VA Disability Primer - Part Deux

Steps in a claim

The first step in a disability 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 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 the 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 various documents, including the VA home loan certificate and proof of ratings.

When applying, there are two 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, if applicable, 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 unemployability 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, try not to overwhelm the rater. Don’t submit 1000 pages without leaving breadcrumbs for them. They have 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 by phone, and is valid for up to a year. This way, you can preserve your effective date while building your case. This is important for various reasons, including back pay.

You could also include a disability benefits questionnaire (DBQ). These are forms that your doctor can fill out. The only exception that I am aware of is that if this is a new claim for PTSD, the VA will not accept a DBQ. Note that VA doctors that treat you typically will not fill these out as these are the same forms evaluators use. The VA hires doctors to do nothing but disability compensation examinations. 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 if there are questions that the rater needs to have answered to complete your claim.

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 military-industrial companies, 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 exams from both VA and QTC, and they were equally good and helped my claims.

The two most important things with C&P exams are to not miss them and be honest. Missing an exam can result in a denial of your claim. 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 your 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 can be more a little nerve-wracking. Write notes beforehand to make sure that you cover everything you want. It is vital that you give them a good idea about your bad and good and average days and the frequency of each. The notes helped me immensely because my memory is not good. They typically last an hour, but my last psych C&P lasted about 3 hours. That was definitely to my advantage. She could observe how I devolved over three hours of trying to maintain focus.

Once you have all the forms filled out and the exams are completed, kick back and relax. All there is left to do is to wait for your letter in the mail. This could take a few weeks or months. 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). 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.

If it is taking a long time, you can ask your VSO to check the system. Don’t try to get your congress person to speed up the process. Doing that will actually slow down your claim. The rater has to take your file out of the pile for a manager to review. Then they submit a response to your representative. Your file then gets put back in the bottom of the raters todo file. Congress critters often just get in the way.

You may also get a note in your letter about future exams. The VA can reevaluate your disabilities. 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. More colloquially, you will hear the term permanent. Static is the word used by VA. Permanent is what vets often use. They mean the same thing.

Even if your claim was ruled static, there are cases in which you can be reevaluated. If you put in another disability claim, all of your disabilities can be reviewed. That is something to keep in mind.

After my first claim, I was scheduled for another review 2 years later. I received an increase in my rating after the exam. That was 1999. I was scheduled for another disability 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 a 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.


If you disagree with the decision, there is information in your letter and a form to appeal. It is called a Notice of Disagreement (NOD). The appeal process has several paths, and using one does not take away the others in most cases.

The rarest is the clear and unmistakable error (CUE). It is rarely used and only covers obvious errors of fact or law. Differences of opinion (50% vs. 70%, for example) are not a CUE.

The second is a review, sometimes called 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 note is that you have one year to file your NOD. If you file for 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 with the outcome, you can still go to BVA. 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. This might mean more exams. You can also have a hearing officer look over your claim, but it’s 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, the judge can remand back to the VA for more exams, reapplying a rule, or issue a rating.

Typically, the last stop is the US Court of Appeals for Veterans Claims (CAVC). They will not re-adjudicate your case. They are there to ensure that you received due process and all laws and regulations were followed. Sometimes, the rulings have huge effects on all veterans, such as the relatively recent ruling that allowed TDIU recipients to receive additional payments when otherwise qualifying for it.

Usually, these rulings only apply to the individual vet unless the case is heard in front of a panel of judges. Even if a disability case is only heard in front of one judge, you can use the information from other vet’s cases to help frame your evidence. That is called “persuasive authority” in most courts. It just can’t be used as case law.

CAVC definitely requires a lawyer. Do not think you can go it alone here. Unlike BVA, the VA will send lawyers to CAVC to argue their case, and the duty to assist does not apply here. This is a “normal” court with an adversarial system. Do not think you can win your case against a seasoned VA attorney by yourself.

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 my medical records, and in the case of my first two claims, an excellent VSO. Not only is treatment helpful in assisting you to live better with your disabilities. It is also critical in making a solid case. 22 years of medical records say more than I could in 1000 C&P exams.

I have been to many vet disability websites. The one with the most consistently useful and correct information is Veterans Benefits Network. It is not perfect, but most misinformation is quickly corrected. Someone will be able to help, no matter where you are in the process. The link is on the helpful links page.

Effective date

I mentioned effective dates earlier regarding back pay. It is also important in several other areas.

If you are getting care at the VA for disabilities that are now service-connected and had to pay for those services, you may be eligible for a refund of those costs going back to the effective date.

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

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

The 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%.

The 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 the federal government may also use your effective date to determine benefits.

Disability Benefits

One valuable benefit is that your compensation is tax-free in the US.

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

0% or higher ratings qualify you for an exemption from the VA home loan funding fee.

You may also qualify for the vocational rehab program. This is an exceptional program that you should definitely apply for. It includes lots of evaluations, free tutors if needed, and free tuition, books, required supplies, parking permits, even mileage payments to and from school. It does have fairly strict requirements, and you have an advisor that you report to, but it is worth it. Whether you want to be an engineer, teacher, lawyer, or electrician, this is a great program to get you there.

There is the 10-point federal civil service preference among other benefits. Your state or local governments may also have a civil service veteran preference.

In most cases, you can work as much as you can. It works completely different from Social Security disability programs. If you complete VA vocational rehab and get a great-paying job, it will not affect your disability payments. There are two exceptions: An unemployability rating and a 100% mental health rating. Both are heavily dependant on your inability to hold down a job. 100% combined rating, with a 70% mental health rating and other disabilities? You can work as much as you can.

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. Edit: The law has changed. Space-available flights are now available to some disabled vets for domestic flights - with all the rules and headaches applying, of course.

If you are 100% or TDIU(See below) and have student loans, you can get them forgiven.

Also at 100%, an 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 special monthly compensation, and lowest-paying, is SMC-S. This requires that the veteran is housebound, or if any additional disabilities that are unrelated to your single 100% disability combine to 60% or more. It comes to an additional $350 or so a month. Except for 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. If you qualify for more than one SMC category, you get the highest payment.

The most important benefits are health benefits. All rated disabilities are treated for free. If you have a rating of 50% or higher, you can get all needed health care for free, except for 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 or emergency treatment outside the VA. At 100%, you also qualify for all necessary dental care. Of course, if you have a dental rating, then you already qualify for dental care.

The VA has paid for EEGs and other types of tests from private hospitals for me. As well as one hospitalization and two surgeries. Getting outside care from the VA is somewhat common, and typically not too frustrating.

It is important to remember it is not insurance and not following the rules can result in nasty bills from private health providers

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

At a 100% rating and your disabilities are static(permanent), your spouse and children under 26 qualify for educational assistance.

Here is a listing of benefits.


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, you might be able to qualify for the unemployability rating. You must have a single rating of 60% or more(but less than 100%). Or, two or more ratings that combine to 70% - 90%, and one is at least 40%. This program is called 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 or protected employment. If you are currently unemployed but could work when you get hired, you will not qualify for this program. Marginal employment and substantial gainful employment are not strictly defined, so caution and a discussion with a good VSO are in order.

Once you get approved for this, they put you through yearly income audits. When you feel that you are ready to go back to work. Notify VA about it, and you get a trial period of a year before you get your eligibility for TDIU reevaluated.

Your rating stays at where it is while on TDIU (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 the 90% rate. You may also qualify for SMC-S.

If you become employable, your rating returns to where it was before TDIU was granted. If your rating was reevaluated while on TDIU, it will return to the newer rating.

It should go without saying, don’t try to work under the table or not notify VA about your job. Penalties for VA disability fraud can be harsh.

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 that 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.

It is important to keep in mind that when you have the VA reopen your file, everything in that file 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 a claim for an increase are that it does get increased, or it stays the same, or it can be decreased.

That goes for existing disabilities that you did not put in for an increase.

That is a risk you need to be aware of when you file.


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 lots left to cover.

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

Edit 3/2020

Fully developed claim isn’t really a thing anymore. The process has been revamped and from what I read, it is, in typical fashion, causing chaos, complexity, and longer wait times. Hopefully the system gets worked out, and it will end up faster and more accurate - as I don’t know anything about the new application processes but the link to Veteran’s Benefit Network Forums will have very useful information, as will VSO’s.

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