After completing the process of filing a VA disability claim for an asbestos-related illness, veterans may expect financial compensation and back pay to follow. But in some unfortunate situations, they receive an update that the claim has been denied.
Veterans have the right to appeal their denied claims and secure the benefits they deserve. However, understanding the appeals process and acting accordingly can facilitate a favorable outcome.
Unfortunately, the VA is not always clear about the reasons behind a denial. The lack of information can make it hard for veterans to understand what went wrong with their claim, especially when it involves asbestos-related illnesses. Asbestos claims are often more complicated because diseases stemming from veterans' asbestos exposure can take decades to appear after the initial contamination. Below are the immediate steps to take when your VA benefits are denied.
Review Your Decision Letter (VA Form 21-0958)
The first step after receiving a denial is to read the VA's decision letter carefully, as it explains how to move forward. The VA is required to explain why it denied each condition you claimed. For asbestos-related conditions, look closely under each denied condition for reasons such as "insufficient medical evidence,""no confirmed diagnosis," or "no link to service."
The Notice of Disagreement (NOD) form provided with the letter is your formal way to disagree with the VA's decision and initiate the appeals process. Next, you should consider the most common reasons the VA denies disability claims:
- missed deadline
- lack of a specific and current diagnosis
- not service connected
- didn't pass the C&P exam
- not enough evidence
After you've identified the exact reason why the claim was denied, you can gather the additional evidence and documents to strengthen the case.
File a Decision Review Request (DRR)
The next step is to file the document mentioned above to challenge the VA decision. Filing a DRR within one year of denial keeps your claim's effective date intact and allows you to challenge the decision with new evidence or additional review.
Choose Your Appeal Option (AMA Appeals)
The VA appeals process was streamlined by the Appeals Modernization Act (AMA), enacted in 2019, to give veterans three main options for appealing a denial:
1. Higher-Level Review - When you disagree with a VA decision, you can request this review of an initial claim or Supplemental Claim decision. The statute of limitations for the review is 1 year from the date on your decision letter. However, you can't request a Higher-Level Review in the following instances:
- after a previous Higher-Level Review or Board Appeal on the same claim and
- if you have a contested claim
If you request an informal conference as part of your Higher-Level Review, it may take the VA longer than four to five months to complete. To speed up the process, you may submit a written statement with your application to tell the VA about the errors you've identified. It will facilitate a faster VA decision. Veterans can currently request a Higher-Level Review online only if their claim is for disability compensation. For all other claims, it can be done by:
- filling out the VA Form 20-0996 and sending it by mail
- in person at a VA regional office
- with the help of an attorney, claims agent, or VSO
After filling out a Higher-Level Review, you'll have to wait, unless VA sends you a letter asking for more information. If VA schedules exams for you, you shouldn't miss them. If you receive a decision with which you disagree, you can file for a Board Appeal, which means a Veterans Law Judge will review your case.
2. Supplemental Claim - Veterans also have the option to file this claim if they have additional, new, and relevant evidence to submit for review, or want to request a review of their claim based on a change in law. New medical reports diagnosing asbestosis or other asbestos-related diseases, or an expert opinion that becomes available after the initial decision, can be submitted this way. The Supplemental Claim allows veterans to strengthen their case with additional proof linking their illness to in-service asbestos exposure. However, some requirements must be met:
- claim is decided in the past, and
- claim isn't a contested claim
The latter applies when a veteran and someone else are claiming a benefit that only one person can claim. Additionally, veterans must also meet at least one of the following requirements:
- there's a new and relevant evidence to submit, or
- requesting a claim review based on a change in law (such as the PACT Act)
A Supplemental Claim can be done online only if the veteran's claim is for disability compensation. For all other claims, it can be done by:
- filling out the VA Form 20-0996 and sending it by mail
- in person at a VA regional office
- with the help of an attorney, claims agent, or VSO
After filing a Supplemental Claim, there's nothing else to do, unless the VA sends a letter to ask for more information. If they schedule a medical exam for you, be sure not to miss it. If you disagree with VA's Supplemental Claim decision, you have the following options:
- request a Higher-Level Review of the Supplemental Claim decision
- solicit a Board Appeal if you want a Veterans Law Judge to review your case
- file another Supplemental Claim if you have more new and relevant evidence to submit
3. Board of Veterans Appeals (BVA) - May be an option if veterans submit their request within one year of the decision on their initial claim, Supplemental Claim, or Higher-Level Review. The one-year timeframe starts from the date on the decision letter. BVA may also be an option when appealing to a Veterans Law Judge at the Board of Veterans Appeals in Washington, D.C. In both instances, a judge who's an expert in Veterans' law will review your case. Veterans can request a Board Appeal only after these types of claims or decision reviews:
- initial claim
- Supplemental Claim
- Higher-Level Review
According to the law, former service members can't request two Board Appeals in a row for the same claim. However, they can ask one of the types listed above. When filling out the request from, they need to select the chosen type:
- Direct review - a Veterans Law Judge will review the appeal based on the evidence that's already part of the case. You can't submit new evidence, and you can't have a hearing. The Board will strive to send a decision within one year.
- Evidence submission - a Veterans Law Judge will consider new evidence, along with existing case evidence, when reviewing the most recent decision. You must submit new evidence with your Board Appeal or within 90 days of the date of your request for a Board Appeal. The Board will strive to send a decision within 1.5 years.
- Hearing - in-person meet with a Veterans Law Judge. There's the option to add new evidence, but it's not a must. You can submit new evidence at the hearing or within 90 days after the hearing. The Board will strive to send you a decision within two years.
Speaking with the Veterans Law Judge may take place via:
- virtual tele-hearing on a computer or mobile device
- videoconference hearing at a VA location near you
- in-person hearing at the Board in Washington, D.C.
Veterans have to cover travel costs to an in-person hearing. A Board Appeal can be requested online or by mailing VA Form 10182. Veterans can mail their form and any supporting documents to this address: Board of Veterans Appeals, PO Box 27063, Washington, D.C. 20038. Other form-submitting options:
- in person at a VA regional office
- by fax to 844-678-8979
- with the help of an attorney, claims agent, or VSO
If the Board agrees to review your case, you'll receive a letter stating that your case has been added to the docket, the list of cases for the Board to review. You have to wait for a decision and provide information only if the Board sends you a letter. After you get a decision, if you disagree with the Board's decision, you have two options:
- file a Supplemental Claim if you have new and relevant evidence that supports your case, or
- appeal to the U.S. Court of Appeals for Veterans Claims within 120 days from the date on your decision letter
It's important to note that you would have to file a Court Appeal with the U.S. Court of Appeals, not with VA.
Assisting Veterans in Making the Proper Steps After a VA Denial
A VA denial is emotionally taxing, especially if veterans already fight a battle for their health. Navigating through the necessary steps alone can be challenging even without the burden of a disease.
If you believe you've exhausted all options and done everything needed, you may consider legal representation. An experienced attorney's expertise can make a critical difference in complex cases involving multiple denials or legal errors. We can connect you with legal experts who will develop the right strategy, gather evidence, and support you in building a strong case.