To file VA disability claim and receive compensation, you must have all of the following:
- A current physical or mental disability. (List of disabilities rated by the VA 38CFR4 Schedule for Rating Disabilities) See Caluza Triangle
- An injury or disease in service that caused a disability or aggravated a disability that existed prior to service.
- An important point to make here is that if the military said you were fit to serve and did not note any existing conditions. The Presumption of Soundness goes to the veteran. Here is an excerpt from M21-1MR, Part IV, Subpart ii, Chapter 2, Section B.
- The presumption of soundness means that the Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service.
- The presumption of soundness applies only when the Veteran underwent a physical examination at the time of entry into service on which the claim is based.
- Only the conditions that are recorded in the examination report are to be considered as noted.
- When no pre-existing condition is noted at entrance into service, the burden falls on the VA to rebut the presumption of soundness by clear and unmistakable evidence showing that the disease or injury
- existed prior to service, and
- was not aggravated by service.
Reference: For more information on the presumption of soundness, see
38 U.S.C. 1111 – VAOPGCPREC 03-2003 – Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
There are two types of service-connection
- An in-service injury/disease means that, for the most part, it must be documented in the veteran’s service medical records (SMRs). One thing to remember is that, generally, the in-service injury/disease must be shown to be “chronic” during in-service. If it is not shown to be a “chronic” condition while in service, then you’ll more than likely need an Independent Medical Opinion (IMO) to substantiate the claim. If a veteran doesn’t have either a documented “chronic” condition or an IMO, the VA will more than likely state that the claimed condition is “Acute and Transitory,” meaning that the injury/disease resolved itself and there are no residuals.
- A current condition with a medical diagnosis means that the claimed condition has to show current residuals from that in-service injury and must have a current diagnosis from a physician. A lot of times, the diagnosis can and will be obtained from the VA C&P exam. Suppose the VA sees that your condition was “chronic” while in the service or that you have medical documentation of continuity of treatment since discharge. In that case, they will often schedule the veteran for a C&P exam to obtain the needed diagnosis and the current disabling effects of the claimed disability.
Something connecting the two means either continuity of treatment of the claimed disability from time of discharge to the present, or, if this is not the case, then an IMO will be needed from a physician. A lot of times, an IMO is a critical part of the veteran’s claim. An IMO can sway the benefit of the doubt in the veteran’s favor if the claim is borderline, or it can flat out prove service connection when one of the three components of establishing service connection isn’t met! For example, by borderline, I mean that a veteran was seen for lower back pain once while on active duty over a five-year enlistment. And now, it is ten years since his discharge, and the veteran hasn’t been seen for the lower back until recently or only had one episode of back pain within those ten years since getting out of the military. The veteran will need an IMO stating something to the effect that his current lower back condition is somehow related to the episode while on active duty. If the RVSR (Rating Veteran Service Representative, or “Rating Specialist”) is very liberal in applying the regulation, he/she may award service connection without the (IMO) Independent Medical Opinion. However, if the RVSR is “by the book,” then he/she may deny service connection in the absence of a good IMO. An example of where an IMO can establish service connection with which one or more of the three criteria listed above are absent would be, let’s say that a veteran was seen one time for a knee condition while on active duty. This incident is noted in his SMRs. Ten years later, the veteran is experiencing pain in that same knee but didn’t have any type of treatment since his discharge; he would need a really good IMO to establish that his current disability is somehow related to the in-service episode.
As far as presumptive service connection is concerned, a veteran needs to be able to show that a condition listed in §3.307, §3.308, and §3.309 has manifested itself within the prescribed time limits after separation from the service. A presumptive condition does not need to be noted in a veteran’s SMR, or it’s presumed that the said disability/disease occurred while in the service. There are some presumptive disabilities that do need to have manifested themselves within the first year after separation and to the degree of 10% disabling in order to warrant presumptive service connection. One common one is Arthritis.
Filing the Claim
Once you have determined that you have met three basic criteria of disability compensation, you should then file the claim with your local Regional Office.
There are two types of claims for initial service connection; an Intent to file a claim and a Formal claim. (There used to be something called informal claims which was removed in March 2015)
Intent To File A Claim
A new intent to file process has been established for Veterans and Survivors who intend to file a claim for VA compensation, pension, or survivor benefits but need additional time to gather all of the information and evidence needed to support their claim. Intent To File A Claim FactSheet
A Formal Claim
A formal claim for disability compensation is the VA Form 21-526. You should fill this out to the best of your ability. You should attach any Service Medical Records, Private Treatment records relevant to your claimed disabilities, a certified copy of your DD 214, copies of marriage certificates, divorce decrees, and dependent birth certificates. By attaching these documents, you’ll speed up the processing of your claim quite a bit. However, you do not need to attach those documents if you do not have them in your possession. If you do not have any of those medical records, the VA will assist you in obtaining those by asking you to fill out VA Form 21-4142 for each facility where those records are located. One important side note; make sure you sign the VA Form 21-526!!
Now, what happens after I file my Formal claim?
What Happens After You File Your Claim
After you send VA your Formal claim, several “teams” at your local, regional office process your application. Essentially, six “teams” at a Regional office make up the “process.” When a veteran files a claim for benefits with VA, it is received at what is called a ‘Triage Team.’ This is where the incoming mail is sorted and routed to the different sections or other “teams” to be worked. Picture this as a Triage unit at a Hospital. There they decide who goes where according to the injury/condition involved. This is the way it works at VA too. The main function of the Triage Team is to screen all incoming mail. Within the Triage Team, there are other sub-components; the Mail Control Point, Mail Processing Point, and to a certain extent, supervision of the files activity. The mail control point is staffed with VSRs (Veteran Service Representatives) who are actually trained in claims processing. This is also where they receive and answer the IRIS inquiries. The mail processing point is where chapter 29/30 claims (a bit later on, these types of claims) are processed/awarded, and to a certain extent, dependency issues are resolved.
The next step is the “Pre-Determination Team.” This is where your claim for benefits is sent to be developed, meaning verification of service from the Service Department if a certified copy of the DD 214 is not submitted by the veteran; SMRs are obtained from St. Louis if they weren’t sent in already by the veteran, any CURR verifications are done for PTSD stressors, any private treatment records are obtained under the “Duty to Assist,” and inferred issued are identified. Once the Pre-Determination Team figures out what you’re claiming, they’ll send you what’s known as a “Duty to Assist” letter or the VCAA letter. This letter states what type of claim you are filing, what conditions you are claiming, and what the regulations say you must show to have your claim granted. It will also state the evidence needed by VA to support your claim and what VA is doing or has done. The letter will also explain VA’s “Duty to Assist” you in obtaining the evidence to support your claim. There will also be a response form that you should fill out and return. If you do not return this form or mark the box that you have additional evidence to submit, the VA must wait 60 days to further process your claim. As your claim progresses further through the Pre-Determination Team, you may or may not receive other letters. Examples of those letters include follow-up letters to let you know VA requested something from a third party and there is a delay in their reply and letters requesting that you provide something to VA to support your claim. The Pre-Determination Team may also send you a computer-generated letter telling you they are still working on your claim. That letter is pretty interesting because it means a couple of things have happened with your claim; 1) your claim was reviewed by someone recently, or 2) your claim has aged where the computer system is telling the regional office that they must look at your claim. One thing to keep in mind is that every time VA sends you a letter, regardless if it’s for the information you already sent them, you should always respond with a letter via Certified Mail with a return receipt. If you already sent something to VA that they previously requested, just send them a letter stating that you already submitted the information and when you sent it. Once all the developmental work has been done on a claim, it is then designated as “Ready to Rate” and sent to the Rating Activity.
The Rating Activity or “Rating Board” is where most veterans want to have their claim. This is where the claim for benefits is decided. The RVSR (Rating Veteran Service Representative, or “Rating Specialist”) is the person who rates a veteran’s claim. They review the entire C-file to ensure it is ready to be rated and schedule any C&P exams that may be needed if not already done so by the Pre-Determination Team. If a C&P exam is needed, they do the paperwork to schedule this. Once the RVSR has all the needed paperwork to rate the claim, they make their decision. If the RVSR determines that there is something missing from the claim to make a decision, they send the claim back to the Pre-Determination Team for further development. Once they have reached their determination, they produce a rating decision with their decision and forward the C-file to the Post-Determination Team.
The Post-Determination Team is where the rating decision is promulgated. In other words, it is where the decision gets entered into the system and the rating decision is prepared and sent out to the veteran. If the veteran has a Power of Attorney (POA), they give them a heads up about the decision. If a claim has been granted and the retro involves over $25,000.00, it is sent to the VSCM (Veterans Service Center Manager) or their assistant for a third signature. The Post Determination Team may also do the following actions; accrued benefits claims not requiring a rating, apportionment decisions, competency issues not requiring a rating, original pension claims not requiring a rating, dependency issues, burials, death pension, and specially adapted housing and initial CHAMPVA eligibility determinations when a pertinent rating is already of record.
The Appeals Team handles appeals in which the veteran has elected the DRO review. They also handle any remands that have been sent back from the BVA and the Court. The Appeal Team is a self-contained unit within the Regional office. They make determinations on appeals, make rating decisions that are on appeal, do any developmental work on any issue that may be on appeal, and issue any SOCs and SSOCs in conjunction with their review.
The Public Contact Team’s primary functions are to conduct personal interviews with and answer telephone calls from veterans and beneficiaries seeking information regarding benefits and claims. Depending on their workload, regional offices also handle IRIS inquiries and fiduciary issues.
As one can see, the VA claims process can be complex. In essence, a veteran’s claim is continuously going from one team to another until it has been decided. This process can be rather lengthy depending on what regional office has jurisdiction over your claim and their pending workload. During this process, a veteran may want to find out the status of their claim. This should be done through the VA’s IRIS website inquiry system. The veteran will get much more accurate information through this inquiry system than by calling the 1-800 number. The 1-800 will only connect you to the regional offices “Public Contact team.” These employees aren’t really trained to deal with the different processing stages and so forth and aren’t able to give very accurate information in that regard. The intention of the 1-800 number and the Public Contact team is really to give general benefits information and send out forms to claimants, not to try and track a veteran’s claim. Furthermore, veterans’ claims aren’t like tracking a UPS package where it travels in a straight line to its end destination. Veterans’ claims will end up bouncing from team to team at the regional office until all of the work required to make a decision is done.
Appealing an issue with VA
When you receive your rating decision from the VA, look over it carefully. Make sure all of the evidence you sent them is listed in the ‘evidence” section of the rating decision. The “Decision” section will be what VA decided. The “Reasons and Bases” section will be VA’s rationale for its decision. If you disagree with VA’s rating decision, you can appeal that decision.
In any type of appeal, the first step is submitting a Notice of Disagreement (NOD) with your regional office telling them what issue you disagree with and why you disagree with that decision made by them. You have one year from the date of the rating decision to submit your NOD. In the NOD, you should also specify which way you wanted your appeal handled, i.e., the traditional way (Board of Veterans Appeals, or “BVA”), or through a DRO review. If you don’t tell the VA which one, they will send you a letter asking which route you want. You then have 60 days from the date of that letter to choose. If you don’t answer the letter, the VA automatically processes the appeal through the traditional process. Also, in the NOD, you should state if you want a hearing or not.
NVLSP suggests adding this into the I-9 form- usually, there is enough space under the hearing questions on the I-9 form.
“I take exception to and preserve for appeal ALL errors the VARO may have made, or the Board hereafter might make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1, all due process errors, and any failures to discharge the duty to assist as a violation of basic VA laws and regulations within 38 USCS and 38 CFR.”
A DRO review is where a Decision Review Officer, hence DRO, who is a senior rater with many years of experience that works in the appeals Team, will completely review your claims folder and NOD and decide whether or not he/she can grant the benefit the claimant is seeking. If the DRO grants the appeal in full, he/she will produce a rating decision telling the claimant of the percentages, etc… just like the Rating activity would on a normal claim. If the DRO cannot grant the appeal in full, then he/she will issue a Statement of the Case (SOC) explaining the actual laws and rationale which pertain to the denial. Even if the DRO is able to grant a partial appeal, they still must send out a SOC. For example, let’s say you are appealing a PTSD rating of 50%. The DRO grants an increase to 70%, but since the DRO didn’t/couldn’t grant the highest possible award pertaining to the disability, they must still produce a SOC. In this scenario, the DRO would send out a rating decision with the grant in an increase from 50% to 70%, and a SOC stating why he/she couldn’t grant the full benefit allowable, i.e., the 100% rate. Once a claimant receives a SOC, they have 60 days from the date of the SOC to either “perfect’ their appeal by submitting VA Form 9, which will prompt the RO to send the appeal to the BVA, or submit ‘New” evidence that was not before the decision maker when he/she made their prior determination. When the claimant submits “new” evidence, the VA will evaluate the new evidence and either grant the benefit sought on an appeal or issue a Supplemental Statement of the Case (SSOC) outlining why the new evidence was unable to be used to grant the appeal. An SSOC will only address the new evidence the claimant submitted. From the date of the SSOC, the claimant again has 60 days to either “perfect” the appeal by submitting VA Form 9 or again submitting “new” evidence. If the claimant submits new evidence again, then the process of either a grant in benefits sought or an SSOC will repeat itself until the claimant “perfects” their appeal.
The traditional appeals process is where the claimant wants to skip the DRO review and appeal directly to the BVA. In this case, the claimant still must send a NOD to the VA. The VA, more specifically the rating activity that made the prior decision, will send out a SOC. Once the claimant receives the SOC, the process afterward is the same as when the DRO issues a SOC. You can either submit “new” evidence and have the Rating activity reconsider their previous decision, which will either prompt them to grant the benefit sought on appeal or send you an SSOC, or you can “perfect” your appeal by sending in VA Form 9. Once the VA Form 9 is sent in, the regional office then prepares your claims folder for the BVA, where it gets put on the docket. Remember you only have 60 days from the date of the SOC or SSOC to submit the VA Form 9!
Requesting a “Reconsideration” of a Prior Decision”
Another route that may be of some interest is the “reconsideration” route. This is where a claimant has received a rating decision and may disagree with that decision but has “new” evidence that the Rating activity was unaware of at the time of their decision and may think that the “new” evidence might result in a more favorable decision than the prior one. In this case, the claimant has the one-year appeals period to send in the “new” evidence and request that the Rating Activity “Reconsider” their previous decision. The claims folder would then go back to the Rating activity to be reconsidered, and the RVSR would send out a new rating decision where the “new” evidence is considered and a new decision rendered. One thing to keep in mind is one MUST submit “new” evidence in order for the VA to “reconsider” its previous decision. Another reason one might consider the “reconsideration” approach is simply because a request for reconsideration generally goes faster than an appeal because the claims folder goes back to the RVSR and is worked according to the date of the request for reconsideration. If the request for reconsideration warrants a favorable decision, the effective date may be the original claim’s date, depending on what the evidence submitted dictates. A request for reconsideration is simply “re-opening” a claim within the one-year appeals period [(see 38 CFR, §3.400(q) for effective dates concerning reconsiderations) also see “Re-opening claims” for an explanation].
Another topic concerning “reconsideration” is whether or not one should file a Notice of Disagreement (NOD) if the VA hasn’t yet rendered a decision before the one-year appeals period has expired. If one sends in “new” evidence within the one-year appeals period and requests a “reconsideration” of VA’s prior decision, they better be 100% certain it will change VA’s prior decision; If VA accepts it as a “Reconsideration” (which as stated before is a “Re-opened” claim), they must follow the rules and regulations for a reopened claim and render a formal decision unless one withdraw the claim prior to a decision being made. If they do render a formal decision, they must notify you of this decision which means that they cannot then turn around and accept the request to reopen as a Notice of Disagreement because it is dated and received prior to the latest decision on this issue. The NOD must be received AFTER you have been notified of the latest decision on that claim. Reopened claims and NODs are not worked by the same people nor by the same administrative procedures.
If one requests a “reconsideration” with the one-year appeals period and then files a NOD before the one year elapses because VA hasn’t made a decision on the “new” evidence, then one is asking that VA go through all the administrative procedures for a “reopened” claim up to and including a review by a Rating Specialist and then if the claim cannot be granted to just stop without a formal decision and send it back out to start reprocessing as a NOD.
This would create an administrative nightmare and simply cannot be done. If, after requesting a “re-opening” of the claim, you then file a NOD, the “re-opened” claim is no longer valid, and whatever evidence you submitted with it will be considered as part of the NOD. As soon as the NOD is received on that particular issue, whatever it is, it MUST be worked under the appeal procedures. One cannot have both a reopened claim and a NOD on the same issue at the same time. In short, one must keep an eye on the expiration date for the appeal period so you can convert the “reopened” claim to a Notice of Disagreement (NOD) if a decision was not rendered before the appeal period expired. If you disagree with the decision and you aren’t 100% certain that the new evidence will result in a grant, you cannot let that original appeal period run out. If the reopened claim is not granted and you don’t submit a NOD within the appeal period for the first decision, you have lost the date of claim on that decision as a potential effective date. There are a limited number of situations where one should “re-open” the claim instead of filing a NOD, but these are few and far between, and one must really, really know what they’re doing when they make the decision to do this. In the overwhelming majority of cases, a Notice of Disagreement is the best path to take.
Can one ask for reconsideration of a claim without submitting new evidence if one claims a clear and unmistakable error (CUE)?
Yes, but there has to be a clear and unmistakable error in the decision. It does no good to claim that there is if there isn’t. The person looking at the claim of clear and unmistakable error can only change the prior decision by calling it CUE, and this must be signed off on by the Service Center Manager. He/she can’t change the decision simply by substituting his/her judgment for the original decision maker. So consideration of CUE is not really a “reconsideration.” They are looking to see if an error in the statement of fact or application of a law resulted in an erroneous decision (see also “Clear and Unmistakable errors”).
Applying for an Increased Evaluation
Suppose you are already receiving service-connected compensation from VA for a disability and/or disease(s), and they have gotten worse since the last rating decision. In that case, you can request an increase in evaluation from VA. This is also known as a claim to Re-open. To do this, you just need to write the VA a simple letter with your claims number on it (usually your SSN) stating that you believe your service-connected disabilities have gotten worse and you would like an increase in evaluation. Along with this letter, you should attach any treatment records pertaining to your service-connected disabilities since your last C&P exam and rating decision. Once the VA receives your request for an increase, it will go to the Pre-Determination Team and go through the steps I previously mentioned in reference to an initial claim. In other words, you’ll receive that “Duty to Assist” letter again and all the things surrounding it. After your claim is “Ready to Rate,” it will go to the rating activity for a decision, just like a normal claim would. Once the RVSR has made a decision, the rating goes to the Post-Determination team to be promulgated as would an initial rating does. If you disagree with the RVSR’s decision, you can appeal that decision just as any other rating decision outlined in “Appealing an issue with VA.”
Previously Denied Claims
Suppose you have previously been denied a claim for disability compensation and that decision has become final, meaning the one-year appeals period has run out. In that case, you can request to have that claim to be Re-opened. In order to be able to re-open a previously denied claim, you must submit “New and Material” evidence. This means evidence that is “new,” or was previously not before the decision maker, and “material,” which is evidence that bare directly on the fact as to why the previous claim was denied. Once you have submitted “new and material” evidence and VA re-opens your claim, they again have a “Duty to Assist,” and your claim will go to the pre-Determination Team for development, then to the Rating activity. Post Determination Team, just as a claim for increase or an initial claim would. Remember that submitting “new and Material” evidence doesn’t mean your claim will actually be granted. It just means that there is enough prima facia evidence to warrant another look by the VA!
The Board of Veterans Appeals (BVA)
Suppose you have received a decision from VA and sent the Notice of Disagreement to your Regional Office and have either received a Statement of the Case or a Supplemental Statement of the Case from either a Decision Review Officer or the rating activity. In that case, you can further appeal the decision to the Board of Veterans Appeals by sending your Regional Office what is known as VA Form 9. By sending your regional office VA Form 9, you are what is called “perfecting” your appeal. Keep in mind that you only have 60 days from the date of the SOC or SSOC to submit this. Otherwise, the decision becomes final! Once the regional office receives your VA Form 9, they will certify your claim to be forwarded to the BVA, and you will be put on the docket. During the time the C-file is being certified to be sent to the BVA, the claimant can submit additional evidence to support their claim. Once the C-file leaves the regional office of jurisdiction to the BVA, the claimant has 90 days to submit any additional evidence.
Miscellaneous subjects concerning the VA
Clear and Unmistakable Errors (CUE)
The phrase “clear and unmistakable error” is a very misunderstood phrase by veterans when dealing with VA. When used by VA, it is a legal phrase that does not necessarily mean what a simple reading of the words would mean to the average layperson. When VA says there has not been a clear and unmistakable error committed, they aren’t saying there was no error; there might have been. What it means is that there wasn’t an error that rises to the level of the legal definition of this phrase as applied by VA in VA law. The phrase “clear and unmistakable error” means something entirely different in its legal context than simply saying whether or not VA made an error. Many veterans have the understanding that CUE is something that can appear to be erroneous and yet not be a CUE. To most people using logical thinking, an error is an error. However, to qualify as a CUE, the error must not involve judgment on the part of the decision maker (most decisions by RVSRs involve some type of judgment). That is the key element that confuses many veterans.
In order to be a CUE, the decision maker must have reached a decision based on the incorrect application of a regulation or law without judgment being involved, or the decision must be based on an incorrect statement of the facts as they are known at the time. This doesn’t mean that the decision-maker simply stated something that was not accurate, but that the decision itself turned on an erroneous statement of fact as was known at the time of the decision. A CUE must be based on the laws and regulations in effect at the time of the decision. A CUE is the means by which VA can go back and correct an error in a decision that would otherwise be considered final and not subject to correction. The VA has one of the most, if not the most, liberalizing appeals time frames there is in the disability compensation industry, so if there is an error in bad judgment, the veteran has every opportunity to appeal that decision.
Some other elements besides judgment by a decision maker that also aren’t a basis for CUE are exam protocol and accuracy of the medical reports or completeness of the medical reports (A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her, not the accuracy of the content of that evidence, a doctor’s opinion or statement), failure in the “Duty to Assist” except in the most extraordinary cases (where evidence available at the time of the decision were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”), and changes in diagnosis (meaning a new medical diagnosis that “corrects” an earlier diagnosis),
An example of a claim that would demonstrate a CUE; A veteran is awarded service-connection for IVDS and is awarded a 20% evaluation based on forward flexion of 20 degrees. The C&P exam and the whole medical record are silent for any duration of incapacitating episodes and any other measurements for range of motion. This would be a CUE because the rating criteria specifically states that “forward flexion of the thoracolumbar spine 30 degrees or less” would be assigned a 40% evaluation. Now, if there were some other forward flexion measurements noted in the rest of the medical records, then this would not necessarily be a basis for a CUE because the RVSR may have based his/her decision on the other forward flexion measurements, which may have more accurately portrayed the current overall limited range of motion.
CUEs are relatively rare, but most involve effective dates (EED) when they happen. The effective date is when VA determines when compensation payments begin. Generally, this is the date the veteran submits a claim.
Reduction in Benefits
Reduction in Current Awards
Suppose you are already receiving disability compensation from VA for a disability or disabilities, and the VA wants to reduce those awards. In that case, the VA will send you a “proposal to reduce” letter showing the proposed action (The proposed rating they want to assign and the effective date of the reduction). This is just a proposal and cannot be appealed. Once you receive a “proposal to reduce,” you have 60 days from the date of that proposal to submit any additional evidence to the Regional Office stating why you think your evaluation shouldn’t be reduced. After the 60-day period is up, an RVSR will make a decision whether to actually reduce the award(s) or maintain the current rating as is. Once the RVSR makes a decision, they will send you a rating decision detailing their decision. If the RVSR decides to reduce the award(s), then the veteran has the one-year to submit a Notice of Disagreement (NOD) to start the appeals process outlined above.
If you want to make the VA hold off on reducing the monetary amount on the proposed date, you can file a request for a hearing. This must be done in writing within 30 days of receiving the “Proposal to Reduce.” Once you have submitted a request for a hearing (just a simple letter as there is no prescribed form), the VA cannot reduce the evaluation on the proposed date until the hearing is held, regardless of how long it takes to have that hearing.
Pyramiding is the prohibition of assigning more than one evaluation per bodily etiology based on the same symptoms. CFR 38, §4.14 states;
“The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service-connected, others not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided.”
The VA compensates a veteran for symptoms of residuals from injuries or diseases suffered to a body part while on active duty, not the number of injuries or diagnosis to a particular body area. For example, if a veteran has a lower back disability, let’s say IVDS with scoliosis. Scoliosis would not be rated separately because it is also within the lower back. It would be “lumped” together in the rating with IVDS. Having said that, the lower spine (Lumbar and Thoracic) and upper spine (Cervical) can be rated separately because they are two separate moving parts of the spine. Another common one that veterans seem to misunderstand is mental disabilities. A veteran can only be compensated for one mental disability at a time. For example, if a veteran has PTSD and Depression, the VA would determine which of the two warrants the higher rating and “lump” the lesser one with the other.
One joint in the body can have more than one rating without pyramiding. That’s the knee. The knee can obtain two ratings, such as limited range of motion and lateral instability, as long as the second one is compensable at the 10% rate or higher. For further reference, see VAOPGCPREC 23-97 and VAOPGCPREC 9-98.
Individual Unemployability (IU) or also known as Total Disability due to Individual Unemployability (TDIU) is a rating that pays veterans at the 100% rate who do not meet the 100% criteria according to the 1945 Rating schedule because they are unable to secure and maintain a substantial gainful occupation due to their service-connected disabilities. The requirements needed to be considered for IU are spelled out in 38CFR4.16. There it states;
38CFR4.16 4.16 Total disability ratings for compensation based on unemployability of the individual.
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:
- Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,
- disabilities resulting from common etiology or a single accident,
- disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
- multiple injuries incurred in action, or
- multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.
[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]
One thing to keep in mind is that if a veteran doesn’t meet the schedular requirements stated in subparagraph (a), there is still the possibility of obtaining IU under subparagraph (b). However, considerations under subparagraph (b) rarely happen because, first, the RVSR must think you are unable to obtain and maintain a substantial gainful occupation due to your service-connected disabilities, which becomes a judgmental call on their part and, second, if the RVSR thinks you can’t work because of your service-connected disabilities, he/she must submit the claim to the Director of Compensation and Pension in Washington, D.C. for extra scheduler approval.
Having said all of this, a veteran still should file the application for IU (VA Form 21-8940) if they are unable to work because of their service-connected disability, regardless of their rating percentages. I say this because when a veteran submits VA Form 21-8940, it also acts as a claim for an increase in evaluation. Suppose the veteran does not meet the schedular requirements stated in subparagraph (a) and submits the IU application. In that case, the VA will first see if the disabilities warrant an increase in evaluation. If so, they will determine whether the increase then meets the schedular requirement and if they do, then VA will address the issue of Individual Unemployability. By submitting VA Form 21-8940 when one is unable to secure and maintain a substantial gainful occupation due to their service-connected disabilities, regardless of their rating percentages, they protect the earliest effective date possible.
If you decide to apply for IU, you can do a few things to speed up the process. When sending in VA Form 21-8940, you should have each of your former employers from the last five years fill out and sign VA Form 21-4192 and then attach them to the IU application. Also, suppose any of your private physicians can write statements concerning you being unable to work because of your service-connected disabilities. In that case, they will help and should also be attached to the IU application.
Note: Your service-connected disabilities must be the sole reason for being unable to work. If there are any non-service-connected disabilities involved, then a physician will need to make a statement as to why the non-service-connected disabilities are a non-factor in you being unable to work.
Independent Medical Opinions by Your Private Physician
An Independent Medical Opinion (IMO) from a treating physician is, in many instances, a critical part of a veteran’s disability compensation claim. An IMO may sway the “benefit of the doubt” in favor of a veteran’s claim, or it may actually be the missing ‘link’ or nexus in a claim. When a veteran asks his or her physician to compose an IMO, there are a couple of things that should be noted in it. One of the most important things that should be done and mentioned in the IMO is that the medical professional has reviewed the entire medical record, including the veteran’s SMRs. The medical professional should also state his or her area of expertise and additional training. For example, if the doctor is board certified in radiology, they should state that, especially when rendering any comments regarding radiological film studies. Also, it is very important that the physician give their rationale as to why they have come to a certain conclusion. When giving his/her rationale, the physician should also cite any relevant medical literature that may support the findings. By doing all of this, the IMO becomes probative. There is also certain language the physician needs to use when opining whether or not the disabilities at hand is/are related to the veteran’s service.
The following phrases are from the Department of Veterans Affairs’ “Clinician’s Guide for Disability Examination;.”
“is due to” (100% sure)
“more likely than not” (greater than 50%)
“at least as likely as not” (equal to or greater than 50%)
“not at least as likely as not” (less than 50%)
“is not due to” (0%)
The phrase “at least as likely as not” is the legal phrase that is needed for the VA to award service connection for a particular disability based on the “Benefit of the Doubt” when an IMO should be the deciding factor in the evidence of record.
Note: You shouldn’t send your regional office any medical articles printed from the internet. They only pertain to the general population and aren’t afforded very much weight when they are being evaluated by the decision maker. The VA needs something from a doctor that states your disabilities are related to your service, not something meant for the general public.
Reasonable Doubt Rule
The Reasonable Doubt rule is one of the most important liberalizing rules that the VA uses to grant veterans benefits and is defined under 38 CFR, §3.102. The Reasonable Doubt rule means that when there is an equal balance of evidence for and against the claimant, the claimant is awarded their claim. This is just like in baseball as the “tie goes to the runner.” Keep in mind this doesn’t mean that just because there are ten pieces of evidence for your claim and ten against that, you will be granted your claim. It means that after consideration by the decision maker at VA, they have weighed the evidence, and there is an equal balance in their judgment. They must resolve reasonable doubt in the claimant’s favor. It also doesn’t mean that if, for example, there are five pieces of evidence in favor of a claim and only one against, a claim will automatically be granted because there is a preponderance of the evidence (meaning more evidence in favor of the claim than against) in your favor. The decision maker must still weigh the probative value of each piece of evidence and determine the weight of each piece in relationship to each other and the claim, and then reach a decision as to whether there is a balance of evidence for the claim and against the claim based on the weight given to each of that evidence.
38CFR3.102 Reasonable doubt.
It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.
Note: The resolution of the Reasonable Doubt doctrine can not be the basis for a Clear and Unmistakable Error (CUE). Since the Reasonable Doubt doctrine is based on Judgment made by a decision maker, it cannot be a basis for a CUE.
Obtaining a copy of your Claims Folder from VA
The best way to obtain a copy of your claims folder (your C-file) from the VA is to write a letter to your regional office citing the 1974 Privacy Act. When doing so under the 1974 Privacy Act, the VA has, according to federal law, 20 days to respond.
I hope this guide has been able to help you understand how the VA operates and why they need certain things to award disability compensation benefits. The key to being awarded service-connected disability compensation is evidence. You’ll receive your deserved benefits if you have evidence of the three portions of a valid disability claim.