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Don’t Appeal the VA – Find Another Way!

September 14, 2015

by Lawyers With Purpose with One Comment Asset Protection Estate Planning Drafting Software VA

When a claimant has received an unfavorable decision from the Veterans Administration, the first inclination is to appeal. The appellate process can take years to resolve. Elderly seniors seeking the wartime pension do not usually have years to wait, as death could occur at any time. When a claimant dies, the claim usually dies too. Thus, it is critical to speed up the process to get an approval sooner rather than later.

A preferable alternative to appealing is seeking a Request for Consideration. This is when a claimant requests that the VA reconsider one of its decisions that has not yet become final. A decision becomes final one year after it is issued. Thus, you must file a request for reconsideration within a year of the original decision. There is no specific form to file a request for reconsideration; however, we recommend using VA Form 21-4138, Statement in Support of Claim.

Common reasons to request a reconsideration of a decision for a pension claim include, but are not limited to, the following:

Denial of Pension claim for excess income (or only partial approval)
Denial of Pension with Aid and Attendance
Denial due to excessive net worth
Incorrect effective date of the award

Denial of pension claim for excess income (or only partial approval). To qualify for VA pension, the claimant must meet income limitations. Often, in order to meet the limitations, the claimant has recurring out-of-pocket medical expenses that can be deducted from the income, which then reduces the income for eligibility purposes. When the claim is denied or approved for less than expected, it is usually because either the claimant does not have enough medical deductions or the VA did not properly deduct permissible medical expenses. For example, the VA is to deduct all medical expenses for both a veteran and the veteran’s spouse; yet, the VA often does not deduct the spouse’s medical expenses. In that case, a request for reconsideration is a useful strategy to submit the expenses (again) and request that the VA recalculate the award.

Denial of pension with aid and attendance. When a claimant needs the assistance of another person to help with at least two activities of daily living (bathing, dressing, transferring, eating, incontinence/toileting), or needs the regular supervision of another due to dementia (memory loss), then the claimant can receive a supplemental monthly income called aid and attendance. But, before aid and attendance can be granted, the claimant must submit VA Form 21-2680, Application for Aid and Attendance, completed by their treating physician, to the VA. The form must be filled out with very specific language to meet the VA’s standards. When a claim is denied for aid and attendance, it is usually because the claimant either did not submit this form or the physician did not fill it out sufficiently. Getting a new form filled out properly and submitting it with a request for reconsideration will generally garner an approval by the VA.

Denial due to excessive net worth. To qualify, the claimant must have limited resources. If the VA denies a claim due to excessive net worth, once the assets are no longer excessive, the claimant may submit verification of the reduced assets and request the claim be adjudicated again.

Incorrect effective date of award. When filing for pension benefits, it is important to obtain the earliest effective date possible. The sooner the date, the more money the claimant receives. Under the fully developed claim process wherein the VA requires that the claimant submit all application forms and supporting documents simultaneously, months can go by while waiting to obtain a divorce decree, death certificate or the physician’s affidavit for aid and attendance. Instead of waiting in vain (without getting benefits), the claimant can file an Intent to File a Claim on VA Form 21-0996 to “lock in” the eligibility date. This form should only be filed when the claimant meets all financial and medical criteria but is waiting on supporting documents. Once the supporting documents are in hand, then, subsequent to filing the notice of intent, the claimant will file the fully developed claim. There may be months between the two. Once the VA issues its decision, it may have overlooked the intent to file a claim locking in the effective date and instead award the date from the filing of the fully developed claim. So as not to lose the intervening months, you should file a request for reconsideration with a copy of the intent to file a claim that was previously filed.

Although appeals can take several years to resolve, we are seeing that requests for reconsideration are taking less than six months, often only 30 days, to resolve. This is a much better outcome for the client.

If you want to learn critical information on building a thriving practice while serving those who serve our country, register for our FREE WEBINAR this Wednesday at 12 EST.

Here's Just Some of What You'll Discover During this Complimentary Event…

How and Where to Obtain Quality Clients
How to Present the Value Proposition
What to Charge for Planning
What to Include in Your Engagement Agreement

Victoria L. Collier, Co-Founder, Lawyers with Purpose, LLC, www.LawyersWithPurpose.com; Certified Elder Law Attorney through the National Elder Law Foundation; Fellow of the National Academy of Elder Law Attorneys; Founder and Managing Attorney of The Elder & Disability Law Firm of Victoria L. Collier, PC, www.ElderLawGeorgia.com; Co-Founder of Veterans Advocates Group of America; Entrepreneur; Author; and nationally renowned Presenter.

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Communicating with the VA

August 12, 2015

by Lawyers With Purpose with No Comment Legal Technical VA

There is one sure thing when it comes to communication from the VA: They don’t do much of it. And when I use the term “communication,” I don't mean the dreaded, generic form 20-8992 that the pension management centers will sometimes spit out stating that “We have received your application for benefits. It is our sincere desire to decide your case promptly. However, as we have a great number of claims, action on yours may be delayed.”

Substantive correspondence from the VA in regards to a pension claim generally boils down to three or four letters during a typical claim process. If you submit an intent to file a claim on VA Form 21-0966 (which is not actually filing the claim itself), you should receive an acknowledgment as well as directions on how to file a formal, fully developed claim. Once the formal claim is filed, you may receive a request for information. As long as you respond within the allowed 30 days, the claim should remain within the fully developed claim track (which is intended to produce quicker decision times). Otherwise, the next notice from the VA is a decision letter, often accompanied by a rating decision on blue paper. After an approval, there may be some additional letters regarding a proposal of incompetency. Assuming that is resolved, that is the extent of it and the client should not expect any other correspondence.

There are essentially three ways to communicate with the VA: mail/email, fax, and phone.

Mail / Email

Traditional mail is the default way to reach the VA and has the advantage of being traceable, whether you use certified mail with return receipt or prefer FedEx or UPS. U.S. mail is also the default way that the VA will communicate with you. You are promised by IRIS – the Inquiry Routing and Information System, which is the VA’s Internet-based public message management system – that you can use it to ask questions and submit complaints, compliments, and suggestions. You access IRIS by completing an online form at https://iris.custhelp.com rather than by directly emailing an inquiry. You can specify that the VA respond in one of three ways: email, telephone, or U.S. mail.

Fax

Faxing to the VA should be a backup method to mail rather than an alternate. It allows you to respond promptly when a deadline is involved. You should ensure, of course, that some record of the fax confirmation is kept with the file. The three pension management centers have their own dedicated fax lines that were updated in July 2014 to the following:

Philadelphia: (215) 842-4410

Milwaukee: (215) 842-4430

St. Paul: (215) 842-4420

Phone

Calling the VA National Call Center at the number (800) 827-1000 or the pension management centers at (877) 294-6380 may be the most direct way to make inquiries regarding a particular claim. To do so, the proper forms naming you as an authorized caller must be in the VA file. You are warned that calling cold, without an appointment time, will result in a lengthy wait time. It is better to call after hours, when you are prompted to schedule a phone call so that the VA calls you back at a specific date and time. This can be done a week in advance, but slots fill quickly, so keep your schedule flexible. Once you speak to an agent, there is little direct information that they can tell you about a claim other than to state what phase it is in (Development, Decision, or Notification). They may also disclose that a decision has been made or that a request for information is pending, but they will not go into specifics.

The point of following up by phone is to track that a claim has been logged in and that it is moving through the process, even if there may not be much more to learn than that. At the very least, it forces somebody at the VA to look at the claim, and if there is anything off base about the claim, it’s better to know sooner rather than later.

Phone calls from the VA to the client or representative are much less common. Once in a while an employee will call with an inquiry; however, they are more likely to call an assisted living facility or family member for confirmation of some fact, rather than the attorney’s office.

Regardless of the method you choose to communicate with the VA, you must remember that you are often the most vital link for your clients to the VA and often their only way of understanding what the VA is trying to communicate in regards to their pension claim.

If you aren't a Lawyers With Purpose member and want to learn about the nuts and bolts of the proposed VA changes…and what it means for your practice join our FREE WEBINAR on Wednesday, August 19th at 4 EST. Click here now to register.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Director of VA Services for Lawyers With Purpose

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; Co-Founder of Lawyers for Wartime Veterans; and Co-Founder of Veterans Advocate Group of America.

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VA Approval – Now What?

June 30, 2015

by Lawyers With Purpose with No Comment Legal Technical Systems & Processes VA

Congratulations! You received approval of your VA Pension with Aid and Attendance claim. Your job is done, right? Well, not quite.

Once you receive an approval letter, there are three steps your firm should follow: Review for accuracy, identify next action, and then inform your client of the results and what to do next.

Review for accuracy

Just because you have an approval does not mean there are no errors in the decision. The two main issues to check are (1) the effective date (payment start date) and (2) the monthly benefit amount. You should already have a pretty clear understanding of the eligibility date and the expected amount when you file the formal claim. The payment start date should be the first day of the month following the month in which you submitted the informal claim/intent to file or formal claim. For example, if an intent to file was submitted and received by the VA on May 20, 2015, then the eligibility date would be June 1, 2015. The monthly benefit amount, assuming that the financial information you had was accurate, is the Maximum Annual Pension Rate (divided by 12) minus Income for VA Purposes (IVAP). For example, the Maximum Annual Pension Rate (MAPR) for a married veteran who needs the aid and attendance of another person with activities of daily living is $2,120 per month. The gross income of the veteran and the spouse is $4,500 per month. After deducting the veteran’s assisted living facility costs of $5,000, the IVAP is $0. Thus, the difference between the monthly MAPR of $2,120 and $0 is $2,120 and the veteran would be paid the maximum.

When using the Lawyers with Purpose copyrighted VA Benefits Qualification Worksheet, these figures are automatically calculated for you. On the approval letter from the VA, this information is generally found on the first page in the form of a table. This table will have at least three columns for “Monthly Entitlement Amount,” “Payment Start Date,” and “Reason for Change,” and as many rows as there are changes in rate.

Identify next action

If there are errors, then you should identify the deadline for your response. Responses may include a Request for Reconsideration (RFR) and/or a Notice of Disagreement (NOD). You should also identify what further information you may need in order to document the grounds for your RFR or NOD. The NOD must be filed within one year of the date on the decision letter. More information regarding this process can be found in the blog post, “What To Do With A Denied VA Application – Part 2”

In contrast, there is no real deadline for the request for reconsideration, as it is not a formal VA adjudication process. The RFR is essentially the request that the original adjudicator reconsider his/her original decision because you can provide new information or enlightenment regarding previously submitted information that the VA failed to interpret per their regulations. It is always worth filing a request for reconsideration, even if you plan to file a Notice of Disagreement, because the former process is much quicker than the NOD route. If there are no errors in the approval, the next action may be simply to inform the client. However, the VA may propose a finding of incompetency on the basis of the physician’s statement (VA form 21-2680) provided with the claim. You will immediately know if there is an incompetency proposal because there will be two extra columns in the table already mentioned, titled “Amount Withheld” and “Amount Paid.” There is also an additional section in the letter called, “We Have Withheld Benefits.” Sometimes the VA includes a simple response form to complete and return, but even if it does not, you should respond by returning a 21-4138 Statement in Support of Claim that acknowledges and accepts the finding of incompetency and nominates a fiduciary, usually a family member.

Inform the client

Once you identify the next action, you must inform the client – preferably in writing – of the accuracy of the approval letter and explain the next step(s), if any. This can be as simple as confirming the approval and the monthly benefit amount. It should also explain when to expect the first monthly deposit as well as the receipt of any lump sum retroactive benefits. If applicable, you would also describe what to expect during the fiduciary process or appeal. Finally, be sure to be specific in any requests for further documentation to expedite data collection and your responsiveness to the VA. Getting an approved VA claim can be a challenge. You should celebrate each one! However, don’t overlook these three essential steps. Incorporate them into your firm’s processes. Congratulations!

If you would like to learn more about creating the estate or elder law practice of your dreams, join our webinar "Having The Time To Have It All" on July 23rd at 2 EST and learn about how Lawyers With Purpose can help get you there. Click here to register and reserve your spot today.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and VA Production Coordinator for Lawyers With Purpose.

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VA Pension Claims: What to Include and Exclude

June 16, 2015

by Lawyers With Purpose with No Comment Estate Planning Drafting Software Legal Technical VA

A successful VA pension claim depends on the inclusion of the right VA forms as well as their correct completion. This is particularly important in the case of the Fully Developed Claim (FDC) Program, which is the relatively quicker claim adjudication process in comparison with the Standard Claim Process. However, how important are the lesser-discussed verification documents to a claim’s success? These supporting players may be more important than you realize.

To ensure consistency with files, we recommend that firms provide a checklist of necessary documents for each client to gather for review before each consultation. The requested items include biographical data, income and asset verification and current estate planning documents. The more complete the response is to this checklist, the more accurate and effective our evaluation and recommendations are to the client.

More importantly, however, is having the documentation to submit with a VA claim for pension with aid and attendance. Instructions on the VA Forms 21-527EZ and 21-534EZ stipulate, “submit simultaneously with your claim all necessary income and net-worth information." If you fail to submit the proper supporting documentation, the VA will delay or deny the claim. The instructions for these forms further state, "It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency.”

One of the most important supporting documents is proof that the veteran was indeed a wartime veteran. The most common way of verifying this is by submitting the discharge paper, commonly the DD-214. In the absence of any formal record of service, you can use a “buddy affidavit,” in which a fellow service member attests to having served with the veteran. The VA should attempt to confirm service if you do not submit this documentation; however, it is incumbent upon you to do your best to provide this, as your claim will not proceed until this aspect of eligibility is confirmed.

Records documenting marital history also may cause issues when they are omitted. You should obtain marriage certificates, divorce decrees, and death certificates of all previous spouses for both the veteran and his or her spouse. The reason for this is that the VA must ensure it is paying the correct amount of monthly pension and that payment is going to a qualified beneficiary.

Knowing which documents to include is important. Just as important is knowing which documents NOT to include. The Improved Pension program with aid and attendance is “means” based, so it requires the applicant to meet certain income and asset limitations. We recommend that you provide verification of all income and assets from the date of eligibility (the effective date). The VA may only consider the claimant’s net worth and income as of the effective date, which is determined by when the claim was submitted, or when an intent to file a claim was submitted. Any financial documents pertaining to net worth or income prior to the effective date are irrelevant to the claim process, pursuant to Title 38 of the Code of Federal Regulations §3.400, which states, “Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” In fact, the adjudication manual M21-1MR, Part V, iii, 1, E 33n, specifically states, “Do not count income received before the effective date of an original or reopened award. (For death pension cases, do not count income received between the effective date and the date of the veteran’s death.) The effective date is the date a claimant is entitled to benefits without regard to 38 CFR 3.31.” You can use the latter citation when responding to VA requests regarding the prior year’s income when it occurred before the effective date.

When completing an application for VA benefits, ensure that you do three things:

Use the correct forms.
Complete the forms correctly.
Provide all of the necessary verification documents.

Members! Don't forget we have VA Tech Training this Thursday, June 18th at 3 EST. To join this call on what’s new and improved in the June release of the LWP-CCS software contact Amanda Ross at aross@lawyerswithpurpose.com.

If you aren't a member and want to learn more about joining the Lawyers With Purpose community, contact Molly Hall at mhall@lawyerswithpurpose.com

Sabrina A. Scott, VA Production Coordinator, Lawyers with Purpose, LLC and Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation; Author of “47 Secret Veterans' Benefits for Seniors”; Author of “Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit”; Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC; and Co-Founder of Lawyers with Purpose.

Informing The VA You Plan To File A Claim

May 26, 2015

by Lawyers With Purpose with No Comment Estate Planning Drafting Software Legal Marketing Legal Technical VA

I don’t think anyone really expected a great announcement from the VA on March 25, 2015, with the end of the 60-day public comment period on the proposed VA rule, RIN 2900-AO73, regarding net worth, asset transfers, and income exclusions for needs-based benefits. However on that day the VA did announce several changes effective March 24, 2015 that directly impact all claims. One of these changes was the amendment of the adjudication manual M21-1MR to introduce a new intent to file procedure which replaces the informal claim process to lock in an effective date for an Improved Pension claim (with aid and attendance) prior to the filing of the Fully Developed Claim.

The VA web page http://explore.va.gov/intent-to-file, as well as the March 2015 Fact sheet issued by the VA, explain that there are currently three ways to declare an intent to file a claim:

Electronically via eBenefits.
Completing and mailing the paper VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC.
Over the phone to the VA National Call Center or in person at a VA regional office.

eBenefits is accessed from the VA website via this page https://www.ebenefits.va.gov/ebenefits/apply, However the link for filing pension claims currently generates an error. The content is blocked in both Internet Explorer and Mozilla Firefox web browsers as an untrusted connection.

If you prefer to continue using a paper form to lock in an effective date, you are now required to use the VA form 21-0966. What happens if you filed an informal claim on or after March 24, 2015? Pursuant to M21-1MR, Part III, Subpart ii, Chapter 2, Section D, 2b, “Consider a request for benefits not filed on an appropriate prescribed form on or after March 24, 2015 a request for application.” The VA will respond to a request for application by sending correspondence that instructs the claimant which forms are needed to formalize the claim. Nevertheless no effective date will be locked in until a complete intent to file or a completed application is submitted. There is no recourse if the VA rejects an informal claim filed on or after March 24, 2015 as the final rule of 38 CFR Parts 3, 19, and 20 RIN 2900–AO81 “also eliminate the provisions of 38 CFR 3.157 which allowed various documents other than claims forms to constitute claims.”

The option of declaring an intent to file by telephone or in person at the VA regional office has the disadvantage of lack of documentation. Furthermore the average waiting time for calls to the VA National Call Center to be answered is over an hour and, thus, would not be an efficient use of your time to use this option. Thus for now if your firm chooses to lock in an effective date prior to the filing of the fully developed claim, you must use the second of the three options listed above. Our firm has changed our process to start using the form 21-0996 with all future VA claims. The new form will also be included in a future update of the Lawyers With Purpose software.

The easiest way to receive important notices directly from the VA is to subscribe to the email delivery of VA News Releases at https://public.govdelivery.com/accounts/USVA/subscriber/new or visit their website at www.va.gov.

There is still time to grab a seat for our 3.5 day Practice With Purpose Program in St. Louis next week! We'll be talking about Asset Protection, Medicaid and the following on VA Benefits planning:

Service Connected Benefits (Veterans & Widows/Dependents)
Non-Service Connected Benefits – Improved Pension, Housebound, Aid & Attendance
Asset Eligibility
Application Process
Correct Forms
Annual Reviews
Appeals Process
Representation and Marketing – Getting Veterans to March in Your Door

Click here to register and grab one of the few spots remaining.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Production Coordinator for Lawyers for Wartime Veterans, LLC.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation, Author of 47 Secret Veterans Benefits for Seniors, Author of Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit, Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC, Co-Founder of Lawyers for Wartime Veterans, Co-Founder of Veterans Advocate Group of America.

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What To Do With A Denied VA Application – Part 2

March 31, 2015

by Lawyers With Purpose with No Comment Legal Technical VA

In a prior blog titled, “What To Do With A Denied VA Application – Part 1" I discussed what you should consider when a VA application is denied and the merit of pursuing an appeal despite the time it can take to prevail. Today’s blog will describe the appeal process as initiated by the Notice of Disagreement (NOD), the formal way to submit a claimant’s disagreement with a VA determination. While a Notice of Disagreement can be drafted in the form of a letter or on a 21-4138, “Statement in Support of a Claim,” there is an official VA 21-0958, “Notice of Disagreement” form that was introduced in 2013. The latest 2015 version of this form can be found at the VA Forms web page http://www.va.gov/vaforms/.

As of March 24, 2015, this form is required to appeal a Service Connected Disability claim, but it is not required to appeal a Non-Service Connected Disability claim. The terms of the form suggest that it is geared more towards service-connected disability claims; however, it can be used for non-service-connected disability claims as well.

Once you have timely filed the NOD, which is within one year from the date on the initial decision letter, the VA will respond with a letter requesting that you select what form of the appeal process you prefer. There are 2 forms of the appeal process at this stage: the Post Decision Review Process and the Traditional Appeal process. You must make this election within 60 days from the date on this letter or your appeal will default to the Traditional Appeal process. The Post Decision Review Process involves the assignment of a Decision Review Officer (DRO) at your regional VA office who will completely review the claims folder as well as any information from the authorized representative. The Traditional appeal process is a review by a VA staff member at the pension management center. In either case, more information may be requested. The Post Decision Review Process is the preferred appeals method as it make be quicker than the Traditional Appeal Process and relies on the greater expertise and experience of the Decision Review Officer to identify adjudication errors.

Regardless of which appeals process you elect, the next step would receiving either an approval or, if not approved, a Statement of the Case (SOC). The SOC is an often, lengthy statement summarizing the VA’s decision and the evidence on which the decision was based as well as providing relevant legal citations. To continue the appeal after receiving the SOC, you must file VA form 9, “Appeal to Board of Veterans’ Appeals” within 60 days from the date of the Statement of the Case. At this level you have the option of requesting a hearing before the BVA, although this will easily extend the processing of your appeal beyond 3 years to 5, or even 7, years depending on the form of hearing.

The appeal process is not difficult in terms of what you need to fill out and when you need to file it. The difficulty lies in managing a process where long periods of time are spent waiting for a response from the VA, punctuated by whirlwinds of activity when you must request and receive information and documentation from your client to draft and submit a response to the VA within a short period of time, regardless of what else may already be on your desk. That is why it is important that your client inform you of any correspondence that they may receive in case you do not receive a copy and that deadlines are scheduled in your firm management system so that they are not missed. Such precautions are the only way to increase the likelihood that your appeals will succeed.

If you want to learn more about Veteran Benefits Planning for you estate and elder law practice, join us June 1st – 3rd for our Practice With Purpose Program. It will teach you not just all you need to know about VA Benefits, but also Asset Protection Planning and Medicaid Planning!

If You Practice in Today's Estate Planning Environment, You Won't Want to Miss This!

Join some of your most successful and forward-thinking peers from around the country at this program where we will discuss, discover, and provide solutions for Asset Protection, Medicaid. & VA Benefits Planning. Register today to reserve you spot! This event will sell out.

By Sabrina A. Scott, Paralegal, The Elder & Disability Law Firm of Victoria L. Collier, PC and Production Coordinator for Lawyers for Wartime Veterans, LLC.

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation, Chair, National Academy of Elder Law Attorney’s VA Task Force, Author of 47 Secret Veterans Benefits for Seniors, Author of Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit, Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC, Co-Founder of Lawyers With Purpose, LLC.

What To Do With A Denied VA Application – Part 1

March 30, 2015

by Lawyers With Purpose with No Comment VA

You gathered all the necessary supporting documents. You confirmed that your clients meets the income and asset eligibility limitations. You completed all the forms. You obtained all the necessary signatures. You have dotted every “i” and crossed every “t”. You have filed your fully-developed VA claim with the appropriate pension center and have confirmed receipt. Now you just sit back and wait for the approval letter and your client’s praises to rain down on you right? Most of the time, yes, but not always. It can be discouraging when you get a denial letter, especially when you know the claimant is eligible and should have been approved.

What’s the next step? First, read the reason given for the denial and determine whether it is accurate. Denials may be due to an error in adjudication, but they can also be legitimate denials based on unknown, additional income and/or assets. Once you determine that a denial is, in fact, in error, then an appeal is warranted even if they are notoriously lengthy ordeals stretching into 2 – 4 years. The first level of appeal in VA parlance is known as a Notice of Disagreement (NOD). You have one year from the date of the decision letter to file a notice of disagreement. There is no particular form for the NOD; a letter or filing VA Form 21-4138, Statement in Support of Claim, declaring that you are filing an NOD is sufficient.

There is however another, lesser-known step before the NOD and this is a Request for Reconsideration (RFR). A request for reconsideration involves new evidence or perhaps evidence already submitted but not considered by the VA. The objective is for the pension center to re-open the decided claim and reconsider their decision in the light of this new evidence. RFRs are generally processed much quicker than appeals as they stay in the pension center where the claim was originally adjudicated. Again, there is no particular form that is used for the RFR. A letter or statement on VA Form 21-4138 can be submitted requesting reconsideration along with the additional evidence that you would like the VA to reconsider. However the disadvantage of the RFR, is that if it does take more than a year for reconsideration, you miss the window of opportunity for filing the appeal. For this reason Victoria Collier, CELA, and co-founder of Lawyers With Purpose, recommends filing a statement that includes both an NOD and an RFR. Best case scenario: Your claim is reconsidered and corrected within a relatively quicker time frame. Worst case scenario: the NOD begins the appeal process. More details regarding the appeals process will be provided in a future blog titled, “VA Application DENIED – How You Should Appeal”.

Appeals take a while, but they are worth it when you have a legitimate claim. A recent example from The Elder & Disability Law Firm of Victoria L. Collier, PC makes this clear. The claimant in this case was a married vet who was approved for VA Improved Pension, but for less money than expected and warranted due to his deductible medical expenses. We filed a Notice of Disagreement and a Request for Reconsideration on September 13, 2011. The award, granting all benefits sought on appeal, was dated February 6, 2015 – more than 3 years later. A happy ending despite the time and trouble that the appeal can take.

If you want to learn more about VA Benefits Planning to build or enhance your existing estate or elder law practice join us for 2.5 days and learn all you need to know about Asset Protection, Medicaid & VA at our Practice With Purpose Program. If you practice in today's estate panning environment, you do not want to miss this!

Victoria L. Collier, Veteran of the United States Air Force, 1989-1995 and United States Army Reserves, 2001-2004. Victoria is a Certified Elder Law Attorney through the National Elder Law Foundation, Chair, National Academy of Elder Law Attorney’s VA Task Force, Author of 47 Secret Veterans Benefits for Seniors, Author of Paying for Long Term Care: Financial Help for Wartime Veterans: The VA Aid & Attendance Benefit, Founder of The Elder & Disability Law Firm of Victoria L. Collier, PC, Co-Founder of Lawyers With Purpose, LLC.