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VA Claim to reopenHere’s the scenario – you file a claim with the VA for service connected disability compensation (or survivor) benefits.   You think you have done everything right to file the claim the right way the first time, and are excited that you may just escape the VA Hamster Wheel.

Lo and behold, the VA denies your claim anyway.  The reason they give is nonsense .. or maybe they relied on someone else’s records … maybe they got a key fact wrong. Or any other thousands of nonsense excuses that the VA provides for rejecting a claim for service connected benefits.

You start asking around – maybe online in a Veterans forum or maybe in a Veterans Facebook group.

Some folks tell you to appeal the denial.

Some folks tell you to seek reconsideration (please, don’t fall for this trap…it’s bulls**t….read here to learn why)

Other folks tell you that appeals take too long, just reopen the claim.

What do you do? Reopen a VA Claim or File a Notice of Disagreement?

Well, in a perfect world, you don’t have to deal with this conundrum.

In a perfect world, you’ve taken the Veterans Law Blog training course “How to File a VA Claim”. You’ve used the Video training course to get a copy of your C-File, and followed the steps in that course to organize your C-File in a way that you can actually USE it to advance your claim or appeal.

You’ve even signed up for the Veterans Law Blog training course on How to Prove the 4 Pillars of a VA Claim.

You’ve read the eBook on how to use 5-star Evidence to see how to best prove facts in your claim or appeal.

In a perfect world, the VA benefits system isn’t a clown-car of chaos, and you don’t need to spend hours learning how to file a simple claim for benefits.

But this is NOT a perfect world.

Maybe you can’t afford access to the Veterans Law Blog courses (check our coupons page to make sure you aren’t missing out on a great discount…there’s always a sale or special going on).  Maybe you’ve realized that the VA’s best attempts to ‘fix’ the flaws in the system only make it more complicated, or create opportunities for scandal.

Whatever the case, you are still faced with this question when the VA denies your claim for service-connected benefits

“Should I appeal with a notice of disagreement or reopen a VA Claim after it is denied?”

Fortunately, you NEVER have to make this decision – there is a simple way to tell which course of action you have to follow.

Here’s When to File an Appeal (i.e., a Notice of Disagreement).

If you still have time to file a Notice of Disagreement on VA Form 21-0958 (i.e., you are within one year of the date on the cover letter sending you the VA Ratings Decision), appeal. File the NOD. Just do it – it’s a really simple step and it will save you a LOT of headaches down the road.

Some folks will tell you that it will delay your case.

Well, sure it will. That’s a no-brainer

ANYTHING you do in a VA Claim that the VA doesn’t like will delay your case.  But if you are long time member or follower of the Veterans Law Blog, then you know this to be true:  getting a QUICK decision is far less important than getting a COMPLETE decision.

Would you rather get a VA Ratings decision assigning you a 10% rating for a condition that is preventing you from getting or keeping decent paying jobs in 3 months….

….or…..

Would you rather get a 100% VA impairment rating in 3 years for the exact same condition?

If you choose Option 1 – you are giving up over $2,900 a month, just to get a quick decision on a claim.

So yes, if you file an appeal, it WILL delay your ultimate decision.  But the only way to NOT delay your ultimate VA Claims service connection decision is to give up when the VA does whatever they are going to do.

Every single week, I look at a half-dozen or more Veteran C-Files where a Veteran failed to file an appeal…and as a result walked away from tens or hundreds of thousands of benefits the VA was lawfully required to pay them.

MOST of the time, those same Veterans filed a “reconsideration” request with the VA Regional Office (essentially the equivalent of getting a do-over from the Powerball lottery folks when you don’t pick the right numbers…it ain’t gonna happen folks). As a result, the VA refused to do anything on the “reconsideration” request until after the 1 year appeal period had passed, and then denied the VA Reconsideration request.

This happens hundreds of times every week.  I know because I have to talk to the Vets that were screwed this way. Every. Single. Week.

But wait, you say, if an appeal (Notice of Disagreement) is going to slow my claim down, why can’t I just Reopen my VA Claim? After all, you think, that is a legitimate and accepted claim process.

Let’s answer that question:

Here’s When to File a VA Claim to Reopen.

A VA Claim to Reopen is a VERY specific type of claim.  And, contrary to the “reconsideration” request discussed above (and here  and here), it’s actually exists.

A Veteran should file a VA Claim to Reopen when there are TWO things that are true:

  1. The Veteran has New and Material Evidence to prove the element (or pillar) of the claim that led to the prior denial. (Learn about New and Material Evidence here.  And, watch this really old Quick Tip Video – when I actually had hair – that tells you how to figure out if evidence is new and material and will support reopening your claim).
  2. The previously denied claim is FINAL.

That last part is critical – in order to file a VA Claim to Reopen, the claim has to be “closed”.  Your time to appeal the VA Ratings Decision has to have passed.  Or, maybe you missed the deadline to file a VA Form 9 in response to a Statement of Case.  Or maybe you missed the deadline to appeal a BVA Decision.

Whatever the case, you can only reopen a claim that is final and unappealable.

If you file a reopened claim while the time to appeal is still open, or while a decision on a prior appeal is still pending, then the VA is going to treat it as a “new” claim, and if they DO grant it, they will assign you an effective date of the date your requested reopening.

Then, you have to go through another 5-8 years of appeals to get the VA to set the correct effective date.

Listen, the VA Claims and Appeals Process is incredibly complex.  I’ve seen some really smart people scratching their heads trying to make heads or tails of this system.

No need to make it any harder than it is.  Remember the KISS rule from our military days?

Keep it Simple, Stupid.

(Trivia…did you know that this is an ACTUAL military term? It was coined by the engineers who designed the SR-71 Blackbird as an aircraft design principle).

Here is the SIMPLE rule to follow when you want to challenge a VA Ratings Decision denying you benefits:

  1. If you have time left in the 1 year period to file a Notice of Disagreement – file the NOD and appeal! (Click here for some helpful tips on what to put in your NOD).
  2. If you do NOT have time left in your 1 year appeal period, or if you missed the deadline to file your VA Form 9, file a VA Claim to Reopen on VA Form 21-526b

2 Comments

  1. Karen M

    Just had a HUGE discussion on a veteran board about this NOR vs NOD. Hands down, most veterans believe that u should file that Notice of reconsideration immediately after a claim denial. Then as the year deadline approaches & with no response, file the notice of disagreement. I don’t agree because like the author says, you many lose money cuz the VA will hold their response and what if the veteran forgets to file the NOD? Just not worth the hassle. Go ahead and get the NOD in.My DAV sent me to VSO school and here in Louisiana, we do NOT submit the NOR.

    Reply
    • Chris Attig

      Karen,

      Thanks for your thoughts. Far too many Vets file reconsideration requests….and when the VA doesn’t accept their NOD as timely, they call the law firm looking for help. Every week, I have to tell so many Veterans “There’s nothing that can be done, you were given bad guidance”.

      I probably wouldn’t have a problem with VSOs doing this if they would give Veterans full notice of the possible (and likely) consequences of losing the request and being out of time to file an appeal. At least then, Vets could go in “eyes wide open”. As it is now, it feels so much like “trickery”.

      Thanks for your comment!

      Chris

      Reply

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