Meandering Musings

Everything not fit to publish

VA Disability Primer - Part Deux

| Comments

Steps in a claim

The first step in a claim is to talk to a VSO or VA accredited lawyer and get an evaluation to see where you stand. A VSO is always free. Links to the right for veteran organizations have VSO search tools. A lawyer cannot charge you until you file an appeal (Notice of Disagreement) so it is not typical to hire one unless you get to the point of appeal. Either one is up to you, but I would be suspicious of someone who has a monetary motivation for your initial claim to be denied or lowballed.

If you go through a lawyer or VSO you will sign a power of attorney so they can act on your behalf. This includes filling out the form and submitting it to VA. You can do it by yourself by going to this site and downloading the application and mailing it in or use E-Benefits. E-Benefits also gives you access to your disability and payment information and to various documents including the VA home loan certificate and proof of ratings.

When applying there are two basic routes: standard and fully developed claim (FDQ). A fully developed claim should contain everything needed for the VA to rate you. If you have private medical records, submit those. If you are applying for employability, make sure you have the TDIU application (VA Form 21-8940) filled out and if possible the forms from your last five years of employment. Note that does not mean employment in the past five years. These are forms that your employer(s) have to fill out. For some reason, my VSO didn’t know that and I got kicked off the FDC process. If you are filing for unemployment without the separate required form, the VA will deny the claim on those grounds. If you can’t get the forms from your employer, it shouldn’t hurt your chances.

When you submit records don’t overwhelm the rater. Don’t submit 1000 pages without leaving breadcrumbs for them. They have a very limited time to review cases so do everything in your power to make their job as easy as possible. If pertinent information is buried, the odds of them missing it and causing a lengthy appeal increases. You are your best advocate. Building your case takes time and typically the effective date of any award is the application date. To get around this the VA has a program called Intent to File. You can file this on E-Benefits, by mail or phone and is good for up to a year so it can preserve your effective date which is important for various reasons including back pay.

You could also include disability benefits questionnaire’s (DBQ). These are forms that your doctor can fill out. The only exception I am aware of is that if this is a new claim for PTSD, the VA will not accept it. Note that VA doctors typically will not fill these out, these are the same forms evaluators use and the VA hires doctors to do nothing but disability compensation. If this is a new claim make sure you give your service medical records to them for review. They need to review your medical records for their opinion on service connection to hold weight. Getting these forms filled out might make your claim go faster.

Often, but not always you will be sent for one or more Compensation and Pension Exams(C&P). These are exams to help determine service connection and level of disability. Even if you fill out DBQ’s, you might get sent for more exams. These are either in the C&P department of your local VA hospital or through private companies that VA contracts with such as VES and QTC. These companies are often large military industrial members such as Lockheed Martin (QTC). The doctors that do them for VA are hired to do only those exams. The ones from private companies are typically contractors. I have had them from both VA and QTC and they were equally good and useful to my claims.

The two most important things with C&P exams are to not miss it and be honest. Missing an exam can result in a denial. If you can’t make it, reschedule. Being honest is critical. If you exaggerate your symptoms it can result in criminal fraud charges. It happens more than you might think. If you under report your symptoms it can result in a lower rating. If they are testing range of motion, you don’t have to go past the point of where it hurts but don’t say it hurts if it does not. That should be obvious of course. In a psych exam, which is totally subjective it is tougher and can be a little nerve-wracking. Write notes to make sure you cover everything and give them a really good idea about your bad, good and average days and the frequency of them. The notes helped me immensely because my memory is bad. They typically last an hour but my last psych C&P lasted about 3 hours which was definitely to my advantage. She could observe how I devolved over three hours of trying to maintain focus.

Once all the forms are filled out and exams completed, all there is left to do is wait for your letter in the mail. Once you get your letter, it is official. If E-Benefits tells you your new rating and you haven’t gotten your letter don’t believe it. That site is often incorrect. Once that happens, any back pay will be deposited in your account (make sure the VA has your direct deposit information when you apply) and your new monthly payments will start the following month. Typically, back pay goes back to the date of application or intent to file. To be more specific, back pay goes from the first of the month following your effective date. If your effective date is January 15 2017, the back pay starts February 1 2017. The rule for your effective date is: The date of application or the date entitlement arose, whichever is later. That could mean that the effective date could be later than your application date (such as the date of the C&P exam) but that is rare from what I understand.

You may also get a note in your letter about future exams. The VA can reevaluate you at a later date and unless there is evidence it is not likely to improve, you will likely get scheduled for another C&P 2-5 years down the road. If you are not scheduled for future exams your disability is called static. After my first claim, I was scheduled for another review 2 years later and got that along with an increase in my rating. That was 1999. I was scheduled for another review in 2002 and that never happened until I explicitly put in a claim in 2015. So there is no telling what will happen. For this reason it is critical that you put in change of address with VBA (and annoyingly VHA separately) whenever you move. If you don’t do that and miss an appointment, you might lose your rating.

Appeals

If you disagree with the decision there is information in your letter and a form to appeal. It is called Notice of Disagreement (NOD). The appeal process has several paths and using one does not take away the other paths in most cases. The rarest is the clear and unmistakable error (CUE). It is rarely used and only covers very obvious errors of fact or law. Differences of opinion (50% vs. 70% for example) are not a CUE. The second is the reconsideration. These happen when you have new and material evidence that was not previously considered. You can’t file for this on existing evidence. An important item to note is that you have one year to file your NOD. If you file for a reconsideration, the clock does not stop and if you haven’t filed a NOD, you lose the right to appeal and lose your effective date. If you have a month or two left to appeal and your reconsideration isn’t done, file your NOD. If your reconsideration comes out well for you, you can always withdraw your appeal.

The NOD has two paths: DRO Review and Board of Veteran’s Appeals (BVA). The former is much faster and if you still disagree. A Decision Review Officer (DRO) can handle your appeal “De Novo”, which means they will look over your case as if it were a new case. You can also have a hearing officer look over your case but is not treated as a new case.

BVA is the much slower path and is in front of a judge. The VA’s duty to assist still applies here. It is not required to get a lawyer but it is the first time in the process where it makes sense. BVA can re-adjudicate your case and if needed remand back to the VA for rating. Typically, the last stop is the US Court of Appeals for Veteran’s Claims (CACV). They will not re-adjudicate your case. They are there to ensure you received due process and all rules and regulations were followed. Sometimes, the rulings have huge effects for the veteran, such as the relatively recent ruling that allowed TDIU recipients to receive additional payments when otherwise qualifying for it. Usually, they only apply to the vet in the case unless it is heard in front of a panel of judges. CACV definitely requires a lawyer. Unlike BVA, the VA will send lawyers to CACV to argue their case and the duty to assist does not apply here.

There is so much more to appeals than I know about. I have been fortunate and have always gotten what I applied for (and sometimes more) so I don’t have any personal experience. Looking at my three claims, they all went well because I had lots of evidence in the form of medical records and in the case of my first two claims an excellent VSO. Not only is treatment important to help you with your disabilities, it is critical in making a solid case. I have been to a lot of sites and the one with the most consistently useful information is Veteran’s Benefits Network. It is not perfect of course, but most misinformation is quickly corrected. Someone will be able to help. The link is in the sidebar.

Effective date

I mentioned effective dates earlier in regard to back pay. It is also important in several other areas. If you were getting care at the VA for disabilities that are now service connected and had to pay for it you may be eligible for a refund of those costs.

Other important things to note about effective dates are the so-called 5, 10 and 20 year rules.

5-year rule - After holding a rating for 5 years the VA must show sustained improvement to lower a rating.

10-year rule - After holding a rating for 10 years they cannot remove the service connection designation. That means that it will always be rated, even if at 0%.

20-year rule - After holding a rating for 20 years it cannot be lowered.

These do not apply in cases where fraud was proven.

The 20-year rule can be a little tricky. Say you had a 50% rating for whatever on February 1, 1997. On September 1, 2010 it was raised to 90% but on June 1 2015 it was lowered to 70%. February 1, 2017, the rating cannot be dropped below 50%. But since the 90% was reduced, that effective date no longer applies but the 70% is locked in June 1, 2035 assuming it is not further reduced.

Other benefits from your state, the VA and federal government may also be important to your effective date.

Disability Benefits

An important benefit is that your compensation is tax-free.

There are many benefits besides compensation to having a disability rating. Some are from your state, such as free license plate and registration, reduced or no property taxes, fishing or hunting licenses, etc. Here is a link to each states benefits. There are also discounts at federal parks.

0%+ ratings qualify you for the VA home loan program with guarantee fee exemption. You may also qualify for vocational rehab; which is an exceptional program and the 10 point federal civil service preference among others. Your state or local municipalities may also have a civil service preference.

Once you have a 30% or higher combined rating, you get extra payments for dependents.

100% qualifies you for commissary, exchange and recreation benefits on military bases. 100% does not qualify for space-available flights unfortunately.

Also at 100%, extra payment called Special Monthly Compensation (SMC) might come into play here. There are various levels of SMC and most require a single disability rated at 100%. The most common and lowest paying is SMC-S, which requires that the veteran is housebound or if any additional disabilities combine to 60%. It comes to an additional $350 or so. With the exception of SMC-K(loss of use of extremities, eyes, ears or muscle groups), you can only have one SMC payment as it includes the 100% rate but if you qualify for more you get the highest payment.

The most important benefits are health benefits. All rated disabilities are treated for free and if you have a 50% or greater rating, you can get all care for free, except dental. VA health care is not insurance but having access to any non-dental care qualifies as meeting the minimum requirement in the ACA law. This benefit includes authorized care outside the VA. At 100% you also qualify for dental care. Of course, if you have a dental rating, then you already qualify for dental.

There are also some benefits for survivors if a service connected disability causes your death.

At 100% and your disabilities are considered static(called permanent(static) and total(100%) - P&T), your spouse and children under 26 qualify for educational assistance.

Here is a listing of benefits.

Unemployability

Sometimes a rating doesn’t adequately describe how it is affecting you, especially when it prevents your employment. If you are unable to follow substantially gainful employment and have a single rating of 60% or more(but less than 100%) or less two or more ratings that combine to 70% - 90% and one is at least 40%, you can apply for Individual Unemployability (TDIU). Note that this does not mean you can’t hold any job. You could work 10 hours a week as a Wal-Mart greeter and that could be ruled to be marginal employment. The basic gist is that you can’t do anything more than marginal employment. If you are currently unemployed but could work when you get hired, you will not qualify for this program.

Once you get approved for this, they have yearly income audits. When you feel you are ready to go back to work and find a job tell VA and you get a trial period of a year.

Your rating stays at where it is (unless there is evidence that an increase is warranted when you apply) but you get paid at the 100% rate which is substantially more than even the 90% rate. You may also qualify for SMC-S.

Asking for an Increase

If you feel that your issues are worse than what you are rated for you can apply for an increase. The method is the same as a new claim except you don’t have to worry about service connection. You still need medical evidence and if you haven’t had continuous treatment, your claim will be harder to prove.

An important thing to keep in mind is when you have the VA reopen your file, everything can be reviewed. The rater is responsible for everything in your file so they will likely look at all ratings even if you only asked for an increase for one of them. The possible results of an increase claim are that it does get increased or it stays the same or it can be decreased. That is a risk you need to be aware of when you file.

Phew!

The last two entries were a very quick and dirty overview of the disability system. Hopefully, your head is not spinning. I will probably write more about these topics as there are a lot of details left to be covered.

Any incorrect or misleading information is unintentional. Please comment with corrections, any important omissions and good citation for it.

Comments