NOD vs Reconsideration / Reopen

What route should you take with your denied VA disability claim: NOD vs reconsideration / reopen? Make sure that you know the facts before you make a decision.

First, I want to say upfront that I advise filing an NOD 99% of the time. Let’s start out by talking about the advantages of an appeal instead of a reconsideration or reopen. When you file an NOD, you also want to elect to have a “de novo” review performed by a Decision Review Officer (DRO). A DRO is an experienced supervisor who will take a fresh look at the claim and set aside the previous decision that was made. The DRO has the ability to approve the claim based on the evidence that was already submitted if he/she found that a mistake was made in the previous decision, and new evidence can also be submitted with the NOD for the DRO to consider. If the decision is favorable and the claim is approved, the effective date will be the original date of claim and the veteran will be paid retroactively to that date.

Now, let’s talk about the advantages of requesting a reconsideration / reopen of a previously denied claim instead of filing an NOD. There is only one advantage, and it is at best just a slightly better possible outcome: timing. We all know how long it takes the VA to do anything and chances are that you had to wait a very long time to even get the first bad decision on your claim. When you talk to an ill-informed VA representative or Veteran Service Officer about filing an NOD, they will try their hardest to have you file a reconsideration / reopen the claim at a later date. They will say that it will take several years for your appeal to go through and that a reconsideration / reopen is much quicker, but that may not necessarily be accurate. About 80-85% of the NODs that I submit get approved by the DRO at the Regional Office level within about a year, which is the same timeframe as a reconsideration.

This leads us to the disadvantages of an NOD. If the DRO continues the denial after conducting a de novo review, then the claim goes to the Board of Veterans Appeals (BVA) in Washington DC, and it may in fact take several years for the decision. One other factor to consider when filing an NOD is that you only have one year from the date of the decision to file a Notice of Disagreement. So as long as you are within a year from a denial, you should go ahead with the NOD. Otherwise, your only other option would be to reopen the claim if the denial is more than a year old.

When we look at the disadvantages of filing a reconsideration / reopen, the facts tell the real story. Probably the most important issue is evidence. If you have a claim that was denied, then you must submit new and material evidence in order for the claim to be reconsidered or reopened. What if the you submitted all of the necessary evidence with the original claim and it was still denied? If you file an NOD, the DRO may find that a mistake was made and the evidence that was submitted was overlooked or improperly evaluated, and the claim could be approved. With a reconsideration or reopen, you don’t have this option and unless you have something new and material to offer, you will not be successful and the claim will remain denied.

Most importantly, you stand to lose out on a significant amount of back pay when you file a reconsideration or reopen. If the claim is approved, the effective date will be the date that you submitted the new and material evidence. With an NOD, the effective date is the original date of claim. In some cases, this may be several years worth of retroactive pay.

An ill-informed VA representative or Veteran Service Officer (VSO) may try to discourage you from filing NOD, and they will try their hardest to have you file a reconsideration or reopen of the claim instead. They do not always have your best interests in mind.

I am working with a Veteran who was talked into withdrawing his NOD by a VSO and filing a reconsideration. As a result, it cost him over $46,000 in back pay!

Losing money with a reconsideration

Remember, don’t let anyone persuade you to do something that isn’t in your own best interests.

 

VA Aid & Attendance

The VA Aid & Attendance Benefit is a non-service connected pension available to wartime veterans and their surviving spouses to help with long-term care expenses including assisted living and in-home care.

Eligibility for VA Aid & Attendance:

1. Military:

Veteran had 90 days active of service with one day during a qualified war period:

a. World War II: December 7, 1941, through December 31, 1946, inclusive. If the veteran was in service on December 31, 1946, continuous service before July 26, 1947, is considered World War II service.
b. Korean Conflict: June 27, 1950, through January 31, 1955, inclusive.
c. Vietnam Era: February 28, 1961, and ending on August 5, 1964, in the case of a veteran who served in the Republic of Vietnam (“in country”). Otherwise, all inclusive from August 6, 1964 through May 7, 1975.

2. Medical:

Claimant (applicant) must be in need of aid and attendance (assistance) from another person with (2) Activities of Daily Living (ADLs) from the following: bathing or showering, dressing, eating, getting in and out of bed or a chair, and using the toilet.

3. Financial:

Each candidate is evaluated on a case-by case basis for qualification.

a. Income: the person must be spending a majority of their income to qualify for the benefit. Medical expenses may be deducted against income to qualify. Income includes: social security, any pensions, long-term care insurance benefits, annuity payments, and interest & dividends. A candidate must be spending all of their income on care expenses in order to receive the maximum benefit amount.

b. Assets: there is no specific limit for qualifying. Factors such as age, marital status, health condition, and income are used to determine the net worth limit.

4. Benefit Rates:

The VA Aid & Attendance benefit is paid on a tax-free monthly basis directly to the veteran or spouse. These rates may increase annually.

Married Veteran: $2,169
Single Veteran: $1,830
Unremarried Surviving Spouse: $1,176

VA Aid & Attendance Recipients

 

 

 

 

 

5. Required Supporting Documentation:

a. Original/certified copy of vet’s military discharge (DD214): www.archives.gov
b. Asset Verification: most recent bank & investment account statement(s)
c. Income Verification: Social Security, pension, disability income statement(s)
d. For Married Veterans and Surviving Spouses: copy of marriage certificate, documentation of previous marriages
e. For Surviving Spouses only: copy of veteran’s death certificate

For the Department of Veterans Affairs guide to pension and representation for VA Aid & Attendance claims click here.

Agent Orange Disability Claims

Agent Orange Claims: Were You Denied?

Veterans who served in Vietnam and “in country” even if only for a day, were exposed to Agent Orange. Brown Water Navy Veterans and Blue Water Navy Veterans who came ashore were also exposed to Agent Orange, as well as many others who served during the Vietnam Era.

Helicopter spraying agent orange

Presumption of Exposure to Agent Orange

If you served “boots on the ground” in Vietnam and you now have an Agent Orange presumptive disease, then you must be awarded service connected disability compensation. Period.

Know your rights when it comes to Agent Orange disability claims.

Veterans’ Diseases Associated with Agent Orange

VA assumes that certain diseases can be related to a Veteran’s qualifying military service. These are called “presumptive diseases.”

VA has recognized certain cancers and other health problems as presumptive diseases associated with exposure to Agent Orange or other herbicides during military service. Veterans and their survivors may be eligible for disability compensation or survivors’ benefits for these diseases:

  • AL Amyloidosis
    A rare disease caused when an abnormal protein, amyloid, enters tissues or organs
  • Chronic B-cell Leukemias
    A type of cancer which affects white blood cells
  • Chloracne (or similar acneform disease)
    A skin condition that occurs soon after exposure to chemicals and looks like common forms of acne seen in teenagers. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides.
  • Diabetes Mellitus Type 2
    A disease characterized by high blood sugar levels resulting from the body’s inability to respond properly to the hormone insulin
  • Hodgkin’s Disease
    A malignant lymphoma (cancer) characterized by progressive enlargement of the lymph nodes, liver, and spleen, and by progressive anemia
  • Ischemic Heart Disease
    A disease characterized by a reduced supply of blood to the heart, that leads to chest pain
  • Multiple Myeloma
    A cancer of plasma cells, a type of white blood cell in bone marrow
  • Non-Hodgkin’s Lymphoma
    A group of cancers that affect the lymph glands and other lymphatic tissue
  • Parkinson’s Disease
    A progressive disorder of the nervous system that affects muscle movement
  • Peripheral Neuropathy, Acute and Subacute
    A nervous system condition that causes numbness, tingling, and motor weakness. Currently, it must be at least 10 percent disabling within one year of herbicide exposure and resolve within two years. VA proposed on Aug. 10, 2012, to replace “acute and subacute” with “early-onset” and eliminate the requirement that symptoms resolve within two years.
  • Porphyria Cutanea Tarda
    A disorder characterized by liver dysfunction and by thinning and blistering of the skin in sun-exposed areas. Under VA’s rating regulations, it must be at least 10 percent disabling within one year of exposure to herbicides.
  • Prostate Cancer
    Cancer of the prostate; one of the most common cancers among men
  • Respiratory Cancers (includes lung cancer)
    Cancers of the lung, larynx, trachea, and bronchus
  • Soft Tissue Sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma)
    A group of different types of cancers in body tissues such as muscle, fat, blood and lymph vessels, and connective tissues

Children with Birth Defects: VA presumes certain birth defects in children of Vietnam and Korea Veterans associated with Veterans’ qualifying military service.

Veterans with ALS: VA presumes amyotrophic lateral sclerosis (ALS) diagnosed in all Veterans who had 90 days or more continuous active military service is related to their service, although ALS is not related to Agent Orange exposure.

Source: U.S. Department of Veteran Affairs

38% Error Rate at VA

The VA acknowledges it makes mistakes on 14 percent of disability claims – an error rate the agency considers unacceptable and has pledged to all but eliminate by 2015.

A CIR analysis of 18 audits published this year by the VA’s inspector general shows the problem could be much worse, especially in high-profile cases. The analysis found a 38 percent average error rate for claims involving disabilities like traumatic brain injury and illnesses linked to the Vietnam-era defoliant Agent Orange…more

Exposure to Agent Orange by Location

Part of the United States’ strategy in Vietnam was to conduct an herbicide program to remove foliage providing cover for the enemy. Agent Orange was the most widely used of the herbicide combinations sprayed.

Agent Orange and other herbicides used in Vietnam were tested or stored elsewhere, including some military bases in the United States…more

Institute of Medicine Reports on Agent Orange

VA contracts with the IOM of the National Academy of Sciences, a nongovernmental organization, to scientifically review evidence on the long-term health effects of Agent Orange and other herbicides on Vietnam Veterans. IOM determines whether the evidence points to a statistically valid association that would suggest or establish a relationship between diseases studied and herbicide use…more