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Perfecting Your Appeal When the VA Messes Up

The VA is given a great deal of latitude in setting up the procedures for filing claims for disability benefits and appealing the denial of such claims. There is a process that the VA must follow to promulgate these rules. So long as the VA follows the procedures it creates, its actions are generally upheld. A VA decision on a claim will be reversed, though, if the VA incorrectly interprets its own regulations and procedures.

Timely Substantive Appeals under the Legacy Appeals Process

In Mills II v. Wilke, the U.S. Court of Appeals for Veterans Claims (CAVC) overturned a decision of the Board of Veterans’ Appeals that denied Mills, a veteran, disability benefits in part for failing to follow the proper procedures. This case involved a claim and subsequent appeal filed under what is now considered the legacy appeals process.

valor firm va affairsMills was appealing the denial of a claim for compensation based on a back injury he claimed was service-connected. The claim was denied, and, through a convoluted and somewhat-contradictory series of mailings, the veteran eventually received a letter on January 22, 2010, informing the veteran that to continue his appeal, he needed to file a VA Form 9 within 60 days of January 5, 2010. 

In response, the veteran sent a VA Form 21-4138, Statement in Support of Claim, along with a note from a treating physician. A Statement of the Case was sent to the veteran on February 8, 2010. More mailing ensued, and on April 30, 2010, the VA finally received a VA Form 9 from the veteran. 

The VA denied the veteran’s appeal, claiming that the veteran’s VA Form 9 was received after April 8, 2010, which would have been 60 days from the date the veteran finally received a Statement of the Case.

The VA Incorrectly Interpreted and Applied Its Own Procedures

As this case worked its way through the various appeals, the VA claimed that the veteran’s submission of the VA Form 9 corresponding substantive appeal was untimely. The CAVC disagreed, though, finding that the VA’s regulations were clear: the VA Form 21-4138 and accompanying report from the veteran’s doctor met the requirements of a substantive appeal. 

Similarly, a claim by the VA that it could not have considered the veteran’s VA Form 21-4138 as a substantive appeal because the veteran had not yet received a Statement of the Case, had no support in the regulations.

The Lesson to be Learned: Always Talk About Your Rights with an Experienced Lawyer

This case serves as a reminder to never take a denial of your VA disability claim as the final word. The VA can and does make errors, including errors in interpreting and applying its own regulations. When it does, attorneys like the knowledgeable ones at Valor Firm are ready to step in and help you.

Call Valor Firm today at (504) 218-2510 if you have recently had your claim for disability benefits denied by the VA. The sooner you speak to us about your situation, the sooner we can take steps to preserve your appeal rights and fight for your claim’s approval. Contact us by phone or online today and schedule a consultation with us.

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Werner, Hoffman, Greig & Garcia is committed to helping you rebuild your life after a hardship. We are not just your legal team—we are your allies, your partners, and your advocates. We will do everything we can to handle your case with compassion and care, and to get you the results you need!

“And for every fight we take on, know this…we are doing everything we can to make sure we win!”

— Werner, Hoffman, Greig & Garcia

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About the Author

Adam Werner is a partner and practicing attorney at WHG. He specializes in personal injury cases, workers’ compensation claims, and veteran disability benefits. He routinely writes about personal injury and workers comp topics for the Werner, Hoffman, Greig & Garcia blog

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