Frequently Asked Questions about Veterans' Disability Benefits
The Application and Appeals Processes for Veterans' Disability Compensation
Hiring an Attorney
Overview of Veterans' Disability Compensation
Veterans' compensation is administered by the United States Department of Veterans Affairs (DVA or VA). Compensation is money paid to a veteran for an injury, disease or condition sustained or aggravated as the result of service in the US military, i.e., "service connected." It is not needs based, and it is not restricted to any particular period of service. VA compensation is paid in amounts based on the percentage of disability, in 10% increments from 10% to 100%. A 100% rating will be given to a veteran who has less than 100% disability, but who is unemployable because of service connected disabilities. Extremely disabled veterans may be paid at amounts higher than the 100% amount (known as Special Monthly Compensation).
For disability compensation purposes, the definition of a veteran is "a person who served in the active military, naval or air services, and who was discharged or released under conditions other than dishonorable." 38 U.S.C. § 101(2), 38 CFR § 3.1(d) 2006. This does not always mean people with honorable discharges. The VA also retains the right to determine that an individual's disability arose from a dishonorable service, thereby making the person ineligible for benefits, even though they have "good paper."
To qualify for veterans disability compensation, three things are necessary:
1) the veteran must have a current medically diagnosed disability,
2) the veteran must have had a precipitating disease, injury or event while serving in the military, and
3) the current disability must be related to the precipitating disease, injury or event during the veteran's time in service.
You can apply by filling out VA Form 21-526, Veterans Application for Compensation Or Pension. If you have any of the following material, attach it to your application:
- Dependency records (marriage & children's birth certificates)
- Medical evidence (doctor & hospital reports)
You can also apply on line through the VONAPP website.
For More Information Call Toll-Free 1-800-827-1000.
If a veteran has a condition that is service connected, and that service connected condition causes another condition to develop, then the second condition qualifies for service connection as well. For example, a veteran with an amputated foot may develop a back condition after years of walking awkwardly. If a doctor confirms that the back condition more likely than not arose as a result of the altered gait caused by the absent foot, then the back condition should be rated as a compensable disability.
Yes, substandard care at a VA hospital that causes an injury is also considered service connected.
A pension is money paid as the result of any total disability which renders the veteran in need of financial help. The disability need not be service connected. Pensions are needs-based and are substantially less in amount than compensation. Pensions are only available to veterans who served during a period of war. A pension is paid in a flat amount, less offsets for other income.
A rating decision is the decision issued by the RO. It will address service connection, percentage of disability and date of eligibility.
If the veteran wants to appeal a rating decision, he or she files a Notice of Disagreement (NOD) with the Regional Office.
When a Notice of Disagreement is filed with the RO, the RO will issue a Statement of the Case.
What is the Regional Office (RO)?
There are regional offices throughout the country. A veteran should file his claim with the Regional Office in his state. Rating decisions are made at the RO. If the veteran is not satisfied with the adjudication of the case, he or she can appeal it to the Board of Veterans Appeals.
What is the Board of Veterans Appeals (BVA)?
The BVA an administrative board that considers appeals of decisions rendered by the Department of Veterans Affairs. These appeals are decided by administrative law judges (ALJs). The ALJs at the BVA can consider new evidence that was not considered by the Regional Office (RO). If the veteran is not satisfied with the BVA decision, he or she can appeal it to the Court of Appeals for Veterans Claims.
What is the United States Court of Appeals for Veterans Claims (CAVC)?
The United States Court of Appeals for Veterans Claims (CAVC) is the federal court that hears appeals from the Board of Veterans Appeals (BVA) The court's seven judges are appointed by the president to fifteen-year terms. The court hears no new testimony, conducts no trials, and considers no new evidence. Instead, it considers the BVA decision, the administrative record that was before the VA, and briefs of the parties. Decisions issued by the CAVC may be appealed to the Court of Appeals for the Federal Circuit.
"The Secretary must make reasonable effort to assist claimant in obtaining evidence necessary to substantiate the claimants claim for benefits under a law administered by the secretary." 38 U.S.C. 5103 A. The standard by which the VA must apply this is slightly different depending on whether the records sought are federal records or not.
For federal records, the VA must make continued reasonable effort to try and obtain those records. The VA can stop pursuing the records only after they are reasonably sure the records the records do not exist or that a continue effort to get the records would be futile. 38 U.S.C. 5103 A (b)(3). Even if VA for the above reason stops attempting to get records they have an obligation to notify the claimant and inform the claimant of possible alternatives to those records.
For other than federal records, such as private doctor records, the VA must make reasonable efforts to get them. For the Veterans Administration to fulfill its obligation, there must be a record of its attempts to get the records in the file. If there is no record of its attempts, then the case should be remanded on appeal.
There must be a connection between the current medical condition and an in-service disease, injury or event.
You can not do much to speed up the VA side of the claim, but there are things that you can to make sure your case is ready for a fair decision.
- Get a copy of your C-file from the VA, see what is missing, and try and get medical records and other evidence in as soon as you can.
- If the VA request something from you, get it to them as quickly as possible. Do not rely on the VA to get everything. Be proactive and get what you need to win your case and send it in.
- Know what you have to prove to win your case and get the evidence you need to do so. If you do not understand the process and what you need to prove research it or get the help of a lawyer or representative.
- Do not miss deadlines.
- Do not miss VA medical exams.
- If you are at the BVA, and you submit new evidence, and you do not want your case to be sent back to RO, make sure to let them know by waiver not to send the evidence back to RO for review.
The amount of basic benefit paid ranges from $117 to over $3,000 per month, depending on your level of disability and number of dependents.
You may be paid additional amounts if:
- you have very severe disabilities or loss of limb(s)
- you have a spouse, child(ren), or dependent parent(s)
- you have a seriously disabled spouse
Click here to check out the current Veterans Disability Compensation rates.
Generally, no. There may be certain circumstances in which you would be entitled to both; however, this varies on a case to case basis.
Yes. The VA allows a veteran with a percentage up to 100% to continue to work. If the Veteran receives individual unemployability, however, he cannot continue to work.
Dependents may be entitled to Dependency and Indemnity Compensation (DIC) and/or Accrued Benefits. The DIC Compensation benefit is provided to the surviving spouse who has not remarried, dependent children, and certain dependent parents of veterans who died on active duty, as the result of a service connected disability, or had been permanently and totally disabled as the result of a service connected disability for at least ten years at the time death due to an unrelated cause. DVA form 534 is used for widows to apply for this benefit. Supporting documentation includes copies of marriage license to veteran, divorce decrees from any former spouses (for veteran and widow), and a copy of the veterans death certificate and appropriate medical records.
Accrued benefits are benefits to which a veteran was entitled on the date of death, but were not paid. Often, the benefits were not paid as the result of a claim that was pending but never finally adjudicated due to the death of the veteran. An accrued benefit decision is based on existing ratings or decisions, or evidence on file on the date of death.
The Social Security system is different from the VA system in that there are no percentages of disability. While the system that exists for vets allows the veterans administration to conclude that a vet is 40% disabled and then receive benefits based on that determination (and potentially have that percentage upgraded over time to a full 100% rating), in the social security system it is all or nothing .
Yes. If you have been declared disabled by the Social Security Administration and are receiving disability insurance benefits based on your earnings record, you can received veterans' compensation benefits at the same time. You will probably not be eligible for both Supplemental Security Income and compensation benefits because the amount of your compensation benefits will probably disqualify you for Supplemental Security Income.
The Application and Appeals Processes for Veterans' Disability Compensation
1. A Claim Must be Filed. The veteran should file a claim for benefits with the regional VA office. In North Carolina, the regional office is located in Winston-Salem and can be reached toll-free at 800-827-1000.
Practically any expression by a veteran that he or she might be entitled to benefits should be treated as an informal claim, triggering a response from the VA, but a formal written claim should be filed within a year of the informal claim. A claim may be for an original determination of service connection or an increased rating for an existing service connected condition. The VA has a duty to "determine all potential claims raised by the evidence, applying all relevant laws and regulations."
2. Duty to Assist. Once it is determined that the claimant is entitled to make a claim, the VA has the Duty to Assist. This means that they have to get the veteran's service medical records. If the issue is one of current medical condition, the VA must give the Vet a physical exam. The exam must result in a readable report which follows certain VA guidelines and renders a medical conclusion. The VA must also attempt to obtain any private or other medical records of which the Vet makes them aware. The veteran is free to submit his own medical records, reports and opinions in support of his or her claim.
3. The Rating Decision. Once all the necessary materials have been accumulated, the claim is "adjudicated." This means that rating officers in the VA Regional Office write a Rating Decision, discussing the applicable law and facts and rendering a decision on the claim. A favorable decision must determine three issues: service connection, percentage of disability, and effective date of eligibility. All of these issues may be appealed.
4. Notice and The Award Letter. Whether the claim is granted or denied, the veteran must be notified by letter. If the claim is granted, an award letter is sent to the Vet outlining the percentage of disability, and the effective date of the claim award. Another letter is sent later stating how much money the veteran is owed. A rating decision must contain a notice advising the Vet of his or her appeal rights.
5. Retroactive benefits, or" Effective Date." The general rule regarding retroactivity of claims payments is that the veteran is entitled to payments retroactive to the date of his or her most recent claim. If the claim was filed within a year of the veteran's discharge from service, the effective date will be the discharge date.
1. Notice of Disagreement (NOD). If the veteran is unhappy with the Rating Decision, he or she may file a Notice of Disagreement (NOD) with the Regional Office. The veteran has one year from the rating decision to file a NOD. Following the NOD, the VA may offer the claimant another review of the claim by a Decision Review Officer (DRO).
2. Request for Hearing. The veteran has a right to request a hearing in front of a hearing officer. The hearing is recorded and transcribed. If any new evidence is received at that time, the new evidence must be considered in any final decision.
3. The Statement of the Case. Once the VA Regional Office has received an NOD, it has the obligation to send the veteran a Statement of the Case (SOC). There is no specified time within which a SOC has to be written, but when it is written, it must be sent to the veteran. The veteran has to file a formal appeal 60 days from the date on the cover letter to the SOC, or one year from the date of the original rating decision, whichever is later. The Statement of the Case must include a discussion of any evidence that has been submitted since the rating decision was issued. If additional evidence becomes available after the Statement of the Case, a Supplemental Statement of the Case is required.
4. Submission of Additional Evidence & Rating Finality. If the veteran submits additional evidence which places the claim in a new light, that new evidence must be considered by the VA, and a new adjudication must be issued. If the additional evidence does not come in within one year, the rating decision becomes "final." After that, the veteran can still "re-open" his or her claim, but re-opening must be based on the submission of "new and material" evidence.
5. The Formal or Substantive Appeal. A VA Form 9, or Substantive Appeal, must be filed as the final step toward moving the case out of the RO and to the Board of Veterans Appeals (BVA). It should identify what the claimant is appealing, and request a BVA hearing, if desired.
After the Regional Office receives a VA Form 9, it is supposed to "certify" the appeal and notify the BVA that there is an appeal so the BVA can docket the case. Shortly before the BVA decides the case, it sends a last letter to the claimant asking for additional argument or evidence.
The BVA may order its own independent medical opinion if deemed necessary, but it must also give the veteran an opportunity to review, comment upon it, and submit responsive evidence. While a case is in appeal status, the veteran or the VA may come across more evidence material to the claim. That evidence may be submitted and considered even though the case is on appeal. The Regional Office must then issue a Supplemental Statement of the Case (SSOC), re-adjudicating the claim with the new evidence. The veteran can also waive the right to have the case sent back to the RO.
If the veteran requests it, the BVA will provide a personal hearing prior to deciding the claim. The personal hearing can be done by a "travel board" at the RO, it may be done by a video feed, or it can be done personally in Washington DC. The veteran can be represented or can appear alone. Witnesses can testify. Additional documents, including affidavits, can be submitted.
Eventually, the BVA issues a "Decision," which recites applicable laws and regulations, lists the evidence that it considered, offers Reasons and Bases for its decision, and renders a conclusion on the claim. The BVA may deny the claim, remand the claim for further development, or grant the claim either in whole or in part. If the BVA rules in favor of the veteran, the case must be sent back to the RO for calculation and payment of benefits. If the veteran is not satisfied with the BVA decision, she may appeal to the Court of Appeals for Veterans Claims (CAVC). The veteran has 120 days from the date of the BVA decision to file the appeal.
If the veteran is not satisfied with the BVA decision, he may appeal to the Court of Appeals for Veterans Claims (CAVC). The veteran has 120 days from the date of the BVA decision to file the appeal.
The CAVC is an administrative law court which is comprised of seven judges located in Washington DC. Jurisdiction of the CAVC is invoked by the filing of a timely Notice of Appeal. There is a filing fee, which may be waived on a showing of need. After the record is settled and the case is fully briefed, the court will render a decision. The CAVC may affirm the BVA Decision, remand the BVA decision, or reverse the BVA decision. Decisions rendered by the CAVC may be appealed to the United States Court of Appeals for the federal circuit.
Hiring an Attorney
Yes. You may wish to consult an attorney before moving forward in your claims process. There are many provisions and requirements within the regulations set forth by the Department of Veterans Affairs that you may not be aware of. An attorney can help you receive the maximum benefits to which you are entitled. Every case is different. Your attorney's role depends on the particular facts of your case. However, a few of the things an attorney may do are:
- Obtain your Claims-file (C-file) and review it. Determine what necessary documents are missing
- Gather medical evidence
- Gather other evidence such as military records, "buddy statements," and work records
- Analyze your case under Department of Veterans' Affairs regulations
- Contact your doctors to obtain reports consistent with proving your disability under VA regulations
- Retain other doctors or vocational experts to help prepare the case.
- Prepare you to testify at hearings
- Protect your right to a fair hearing by objecting to improper evidence and procedures
- Perform necessary legal research on complicated legal issues
- Prepare written arguments using evidence and regulations to support your claim
- If you win, make sure that the Veterans Administration correctly calculates your benefits
- If you lose, appeal claims to all levels of appeal, including federal court
- Review prior applications to see if there is clear and unmistakable error so that prior applications can be re-opened.
There are no fees or costs unless we win. We will accept your case on a contingent fee basis. If we win, the fee will be 25% of past-due benefits or $6,000, whichever is less.
If you are going to hire an attorney, it always best to do so as early in the process as possible. At McGill and Noble, we handle cases at any point after you have received a Rating Decision.
Contact McGill & Noble, Attorneys at Law for a free initial consultation with an experienced veterans' benefits attorney.
No fees or costs unless benefits are awarded • Home and hospital visits • Evening and weekend appointments available
Our office is on the fourth floor of the Southpark building, located at the corner of Westgate Drive and University Drive in Durham.