental Claim.
  • Seek Higher-Level Review.
  • Request a Board Appeal.

Filing a supplemental claim means that you have new evidence relative to your case. This includes relevant information that existed at the time of your original filing but could have been omitted, and new evidence that shows a change in your disability status. A supplemental claim must include new evidence that the VA didn’t have when making your original decision. The VA has set the goal to complete supplemental reviews within 125 days.

If you are seeking a higher-level review, it’s because your supplemental claim was denied. You may file a separate supplemental claim with new evidence as well, if your first supplemental claim is denied. Because of the multiple forms, options, and the language used in appeals cases, it’s important to have an attorney on your side to ensure that the VA receives correct information regarding your appeal. 

With a higher-level review, you cannot submit new evidence. That’s only for a supplemental claim or a board appeal. You have one year from your initial claim to seek a higher-level review. This review requires presentation and negotiation of why your supplemental claim should be approved, and a VA disability lawyer is the experienced voice you will need on your side during this process. Higher-level reviews are also processed within 125 days. 

A board appeal is when you are appealing to a Veterans Law Judge on the federal level. The judge reviewing your case is an expert in Veterans law. Having a VA-accredited attorney on your side is imperative if your case reaches this point in your appeal. In a board appeal, you may request a direct review, submit more evidence, or request a hearing. 

There are steps you can take alone or with the help of the VA. However, there are times a VA disability attorney can help guide you and improve your chances of winning benefits or getting a higher disability rating.

Consulting an attorney means there will be a dedicated advocate fighting for you and guiding you through each stage. This includes helping you present a compelling case during a BVA hearing, or if necessary, fighting for you at the federal level, in the U.S. Court of Appeals for Veterans Claims.

If your VA Disability claim has been denied, or you’re thinking about filing and don’t know where to start, Affleck & Gordon can help. We’ve been helping people in Georgia just like you for decades. Sign up for a free case evaluation here, or call us (404) 990-3945.

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