Having your VA disability claim denied can be discouraging, but it’s important to remember that a skilled attorney or claims agent can often win the claim on appeal. One way in which attorneys help veterans is by finding errors in the decision that can be grounds for an appeal.
There are many procedural errors in VA disability decisions that can constitute grounds for an appeal. The three most common are incorrect consideration of the evidence, problems obtaining the necessary evidence, and invalid medical examinations.
Incorrect Consideration of Evidence
The VA has very specific rules regarding what can be considered when you are applying for disability benefits. If the representative considered incorrect factors to decide your claim, this could be grounds for an appeal. For example, the VA is not allowed to consider the effect of non-service-connected disabilities when evaluating your application—but any overlap in your functional limitations must be attributed to your service-connected disability.
It’s important to note that for TDIU benefits, the only factor that can be considered is how your service-connected disability prevents you from maintaining substantially gainful employment. Your work must meet specific criteria in terms of hours, earnings, and job duties to be considered substantially gainful employment. If you’re denied TIDU benefits because you are working, but your position is considered protected employment, this is valid grounds for appeal.
Problems Obtaining the Necessary Evidence
The VA has a legal obligation to tell you what evidence is necessary to get your claim approved. If the evidence is a record the VA can access, they have an obligation to assist you in obtaining the record. If the evidence is something you must obtain on your own, you must be given clear notice of the specific evidence you need to obtain. Failure to fulfill either one of these obligations is grounds for an appeal.
Invalid Medical Examinations
If you are required to have a VA medical examination, the exam must be performed by a doctor who is experienced in treating and evaluating your particular disability. If the doctor is not properly qualified or can’t provide sufficient reasoning for their opinion, you can use this as the basis for your appeal.