OVERVIEW OF VETERANS DISABILITY COMPENSATION
What is veterans disability compensation?
Veterans disability compensation is administered by the United States Department of Veterans Affairs (VA). Compensation is a benefit paid to a veteran for a disability sustained or aggravated during service in the U.S. military. Such a disability is considered to be "service-connected." The amount of the monthly benefit depends on the veteran's disability rating, which is expressed as a percentage of total disability. These ratings range from 0% to 100% and are assigned in 10% increments. A veteran who is unemployable because of service-connected disabilities will be paid at the 100% rate, even if his or her actual rating is less than 100%.
How does a veteran qualify for disability compensation?
To qualify for disability compensation, a veteran must have
- a current disability,
- a disease, injury, or event that occurred or began while serving in the military, and
- a link, or "nexus," between the current disability and the in-service disease, injury, or event
How does VA assign disability ratings?
For each service-connected disability, VA assigns a rating based on medical criteria in the VA Rating Schedule for Disabilities. The ratings range from 0% to 100% and are assigned in 10% increments. Generally, the more severe the disability, the higher the rating. If you have service-connected migraine headaches, for example, your rating depends on the severity and frequency of the headaches.
What is a rating decision?
A Rating Decision is the decision issued by the VA Regional Office (RO or VARO). It will address service connection, percentage of disability, and date of eligibility.
What are the benefit rates for service-connected disabilities?
Rates can be found in the Veterans Compensation Benefits Rate Tables. For a single veteran with no dependents, benefits in 2023 range from $165.92 per month for a 10% rating to $3,621.95 for a 100% rating. Veterans with a 30% rating or higher receive additional benefits for dependents.
Veterans with especially serious disabilities or combinations of disabilities, such as the loss of use of specific organs or extremities, may be entitled to additional benefits called Special Monthly Compensation (SMC). SMC rates can be found in the Special Monthly Compensation (SMC) Rate Table. At the highest level of SMC, a single veteran receives $10,365.53 per month.
What if I have more than one service-connected disability?
If a veteran has more than one service-connected disability, VA uses the Combined Ratings Table to calculate an overall or "combined" disability rating. This combined disability rating, which ranges from 0% to 100%, determines the amount of the monthly disability payment from VA. Theoretically, the combined rating is intended to reflect the reduction in earning capacity caused by all of the service-connected impairments. It is important to remember that the combined rating is NOT calculated by simply adding all the individual ratings together. So, for example, if a veteran has a 70% rating for depression and a 50% rating for migraines, the combined rating would be 90%, not 120%.
This is how VA reaches the 90% combined rating. VA assumes that a veteran with no service-connected disabilities has 100% of his or her earning capacity. In our example, the depression (rated at 70%) reduces the veteran's earning capacity by 70%. If this were the only service-connected disability, the veteran's rating would be 70%.
Because there is another service-connected disability, VA calculates the additional reduction of earning capacity resulting from the migraines. Since the depression reduces the veteran's earning capacity by 70%, the remaining earning capacity is 30% (100% -70%).
VA then calculates the effect of the migraines on the veteran's remaining earning capacity of 30%. Because the migraines are rated at 50%, they reduce the veteran's remaining earning capacity of 30% by that proportion. This means the migraines reduce the total earning capacity by an additional 15%: 50% (rating for migraines) of 30% (remaining earning capacity) = 15%.
VA adds this 15% additional reduction in earning capacity caused by the migraines to the 70% reduction in earning capacity resulting from the depression to reach a total reduction of earning capacity of 85%. Ratings are assigned in multiples of 10, so VA then rounds up and assigns a combined rating of 90%.
What is secondary service connection?
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, if a veteran with a service-connected knee problem develops a back condition as a result of walking awkwardly for many years, that back condition may also be rated as a compensable disability.
What is total disability for individual unemployability (TDIU or IU)?
If you cannot sustain substantial gainful employment because of your service-connected disabilities, you may be entitled to total disability based on individual unemployability (TDIU or IU). In most cases, to be eligible for TDIU, a veteran must also have either 1) a single, service-connected disability rated at least 60%, OR 2) two or more service-connected disabilities with one rated at least 40% and a combined rating of at least 70%.
TDIU is paid at the rate of a 100% rating, even if the overall combined rating is not 100%. For example, if a veteran has a 70% rating for post-traumatic stress disorder and is unable to work because of the PTSD, he or she is paid at the 100% rate, rather than the 70% rate. In 2023, the monthly 100% rate for a single veteran is $3,621.95, whereas the 70% rate is $1,663.06.
Can a veteran work and still receive VA disability compensation?
Yes, a veteran may work and still receive compensation for any service-connected disabilities. However, if the veteran receives Total Disability for Individual Unemployability (TDIU or IU), he or she may not engage in substantially gainful employment. Marginal employment, such as odd jobs, is not considered substantial gainful employment for VA purposes.
What benefits may a veteran's dependents be entitled to if the veteran dies because of service-connected conditions?
Dependents may be entitled to Dependency and Indemnity Compensation (DIC). If a veteran's death results from a service-connected condition, the DIC benefit may be provided to a surviving spouse, dependent children, and certain dependent parents of veterans who died on active duty. For example, the base DIC monthly payment for a surviving spouse in 2023 is $1,562.74. Some surviving spouses may be eligible for additions to this amount.
What are veterans' pensions?
Veterans Pensions are needs-based benefits for wartime veterans with limited or no income who are age 65 or older or who have a permanent and total non-service-connected disability. More information about the VA Pension program can be found on VA's website.
Is injury or illness resulting from substandard care at a VA hospital compensable?
Yes, substandard care at a VA hospital that causes an injury can be the basis of a claim for benefits. In such cases, Section 1151 of VA's governing statutes allows VA to pay compensation for death or disability "as if service-connected." More information about Section 1151 claims can be found on VA's website.
How does veterans disability compensation differ from Social Security Disability?
Social Security Disability is only paid if a person cannot work. It is an all-or-nothing system. VA disability compensation, on the other hand, is paid for any service-connected disability that meets the VA's rating criteria. The amount of the payment depends on the severity of the disability.
Can I get Social Security Disability benefits and veterans disability compensation at the same time?
If you have been found to be disabled by the Social Security Administration and are receiving disability insurance benefits based on your Social Security earnings record, you can also receive veterans disability compensation. If you are receiving disability payments through the means-tested Supplemental Security Income (SSI) program, however, your SSI benefits may be reduced or eliminated if you become eligible for VA disability compensation.
APPLICATION AND APPEALS PROCESS FOR VETERANS DISABILITY COMPENSATION
How do I apply for VA disability compensation?
There are several ways to apply for benefits, including:
- Go online using an eBenefits account
- Complete and submit the VA Form 21-526EZ, "Application for Disability Compensation and Related Compensation Benefits"
- Go to a VA Regional Office (VARO or RO) and have a VA employee assist you. To find the VA Regional Office nearest you, use the Veterans Affairs National Facilities Locator
- Call VA toll free at 1-800-827-1000
- Work with an accredited representative or agent
What is a rating decision?
A Rating Decision is the decision issued by the VA Regional Office (RO or VARO). It will address service connection, percentage of disability, and date of eligibility.
How do I appeal a rating decision?
Option 1: Higher-Level Review
This review is performed by a "higher-level" VA employee. Here's what's involved:
- The higher-level reviewer will re-evaluate the evidence on which the first decision was based.
- The higher-level reviewer considers only the "closed record." New evidence cannot be submitted.
- The higher-level reviewer can overturn previous decisions based on a difference of opinion or on clear and unmistakable error in a prior decision.
- If the higher-level reviewer identifies a duty-to-assist error, he or she can instruct the Regional Office to provide the required assistance.
- The veteran or the veteran's representative can request an informal conference by telephone to identify specific issues or errors.
Option 2: Supplemental Claim Lane
This option allows the veteran to submit new evidence to support the claim. The VA may provide assistance in developing the evidence.
Option 3: Appeal Lane for Appeals to the Board of Veterans Appeals
This lane allows the veteran to appeal directly to the Board of Veterans Appeals (BVA). The veteran will have the ability to choose among three options for review at the BVA:
- Direct review: This option should be chosen if the veteran does not have additional evidence to submit and does not want a hearing.
- Evidence submission: This option should be chosen if the veteran has additional evidence to submit but does not want a hearing.
- Hearing: This option should be chosen if the veteran wants to testify before a Veterans Law Judge and submit additional evidence.
What is the Board of Veterans Appeals (BVA)?
The Board of Veterans Appeals (BVA) is an administrative board that considers appeals of decisions made by the Regional Office. These appeals are decided by Veterans Law Judges (VLJs). The VLJs at the BVA can consider new evidence that was not considered by the Regional Office. The veteran may also request a hearing before the VLJ. 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 of decisions issued by the Board of Veterans Appeals (BVA). The court's 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, evidence used by the BVA to make its decision, and legal arguments from the veteran's representative and the VA attorney. Decisions issued by the CAVC may be appealed to the Court of Appeals for the Federal Circuit.
Where can I find the regulations and procedures that govern VA's processing of disability claims?
Title 38, Chapter 1, Part 3 of the United States Code of Federal Regulations governs VA's adjudication of compensation, pension, and dependency and indemnity compensation (DIC) claims. The M21-1 Adjudication Procedures Manual is used by the Regional Offices for further guidance in processing claims.
HIRING AN ATTORNEY
How can the attorneys at McGill & Noble help with my claim?
Veterans law is complex. An experienced attorney who practices in this area understands how VA regulations and policies apply to your particular situation. At McGill & Noble, we know how to develop the evidence necessary to satisfy VA's legal requirements. We stay abreast of the frequent changes in VA law and can adjust your case strategy as needed.
At McGill & Noble, we will
- Talk to you in detail about your symptoms and the connection between your disabilities and your military service
- Communicate with you regularly about your case throughout the appeals process
- Obtain your claims file (C-file) and determine what necessary documents are missing
- Gather medical evidence
- Gather other necessary evidence such as military records, "buddy statements," and work records
- Analyze your case applying VA law and regulations
- Obtain medical reports from your doctors that support your claim
- Retain other doctors or vocational experts to provide evidence to support your claim, as appropriate
- Prepare you to testify at hearings
- Protect your right to a fair decision by objecting to improper evidence and procedures
- Research complicated and unusual legal issues
- Review prior applications and decisions to determine if an earlier effective date is appropriate
- Prepare oral and written legal arguments
- If you win, make sure that VA correctly calculates your benefits
- If you lose, file appeals, if appropriate
How much does it cost to hire the attorneys at McGill & Noble?
We don't charge a fee unless we help you obtain or increase your VA disability benefits. If we are successful in getting VA to recognize your disability as service-connected or getting your rating increased, you will be awarded backpay for benefits that have accrued pending the appeal. Our fee would be 20% of that backpay award
To discuss your specific situation and VA disability benefits needs, contact an attorney at McGill & Noble, LLP Attorneys At Law. Call 919-493-8876 or contact us online.
