VA disability is one of the most well-known benefits but is also one of the least understood due to its complexity and the subjectivity involved.
Contrary to popular belief, the VA does have a duty to assist the veteran in his claim. This includes many things, but it essentially requires the VA to help you obtain evidence to prove your claim. This includes providing examinations at no charge. It does not mean that they have to agree with your position or spend time or manpower on frivolous disability claims. This duty exists through all claims and appeals except in two conditions discussed later.
Outside of those two cases, this is not an adversarial process. It can often feel like it. To get so far into the process where the duty to assist vanishes can take years. The best way to avoid a long claim process is to do your best to document everything from the beginning.
Your first step should be to see a Veteran’s Service Officer (VSO) to discuss concerns and go over your records. Your service and medical evidence and any relevant lay evidence are going to win or lose your case. The more relevant medical evidence that you submit, the higher your odds of getting a favorable decision. That also lowers your odds of having an extremely protracted fight at the various appeal levels. Spending a month or two getting your ducks in a row might just save you years of aggravation.
Disability Claims
There are basically two types of disability claims: a new disability and a claim for an increase in an existing disability. A new claim can be your first claim or if you feel you now qualify for disability benefits of a different issue. The steps involved are about the same except for a new disability claim. The VA has to first determine if it is service-connected or not.
Before we begin, it should be noted that a vet cannot have a dishonorable discharge. A less than honorable discharge may be okay, depending on the circumstances. Honorable discharges are good, of course, unless said disability was caused by misconduct.
The first step is to determine that a disability exists. It has to be chronic and disabling and on the list of recognized disabilities. If it isn’t explicitly listed, you still could get it rated if it is closely related to a recognized disability. It also has to be connected to your service. This is by far the most important part of the claims process and the most critical. If there is no service connection, there are no benefits for it.
There are three methods of connecting a disability to your service. The first is the primary connection and is fairly straightforward. It is an injury or illness that occurred during service and is an ongoing disability. Probably the best way to establish this is through a medical review board that leads to medical retirement or discharge, but that is not required. Military treatment records work also. With an exception in the paragraph below, no treatment records mean that your odds are long but not necessarily impossible.
You will also need a nexus. This is a link to an in-service event that can be traced to your current issues. A doctor will need to say that it is at least likely as not (50% or greater probability) that said disability is related to your service, based on evidence. The very best nexus is continuing treatment records from military doctors to civilians (VA or private).
The second method is the secondary connection. That is a separate issue caused by a service-connected disability or its treatment. If a medication caused tinnitus or diabetes, for example.
The last method of connection is presumptive disabilities (38 CFR 3.307 – 3.309). These cover several things and may have time limits. The first is a list of disabilities that manifest within one year of separation from active duty. These are presumed to be service-connected. There are other presumptive disabilities, such as Agent Orange exposure. If you were at Camp Lejeune at one time or another over several decades and have an ongoing illness that has been recognized as likely caused by contaminated water. You need proof that you were in the affected area during the timeframe authorized and that you have one of the disabilities listed. With a presumptive claim, you do not need to establish that your conditions are at least 50% or greater likelihood that your service caused or aggravated your issues. If you have a disability not listed and you were there, you will have to find another route to service connection.
National Guard and Reserve service do not confer 24/7 on duty presumption, so only disabling issues incurred while on drill or deployment will likely count for VA purposes.
Disability Ratings
Once service-connected, the method used to connect is irrelevant to the rating. It will be rated by the schedule of ratings in the regulations. The schedule of ratings also lists which disabilities are ratable. If you don’t fit perfectly in a rating, the VA can choose what most closely resembles your disability.
The bad part is that the ratings are often subjective. One rater might rate you 50% for a single disability, and another rater could say 70%. Neither may get dinged for being wrong. This is because both could be valid depending on how the evidence is interpreted. This is important to understand when it comes time to appeal. The rater is graded on how many claims are worked and completed and their accuracy and can lose their job with low production points and quality ratings.
Ratings are generally between 0% and 100% with 10% increases, but most specific ratings will have different gradients, and many have a maximum rating at less than 100%. Migraine headaches have a max rating of 50%, even though they can often be 100% disabling. Ratings are often grouped together and treated as a single disability. The most obvious one is mental health disorders. Whether you have generalized anxiety disorder or PTSD the rating is all about symptoms and how it affects your daily life. You can only be rated for a single mental health diagnosis. The symptoms of all mental diagnoses can be rolled into the rating. Typically, issues that a person is considered to be born with (such as personality disorders) are not ratable. Below is the schedule of ratings for mental health, as an example.
| 100% | Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name |
| 70% | Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. |
| 50% | Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. |
| 30% | Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). |
| 10% | Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. |
| 0% | A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. |
You might be thinking that a person could fit multiple ratings, and you would be right. This is where subjectivity is involved. I have a 100% mental health rating and have 3 100% items, 3 70%, 3 50%, and 2 30% listed in my award letter. I am not sure, but I think what put me at 100% was that I applied for the unemployability rating (discussed later). The mental health rating is the only other rating where the ability to work comes into play.
My examiner opined that I have reduced occupational and social impairment, which is the 50% criteria. It is much easier to give someone a 100% rating than unemployment because they have to monitor the latter. I would love to find out the actual reason for my 100% MH rating, but that could open me up to review, and my curiosity isn’t worth the risk of getting a reduction.
Once rated, you are given a combined rating. This determines your disability compensation, medical, and many other benefits. If you only have 1 disability rated, it is very simple. You are rated what that disability is rated at. If you have one or more 100% ratings, you have a combined 100%. If you have two or more and no 100%, it gets a little more complicated. It is often called ‘VA Math,’ but it is a system used around the world. It is really called the ‘whole man system.’ It starts out saying you are 100% abled and combine ratings from there. I will use my old ratings as an example. I had 50% mental health, 50% migraines, and 20% seizure disorder, and a few 0% ratings but aren’t a factor here. Take the highest first and work down. I am now considered 50% abled and 50% disabled after the first 50%. Every rating after this takes a proportional piece of the abled pie. The second 50% rating is taken out of the 50% abled for a value of 25%. This leaves me 75% disabled. If that were all my ratings, it would be rounded to the nearest 10th value, which would be 80%. I still have 20% left, so 20% of 25% is 5% which brings me to 80%.
In my case, the 20% rating was worthless for compensation which is the annoying part of the whole man system. That is ironic since a seizure knocks me down for months, but it didn’t increase my compensation. What did count is that I really was at 80%, not 75%. That is significant if I had an additional disability.
If you were at 85% disabled, you would need a single additional disability at 70%(or multiple disabilities that combine to near 70%) or higher to get to 100%. If you had a 90% rating, you need another 50% disability, so that you can qualify for the far more beneficial 100% rating.
Four 50% ratings will get you to 94% rounded down to 90%, but an additional 10% rating will give you 95%. The easiest way to figure this out is to use the VA’s table.
To further complicate matters, there are bilateral factors. These are disabilities on paired limbs or muscles. This adds another 10%. The bilateral disabilities are combined first from highest to lowest, then 10% is combined, and then the rest of your disabilities are combined as described.
A 0% rating may be disheartening since there is no compensation attached to a single 0% rating. There are several benefits to a 0% rating, including free care for those ratings and a 10 point hiring preference for most federal jobs. The most important advantage of a 0% rating is that your disability was service-connected. That is the most difficult part of the disability claim, and it is done. You can appeal the 0% or later on put in for an increase if your condition worsens and you don’t have the service connection hurdle in your way.
If you have two or more 0% ratings and no other compensable ratings, you can get a 10% combined rating. That occurs when you can show that those disabilities negatively impact your performance at your job.
Any incorrect or misleading information is unintentional. Please comment with corrections, any important omissions and good citation for it.
