How to appeal disability ratings - Military Law, Military Law Advice, Ask a Lawyer - Military Times

How to appeal disability ratings

My last article provided some helpful hints on how to get a Veterans Affairs Department rating for injuries that occurred while you were in uniform. But what if VA did not give you the rating you desired?

VA disability ratings go from zero to 100 percent. Most claims are for injuries with a rating of zero percent, 10 percent or 20 percent.

What should you do if you believe VA gave you a low rating? First, go to the VA medical facility where you got your compensation and pension physical. Then, visit the Freedom of Information Office and request a copy of the doctor’s report.

If you review the report and it is inaccurate or does not truly reflect your injuries, request a re-exam in writing from VA explaining why you feel the doctor’s report is incorrect. Alternatively, see a private doctor and have this doctor document your medical conditions, then notify VA of the findings. That hopefully will spur VA to conduct a re-examination.

Assuming the doctor’s report is accurate, visit the schedule for rating disabilities. Compare what the doctor wrote about your injury to the schedule. If the rating board misapplied the schedule, then you need to file a Notice of Disagreement within one year of the decision.

If the medical report is incorrect or if the rating board failed to follow the established schedule, I highly recommend that you contact a Disabled American Veterans service officer to help guide you through the process so that you get everything you are owed.

When you file your Notice of Disagreement with a ratings decision, I recommend that you also request a review by a Decision Review Officer. A DRO is a person who didn’t participate in the decision being reviewed and will conduct his own review. Only a decision that has not yet become final may be reviewed.

A DRO can consider all evidence of record and applicable law and will give no deference to the decision being reviewed. A DRO can only increase, not decrease, your rating (so you are getting two bites at the apple) unless clear and unmistakable error improperly gave you a higher rating.

If you are still not successful with the DRO, you can appeal to the Board of Veterans Appeals. VA will mail you a Statement of the Case describing what facts, laws and regulations were used in deciding it.

VA should also send you a VA Form 9. If you wish to continue your appeal, you must complete and submit that form within 60 days of the mailing of the Statement of the Case, or within one year from the date VA mailed its decision, whichever is later. Send your VA Form 9 to the local VA office handling your case; the office will file this and all related information in a claims folder, and eventually will forward it to the Board of Veterans Appeals for review.

If you are unhappy with a decision from that body, you can appeal to the U.S. Court of Appeals for Veterans Claims. Normally, you must file a Notice of Appeal with the Court within 120 days from the date the board’s decision is mailed to you.

Again, if you are at this point, you should seek assistance from the DAV or an attorney. The next level above the Court of Appeals for Veterans Claims is the U.S. Court of Appeals for the Federal Circuit, then the Supreme Court.

Very few of the hundreds of thousands of claims ever make it to the Court of Appeals for the Federal Circuit, and even fewer reach the Supreme Court. It would not be uncommon to take 10 to 20 years for a claim to work its way up to the high court. Justice may be blind, but it’s certainly slow.