Is Your Rating Wrong?

is your rating wrong?Topics:

How to Prepare for Submitting Appeals
Submitting DoD Appeals
Submitting VA Appeals

If you have carefully reviewed our site and feel that your case was not determined correctly during the DoD Disability Process or the VA Disability Process, or you think you deserve a higher Military Disability Rating, here’s what to do.   

 


How to Prepare for Submitting Appeals

Make sure that you have ALL of the appropriate documentation that relates to your condition. Gather medical documents from both military, VA, and civilian providers. Also make sure to gather all other documents that in any way relate to your Military Disability case. This includes any and all correspondence between you and the various Boards or agencies regarding your case.

For example, if you are applying to the Board for Correction of Naval Records, they will need all records and correspondence from all lesser Navy Boards (the Physical Evaluation Board and the Formal Physical Evaluation Board). The higher Rating Authorities discussed below require that all lesser Rating Authorities have been properly passed through before appealing to them. They must see evidence of this, or they won't consider your case.

In addition to these records, if you can, get signed testimonies from witnesses about your condition and how it impacted your military career. The most powerful witnesses of this sort are commanding officers. Your commanding officer normally submits a statement at the start of the DoD Disability Process about how your conditions affect your ability to do your job. If you have this, definitely include it. We’ve seen letters from commanders play an important role in Rating Authorities’ decision. Testimonies from other people, like fellow service members and family members, can also be submitted, but are much less powerful.

For DoD Disability cases, you need to submit all the pertinent documents from before separation. If you have evidence from after separation, it can be submitted, but only if it sheds light on the condition at the time of separation. Most post-separation evidence will not be used at all. The DoD only gives Military Disability Ratings to service-connected conditions that make a service member Unfit for Duty at the time of separation, so any evidence that falls after separation won't matter. Be very careful when submitting evidence from after separation. If it doesn't give important evidence about the condition at the time of separation, it will probably just end up annoying them (more paper to sort through—not fun, believe me). 

For VA Disability cases, you need to submit all pertinent documents from before and after separation. The VA will give VA Disability Benefits to all service-connected conditions, sometimes even if they develop after you leave the military, and they will continue to update the ratings for these conditions if they change over time. Because of this, all evidence concerning your conditions, regardless of the date, should be submitted.  

Gathering the correct documentation is the most ESSENTIAL step when submitting appeals. If you do not have the proper evidence of a condition, then submitting an appeal would just be a waste of time.

Remember, for a condition to be considered service-connected, there must be official evidence, like medical records, of the condition while you were in the military (except Conditions Caused by Service-Connected Conditions or conditions on the VA Presumptive List). If you do not have this evidence, then your condition is not, and will never be, eligible for Military Disability.

We’ve heard many stories of people who were injured while in the service, but never went to the doctor. Now, 5, 10, 20 years later, they think that they deserve compensation for that injury. Sorry. You won’t get anything if there is no definite evidence that the condition did indeed happen while in the military. That’s the law, and it won’t be bent for any “special” circumstances. If you don’t have the documentation, don’t waste your time trying to get compensation. Even the best lawyer wouldn’t be able to get it. Lame, but true. Sorry. 

Similarly, if there are definite medical reports about the condition, but one important aspect of the condition was not recorded, that aspect will not be considered when assigning a Military Disability Rating. For example, let’s say you have an elbow injury. The physician recorded that there is pain with motion, but nothing else. Now, after Finding Your Condition on this site, you realize that you should have gotten a higher rating since you couldn’t bend your elbow more than 20°. This won’t be a big problem for the VA since it will take any new evidence and adjust the rating accordingly. Unfortunately, for the DoD, since the physician did not measure and record that specific limited motion measurement at the time you left the military, it can’t be rated.

Once you have all the appropriate documentation, you are ready to submit your appeal.

WARNING: Don’t ever send the original copies of your records unless they are specifically asked for. These records are the basis of your entire disability case, and you can’t afford the hassle of losing anything! Always keep copies of everything!

Note: We’ve listed below only the levels of appeals within the DoD and VA themselves. A case can be appealed in federal courts after these appeals have been attempted, but we don’t recommend doing so without a lawyer.

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Submitting DoD Appeals

The DoD Disability Process has 2 levels of appeals within the DoD.

Level 1.

After the first Rating Authority, the Physical Evaluation Board, makes its decision, you can appeal to have their decision reconsidered by the Formal Physical Evaluation Board (FPEB). After the PEB makes a decision, you have to sign a form that states whether or not you agree with the PEB’s decision. On this form, you can request for the FPEB to review your case.

If you chose not to appeal to the FPEB at that time and instead agreed with the PEB’s decision, but later realized that you were wrong, then you missed out on your chance to appeal to the FPEB, but you can still submit an appeal to the DoD’s Level 2 Rating Authorities.

If you did appeal to the FPEB, but still do not agree with their decision, you can submit a rebuttal. If the rebuttal does not get the results you want, then you can appeal to Level 2 or Level 1a for the Army.

Level 1a and b.

Only the Army has appeal Boards at these levels (leave it to the Army to have to be different). 

The United States Army Physical Disability Agency (USAPDA) reviews every IPEB or FPEB case in which the soldier disagrees with the decision and waives a formal hearing. If the USAPDA decides that the PEB misjudged the case, it sends it back to the PEB for reconsideration. The PEB and USAPDA then go back and forth until the USAPDA approves of the PEB’s decision.

Once the USAPDA approves, the soldier can submit a rebuttal if he still does not agree. If the USAPDA does not revise its decision, the case is then sent on to the Army Physical Disability Appeal Board (APDAB). The APDAB then reviews the case to determine (1) if the soldier received a full and fair hearing, (2) if the proceedings were in line with the laws and regulations, and (3) if the rating decisions were supported by the evidence.

If the soldier does not agree with the APDAB’s decision, he can then appeal to Level 2.

Level 2.

Note: If you qualify to have your case reviewed by the Physical Disability Board of Review (PDBR), you may not need to appeal to any other Board. If you do not qualify, or if you do not agree with the PDBR’s decision, you can move on to Level 2.

This is the highest level of appeal within the DoD. Each branch of the military has their own Boards to appeal to at this level.

For the Air Force, you can apply to The Air Force Board for Correction of Military Records by mailing DD Form 149 and VA Form 10-5345 to the address noted on DD Form 149. 

For the Navy and Marines, you can apply to the Board for Correction of Naval Records. Note that the Navy has a 3-year limit for applying. If you were separated more than 3 years ago, they may not review your case. To apply, submit DD Form 149 to the address noted on the form.  

For the Coast Guard, you can apply to the Board for Correction of Military Records of the Coast Guard by mailing DD Form 149 to the address noted on the form. 

For the Army, there are actually three different groups that you can apply to depending on the exact circumstances of your case.

– The Army Physical Disability Review Board (APDRB). You can apply to this Board if (1) you were separated from the military because of a medical disability within the past 15 years, and (2) the PEB’s Rating Decision did not entitle you to receive any compensation at all. Basically, you had to leave the military because of a medical condition, but the condition did not rate higher than 0% and so you have gotten nothing from the DoD for that condition. After applying, this Board will not only review your case, but will also allow you to appear before them to argue your case with legal representation (if you want) and any witnesses you would like to testify.  

To apply, you must write a letter stating the following information:  

– Your full name
– Your rank
– Your contact information
– Your social security number
– Any and all reasons why you think you deserve a higher rating for your condition (If you’ve found your condition on this site and know that you have proof in your medical records that your condition qualifies for a higher rating, this part should be easy to write.)
– The contact info for your legal representative (If you want one. Our goal with this website is to give you the tools you need to do this yourself, but some cases are complicated enough that legal help would still be a good idea. It’s up to you.)
– The contact info for any witnesses you’d like to testify (Not necessary if you have the proper medical record evidence. Sometimes, however, other people, like your commanding officer, will be able to provide good and definitely powerful testimony of how your condition affected your actual ability to do your job. It could be really helpful to have good witnesses.)   

Refer to our APDRB Sample Letter for help. In addition to the letter, include a copy of your Certificate of Release or Discharge from Active Duty (DD Form 214), and all your supporting evidence.  

Mail all of the above to: 

Army Review Boards Agency
251 18th Street South, Suite 385
Arlington, VA 22202-3531   

– The Army Disability Rating Review Board (ADRRB). You can apply to this Board if (1) you were officially separated from the military within the last 5 years, and (2) you were given a disability rating of 10% or more.  

This Board is a lot pickier about what applications it will accept. They’ll only accept your application for review if the original rating decision was made fraudulently, you did not receive a full and proper hearing for your case after you requested one within the proper time limit, or if you have new evidence that you were unable to submit before the rating decision even though you tried to obtain it. 

To apply, you must write a letter with the following information:  

– Your full name
– Your rank
– Your social security number
– Your contact info
– Any and all reasons why you think you deserve a higher rating for your condition (Again, this shouldn’t be hard if you’ve done your research on our site. This Board is going to be tougher, though, so make sure you state exactly what you believe your rating should be and why.)   

See our ADRRB Sample Letter for help and guidance.  

Then mail your letter and all supporting materials to: 

Army Review Boards Agency
251 18th Street South, Suite 385
Arlington, VA 22202-3531  

– The Army Board for Correction of Military Records (ABCMR). This Army Board is the highest authority for all Army disability decisions. Only apply to this Board if (1) none of the other Boards have been able to satisfactorily fix your rating decision, (2) you are unable to apply to any other Board, or (3) there is a clear error in your military records. Whatever this Board decides is the end-all-be-all for Army disability, so make sure to prepare your case carefully and completely.  

To apply, mail DD Form 149 and all supporting materials to the address noted on the form. In addition to all medical records and other supporting materials discussed in the How to Prepare section above, make sure you also include copies of all correspondence with any Boards or individuals regarding your disability case. They’ll only review your case if they see that you’ve tried everything else first before coming to them.   

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Submitting VA Appeals

There are two levels of appeals within the VA.

You can submit an appeal to the VA if you disagree with any part of their Rating Decision, whether the rating, the reason the claim was denied, or the effective date.

You do not, however, submit an appeal if you would like the VA to update your rating to reflect your condition over time (increased evaluation), if it has been more than a year and you want to reopen a claim that was denied, or if you want to apply for secondary conditions. In these cases, you submit VA Form 21-526b instead of an appeal.

Level 1.

Your first appeal should be sent to the Board of Veterans’ Appeals (BVA). You cannot submit an appeal to this board unless you have already received your Rating Decision from your local VA.

The first step in appealing to the BVA is to submit VA Form 21-0958, Notice of Disagreement (NOD), to your Regional VA Office. This is the office that issued your Rating Decision. Full address and contact information for your Regional VA Office should be on your Rating Decision. You must submit your NOD within 1 year of receiving the Rating Decision. Once you've submitted your Notice of Disagreement, a representative from the VA office will be in touch with you and will guide you through the rest of the process of appealing to the BVA. This includes submitting VA Form 9, which is the official appeal.

If you have any new evidence that was not considered with your original claim, then you must submit it right at the beginning with the NOD. Make sure to submit this evidence right away or the appeal process will be delayed.

If you have gone through this entire process, received the BVA’s decision, and still disagree with the decision, you can either apply to the BVA again, or you can move on to Level 2.

Level 2.

Once you have received your rating decision from the BVA, you can submit an appeal to the US Court of Appeals for Veterans Claims. Appealing to this court is taking legal action against the Secretary of Veterans Affairs. This is the highest level of appeals within the VA.

The Secretary has the power to make exceptions to the law in special cases, so after applying to this court, he may review your case and decide to make exceptions. If not, it will go to court.

Note: You CANNOT appeal to this level if there is any NEW evidence to be considered. If you have new evidence, then you need to go back to your local VA and submit it for consideration. If you submit any new evidence here, your case will be thrown out.

To appeal to the US Court of Appeals for Veterans Claims, submit a Notice of Appeal within 120 days of the BVA’s decision. If it is after the 120-day period, it is too late to submit an appeal.

This court charges a $50 filing fee that must be paid when submitting the Notice of Appeal. It can either be paid by check or money order to the U.S. Court of Appeals for Veterans Claims. If you honestly can’t afford to pay the $50 fee, you can file a Declaration of Financial Hardship instead.

You can submit the Notice of Appeal to the Clerk of the Court by mail to the address noted on the form, by fax to (202) 501-5848, or by email to e-submission@uscourts.cavc.gov.

These directions are only for filing on your own. If you have a legal representative, there are additional things that must be done. Full details for your representative can be found on the Court’s website.

Once you have submitted your appeal, the Court will contact you with further instructions.

If you do not agree with the Court once they make a decision on your case, you can file a motion for reconsideration within 21 days.

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