Veterans Affairs Disability Claims

The Department of Veterans Affairs (VA) provides tax-free monthly disability and healthcare benefits to veterans with physical and mental service-related disabilities. A VA disability attorney can help you appeal your claim if you were denied. Those eligible include veterans who served on active duty, active duty for training, or inactive duty training who developed a medical condition, illness, or injury while serving in the military, or whose service made an existing condition worse.

You can claim disability benefits for injuries or illnesses that occurred before, during, or after service. If the claim is related to an injury or illness that occurred during service, the claimant must be able to link the claimed condition to his or her illness or injury. For a pre-service disability claim, it must be proven that the pre-existing condition worsened from serving. You may also file a claim for post-service disabilities related to active-duty service that appear after the end of your service.

Here are the steps involved in the VA disability claim process:

1. Claimant files a claim in paper form via mail or electronically
2. VA acknowledges the receipt of the filed claim within two weeks
3. A VA representative reviews the claim to determine if any additional information is needed.
4. VA may contact the claimant for or other appropriate sources to collect necessary information. Some claims may require the VA to conduct further medical examinations on the individual. This step is the longest.
5. Once all the necessary evidence is received, VA reviews the case, issues a final rating, and recommends a decision.
6. The appointed representative reviews the recommended decision and returns it to the VA.
7. VA makes a final determination and mails the claim decision to the claimant.
8. A claimant is allowed to appeal within a year if he or she is not satisfied with any part of the ruling.
9. A claimant may request a re-adjudication of the claim and provide any relevant additional evidence to support the claim.
10. Alternatively, the claimant may file a formal appeal through the following three paths: requesting a review by the Board of Veterans’ Appeals; requesting a review by a higher-level VA adjudicator; or filing a supplemental claim with new evidence.

Medical Evidence Required When Filing for VA Disability Benefits

A claimant can support his or her VA disability claim by providing medical records relating to the veteran’s claimed illnesses or injuries, or showing that the rated disability has worsened. This includes any treatment or medical evidence related to illness or injury, such as doctors’ reports, X-rays, and medical test results. The VA may schedule a claim exam with a VA provider or a VA contract provider to determine whether a claimant has a service-connected disability and, if so, to rate the disability.

Along with the medical records, the VA also accepts lay evidence, written testimony by the individual or someone who knows about the claimant’s condition or related events. Examples of such evidence include supporting statements from people who provide more information about the claimed condition, including how and when it occurred or how it worsened.

Employment evidence for disability benefits claims

A claimant can submit or permit VA to gather employment evidence, including his or her DD214 or other separation documents. The claimant is required to turn in the necessary evidence within a year from the date of receipt of the filed claim. Depending on the type of claim, the claimant may gather supporting documents themselves or ask for the VA’s assistance.

Lay evidence can be submitted in the form of the claimant’s written statement about his or her condition on a piece of paper or completed VA Form 21-4138. It can also be in the form of a completed VA Form 21-10210, which is a statement by a lay or witness (buddy statement).

Presumptive conditions

Some conditions are automatically assumed or presumed to occur from service. Current and former service members with presumptive conditions do not have to prove that their service caused the condition if they meet the requirements for the presumption. There are many presumed conditions that include:

• Some chronic long-lasting illnesses that appear within 1 year after discharge
• Illnesses caused by exposure to toxic chemicals and hazardous materials
• Illnesses caused by time spent by an individual as a prisoner of war (POW)

Conditions often covered by VA disability benefits include:

• Diagnosed chronic long-term back pain disability
• Breathing problems, lung condition, or lung disease
• Severe hearing loss
• Scar tissue
• Loss of range of motion
• Ulcers
• Cancers and other conditions caused by exposure to toxic chemicals
• Anxiety
• Depression
• Military sexual trauma (MST) related mental and physical health conditions
• Posttraumatic stress disorder (PTSD)
• Traumatic brain injury (TBI)

VA Disability Rating

The VA assigns disability ratings based on the severity of the claimant’s condition. The individual’s disability rating determines the amount he or she is paid each month. A rating may be done for a single condition or for multiple combined conditions. When an individual has multiple conditions, the VA uses a combined rating table, whereby the person’s efficiency is determined by ranking the conditions by severity. The rating is first determined by the highest individually rated condition, and then by less disabling conditions.

How does the combined ratings table work?

A veteran may have two service-connected disabilities, cancer and a back injury, rated at 50% and 40%, respectively. Normally, 40% plus 50% would equal 90%, but this veteran’s total disability rating is listed as 70%. Here is how the 70% was arrived at:

1. 100 represents a whole efficient person. VA subtracts the highest individually rated condition (cancer at 50%) from 100%. Thus, the veteran is initially considered 50% disabled by cancer and 50% efficient.
2. The veteran’s back injury is 40%, but no longer at 40% of the whole efficient person. Therefore, the back injury rating is calculated from the remaining efficient person.
3. 40% (back injury) of 50 (remaining efficient person) = 20%
4. So only 20% (for the back injury) is added to the first 50% (for the cancer)
5. 50% (cancer) + 20% (back injury) = 70% combined disability rating
6. It is also important to note that VA rounds the combined disability rating up to the nearest 10. In this case, the total disability is 70%.

Total Disability Based on Individual Unemployability (TDIU)

Unemployability directly boosts an individual’s financial benefits by increasing the monthly payout to the 100% disability rate, even if the combined medical rating is much lower. Total Disability Based on Individual Unemployability (TDIU) applies to veterans who cannot work due to military injuries, but whose individual medical ratings do not quite add up to a 100% scheduler rating. VA uses data from the Social Security Administration (SSA) to determine whether a claimant qualifies for IU benefits. They may also ask the veteran to verify his or her employment status. When a veteran is awarded unemployment, his or her disability ratings do not change, but the monthly compensation payment increases.

Requirements for total disability based on unemployability:

1. An individual cannot have a steady job or substantially gainful employment to support him or herself due to a service-connected disability.
2. The individual must have at least one service-connected disability rated at 60% or more, or have more than one service-connected disability, with at least one rated at least 40% and a combined rating of at least 70%.
3. In certain circumstances, VA may award TDIU on lower ratings.

A claimant awarded a 100% VA disability rating receives maximum financial compensation and access to additional benefits, which include:

1. Monthly compensation, which varies depending on the veteran’s dependents
2. Full access to healthcare benefits without copayments.
3. Education benefits for dependents through the relevant VA programs.
4. Access to housing grants to modify a home for accessibility needs.
5. Additional state-specific benefits such as property tax exemptions, free tuition for dependents, and discounted vehicle registration.

Increased disability claim

An individual can file a claim for more compensation if a disability that has already been determined to be service-connected has gotten worse. These claims are filed by submitting current medical evidence that shows that the individual’s covered disability has worsened. Necessary medical evidence may include one or both of the following:

1. Medical records or medical opinions from health care professionals
2. Lay evidence or buddy statement (VA Form 21-10210)

The monthly disability payments may also be increased for a claimant with a combined disability rating of 30% or greater, if the claimant has a spouse, child, or dependent parent. Or if the claimant’s spouse has a serious disability.

VA may, however, reduce a veteran’s monthly compensation if he or she receives military retirement pay, disability severance pay, or separation pay. The amount of benefits may also be affected if the claimant is convicted of a felony and incarcerated in a federal, state, or local facility for more than 60 days.

Clear and Unmistakable Error (CUE) Claim

A claimant can submit a request for the VA correct a Clear and Unmistakable Error (CUE) that the VA made in a previous decision, such as assigning the wrong rating or overlooking a condition. Unlike appeals and supplemental claims, a CUE claimant does not submit any new or updated evidence. Rather, the claimant identifies a specific factual or legal error that directly affected the outcome of the claim. The CUE claim decision is then made based on the evidence on which the decision was based. For a claim to qualify as a CUE, the error must be undeniable, and correcting it should increase benefits, through higher rating(s) and/or back pay. There is no statute of limitations for CUE claims.

Assistance appealing a VA benefits claim

An accredited attorney, claims agent, or a Veterans Service Organization (VSO) representative can help an eligible veteran file a claim or request a decision review. Accredited attorneys may charge fees to handle appeals only, after an initial denial is issued. According to 38 U.S.C. 5904(c)(1) (“[A] an attorney or a claims agent cannot charge a claimant or receive a fee or a gift from a claimant for assistance with preparing and filing an initial VA benefits claim. However, once a claimant receives an initial decision on a claim or claims, an attorney or a claims agent may charge a fee for assisting a claimant in seeking review of those claims 38 C.F.R. § 14.636(c).    Aside from legal fees, the claimant may have to pay other expenses related to the case, such as the cost of requesting medical records or hiring independent medical experts after the benefits are awarded.

Stephens and Stephens VA Disability attorney

Our VA disability attorney, Hugh Stephens, will assist you in appealing your denied disability claim. If your claim was denied, Hugh can help determine what evidence you could submit to support your claim during the appeals process. Contact Hugh Stephens LLP today for a free case evaluation at 716-208-3525. Filing a Veterans Affairs (VA) Disability Claim allows you to access crucial benefits to manage your illness and care for your family. You also get recognition for injuries or illnesses sustained or worsened during your military service.