What benefits do you get from a VA Disability claim?  How to File




 There are several major categories of VA benefits you can get when you file a VA Disability claim. One category is what is called the “Non-Service Connected Pension” which is available to extremely low-income veterans with disabilities.  Another category is education benefits. A third category is burial benefits. A fourth category is health care benefits.  And the category that is the focus of this post – and the Veterans Law Blog – is disability compensation for diseases, conditions, and disabilities that had their origin in military service.

 (Note that you do not need to show that military service CAUSED the disability – Congress long ago recognized that Veterans should get benefits even if a disease or disability that wasn’t caused BY service has its origins IN service.

  When it comes to a VA Disability claim for service connected disabilities, the primary benefit is financial. Once you prove to the VA that your current medical condition, disease or disability is related to your military service, they will assign a percentage of disability to that condition – using a complicated table and formulas.   That percentage of disability translates to a monthly dollar amount.  10% equals one amount….20% another amount… and so on and so forth.
 You can take a look at the current VA Disability claim compensation amounts online at the VA website.

  In addition to the basic rates of compensation mentioned above, you can get additional compensation for different scenarios that you raise in your VA Disability claim. Here are just a few:

-A Veteran who has certain percentage ratings for multiple disabilities can be eligible for additional Special Monthly Compensation.  This Special Monthly Compensation is also available to Veterans with certain disabilities that limit use of, or that resulted in the loss of, their extremities, their reproductive organs, organs of special sense (vision, etc).

 Veterans who are unable to work because of their service connected disabilities are entitled to a 100% total rating under a benefits program called Total Disability for Individual Unemployability, or TDIU.

  Veterans who need special aid and assistance with certain activities of daily living are entitled to an additional amount of compensation.

  And Veterans with a spouse or certain dependents are entitled to higher rates of compensation as well.

  There are certain vocational rehabilitation benefits available to Veterans with service-connected disabilities

   The total percent rating of your  service connected disabilities can play a role in the ease you get VA Healthcare or the Priority Group you are assigned to.
There are grants available for special adaptations to housing or automobiles that can grow out of your service connected disabilities.

  Survivors of Veterans are entitled to non-service connected survivors’ pensions – also limited to the lowest income survivors. These survivors are typically spouse or children, but it some cases include parents, and adult children who were permanently incapable of support before they turned 18.

  2. How do I file a VA Disability claim?
 It used to be that you could file a VA Disability claim for a service connected condition, disease or disability just by writing your claim on a piece of paper.
  This is no longer the case: filing a VA Disability claim has, like many other things in this world, become increasingly complicated.
Generally, filing a VA Disability claim requires a series of actions:

Step 1: Filing Phase
  You can first file an informal claim for benefits using the required VA Form.  If you formalize your claim within one year of that informal claim, the VA treats your informal claim as a formal claim.

  Step 2: Development Phase
  You can let the VA develop the evidence to support your claim – officially, they have a Duty to Assist the Veteran in this development of certain claims in limited situations.
  Or, you can be more proactive and develop your OWN claim, filing what is called a “Fully Developed Claim” for VA Benefits.  Theoretically, these claims are supposed to be decided more quickly, and for the most part, they are.  

Step 3: The Decision Phase
  In this phase, the VA will decide that there is possible merit to your VA Disability claim for service connection of one or more conditions. In most scenarios, they will send you to a C&P (Compensation & Pension) Examiner, who is, in theory, a medical doctor that will decide if your diagnosed condition is related to your military service and how bad your condition is, percentage-wise.
  The VA might, before or after that review, issue a denial or a grant of benefits that is supposed to address a few questions, what I call the ‘4 Pillars’ of a VA Claim:

Pillar 1: Are you eligible to file a VA Disability claim for compensation benefits
Pillar 2: is the medical condition – or conditions – in your VA Disability claim related to your military service? (This pillar is often called the “service connection” or “nexus” element of your VA Disability claim)
Pillar 3: To what degree does your disability impair your ability to seek and hold work, or engage in average daily living activiites? I call this pillar the “Impairment Rating”.
Pillar 4: What effective date are you entitled to (it is the effective date that governs how far back in the past your benefits will be retroactive).  Some Veterans call this “back-pay” or “past-due benefits”, and depending on how long you have been battling the VA, they can often go back decades.  A colleague of mine just won a case for a Veteran with service connection granted all the way back to the 1950s, for example.

Step 4: The Administrative Appeal Phase.
 If you are not satisfied with the VA’s decision in step 3, you can appeal. The first step in the administrative appeal is optional: you can seek a review of your VA Disability Claim by  a DRO (Decision  Review Officer), or you can “perfect your appeal” by filing several forms in a particular sequence and on a specific timeline, and you can get a review by a Veterans Law Judge (VLJ) at the  BVA (Board of Veterans Appeals).

  You can have that review in an in-person hearing in DC, a video conference hearing from a VA facility near you, or just submit a “brief” with “exhibits” and have the VLJ review your claim “on the record” before it.

  The BVA Judge can do one or more of the following – reverse, remand, grant, or any combination of those 3. By far, a combination of the 3 is most common. After that, these are the different things the BVA VLJ can do, in order of most to least common:

 -Remand the claim for development of more evidence;
-Deny 
-Grant your appeal (also known as reversing the VA Denial of your VA Disability claim).
VA Disability Claim

Step 5: The Court Appeal Phase
  If you are not satisfied with your BVA Decision, so long as it is not a remand, you can appeal to the Court of Appeals for Veterans Claims (aka, the “CAVC” or the “Veterans Court”).  That court only decides whether a BVA decision is proper
under the law, or properly applied law to fact….it cannot make factual findings.

  On average, between 70-80% of BVA Decisions contain a reversible or remandable legal error, so if you have a BVA Decision, please talk to an attorney with experience at the Veterans Court to discuss appealing it.

  Veterans do not pay out-of-pocket for lawyers at the CAVC…if the Veteran wins at the CAVC, the VA has to pay the lawyer out of IT’S pocket and NOT out of the Veteran’s past-due benefits.

  The CAVC can do any of the following: affirm (uphold) a BVA Decision, reverse (reject) a BVA decision, vacate (erase) a BVA decision, and remand (send a decision back to the BVA for repair of legal errors.  It can also combine 2 or more of those types of relief, depending on the case.

Step 6: Judicial Review phase
  If you are not satisfied with your CAVC Decision, you have a limited opportunity for judicial review at the Federal Circuit Court of Appeals (Fed Circuit) and then the  Supreme Court of the United States.  The Fed Circuit only has the ability to decide PURE questions of law…I’d be willing to bet that 80-90% of Fed Circuit decisions in Board cases are “Rule 36’s”….decisions without a written opinion, typically because the Court does not have jurisdiction over the appeal.

  Getting review at the Supreme Court is much harder, and appeals to both courts can be very expensive….filing fees alone at the Federal Circuit cost $500 and the cost of copying and filing the brief and the record of proceedings below costs between $2,000 and $5,000….so attorneys and Veterans tend to be more conservative about appeals to these courts.

Chris Attig-
www.veteranslawblog

Kazmierczak and Kazmierczak