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There are almost 18 million Veterans in the United States, representing approximately 7% of the adult population. Approximately 30% of these veterans receive disability compensation from the VA. The latest data from the Congressional Budget Office shows that the VA spent $125 billion on disability claims for 5.3 million veterans in fiscal year (FY) 2022. VA disability is a tax-free monetary benefit paid to veterans with service-connected disabilities that may have resulted before, during, or after their military service.
Entitlement to File a VA Disability Claim
You must meet the legal definition of a Veteran to file a VA disability claim for compensation. A Veteran is someone who served in the active military and received an honorable discharge. A general discharge under honorable conditions is considered an honorable discharge. In some instances, Reserve and Guard members may be eligible for disability compensation. Also, to qualify for VA disability compensation, a Veteran must have been in the line of duty when their disability occurred. This means the disability must not have resulted from the veteran’s willful misconduct.
Requirement for Service-Connected Disability Claim
You must show you have a service-connected disability to be eligible for VA disability compensation. This means you have a current diagnosis of a physical or mental disability ratable by the VA; you had an in-service event, injury, or illness that caused or aggravated your disability; and your disability is linked to your military service. There are different ways of showing service connection:
- Direct Service Connection – Your current disability or disease was incurred in service.
- Aggravation – You had a pre-existing disability or disease prior to service that worsened during your service.
- Secondary Service Connection – You have a current diagnosis of a disability that is not directly caused by your service but resulted from (indirectly caused by) a primary disability that has been service-connected by the VA. For example, your service-connected knee impairment has led to a back impairment.
- Presumptive Service Connection – The VA automatically presumes that your military service caused specific disabilities delineated by law, which has been expanded to cover even more veterans by the PACT Act.
Filing a VA Disability Claim
Your first step is to meet with an accredited VA representative to help you file your VA disability claim. The VA accredits three types of representatives: Veterans Service Organization (VSO) representatives, attorneys, and claims agents. All three can guide you through the entire claims process and help you obtain all the evidence you need to file your claim. You may also file your claim by mail, in person, fax, or online. Our VA claims lawyers have put together a webpage with free resources and guides to help you with your initial VA disability claim.
One of the most important aspects of a VA disability claim is medical documentation and information. You should include with your claim military service medical records, private medical records, VA medical records, and any supporting statements from witnesses such as family, friends, or fellow service members to explain how your current disabling condition has affected your life. Also, to establish a service connection required for claims other than those presumptively service-connected, you may obtain a letter referred to as a nexus letter from the appropriate medical expert for each of your claimed conditions. The purpose of this letter is to document that your condition is more likely than not connected to your military service. This simply means it is at least 50% percent due to service. If your disability was diagnosed during your military service and is documented in your service treatment records, you probably do not need a nexus letter(s). However, if your disability was not diagnosed during service or there are no documented symptoms in your service treatment records, you probably need one.
The next phase after you file your VA disability claim is a Compensation and Pension (C&P) medical exam, which the VA typically requests of you. This exam, which the VA or VA medical contractors may perform, assists VA adjudicators in determining if your claimed disabilities are service-connected and what rating you should receive for each disability.
About VA Disability Ratings
The VA uses the VA Schedule for Rating Disabilities (VASRD) to determine your disability rating. Your rating can range anywhere between 0% and 100%, depending on the type and severity of your condition. If you have multiple disability ratings, your combined rating is calculated based on a specific formula and does not add up consecutively. Therefore, your combined rating likely may differ from the sum of your individual ratings. Depending on your rating (10% or higher), you may be eligible for tax-free monthly compensation of up to $4,000+ per month. These payments are designed to offset the average earnings lost due to your disabling conditions and compensate for the potential loss of civilian wages. You do not have to show your inability to work and are not prohibited from working if you collect disability.
If the VA denies your claim or your rating is too low for whatever reason, you have exactly one year from the date of your decision letter to appeal their decision. You can also request an increase in your VA rating any time, provided you have medical evidence to support your rating increase claim. The VA disability lawyer team at Gang & Associates can readily assist you with these actions.
Total Disability Individual Unemployability
About 20% of all veterans with a service-connected disability have a 100% disability rating for single or multiple service-connected disabilities. Veterans who have not been assigned a 100% disability rating may be entitled to total disability individual unemployability (TDIU) if they are disabled to the point that they are not able to acquire and maintain substantially gainful employment due to their service-connected disability. The VA will subjectively examine your particular circumstances, such as your skill, work history, and education, to determine whether you can work. Marginal employment does not count as substantially gainful employment. Your earned income must be below the federal poverty threshold. There are two types of TDIU:
- Schedular TDIU: You must have at least one service-connected disability rated at 60% or more or two or more service-connected disabilities with at least one rated at 40% or more, with a combined rating of 70% or more.
- Extra-Schedular TDIU: The veteran’s service-connected disability situation is so exceptional, with related factors like marked interference with employment or frequent periods of hospitalization, that make it impractical to apply the regular scheduler criteria.
You will need to provide supporting medical evidence, such as doctor’s notes and medical test results, establishing that your disabilities prevent you from holding down a steady job. You are required to submit two VA forms to apply for this benefit. If the VA approves you for TDIU, you will receive disability compensation at the 100% disability rate. TDIU may be permanent in some cases.
Effective Date of VA Disability Claim
The VA uses your VA disability claim’s effective date as a start date for your disability payments.
The general rule is that the effective date is assigned based on the date the VA received your claim or the date entitlement (when you first got your illness or injury) arose, whichever is later. The effective date may be as early as the day following discharge for a direct service connection claim received within one year of discharge. If received more than one year following discharge, the general rule applies, and the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. Different rules apply to determine the effective date depending on the type of claim you file.
It is not unusual for the VA to assign an incorrect effective date for your service-connected disability claim. This can be an expensive mistake for the veteran. Our VA disability attorneys can help you fix this costly error.
VA Disability Claims Appeal Process
The VA often denies veteran claims for several reasons, many of which are erroneous. The most common reason is that the veteran did not present all the evidence necessary to show a service connection between their disability and military service. The VA may also assign a disability rating that is too low or assign the wrong date to start your benefits. The VA can make mistakes when evaluating your claim, which is not uncommon. With the assistance of our seasoned VA disability lawyers, you have a better chance of winning your case on appeal for your service-connected disability.
Lawmakers revised the VA disability appeals process in the last several years. It is known as the Appeals Modernization Act (AMA) of 2017. In the event you decide to appeal your case within the one-year timeframe, you have three decision review options to choose from:
- Supplemental Claim – If you have new and relevant evidence to present to help prove your claim, you may request that a VA examiner review your case.
- Higher-Level Review – You may request a VA senior reviewer review your claim anew. Senior reviewers may correct a misinterpretation of fact or law at the lower level. You may not submit new evidence.
- Appeal to the Board of Veterans’ Appeals (BVA) – You may appeal your case to the BVA, an administrative appeals board of the U.S. Department of Veteran Affairs. A Veterans Law Judge (VLJ) will review and adjudicate your claim. If you appeal to the BVA, you have three options on how the BVA will review your case:
- Direct Review – A VLJ will review your appeal. There is no hearing and you may not submit new evidence.
- Evidence Submission – You must submit new evidence within 90 days of filing your appeal. A VLJ reviews the evidence, and there is no hearing.
- Hearing with a VLJ – You will have a hearing before a VLJ and can submit new evidence in support of your appeal and may select any one of the following:
- Virtual telehearing using your computer or mobile device.
- Videoconference hearing at a VA location near you.
- In-person hearing at the BVA in Washington D.C.
If you are dissatisfied with the results of your first option, you may select a different eligible option. After a Supplemental Claim, you may request a second Supplemental Claim, a Higher-Level Review, or a Board Appeal. After a Higher-Level Review, you may request a Supplemental Claim or a Board Appeal. After a Board Appeal, you may request a Supplemental Claim or appeal to the U.S. Court of Appeals for Veterans Claims. This federal court has exclusive jurisdiction to provide judicial oversight and review of the BVA’s final decisions. If you miss the one-year deadline from the date of your decision letter to file your appeal, you may reopen your claim later if you have new and relevant evidence to support your previously denied claim.
VA Disability Rating Increases
You can file a claim at any time with the VA to increase your VA disability rating for a service-connected disability that has worsened since your original rating to reflect your current condition and limitations. You would file for an increased rating in the same manner that you filed your initial claim. You will need to include new medical evidence and documentation, including a nexus letter from a medical expert, to show your disability has worsened. The VA will likely ask you to submit to a new C&P exam. Our experienced VA disability lawyers can assist you with this process.
Gang & Associates At Your Service: Get Help Today
The VA disability lawyer team at Gang & Associates exclusively practice veterans’ law and understand the complicated and complex practice of the VA system. We will discuss your appeal options and can advise you on the best decision review option for your case. If you wish to obtain a rating increase for a service-connected disability, we are also the best VA disability lawyer team for the job. Our goal is to put you on the right path to success. For a free consultation, contact us for the best possible representation in your case.