How Sean Kendall, Attorney at Law, Will Help You Pick Up a Disability Claim After Being Stonewalled By the VA
The United States Department of Veterans Affairs (VA) is often quick to issue life-altering decisions—sometimes without doing its due diligence, or making a good-faith effort to help former servicemen and women obtain the benefits earned by sacrifice. Claims can be discarded without considering the big picture, or left pending for so long that Veterans have no choice but to assume their request has been rejected.
You don’t have to accept uncertainty in place of disability compensation, a pension, or a better rating. Read more to learn about the legal limits on the VA’s ability to send applications into claims purgatory and your right to appeal. Then, send Sean Kendall, Attorney at Law, a message online to start charting your next steps.
An Overview of VA Disability Claims and Delays
The VA has many responsibilities: it helps former servicemen and women obtain home loans and tuition reimbursement, and it guarantees high-quality care for injuries sustained in the line of duty. Of all these responsibilities, few serve a greater purpose than ensuring that wounded warriors receive treatment for conditions with long-term—and potentially life-altering—complications. However, there has always been a fundamental disconnect between what the department does, and what it’s supposed to do.
Disability Claims Timeline
The process for applying for disability benefits, for instance, is supposed to be straightforward. It typically consists of the following steps:
- Filing a claim for disability—this could be a new claim, a secondary claim, or a supplemental claim.
- After submitting your initial claim, the VA provides a notice of confirmation and forwards your materials for initial review.
- Depending on the circumstances of your claim, you may be asked to attend additional medical appointments or to provide more evidence.
- Next, you wait for the VA to make a decision.
- Finally, accepting your benefits or preparing to file an appeal or request for redetermination.
The time it takes for the VA to decide on a disability claim depends on many factors. However, on average, the agency takes about five months to “adjudicate” a request and offer a decision.
Your Application in Claims Purgatory: Responding to Silence
If you’ve recently applied for disability benefits, you probably expect to receive a response—even if it takes time to come through, and even if it isn’t the response you’re hoping to receive. Unfortunately, the VA doesn’t always operate as expected. After all, it’s a federal bureaucracy. Officials sometimes expect ordinary applicants to be familiar with agency regulations, including rules and principles that aren’t written in any handbook or guide. One of these principles relates to silence.
In the past, the VA considered silence a real and actional response to disability claims. Consider this example:
- A Veteran submits disability claims for tinnitus, post-traumatic stress disorder (PTSD), and insomnia secondary to PTSD.
- After attending a Compensation & Pension Exam and submitting evidence, the Veteran eventually receives a packet informing them that their claims for tinnitus and PTSD have been approved—but aren’t told of what action, if any, has been taken with respect to their insomnia claim.
- The Veteran waits and waits for the VA to send a follow-up letter on their insomnia, but never hears back.
Before 2007, the VA may have insisted that its inaction was a denial—or that it had simply resolved the claim without taking action, meaning that the Veteran would have to re-apply for insomnia-related benefits separately to receive a decision. However, a court case forced the VA to implement and abide by more transparent procedures.
Ingram v. Nicholson: How a Court Case Could Save Your Disability Claim From Uncertainty
In 2007, the U.S. Court of Appeals for Veterans Claims issued a critical ruling in the case of Ingram v. Nicholson. The ruling, which helps clarify the difference between a “pending claim” and a “final claim,” didn’t direct the VA to change its regulations or rewrite its rulebook—but it does provide strong protections for disability claimants who have had to wait for decisions that never came.
Understanding Ingram v. Nicholson: The Facts of the Claim
Ingram v. Nicholson was filed on behalf of Robert J. Ingram, a U.S. Marine Corps Veteran who served on active duty between September 1964 and 1968.
In 1985, Ingram underwent surgery at a VA hospital in Utah. A doctor performed a bronchoscopy—a procedure used to look inside his lungs—and a right pneumonectomy, resulting in the loss of one of his lungs. Less than a year later, he filed a claim for compensation and non-service-connected pension benefits, saying that the surgery “greatly decreased [his] … air-lung capacity … by fifty percent,” and that he could no longer “continue [his] normal lifestyle.”
The VA quickly rejected Ingram’s pension claim, saying that his reduced lung function did not make him “permanently unemployable.” However, in its response, the VA only explicitly addressed—and denied—Ingram’s request for a pension. Ingram eventually succeeded in obtaining disability benefits, but the Board of Veterans Appeals (Board) refused to backdate his claim to 1986. Instead, lawyers for the Board argued that Ingram never explicitly sought disability compensation in his original application and therefore, wasn’t entitled to it.
Interpreting Ingram v. Nicholson: What a 2007 Ruling Could Mean for You
After years of fighting the Board’s decision, the U.S. Circuit Court of Veterans Appeals determined that the VA made a mistake: even if Ingram’s initial 1986 application did not explicitly seek disability compensation, the VA still has a responsibility to conduct a comprehensive review and determine what, if any, benefits an applicant could and should receive.
The ruling directed the VA to make several big changes to the way that it processes certain claims and appeals.
A Responsibility to Read Claims Sympathetically
Ingram’s original application was prepared as a request for pension benefits, but could have been used to obtain disability compensation, too.
Although the Board refused to backdate Ingram’s later application for disability benefits, the court disagreed, saying that the VA cannot realistically expect a Veteran to cite specific regulations when trying to obtain disability benefits. Instead, the VA must give applicants the benefit of the doubt and take initiative in identifying potential claims.
This is termed a “sympathetic reading” because the Board must “sympathize” with the fact that most Veterans don’t have the legal training to format all their claims exactly as the VA would prefer they be formatted.
In other words, even if you had a previous claim denied, you could still be entitled to compensation if the VA failed to do its due diligence in helping you obtain related benefits.
A Responsibility to Clearly Articulate Claim Decisions
The VA tried to argue that its denial of Ingram’s pension benefits was also a denial of any potential request for other types of disability-related compensation. However, the court disagreed and said the Board has a responsibility to communicate decisions in a way that ordinary applicants can understand.
But if the VA does not clearly communicate a decision, the claim may remain open and pending—even if years or decades have passed since it was first opened. This means that Veterans may still seek a decision, or appeal a denial, without having to refile their initial claim.
How to Tell If Your Claim is Pending, Approved, or Denied
According to the court’s ruling in Ingram v. Nicholson, a claim can—in the absence of any clear decision—remain pending. However, it’s still sometimes very difficult to determine the exact status of a VA claim.
In most cases, a VA disability claim is pending if:
- You submit a claim and the VA never adjudicates it or issues a decision on your application.
- You submit a Notice of Disagreement and the VA never issues a Statement of the Case or provides an adequate response.
- You submit VA Form 9, “Appeal to Board of Veterans’ Affairs,” and the agency never certifies it.
In contrast, a VA disability claim is final if:
- You don’t file a Notice of Disagreement after receiving a disability rating you wish to challenge.
- You don’t file VA Form 9, “Appeal to Board of Veterans’ Affairs,” within 60 days of receiving a decision with which you disagree.
- You don’t appeal an unfavorable board decision to the U.S. Court of Appeals for Veterans Claims within 120 days of receiving the decision.
Asserting Your Rights With Sean Kendall, Attorney at Law
Legal decisions like Ingram v. Nicholson could give you a second chance to obtain the benefits you’ve earned—but only if you’re proactive, and only if you get help when you need it. Sean Kendall has spent decades fighting for the rights of Veterans. Our highly experienced legal team will help you file an initial claim, appeal an adverse determination, or challenge an unclear decision in the following ways.
Reviewing the Status of Your Claim
Our team helps you review and analyze the decision received from the VA to determine whether your request is still pending. Even if your decision looks like a rejection, there’s a chance the VA may have overlooked a critical component of your application.
Filing an Appeal
If you recently filed your claim, we could help you stage an appeal. This typically entails:
- Responding to a decision promptly and with a formal Notice of Agreement.
- Reviewing the VA’s Statement of Case and drafting a response that challenges its conclusions.
- Preparing to present arguments before a Board of Veterans Appeals.
- Requesting a hearing with a Veterans Law Judge.
Sean Kendall has a proven track record of success in VA appeals—even when it comes to claims that officials don’t want to hear. In one recent case, our team helped a Veteran work around filing requirements by demonstrating that the Department of Veterans Affairs had failed to properly date its own letters.
Reopening Your Case
Depending on whether your case is still pending or final, you may be able to employ different strategies to ensure that it is reopened. Our team helps you:
- Understand timeframes for standard appeals versus legacy appeals.
- Reopen a claim even after a final decision is made.
- Challenge an erroneous or otherwise flawed Board decision.
- File a supplemental claim after receiving an adverse final decision.
Ensuring You Have the Right Evidence Ready
You probably can’t know what form your case will take until after you’ve scheduled your free initial consultation with a Veterans law attorney. However, your claim’s outcome is likely contingent on the quality—and quantity—of your supporting evidence. This could include, but isn’t limited to:
- Your service records
- Your medical history, doctor’s notes, and physician testimony
- “Buddy letters” from friends, relatives, or former colleagues
- Legal arguments grounded in the precedent established by Ingram v. Nicholson or other important VA court cases
You don’t have to take your chances with benefits you’ve already earned. Send Sean Kendall a message today to schedule your free consultation and learn how to keep your claim from wavering.