Gardberg & Kemmerly, P.C. Attorneys at Law

REOPENING A PREVIOUSLY DENIED CLAIM FOR VA DISABILITY BENEFITS

Many veterans file claims for veterans disability benefits and are denied by the VA. If the veteran disagrees with the VA's decision regarding his or her claim for service connection the Veteran must file a Notice of Disagreement (NOD) within one year. If the veteran does not timely file an NOD, the claim is considered closed and final.

A veteran, however, can file to reopen a final claim if he or she can present new and material evidence. New and material evidence means evidence that:

(1) was not previously before the VA decisionmakers and

(2) relates to an unestablished fact necessary to prove the claim.

To be considered new and material evidence, the evidence must address the specific reasons for the denial of veterans benefits listed in the final denial issued by the VA.

For example, a veteran files a claim for service connection for post traumatic stress disorder (PTSD) on January 1, 2010. The VA subsequently denies veteran's claim for service connection by a rating decision dated January 1, 2011, stating that there is no medical nexus, or link, between the veteran's claimed condition of PTSD and his military service. The veteran then has one year from the date of the rating decision to file a notice of disagreement or the claim will be considered final and closed. Assume the veteran fails to timely file a notice of disagreement, but continues to get mental health treatment for PTSD over the next two years. Eventually, veteran has his treating psychologist provide an opinion, dated May 1, 2013, that veteran's PTSD is more likely than not related to his military service.

The psychologist's opinion would be considered new and material evidence that could be used to reopen veteran's previously denied claim. First, the evidence was not considered by the VA when it issued its initial rating decision on January 1, 2011, and the opinion is dated after the initial VA rating decision. Second, the evidence relates to an unestablished fact necessary to prove the claim in that the VA rating decision cited a lack of a medical nexus opinion for its denial of service connection and the psychologist's opinion provides that veteran's claimed PTSD was in fact caused by military service.

If you are a veteran who needs help navigating the VA disability claims process, contact the experienced veterans' disability attorneys at Gardberg & Kemmerly, P.C. today for a free case evaluation. Gardberg & Kemmerly, P.C. service veterans across the Gulf Coast, including, Alabama, Florida, Louisiana, and Mississippi. Call 251-343-1111 for a free consultation.

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