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What Kind of VA Disability Appeal Do I File?

Tucker Law Group
February 17, 2021

A new appeal system was brought into the VA in February of 2019, resulting in new rules and new types of appeals. This means a veteran with a claim today has different options for their VA disability claim appeal than before February of 2019.

There are three options if your claim has been denied after that time: a Direct Appeal to the Board of Veterans’ Appeals, a Higher Level Review (HLR), or a Supplemental Claim. We generally do not advise our clients to pursue a Direct Appeal to the Board of Veterans’ Appeals, as this option mostly applies to veterans with old legacy claims seeking a faster resolution to their overall case. The other two options can usually provide better results for the vast majority of veterans.

The second option, a Higher Level Review (HLR), does not allow you to submit new evidence. Whatever information was in your claim file when the VA decided your claims will be available for a HLR. This is an opportunity for you to point out what the VA did wrong, and any of that evidence they did not consider. You can get the VA to identify favorable findings and things that they should have given you but may not have. You can get them to commit to things in writing that will help you later.

In the third option, a Supplemental Claim, you can provide new evidence the VA must consider while making the same legal technical arguments you would make in a HLR. The evidence must be information the VA did not see before, and it must be relevant to why they denied your claim. If the VA denied your claim because you did not have an opinion from a doctor that shows your condition is service-connected, then you could provide new evidence that applies to that nexus. You are not able to simply send in new medical records while telling them you have a current problem.

To illustrate, we had a past client who was named Carlos. He was a tanker, and he fell off a tank and injured his knee in the course of his service. Instead of going to a doctor immediately, he visited an aid station and later visited a doctor. Unfortunately, the records had vanished, so the VA told him they had no proof that something happened to his knee in the service. No records were kept at the aid station, and his medical records were gone. He only had medical records beginning several years later.

We worked with Carlos to contact some of his friends from the army that saw him fall from the tank. They knew he had gone to the aid station, and one of them knew he had visited the doctor. These witnesses provided new and relevant evidence that was not available when the VA had decided his claim. The right type of appeal can help you tactically in your VA case. Watch the video to learn more.

At Tucker Law Group we handle these cases every day. If your claim has been denied, or if you have any additional questions, call Tucker Law Group at (866) 233-5044, or review our videos and media library for more information. Learn how a VA disability attorney with our firm can help you.

Video Transcript
What kind of VA Disability Appeal do I file? I'm John Tucker, I'm a Veterans Disability Attorney with a nationwide practice. And I represent veterans just like you all over the country. In February of 2019, a new appeal system was brought into the VA. New rules, new types of appeals. So a veteran like you, who has a claim denied today has different options than they did before February of 2019. If your claim is denied or has been denied after that time, you have three options. You can take a direct appeal to the Board of Veterans' Appeals. You can file what's called a Higher Level Review, or HLR, or you can file a Supplemental Claim. And I want to tell you about two of these in particular.

Generally, we're not advising most of our clients to pursue a Direct Appeal to the Board of Veterans' Appeals. That applies primarily to veterans that had old legacy claims, and they can go on the Board and perhaps have a better shot at having a faster resolution to their case overall. But the other two types of appeal, Higher Level Review and Supplemental Claim, for the vast majority of veterans provide more options that can give you better results. First, a Higher Level Review, the most important thing you need to know about Higher Level Review is you don't get to submit new evidence. It's based on what's in your claim file or what was in your claim file at the time VA decided your claims. Higher Level Review lets you point find out what they did wrong, what evidence they didn't consider, it also lets you pursue VA tactically to get them to identify favorable findings and other things they should have given you that they may not have given you. It allows you to get VA to commit to certain things in writing that may help you down the road. Again, no new evidence in a Higher Level Review appeal. Supplemental Claim is different. In a Supplemental Claim, you can send in new evidence, you can make the same legal technical arguments that you would make in a Higher Level Review, but you can also send in new evidence that the VA has to consider. That new evidence has to be new and relevant. New means something the VA didn't have before. You can't just give them more of the same kind of information, it has to be something that would be different. Relevant means it has to apply to why VA denied your claim to begin with. For example, if VA denied your claim saying it's not service connected because you don't have an opinion from a doctor connecting your current problem to what happened to you while in the service, you need evidence that applies to that nexus, that connection.

You can't just send them more medical records saying you have a current problem. So here's an example of how Supplemental Claims can be helpful. We had a gentleman named Carlos Carlos. Carlos was an army veteran. He was a tanker. And when he was in the service, he fell off a tank and busted up his knee. Typical situation. He didn't go to the doctor immediately, but he went to an aid station and later he went to a doctor, but those records have vanished. VA said, "Well, you don't have any proof that something happened to you in the service to your knee." Obviously they didn't keep records at the aid station. And with his medical records gone, he had no way medically to prove something and happened to him at the time. His first medical records came about several years down the road.

We were able to work with Carlos to contact some of his buddies from when he was in the army to get statements from them, that they actually saw him fall off the tank. And that they knew he went to the aid station. One guy even knew he went to the doctor and those gentlemen were able to help us prove that Carlos actually hurt his knee. That was new and relevant evidence. It was evidence that VA didn't have before when they decided his claim, and it was directly relevant to that in-service event that started this whole chain for Carlos. Using the right appeal can help you tactically in your VA case. If you'd like to talk about a claim that was denied or you'd like more information about the right appeal to use, call us at the number on your screen. We represent veterans like you in all 50 States and we can help you. I'm John Tucker. Thanks for watching.