Common VA Errors That Can Be Corrected By an Appeal To Court

Posted by Gregory M. Rada | October 16, 2021 | Disability Compensation,State Veteran Benefits

The VA, unfortunately, often makes errors when adjudicating disability claims. The mistakes in judgment may lead to a low rating or a total denial of disability compensation. If you’ve received a low rating or have been denied disability compensation benefits by the Board of Veterans’ Appeals, you should check to see if the VA made any of these below errors. If so, you may be able to appeal the Board’s decision to the U.S. Court of Appeals for Veterans Claims.

Inadequate Compensation and Pension (C&P) Examinations

The Board commits error when it relies on inadequate VA examinations. Here are some common reasons that C&P examinations might be inadequate:

• Overlooking crucial factors: VA examiners may fail to consider important factors, such as functional loss and flare-ups. These type of errors leads to the failure to capture the complete picture of veterans’ limitations in their daily lives.
• Unqualified VA examiners: You can challenge the qualifications of the VA-selected expert if the examiner is not a licensed medical professional or if they have not completed all VA training required to perform C&P examinations.
• Ignoring favorable evidence: Examiners may only list medical research or treatment records and ignore other important information, such as a veteran’s lay statements.

Wrong Effective Dates

The VA grants effective dates based on when entitlement arose or the date of the claim submission, whichever is later. But cases of wrong effective dates often occur because the VA assigns an effective date based on the date of a C&P examination. VA will say that is the date entitlement was first shown, however, it is long-established that effective dates should not be assigned mechanically based on the date of a diagnosis. Instead, VA is supposed to review all the facts to determine the date a disability first manifested or increased in severity. 

Effective date issues also commonly arise when VA grants entitlement to a total disability based on individual unemployability (TDIU) because it is not also clear when the claim first arose. This is because a claim for individual unemployability can arise without a veteran doing anything, such as when the evidence indicates that a veteran is unable to work due to a service-connected disability. In those situations, you have to argue to VA that your claim for TDIU was reasonably raised by the record and that the effective date should go back to when the claim was reasonably raised. 

Mistakes in the determination of TDIU

The VA may make mistakes when adjudicating claims for a total disability rating based on individual unemployability (TDIU), which allows veterans to receive payment at the 100% payment rate when they can no longer follow gainful employment because of their service-connected conditions. Errors may occur when:

• The VA wrongfully considers your age rather than your service-connected conditions.
• Inaccurate analysis of a veteran’s non-service-connected conditions.
• The VA denies TDIU on the basis that the veteran is still gainfully employed.
• The VA fails to consider whether a veteran’s employment (self-employment, family business) is actually only marginal employment because it is a protected/sheltered work environment.

FAQ

What if you have no treatment records?

Submit written lay statements explaining your conditions to fill the gap.

Why should VA consider functional loss and flare-ups for orthopedic claims?

Functional loss and flare-ups affect a veteran’s life and should be considered when rating orthopedic conditions.

When does the record reasonably raise a claim for individual unemployability? 

If the evidence indicates your service-connected disability impacts your ability to work, then the VA is required to automatically consider and adjudicate entitlement to TDIU.