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Veterans Guide to VA Benefits

A guide for veterans, their family members and those assisting them to successfully apply for benefits from the United States Department of Veterans Affairs ("VA").

1. Veterans Benefits

1.1. Introduction

VETSFIRST created this KNOWLEDGE BOOK to guide veterans, family members, and those assisting them, in successfully applying for benefits from the United States Department of Veterans Affairs ("VA"). Each of the parts of this KNOWLEDGE BOOK is intended to allow users to quickly find the information that they are looking for and to identify related information for further review. To accomplish this goal, VETSFIRST has developed this KNOWLEDGE BOOK  to:

  1. briefly describe the VA benefits process; 
  2. explain how to prepare and submit an application for VA benefits; 
  3. identify and discuss the legal basis for VA's rules, processes, and policies;
  4. discuss information requirements and provide suggestions to improve applications involving specific conditions; and 
  5. provide a wide range of supporting information and links to useful websites.

Using the KNOWLEDGE BOOK information, a veteran or family member can quickly find how to generally file an application, gain an understanding of the applicable rules and regulations, review the requirements for an award for a specific condition, or determine how best to respond to a VA question.

VETSFIRST hopes that you will find this KNOWLEDGE BOOK helpful and a useful resource whether you are considering submitting your first application for VA benefits, researching an appeal, or assisting another claimant in responding to a VA request or notice.

1.2. Overview of the Veterans Benefits System

The United States government has had an administrative agency to resolve claims for benefits arising from military service since the Civil War and has been known as:

  • Known as the "Pension Bureau" from 1862 to 1933,
  • the "Veterans Administration" from 1933-1988, and
  • the "Department of Veterans Affairs" from 1998 to the present.

The organization is almost universally known as the "VA".    However you refer to the organization, it is important to understand that VA is the primary federal organization authorized by Congress to award benefits to qualifying veterans and dependents.  All VA legislation is contained in U.S. Code: Title 38 - Veterans' Benefits.

In addition to VA, other federal agencies, such as the Social Security Administration and Department of Labor, also have programs for which veterans and dependents may be eligible. These programs are beyond the scope of this Knowledge Book. Veterans interested in such programs are encouraged to contact "Ask VetsFirst" or another Veterans Service Organization for details.

Congress establishes the requirements for a veteran or other eligible individual to qualify for VA benefits. To be eligible for VA benefits, two things must be documented or established:

  1. Eligibility must be established, and
  2. Entitlement must be established.

2. VA Benefits- Legal Bases for Benefits

2.1. Introduction to Legal Bases

The VA is an "administrative agency" of the United States government.  What that means to veterans and dependents seeking VA benefits is that VA must have—and follow—procedures for processing and deciding claims.  These procedures must comply with both Congress's statutes and VA's own regulations.  Claimants handling their own claims should be familiar with the different types of procedures used by VA to adjudicate his or her claim.

2.2. Sources of Authority

Acts of Congress

Although many acts of Congress have had some impact on the law governing veterans' benefits, three acts define the current VA benefits adjudication system.  The Veterans' Judicial Review Act of 1988 ("generally referred to as the "VJRA").  Pub. L. No. 100-687, 102 Stat. 4105 (1988).  Among other things, the VJRA:

  1. removed the bar to paid representation of veterans by attorneys and allowed a reasonable fee to be paid;
  2. created a court to review decisions of the Board of Veterans' Appeals; and
  3. opened a path to higher level review by the United States Court of Appeals for the Federal Circuit and the United States Supreme Court.

The Veterans Claims Assistance Act of 2000 (the "VCAA") explicitly established the VA's duty to assist veterans with their claims.  Pub. L. No. 106-475, 114 Stat. 2096 (2000).  Finally, the Veterans Benefits, Health Care, and Information Technology Act of 2006 permitted veterans to retain paid legal counsel following the filing of a Notice of Disagreement instead of having to wait until a Board denial.  Pub. L. No. 109-461, 120 Stat. 3403 (2006).

Statutes

Acts of Congress are not generally constructed in a way to be directly useful in resolving specific complaints or applications for benefits.  In many acts, the bulk of the language is detailed directions on how to amend existing statutes to add or delete a word, a phrase, or a complete section.  It is only after the directions contained in an act are implemented in a "statute" that a complete process can be applied to specific cases.  The entire set of statutes is called the United States Code ("USC"). 

For VA, all of the applicable statutes incorporating Congress' directions regarding VA benefits are located in Title 38 of the United States Code.

Regulations

As with other administrative agencies, VA actions are governed by both "regulations" (also called "rules") and "informal" internal guidance such as policies, office manuals, and management directives.  The Administrative Procedure Act (APA) mandates that federal agencies publish their substantive rules, and amendments thereof, in the Federal Register, to provide notice to affected citizens and the opportunity to comment. See 5 U.S.C. §§ 552, 553; Morton v. Ruiz, 415 U.S. 199, 232 (1974) (APA provides that "administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations").  The VA's rules are found in Title 38 of the Code of Federal Regulations.  The reference is often shortened to "38 C.F.R." or "38 CFR" followed by the section number (for example, 38 C.F.R. § 3.103, 38 CFR 3.103, or 38 C.F.R. section 3.103).  These rules must comply with the statutes in Title 38 of the United States Code, which is often similarly shortened to "38 U.S.C." or "38 USC."[1] 

Although it was VA policy to comply voluntarily with the APA since 1972, VA was not otherwise required by law to comply with the APA until the Veterans' Judicial Review Act (VJRA) became effective in September 1, 1989. Compare Administrative Procedure Act, Pub. L. No. 89–554 (1966) (excluding matters relating to "benefits" from the APA), with Veterans' Judicial Review Act, Pub. L. No. 100–687 (1988) (subjecting VA to the APA); see also 38 C.F.R. § 1.12 (1972) ("It is the policy of the Department of Veterans Affairs to afford the public general notice, published in the

Federal Register, of proposed regulatory development, and an opportunity to participate in the regulatory development in accordance with the provisions of the Administrative Procedure Act (APA). All written comments received will be available for public inspection."). Thus, until passage of the VJRA, VA rules and regulations lived in "splendid isolation," generally unconstrained by judicial review.  Brown v. Gardner, 513 U.S. 115, 122 (1994); see Pub. L. 100–687 (permitting judicial review by this Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)).

Given this unique history, it is not a surprise that substantive rules promulgated before the APA might be contained in the M21–1MR or a directive, letter, or other document (as described below).  See Buzinski v. Brown, 6 Vet. App. 360, 369 (1994) (noting that Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), held that "VA handbooks, circulars, and manuals" may have the "force and effect of law" if they prescribe substantive rules); Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990) (the placement of a rule "in a procedural manual cannot disguise its true nature as a substantive rule"), aff'd, 972 F.2d 331 (Fed.Cir.1992).

Moreover, substantive rules promulgated prior to the statutory requirement that VA comply with the APA remain binding on the Secretary until they properly are revoked or amended.  See Fugere, 1 Vet. App. at 110 (noting that a substantive rule may not be rescinded until the Secretary has "'published notice of his intention to rescind it, invited comment, put that comment ... on the public record, and published a reasoned and reviewable explanation of his decision to rescind [it].'" (quoting Nat'l Wildlife Fed'n v. Watt, 571 F. Supp. 1145, 1156 (D.D.C. 1983))).  This is consistent with procedural regularity and basic fair play required in adjudicating veterans' claims. See Thurber v. Brown, 5 Vet. App. 119, 123 (1993) (holding that veterans in particular are entitled to "procedural regularity and basic fair play" in the adjudication of their claims); Fugere, 1 Vet. App. at 108 ("'Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.'" (quoting Morton, 415 U.S. at 235)).

Further, it is clear a properly promulgated regulation trumps an M21–1MR provision or other VA directive that plainly is erroneous or inconsistent with regulation.  Compare Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) ("VA interpretations of its own regulations in its Adjudication Procedures Manual [M21–1MR] are 'controlling' as long as they are not 'plainly erroneous or inconsistent with the regulation.'" (citing Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed.Cir.2009) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)))), Haas, 525 F.3d at 1197 (holding that an M21–1MR requirement inconsistent with regulation confers no rights on claimant), and Fournier, 23 Vet. App. at 487–88 (discussing Haas), with Cohen v. Brown, 10 Vet. App. 128, 139 (1997) ("Where the Manual M21–1MR and the regulation overlap, the Manual M21–1MR is irrelevant .... except where the Manual M21–1MR is more favorable to the claimant.").  See also Castellano v. Shinseki, 25 Vet. App. 146, 150-52 (2011).

The BVA is not free to ignore regulations that the Secretary has promulgated consistent with his statutory authority.  Rather, the "BVA is required to apply all relevant statutes and regulations appropriate to the particular case before it."  Wilson (Merritte) v. West, 11 Vet. App. 383, 385 (1998) (holding that failure of VA to follow its own regulations in terminating dependency and indemnity compensation benefits, based on severance of service connection, constituted prejudicial error); see also Patton v. West, 12 Vet. App. 272, 283 (1999) ("the Court believes that substantial interests of justice dictate that the Court require the Secretary to adhere to his own regulatory provisions"); Buzinski v. Brown, 6 Vet. App. 360, 367 (1994) ("we agree that ... VA is obligated to follow the regulations it promulgates" (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 269 (1954); Vitarelli v. Seaton, 359 U.S. 535, 539 (1959))).

OGC Opinions

The Office of General Counsel of the Department of Veterans Affairs ("OGC") is the Secretary's law firm.  One role of OGC is to issue written legal opinions on questions of law raised in adjudicating benefits claims.  The General Counsel's interpretations on legal matters in those opinions are binding on VA officials, the Board, and VA regional offices in adjudications until a change in the law by Congress, a Court decision, or a later written OGC opinion.

The Court, however, is not bound by VA General Counsel precedent opinions.  Hatch v. Principi, 18 Vet. App. 527, 531 (2004); see also Theiss v. Principi, 18 Vet. App. 204, 210 (2004); Cottle v. Principi, 14 Vet. App. 329, 335 (2001); Sabonis v. Brown, 6 Vet. App. 426, 429 (1994); see also 38 U.S.C. §§ 7104(c), 7261.  The Court reviews the Secretary's interpretation of law de novo.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (en banc).  Hatch v. Principi, 18 Vet. App. 527, 531 (2004).

M21-1MR Manual

It is very difficult to run an organization as large as the VA with only the formal rules in the Code of Federal Regulations.  So, as with many other federal agencies, VA has developed all sorts of "informal" guidance for its employees to use in performing day-to-day work.  This guidance can be in the form of manuals, "letters," "memos," or policies.  Although no one challenges the usefulness of such "guidance," whether or not these types of documents are the "law" can be an important issue in litigation where a claimant challenges the way VA handles his or her claim.

VA has developed a detailed procedures manual, the Compensation and Pension Manual Rewrite (designated by VA as the "M21-1 MR" manual), to guide its raters and reviewing officials who adjudicate benefits claims.  The M21-1 MR is primarily "an internal manual used to convey guidance to VA adjudicators [and] not intended to establish substantive rules beyond those contained in statutes and regulations."  See Guerra v. Shinseki, 642 F.3d 1046, 1050-51 (Fed. Cir. 2011) (quoting 72 Fed. Reg. 66,218 (Nov. 27, 2007)).  In other words, the M21-1MR is only guidance for VA personnel and the guidance in the M21-1MR does not replace or overrule Congress's statutes or VA's regulations.

Because it can take a long time and significant effort to complete a rulemaking and because many VA rules were created before Court review was available, VA sometimes tries to enforce M21-1MR guidance as if it were a regulation.  The Court, however, has determined that the placement of a rule "in a procedural manual cannot disguise its true nature as a substantive rule," Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992), because substantive rules are deemed "the equivalent of VA regulations."  Cohen v. Brown, 10 Vet. App. 128, 139 (1997).  This means that if there is a conflict between the M21-1MR manual and a substantive rule (a statute in the U.S.C. or a C.F.R. rule), the statute or rule prevails.  In other words, just because the VA says that the M21-1MR requires something does not mean that the law necessarily requires the same thing.  If the issue is important to an award, a claimant should do further research to see if the relevant regulation and statute require a different action or result.

Other VA Policies, Procedures, and Guidance

In certain circumstances, M21-1MR provisions may be construed as "the equivalent of Department regulations."  See Hamilton v. Derwinski, 2 Vet. App. 671, 675 (1992) (holding that substantive rules in the M21-1MR Manual are binding on VA).  As such, the Board errs when it fails to consider a M21-1MR provision's possible relevance with respect to VA's compliance with the duty to assist.  See 38 U.S.C. § 7104(a).  Likewise, the Board should consider the applicability of Fast Letters or predecessors.  Id.; see also United States v. Picciotto, 875 F.2d 345 (D.C. Cir. 1989).  Such a policy does not create "new substantive law" it merely clarifies the applicable regulation by "provid[ing] concrete guidance as how" the regulation should "be applied in practice."  Stinson v. United States, 508 U.S. 36, 44 (1993) (holding that the sentencing commission's commentary to the sentencing guidelines is treated as an agency's interpretation of its own legislative rule).

Moreover, a handbook "reflect[s] the agency's fair and considered judgment on the matter in question."  Auer v. Robbins, 519 U.S. 452, 462 (1997).  When a handbook was created prior to pending litigation and the policy prescribed therein is consistent with the information provided in other guidance documents issued by the Secretary, the handbook is "in no sense a 'post hoc rationalizatio[n]' advanced by an agency seeking to defend past agency action against attack."  Auer, 519 U.S. at 462 (quoting Bowen v. Georgetown Univ., 488 U.S. 204, 212 (1988)).  In order for VA handbooks, circulars, and manuals to have the "force and effect of law" they must "prescribe substantive rules—not interpretive rules."  Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982).  The Rank court found that the VA Lender's Handbook and VA Circular 26–75–8 did not prescribe substantive rules but were "general statements of agency policy and procedure" intended as a "general guide to VA employees," and thus there was no enforceable duty on the part of the VA to "take all reasonable measures to avoid foreclosure."  Rank II, 677 F.2d at 698.

The distinction set out in Rank II between "substantive" and "interpretive" rules is similar to this Court's analysis.  Fugere v. Derwinski, 1 Vet. App. 103, 107–08 (1990) (noting the distinction between "substantive" and "interpretive" rules for enforceability purposes, and holding that a VA manual provision regulating the award of benefits for defective hearing "affected a substantive right and [that] its placement in a procedural manual [could not] disguise its true nature as a substantive rule."); see also Hayes v. Brown, 4 Vet. App. 353, 360 (1993); Suttmann v. Brown, 5 Vet. App. 127, 138 (1993).  The VA issuances discussed in Rank II, 677 F.2d at 694–95, imposed no specific mandatory duties on VA employees as distinguished from providing general guidance.  Buzinski v. Brown, 6 Vet. App. 360, 369 (1994).

However, "not all agency policy pronouncements which find their way to the public can be considered regulations enforceable in federal court."  Chasse v. Chasen, 595 F.2d 59, 62 (1st Cir. 1979).  "[I]n order for VA handbooks, circulars, and manuals to have the 'force and effect of law' they must 'prescribe substantive rules—not interpretive rules.'" Buzinski v. Brown, 6 Vet. App. 360, 369 (1994) (quoting Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir.1982)).  Such a result is also possible as to VA issuances that predate the VCAA, should a VA adjudication under the implementing regulations provide a result less favorable than would have been provided under those pre-VCAA issuances.  See, e.g., McCormick v. Gober, 14 Vet. App. 39 (2000) (holding that VBA Letter 20-99-60 was binding VA issuance although not adopted after notice and opportunity for public comment); Morton, supra (as to withdrawal of opinion); Patton v. West, 12 Vet. App. 272, 277-84 (1999) (holding certain parts of VA Adjudication Procedure Manual, M21-1MR, were binding on VA); Cohen (Douglas) v. Brown, 10 Vet. App. 128, 139 (1997) (same).  Holliday v. Principi, 14 Vet. App. 280, 292 (2001) overruled by Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The VA "Clinician's Guide" is an instructive, but not a binding, document and allows each VA examiner discretion as to how to conduct an examination in an individual case.  See Allin v. Brown, 6 Vet. App. 207, 214 (1994).  The first chapter of the Guide states, "[t]he Clinicians Guide and any of its parts (worksheets) are intended solely as a guide for clinicians, and it is not legally binding on a clinician to perform all portions of the examination protocol."  VA Clinician's Guide, § 1.1 (2002).  Moreover, to the extent that an appellant disagrees with the qualifications or conclusions of the medical examiner, the competency of VA examiners is to be presumed, based on the presumption of regularity, in the absence of evidence to the contrary.  Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table)). Because the examiner is presumed competent, the examiner's medical judgments, such as what tests to perform and what details of an examination are salient, are also presumed to be sound in the absence of sufficient contrary evidence.  See, e.g., Sickles v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (due to presumed competency of medical examiner, Board was entitled to presume that a VA medical examination was sufficiently informed by a physical examination or other diagnostic procedures selected by the examiner); see also Rizzo, 580 F.3d at 1292 (the presumption of regularity may be rebutted by the submission of clear evidence to the contrary).



[1]  You may also see references to "38 U.S.C.S." (United States Code Service") or "38 U.S.C.A."  (United States Code Annotated).  These are versions of the United States Code published by non-governmental organizations and which provide additional comments or references in addition to the statute itself.  The differences between these different versions in not important for the purposes of this Knowledge Book.

2.3. Due Process

The entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.  The Secretary shall provide notice of a decision regarding a claim for benefits and "an explanation of the procedure for obtaining review of that decision."  38 U.S.C. § 5104(a); see Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991).  "Each appellant will be accorded hearing and representation rights pursuant to the provisions of [38 U.S.C. Chapter 71] and regulations of the Secretary."  38 U.S.C. § 7105(a).  The VA regional office (RO) must provide notice of the right to appeal in regular and in simultaneously contested claims.  38 C.F.R. §§ 19.25, 19.100. 


In simultaneously contested claims, the VARO must provide notice of appeal to other contesting parties.  38 C.F.R. § 19.102.  It must provide notification of the filing of an administrative appeal.  38 C.F.R. § 19.52.  It must furnish a Statement of the Case (SOC) to a claimant, 38 C.F.R. § 19.30, which "must be complete enough to allow ... appellant to present written and/or oral arguments before the [BVA]."  38 C.F.R. § 19.29.  In simultaneously contested claims, each interested party must be furnished with an SOC.  38 U.S.C. § 7105A; 38 C.F.R. § 19.101.  


A Supplemental SOC (a "SSOC") is required when an appellant submits additional evidence to the VARO prior to the transfer of appellant's records to the BVA, 38 C.F.R. § 19.37(a), and when a BVA remand of a case to the VARO results in additional evidentiary or procedural development and continuation of the denial of benefits, 38 C.F.R. § 19.38; see generally 38 C.F.R. § 19.31 ("a period of 60 days ... will be allowed for response"); 38 C.F.R. § 20.302(c) (but only 30 days, in the case of a simultaneously contested claim, 38 C.F.R. § 20.501(c)).


If the BVA questions the adequacy of appellant's substantive appeal, appellant is provided "notice ... and a period of 60 days ... to present written argument or to request a hearing to present oral argument."  38 C.F.R. § 20.203.  The Board shall decide an appeal "only after affording the claimant an opportunity for a hearing."  38 U.S.C. § 7104(a).  In connection with the right to a hearing, a claimant has the right to present evidence, testimony, and argument in support of a claim.  38 C.F.R. § 20.700.


A claimant has the right to notification of the time and place of the hearing on appeal.  38 C.F.R. § 20.702(b).  A claimant has the right to notification of the certification of appeal and transfer of the appellate record to the BVA.  38 C.F.R. § 19.36.  If a "Travel Board" hearing is held, a claimant must be notified of its time and place.  38 C.F.R. § 19.76.  When a "Travel Board" hearing is requested, a claimant must be furnished with an SOC if not previously furnished.  38 C.F.R. § 19.77.  


"After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant."  38 U.S.C. § 7104(e).  A claimant is entitled to a hearing if a motion for reconsideration of a final BVA decision is granted.  38 C.F.R. § 20.1003.  The BVA may vacate an appellate decision which denies "due process of law" upon the request of appellant, or on the BVA's own motion.  38 C.F.R. § 20.904.  Thurber v. Brown, 5 Vet. App. 119, 123-24 (1993).


As written, the due process provisions of 38 C.F.R. section 3.103 apply only to benefits and relief under part 3 of title 38 of the Code of Federal Regulations.  Part 3 is entitled "ADJUDICATION," and is divided into two subparts: subpart A, which deals with compensation, pension, and DIC, and subpart B, which deals with burial benefits.  As written, section 3.103(b)(2) requires pre-termination/reduction notice only where there is a termination or reduction of an "award of compensation, pension or [DIC]."  Grovhoug v. Brown, 7 Vet. App. 209, 214 (1994).

2.4. Right to be Heard

"Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of [title 38 of the Code of Federal Regulations.]"  38 C.F.R. § 3.103(c)(1).  "It is the responsibility of the [VA] employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position [on appeal]."  38 C.F.R. § 3.103(c)(2).  This provision "imposes ... two distinct duties on the hearing officer ...:  The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked."  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (per curiam).  These requirements are designed "'[t]o assure clarity and completeness of the hearing record.'"  Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2)); see also Bryant, 23 Vet. App. at 499.


"The entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process."  Thurber v. Brown, 5 Vet. App. 119, 123 (1993); see Cushman v. Shinseki, 576 F.3d 1290, 1300 (Fed. Cir. 2009) (Due Process Clause applies to proceedings for veterans benefits); Gambill v. Shinseki, 576 F.3d 1307, 1310-11 (Fed. Cir. 2009) (same).  The Fair Process doctrine does not prohibit administrative procedures based on a claimant's perception that they may be "unfair."  Rather, the doctrine provides claimants with the procedural protection of requiring that they receive notice and an opportunity to be heard, not just once, but "at virtually every step in the process."  Thurber, 5 Vet. App. at 123.


In order to follow this regulatory mandate, a hearing officer "cannot ignore a lack of evidence in the record on a material issue and not suggest its submission, unless the record (or the claimant at hearing) clearly shows that such evidence is not available."  Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (per curiam).  In regard to the duty to explain issues fully, the Court has stated that when the RO has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then the Board hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer's explanation and discussion should be centered on these issues.  Bryant, 23 Vet. App. at 496.  In regard to the duty to suggest the submission of overlooked evidence, the Court in Bryant clarified that "nothing in the regulation limits the Secretary's duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing;" rather, the hearing officer "must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record." Bryant, 23 Vet. App. at 496- 97.

2.5. Compliance with VA Procedures

A key legal requirement for all claimants to be aware of is that VA must follow its own procedures, specifically including the M21-1MR, in deciding a claim.  The U.S. Supreme Court has stated that, "[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.  This is so even where the internal procedures are possibly more rigorous than otherwise would be required" by statute or regulation.  Morton v. Ruiz, 415 U.S. 199, 235 (1974).  This is important when VA takes a "short cut" to save time or effort and then denies a claim.  The law is that even if a regulation requires less effort than a procedure used by VA in similar circumstances, VA cannot pick and choose when to follow its own rules and when not to do so.  See Castellano v. Shinseki, 25 Vet. App. 146, 151 n.2 (2011) ("[T]he Secretary must adhere to his own policies when adjudicating veterans' claims." (citing Morton, 415 U.S. at 235 (1974)).  Yet, 38 C.F.R. § 19.5 states that "[t]he Board is not bound by Department manuals, circulars, or similar administrative issues."

A claimant can and should identify any failure to follow the M21-1MR procedures that are relevant to his or her claim.  Compliance with the M21-1MR can also be reasonably raised by the record such that the Board should address the issue.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (Board must discuss provisions of law and regulation where they are made "potentially applicable through the assertions and issues raised in the record").  A regional office's failure to follow the M21-1MR and the Board's failure to identify such issues frustrates judicial review, warranting remand.  See Tucker v. West, 11 Vet. App. 369, 374 (1998) (where "the Board has incorrectly applied the law, failed to provide an adequate statement of its reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."); Allday v. Brown, 7 Vet. App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court").

3. Veterans Benefits-Veterans Law

3.1. Unique Aspects of Veterans Law

The basic operation of VA is very similar to other federal agencies. The legal requirements that VA must follow are created by Acts of Congress and codified in statutes. The VA Secretary, however, has very broad powers to prescribe the many rules and regulations "necessary or appropriate" to carry out those legal requirements. And, as long as the Secretary's actions "are consistent" with the laws enacted by Congress, a court will not interfere with VA's decisions.

Congress, however, has long recognized that veterans have earned special consideration for their service to the country. In recognition of this service, Congress has imposed several special duties and requirements on VA to ease the burden on veterans seeking benefits. Claimants should be aware of these special considerations because they provide a veteran with significant advantages in seeking an award.

3.2. Non-Adversarial System

There is a "basic principle of the VA claims process that claims will be processed and adjudicated in an informal, nonadversarial atmosphere, and that to ensure a just outcome under this rubric VA will assist claimants in many ways."  Evans v. Shinseki, 25 Vet. App. 7, 14 (2011); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (stating that although the arguments made in a VA Form 9 appeal to the Board often frame the nature of that appeal: "there is nothing magical about the statements actually on the Form 9, given the VA's non-adversarial process.").  A claimant for VA benefits has avenues to seek redress before the Secretary within the non-adversarial VA system (motions for reconsideration at the Board, motions alleging clear and unmistakable error in Board or VARO decisions, requests for vacation of Board decisions based upon denial of due process, and even requests for equitable relief from the Secretary have long been available).  See 38 U.S.C. §§ 503, 5109A, 7103, 7111; 38 C.F.R. §§ 20.904, 20.1001, 20.1400.  

Unlike other federal benefits systems, such as the Social Security Administration process, the VA claims process is intended to be "non-adversarial, paternalistic, uniquely pro-claimant." This means that VA is supposed to help claimants with obtaining an award, rather than opposing an award and forcing applicants to "prove" their claims by themselves. This does not mean that a claimant should "file and forget" a claim and expect VA to award a claim without questions, but Congress has removed or reduced many of the most burdensome aspects of obtaining federal benefits for VA claimants.

A significant advantage for veterans seeking benefits is that VA has no formal "pleading" requirements. This eliminates the need for a claimant to identify the specific benefits and the specific legal bases for an award when submitting a claim. Instead, VA claimants only have a general duty to file a "substantially complete" claim.

It is important to keep in mind that, even with the advantages provided by Congress, a VA claimant still has the responsibility to present and support a claim for benefits. This means that an application must provide enough information to allow VA to reasonably attempt to develop a claim to meet the legal requirements for an award. This is not a high threshold, but a claimant must meet it to have VA assist with a claim.

Filing an NOA under section 7266, however, demonstrates the exact opposite intent – a claimant's intent no longer to pursue his claim for benefits through the Secretary, but instead to take the Secretary to court by seeking a legal review before the Court of the Secretary's actions on his case.  This separation between VA and the Court was made even more emphatic when Congress passed the Veterans Education and Benefits Expansion Act, Pub. L. No. 107-103, 115 Stat. 976 (Dec. 27, 2001), and removed from section 7266 the requirement for a veteran to "furnish the Secretary with a copy of [an NOA]."  Bobbitt v. Principi, 17 Vet. App. 547, 552-53 (2004).

Filing an appeal to the Court thus is not an action within the "non-adversarial, manifestly pro-claimant veterans' benefits system."  Rather, a veteran's appeal to this Court is the first step in an adversarial process challenging the Secretary's decision on benefits.  See Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc), cert. denied, 537 U.S. 823, 123 (2002) ("The veterans' benefits system remains a non-adversarial system when cases are pending before the Veterans' [sic] Administration.  However, the Court of Appeals for Veterans Claims' proceedings are not non-adversarial.").  Before the Court, the Secretary becomes a represented appellee in an appellate court adversarial proceeding.

3.3. Duty to Assist

In requiring the VA benefits system to be a "non-adversarial" process, Congress has imposed on VA a "duty to assist" claimants. The most significant VA duties are discussed below. In general, VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. VA also has a duty to obtain a veteran's service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that reasonably may contain information supporting the claim. These duties significantly ease the burden on claimants in assembling the evidence needed to support a claim.

The duty to assist, however, does not mean a claimant has no responsibility for his or her claim. Even if a claim satisfies the minimum threshold for the duty to assist to apply, the law requires VA only to "assist" a veteran with the development of the evidence in support of his or her claim: there are limits on what VA has to do to help a veteran. A claimant seeking a benefit, still has a responsibility to be an active participant in the claims process if he or she wants to be successful.

VA has other duties that can be helpful to claimants in certain circumstances. If an award is made, VA has a duty to look for ways to maximize the benefit paid to a claimant based on the evidence. This means that VA has to consider all the possible diagnostic codes that could apply and base an award on the code or codes that result in the highest payment. VA also has to identify and grant awards for "inferred" claims, which are claims that the evidence supports but the claimant did not specifically request. Both of these duties make it easier for veterans to receive the greatest benefit possible without having to be an expert in VA law.

A claimant also needs to keep in mind that, the duty to assist aside, VA also has responsibilities to follow the law and to prevent improper awards. As a practical matter, this means that the system eventually becomes "adversarial" when VA decides that an award cannot be granted. Further, the huge backlog of claims has strained VA's resources and continues to result in a high rate of errors. For these reasons, claimants should remain actively involved in their claims and maintain a healthy skepticism of VA decisions throughout the process to avoid a wrongful denial.

DUTY TO PROVIDE NOTICE

A claimant has an initial responsibility to file a substantially complete application. If he or she does not do so, VA does not have to process the application. VA does, however, have a "duty to notify" the claimant of the information needed to make the application complete enough to process.

Although exactly what makes an application substantially complete is not defined, VA usually requires at least the following minimum information for a substantially complete application: (1) claimant's name and, if not the veteran, the relationship to the veteran upon whom the application is based; (2) the medical condition(s) claimed; and (3) the claimants signature. Pension claims also require a statement of income before VA will begin processing the claim. Whatever the reason, if VA determines that an application is not substantially complete, VA has to notify the claimant of the information that it believes is needed to complete the application.

Once a substantially complete application has been submitted, VA has a second "duty to notify." This time VA has to tell the claimant (1) what information is needed to substantiate the claim, (2) what part of that information VA will try to obtain; and (3) what information that the claimant is responsible for providing to VA. Each time a new issue or claim arises, VA has the same duty to notify the claimant of what information is needed and who (VA or claimant) is responsible for obtaining it.

Section 5103A notification requirements cannot be met through a combination of unrelated decisional and postdecisional communications.  Mayfield v. Nicholson, 444 F.3d 1328, 1335 (Fed. Cir. 2006).  Section 5103 requires VCAA notification to be issued "prior to the initial decision of the claim, not afterwards."  Id. at 1333. 

The Court must assess the Board's notification analysis as a whole to adequately determine whether a factual finding regarding 38 U.S.C. § 5103(a) notification had been made by the Board in the first instance.  Prickett, 20 Vet. App. at 375-76; Yarbrough v. Nicholson, 21 Vet. App. 512 (2006).  The Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review.  Nolen v. Gober, 14 Vet. App. 183, 184 (2000).  

DUTY TO OBTAIN RECORDS

The VA is required to make "reasonable efforts" to obtain a claimant's military service records, VA medical records, and other pertinent federal records without being asked to do so. If a claimant requests assistance in obtaining records from private physicians and hospitals, VA is required to try to obtain those records as well. However, VA is not required to continue to request or wait for records if it determines that the records do not exist or further efforts to obtain the records would be futile. In addition, VA will not pay for obtaining private medical records.

As a practical matter, VA usually can obtain records from government agencies and the military without significant problems. There are situations, however, where VA does not properly request documents or the documents have been lost or destroyed by another agency. VA must inform a claimant of its failure to obtain relevant records. A claimant can and should submit his or her copy of relevant documents even if VA is technically responsible for obtaining the information because the lack of relevant information can result in denial of an otherwise valid claim.

"The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary."  38 U.S.C. § 5103A(a)(1).  Gardner v. Shinseki, 22 Vet. App. 415, 421 (2009) ("Accordingly, the Secretary's duty to assist applies to all claimants, regardless of whether they have established veteran status.").  VA is statutorily required to "make as many requests as are necessary" to obtain a veteran's relevant service records in the custody of a Federal department or agency.  38 C.F.R. § 3.159(c)(2); see Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); see also Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992) ("There is a continuing obligation upon the VA to assist the veteran in developing the facts of his claim throughout the entire administrative adjudication.").

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the claimant of the information and evidence not of record that:

(1)   is necessary to substantiate the claim,

(2)   the Secretary will seek to obtain, if any, and

(3)   the claimant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim.  

See 38 U.S.C. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112, 119, 121 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). This duty includes making "reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain."  38 U.S.C. § 5103A(b)(1).  If the Secretary is unable to obtain all of the records sought, the Secretary must provide notice to the claimant that "identif[ies] the records that the Secretary was unable to obtain," "briefly explain[s] the efforts that the Secretary made to obtain those records," and "describe[s] any further action to be taken by the Secretary with respect to the claim." 38 U.S.C. § 5103A(b)(2).  These requirements also apply to private documents. 

But, the "duty to assist in the development and adjudication of a claim is not a one-way street."  Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996).  VA's duty to assist includes making "reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit."  38 U.S.C. §§  5103A(a)(1), (b); cf.  The Board's determination whether VA fulfilled its duty to assist generally is a finding of fact that the Court reviews under the "clearly erroneous" standard of review.  See Nolen v. Gober, 14 Vet. App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990).

DUTY TO OBTAIN LOST OR MISSING RECORDS

VA's duty in cases involving lost records is to seek out alternative sources for obtaining the lost records.  Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006).  Pursuant to 38 U.S.C. section 5103A, the Secretary is required to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for benefits."  38 U.S.C. §§ 5103A(a), (b). Where a claimant's records are lost or destroyed, VA has a "heightened" duty to assist the claimant that includes advising him that his records were lost, advising him to submit alternative forms of evidence to support his claim, and assisting him in obtaining his alternative evidence.  Washington v. Nicholson, 19 Vet. App. 362, 370 (2005); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). 

However, the Court cannot grant an appellant's claim solely because his records were lost because that remedy "would amount to a judicial amendment of the statutory duty to assist-a measure beyond the power of this court."  Id. at 1351.  A veteran bears the burden of showing error on this issue.  See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (holding that the appellant bears the burden of demonstrating error); Berger v. Brown, 10 Vet. App. 166, 169 (1997) (holding that an appellant "always bears the burden of persuasion on appeals to this Court").

When medical records are lost, it warrants a heightened duty by the Secretary and the Board to assist and explain the Board's findings.  See Vazquez-Flores, supra; see also Cromer v. Nicolson, 455 F.3d 1346, 1351 (Fed. Cir. 2006) ("[I]n cases involving lost records, the Board has a heightened duty to explain its findings."); Daye v. Nicholson, 20 Vet. App. 512, 515 (2006) (where appellant's records not available, the duty to assist and fully explain reasons and bases is heightened); Stegall, supra; see also Russo v. Brown, 9 Vet. App. 46, 51 (1996) (holding that the Court's caselaw establishes a "heightened duty" to assist when the appellant's medical records have been lost or destroyed); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) (holding that the Board's duty to assist a claimant in developing his claim is heightened in cases in which the appellant's SMRs are lost or destroyed "and includes the obligation to search for alternate medical records"); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) (holding that VA's duty to assist is "particularly great in light of the unavailability of the veteran's exit examination and full Army medical records").

DUTY TO PROVIDE MEDICAL EXAMINATION

VA is required to schedule a compensation and pension (C&P) examination for a claimant at the nearest VA medical center unless there is a good reason for not doing so, such as when an expert is required that is not available at the nearest facility or the examination is with a VA medical contractor. VA, however, does not have to provide a medical examination in all cases. The standard for providing a medical examination is usually not difficult to meet. VA, however, can refuse to provide a VA medical examination unless there is some reasonable possibility that an examination will provide information that could be useful in deciding the claim.

In general, to obtain a C&P examination a claimant needs to show a current medical condition, some evidence of potential connection to service, and that available medical evidence is not sufficient to allow a decision on the claim. In other words, the claimant must first provide some reason for VA to believe that a medical examination would be helpful in resolving the claim. A claimant's own statement that his or her symptoms have continued since service or a previous medical examination report can be enough of a reason.

Should VA schedule a medical examination, a claimant has a duty to report for the examination. In most cases, if the claimant does not show up for an examination, the claim(s) associated with that examination can be denied without further development. There are some reasons for failing to show for a scheduled examination, such as illness or urgent family emergency, that can be excused. Even so, claimants should make every effort to reschedule an examination in advance to avoid problems.

As part of his duty to assist, the Secretary must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit" including a medical examination.  38 U.S.C. § 5103A(a)(1).  The Secretary must provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim."  38 U.S.C. § 5103A(d)(1).  VA must provide a medical opinion or examination if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is:

(1)   competent evidence of a current disability or persistent or recurrent symptoms of a disability;

(2)   evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and

(3)   an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability.

McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 C.F.R. § 3.159(c)(4)(i).  The requirement that the evidence indicate that a condition "may be associated" with service establishes a "low threshold."  McLendon, 20 Vet. App. at 83. 

When deciding whether an examination is necessary, the Secretary shall consider the evidence of record, "taking into consideration all information and lay or medical evidence (including statements of the claimant)."  38 U.S.C. § 5103A(d)(2).  "The Board's ultimate conclusion that a medical examination is not necessary pursuant to section 5103A(d)(2) is reviewed under the 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' standard of review."  McLendon, 20 Vet. App. at 81.

Generally, section 5103A notice must be given on "all five elements of a claim for service connection," which include:

 (1) veteran status;

(2)   existence of disability;

(3)   service connection of disability;

(4)   degree of disability; and

(5)   effective date of disability.  

 

38 U.S.C. § 5103(a); Dingess v. Nicholson, 19 Vet. App. 473, 487 (2006) (consolidated with Hartman v. Nicholson, No. 02-1506), aff'd in part sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed.Cir.2007)); see also D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000) (noting the five elements of a claim for service connection).  

DUTY TO IDENTIFY INFERRED CLAIMS

Once VA has gathered all the reasonably obtainable information, including information submitted by the claimant, VA must decide whether or not to grant an award of benefits. In making that decision, VA must consider three other duties owed to the claimant: (1) duty to identify inferred claims, (2) duty to consider all reasonable legal theories, and (3) duty to maximize benefits. In other words, VA has several duties to apply the rules to the facts in a case in whatever way provides the most generous benefits allowed by the law.

These duties do not mean that VA has to look at every possible combination of rules and facts that may be even remotely possible. VA, however, has to review the entire record and apply the applicable provisions of law that are reasonably raised by the evidence. In addition, whether or not new claims are identified, VA must also review the diagnostic codes for the code or combination of codes that results in the highest benefit for the claimant.

Overall, in creating the duty to assist Congress recognized that VA raters are better trained and more experienced with the rules for obtaining benefits than the average claimant. VA must look for claims and grant awards based on all the evidence in the C-file whether or not the claimant asked for the specific benefit. This is a very good reason for claimants to provide as much information as possible when submitting applications or responding to VA requests.

3.4. Benefit of the Doubt

A key difference between the VA benefits system and other federal benefits systems is the standard for how convincing the evidence has to be in order to support an award. In legal terms, this is called the "standard of proof" or the "evidentiary standard." Most people are familiar with the standard of proof of "beyond a reasonable doubt" in a criminal trial. This is a very high evidentiary standard.

In VA benefits cases the standard of proof is a "preponderance of the evidence." This is a very low – and more easily met – evidentiary standard. Because "preponderance" means the "majority," an award should be granted when the evidence supporting a claim is ever so slightly more than the evidence against a claim. Another way of stating this is that VA is supposed to grant a award unless more evidence is against the claim than supports the claim.

The preponderance of the evidence standard leads directly to another important rule, known as the "benefit of the doubt" rule. The law requires that, after consideration of all the evidence, if there is an approximate balance of positive and negative evidence, the benefit of the doubt in resolving each such issue should be given to the claimant. In other words, if VA finds that the evidence is equally divided between evidence supporting a claim and evidence against a claim, such as two conflicting medical opinions, the claimant gets the benefit of the positive evidence. For this reason, the rule is also known as the "tie goes to the runner" rule, where the claimant is the runner.

The benefit of the doubt rule, however, is widely misunderstood and is often the source of great frustration for claimants. Despite what many believe, the rule does not mean that VA must make an award anytime a claimant submits an account of an event supporting an award. The rule also does not mean that VA has to believe a claimant, a claimant's spouse, or claimant's doctor when other evidence is in conflict with their statements. VA is always required to weigh such evidence against other evidence, such as service records or other medical opinions, but VA can find other evidence more convincing.

All the rule really means is that when all the evidence on a particular issue is equally balanced between positive and negative, VA must give the benefit of the doubt to the veteran on that particular issue. The rule only applies when there is a close call on some issue: when the evidence tilts one way or the other, the rule does not apply. Further, giving the benefit of the doubt on one issue does not mean the entire claim must be resolved in favor of a claimant. This is because the rule is applied to individual issues, not an entire claim. So, for example, resolving whether a certain event occurred during service using the benefit of the doubt rule does not have any effect on the issue of whether there is a nexus between the incident and a current condition. If the evidence is strongly against a nexus, the claim will still be (correctly) denied.

Pursuant to 38 C.F.R. § 3.102, any reasonable doubt must be resolved in favor of the appellant "[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter."  "The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant."  38 U.S.C. § 5107(b).

"When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant."  38 C.F.R. § 4.3.  Section 3.102 defines the term "reasonable doubt" as used in § 4.3 as doubt "which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim."  38 C.F.R. § 3.102; see Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001) (stating that section 3.102 "restates" the provisions of 38 U.S.C. section 5107(b) (benefit of the doubt) in terms of "reasonable doubt").  Thus where the Board concludes that the evidence is not in equipoise, specific consideration of section 4.3 is not warranted.  See Schoolman v. West, 12 Vet. App. 307, 311 (1999) (explaining that where the preponderance of the evidence is against an appellant's claims, "the benefit of the doubt doctrine does not apply").  Mayhue v. Shinseki, 24 Vet. App. 273, 282 (2011).

Perhaps the analogy most helpful to an understanding of the "benefit of the doubt" rule is that the standard is similar to the rule deeply embedded in sandlot baseball folklore that "the tie goes to the runner."  If the ball clearly beats the runner, he is out and the rule has no application; if the runner clearly beats the ball, he is safe and, again, the rule has no application; if, however, the play is close, then the runner is called safe by operation of the rule that "the tie goes to the runner."  Similarly, if a fair preponderance of the evidence is against a veteran's claim, it will be denied and the "benefit of the doubt" rule has no application; if the veteran establishes a claim by a fair preponderance of the evidence, the claim will be granted and, again, the rule has no application; if, however, the play is close, i.e., "there is an approximate balance of positive and negative evidence," the veteran prevails by operation of 38 U.S.C. section 5107(b).  Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

The Court has held that the failure of the BVA to apply the benefit of the doubt rule or to set forth clearly its reasons for not applying it constitutes error.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Sussex v. Derwinski, 1 Vet. App. 526, 529 (1991).  In addition, the Court notes that 38 U.S.C. 1154(b) provides specifically that the Secretary "shall resolve every reasonable doubt in favor of the veteran."  38 C.F.R. § 3.302.  Furthermore, when the BVA can cite no evidence or facts by which to impeach or contradict a claim, there is no justifiable basis upon which to deny application of the doctrine under 38 C.F.R. § 3.102.  Sheets v. Derwinski, 2 Vet. App. 512, 516-17 (1992).

 

Because the benefit of the doubt rule only applies in these specific situations, the rule is not applicable to many claimants. In cases where there is significant evidence in support of a claim, however, VA must provide a satisfactory explanation as to why the evidence was not balanced enough to apply the rule if the decision was adverse to the claimant.

3.5. Nexus Letter

A "nexus letter" is a document prepared for a claimant by a medical professional that explicitly connects an in-service event to the current medical condition for which a claimant is seeking compensation. A claimant is not required to submit a nexus letter, but such a letter can make the difference between an award and a denial. A nexus letter can be submitted with an initial application, during claim development, or after an adverse C&P exam. Submitting a properly worded nexus letter as early as possible in the process, however, is good practice.

A nexus letter is especially important in cases where a claimant has not submitted any medical evidence and a C&P examiner concludes that there is no connection between a claimant's condition and military service. Without a nexus letter, the claim will be denied. Even when a claimant supplies supporting medical evidence with an application, VA raters can and often do choose the opinion of the VA examiner over a private physician's opinion for many reasons. In such a case, a "nexus letter" from a private physician is necessary to respond to the C&P examiner's conclusion.

One reason for raters favoring VA examiner's conclusions regarding a nexus when there are conflicting or unclear medical opinions is that VA examiners are more familiar with the terms that raters look for when deciding a claim. As described above, VA regulations require only that it be "at least as likely as not" that a condition be related to service for an award. This means that the likelihood of service connection is equal to or greater than 50% (a 50/50 chance or better).

Most medical professionals, however, are not familiar with the VA system or the VA concept of "at least as likely as not." Physicians are generally familiar with the concept of "medical certainty," which is a much higher standard than that required by VA. As a result, private physicians may apply the wrong standard if the VA terms are not explained to them. Even then, a private physician may be reluctant to state a conclusion regarding nexus and, if they do, may qualify their conclusion with terms such as "may," "could," "suggests," or "possibly." VA will often point to such qualifying terms as not meeting the legal standard for establishing a nexus, although the physician actually believed that the condition was more than 50% likely service connected.

To prevent such misunderstandings, a claimant should make sure that the medical professional asked to provide a nexus letter understands the importance of the letter and of using the VA "magic words" to correctly state the physician's medical opinion. The terms "more likely than not" (meaning greater than 50% likelihood of a connection) and "at least as likely as not" (meaning equal to or greater than 50% likelihood of a connection) are important to use so that VA will have to recognize the nexus letter as supporting service-connection. Any other terms may be misunderstood or misconstrued by VA into something not supporting service-connection. Bringing the relevant C&P Examination Worksheet to the examination or providing it to the medical professional may be helpful.

The Court has stated that "when a nexus between a current disability and an in-service event is 'indicated,' there must be a medical opinion that provides some nonspeculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus."  McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (emphasis added).  The Court has also noted that medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus; a VA medical examination must be undertaken to resolve the nexus issue.  Id. (citing Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (Mayer, C.J., and Newman, J., dissenting) ("The absence of actual evidence is not substantive 'negative evidence'")).  Jones v. Shinseki, 23 Vet. App. 382, 387-88 (2010).

If the Board finds his or her testimony credible, a claimant does not need competent medical evidence to substantiate his or her claim.  See Savage v. Gober, 10 Vet. App. 488, 495–96 (1997) (holding that, per 38 C.F.R. section 3.303(b), medical evidence of nexus is not required for benefits if the veteran demonstrates continuity of symptoms between his present disability and service); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Arneson v. Shinseki, 24 Vet. App. 379, 388 (2011).

3.6. Effective Date

The determination of the effective date for an original claim or a reopened claim is governed by 38 U.S.C. section 5110(a), which provides: "Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  The implementing regulation similarly states that the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service.  See 38 C.F.R. § 3.400.  "Generally, effective dates of compensation awards are attached to the date of receipt of the application for benefits, and no earlier."  Sharp v. Shinseki, 23 Vet. App. 267, 273 (2009) (citing 38 U.S.C. § 5110(a)).  Significantly, "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA."  Lalonde v. West, 12 Vet. App. 377, 382 (1999); see Brannon v. West, 12 Vet. App. 32, 35 (1998) (the "mere presence of medical evidence does not establish the intent on the part of a veteran to seek service connection for a condition.").

The effective date may also be the date on which entitlement to the benefit arose, if later than the date of the claim.  38 C.F.R. § 3.400(o).  A challenge to a decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of the decision, commencing with the timely filing of a Notice of Disagreement.  38 U.S.C. § 7105.  The NOD must be in writing and filed within one year "from the date of mailing of notice of the result of initial review or determination."  38 U.S.C. § 7105(b)(1).  Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992).  Alternatively, if the decision assigning an effective date has become final, a claimant may only pursue one of the statutory exceptions to challenge the finality of that decision.  See DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc) (same).

However, in Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006), the Court held that claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed RO decision.  The Court reasoned that to allow such claims would vitiate the rule of finality. Id. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a freestanding claim for an earlier effective date is not one of the recognized statutory exceptions to finality.  See DeLisio v. Shinseki, 25 Vet. App. 45, 51 ("[A]n effective date generally can be no earlier than the date of the claim."); Canady v. Nicholson, 20 Vet. App. 393, 398 (2006) (holding that a "proper effective date is a finding of fact" reviewed under the "clearly erroneous" standard).

A claimant may establish an effective date earlier than the date of the claim if the claimant is able to show an increase in disability in the one-year period preceding the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) ("When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe."); Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) ("Board is required to search the record to determine whether it is factually ascertainable that in the one year prior to the application there was an increase in disability."); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997) (noting that the general rule applies unless it is factually ascertainable that the increase occurred within the year preceding the filing of the claim); see also Scott v. Brown, 7 Vet. App. 184, 189 (1994) (under the terms of section 5110(b)(2), the effective date is either the date of the claim or "some date in the preceding year if it were ascertainable that the disability had increased in severity during that time").

In other words, the actual increase in disability must have occurred during the one-year period immediately preceding the date of the claim; any evidence demonstrating an increase earlier than the one-year period is not a basis for an effective date earlier than the date of the claim.  The Board's determination of the proper effective date for an award of VA benefits is a finding of fact reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4).

There are only two ways to establish an earlier effective date after a decision has become final:  (1) by establishing a "Clear and Unmistakable Error" was made or (2) by submitting official service department records that existed, but were not considered, in a decision.  See 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.156(c); 20.1403.  As discussed elsewhere in this Knowledge Book, CUE is a "very specific and rare kind of error" that has special pleading requirements.  Section 3.156(c), however, is fairly straightforward.  If VA or a claimant discovers a service department record, such as a service record, service medical record, or unit report or log, and it is relevant to a previous decision, VA must reconsider that decision.  If reconsideration of the claim with the newly found record results in an award, the effective date of that award is the date that the originally denied claim was submitted, no matter how far back.  38 C.F.R. § 3.156(c)(3).  

3.7. The St. Louis Fire

In 1973 there was a fire at the National Personnel Records Center ("NPRC") in St. Louis. The NPRC is an official repository for records of military veterans who served in the United States Army, Navy, Air Force, Marine Corps, and Coast Guard. This event is important to many veterans because a large number of military service records were destroyed. The "fire" has become something of an urban legend because VA sometimes cites it as reason for not obtaining a veteran's service records, sometimes even when the veteran left service after the fire occurred. According to a VA "Fact Sheet," the fire destroyed about 80% of Army records for persons discharged between November 1912 and January 1960 and about 75% of Air Force records for persons discharged between September 1947 and January 1964. Because of poor recordkeeping and loaning of records, it is not possible to say for sure exactly which records were destroyed within these groups.

No other records were lost in the fire. VA itself has stated that records for veterans who left service after 1964 were not affected and that only Army and Air Force records were involved (no Navy records were affected). Clearly, records for veterans who left service after 1973 could not have been destroyed in a 1973 file. As a result, any time the "fire" is cited as a reason for VA not locating service records, veterans should take the time to determine if the record could have been affected and, if not, challenge the VA's conclusion.

3.8. Claim Backlogs and Delays

It is no secret that VA continues to be plagued by a large backlog of claims. Despite repeated promises and commitments for improvement, VA's backlog has actually grown significantly over the last few years. For example, by VA's own accounting, the Secretary's stated goal of 125 days to reach an initial decision has gone from being met in approximately 2 out of 3 claims to only 1 in 3 claims. Worse yet, the average time for a decision by the Board of Veterans' Appeals is approaching 3 years and the time for a decision to return from an appeal to the Court can be 7 or 8 years.

There is no such thing as a "financial hardship" or "hardship" claim or any other shortcut around the backlog for initial or reopened claims. Despite widespread misinformation, there is little, if anything, that a veteran can do to "speed up" his or her initial or reopened claim at the regional office level. This does not mean that some raters will not take such circumstances into consideration if they know the claimant's situation. But because severe financial circumstances, a terminal illness, or other hardships do not qualify a claimant for any special treatment, a claimant cannot demand such treatment. The only exception is for the claims of veterans that are or on the verge of becoming homeless. In such cases, the Secretary has directed expedited treatment of claims. Even this action is not a legal requirement, only a VA internal priority.

The Board does allow "advancement on the docket" of appeals from claimants that are "seriously ill" or "under severe financial hardship." The Board will also consider motions from veterans over 75 years of age. Whatever the reason, veterans seeking to advance on the Board's docket need to be very specific about why they should be able to do so and submit supporting evidence (such as a doctor's statement or foreclosure notice) because many veterans are ill or are in financial difficulty and everyone cannot be given priority by the Board.

Other than filing a motion for advancement with the Board, attempting to "put pressure" on a VA office, the Board, or the Court is not only a waste of time, it can result in additional delay because the C-file may be removed from the line waiting for decision so that VA can respond to such attempts. This includes Congressional "inquiries," which are often just exchanges of form letters.

There is slightly better news for claims remanded from the Board and the Court. VA is required by law to provide "expeditious treatment" of remanded claims. The Court has made clear that remands must receive higher priority development than other claims. How long VA can take to resolve a remanded claim under the "expeditious treatment" rule is not clear, but claimants can at least point to this requirement in dealing with delays in remanded claims and, if necessary, seek a Court order for VA to make a decision.

In all cases, the best thing a claimant can do is to quickly respond to each VA request with clear and to the point responses do not give VA any reason to delay making a determination.

The Secretary has a statutory obligation to expeditiously process remands from this Court.  Thus, not only must the Secretary ensure that he completes the Court-ordered task, he must do so in an expeditious manner.  38 U.S.C. §§ 5109B, 7112.  Excessive delays in the processing of remands ordered by the Court cannot help but sap public confidence and impugn the Court's dignity, as from the outside it invariably appears that VA is ignoring the valid mandates of an institution that has express authority over it in matters related to veterans benefits.  See Erspamer v. Derwinski, 1 Vet. App. 3 (1990) (discussing delay in administrative action and public confidence). 

Furthermore, the Secretary's obligation to process Court remands expeditiously is integral to this Court's jurisdictional authority to remedy unreasonable delays in the processing of veterans' claims.  See Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 659–660 (D.C. Cir. 2010) (suggesting that the U.S. Court of Appeals for Veterans Claims may have exclusive jurisdiction over claims concerning unreasonable delays in processing); see also Ribaudo v. Nicholson, 20 Vet. App. 552, 557 (2007) ("With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review.  A decision of the Board can only be appealed to a single venue—this Court." (citing 38 U.S.C. § 7252(a))).  Therefore, failure by the Secretary to comply with his obligation to process Court remands expeditiously, is the same as noncompliance with the remand order itself, even if the Secretary eventually complies with the substance of the order.  Harvey v. Shinseki, 24 Vet. App. 284, 288 (2011).

 "While there is no absolute definition of what is reasonable time, we know that it may encompass 'months, occasionally a year or two, but not several years or a decade.'" Community Nutrition Institute v. Young, 773 F.2d 1356, 1361 (D.C. Cir. 1985) (quoting MCI Communications Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980).  Erspamer v. Derwinski, 1 Vet. App. 3, 10 (1990).  When delay is alleged as the basis for a petition for writ of mandamus, a clear and indisputable right to the writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demand on and resources of the Secretary, that it is equivalent to an arbitrary refusal to act.  Compare Costanza v. West, 12 Vet. App. 133, 134 (1999) (per curiam order) (addressing an 11–month delay and finding the petitioner did not demonstrate that he lacked alternative means of relief when he did not undertake to resolve delay prior to filing the petition), with Erspamer v. Derwinski, 1 Vet. App. 3, 11 (1990) (addressing a three-year delay and finding petitioner had no adequate alternative means for relief when she contacted the regional office more than 30 times before filing her petition with the Court).

3.9. Clear And Unmistakable Error

A decision that has become final may not be reversed or revised in the absence of a showing of CUE.  38 U.S.C. § 7111(a).  CUE "is a very specific and rare kind of error . . . that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error."  38 C.F.R. § 20.1403(a). 

The Court has no jurisdiction to consider a CUE claim it in the first instance.  38 U.S.C. § 7252(a); Andrea v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veteran's Court can exercise jurisdiction over it"); Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc) (noting that "[t]he necessary jurisdictional 'hook' for this Court to act is a decision of the [Board] on the specific issue of 'clear and unmistakable error'").VA law allows a veteran – at any time – to request that a decision be reviewed and corrected if VA committed a "clear and unmistakable error" (often called a "CUE"). This is a very powerful right. Unfortunately, it is also a widely misunderstood and a misapplied right.  A true CUE is not common and is a difficult claim to win.

A request for revision of a decision based on CUE is an exception to the rule of finality and is grounds to reverse or revise a decision by the Secretary.  38 U.S.C. §§ 5109A, 7111; DiCarlo v. Nicholson, 20 Vet. App. 52 (2006); 38 C.F.R. §§ 3.105(a), 20.1400-1411.  A CUE motion is a collateral attack on a final VA regional office decision or Board decision.  Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). 

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. 

  • (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
  • (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
  • (3) the error is "undebatable;" and
  • (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

When CUE does occur and a claim is granted, the usual rules for setting the effective date of an award is by-passed. The effective date of a CUE claim goes back all the way to the filing date of the claim with the CUE. This can result in huge awards of retroactive benefits.

Because a claim for CUE is a review of an already "closed claim" also known as "final decision claim", special rules apply:

  1. the "duty to assist" does not apply. This means that VA does not help a claimant with a CUE claim. 
  2. a CUE claim must contain specific and detailed statements regarding the error:
    1. how that error affected the decision, and
    2. why the decision would be different (more favorable to the claimant) if the error is corrected. Merely stating that CUE occurred or general statements similar to those in a benefits claim are not enough. For example:  a decision awarding benefits based on a single gunshot wound when the veteran had two gunshot wounds is a CUE. A CUE claim asserting that a gunshot wound was more painful than VA concluded is clearly not a CUE.

Undebatable:

Further, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated."  Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  The error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered.  Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell).  A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim.  Damrel v. Brown, 6 Vet. App. 242, 246 (1994). 

CUE WARNING:

A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.

Errors that cannot constitute CUE, pursuant to 38 C.F.R. sections 20.1403(d) and (e), include:

(1)   a changed diagnosis, where a "new medical diagnosis . . . 'corrects' an earlier diagnosis considered in a Board decision;"

(2)   VA's failure to comply with the duty to assist;

(3)   a "disagreement as to how the facts were weighed;" and

(4)   a subsequent change in interpretation of the statute or regulation that was applied in the Board decision.

Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); cf. Cook, 318 F.3d at 1346 ("The requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim."); see also MacKlem v. Shinseki, 24 Vet. App. 63 (2010); Damrel, 6 Vet. App. at 246; Fugo, 6 Vet. App. at 43-44.

When the Court reviews a Board determination that there was no CUE in a prior final decision, the Court's review is generally limited to determining whether the Board's conclusion is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 38 U.S.C. § 7261(a)(3)(A), and whether it is supported by adequate reasons or bases.  38 U.S.C. § 7104(d)(1); Joyce v. Nicholson, 19 Vet. App. 36, 43-44 (2005); Lane v. Principi, 16 Vet. App. 78, 83-84 (2002), aff'd, 339 F.3d 1331 (Fed. Cir. 2003); Eddy v. Brown, 9 Vet. App. 52, 57 (1996); Archer v. Principi, 3 Vet. App. 433, 437 (1992); Russell v. Principi, 3 Vet. App. 310, 315 (1992). However, whether the claimant has presented a valid CUE allegation and whether an applicable law or regulation was not applied are questions of law that are reviewed de novoJoyce, 19 Vet. App. at 43; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004).

The U.S. Court of Appeals for the Federal Circuit has held that "a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim."  Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice."  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision.  Id.

Although CUE does not require "pleading with exactitude," it nevertheless must be plead with "some degree of specificity."  Jordan v. Principi, 17 Vet. App. 261, 270-71 (2003) (finding that although "the liberal construction of a VA claimant's pleading must be tempered somewhat in CUE cases" that "does not require pleading with exactitude"); Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Assertions of CUE raised by counsel, however, are not entitled to a liberal reading.  See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant).  Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); MODEL RULES OF PROF'L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice).  Perfection of an appeal for a claim involving CUE involves the same steps as any other claim.  38 U.S.C. § 5109A(e) ("[CUE claims] shall be submitted to the Secretary and shall be decided in the same manner as any other claim."); see Andre, 301 F.3d at 1361 (Fed. Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise jurisdiction over it"). 

The VCAA does not apply to CUE actions.  See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  In other words, the VA has no duty to assist claimants with CUE claims.  See Livesay, 15 Vet. App at 178 (noting that the CUE "movant bears the burden of presenting . . . specific allegations of error"); 38 C.F.R. § 20.1404 ("The motion must set forth clearly and specifically the . . . errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error."); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran's filing raises a valid claim is a factual inquiry, reviewed under the "clearly erroneous" standard).

The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide[] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).

Reference: 38 C.F.R. 20.1403

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

 (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.
 (b) Record to be reviewed—
  •  (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.
  •  (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.
 (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.
 (d) Examples of situations that are not clear and unmistakable error—
  •  (1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision.
  •  (2) Duty to assist. The Secretary's failure to fulfill the duty to assist.
  •  (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.
 (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.
(Authority: 38 U.S.C. 501(a), 7111)

3.10. Disability Benefits Questionnaires (DBQs)

Disability Benefits Questionnaires (DBQs) are downloadable forms for Veterans to use in the disability evaluation process. DBQs can help speed the processing of compensation and pension claims.

DBQs allow Veterans and Servicemembers to have more control over their disability claims process by giving them the option of completing an examination with their own healthcare provider instead of at a Department of Veterans Affairs (VA) facility.

DBQs enable private healthcare providers to capture important information needed by VA to accurately evaluate and promptly decide Veterans' claims for benefits.

More than 70 DBQs are available that use check boxes and standardized language to streamline the process. DBQs average about five pages in length. Veterans are responsible for any fees their private provider may charge for completing a DBQ.

The DBQ process involves four steps:

  1. Access the form online and download it;
  2. Have your healthcare provider complete the form;
  3. Save a copy for your records; and
  4. Submit the form to VA.

The DBQ forms are available on our "List by DBQ Form Name" page

3.11. Same Sex Marriage

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment of the U. S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage two people of the same sex when their marriage was lawfully licensed and performed out-of-state.


Accordingly, the Department of Veterans Affairs (VA) may now recognize all same-sex marriages without regard to a Veterans's state of residence. VA will generally accept a claimant's statement that he or she is married, but may investigate further if an assertion appears unreliable. The same procedure applies regardless whether the claimant is in an opposite-sex marriage or a same sex marriage.


VA is dedicated to serving all eligible Servicemembers, Veterans and their families and providing them the benefits they have earned. All Veterans is same-sex marriages who believe they are entitled to benefits, (including those whose claims were previously denied on a ground related to their marriage) are encouraged to promptly apply for benefits.

4. Veterans Benefits- Eligibility

4.1. Eligibility for VA Benefits

 

Establishing Eligibility

The law currently sets three threshold conditions to be eligible for VA benefits:

  1.  veteran status,
  2.  character of discharge, and
  3.  a medical condition that is not the result of willful misconduct or substance abuse.

 

4.2. Veteran Status

Are you a Veteran?

Many eligible individuals are unaware that they are "veterans" for VA benefits purposes. Contrary to some beliefs, it is not necessary that a service member have been in combat or have retired from the military to be eligible for VA benefits. Although there are usually some minimal period of service requirements, the vast majority of individuals with active duty service (including certain training and certain "call ups" of Reserve or Guard) are "veterans" for VA purposes.

 Veteran status is defined as:

  1. a claimant must be "a person who served in the active military services", and
  2. who was discharged or released "under conditions other than dishonorable.

Although the term "veteran" appears straightforward, there are specific legal requirements for someone to be considered a "veteran" for purposes of eligibility for VA benefits.  "In order to qualify for VA benefits, a claimant . . . [must be] a 'veteran.'"  Cropper v. Brown, 6 Vet. App. 450, 452 (1994); D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000).  A veteran is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).  Service in the active military, naval, or air service includes service in the United States Armed Forces or, for certain purposes, service in the organized military forces or organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the United States Armed Forces.  38 U.S.C. §§ 101(10), 101(21)(C), 101(24), 107; 38 C.F.R. § 3.40(b). 

To establish entitlement to benefits, VA may accept documents submitted by a claimant as evidence of qualifying service, without verification from the appropriate service department, if the documents were issued by a U.S. service department, contain the needed information, and in VA's opinion are genuine and contain accurate information. 38 C.F.R. § 3.203(a); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  If, however, the evidence of service submitted does not meet the requirements of section 3.203(a), VA must request verification of service from the appropriate U.S. service department.  38 C.F.R. § 3.203(c); Soria, 118 F.3d at 749; Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting that section 3.203(c) requires verification from the service department whenever a claimant lacks the kind of official evidence specified in section 3.203(a)).

Under section 3.203, service department findings are binding on VA for purposes of establishing qualifying service.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) ("[t]herefore, VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces.").  "Thus, if the United States service department refuses to verify the applicant's claimed service, the applicant's only recourse lies within the relevant service department, not the VA." Soria, 118 F.3d at 749.  The Board's determination of "veteran status" is a question of fact that the Court reviews under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4).  Struck v. Brown, 9 Vet. App. 145, 152-53 (1996).

Pursuant to the American Recovery and Reinvestment Act of 2009, Congress established the Filipino Veterans Equity Compensation Fund ("FVECF") and authorized VA to make one-time payments from the fund to eligible persons who submitted a claim within the one-year period beginning on the date of enactment.  Pub. L. No. 111- 5, § 1002, 123 Stat. 115.  The act defined the term "eligible person" as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, including the recognized guerilla forces, or in the Philippine Scouts.  Id.  But, "Philippine veterans are not eligible for veterans' benefits unless a United States service department documents or certifies their service."  Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); 38 C.F.R. § 3.9.

4.3. Character of Discharge

VA benefits are restricted to veterans discharged or released "under conditions other than dishonorable." The military services each have several categories of discharge, one of which is "dishonorable." These categories are not what VA bases a character of service determination: VA has its own unique system.

VA generally accepts "honorable" discharges and discharges "under honorable conditions" as qualifying discharges without further investigation. VA has also determined that a "dishonorable" discharge is not an "other than dishonorable" discharge and so will disqualify a claimant from any VA benefits unless a narrow insanity exception applies. If an individual received a discharge under "other than honorable conditions" or a "bad conduct" discharge, VA will make a special "character of service determination" before further processing a claim. In making this determination VA is supposed to consider the veteran's entire period of service not just the specific type of discharge. If VA determines that the individual was separated from service under a disqualifying condition, the veteran will be ineligible for compensation benefits, although he or she may still qualify for certain healthcare benefits. A character of service determination can be appealed if unfavorable.

Veterans with multiple periods of active duty may have been discharged with a different character of service for different periods of service. In such a case, the discharge for the period of service to which a medical condition is connected controls eligibility. For example, a veteran with an honorable discharge followed by a dishonorable discharge for two separate periods of service would be eligible for benefits for a condition connected to the first period of service, but not the second.

A veteran with a discharge that does not qualify him or her for compensation benefits may try to "upgrade" the character of the discharge. VA does not change the character of discharge assigned by the service branch. Each service branch has a "Discharge Review Board" ("DRB") and a "Board for Correction of Military Records" ("BCMR"). Both of these Boards have their own procedures for reviewing cases of veterans looking to change an unfavorable character of discharge and it is beyond the scope of this KNOWLEDGE BOOK to describe the processes. Veterans who believe that their character of discharge was improper or unfair are encouraged to contact an advocate or attorney experienced in the upgrade process.

Regardless of the character of discharge, individuals are not eligible for VA benefits for conditions that result from "willful misconduct" or substance abuse. Willful misconduct includes intentional acts such as self-inflicted injuries to avoid duty or deployment. Health conditions arising from the abuse of illegal drugs or alcohol abuse are also excluded. As questions of willful misconduct are very fact specific, claimants potentially affected by this requirement are encouraged to discuss the matter with an experienced advocate. There is one very important exception to the substance abuse exclusion. An individual is eligible for VA benefits for conditions related to drug or alcohol abuse arising from another allowable service-connected condition. For example, an individual suffering from post-traumatic stress disorder ("PTSD") as a result of an incident during service can receive benefits for the adverse health effects of alcoholism if the alcoholism is determined to be a result of the PTSD. Alcoholism unrelated to another service-connected condition would not be eligible for compensation.

 

VA "compensation . . . is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable."  38 C.F.R. § 3.12(a).  "A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions[:] . . . An offense involving moral turpitude.  This includes, generally, conviction of a felony."  38 C.F.R. § 3.12(d)(3).  38 U.S.C. section 101(2) defines a veteran as a person who "was discharged ... under conditions other than dishonorable."  

While no statute or regulation generally states that dishonorable conditions are equivalent to conditions other than honorable, section 3.12(d)(4) states as follows:

(d)   A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions.

. . .

(4)   Willful and persistent misconduct.  This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct.  A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.

The law, however, contains an exception that "if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge, or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary."  38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b).  

VA regulations define an insane person as one who, while not mentally defective or constitutionally psychopathic, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides."  38 C.F.R. § 3.354(a); see Zang v. Brown, 8 Vet. App. 246, 253 (1995) (stating that phrase "due to disease" applies to all three circumstances provided in section 3.354(a)); see also VA Gen. Coun. Prec. 20-97 (May 22, 1997) (clarifying VA's definition of insanity).  Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis.  Beck v. West, 13 Vet. App. 535, 539 (2000); Zang, 8 Vet. App. at 254-55; 38 C.F.R. § 3.354(a). 

When determining whether a veteran was insane at the time of an offense, the rating agency "will base its decision on all the evidence procurable relating to the period involved."  38 C.F.R. § 3.354(b).  The Court reviews the Board's factual decision in this regard under the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); Beck, 13 Vet. App. at 539; Gilbert v. Derwinski, 1 Vet. App. 49, 52-53 (1990).

Acceptance of an undesirable discharge to escape trial by general court-martial is considered a discharge or release "under dishonorable conditions."  38 C.F.R. § 3.12(d)(1).  Such a discharge generally "is a bar to the payment of benefits."  38 C.F.R. § 3.12(b).  Further, an honorable or general discharge awarded under the Department of Defense's special discharge review program ("SDRP") generally "does not remove any bar to benefits."  38 C.F.R. § 3.12(h).  When a veteran has multiple periods of service, it is the character of service for the period in which the medical condition arises that determines eligibility.  

4.4. Willful Misconduct

A veteran cannot receive VA compensation for a disability that is the result of willful misconduct.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.1(m), (n), 3.301(a)-(b), (c)(2), (d).  Willful misconduct is broadly defined as "an act involving conscious wrongdoing or known prohibited action [;] ... [i]t involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences."  38 C.F.R. § 3.1(n); see Yeoman v. West, 140 F.3d 1443, 1448 (Fed. Cir. 1998) (holding that VA's willful misconduct regulations were not unconstitutionally void for vagueness); Daniels v. Brown, 9 Vet. App. 348, 351 (1996) (willful misconduct negates statutory presumption that disease or injury was incurred in line of duty (citing 38 U.S.C. § 105(a))); VA Gen. Coun. Prec. 2-93 (January 13, 1993) (discussing origins and subsequent history of willful misconduct prohibition in context of tobacco use) [hereinafter 1993 VAGC Opinion ].


However, a "[m]ere technical violation of police regulations or ordinances will not per se constitute willful misconduct," and the latter "will not be determinative unless it is the proximate cause of injury, disease or death."  38 C.F.R. § 3.1(n)(2)-(3).  Moreover, alcohol abuse, a specific type of willful misconduct, is defined as "the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user."  38 C.F.R. § 3.301(d); see Allen v. Principi, 237 F.3d 1368, 1376-78 (Fed. Cir. 2001); see also 38 C.F.R. § 3.301(c)(2) ("The simple drinking of alcoholic beverage is not of itself willful misconduct [; however] ... [i]f, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct."). The Board may consider state law in interpreting VA's definition of willful misconduct. Yeoman, 140 F.3d at 1446 (holding that "[t]he Board's consideration of ... state law was a proper part of its interpretation of willful misconduct under the standards mandated by the very regulations defining that term and its relation to drunkenness.").  The Board's determination that a disability is the result of willful misconduct is a finding of fact.  Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005).

5. Veteran Benefit- Service Connected Disability Compensation

5.1. Compensation or Service-Connection

Compensation for injury or other adverse medical condition is the single most common type of VA benefits claim. The VA compensation process is designed to "rate" an eligible veteran based on the "average impairment in earning capacity" resulting from events occurring during or as a result of military service. If a condition is determined to be "service-connected" and an entitlement awarded, VA provides the claimant monthly payments and access to other VA benefits based on the "effective date" of the award, which is usually the date the claim was submitted to VA. Do not be concerned if you do not know what all these terms mean right now, one of the important purposes of this Knowledge Book is to explain VA terms in plain language. The terms in this paragraph, and many others, are explained in the sections that follow.

Every condition for which compensation is sought must be connected to the veteran's service.  Establishing "service connection" generally requires medical evidence or, in certain circumstances, lay evidence[1] of:

(1)   a current disability;

(2)   in-service incurrence or aggravation of a disease or injury; and

(3)   a nexus between the claimed in-service disease or injury and the present disability. 

Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 

Evidence of a current condition is fundamental to an award of service connection.  Cotant v. Principi, 17 Vet. App. 116, 132-33 (2003); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (reasoning that, absent "proof of a present disability[,] there can be no valid claim").  Without evidence establishing a current disability, disability compensation may not be granted.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that service connection requires, among other things, a current disability at the time of filing or during the pendency of the claim).  Absent evidence in the record that a claimant currently suffers a claimed condition a determination that service connection is not warranted is not clearly erroneous.  Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990).

Service connection may also be established by showing continuity of symptomatology, which requires a claimant to demonstrate: 

(1)   that a condition was "noted" during service;

(2)   evidence of post-service continuity of the same symptomatology; and

 (3)  medical evidence or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.

38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)); Davidson, 581 F.3d at 1316; see also Jandreau, 492 F.3d at 1377 (whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board).  "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496.  Testimony of continuity of symptomatology can potentially indicate that a disability may be associated with service, but only "if ultimately deemed credible."  McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006).

Pain alone without a diagnosed condition, however, is not a disability or compensable condition.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.").  Accordingly, a decision to deny a claim for failure to establish a current condition based on pain alone will be upheld.

A condition does not have to be symptomatic at the time of the decision for service connection to be granted.  The requirement for a current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Furthermore, although congenital defects themselves cannot be service connected by law, service connection may be warranted for superimposed disabilities that result from military service.  VA Gen. Coun. Prec. 92-90 (July 18, 1990).

A finding of service connection is a factual determination by the Board that the Court reviews under the "clearly erroneous" standard.  38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet. App. 169, 171 (1998).  "A factual finding 'is "clearly erroneous" when . . . the reviewing court . . . is left with the definite and firm conviction that a mistake has been committed.'"  Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).  The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance.  Id.



[1]  "Medical" and "lay" evidence are discussed later.

5.2. Service Connected Medical Conditions

Service Connected Medical Conditions

VA is authorized to compensate eligible individuals only for "service connected" conditions. A service-connected condition is a condition caused by, aggravated by, or the result of, an event during military service or a condition considered service-connected by law (such as Section 1151 claims). As such, "service connection" is a critical concept in VA benefits law. In practice, the determination of service connection can be difficult for VA and frustrating for the veteran. As a result, service connection is one of the most contested issues in the VA claims process.

Establishing service connection generally requires:

  1.  medical evidence of a current disability or condition;
  2.  evidence of an in-service occurrence or aggravation of a disease or injury; and
  3.  medical evidence of either a nexus between the claimed in-service disease or injury and the current disease or injury.

As a practical matter, establishing the existence of a current medical condition or disability is usually straightforward because the condition is often the motivation for filing a claim. A past condition that has been corrected or resolved or the anticipation of a future condition are not current conditions and do not provide a basis for service connection.

Next, the condition must have occurred in or resulted from the veteran's military service. In most cases, the evidence of the event (wounded by enemy action, training injury) can be found in service records, service medical records, or unit records. Under certain circumstances, a claimant may establish an in-service event by other evidence, such as "buddy statements" or testimony by other service members witnessing the event or private medical records. Whatever the case, VA will also review service medical records to determine if the claimed condition existed when the veteran entered service. If a condition is determined to be "pre-existing" and not aggravated in service, the claim will be denied.

There are also certain "presumptions" regarding specific conditions and in-service events (atomic test participation, agent orange exposure) that may apply. A presumption is when the law assumes an event occurs except when there is evidence that the event actually did not happen. So, for veterans who were exposed to radiation during atomic bomb tests, that radiation is assumed to cause certain diseases. If the veteran now suffers from one of those diseases, he or she does not have to prove the radiation actually caused the disease: VA must accept that the disease as service-connected.

Finally, VA must find a "nexus" (a "connection") between the current condition and the in-service disease, injury, or event. In practice, most service-connection issues boil down to whether a claimant can establish a nexus. For many medical conditions, such as cancer, it is extremely difficult to connect the current disease to specific events, even when occurrence of the event is not disputed. In such cases, it is especially important for the claimant to obtain strong medical evidence supporting nexus. This is not easy. Providing adequate nexus evidence becomes even more difficult as the time between service and the claim grows.

Although a condition must result from actions "in the line of duty," service-connected conditions are not limited to "battlefield" wounds or similar injuries. The "in the line of duty" requirement has been broadly interpreted to mean almost anything that occurs during service, including such things as car accidents, sports injuries, and illnesses unrelated to specific military activity. The condition generally need only have occurred or begun during service, including authorized leave periods.

5.3. Secondary Service Connection

"Secondary" service connection is awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a); Roper v. Nicholson, 20 Vet. App. 173, 181 (2006); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  "Proximate cause" is defined as "[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred."  BLACK'S LAW DICTIONARY 1225 (6th ed. 1990); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), rev'd on other grounds by Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003); VA Gen. Coun. Prec. 6-2003, at *3-4, n.4 (Oct. 28, 2003).

5.4. Medical Conditions Aggravated by "Service"

VA will compensate claimants for medical conditions that existed at the time of entry into service that were made worse or "aggravated" by service.  The essence of a claim for benefits based on a theory of aggravation is that a claimant's service caused a worsening of a preexisting condition.[1]  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) ("[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service connected aggravation of that disorder.").  

An appellant may obtain service connection for aggravation of a preexisting condition under 38 U.S.C. section 1153.  In such a case, "the burden falls on the veteran to establish aggravation."  Wagner, 370 F.3d at 1096.  If the veteran succeeds in showing aggravation, "the burden shifts to the government to show . . . that the increase in disability is due to the natural progress of the disease."  Id.  Where there has been an increase in disability during service, the proof that the increase was due to the natural progress of the disease must also be by clear and unmistakable evidence.  38 C.F.R. § 3.306(b).  Therefore, the first task for the Board in evaluating a presumption of aggravation claim is to find whether the appellant has shown an increase in disability during service.  If the Board finds aggravation, the second task is for the Board to consider whether the increased disability is due to the natural progression of the disease.  See Wagner, 370 F.3d at 1096.



[1]  Also see the discussion of the "presumption of soundness" as it applies to determining if a medical condition pre-existed service.

5.5. Schedular Ratings for Compensation

As discussed earlier, the VA compensation system is based on a "schedule" which assigns a numerical value to medical conditions from 0% to 100% in 10% increments. These "schedular ratings" are intended to represent the average percentage of impact on a veteran's employability from service-connected conditions. The smaller the impact from the condition or conditions, the lower the rating and the smaller monthly benefit paid to the veteran. A 100% rating, in theory, is granted when the service-connected condition or conditions prevent a veteran from holding any gainful employment.

A 100% rating, however, does not mean that a claimant cannot work or has to quit his or her job. It only means that Congress has established that the rated condition would affect the average individual's ability to hold gainful employment. The same is true for other rating levels. The average person is considered, the specific claimant may actually be affected more or less. In any event, the claimant is not penalized for working with a schedular rating. This is not true for a total disability rating based on individual unemployability discussed in the next section.

Once a veteran has been awarded service connection for a disease or disorder, VA will assign the veteran an appropriate disability rating after referring to the schedule of ratings for reductions in earning capacity for the specific injury or disability.  See 38 U.S.C. § 1155.  The rating is based, as far as practicable, upon the average impairments of earning capacity, in civil occupations, resulting from such injuries.  Id.  The Secretary has promulgated regulations to implement assignment of an appropriate disability rating.  See generally 38 C.F.R. Part. 4.

After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is  suffering.  See, e.g., 38 C.F.R. § 4.126.  Where there is a question as to which of two evaluations to apply, the Board will assign the higher rating if a veteran's disability more closely resembles the criteria for the higher rating; otherwise the lower rating will be assigned.  See 38 C.F.R. § 4.7; see also, e.g., Mauerhan v. Principi, 16 Vet. App. 436, 440-41 (2002) (discussing PTSD rating issues).

The amount of VA compensation due to a claimant is determined by evaluation of the disability or disabilities resulting from diseases and injuries encountered as a result of or incident to military service.  38 C.F.R. § 4.1.  "VA's rating schedule is constructed for the purpose of establishing levels of disability for compensation purposes based upon 'average impairment in earning capacity' resulting from particular injuries or diseases."  Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011); Hensley v. Brown, 5 Vet. App. 155, 162 (1993) (quoting 38 U.S.C. § 1155); 38 C.F.R. § 4.1.  VA regulations also caution that "it is not expected . . . that all cases will show all the findings specified in the [applicable disability code]."  38 C.F.R. § 4.21.  

The Court has held that the symptoms listed in the disability codes are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2006).  The Court concluded that "any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation."  Id.  The Board is required to "consider all symptoms of a claimant's condition that affect the level of occupational and social impairment," not just those listed in the regulation.  Id. at 443.

Further, "functional loss due to pain" should be rated and evaluated separately because the Diagnostic Codes do not "contemplate the functional loss resulting from pain on undertaking motion."  DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); see also Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (describing the holding in DeLuca as "requir[ing] that the disabling effect of painful motion be considered when rating joint disabilities").  However, "pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss."  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  "Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'"  Id. (quoting 38 C.F.R. § 4.40).

The Court "may not review the schedule of ratings for disabilities" adopted by the Secretary.  38 U.S.C. § 7252(b).  "The [rating] schedule consists of both the ratings and the injuries for which the ratings are provided[, and] [t]he Secretary's discretion over the schedule, including procedures followed and content selected, is insulated from judicial review with one recognized exception limited to constitutional challenges."  Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004).  The Federal Circuit further noted that "review of the content of the rating schedule is indistinguishable from review of 'what should be considered a disability.'"  Id.; see also Byrd v. Nicholson, 19 Vet. App. 388, 392-94 (2005) (holding that the Court could not hear the appellant's challenge that periodontal disease should constitute a disease for VA compensation purposes because it would require the Court to review the content of the rating schedule).

In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that VA should not limit a claim to only the disability identified by the claimant. The Court found in Clemons that although the appellant's original claim "identifie[d] PTSD without more," the "breadth of the claim" was not limited to PTSD but also included "anxiety disorder [not otherwise specified] and schizoid disorder, which ar[o]se from the same symptoms for which he was seeking benefits."  Clemons, 23 Vet. App. at 5.  The Court held that "as a self-represented layperson at the time his claim was filed, the appellant neither had the legal or medical knowledge to narrow the universe of his claim or his current condition to PTSD."  Id. at 6.  Rather than "limit[ing] its consideration of the claim based on the appellant's belief that he suffered from PTSD" the Court held that the Board should also have inquired into the appellant's "currently diagnosed mental conditions that are different from his lay hypothesis in his claim form."  Id. at 7.  In determining the scope of the appellant's claim, the Board has to analyze "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim."  Id.

Where a condition is rated by analogy, the Board has a heightened duty to provide a thorough statement of reasons or bases.  Suttman v. Brown, 5 Vet. App. 127, 134 (1993).

5.6. Schedular Rating 100%-Total and Permanent

Schedular Rating 100%-Total and Permanent

 If any one of the Veteran's disabilities qualifies for a 100 percent rating under the rating schedule, the total disability requirement for pension is satisfied.   Under VA disability compensation only service-connected disabilities are considered for the total and permanent rating. 

5.7. Schedular Rating 100%-TDIU or Indiviual Unemployability

In some cases, however, a veteran with less than a 100% scheduler rating is so affected by service-connected conditions that he or she cannot work at gainful employment. The law allows for another type of claim in such a case.

VA benefits are available to compensate a veteran at the 100% level if he or she is not able to work because of service-connected conditions even without a 100% schedular rating. This benefit is called "total disability on the basis of individual unemployability", ("TDIU"), or sometimes "individual unemployability, " ("IU").

The key issue in a TDIU claim is the inability of the veteran to engage in "substantially gainful employment" because of his or her service-connected conditions. "Substantially gainful employment" means to hold a job that pays at least an amount equal to the annual poverty level set by the federal government. In order to qualify for TDIU benefits, a claimant must meet the following requirements:

  1. If the claimant has only one service-connected condition, that condition must be schedular rated at least 60% or more;
  2. If the claimant has two or more service-connected conditions, at least one of those conditions must be rated at 40% or more, and the veteran's combined disability rating must be 70% or more; and
  3. In either case, the veteran must be unemployable because of his or her service-connected conditions. 

To establish "unemployability" or "inability to substantially maintain gainful employment", the Veteran must provide:

  1. evidence of unemployment due to service-connected conditions, employment history records for example, and
  2. medical evidence that the veteran's service-connected condition renders him or her totally disabled and unemployable, generally a doctor's opinion letter.

Having a paying job does not automatically disqualify a claimant from a TDIU award.  If the wages are considered "marginal" (low paying) or "sheltered" (protected from usual requirements) employment are exceptions to the TDIU qualification requirements.  Examples of employment that are allowed under TIDU:

  • A job that pays substantially less than the prevailing poverty level,
  • A job that is protected from requirements that someone else in that position would be expected to satisfy, or
  • A job working for a friend or relative, may not be "substantially gainful employment."

Although it is always better to submit a specific claim for TDIU.  The VA has a duty to look for potential TDIU claims based on the evidence in the claimant's VA claims file, known as a "C-file". The VA is required to review the claims for TIDU, even if not specifically requested by the Veteran, because entitlement to TDIU is part of every claim for disability compensation. Upon reviewing the claim, the VA determines if TDIU is an appropriate award for the claim.  Evidence of unemployability can be submitted after an initial decision denying TDIU, if while a claim for schedular benefits is still being processed.

As with most VA benefits, TDIU is not a permanent benefit. The VA can require a claimant undergo periodic medical examinations to confirm that the claimant remains unable to work due to a service-connected condition. And, as with all VA examinations, a failure to report for a scheduled examination can result in suspension or termination of a TDIU benefit.

In addition, since a TDIU award is also based on "unemployability," the VA can  periodically request employment information from a claimant receiving TDIU benefits. The VA will also cross check employment earnings with the IRS.  

The TDIU rating could be terminated and the claimant could be liable to repay VA for the TDIU benefits paid since that employment began, if:

  1. the VA becomes aware that a claimant is working at a job that is not marginal or sheltered,
  2. A claimant must also be careful in performing volunteer work because the nature and time spent at unpaid work shows that a claimant could be employed and  is no longer unemployable.  

If a Veteran is determined to be employale, the TDIU award can and will probably be revoked. When a TDIU rating is revoked, a claimant's benefits go back to the amount of compensation payable under the scheduler rating and the VA can make the Veteran repay the TDIU award.

Additional Information:

Although it is best to make an explicit claim for TDIU if a claimant believes he or she is eligible, it is no longer required.  Potential entitlement to TDIU is part of every claim for disability compensation.  See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (TDIU "is part and parcel of the determination of the initial rating for [a] disability").  It is now well established that the Board must consider "whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits."  Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (citing Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001)); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (same).  "[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as a part of the initial adjudication of a claim or . . . as a part of a claim for increased compensation."  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96 (1996) (the question of an extraschedular rating is a component of the appellant's claim for an increased rating).  A request for a higher disability rating and evidence indicating that the claimant's ability to work was "significantly impaired" by his or her service connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.  Id.

VA regulations provide two methods by which TDIU may be granted.  Under the first, TDIU may be assigned to a claimant who is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities" provided that he has received a disability rating of 60% or greater, or, if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40%, and the combined disability rating for all disorders is at least 70%.  38 C.F.R. § 4.16(a).  If the claimant does not meet these schedular TDIU requirements, a TDIU rating may still be obtained by referral to the director of Compensation and Pension Service for extraschedular consideration when the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b). 

38 C.F.R. section 3.321(b)(1) provides an alternative method of referring a case for extraschedular consideration when a claimant demonstrates an "exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards."  Extraschedular consideration under section 3.321(b) is not the same as TDIU under section 4.16(b) because sections 4.16(b) and 3.321(b)(1) are not interchangeable.  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994) ("the effect of a service-connected disability appears to be measured differently" by the two regulations).  Section 4.16(b) requires evidence of unemployability, while § 3.321(b)(1) requires only "marked interference with employment," which is a somewhat less severe standard.  See Thun v. Peake, 22 Vet. App. 111, 117 (2008); see also Stanton v. Brown, 5 Vet. App. 563, 564-70 (issue of extraschedular rating is separate from issue of TDIU rating).  In other words, a claimant need not demonstrate total unemployability to obtain a section 3.321(b) extraschedular disability rating.

The term "substantially gainful occupation" is not defined by VA regulation; however, the Court has held that the term refers to, at a minimum, the ability to earn "a living wage."  Bowling v. Principi, 15 Vet. App. 1, 7 (2001); Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  The Court has also held that a person is engaged in a "substantially gainful occupation" when that occupation "provides annual income that exceeds the poverty threshold for one person."  Faust v. West, 13 Vet. App. 342, 355-56 (2000).  The M21-1MR states that "voluntary withdrawal from the labor market" is an "extraneous factor" whose "effects" should be "[i]dentif[ied] and isolate[d]" in determining whether the severity of the service-connected conditions preclude a veteran from "obtaining or retaining substantially gainful employment."  M21-1MR, pt. IV, subpt. ii, ch. 2, sec. F.27.e.  Consequently, voluntary withdrawal from the labor market should not be an automatic bar to TDIU.

In adjudicating an assertion of entitlement to TDIU, the Board must also consider whether the existing VA medical examination reports adequately "address the extent of functional and industrial impairment from the veteran's service-connected disabilities."  Gary v. Brown, 7 Vet. App. 229, 232 (1994).  Thus, if the Board determines that the existing examination reports are insufficient to assess the matter of TDIU, it should request additional medical evidence before adjudicating the matter. 

In resolving a TDIU case, the question is whether the claimant is capable of securing or maintaining a substantially gainful occupation.  Although a claimant may be physically able to perform sedentary employment, he or she may not be educationally and vocationally qualified to perform such employment.  Although the duty to assist does not require VA to provide a vocational assessment to a claimant seeking a total disability rating based on individual unemployability, a claimant's education and work experience are relevant to the issue of entitlement to such a rating.  Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011).

Specifically, it is within VA's discretion to determine whether a vocational assessment was required based on "the facts of a particular case" and an assessment would be required "if, for example, the veteran were found medically qualified for a particular type of job, but there was an unusually difficult question as to whether the veteran had the educational or vocational skills for that position."  Id.  Accordingly, Smith does not require VA to provide a vocational assessment in every instance where a claimant is seeking a total disability rating based on individual unemployability, but it does require VA to at least consider whether a vocational assessment is required and to support its determination that one is not required with an adequate statement of reasons or bases.  Id.; see also 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written statement of the reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record").

If a claimant does not meet the schedular rating for unemployability provided in 38 C.F.R. § 4.16(a), he may still be granted TDIU on an extraschedular basis.  38 C.F.R. § 4.16(b).  The central inquiry "is whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In making its decision, VA may consider the veteran's education, special training, and previous work experience, but may not take into consideration any impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 1.19.  The Board's determination as to whether a claimant is unable to secure and hold substantially gainful employment is a finding of fact that the Court reviews under the "clearly erroneous" standard.  Bowling v. Principi, 15 Vet. App. 1, 6 (2001). 

Although the Secretary and the Board can separate parts of a claim and develop and adjudicate them separately, see Fagre v. Peake, 22 Vet. App. 188, 191 n.4 (2008) (noting the Secretary is free to "issu[e] separate Board decisions with regard to each, some, or all disabilities claimed by a veteran"), TDIU remains a component of an increased rating claim for any period not adjudicated separately, and the Board has jurisdiction over the issue as long as it has jurisdiction over an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Evidence of unemployability subsequent to a decision denying TDIU and while a claim for increased benefits is still being processed may lead to an award of TDIU for the time period under adjudication.  If TDIU is not warranted pursuant to 38 C.F.R. section 4.16(a), the matter of a TDIU rating may still be referred to the director of Compensation and Pension Service for extraschedular consideration when it is found that the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b). 

 "Evidence of unemployability," does not equate to "100% unemployable."  Roberson v. Principi, 251 F.3d at 1378, 1384-85 (Fed. Cir. 2001).  Instead, an appellant is not required "to show 100[%] unemployability in order to prove that he cannot 'follow substantially gainful occupation.'"  Id.  Section 4.16(a) also indicates that "[m]arginal employment shall not be considered substantially gainful employment."  Marginal employment includes employment in a "protected environment" including a "sheltered workshop."  38 C.F.R. § 4.16(a).

5.8. Schedular Rating 100%-Temporay Disability Rating

Temporary 100% Disability Rating

There are three types of temporary disabiltiy ratings:

  • Prestabilization Ratings
  • Total Ratings for Service-Connected Disability Requiring Hospitalization
  • Convalescence Rating (TDCC)

Prestabilization Ratings:

  • Prestabilization Rating of 100% is for Veterans who have experienced, during active, an unstable condition resulting in a severe disability that renders gainful employment either not feasible or adviseable.  Such conditions would include: residuals resulting from a head injury or gunshot wound residuals.
  • The VA is not allowed to assign a 100% prestabilization rating if the Veteran's case warrants a 100% regular rating.
  • Assigned immediately after discharge from the military and continues for 12 months after discharge.
  • During the 12 months, the Prestabilized rating can change to a "another rating authorizing a greater benefit" if the change would be a better benefit for the Veteran.
  • There must be a VA exam of the Veteran between the 6 month and the 12 month. following discharge.  If the exam calls for a reduction in benefits, the VA can not make the reduction until the end of 12 month period.

Total Ratings for Service Connected Disabilities Requiring Hospitalization

  • The condition must be service-connected.
  • The period of hospitalization or observation must exceed 21 days.
  • The Increased rating starts on the first day of continuous hospitalization and ends on the last day of the month of hospital discharge.
  • If hospialization occurs for a non-service connected condition and during the hospitalization a service connected disability is treated for over 21 days, then the 100% can be granted.

Convalescence Rating (TDCC) :

  • Three circumstances for TDCC:
    • The Veteran has surgery that requires 1 month of convalescence, or
    • The Veteran's surgery has resulted in severe postoperative residuals,or
    • The Veteran has a major joint immobilzed by a cast.
  • Convalescence for Mental Disorder:
    • Veteran must have a service connected mental disorder
    • Hospitalized for at least 6months for the service connected mental disorder
    • Convalescent rating will last for 6 months after hospital discharge.  This rating is protected under 38 C.F.R. 3.105(e)
  • Benefit is for up to a year.
  • The conditions must be service connected and the medical documentatin indicates that the Veteran needs time to convalesce after hospital discharge or outpatient release.
  • Home Confinement is not necessary. Ruling from  Felden v. West, defines convalescence as " the act of regaining or returning to a normal or healthy state after a surgical operation, or injury"  Medical documentation is necessary.  If Veteran's doctor prescribes: "Do not return to work for 12 weeks", then the CAVC has ruled that the note establishes 12 weeks of convalescence.

 

5.9. Compensation Rates

Compensation rates are established by Congress. The VA compensation system is based on the rated percentage of disability ("scheduler rating") and not on the rank of the veteran at time of discharge. At present, a senior officer and a junior enlisted who are each rated as 30% disabled each will receive the same amount of compensation per month from VA.

At one time the amount of VA benefits payable for the same condition was different depending on whether the veteran served in a time of war or not. Under the current payment schedule, compensation benefits for both classes of veterans are the same. So veterans with the same percent rated disability today receive the same monetary compensation regardless of when they served. [link to 38 USC 1110 v. 1131]

38 U.S.C. section 1114 sets forth the compensation rates for all awards of disability compensation, whether based on a new claim or a claim retroactively granted on the basis of CUE in a prior VA decision.  When the rates are set by Congress, they have a specific effective date and remain in effect until they are changed.  Nothing in the statute provides for payment of a higher rate when the payments are retroactive, and the Court cannot find any intent for payment at the higher rate without a clear, explicit waiver of the Government's sovereign immunity from the payment of interest.  38 U.S.C § 1114; see also Smith v. Principi, 281 F.3d 1384, 1387 (Fed. Cir. 2002) ("waiver of the no-interest rule must be express").  Further, the suggestion that section 1114 requires that an award of retroactive benefits must be calculated at the rate in effect at the time of payment was expressly rejected by the Federal Circuit in Sandstrom v. Principi, 358 F.3d 1376, 1380 (Fed. Cir. 2004).

Thus, a claimant is not entitled to receive an amount not authorized by Congress during a particular time frame.

Refer to:  Appendix III Compensation Tables

5.10. Special Monthly Compensation (SMC)

In addition to compensation based on the degree of disability, Congress has also authorized additional compensation for certain disabilities. This "special monthly compensation" ("SMC") is intended to compensate claimants for service-connected conditions that involve loss of use or anatomical loss (amputation) of body parts, such as hands or feet, or loss of hearing or sight. SMC can result in significantly more monthly compensation for severely injured veterans.

While a scheduler rating depends on the severity of a condition, SMC for loss of use does not depend on the degree of loss, except that the loss of use must be permanent. The more seriously disabled veteran may be eligible for SMC payments for combinations of anatomical loss or loss of use. In addition, severely disabled veterans may be awarded further compensation for regular aid and attendance needs and for permanent housebound conditions. As SMC has many possible combinations and involves a significant amount of additional compensation, VETSFIRST recommends that severely injured veterans get help in filing their SMC claims from someone experienced in such cases.

"Special Montly Compensation (SMC) is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities."  Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)–(s)).  The Board's determination as to whether a veteran is entitled to SMC is a finding of fact that the Court reviews under the "clearly erroneous" standard of review.  Id. (citing Prejean v. West, 13 Vet. App. 444, 447 (2000); Turco v. Brown, 9 Vet. App. 222, 224 (1996)).  Section 1114( l ) provides, in pertinent part:  if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance, the monthly compensation shall be $3,075.  38 U.S.C. § 1114(l).  

VA has promulgated regulations implementing section 1114 relevant to the determination of whether a veteran "is so helpless as to be in need of regular aid and attendance are contained in § 3.352(a)."  38 C.F.R. § 3.350(b)(3); see 38 C.F.R. § 3.351(c)(3) (providing that a claimant is entitled to SMC based on the need for aid and attendance by establishing "a factual need for aid and attendance under the criteria set forth in [38 C.F.R. § 3.352(a)].").  

The Court has held that the order in which disabilities are service connected is not relevant to VA's determination of a claimant's eligibility for special monthly compensation under 38 U.S.C. section 1114(s).  Whenever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA's duty to maximize benefits requires VA to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s).  If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities.  Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010), as amended (Apr. 21, 2011).

Levels of SMC Ratings 

Each level of SMC ratings are successive and are preceded by an entitlement to certain conditions included under SMC(K).  The basic elements of Special Monthly Compensation ratings include:

  • anatomical (or physical) loss or the loss of use (Loss of use from neurological, muscular, vascular, contractures,etc.)  of one or more of the following:
    • limbs,
    • hands,
    • feet
    • reproductive organs;
  • aphonia (loss of voice);
  • deafness;
  • blindness;
  • loss of bowel and bladder control;
  • being permanently housebound;
  • and a need for regular aid and attendance with activities of daily living or a higher level of care–all of which must be a result of the veteran's service-connected disabilities.

A rating of SMC(K) would include: 

  • The anatomical loss or loss of use (Loss of use from neurological, muscular, vascular, contractures,etc.) of:
    • one hand.
    • one foot.
    • both buttocks (where the applicable bilateral muscle group prevents the individual from maintaining unaided upright posture, rising and stooping actions).
    • one or more creative organs used for reproduction (absence of testicles, ovaries or other creative organ, ¼ loss of tissue of a single breast or both breasts in combination) due to trauma while in service, or as a residual of a service-connected disability(ies). NOTE: these do not serve as eligible prerequisite conditions for the higher levels of SMC.
    • One eye (loss of use to include specific levels of blindness).
  • Complete organic aphonia (constant loss of voice due to disease)
  • Deafness of both ears to include absence of air and bone conduction.

A rating of SMC (L) would include:

  • The anatomical loss or loss of use of:
    • Both feet,
    • One hand and one foot
  • Blindness in both eyes with visual acuity of 5/200 or less.
  • Permanently bedridden.
  • Regular need for aid and attendance to assist with activities of daily living such as dressing oneself, tending to personal hygiene, care and adjustment of assistive appliances or prosthetics, feeding oneself, and the like. (specific criteria is established in 38 CFR § 3.352(a)) (NOTE: If such services are not being provided at the expense of the U.S. Government due to hospitalization).

Ratings above the SMC(L) level to include SMC(M), SMC(N), SMC(O), SMC(P), SMC(R) and SMC(S) are specialized multifaceted levels which are based on various specific combinations of anatomical loss or loss of use of designated extremities and/or senses, together with seriously disabling conditions and particular degrees of aid and attendance requirements, housebound or bedridden statuses deemed medically necessary, and explicit service-connection ratings. These levels also outline various requirements to include full and half step upgraded SMC level ratings. The conditions providing the basis of these levels are as follows.

A rating of SMC(M) would include:

  • The anatomical loss or loss of use of (neurological loss):
    • Both hands,
    • Both legs at the region of the knee
    • One arm at the region of the elbow with one leg at the region of the knee
  • Blindness in both eyes having only light perception.
  • Blindness in both eyes resulting in the need for regular aid and attendance.

A rating of SMC(N) would include:

  • The anatomical loss or loss of use of both arms at the region of the elbow.
  • The anatomical loss of both legs so near the hip that it prevents the use of a prosthetic appliance.
  • The anatomical loss of one arm so near the shoulder that it prevents the use of a prosthetic appliance along with the anatomical loss of one leg so near the hip that it prevents the use of a prosthetic appliance.
  • The anatomical loss of both eyes or blindness in both eyes to include loss of light perception.

A rating of SMC(O) would include:

  • The anatomical loss of both arms so near the shoulder that it prevents the use of a prosthetic appliance.
  • Bilateral deafness rated at least 60 percent disabling along with service-connected blindness with visual acuity of 20/200 or less of both eyes.
  • Complete deafness in one ear or bilateral deafness rated at least 40 percent disabling along with service-connected blindness in both eyes to include loss of light perception.
  • Paraplegia – paralysis of both lower extremities along with bowel and bladder incontinence.
  • Helplessness due to a combination of anatomical loss or loss of use or two extremities with deafness and blindness or a combination of multiple injuries causing severe and total disability.

A rating of SMC(P) would include:

  • The anatomical loss or loss of use of a leg at or below the knee along with the anatomical loss or loss of use of the other leg at a level above the knee.
  • The anatomical loss or loss of use of a leg below the knee along with the anatomical loss or loss of use of an arm above the elbow.
  • The anatomical loss or loss of use of one leg above the knee and the anatomical loss or loss of use of a hand.
  • Blindness in both eyes meeting the requirements outlined in SMC (L), (M) or (N) levels.

A rating of SMC(R): 

Ratings under SMC(R) are assigned for seriously disabled veterans in need of advanced levels of aid and attendance.

SMC(R) ratings require a minimal combination of entitlement to both SMC(O) and SMC(L). Additionally, Veterans in receipt of SMC rates based on Aid and Attendance are strongly advised to contact their service representative and/or VA Regional Office should they become hospitalized at the expense of the U.S. Government (i.e. a VA medical facility) as failure to do so could create an overpayment of monetary benefits.

A rating of SMC(S):

Ratings under SMC(S) are also available if the veteran is permanently housebound. The VA defines "permanently housebound" as being substantially (as opposed to completely) confined to a dwelling as the result of service-connected disability and it is reasonably certain that that such disability will continue throughout the veteran's lifetime. These kinds of determinations should be made by a physician, whose written opinions or reports in this respect would serve as the best evidence to submit in support of a claim for "s" SMC benefits.

A rating of SMC(T):  Traumatic Brain Injury

Ratings under SMC(T) are available to veterans who need regular aid A&A for residuals of Traumatic Brain Injury (TBI), but is not eligible for a higher level of A&A under (R)(2), and would require hospitalization, nursing home care, or other residential institutional care in absence of regular in-home aid and attendance.

6. VA Compensation-Service Connected Disability Conditions due to Legal Presumptions

6.1. What's a Legal Presumption?

A presumption is a rule of law which permits a court to assume a fact is true without any evidence until there is a certain weight of evidence which rebuts (disproves or outweighs) the presumption.  Each presumption is based upon a particular set of apparent facts coupled with established laws, logic, or reasoning.  A presumption is "rebuttable" when a person can present facts to persuade a judge that the presumption is not true in his or her particular case.  The VA system includes a number of presumptions some favorable and some unfavorable to claimants, as described below.

6.2. Presumption of In-service Occurrence

Congress has specified a number of conditions the diagnosis of which within certain periods after discharge from service gives rise to a statutory presumption of incurrence in service.  38 U.S.C. § 1112(a)(1); Collamore v. Derwinski, 2 Vet. App. 541, 543 (1992).  These presumptions include:

  • a chronic or tropical disease developing a 10% or more degree of disability within 1 year
  • active tuberculosis developing a 10% or more degree of disability within 3 years
  • Hansen's disease developing a 10% or more degree of disability within 3 years
  • multiple sclerosis developing a 10% or more degree of disability within 7 years

38 U.S.C. § 1112(a).  There is also a broad presumption for prisoners of war detained for not less than 30 days.  38 U.S.C. § 1112(b).

6.3. Presumption of Soundness

"[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment."  38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b).  Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service.  Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.

Upon entering service, an individual will be presumed sound, "except as to defects, infirmities, or disorders noted at [entry], or where clear and unmistakable evidence demonstrates that the injury or disease existed before [service] and was not aggravated by such service."  38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b).  "Clear and unmistakable evidence," as used in the governing statutes, has been interpreted to mean evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable."  Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). 

The Court has held that the Board should seek medical opinions as necessary to determine the sufficiency of the evidence offered to rebut the presumption of soundness.  Adams v. West, 13 Vet. App. 453 (2000), aff'd sub nom. Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001).  The regulations implementing 38 U.S.C. § 1111 state that medical evidence is necessary to rebut the presumption of soundness and that the Board should not make such a determination without seeking medical opinions. See 38 C.F.R. § 3.304(b); see also Adams, 256 F.3d at 1318.  Although the Secretary may not seek an opinion for the sole purpose of discrediting an appellant's claim, the Board is free to obtain a medical opinion to clarify an issue of medical complexity.  See Adams, 256 F.3d at 1318; see Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009).

In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the Federal Circuit discussed the interplay between the statutory presumptions of soundness and aggravation and its effect on VA's burden of rebuttal.  The Federal Circuit neatly summarized the burden-shifting framework as follows:

The effect of section 1111 on claims for service-connected disability thus may be summarized as follows.  When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition.

370 F.3d at 1096 (quoting 38 U.S.C. section 1153).  In deciding whether a condition preexisted service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition.  38 C.F.R. §§ 3.304(b)(1), (2).

The Court reviews de novo a Board decision concerning the adequacy of the evidence offered to rebut the presumption of soundness.  See Cotant v. Principi, 17 Vet. App. 116, 130 (2003).  However, the Federal Circuit has stated that, in reviewing the legal sufficiency of such rebuttal evidence, this Court may employ the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review because it subsumes de novo review of questions of law.  Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).  Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).

The only prerequisite for the application of the presumption of soundness is that the veteran's entry examination be clear of any noted diseases or disabilities.  See Wagner, 370 F.3d at 1096.  The Court has recognized that service connection may be granted for congenital diseases.  Monroe v. Brown, 4 Vet. App. 513, 515 (1993).  The presumption of soundness applies if a veteran's congenital condition is not noted at entry. See id.  

The presumption of soundness does not, however, apply to congenital defects, because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111.  38 C.F.R. § 3.303(c); see Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); see Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply").  "VA regulations state that congenital or developmental defects 'are not diseases or injuries within the meaning of applicable legislation.'"  Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting 38 C.F.R. § 3.303(c)).  On the other hand, "congenital diseases . . . may be service connected."  Id.

"[A] defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating.'"  Id. (quoting VA Gen. Couns. Prec. 82-90 at 2).  Thus, congenital defects and conditions resulting from them are not compensable, whereas congenital diseases and conditions resulting from them are compensable.  For this reason, "[t]he presumption of soundness does not . . . apply to congenital defects, because such defects 'are not diseases or injuries' within the meaning of 38 U.S.C. §§ 1110 and 1111," the statutes governing basic entitlement to VA benefits and the presumption of soundness.  Id. at 397.

Importantly, it is well established that merely noting a history of pre-service medical problems does not suffice to "note" a medical condition that is present at induction.  See Crowe v. Brown, 7 Vet. App. 238, 245 (1995) (childhood history of asthma did not "note" the condition at induction); 38 C.F.R. § 3.304(b)(1) ("History of preservice existence of conditions recorded at the time of examinations does not constitute a notation of such conditions").  

6.4. Presumption of Regularity

There is a "presumption of regularity" under which Government officials are presumed to "have properly discharged their official duties."  Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992).  This presumption is a legal fiction that allows the Court to assume, without proof or evidence, that VA did whatever action it was supposed to have done.  For example, a common use of the presumption of regularity is when there is a dispute about whether VA mailed a document to a claimant.  The Court will presume that VA mailed the document to the claimant on the proper date and to the proper address even if there is nothing in the C-file about the mailing unless the claimant can show that the mailing did not happen that way. 


The presumption of regularity does have some limits.  First, the presumption of regularity applies only when the performance of the procedure appears regular.  See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (noting that the presumption of regularity "allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary" (quoting Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001))).  The mailing of notices discussed above is a prime example.  If the C-file contains some notices, but not others, the absence of letters seeking information or providing the purportedly requested information, may show that the mailing procedure was not performed regularly, such that the presumption is not applicable.  See U.S. VET. APP. R. 28.1(a)(1) ("The record of proceedings shall contain . . . [documents] relevant to the issues before the Board that are on appeal to the Court").  Although the presumption may be rebutted by clear evidence that the mailing procedures were not regular or were not followed in a particular instance, "[a]n 'assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process.'"  Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (quoting Jones v. West, 12 Vet. App. 98,102 (1998)).

6.5. Herbicide-exposed Veterans (including Agent Orange)

For certain veterans exposed in service to a herbicide agent, Congress has established a presumption of service connection for a number of diseases.  See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e).  Service connection for diseases listed in 38 C.F.R. § 3.309(e) is presumed if a veteran was exposed to certain herbicides, including Agent Orange, during military service.  See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  The term "herbicides" is not limited to Agent Orange, but includes any tactical herbicide.  Vietnam veterans are rebuttably presumed to have been exposed to herbicides if they served in the Republic of Vietnam.  38 C.F.R. § 3.307(a)(6)(iii).  So veterans deemed to have served in the Republic of Vietnam as discussed below, do not have to produce evidence of actual exposure to Agent Orange or any other herbicide.

A veteran who served in the Republic of Vietnam, its offshore waters, or other locations, "if the conditions of service involved duty or visitation in the Republic of Vietnam" between January 9, 1962, and May 7, 1975, is presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii).  Under VA's interpretation of this regulation, a veteran who set foot on the landmass of the Republic of Vietnam is entitled to a presumption of exposure to Agent Orange.  Haas v. Peake, 525 F.3d 1168, 1174 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009).  Service on a U.S. Navy vessel may also qualify, as long as the veteran set foot on land at some point.  Id. at 1195, 1197.  

The presumption of herbicide exposure also applies for Navy veterans who served on vessels that were originally designated as offshore, or "blue water," vessels, but nevertheless conducted operations on the inland "brown water" rivers and delta areas of Vietnam.  When a veteran alleges exposure to herbicides during service aboard a Navy or Coast Guard ship that operated on the offshore waters of Vietnam, VA is required to look for:

  • evidence that shows the ship
    • docked to the shores or piers of the RVN
    • operated temporarily on the RVN inland waterways, or
    • operated on close coastal waters for extended periods, with evidence that
      • crew members went ashore, or
      • smaller vessels from the ship went ashore regularly with supplies or personnel
  • evidence that places the veteran onboard the ship at the time the ship docked to the shore or pier or operated in inland waterways or on close coastal waters for extended periods, and
  • the veteran's statement as to whether he or she went ashore when the ship docked or operated on close coastal waters for extended periods, if the evidence shows the ship docked to the shore or pier or that crew members were sent ashore when the ship operated on close coastal waters.

M21-1MR, part IV, subpt ii, chap 1, sec H.28; see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).

"A veteran who contracts a disease not presumed under the regulation to be caused by herbicide exposure" may still seek to establish service connection on a direct basis, pursuant to Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Ischemic heart disease is now on the list of diseases subject to presumptive service connection secondary to herbicide exposure.  38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202 (Aug. 31, 2010) (section 3.309(e) is amended "by adding 'Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina)'"), Parkinson's disease, and all chronic B-cell leukemias.).  The list of presumptive conditions now includes:

  • AL amyloidosis
  • Chloracne and related conditions
  • Type 2 diabetes
  • Hodgkin's disease
  • Ischemic heart disease
  • Chronic B-cell leukemias
  • Multiple myeloma
  • Non-Hodgkins lymphoma
  • Parkinson's disease
  • Acute and subacute peripheral neuropathy
  • Porphyria cutanea tarda
  • Prostate cancer
  • Respiratory cancers
  • Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma.

38 C.F.R. § 3.309(e).

6.6. Combat

Claimants seeking compensation for conditions that are the result of combat have a reduced evidentiary burden (sometimes called the "combat presumption").  Where a veteran "engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation."  38 U.S.C. 1154(b); see also 38 C.F.R. § 3.304(d) ("Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances . . . of such service even though there is no official record of such incurrence or aggravation").  Section 1154(b) does not eliminate the need for medical nexus evidence; it merely reduces the burden of presenting evidence of incurrence or aggravation of an injury or disease incurred in or aggravated by combat service.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).


Even when the combat presumption applies, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Boyer v. West, 11 Vet. App. 477, 478-79 (1998).  Section 1154(b) does not eliminate the need for evidence of a medical nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected."); Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed. Cir. 1994); Clyburn v. West, 12 Vet. App. 296, 303 (1999).

6.7. Prisoners of War (POWs)

The law identifies certain diseases for which service connection will be rebuttably presumed for a veteran who was a prisoner of war (POW) for not less than 30 days.  See 38 C.F.R. §§ 3.307, 3.309(c).  Conditions subject to presumptive service connection for POWs are listed under 38 U.S.C. section 1112(b)(4).  However, the presumption is rebutted "[w]here there is affirmative evidence to the contrary, or evidence to establish that an intercurrent injury or disease which is a recognized cause of [such disease], has been suffered between the date of separation from service and the onset of [the] disease."  38 U.S.C. § 1113(a); see also 38 C.F.R. § 3.307(d).


Under 38 U.S.C. section 1112(b), if a veteran was a prisoner of war for 30 days or more, certain diseases, including beriberi, chronic dysentery, malnutrition, and other nutritional deficiencies will be presumed service connected if manifested to a degree of 10% anytime after military service even if there is no record of the disease in service.  38 U.S.C. § 1112(b)(3); see also 38 C.F.R. § 3.309(c)(2)(ii), ("Note" instructing that "For purposes of this section, the term beriberi heart disease includes ischemic heart disease in a former prisoner of war who had experienced localized edema [(swelling)] during captivity."  59 Fed. Reg. 35464 (1994).  "Ischemic heart disease" is a synonym for "arteriosclerotic heart disease." Dorland's Illustrated Medical Dictionary, 30th ed., 528.  Applicable regulations expanded that presumption to apply to atherosclerotic heart disease as well.  38 C.F.R. § 3.309(c)(1). ("Atherosclerotis" is a common form of "arteriosclerotis."  Dorland's Illustrated Medical Dictionary, 30th ed., 172.).  Presumptive service connection allows a presumption of service connection for former POWs who suffer from atherosclerotic heart disease and hypertensive vascular disease if manifest to a degree of 10% or more any time after service.  38 C.F.R. § 3.309(c)(1).

6.8. Radiation-exposed Veterans

Qualification under the presumptive provision of 38 U.S.C. section 1112(c) occurs when a veteran suffers from one of the fifteen listed cancers, and establishes participation in a "radiation risk activity" defined as:

(i)    Onsite participation in a test involving the atmospheric detonation of a nuclear device.
(ii)   The occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946.
(iii) Internment as prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which (as determined by the Secretary) resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans described in clause (ii) of this subparagraph.

38 U.S.C. § 1112(c)(4)(B); Hardin v. West, 11 Vet. App. 74, 77-78 (1998).  A veteran's radiation exposure that does not constitute a "radiation-risk activity" as defined by the statute is not entitled to the statutory presumption of service connection in section 1112(c).  Lasovick v. Brown, 6 Vet. App. 141, 146-47 (1994).

6.9. Camp Lejeune Presumptive Conditions

Exposure to contaminants in the water supply at Camp Lejeune has resulted in the VA amending its regulations, effective March 14, 2017, to establish presumption of service connection for eight conditions.

From 1953 to 1987, water sources at Marine Corps Base Camp Lejeune were contaminated with industrial solvents that are correlated with health conditions. It has been determined by scientific authorities and health experts that the drinking water at Camp Lejeune was contaminated with perchloroethylene, trichloroethylene, vinyl chloride, benzene and other petroleum contaminants from leaking storage tanks and determined that prolonged exposure to these chemicals increase the risk of certain health conditions.

A presumptive connection is established for the following conditions:

Kidney Cancer - Liver Cancer - Non - Hodgkin Lymphoma - Adult Leukemia - Multiple Myeloma - Bladder Cancer - Parkinson's Disease - Aplastic Anemia/Myelodysplastic Syndromes

The rule allows Servicemembers with records demonstrating no less than 30 days of service (either consecutive or cumulative) at Camp Lejeune during the specified timeframe, and who have been diagnosed with any of the eight enumerated diseases to be presumed to have a service-connected disability for purposes of entitlement to VA benefits. The rule applies to all military active duty, reserve, and National Guard personnel that meet the requirements of the regulation.

If you have a record of service at Camp Lejeune between August 1, 1953, and December 31, 1987, served there for at least 30 days during that period, and developed a condition that you believe is related to exposure to the drinking water at the base, VA recommends you file a disability compensation claim. VA is also reimbursing certain Veterans' family members for eligible out-of-pocket medical expenses related to the 15 covered conditions. More information can be found at: https://www.clfamilymembers.fsc.va.gov.

6.10. Gulf War Veterans

38 C.F.R. §§ 3.317(c), (e)(1).  The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(e)(2).

A veteran who served in Southwest Asia can be service connected for "undiagnosed illness" without direct evidence of a nexus between hos or her service and the illness. For the purposes of this section, Southwest Asia includes Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, UAE, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above. VA also considers service in Afghanistan to be included.

A veteran having service in any of these areas since August 2, 1990, is considered eligible for presumptive service connection for one or more of the following "manifestations:"

  • An undiagnosed illness;
  • A medically unexplained chronic multisymptom condition (such as fibromyalgia, chronic fatigue syndrome, or irritable bowel syndrome; or
  • One of a list of infectious diseases determined by the VA, which includes leishmaniasis

A veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War is entitled to presumptive service connection for the following conditions:

  • Brucellosis
  • Campylobacter jejuni
  • Coxiella burnetii (Q fever)
  • Malaria
  • Mycobacterium tuberculosis
  • Nontyphoid Salmenella
  • Shigella
  • Visceral leishmaniasis
  • West Nile virus

Finally, for an undiagnosed illness or medically unexplained illness the condition must have manifested itself during service or to a "degree of 10 percent or more during the presumptive period, which is continuing since August 1990. For infectious diseases the presumptive period varies by disease from one year to no time limit.

For "undiagnosed" and "multisymptom" diseases that do not have their own rating tables, the issue of which condition is "similar" to the claimant's condition can mean the difference between an award and denial. VA is required to explain why they used a particular table and must take into account the claimant's specific symptoms. Using the wrong rating table can unfairly prevent a 10% rating.

Another common problem is private physicians trying to diagnose something to assist the veteran. A diagnoses, even if only an attempt to narrow the possible causes, does not satisfy the "undiagnosed" condition requirement, as VA as pointed out in many denials. Claimants should discuss the difference between a best guess diagnoses and a diagnoses to a medical certainty if a Gulf War claim is being considered.

Veterans of the Persian Gulf with a health concern are eligible for an examination, whether or not he or she has a current condition. Persons undergoing the examination are added to the VA Persian Gulf War Veterans Health Registry. This registry allows VA to track Persian Gulf Veterans health conditions and, hopefully, detect conditions related to service in that theater that should be added to the presumptive list.

6.11. Certain Chronic Diseases

As discussed above, statutes and regulations governing presumptive service connection for chronic diseases, provide that such conditions which manifest within the presumptive period "shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record of evidence of such disease during the period of service."  38 U.S.C. § 1112(a) (emphasis added); see also 38 C.F.R. §§ 3.307(a)(3), 3.309(a).   The law provides for presumptive service connection for various chronic diseases—designated in section 3.309(a)—if compensable manifestations of the chronic disease occur within one year of discharge from service.  38 C.F.R. § 3.307(a)(3).  Evidence of the existence of a chronic disease during the applicable one-year presumption period allows for an award of service-connection.  See 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a); 3.309(a) (classifying organic heart disease and hypertension as chronic diseases); see also Salong v. Brown, 7 Vet. App. 130, 132 (1994) (doctor's diagnosis together with statement that appellant had been treated shortly after discharge, sufficient to show development of chronic disease within presumption period).  Only the conditions listed in section 3.309(a) are considered chronic.  38 C.F.R. § 3.307(a).  The Court has stated that hearing loss is not "a chronic disease entitled to any presumption of service connection" under section 3.307(a)(3) and section 3.309(a).  Godfrey v. Derwinski, 2 Vet. App. 352, 354 (1990).

6.12. Children of Vietnam Veterans

VA will pay a monthly benefit to an individual suffering from spina bifida whose biological mother or father is or was a Vietnam veteran or a veteran with service in Korea as defined in the regulation.  38 C.F.R. § 3.814(a).  This benefit is available to any "individual" regardless of age or marital status who was conceived after the date on which the veteran first served in Vietnam or Korea during the specified period.  Id. § 3.814(c)(3).  For the purposes of this benefit, spina bifida includes any form except spina bifida occulta.  Id. § 3.814(c)(4).


Monthly benefits are also available for individuals whose biological mother is or was a Vietnam veteran who suffers from a medical condition other than spina bifida.  38 C.F.R. § 3.815(a).  The regulations list 18 specific birth defects eligible for benefits and explicitly state that eligible conditions are "not limited to" those on the list.  38 C.F.R. § 3.815(d)(1).  The regulations also contain several lists of birth defects that are not eligible for benefits.  Id. § 3.815(d)(2)-(8).  

7. VA Compensation Claims-Special Rules

7.1. Special Rules For Certain Claims

Congress, and in some cases VA, has recognized that some conditions resulting from service are so widespread or unique that they require special procedures. Two of the most common of these conditions, herbicide exposure in Vietnam Era veterans and undiagnosed or multisymptom illnesses in Persian Gulf War veterans, are described below.

7.2. Herbicide-Exposed Veterans

Congress has established a "presumption" of exposure to herbicides, most infamously including "Agent Orange," for veterans who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. A presumption is a legal term that means that VA has to assume a fact unless there is evidence against the fact. For Vietnam veterans this means that evidence of actual exposure Agent Orange is not required – those veterans is presumed to have been exposed to Agent Orange – if they meet the requirements for the presumption.

For claimants, this means that if a veteran can show he or she was in Vietnam during the specific period and currently has a medical condition listed in VA regulations as being caused by Agent Orange which began within the listed time periods, VA must service connect that condition. Conditions that are presumptively service-connected for herbicide exposure include chloracne, Type 2 diabetes (also know as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, Non-Hodgkin's lymphoma, B cell leukemia, Parkinson's disease, and ischemic heart disease. Other presumptive conditions are listed, so a Vietnam veteran with a health condition should review the entire list. [link to CFR]

Just who is eligible for the herbicide presumption has been the topic of extensive debate and litigation. As it currently stands, having earned a Vietnam Service Medal is not enough to obtain the presumption. A veteran must show that he or she put "boots on the ground" in Vietnam or have been a "brown water" (inland waters) sailor to qualify. A single layover or shore leave is enough to receive the presumption. In addition, some veterans with service in Korea are also eligible for the presumption. For veterans with service in Thailand the key to claims for exposure are military duties that took the veteran out to and alongside the perimeter of bases where defoliants were acknowledged to have been used. Such duties include dog handling, security, and some maintenance activities.

Many veterans have challenged this definition, especially "blue water" (open ocean) sailors and Air Force ground support personnel who believe that they were exposed to Agent Orange or other herbicides during service. VA, backed by the courts, will not apply the presumption unless they have evidence of "boots on the ground" from these veterans.  Air Force members and reservist who served

On June 19th, 2015 the Federal Register published that Air Force Servicemembers and Air Force Reservists who served during the period of 1969 through 1986 and whose service required that they regularly and repeatedly operate, maintain, or serve onboard C-123 aircraft that was exposed to Agent Orange are now eligible for VA disability compensation for presumptive conditions due to Agent Orange Exposure.  

In addition, any veteran who believes that he or she was exposed to a herbicide can file a claim and attempt to show actual herbicide exposure. This can be done by providing evidence of actual exposure, such as photographs showing Agent Orange barrels. In addition, veterans who served in other locations, such as Guam, have occasionally been able to show actual exposure although the government does not officially acknowledge Agent Orange was stored or used in those locations.

A unique aspect of Agent Orange claims is the possible retroactive assignment of effective dates. A series of court orders in the class-action litigation in Nehmer v. United States Department of Veterans Affairs, requires VA in certain cases to make an award effective on the date of the claimant's application or the date of a previously-denied application, even if such date is earlier than the effective date of the regulation establishing the presumption. In other words, the Nehmer case created an exception to the rules for calculating effective dates and requires VA to assign retroactive effective dates for certain awards of disability compensation and DIC.

Another result of the Nehmer case is that if an individual was entitled to retroactive benefits as a result of the court orders but died prior to receiving such payment, VA must pay the entire amount of the retroactive payments to the veteran's estate, regardless of any statutory limits on payment of benefits following a veteran's death. Veterans and surviving spouses, dependent children, and dependent parents of veterans with service in Vietnam who previously filed claims for conditions associated with herbicide exposure should carefully review current VA regulations to determine if they are eligible for retroactive benefits.

7.3. Polytraumatic Injuries Requiring Specialized Rehab

Recent combat has resulted in new patterns of polytraumatic injuries and disability requiring specialized intensive rehabilitation processes and coordination of care throughout the course of recovery and rehabilitation. While serving in Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF), military service members are sustaining multiple severe injuries as a result of explosions and blasts. Improvised explosive devices, blasts, landmines, and fragments account for 65 percent of combat injuries (see subpar. 17a). Congress recognized this newly emerging pattern of military injuries with the passage of Public Law 108-422, Section 302, and Public Law 108-447.

Combat injuries are often the result of a blast. Blasts cause injuries through multiple mechanisms. Severe blasts can result in total body disruptions and death to those closest to the blast site or they can result in burns and inhalation injuries. Blast injuries typically are divided into four categories: primary, secondary, tertiary, and quaternary or miscellaneous injuries.

1. Primary Blast Injuries. Primary blast injuries are caused by overpressure to gas- containing organ systems, with most frequent injury to the lung, bowel, and inner ear (tympanic membrane rupture). These exposures may result in traumatic limb or partial limb amputation.

2. Secondary Blast Injuries. Secondary blast injuries occur via fragments and other missiles, which can cause head injuries and soft tissue trauma.

3. Tertiary Blast injuries. Tertiary Blast injuries result from displacement of the whole body by combined pressure loads (shock wave and dynamic overpressure).

4. Miscellaneous Blast-related Injuries. These are miscellaneous blast-related injuries such as burns and crush injuries from collapsed structures and displaced heavy objects. Soft tissue injuries, fractures, and amputations are common.

Animal models of blast injury have demonstrated damaged brain tissue and consequent cognitive deficits. Indeed, the limited data available suggests that brain injuries are a common occurrence from blast injuries and often go undiagnosed and untreated as attention is focused on more "visible" injuries. A significant number of casualties sustain emotional shock and may develop PTSD. Individuals may sustain multiple injuries from one or more of these mechanisms. Explosions can produce unique patterns of injury seldom seen outside combat.

Center for Disease Control and Prevention (CDC) Classification of Blast Injuries

Auditory or Vestibular
Tympanic membrane rupture, ossicular disruption, cochlear damage, foreign body, hearing loss, distorted hearing, tinnitus, earache, dizziness, sensitivity to noise.

Eye, Orbit or Face
Perforated globe, foreign body, air embolism, fractures.

Respiratory
Blast lung, hemothorax, pneumothorax, pulmonary contusion and hemorrhage, atrioventricular fistula (source of air embolism), airway epithelial damage, aspiration pneumonitis, sepsis.

Digestive
Bowel perforation, hemorrhage, ruptured liver or spleen, mesenteric ischemia from air embolism, sepsis, peritoneal irritation, rectal bleeding.

Circulatory
Cardiac contusion, myocardial infarction from air embolism, shock, vasovagal hypotension, peripheral vascular injury, air embolism-induced injury.

Central Nervous System
Concussion, closed or open brain injury, petechial hemorrhage, edema, stroke, small blood vessel rupture, spinal cord injury, air embolism- induced injury, hypoxia or anoxia, diffuse axonal injury.

Renal and/or Urinary Tract
Renal contusion, laceration, acute renal failure due to rhabdomyolysis, hypotension, hypovolemia.

Extremity
Traumatic amputation, fractures, crush injuries, burns, cuts, lacerations, infections, acute arterial occlusion, air embolism-induced injury.

Soft Tissue
Crush injuries, burns, infections, slow healing wounds.

Emotional or Psychological
Acute stress reactions, PTSD, survivor guilt, post-concussion syndrome, depression, generalized anxiety disorder.

Pain
Acute pain from wounds, crush injuries, or traumatic amputations; chronic pain syndromes.

Recognizing the specialized clinical care needs of individuals sustaining multiple severe injuries, VA has established four PRCs. The PRC mission is to provide comprehensive inpatient rehabilitation services for individuals with complex physical, cognitive and mental health sequelae of severe and disabling trauma, to provide medical and surgical support for ongoing and/or new conditions, and to provide support to their families. Intensive clinical and social work case management services are essential to coordinate the complex components of care for polytrauma patients and their families. Coordination of rehabilitation services must occur seamlessly as the patient moves from acute hospitalization through acute rehabilitation and ultimately back to the patient's home community. Transition to the home community may include a transfer from a PRC to a less acute facility.

The Secretary of Veterans Affairs designated five PRCs, co-located with TBI Lead Centers, at VA Medical Centers in Richmond, VA; Tampa, FL; Minneapolis, MN; San Antonio, TX, and Palo Alto, CA (see App. A). It is VHA policy that the PRCs provide a full-range of care for all patients eligible for VA care, who have sustained varied patterns of severe and disabling injuries including, but not limited to: TBI, amputation, visual and hearing impairment, spinal cord injury (SCI), musculoskeletal injuries, wounds, and psychological trauma. Due to the medical complexity of these patients, PRCs must be prepared to admit individuals who may have a higher level of medical acuity and require interdisciplinary management by various medical specialists. The general admission criteria to the PRC include:

1.The individual with polytrauma is an eligible veteran or an active duty military service member; and
2.The individual has sustained multiple physical, cognitive, and/or emotional impairments secondary to trauma; and
3.The individual has the potential to benefit from inpatient rehabilitation; or
4.The individual has the potential to benefit from a transitional community re-entry program; or
5.The individual requires an initial comprehensive rehabilitation evaluation and care plan.

It is recommended that all patients experiencing a polytraumatic injury be referred to a VA PRC. The PRC team has specialized expertise to determine the most appropriate setting for care. If the patient does not require admission to a PRC, the team can assist with coordination of care at the most appropriate facility. Referral to a PRC also ensures that the patient and family are integrated into the VA system of care with the appropriate rehabilitation services. NOTE: The SCI Chief for the applicable region needs to be contacted by the PRC admissions clinical case manager to consult on the transfer of patients with a diagnosis of TBI and SCI.

Referrals to the PRC must be given the highest priority and the screening process needs to be expedited to ensure that there are no delays in transferring a patient to the Center. The PRC must accept admissions on a 24/7 basis. To establish the medical needs and acuity of the patient, there is a need to review medical documentation, consult with the referring treatment provider, and coordinate a plan for transfer.

Referral of service members with polytrauma to a PRC is initiated by DOD, typically by the MTF social worker or case manager, or other DOD representative. Where assigned, the VA- DOD liaison social worker is actively involved in the referral process, facilitating communications, information exchange, transition of care, and family support. The PRC's admissions clinical case manager coordinates the referral and screening process for the accepting VA PRC. NOTE: For those referral sources that do not have VA-DOD liaisons, admission screening is to be coordinated between the PRC admission clinical case manager and the MTF.

Points of Contact
VA Polytrauma Points of Contact are available at 39 VAMCs without specialized rehabilitation teams. These Points of Contact, established in 2007, are knowledgeable about the VA Polytrauma/TBI System of care and coordinate case management and referrals throughout the system and may provide a more limited range of rehabilitation services. See a full list of Polytrauma Points of Contact in the attached PDF.

 

 

 

 

 

 

7.4. PTSD

Posttraumatic Stress Disorder (PTSD) is now included in a new chapter in DSM-5 on Trauma and Stressor Related Disorders.   In  the DSM-IV PTSD was addressed as an Anxiety disorder. 

The diagnostic criteria for the manual's next edition identify the trigger to PTSD as exposure to actual or threatened death, serious injury or sexual violation. The exposure must result from one or more of the following scenarios, in which the individual:

  • - directly experiences the traumatic event;
  • - witnesses the traumatic event in person;
  • - learns that the traumatic event occurred to a close family member or close friend (with the actual or threatened death being either violent or accidental); or
  • - experiences first-hand repeated or extreme exposure to aversive details of the traumatic event (not through media, pictures, television or movies unless work-related).

The disturbance, regardless of its trigger, causes clinically significant distress or impairment in the individual's social interactions, capacity to work or other important areas of functioning. It is not the physiological result of another medical condition, medication, drugs or alcohol.

Changes

DSM-5 pays more attention to the behavioral symptoms that accompany PTSD and proposes 4 distinct diagnostic clusters instead of 3.  They are described as re-experiencing, avoidance, negative cognitions and mood and arousal.

Re-experiencing covers spontaneous memories of the traumatic event, recurrent dreams related to it, flashbacks or other intense or prolonged psychological distress. Avoidance refers to distressing memories, thoughts, feelings or external reminders of the event.

Negative cognitions and mood represents myriad feelings, from a persistent and distorted sense of blame of self or others, to estrangement from others or markedly diminished interest in activities, to an inability to remember key aspects of the event.

Finally, arousal is marked by aggressive, reckless or self-destructive behavior, sleep disturbances, hyper-vigilance or related problems. The current manual emphasizes the "flight" aspect associated with PTSD; the criteria of DSM-5 also account for the "fight" reaction often seen.

The number of symptoms that must be identified depends on the cluster. DSM-5 would only require that a disturbance continue for more than a month and would eliminate the distinction between acute and chronic phases of PTSD. 

PTSD Debate within the Military

Certain military leaders, both active and retired, believe the word "disorder" makes many soldiers who are experiencing PTSD symptoms reluctant to ask for help. They have urged a change to rename the disorder posttraumatic stress injury, a description that they say is more in line with the language of troops and would reduce stigma.

But others believe it is the military environment that needs to change, not the name of the disorder, so that mental health care is more accessible and soldiers are encouraged to seek it in a timely fashion. Some attendees at the 2012 APA Annual Meeting, where this was discussed in a session, also questioned whether injury is too imprecise a word for a medical diagnosis.

In DSM-5, PTSD will continue to be identified as a disorder.

 

 

 

7.5. Military Sexual Trauma

Military sexual trauma, or MST, is the term used by the Department of Veterans Affairs (VA) to refer to experiences of sexual assault or repeated, threatening sexual harassment that a Veteran experienced during his or her military service.

The definition used by the VA comes from Federal law (Title 38 U.S. Code 1720D) and is "psychological trauma, which in the judgment of a VA mental health professional, resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty, active duty for training, or inactive duty training." Sexual harassment is further defined as "repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character."

Fortunately, people can recover from experiences of trauma, and VA has effective services to help Veterans do this. VA is strongly committed to ensuring that Veterans have access to the help they need in order to recover from MST:

  • Every VA health care facility has a designated MST Coordinator who serves as a contact person for MST-related issues. This person can help Veterans find and access VA services and programs. He or she may also be aware of state and federal benefits and community resources that may be helpful.
  • Recognizing that many survivors of sexual trauma do not disclose their experiences unless asked directly, VA health care providers ask every Veteran whether he or she experienced MST. This is an important way of making sure Veterans know about the services available to them.
  • All treatment for physical and mental health conditions related to experiences of MST is provided free of charge. To receive free treatment for mental and physical health conditions related to MST, Veterans do not need to be service connected (or have a VA disability rating). Veterans may be able to receive this benefit even if they are not eligible for other VA care.
  • Veterans do not need to have reported the incident(s) when they happened or have other documentation that they occurred. MST-related services are available at every VA medical center and every facility has providers knowledgeable about treatment for the aftereffects of MST. MST-related counseling is also available through community-based Vet Centers.
  • Services are designed to meet Veterans where they are at in their recovery, whether that is focusing on strategies for coping with challenging emotions and memories or, for Veterans who are ready, actually talking about their MST experiences in depth.
  • Nationwide, there are programs that offer specialized sexual trauma treatment in residential or inpatient settings. These are programs for Veterans who need more intense treatment and support. To accommodate Veterans who do not feel comfortable in mixed-gender treatment settings, some facilities have separate programs for men and women. All residential and inpatient MST programs have separate sleeping areas for men and women.
  • In addition to its treatment programming, VA also provides training to staff on issues related to MST, including a mandatory training on MST for all mental health and primary care providers. VA also engages in a range of outreach activities to Veterans and conducts monitoring of MST-related screening and treatment, in order to ensure that adequate services are available.

Military Sexual Trauma Details

MST includes any sexual activity where a Service member is involved against his or her will - he or she may have been pressured into sexual activities (for example, with threats of negative consequences for refusing to be sexually cooperative or with implied better treatment in exchange for sex), may have been unable to consent to sexual activities (for example, when intoxicated), or may have been physically forced into sexual activities. Other experiences that fall into the category of MST include:

-Unwanted sexual touching or grabbing

-Threatening, offensive remarks about a person's body or sexual activities

-Threatening and unwelcome sexual advances

The identity or characteristics of the perpetrator, whether the Service member was on or off duty at the time, and whether he or she was on or off base at the time do not matter. If these experiences occurred while an individual was on active duty or active duty for training, they are considered by VA to be MST.

MST is an experience, not a diagnosis or a mental health condition, and as with other forms of trauma, there are a variety of reactions that Veterans can have in response to MST. The type, severity, and duration of a Veteran's difficulties will all vary based on factors like:

-Whether he/she has a prior history of trauma

-The types of responses from others he/she received at the time of the MST

-Whether the MST happened once or was repeated over time

Although trauma can be a life-changing event, people are often remarkably resilient after experiencing trauma. Many individuals recover without professional help; others may generally function well in their life, but continue to experience some level of difficulties or have strong reactions in certain situations. For some Veterans, the experience of MST may continue to affect their mental and physical health in significant ways, even many years later.

-Strong emotions: feeling depressed; having intense, sudden emotional responses to things; feeling angry or irritable all the time

-Feelings of numbness: feeling emotionally "flat"; difficulty experiencing emotions like love or happiness

-Trouble sleeping: trouble falling or staying asleep; disturbing nightmares

-Difficulties with attention, concentration, and memory: trouble staying focused; frequently finding their mind wandering; having a hard time remembering things

-Problems with alcohol or other drugs: drinking to excess or using drugs daily; getting intoxicated or "high" to cope with memories or emotional reactions; drinking to fall asleep

-Difficulty with things that remind them of their experiences of sexual trauma: feeling on edge or "jumpy" all the time; difficulty feeling safe; going out of their way to avoid reminders of their experiences

-Difficulties with relationships: feeling isolated or disconnected from others; abusive relationships; trouble with employers or authority figures; difficulty trusting others

-Physical health problems: sexual difficulties; chronic pain; weight or eating problems; gastrointestinal problems

Although posttraumatic stress disorder (PTSD) is commonly associated with MST, it is not the only diagnosis that can result from MST. For example, VA medical record data indicate that in addition to PTSD, the diagnoses most frequently associated with MST among users of VA health care are depression and other mood disorders, and substance use disorders.

 

For more information, Veterans can:

-Speak with their existing VA health care provider.

-Contact the MST Coordinator at their nearest VA Medical Center.

-Call Safe Helpline at 1-877-995-5247 to get confidential one-on-one help. Safe Helpline provides 24 hour a day, 7 day a week sexual assault support for the Department of Defense community.

-Contact their local Vet Center.

-Veterans should feel free to ask to meet with a provider of a particular gender if it would make them feel more comfortable.

 

 

8. VA Pension Non-Service Connected Disability

8.1. Pension-Legal References

VA "shall pay to each veteran of a period of war who meets the service requirements of this section . . . and who is permanently and totally disabled from non-service-connected disability not the result of the veteran's willful misconduct, pension at the rate prescribed by [statute]."   38 U.S.C. § 1521(a).  The maximum annual rates for improved pension must be reduced by the amount of the veteran's countable annual income.  38 U.S.C. § 1521; 38 C.F.R. § 3.23(b); Springer v. West, 11 Vet. App. 38, 40 (1998).  "Payments of any kind from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under [section] 3.272."  38 C.F.R. § 3.271(a); 38 U.S.C. § 1503; see Martin v. Brown, 7 Vet. App. 196, 199 (1994) (stating "statute and VA regulations provide that 'annual income,' as defined by statute and applicable regulation, includes payments of any kind from any source, unless explicitly exempted by statute or regulation"); but see 38 C.F.R. § 3.272 (enumerating categories to "be excluded from countable income for the purpose of determining entitlement to improved pension").


Certain countable income is specifically excluded from this rule and as a result, a veteran's pension will not be reduced.  38 C.F.R. § 3.272.  Social Security Administration (SSA) old age and survivor's insurance and disability insurance payments are considered income and must, therefore, be included.  38 C.F.R. §§ 3.262; 3.271(g); Burch v. Brown, 6 Vet. App. 512, 513 (1994).  Benefits under noncontributory programs, such as old age assistance, aid to dependent children, and supplemental security income are treated as charitable donations.  See 38 C.F.R. §§ 3.262(d), (f).  Unreimbursed medical expenses paid within the 12-month annualization period are excluded from income to the extent that they are in excess of 5% of the maximum annual pension rate.  38 C.F.R. § 3.272(g)(1)(iii).  Whether a claimant is entitled to VA pension benefits is a question of fact.


Pursuant to 38 U.S.C. § 1505, pension benefits administered by the Secretary shall not be paid to or for an individual who has been imprisoned in a Federal, State, or local penal institution as a result of conviction of a felony or misdemeanor for any part of the period beginning 61 days after such individual's imprisonment begins and ending when such individual's imprisonment ends.  38 U.S.C. § 1505(a); 38 C.F.R. § 3.666; see also Latham v. Brown, 4 Vet. App. 265 (1993).

8.2. VA Non-Service Connected Pension or Wartime Pension

VA Non-Service Connected Pension or Wartime Pension

Many people confuse VA Pension with VA disability compensation. The two are different.

  • VA pension is based on wartime service, having a non-service connected disability and the Veteran must be of low income.
  • VA disability compensation is based on a service connected disability rating for the Veteran. The focus of this article is to provide the facts on the VA Pension since recently there has been misleading TV and internet advertisements promoting Veteran's and Spouses to apply for the Pension.

Over the years the VA improved pension has been known as a Non-service connected Pension, a VA low-income Pension, live VA pension and most recently on TV and the internet advertised as a VA Wartime Pension for Veterans or Surviving Widows of Wartime Veterans.   The current improved pension became effective January 1, 1979 and was preceded by Section 306 Pension and Old-Law Pension Program.   All three non-service connected programs are disability and needs based. Today, the only available program for applicants is the improved pension program or non-service connected pension.

8.3. Eligibility for Non-Service Connected Pension

Eligibility for Non-Service Connected Pension

The improved pension program is for Veterans who served during wartime and meet specific requirements. It is for the requirement reason that TV advertisements refer to this pension as a wartime pension. The following program qualifying requirements must apply for the Veteran to receive this pension:

The Veteran must have an have a discharge "under other than dishonorable conditions" also known as a "honorable discharge",

  1. actively served a minimum of one day during wartime,

  2. meet specific service time requirements,

    1. 90 days or more of active duty

    2. Veterans with active duty enlistment after September 7, 1980 must serve at least 24 months of active duty or complete the full period for which they were called to active duty.

  3. be of limited income (determined by the Maximum Annual Pension Rate or MARP) and net-worth, which are discussed later in this article and

  4. the Veteran must have one or more of the following :

    1. age 65 or older, or

    2. have a permanent and total non-service connected disability that will continue throughout the Veteran's lifetime and prevents the Veteran from sustaining employment, or

    3. be a reside in a nursing home for long-term care , or

    4. be a recipient of Social Security disability benefits.

8.4. Maximum Annual Pension Rate for VA NSC Pension

Maximum Annual Pension Rate for VA NSC Pension

The MAPR limits are established by Congress yearly and used to determine income limits. The yearly maximum annual pension rate, MAPR, varies from a $12,907 income limit to $34,153 income limit, (2016 MAPR table). The MAPR yearly limit is influenced by allowable financial deductions, dependents, housebound status, and a need for aid and attendance for the Veteran and/or spouse. The MAPR Limits effective 12/01/16 are:

If you are:                                                                                           Yearly income (after allowable deductions, refer to allowable deductions)                         must be less than

Veteran with no dependents                                                          $12,907

Veteran with a spouse and *child                                                   $16,902

Housebound Veteran with no dependents                                     $15,773

Housebound Veteran with one dependent                                     $19,770

Veteran needing Aid & Attendance with no dependents                $21,531

Veteran needing Aid & Attendance with one dependent                $25,525

Two Vets Married to Each Other                                                    $16,902

Two Vets Married to Each Other 1 Housebound                            $19,770

Two Vets Married to Each Other both Housebound                       $22,634

Two Vets Married to Each Other One with A&A                             $25,525

Two Vets Married to Each Other One A&A One H/B                      $28,385

Two Vets Married to Each Other Both with A&A                             $34,153

 

*Child dependents are: (1) under the age of 18, (2) between the ages of 18 and 23 who are attending college, or (3) declared a "helpless child" due to an infirmity before the age of 18. Veterans with additional dependent children should add $2,205 to the MAPR limit for each child.        

8.5. Countable Income for Non-Service Connected Pension

Countable Income for Non-Service Connected Pension

To determine the income limit requirement for eligibility, the VA will require the Veteran to report all "countable income" for the Veteran's household.  

Countable income" refers to all household income:

  • the Veteran's,

  • Veteran's spouse (if living with the Veteran), and

  • Dependents.

The Veteran's "countable income" must be below the maximum annual pension rate, MAPR, and the Veteran's "net worth" must not provide adequate maintenance of the Veteran.  

The need for pension is determined by "countable income" minus allowable deductions. The calculated reduced income is then subtracted from MAPR limit and the result is the annualized pension divided by 12 months.

As an example: 

  • The MAPR for a Veteran who needs aid and attendance with no dependents is $21,531 income per year.  
  • The Veteran's countable income is $32,000 per year.
  • After subtracting the allowable deductions, the countable income of the Veteran is reduced to $15,000/year.  
  • The MAPR of $21,531 minus $15,000 of countable income equals $6,531 per year of VA Pension.  
  • The $6,531 yearly VA Pension is divided by 12 months to determine the monthly amount. 
  • The Veteran receives a VA pension for $544.25 monthly for this example.

8.6. Allowable Deductions from Countable Income for VA Pension

VA Pension-Allowable Deductions from Countable Income

The Veterans "countable income" is reduced by specific expenses. However, often Veterans believe that they are not eligible for pension because they make too much or are denied because they do not know the complete list of income exclusions and deductible expenses that would reduce their "countable income".    

The complete list of income exclusions is provided in 3.272 of title 38, Code of Federal Regulations. This knowledge is important because most Veterans mistakenly think that the only income deduction is unreimbursed medical expenses over 5% of the Veteran's household income. When in fact there are many deductions and when the Veteran uses all of the deductions that apply to their situation, the outcome is greater.

Another mistake that Veterans make is reporting income that is excluded from income reporting on the pension application.       Not knowing the rules or what information to supply can cause a VA denial!

All income received from the following exclusions are not considered countable income by the VA. Veterans should make sure that when applying for pension, all deductions are applied and only income not excluded is counted. The list includes 22 income sources that are excluded from reporting and are found in Title 38 CFR 3.272:  

  1. Welfare,

  2. Maintenance in an institution or facility due to age or impaired health,

  3. VA pension benefits ( Payments under Chapter 15 of Title 38 and including accrued pension benefits payable under 38 U.S.C. 5121),

  4. Reimbursement for casualty loss,

  5. Profit from the sale of property,

  6. Joint accounts,

  7. Unreimbursed medical expenses that are 5% of the MARP,

  8. Veteran's final expenses,

  9. Educational expenses for Veteran or Spouse,

  10. Domestic Volunteer Service Act Programs,

  11. Distribution of funds under 38. U.S.C 1718,

  12. DOD survivor benefit annuity,

  13. Agent Orange settlement payments,

  14. Restitution to individuals of Japanese ancestry,

  15. Cash surrender value of life insurance,

  16. Income received by American Indian beneficiaries from trust or restricted lands,

  17. Payments from the Radiation Exposure Compensation Act,

  18. Alaska Native Claims Settlement Act,

  19. Monetary allowance under 38 U.S.C. chapter 18, Victims of Crime Act,

  20. Healthcare premiums to include Medicare, (make sure to include all insurance premiums paid for all 4 Parts of Medicare-A,B,C,D and Supplemental plans),

  21. Medicare prescription drug discount card and transitional assistance program, and

  22. Lump-sum life insurance proceeds on a veteran.  

8.7. Net Worth requirement for Non-Service Connected Pension

Net Worth requirement for Non-Service Connected Pension

The other financial consideration for pension is "net worth." "Net Worth" limitations are based on the net worth of a Veteran.   The test is whether or not the Veteran's "net worth" is able to provide adequate maintenance of the Veteran.

"Net worth" determination is also sometimes referred to as the "needs test".   "Net worth or Needs test" is determined on a case-by-case basis.   The VA uses the Veteran's and the Spouse's Social Security numbers to verify income and net worth information from all government sources. The VA's main source for financial information on Veterans is the IRS Income Tax Return(s).

The VA defines "net worth" or "corpus of estate" as the market value of the Veteran's home minus the mortgages or other legal liabilities on the property or personal property owned by the Veteran and/or Spouse.

The Veteran's single-family dwelling and reasonable personal effects are excluded. Unsecured debts are not a factor in determining VA "net worth".

It is to the advantage of the Veteran to be prepared to document the market value of their home by submitting to the VA either: a real estate broker statement, appraisal, or bank loan officer statement.   The Veterans should also be able to document their mortgage balance and any encumbrances on the property.

The following example will illustrate how the VA determines "net worth."

  • The Veteran owns a home with a market value of $200,000. The mortgage on the property is $150,000 and there is a $5,000 lien on the property.  
  • The Veteran's personal effects values are: Clothing $2,000, car worth $10,000, furniture $2,000 and other belongings $800.    
  • The VA reduces the Real Property value to $45,000 ($200,000 market value reduced by the outstanding mortgage balance of $150,000 and the $5,000 property lien).
  • The values of the personal effects are excluded.
  • Thus, the Veteran's net worth is $45,000 (Real Property Value) for this illustration.

The VA is known not deny "net worth" under $80,000.   If the Veterans "net worth" is over $80,000, due to the high cost of living where the Veteran resides, the Veteran and/or Spouse should explain:

  • why their claim "should be approved by the VA" despite a net worth over $80,000

  • They should also detail the cost of living for the area,

  • They should document that if their net-worth assets were liquidated, given the area cost of living, the liquidated resources would be rapidly exhausted and the proceeds of the liquidated assets would be unable to sustain the Veteran for any period of time.

8.8. NSC Pension Reporting: Eligibility Verification Report for Non-Service Connected Pension

Eligibility Verification Report for Non-Service Connected Pension

Pension recipients are required to file annual reports detailing their income status. The reports are called Eligibility Verification Reports (EVRs).

If the VA has requested an "EVR report" it must be completed, returned, and received by the VA within 60 days. Failure to return the EVR within the 60 days will result in the VA will suspending the pension benefit and denying the claim for the upcoming year.  

It is important not to leave any blanks on the report. Instead of leaving a blank, enter either zero "0" or, the word "none" or, "N/A" on all answers that do not apply. If you leave a blank on the EVR report the VA will reject the report and suspend all benefits.

Another issue with the "EVR report" is with Social Security benefit reporting.   The SSI, (Supplemental Security Income), benefit is not considered "countable income".   SSDI, (Social Security Disability Income), and Social Security Old Age Pension must be reported accurately to the VA. Any discrepancy in reporting SSDI or SS Old Age Pension can cause VA pension over payments and negative adjustments to the your pension benefit.

The Veteran's EVR documented Social Security or Social Disability income amount must match the amount documented by Social Security. It is easy for Veterans to have a reporting error. Veterans mistakenly report the actual amount of their Social Security check instead of reporting their full Social Security benefit which includes the Medicare monthly deductibles for Part B Premium at $104.90 and other premiums, if the Veteran selected Premiums for Parts C and D.   Premium amounts for Part C and D vary by the plan. To avoid reporting errors, the Veteran and Spouse should refer to their annual report from the Social Security Administration and document the information correctly onto the EVR report.  

If the Social Security Administration report is not available, the Veteran and/or Spouse can call and request the report from Social Security.   Social Security can be contacted at 1-800-772-1213. Social Security representatives are available between 7 a.m. and 7 p.m., Monday through Friday. If you have hearing problems you can call 1-800-325-0778, between 7 a.m. and 7 p.m., Monday through Friday.

8.9. Extra Benefits to add to the Non-Service Connected Pension

Extra Benefits to add to the Non-Service Connected Pension

There are two extra benefits that can be claimed along with this pension. The two benefits are Aid and Attendance or Housebound Benefits. A Veteran can only receive one of the benefits. The Veteran's housebound benefit is usually less than the Aid and Attendance benefit. Comparing the benefits, per the 12/01/2016 Table to determine pension of a Veteran with no dependents who might need either the housebound benefit or the aid and attendance benefit, the housebound benefit is about $238 per month and the Aid and Attendance benefits is about $716 per month.

To qualify for Aid and Attendance a Veteran must document one or more of the following:

  • The Veteran requires the aid of another person for assistance with activities of daily living. (Activities of daily living include: bathing, feeding, dressing needs, toileting, adjusting prosthetic devices, or protecting yourself from the hazards of your daily environment.

  • The Veteran is bedridden and the disability requires that the Veteran remain in bed apart from any prescribed course of convalescence or treatment. )

  • The Veteran is in a nursing home due to mental or physical incapacitating conditions.

  • The Veteran is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes and has contraction of the concentric visual field to 5 degrees or less.

8.10. Submitting a Claim for Non-Service Connected Pension

Submitting a Claim for Non-Service Connected Pension

To submit a claim for the wartime or non-service connected pension, you will need:

  1. The proper VA application Form

    1. If the Veteran believes that he or she may qualify for both service connected disability compensation and/or a non-service connected pension, the Veteran should apply for both benefits.  They should apply for compensation by submitting VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits.  The fillable form can be obtained by going to: https://www.vba.va.gov/pubs/forms/VBA-21-526EZ-ARE.pdf

    2. If the Veteran believes that he or she is only eligible for non-service connected pension, then the Veteran should apply using VA Form 21-527EZ Application for pension. This fillable form can be obtained by going to: http://www.vba.va.gov/pubs/forms/VBA-21-527EZ-ARE.pdf

  2. All income and net worth information and supporting documents.

  3. Medical Evidence of the Claim: To support your claim, submit all medical treatment records and documents from private Practitioners, private facilities, testing centers and VA medical centers. For each source of medical information, complete VA Form 21-4142, Authorization to Disclose Information to the Department of Veteran Affairs, http://www.vba.va.gov/pubs/forms/VBA-21-4142-ARE.pdf. VA medical centers do not need a VA Form 21-4142.

  4. Extra Benefit applications

    1. Application for Aid and Attendance or housebound benefits will require:

      1. If the Veteran resides at home, complete VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance,   http://www.vba.va.gov/pubs/forms/VBA-21-2680-ARE.pdf or

      2. If the Veteran is in a Nursing Home, complete VA Form 21-0779 Request for Nursing Home Information in Connection with Claim for Aid and Attendance, http://www.vba.va.gov/pubs/forms/VBA-21-0779-ARE.pdf

    2. Claim application for a dependent child in school between 18 and 23 with the pension requires completing VA Form 21-674, Request for Approval of School Attendance http://www.vba.va.gov/pubs/forms/VBA-21-674-ARE.pdf

    3. Claim application for helpless (disabled) child benefits, will require you to declare the child a dependent, using VA Form 21-686c, Declaration of Status of Dependents, http://www.vba.va.gov/pubs/forms/VBA-21-686c-ARE.pdf and submission of all relevant medical treatment records for the child's disabilities using VA Form 21-4138, Statement in Support of Claim, http://www.vba.va.gov/pubs/forms/VBA-21-4138-ARE.pdf.  

For a brief overview of the pension, go to the VA Fact Sheet on Live Pension: http://benefits.va.gov/BENEFITS/factsheets/limitedincome/livepension.pdf.

Or, the VA Fact Sheet on Survivors Pension: http://www.benefits.va.gov/BENEFITS/factsheets/survivors/Survivorspension.pdf

9. Veteran Benefits-Other Non-Healthcare VA Benefits

9.1. VA Burial and Memorial Benefits

VA burial benefits are available for service-connected and non-service-connected deaths. Eligibility for non-service-connected burial expenses generally requires receipt of VA compensation, VA pension, or military retired pay in lieu of compensation at the time of death, a claim pending at the time of death that is later determined to have entitled the deceased veteran to compensation or pension before death, death while hospitalized or receiving care in a VA facility, or the veteran's estate does not have enough resources to cover costs and the veteran served during wartime or was released from active duty due to a service-connected condition. A veteran who dies while under VA care or in a VA-approved state nursing home is also eligible.

Benefits for a non-service-connected death are $300 for funeral and burial expenses and $745 for plot or internment expenses,. If the veteran died in a VA hospital or care facility then the benefit is $745 for the burial allowance and $745 for te plot. An application for burial expenses must submitted within 2 years of burial.

Burial benefits for service-connected deaths include a burial allowance of up to $2,000 for deaths on or after September 11, 2001. There is no time limit for applying for this allowance. No other amounts will be paid if this allowance is claimed.  If requested by VA, supporting documentation must be provided within a year of the request. There is no time limit for submitting an application for plot or internment expenses.

An important benefit is burial in a gravesite in one of the 131 national cemeteries with available space. If eligible, this benefit includes opening and closing of the grave, perpetual care, a government-provided headstone or marker, a burial flag, and a Presidential Memorial Certificate at no cost to the family. The principal criteria for a veteran's burial in a national cemetery are an other than dishonorable discharge and completion of a required period of service or entitlement to retired pay due to 20 years of service with a reserve unit. A spouse, minor child, or unmarried dependent adult child of an eligible veteran is also eligible for burial in a national cemetery.

Gravesites in VA national cemeteries cannot be reserved in advance and VA national cemetery directors have the primary responsibility for verifying eligibility for burial in a national cemetery. A determination of eligibility is usually made in response to a request for burial. A VA regional office can also assist in determining eligibility.

Burial benefits available for spouses and dependents buried in a national cemetery include burial with the veteran, perpetual care, and the spouse or dependents name and date of birth and death inscribed on the veteran's headstone, at no cost to the family. Eligible spouses and dependents may be buried in a national cemetery, even if they predecease the veteran.

Families should keep in mind that VA does not make funeral arrangements or perform cremations. VA also does not provide military honors at veterans' funerals. The Department of Defense, through the "Honoring Those Who Served" program, provides military funeral services. Upon a family's request or at the behest of the funeral home on behalf of a family, the program provides each eligible veteran a military funeral honors ceremony to include the folding and the presentation of the United States burial flag and the playing of Taps.

Burial benefits available for veterans buried in a private cemetery include:

  • a government-provided headstone or marker,
  • a burial flag, and
  • Presidential Memorial Certificate, at no cost to the family.
  • Some veterans may also be eligible for a burial allowance.

There are no VA benefits available to spouses and dependents buried in a private cemetery. Similarly, only an eligible veteran may receive a government-furnished headstone or marker for placement in a private cemetery. A veteran's spouse and dependent children are not eligible.

 

9.2. VA Education Benefits

VA offers a number of educational benefits to veterans and, in some cases, to a veteran's spouse and dependents. Educational benefits programs include the Montgomery GI Bill ("New GI Bill"), Post-9/11 Educational Assistance Program, Veterans Educational Assistance Program (VEAP), Reserve Education Assistance Program (REAP), Survivors & Dependents Assistance (DEA), Educational Test Program, National Call to Service Program, and Veterans Retraining Assistance Program. Each program has different eligibility requirements, eligibility periods, and time limits for completing the educational programs. A person receiving benefits from one VA educational program cannot receive benefits from any other VA educational benefits program.

Each program requires a claim for the benefit desired to begin the process using VA Form 22-1990 [link]. As all of these programs often have very specific requirements, any potential claimant should carefully review each program in detail to identify the benefits for which they may be eligible and the best program for their individual needs. The two most commonly sought programs are briefly described below.

Benefits under the Montgomery GI Bill are generally available for those who went on active duty after June 30, 1985. In some cases, Selected Reserve and National Guard members may also be eligible. In all cases, there are minimum service periods of from 2 to 4 years depending on the specific circumstances of service. Under this program, which is also known as "Chapter 30" benefits, educational benefits are available for up to 36 months. Payments are for a fixed amount depending on whether the educational program is full- or part-time.

Eligible veterans must have received an honorable discharge (not just "other than dishonorable"). Before applying, a claimant must also have (1) obtained a high school diploma or equivalent or (2) completed the equivalent of 12 credit hours in a college degree program. Involuntarily separated veterans may also qualify under certain conditions.

The Post-9/11 GI Bill became effective August 1, 2009, and provides financial support for education and housing to individuals with at least 90 days of aggregate service after September 10, 2001, and individuals discharged with a service-connected disability after 30 days of service. A veteran must have received an honorable discharge to be eligible for Post-9/11 GI Bill benefits, which are also known as "Chapter 33" benefits. Approved training under this program includes undergraduate and graduate degrees, vocational and technical training, licensing, and national testing. To receive benefits, the particular training program attended must be approved by VA.

In general, the Post 9-11 GI Bill program pays full tuition directly to the school for all public school in-state students. There are some restrictions and caps for those attending private or foreign schools. The program will also pay a limited monthly housing allowance, books and supplies stipend, and a one-time rural benefit, if applicable. The Chapter 33 program provides up to 36 months of benefits and benefits are generally payable for up to 15 years following release from active duty.

An individual entitled to either Chapter 30 or Chapter 33 benefits may transfer an entitlement to educational assistance to: (1) a spouse; (2) a child; or (3) a combination of spouse and child. The family member must otherwise be eligible for benefits at the time of transfer to receive transferred educational benefits. Applications should be submitted using VA Form 22-5490 [link].

38 U.S.C. Chapter 35 provides educational assistance to "eligible persons," including "children whose education would otherwise be impeded or interrupted by reason of disability or death of a parent from a disease or injury incurred or aggravated in the Armed Forces."  38 U.S.C. § 3500.  For purposes of DEA benefits under chapter 35, "eligible person" means a child of a person who, as a result of qualifying service, died of a service-connected disability or has a total disability permanent in nature resulting from a service-connected disability, or who dies while a disability so evaluated was in existence.  38 U.S.C. § 3501(A)(1)(a). 

In general, an eligible child's period of eligibility for educational assistance under chapter 35 ends on his or her 26th birthday.  38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(a), (b), although there are some exceptions.  38 C.F.R. § 21.3041(g).  The general rule is that the commencing date of an original award of educational assistance is the latest of:  (a) the date the educational institution certifies the course; (b) one year before the date of receipt of the claim; or (c) the effective date of the approval of the course, or one year before VA receives approval notice, whichever is later.  38 U.S.C. § 3672; 38 C.F.R. § 21.4131(a).  When determining the effective date of an award under Chapter 35 the Secretary may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision.  38 U.S.C. § 5113(b).

Pursuant to 38 U.S.C. section 5113(b)(2) the criteria for an earlier effective date under this statute requires that the claimant is an eligible person who:

(A) submits to the Secretary an original application for educational assistance under Chapter 35 of this title . . . within one year of the date that the Secretary makes the rating decision;

(B)   claims such educational assistance for pursuit of an approved program of education during a period preceding the one-year period ending on the date on which the application was received by the Secretary; and

(C)   would have been entitled to such educational assistance for such course pursuit if the individual had submitted such application on the individual's eligibility date.

9.3. VA Vocational Rehabilitation and Training Benefits

The purposes of the VA Vocational Rehabilitation ("Voc Rehab") program are to help veterans with service-connected conditions become gainfully employed, maintain that employment, and achieve independence in daily living. The Voc Rehab program is implemented in Chapter 31 of Title 38 of the Code of Federal Regulations, so the benefits are sometimes referred to as "Chapter 31" benefits. The program includes several different services and benefits to help an eligible veteran achieve his or her rehabilitation goal. Services include vocational and personal counseling, education and training, financial aid, job assistance, and, if needed, medical and dental treatment. Program services generally are available for up to 48 months, but can be extended under certain instances.

Basic entitlement for Voc Rehab requires 1) a veteran with an award of monthly VA compensation or 2) a service member awaiting discharge from the service with a condition which will likely be awarded monthly VA compensation. In addition, a Voc Rehab claimant generally

  • Must have served on or after September 16, 1940; and
  • Must have service-connected conditions that are schedular rated at least 20% disabling (10% if VA determines a "serious employment handicap" exists); and
  • Needs Voc Rehab to overcome an employment handicap; and
  • It has been less than 12 years since VA notified the claimant of his or her qualification for Voc Rehab benefits.

The 12 year eligibility period can be extended if certain conditions prevented the claimant from participating in the program or if a serious employment handicap exists.

A veteran who is eligible for an evaluation under Chapter 31 must first apply for Voc Rehab services using VA Form 28-1900 [http://www.va.gov/vaforms/form_detail.asp?FormNo=28-1900]. An eligible applicant will receive an appointment with a Voc Rehab counselor who will determine if an employment handicap exists as a result of the veteran's service connected condition. If an employment handicap is established, a plan to address the veteran's unique rehabilitation and employment needs will be developed.

Under the Voc Rehab program, VA will pay training costs, tuition and fees, books, supplies, equipment, and special services needed by the veteran. While in training, VA will also pay a monthly "subsistence allowance" to help with living expenses. For veterans with service-connected disabilities so severe that they cannot immediately get back to work, the program will try to improve his or her ability to live as independently as possible.

Chapter 31 of title 38, United States Code, provides for the training and rehabilitation of veterans with service-connected disabilities.  "The purposes of [chapter 31 benefits] are to provide for all services and assistance necessary to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment."  38 U.S.C. § 3100.  38 U.S.C. section 3101 refers to a VA "vocational rehabilitation program" and defines that rehabilitation program.  Additionally, 38 U.S.C. section 3104 provides in pertinent part:  "Services and assistance which the Secretary may provide under this chapter, pursuant to regulations which the Secretary shall prescribe, include ... [p]lacement services to effect suitable placement in employment, and postplacement services to attempt to insure satisfactory adjustment in employment."  38 U.S.C. § 3104(a)(5).

Under VA regulation, the term rehabilitation program "includes, when appropriate: (1) A vocational rehabilitation program (see paragraph (i) of this section); ... or (3) A program of employment services for employable veterans who are prior participants in Department of Veterans Affairs or state-federal vocational rehabilitation programs."  38 C.F.R. § 21.35(f). Further, 38 C.F.R. section 21.35(i) restates the definition of "vocational rehabilitation program" in the same terms as already defined in 38 U.S.C. § 3101(9)(A)(ii).  Cottle v. Principi, 14 Vet. App. 329, 332-33 (2001).

The statutory purpose of vocational rehabilitation programs is "to enable veterans with service-connected disabilities ... to the maximum extent feasible, to become employable and to obtain and maintain suitable employment." 38 U.S.C. § 3100; see also 38 C.F.R. § 21.1 (same).  Thus, the very fact of a veteran's participation in a rehabilitation program, the objective of which is to become employable, is evidence that the veteran is presently unemployable.

[A] veteran's participation in an activity carried out under this section [entitled "Therapeutic and rehabilitative activities"] ... may [not] be considered as a basis for the denial or discontinuance of a rating of total disability for purposes of compensation or pension based on the veteran's inability to secure or follow a substantially gainful occupation as a result of disability.

38 U.S.C. § 1718(f)(1).  A plain reading of the statute reveals that the Board may not properly consider an appellant's participation in a vocational rehabilitation program as evidence of employability.  Thus, the interim evaluations from a vocational rehabilitation program are both irrelevant and immaterial to evaluating employability because they do not logically establish employability in the periods in which they are rendered; they only point to the strength of an expectation of future employability.  

 

9.4. VA Home Loan Guaranty Benefits

Home Loans

VA helps Servicemembers, Veterans, and eligible surviving spouses become homeowners. As part of the VA's mission to serve you, the VA provides a home loan guaranty benefit and other housing-related programs to help you buy, build, repair, retain, or adapt a home for your own personal occupancy.

VA Home Loans are provided by private lenders, such as banks and mortgage companies. VA guarantees a portion of the loan, enabling the lender to provide you with more favorable terms.

Benefits

Purchase Loans help you purchase a home at a competitive interest rate often without requiring a downpayment or private mortgage insurance. Cash Out Refinance loans allow you to take cash out of your home equity to take care of concerns like paying off debt, funding school, or making home improvements. Learn More

Interest Rate Reduction Refinance Loan (IRRRL): also called the Streamline Refinance Loan can help you obtain a lower interest rate by refinancing your existing VA loan. Learn More

Native American Direct Loan (NADL) Program: helps eligible Native American Veterans finance the purchase, construction, or improvement of homes on Federal Trust Land, or reduce the interest rate on a VA loan. Learn More

Eligibility

You must have suitable credit, sufficient income, and a valid Certificate of Eligibility (COE) to be eligible for a VA-guaranteed home loan. The home must be for your own personal occupancy. The eligibility requirements to obtain a COE are listed below for Servicemembers and Veterans, spouses, and other eligible beneficiaries.

VA home loans can be used to:

  • Buy a home, a condominium unit in a VA-approved project
  • Build a home
  • Simultaneously purchase and improve a home
  • Improve a home by installing energy-related features or making energy efficient improvements
  • Buy a manufactured home and/or lot.
StatusQualifying Wartime & Peacetime PeriodsQualifying Active Duty DatesMinimum Active Duty Service Requirement
Veteran WWII 9/16/1940 - 7/25/1947 90 total days
Post-WWII 7/26/1947 - 6/26/1950 181 continuous days
Korean War 6/27/1950 - 1/31/1955 90 total days
Post-Korean War 2/1/1955 - 8/4/1964 181 continuous days
Vietnam War 8/5/1964 - 5/7/1975 *For Veterans who served in the Republic of Vietnam, the beginning date is 2/28/1961 90 total days
Post-Vietnam War 5/8/1975 - 9/7/1980 *The ending date for officers is 10/16/1981 181 continuous days
24-month rule 9/8/1980 - 8/1/1990 *The beginning date for officers is 10/17/1981
  • 24 continuous months, OR
  • The full period (at least 181 days) for which you were called or ordered to active duty
Gulf War 8/2/1990 - Present
  • 24 continuous months, OR
  • The full period (at least 90 days) for which you were called or ordered to active duty
Currently On Active Duty Any Any 90 continuous days
National Guard & Reserve Member Gulf War 8/2/1990 - Present 90 days of active service
  • Six years of service in the Selected Reserve or National Guard, AND
    • Were discharged honorably, OR
    • Were placed on the retired list, OR
    • Were transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service characterized as honorable, OR
    • Continue to serve in the Selected Reserve

*If you do not meet the minimum service requirements, you may still be eligible if you were discharged due to (1) hardship, (2) the convenience of the government, (3) reduction-in-force, (4) certain medical conditions, or (5) a service-connected disability.

Spouses

The spouse of a Veteran can also apply for home loan eligibility under one of the following conditions:

  • Unremarried spouse of a Veteran who died while in service or from a service connected disability, or
  • Spouse of a Servicemember missing in action or a prisoner of war
  • Surviving spouse who remarries on or after attaining age 57, and on or after December 16, 2003
    (Note: a surviving spouse who remarried before December 16, 2003, and on or after attaining age 57, must have applied no later than December 15, 2004, to establish home loan eligibility. VA must deny applications from surviving spouses who remarried before December 6, 2003 that are received after December 15, 2004.)
  • Surviving Spouses of certain totally disabled veterans whose disability may not have been the cause of death 

Other Eligible Beneficiaries

You may also apply for eligibility if you fall into one of the following categories:

  • Certain U.S. citizens who served in the armed forces of a government allied with the United States in World War II
  • Individuals with service as members in certain organizations, such as Public Health Service officers, cadets at the United States Military, Air Force, or Coast Guard Academy, midshipmen at the United States Naval Academy, officers of National Oceanic & Atmospheric Administration, merchant seaman with World War II service, and others

Restoration of Entitlement

Veterans can have previously-used entitlement "restored" to purchase another home with a VA loan if:

  • The property purchased with the prior VA loan has been sold and the loan paid in full, or
  • A qualified Veteran-transferee (buyer) agrees to assume the VA loan and substitute his or her entitlement for the same amount of entitlement originally used by the Veteran seller. The entitlement may also be restored one time only if the Veteran has repaid the prior VA loan in full, but has not disposed of the property purchased with the prior VA loan. Remaining entitlement and restoration of entitlement can be requested through the VA Eligibility Center by completing VA Form 26-1880. 

Certificate of Eligibility

After establishing that you are eligible, you will need a Certificate of Eligibility (COE). The COE verifies to the lender that you are eligible for a VA-backed loan. This page describes the evidence you submit to verify your eligibility for a VA home loan and how to submit the evidence and obtain a COE.

Evidence Needed

The evidence you need depends on the nature of your eligibility. Consult the table below to determine your category and the evidence you will need when applying.

CategoryEvidence To Apply
Veteran DD Form 214 - required to have a copy showing the character of service (item 24) and the narrative reason for separation (item 28).
Current or former National Guard or Reserve member who has been activated Federal active service
Active Duty Servicemember A current statement of service:
  • signed by (or by the direction of):
    the adjutant, personnel office, or commander of the unit or higher headquarters
  • showing:
    Your full name
    Social Security Number
    Date of birth
    Entry date on active duty
    The duration of any lost time
    The name of the command providing the information
Current National Guard or Reserve member who has never been Federal active service Statement of service:
  • signed by (or by the direction of):
    the adjutant, personnel officer or commander of your unit or higher headquarters
  • showing:
    Your full name
    Social Security Number
    Date of birth
    Entry date on duty
    The total number of creditable years of service
    The duration of any lost time
    The name of the command providing the information
Discharged member of the National Guard who has never been activated for Federal active service NGB Form 22, Report of Separation and Record of Service, for each period of National Guard service
-OR-
NGB Form 23, Retirement Points Accounting, and proof of the character of service
Discharged member of the Selected Reserve who has never been activated for Federal active service Copy of your latest annual retirement points statement and evidence of honorable service
If you are a Surviving Spouse in Receipt of DIC (Dependency & Indemnity Compensation) benefits

Submit VA form 26-1817 and veteran's DD214 ( if available)

Include veteran's and surviving spouse's social security number on the 26-1817 form

If you are a Surviving Spouse and are not receiving DIC (Dependency & Indemnity Compensation) benefits

Submit the following to the appropriate Compensation and Pension office:

- VA form 21-534

- DD214 (if available)

- Marriage License

- Death Certificate or DD Form 1300 – Report of Casualty

- Please find the mailing address for your state to send the VA 21-534 on the following link. PMC States 

Applying for a COE

After gathering the evidence you need, you can apply for your Certificate of Eligibility (COE) in the following ways.

Servicemembers, Veterans, and National Guard and Reserve Members

Apply online

To get your Certificate of Eligibility (COE) online, please go to the eBenefits portal. If you already have login credentials, click the Login box, and if you need login credentials, please click the Register box and follow the directions on the screen.  If you need any assistance please call the eBenefits Help Desk at 1-800-983-0937.  Their hours are Monday-Friday, 8am to 8pm EST.

Apply through your lender

Most lenders have access to the Web LGY system. This Internet-based application can establish eligibility and issue an online COE in a matter of seconds. Not all cases can be processed through Web LGY - only those for which VA has sufficient data in our records. However, Veterans are encouraged to ask their lenders about this method of obtaining a certificate.

Apply by mail

Use VA Form 26-1880, Request for Certificate of Eligibility.

Surviving Spouses

Spouses can take the VA form 26-1817 to their lender for processing (see Apply Through Lender above) or may mail the 26-1817 and DD214 (if available) to the following address:

Download VA Form 26-1817, Request for Determination of Loan Guaranty Eligibility - Unmarried Surviving Spouses

If you can't print the form, just call 1-888-768-2132 and follow the prompts for Eligibility and we will mail the form to you.

Send the completed form to:
VA Loan Eligibility Center
Attn: COE (262)
PO Box 100034
Decatur, GA 30031

9.5. Special VA Benefits for the Disabled Service Connected Vets: Automobiles, Conveyances, and Adaptive Equipment

Special VA Benefits for the Disabled Service Connected Vets: Automobiles, Conveyances, and Adaptive Equipment

Automobile Allowance

Servicemembers and Veterans may be eligible for a one-time payment of not more than $20,114.34 toward the purchase of an automobile or other conveyance if you have certain service-connected disabilities. The grant is paid directly to the seller of the automobile and the Servicemember or Veteran may only receive the automobile grant once in his/her lifetime.

Certain Servicemembers and Veterans may also be eligible for adaptive equipment. Adaptive equipment includes, but is not limited to, power steering, power brakes, power windows, power seats, and special equipment necessary to assist the eligible person into and out of the vehicle.

VA may provide financial assistance in purchasing adaptive equipment more than once. This benefit is payable to either the seller or the Veteran or Servicemember.

Important: You must have prior VA approval before purchasing an automobile or adaptive equipment.

Eligibility Requirements (Automobile Grant)

  • You must be either a Servicemember who is still on active duty or a Veteran, AND
  • You must have one of the following disabilities that are either rated as service-connected or treated as if service-connected under 38 U.S.C 1151 or, for a Servicemember, the result of disease incurred or injury contracted in or aggravated by active duty: 
    • Loss, or permanent loss of use, of one or both feet, OR
    • Loss, or permanent loss of use, of one or both hands, OR
    • Permanent impairment of vision in both eyes to a certain degree, OR
    • Severe burn injury, OR
    • Amyotrophic Lateral Sclerosis (ALS).

Evidence Requirements (Automobile Grant)

To support a claim for automobile allowance, the evidence must show that you are service-connected or are treated as if service-connected under 38 U.S.C 1151 or, for a Servicemember, the result of disease incurred or injury contracted in or aggravated by active duty, for a disability resulting in:

  • The loss, or permanent loss of use, of one or both feet, OR
  • The loss, or permanent loss of use, of one or both hands,OR
  • Permanent impairment of vision in both eyes, resulting in
    1. Central Visual acuity of 20/200 or less in the better eye with glasses, OR
    2. Central Visual acuity that is greater than 20/200, if there is a visual field defect in which your peripheral field has contracted to such an extent that the widest diameter of visual fields subtends an angular distance no greater than 20 degrees in the better eye, OR
  • Severe burn injury: Deep partial thickness or full thickness burns resulting in scar formation that cause contractures and limit motion of one or more extremities or the trunk and preclude the effective operation of an automobile, OR
  • Amyotrophic Lateral Sclerosis (ALS).

To support a claim for adaptive equipment, the evidence must show that you have a disability as shown above, OR you have ankylosis of at least one knee or one hip due to service-connected disability.

How to Apply (Automobile Grant)

  • Complete VA Form 21-4502, "Application for Automobile or Other Conveyance and Adaptive Equipment" and mail to your regional office OR
  • Work with an accredited representative or agent OR
  • Go to a VA regional office and have a VA employee assist you. You can find your regional office on our Facility Locator page
  • If you are entitled to adaptive equipment only (i.e., service connected for ankylosis of knees or hips) you should complete VA Form 10-1394, "Application for Adaptive Equipment - Motor Vehicle" and submit it to your local VA medical center. You can find your local VA medical center on the health Facility Locator page.

Conveyances

You may purchase a new or used automobile, truck, station wagon, or certain other types of conveyance if approved by VA.

 

Adaptive Equipment

A veteran or serviceperson who qualifies for the vehicle allowance also qualifies for adaptive equipment unless he or she is blind, requires a driver, or doesn't have a valid State driver's license or learner's permit. See the attached list for more information about adaptive equipment. Important: VA will not pay for the purchase of add-on adaptive equipment (equipment furnished by someone other than the automobile manufacturer) that is not approved by VA. Contact the nearest VA health care facility for more information on add-on equipment. The adaptive equipment benefit may be paid more than once, and it may be paid to either the seller or the veteran or serviceperson. 

 Special drivers training for disabled veterans should contact the nearest VA health care facility to request this training.

To Apply use VA form 21-4502, http://www.vba.va.gov/pubs/forms/VBA-21-4502-ARE.pdf.  There is no time limit for filing a claim; however, the claim must be authorized by VA before you purchase the automobile or conveyance.

Special Instructions to Veteran or Serviceperson:

1. Complete all items of Section I in duplicate and submit both copies to VA. If you have previously applied for disability compensation, send the form to the VA regional office where your claims folder is located. If you have not applied for disability compensation or have not separated from military service, send the form to the nearest VA regional office.

2. VA will determine your eligibility and, if eligibility exists, VA will complete Section II and return the form to you.

3. Purchase a vehicle. When you receive the vehicle and the adaptive equipment from the seller, complete Section III.

4. Give the original VA Form 21-4502 to the seller.

5. Submit any invoices for adaptive equipment and/or installation not included on the seller's invoice to the nearest VA health care facility. These invoices, identified with your full name and VA file number, must show the itemized net cost of any adaptive equipment and installation charges, any unpaid balance, and the make, year and model of the vehicle to which the equipment is added.

 

Special Instructions to Seller:

 

1. Make sure that Section II of VA Form 21-4502 is completed and signed by VA.

 

2. Deliver the vehicle, including VA-approved adaptive equipment provided and/or installed by the seller.

 

3. Obtain the original copy of VA Form 21-4502 from the veteran or serviceperson after he or she has completed Section III.

 

4. Submit the original copy of VA Form 21-4502 and itemized invoice to the VA regional office shown in Section II, Attention: Financial Division, for payment.

    The itemized invoice must include the following:

  • The net cost of any approved adaptive equipment and installation charges. If certain items of approved adaptive equipment (automatic transmission, power seats,     etc.) are included in the purchase price, also submit a copy of the window sticker.
  • A list of which adaptive equipment is standard on the vehicle or combined with other items.
  • The unpaid balance due on the vehicle which is to be paid by VA.
  • A certification that the amounts billed do not exceed the usual and customary cost for the purchase and installation of the adaptive equipment.

 

 

 

 

 

 

 

 

9.6. Special VA Benefits for the Disabled Service Connected Vets: Clothing Allowance

Clothing allowance is an annual lump-sum payment made when a Veteran's service-connected disability causes the use of certain prosthetic or orthopedic appliances (including a wheelchair) that tend to wear or tear clothing, or when the Veteran's service-connected skin condition requires the use of medication that stains the clothing.  More information on the Clothing Allowance program can be found here.

Note: An ancillary benefit is an additional benefit that is related to, or derived from entitlement to certain service-connected benefits.

9.7. Special VA Benefits for the Disabled Service Connected Vets: Specially Adapted Housing and Special Home Adaptation Grants

The VA offers 4 different grants for qualifying Veterans and Servicemembers to assist them with the building, remodeling, or purchasing an adapted home.   The four grants are:

  1. Specially adapted housing (SAH) grants, 
  2. Special housing adaptation (SHA) grants,
  3. Temporary Residence Adaptation (TRA) grants, and
  4. Home Improvements and Structural Alterations (HISA) grants.

1. Specially adapted housing (SAH) grants help veterans with certain service-connected disabilities live independently in a barrier-free environment.  SAH grants can be used to:

  • Construct a specially adapted home on land to be acquired
  • Build a home on land already owned if it is suitable for specially adapted housing
  • Remodel an existing home if it can be made suitable for specially adapted housing
  • Apply the grant against the unpaid principal mortgage balance of an adapted home already acquired without the assistance of a VA grant.

A SAH grant, which allows up to $77,307 (2017), can be used a maximum of three times up to the allowable dollar amount.  Veterans with certain permanent service-connected conditions qualify for an SAH grant if their service-connected conditions:

  • Are permanently and totally disabling,
  • Preclude locomotion without the aid of braces, canes, or a wheelchair due to the loss, or loss of use of
    • both lower extremities,
    • one lower extremity together with residuals of organic disease or injury, which so affects the functions of balance or propulsion, or
    • one lower extremity, together with one upper extremity, which so affects the functions of balance or propulsion
  • Result in the loss, or loss of use, of both upper extremities at or above the elbow, or
  • Cause blindness in both eyes, having light perception only, combined with the loss or loss of use of one lower extremity.
  • Include certain severe burn injuries

Veterans who served on or after September 11, 2001, and become permanently disabled on or after that date may also be eligible for SAH benefits if they have the loss or loss of use of one or more lower extremities which so affects the functions of balance or propulsion as to preclude ambulating without the aid of braces, crutches, canes, or a wheelchair.

To apply for a SAH grant, fill out and submit VA Form 26-4555 Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant.

2. Special housing adaptation (SHA) grants help veterans with certain service-connected disabilities adapt or purchase a home to accommodate their disability.  SHA grants can be used in the following ways:

  • Adapt an existing home the veteran or a family member already owns in which the veteran resides
  • Adapt a home the veteran or family member intends to purchase in which the veteran will live
  • Help a veteran purchase a home already adapted in which the veteran will live

SHA provides for a grant amount up to $15,462 (2017).  A SHA grant may also be used a maximum of up to three times until the maximum grant amount has been utilized.  A SHA grant will be awarded where the veteran has a service-connected disability for one of the following:

  • Blindness in both eyes with 5/200 visual acuity or less
  • Anatomical loss or loss of use of both hands
  • Certain severe burn injuries
  • Certain severe respiratory injuries

To apply for a SHA grant, fill out and submit VA Form 26-4555 Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant.

3. Temporary Residence Adaptation grants

May be available to SAH/SHA eligible veterans and servicemembers who are or will be temporarily residing in a home owned by a family member.  This assistance, up to $33,937 (2017) for veterans eligible for a SAH grant or $6,059 (2017) for veterans eligible for the SHA grant, may be used to adapt the family member's home to meet the veteran's or servicemember's special needs at that time.

4. Home Improvements and Structural Alterations (HISA) grants

The VA Home Improvement and Structural Alteration (HISA) grant program helps veterans who are enrolled in the VA health care system and requires home improvements for the continuation of medical treatment or for basic access to the home and essential bathroom and sanitary facilities for veterans with certain disabilities.  Unlike most other benefits shown on this page, HISA grants are available for both service-connected and nonservice-connected veterans (with different maximum amounts). 

  • Veterans with service-connected disabilities the home improvement benefit is $6,800 (2015)
  • Veterans with non-service-connected disabilities the home home improvement benefit is $2,000 (2015)

 

9.8. VA Life Insurance Programs

Over the years the VA has offered a number of different life insurance plans.  Some of these plans are still open for enrollment while others are closed to new enrollees. 

For details of the VA Life Insurance Program refer to VetsFirst Knowledge Book VA Life Insurance,.   

As a general rule if you have questions regarding VA life insurance you should visit the VA's insurance website at www.insurance.va.gov or call VA's Insurance Center toll-free at 1-800-669-8477.  Specialists are usually available between the hours of 8:30 a.m. and 6 p.m., Eastern Time, to discuss premium payments, insurance dividends, address changes, policy loans, naming beneficiaries and reporting the death of the insured.

When contacting the VA regarding an insurance matter if the insurance policy number is not known, use whatever information is available, such as the veteran's VA file number, date of birth, Social Security number, military serial number or military service branch and dates of service to:

Department of Veterans Affairs Regional Office and Insurance Center

Box 42954

Philadelphia, PA 19101

10. Veteran Benefits-Survivors Benefits

10.1. Dependency & Indemnity Compensation (DIC)

A veteran's compensation benefits end at the death of the veteran. A surviving spouse does not continue to receive the veteran's benefits. However, the law creates a separate Dependency and Indemnity Compensation ("DIC") benefit that dependent spouses, minor children, children up to age 23 who are in school, and, in some cases, parents can claim after the death of a veteran. Each DIC claim is its own original claim for VA benefits that is legally independent of the veteran's award.

The key issue in a DIC claim is usually whether the veteran's death was service-connected. Generally, if the principal cause or one of the contributory causes of a veteran's death was a service-connected condition, an eligible survivor is entitled to DIC. DIC can be awarded even if the condition was not service connected at the time of death or even if the veteran never filed a claim with VA, if service-connection can be established by existing evidence. A DIC claim can be filed at any time, even decades after the veteran's death, but if it is filed within one year of the veteran's death compensation will start from the date of death rather than the date of the application.

DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability.  38 U.S.C. § 1310; Dyment v. West, 13 Vet. App. 141, 144 (1999), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Hanna v. Brown, 6 Vet. App. 507, 510 (1994) Darby v. Brown, 10 Vet. App. 243, 245 (1997).  A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death.  38 C.F.R. § 3.312(a).  A service-connected disability is the principal cause of death when that disability, "singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto."  38 C.F.R. § 3.312(b).  To be a contributory cause of death, the disability must have "contributed substantially or materially" to death, "combined to cause death," or "aided or lent assistance to the production of death."  38 C.F.R. § 3.312(c)(1).  The Board's determination of whether a veteran's death was service connected is a finding of fact that the Court reviews under the "clearly erroneous" standard.  38 U.S.C. § 7261(a)(4); Wray v. Brown, 7 Vet. App. 488, 492 (1995).

A "surviving spouse" is defined as a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the veteran continuously from the date of marriage to the date of the veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person.  38 U.S.C. § 101(3); see also 38 C.F.R. § 3.50(b).  However, no compensation shall be paid to a surviving spouse unless the surviving spouse was married to the veteran:

(1)   before expiration of fifteen years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated; or

(2)   for one year or more; or

(3)   for any period of time if a child was born of the marriage, or was born to them before the marriage.

38 U.S.C. §§ 1102, 1304, 1541(f); 38 C.F.R. § 3.54(c).

In determining whether a claimant is the veteran's "surviving spouse" for purposes of VA benefits, the validity of the marriage depends on "the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued."  38 U.S.C. § 103(c); see also 38 C.F.R. § 3.1(j).  A claimant "has the burden to come forward with preponderating evidence of a valid marriage under the laws of the appropriate jurisdiction."  Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991); see also Sandoval v. Brown, 7 Vet. App. 7, 9 (1994) (stating that "before applying for benefits, a veteran's spouse must supply proof of her or his marital status" to achieve claimant status); 38 C.F.R. § 3.205 (providing for a number of ways that a spouse can prove marital status).  The validity of a divorce decree regular on its face will only be questioned by VA if such validity is questioned by a party.  38 C.F.R. § 3.206(a).  The Board's determination regarding whether a person is a surviving spouse of a deceased veteran is a question of fact that the Court reviews under the "clearly erroneous" standard.  38 U.S.C. § 7261(a)(4); Dedicatoria v. Brown, 8 Vet. App. 441, 443 (1995).

Where a DIC claimant submits evidence that an attempted marriage was invalid because of a legal impediment, such as the nonrecognition of common law marriages, see VA Gen. Coun. Prec. 58-91 (June 17, 1991), the marriage will still be "deemed valid" if:

(1)   the marriage occurred one year or more before the veteran died or if a child was born of the marriage;

(2)   the claimant entered into the marriage without knowledge of the legal impediment;

(3)   the claimant cohabitated with the veteran continuously from the date of marriage to the date of death; and

(4)   no claim has been filed by a legal surviving spouse who has been found to be entitled to death benefits.

38 U.S.C. § 103(a); 38 C.F.R. § 3.52.  "The determination of a claimant's knowledge of a legal impediment is viewed in terms of 'what the appellant's state of mind was at the time that the invalid marriage was contracted.'"  See Lamour v. Peake, 544 F.3d 1317, 1323 (Fed. Cir. 2008) (quoting Dedicatoria, 8 Vet. App. at 444).  In VA General Counsel Opinion 58-91, the Secretary stated that "the lack of knowledge requirement must have a broader meaning, encompassing lack of knowledge of the law prohibiting marriage, not just 'knowledge of the factual ground which activated the law.'"  VA Gen. Coun. Prec. 58–91 (June 17, 1991).

The surviving spouse of a deceased veteran is entitled to dependency and indemnity compensation benefits (DIC) when the veteran's death was not the result of his or her own willful misconduct and the veteran "was in receipt of or entitled to receive . . . compensation at the time of death for a service-connected disability rated totally disabling if . . . the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death . . . ."  38 U.S.C. § 1318(b)(1); see also 38 C.F.R. § 3.22(a).  A surviving spouse is also entitled to dependency and indemnity compensation benefits where the deceased veteran had a disability that "was continuously rated totally disabling for a period of not less than five years from the date of such veteran's discharge or release from active duty" or where "the veteran was a former prisoner of war who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death."  38 U.S.C. §§ 1318(b)(2)-(3); 38 C.F.R. § 3.22(a) (2).

As described above, a key to a spouse's eligibility for benefits after the death of a veteran is that the spouse was married to the veteran at the time of death.  If a surviving spouse remarries after the death of a spouse, the issue of eligibility for benefits becomes complicated.  If a remarriage has ended, the spouse is eligible for DIC.  If still remarried, eligibility depends on when the spouse reached age 57, when the remarriage occurred, and whether a claim was pending on a certain date.  This is a complicated area and VetFirst urges surviving spouses who have remarried to contact an experienced service officer or attorney to determine eligibility for their specific situation. 

 The child of a deceased veteran is entitled to DIC when the veteran dies as the result of service-connected disabilities.  38 U.S.C. §§ 1313, 1314.  For purposes of determining eligibility for this benefit, a child must be unmarried and must

(1)   be under the age of 18,

(2)   have become permanently incapable of self-support before the age of 18, or

(3)   be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution.

38 U.S.C. § 101(4)(A); 38 C.F.R. §§ 3.356, 3.57(a)(1).  Further, section 3.356 provides that the question of a child's permanent incapacity is one of fact for determination by VA, and that it will be decided on the basis of whether the child is "permanently incapable of self-support through his own efforts by reason of physical or mental defect" at the date of attaining the age of 18 years.  38 C.F.R. §§ 3.356(a), (b); Dobson v. Brown, 4 Vet. App. 443, 445 (1993).  The Board's determination of permanent incapacity for self-support is a finding of fact that the Court reviews under the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); 38 C.F.R. § 3.356(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

10.2. Survivors or Death Pension

Non-Service Connected Survivors Pension Benefit, aka "Non-Service Connected Death Pension"

The Non-Service Connected Survivors Pension benefit, which may also be referred to as Death Pension, is a tax-free monetary benefit payable to a low-income, un-remarried surviving spouse and/or unmarried child(ren) of a deceased Veteran with wartime service.

The following requirements apply for the survivor pension:

  1. Discharge Requirements for the deceased Veteran remain the same, and

  2. Service Requirements for the deceased Veteran remain the same, and

  3. The surviving spouse is the current spouse and is unmarried, and

  4. The surviving unmarried children of the deceased Veteran are either:

    1. under 18 years of age,

    2. became permanently "helpless" before 18 years of age

    3. between the ages of 18 and 23 and is in the process of pursuing a course of study at an approved institution such as college or vocational school.

  5. "Net Worth" Limitations remain the same.

  6. "Countable Income" Deductions remain the same.

  7. The MAPR rate limit for each child remains the same at $2,205.

  8. Extra benefit of aid and attendance and housebound status requirements remain the same.

  9. EVR reporting requirements remain the same.

 

The Maximum Annual Pension Rate (MAPR) or "Countable Income Limits" are different for Survivors Pension. The Effective Rates as of 12/01/2016 are:

 

 If you are a...                                                                         Your yearly income must be less than...

Surviving spouse with no dependent children                                             $8,656

Surviving spouse with one dependent child                                                $11,330

Housebound surviving spouse with no dependents                                     $10,580

Housebound surviving spouse with one dependent                                     $13,249

Surviving spouse who needs aid and attendance with no dependents          $13,836

Surviving spouse who needs aid and attendance with one dependent          $16,506

Surviving child (no eligible parent)                                                           $2,205

10.3. Ancillary Benefit-Restored Entitlement Program for Survivors (REPS)

Special allowance payable under Section 156 of Public Law 97-377 is called the Restored Entitlement Program for Survivors (REPS).  The REPS allowance is a payment to certain surviving spouses and children of individuals that died

  • on active duty prior to August 13, 1981, or
  • as a result of an service-connected disability that was incurred or aggravated prior to August 13, 1981.

This allowance replaces certain Social Security benefits that the provisions of the Omnibus Budget Reconciliation Act of 1981 either reduced or terminated.

Note: An ancillary benefit is an additional benefit that is related to, or derived from entitlement to certain service-connected benefits.

10.4. Ancillary Benefit-Dependents Educational Assistance (DEA)

Note: An ancillary benefit is an additional benefit that is related to, or derived from entitlement to certain service-connected benefits.

Dependents' educational assistance (DEA) under 38 U.S.C. Chapter 35 provides payment of a monthly education or training allowance to the spouse and children of a Veteran who

  • has a total service-connected disability that is permanent in nature, or
  • died
    • of a service-connected disability, or
    • while a service-connected disability was evaluated as total and permanent in nature.

Dependent and Spouse Educational Assistance provides education and training opportunities to eligible dependents of certain veterans.

An eligible dependene or spouse of a veteran can receive up to 45 months of education benefits. These benefits may be used for degree and certificate programs, apprenticeship, and on-the-job training. If you are a spouse, you can take a correspondence course. Under certain circumstances, remedial, deficiency, and refresher courses may be approved.

Who Is Eligible?

You must be the son, daughter, or spouse of a veteran. In order to be eligible the veteran must be:

  • A veteran who died or is permanently and totally disabled as the result of a service-connected disability. The disability must arise out of active service in the Armed Forces.
  • A veteran who died from any cause while such service-connected disability was in existence.
  • A servicemember missing in action or captured in line of duty by a hostile force.
  • A servicemember forcibly detained or interned in line of duty by a foreign government or power.
  • A servicemember who is hospitalized or receiving outpatient treatment for a service connected permanent and total disability and is likely to be discharged for that disability. This change is effective December 23, 2006.

When Are You Eligible?

Child-Son or Daughter:


A son or daughter of a veteran who wishtes to receive benefits for attending shcool or job training must be between 18 and 26 years old. Under certain circumstances it is possible to start at an earlier age and to continue after age 26. Marriage does not exclude you from this benefit.

If you are in the Armed Forces, you may not receive this benefit while on active duty. You can however obtain the education benefits after discharge from military service as long as your discharge is not under dishonorable conditions. The Veterans Administration can extend your period of eligibility by the number of months and days equal to the time spent on active duty. This extension cannot generally go beyond your 31st birthday, there are some exceptions.

38 U.S.C. Chapter 35 provides educational assistance to "eligible persons," including "children whose education would otherwise be impeded or interrupted by reason of disability or death of a parent from a disease or injury incurred or aggravated in the Armed Forces."  38 U.S.C. § 3500.  For purposes of DEA benefits under chapter 35, "eligible person" means a child of a person who, as a result of qualifying service, died of a service-connected disability or has a total disability permanent in nature resulting from a service-connected disability, or who dies while a disability so evaluated was in existence.  38 U.S.C. § 3501(A)(1)(a). 

In general, an eligible child's period of eligibility for educational assistance under chapter 35 ends on his or her 26th birthday.  38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(a), (b), although there are some exceptions.  38 C.F.R. § 21.3041(g).  The general rule is that the commencing date of an original award of educational assistance is the latest of:  (a) the date the educational institution certifies the course; (b) one year before the date of receipt of the claim; or (c) the effective date of the approval of the course, or one year before VA receives approval notice, whichever is later.  38 U.S.C. § 3672; 38 C.F.R. § 21.4131(a).  When determining the effective date of an award under Chapter 35 the Secretary may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision.  38 U.S.C. § 5113(b).

Pursuant to 38 U.S.C. section 5113(b)(2) the criteria for an earlier effective date under this statute requires that the claimant is an eligible person who:

(A) submits to the Secretary an original application for educational assistance under Chapter 35 of this title . . . within one year of the date that the Secretary makes the rating decision;

(B)   claims such educational assistance for pursuit of an approved program of education during a period preceding the one-year period ending on the date on which the application was received by the Secretary; and

(C)   would have been entitled to such educational assistance for such course pursuit if the individual had submitted such application on the individual's eligibility date.


 Spouse:


If you are a spouse, benefits end 10 years from the date VA finds you eligible or from the date of death of the veteran. If the VA rated the veteran permanently and totally disabled with an effective date of 3 years from discharge a spouse will remain eligible for 20 years from the effective date of the rating. This change is effective October 10, 2008 and no benefits may be paid for any training taken prior to that date. For surviving spouses (spouses of servicemembers who died on active duty) benefits end 20 years from the date of death.

What You Need To Do

Make sure that the program you want to enroll in is approved for VA training.

Obtain and complete the application, VA Form 22-5490, Application for Survivors' and Dependents' Educational Assistance. Send it to the VA regional office with jurisdiction over the State where you will train. If you are a son or daughter, under legal age, a parent or guardian must sign the application.

If you have already started training, take your application to your school or employer. Ask them to complete VA Form 22-1999, Enrollment Certification, and send both forms to VA.

Survivors' and Dependents' Educational Assistance Program booklet (PDF).

 

 

11. Types of VA Claims

11.1. Elements of a Claim

A claim is "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit."  Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011) (citing 38 C.F.R. § 3.1).  For initial claims, a "specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA."  38 C.F.R. § 3.150(a); 38 U.S.C. § 5101(a).  Subsequent applications for additional claims or increases do not require use of the form.  The law is clear for initial claims, however, that only the approved VA form (currently VA Form 21-526) is acceptable as a formal application for compensation or pension benefits.  Whatever the means, the essential elements for any claim, whether formal or informal, are:


(1)   an intent to apply for benefits;


(2)   an identification of the benefits sought; and


(3)   a communication in writing.


Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999) (noting that even an informal claim must be in writing); Brannon v. West, 12 Vet. App. 32, 35 (1998).


A claimant "[does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him."  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Consequently, VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim," taking into consideration "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim."  Id.  VA commits error "when it fail[s] to weigh and assess the nature of the current condition the appellant suffer[s] when determining the breadth of the claim before it."  Id. at 6.


A "claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary."  38 U.S.C. § 5107(a).  Further, VA has no duty to provide notice to claimants to file claims for service connection, and a claimant is bound by governing regulations.  38 C.F.R. § 3.400; see Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) ("[R]egulations are binding on all who seek to come within their sphere, 'regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance.'" (quoting Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947))).  "The Supreme Court has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations."  Id. (citing Fed. Crop Ins. Corp., 332 U.S. at 385).


VA must review all communications in the record that may be interpreted as formal or informal claims and consider whether such communications, in the context of the entire record, reasonably raise a claim for benefits.  See Criswell v. Nicholson, 20 Vet. App. 501, 503-04 (2006) ("[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised."); Brannon v. West, 12 Vet. App. 32, 35 (1998).  VA is required to address every issue reasonably raised from a liberal reading of the documents or oral testimony submitted prior to the decision and where such review reasonably reveals that the claimant is seeking a particular benefit, VA is required to adjudicate the issue of entitlement to such a benefit.  Dingess v. Nicholson, 19 Vet. App. 473, 498 (2006). 

11.2. Formal VA Claim

A formal VA claim is any claim that is filed using a VA form. 

The VA states that the "original claim" is the first formal claim for a claimant on a prescribed VA application form.  There is only one original claim per claimant.  The two "original claim" forms are:

  • VA Form 21-526       Veteran's Application for Compensation or Pension, or
  • VA Form 21-526EZ   Application for Disability Compensation and Related Compensation Benefits which must be submitted with a Fully Developed Claim.

After the "original claim" has been filed and a decision has been made by a VA Rating Officer, RO, all future pension or compensation claims, even if not related to the original claim, are referred to as "reopened claims".   Future claims can be processed by using either VA form 21-526(b) Supplemental Claim Compensation: increase, new , secondary, service-connected conditions or reopens or VA 21-4138 Statement of Support.

 

11.3. Informal VA Claims

Any written communication from a claimant that indicates an intent to apply for an identified benefit may be considered an informal claim. See Norris v. West, 12 Vet. App. 413, 421 (1999); 38 C.F.R. § 3.155(a).  Even an informal claim for benefits must be in writing.  Rodriguez v. West, 189 F.3d 1351, 1353 (Fed.Cir.1999); Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) ("[I]ntent to apply for benefits is an essential element of any claim, whether formal or informal, ... the intent must be communicated in writing.").  There are three requirements that must be satisfied if the Board is to find that an informal claim has been filed.  There must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought.  See Brokowski, 23 Vet. App. 79, 84 (2009); 38 C.F.R. § 3.155(a). 


Moreover, in identifying the benefit sought, the Court has stated that although VA "has no duty to read the mind of the claimant" and VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing the claim."  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Thus, VA must consider claims that may be "reasonably encompassed by several factors including:  the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or the Secretary obtains in support of the claim."  Id.  Accordingly, unless the evidence of record demonstrates the claimant's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability does not raise an informal claim for such benefits.  See Criswell v. Nicholson, 20 Vet. App. 501, 503–04 (2006). 


A VA medical report can qualify as an informal claim when ... a claimant's formal claim for compensation has already been allowed, receipt of ... a VA report of examination will be accepted as an informal claim filed on the date of the examination."  38 C.F.R. § 3.157(b); Servello v. Derwinski, 3 Vet. App. 196, 198, 200 (1992); Norris v. West, 12 Vet. App. 413 (1999).  The Board's determination of whether an informal claim has been filed is a mixed question of law and fact subject to review by this Court under the deferential "arbitrary" and "capricious" standard prescribed in 38 U.S.C. § 7261(a)(3)(A).  Westberry v. West, 12 Vet. App. 510, 513 (1999); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (remanding for a factual inquiry into "whether the [Board], as required by Roberson, sympathetically read [the veteran's] filings prior to [the assigned effective date] in determining whether [the veteran] made an informal claim"); Beverly v. Nicholson, 19 Vet. App. 394, 405 (2005) ("the question of whether a sympathetic reading of prior filings raises an informal claim for benefits is essentially a factual inquiry").  


In addition, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability.  38 C.F.R. § 3.157(b); see Massie v. Shinseki, 25 Vet. App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)).  A medical report will be considered an informal claim only "when such report [] relate[s] to examination or treatment of a disability for which service-connection has previously been established."  MacPhee, 459 F.3d at 1328 (quoting 38 C.F.R. § 3.157(b)(1)).  The determination of whether an informal claim has been filed is a substantially factual determination that the Court reviews under the "clearly erroneous" standard of review.  Brokowski, 23 Vet. App. at 85; see 38 U.S.C. § 7261(a)(4); Ellington v. Nicholson, 22 Vet. App. 141, 144 (2007), aff'd, 541 F.3d 1364 (Fed. Cir. 2008).  Because medical records documenting symptoms alone cannot, as a matter of law, raise initial claims for VA benefits for conditions characterized by symptoms, VA is not obligated to consider this possibility.  Criswell, 20 Vet. App. at 503-04; see also 38 U.S.C. § 7104(d)(1) (requiring VA to consider only the "material issues of . . . law presented on the record").


The Court has determined that "whether a sympathetic reading of prior filings raises an informal claim for benefits is essentially a factual inquiry."  Beverly v. Nicholson, 19 Vet. App. 394, 405 (2005) (citing Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004)). The Board's determination of the actual date an informal claim was filed is also a factual finding subject to review by this Court under the "clearly erroneous" standard.  See 38 U.S.C. § 7261(a)(4); Lalonde v. West, 12 Vet. App. 377, 380 (1999) (citing Stewart v. Brown, 10 Vet. App. 15, 17 (1997); KL v. Brown, 5 Vet. App. 205, 207 (1993); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992)); Nitsch v. Nicholson, 23 Vet. App. 504 (2007).

11.4. Inferred VA Claims

An "inferred" claim is one not specifically identified by a claimant, but supported by the evidence.  Once a claim is received, VA has a duty to review the claim and the C-file supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims, even if a specific claim is not raised by the appellant.  See Shockley v. West, 11 Vet. App. 208, 214 (1998); see also Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) (holding that although the appellant had not filed the specific form asking for individual unemployability, an informal claim was raised because he had continually stated he was unable to work due to his service-connected mental disorder).  This is discussed elsewhere in this Knowledge Book.  Claimants should not rely on this duty and should always identify all the claims he or she believes are supported by the evidence.

12. Filing Claim-Evidentiary Issues

12.1. Evidentiary Issues

The Board may draw a reasonable inference from a lack of notation of a condition in a medical report, if the report would be expected to carry such information.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011).

12.2. New & Material Evidence

When a claim is pending and "[n]ew and material evidence [is] received prior to the expiration of the [appeals period]," such evidence "will be considered as having been filed in connection with the [pending] claim."  38 C.F.R. § 3.156(b).  New and material evidence "can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial."  38 C.F.R. § 3.156(a).  "VA must assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim."  Bond v. Shinseki, 659 F.3d 1362, 1367 (2011) (emphasis added).  This determination must be explicit.  Id. at 1368.  "This obligation persists even where . . .  the RO has concluded that the submission in question also supports a new claim for an increased rating, for neither law—nor logic—dictates that evidence supporting a new claim cannot also constitute new and material evidence relating to a pending claim."  Bond, 659 F.3d 1367-68.  The Board's determination of whether a claimant has submitted new and material evidence is generally reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4).  Suaviso v. Nicholson, 19 Vet. App. 532, 533-34 (2006); Elkins v. West, 12 Vet. App. 209, 217 (1999) (en banc). 

12.3. Lay Evidence

When adjudicating a claim for veterans benefits, "[t]he Secretary shall consider all information and lay and medical evidence of record."  38 U.S.C. § 5107(b).  Lay evidence may be competent to prove the existence of a chronic disease that can be diagnosed or demonstrated without medical expertise in presumptive service-connection claims.  See Savage v. Gober, 10 Vet. App. 488, 495 (1997) (for certain chronic diseases, lay evidence may be competent to identify in-service existence of chronic disease and whether current condition is subsequent manifestation of that same chronic disease); 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a).  The distinction between the use of lay evidence in direct service-connection claims and presumptive service-connection claims for chronic diseases exists because in the latter case the lay evidence is not being used to establish a medical causation or etiology but rather to establish, by evidence of observable symptomatology, that the currently diagnosed chronic disease is the same condition that was present during service or during the presumptive period of § 3.307(a).


In its role as factfinder, the Board must first "determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."  Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992).  In certain situations, lay evidence may be used to diagnose a veteran's medical condition.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (holding that lay evidence may be used to diagnose a condition when "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional"); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent ... to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection' " (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994))); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability").


Further, lay evidence may be competent to show continuity of symptomatology under 38 C.F.R. § 3.303(b).  See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis." (citing Jandreau, 492 F.3d at 1376-77)); Savage v. Gober, 10 Vet. App. 488, 497 (1997).  When considering lay evidence, the Board should determine whether the veteran's disability is the type of disability for which lay evidence is competent.  See Jandreau, 492 F.3d at 1377.  If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against the other evidence of record in making its determination regarding the existence of a service connection.  Buchanan, 451 F.3d at 1334-37.


The Board "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan, 451 F.3d at 1337.  Section 3.307(b) does not require both medical and competent lay evidence to establish the existence of a chronic disease, and thus, "competent lay evidence can be sufficient in and of itself" to establish entitlement to a benefit.  Buchanan, 451 F.3d at 1335 (citing 38 C.F.R. § 3.307(b) (in claiming chronic disease, "factual basis may be established by medical evidence, competent lay evidence[,] or both.")).

12.4. Expert Opinions

"When, in the judgment of the Secretary, expert medical opinion, in addition to that available within the Department, is warranted by the medical complexity or controversy involved ... the Secretary may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Department."  38 U.S.C. § 5109(a) (emphasis added); see also 38 U.S.C. § 7109(a).  The determination that an expert medical opinion is warranted is left entirely to the discretion of the Secretary.  38 U.S.C. § 7261(a)(3)(A); see Boutwell v. West, 11 Vet. App. 387, 391 (1998); Stringham v. Brown, 8 Vet. App. 445, 448 (1995).

An examination report "is adequate when it is based upon consideration of the [appellant's] prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'"  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407–08 (1994)); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record.  See Nieves–Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008) (medical opinion is not entitled to any weight if it contains only data and conclusions); Stefl, 21 Vet. App. at 124 (a VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  "It is the factually accurate, fully articulated, sound reasoning for the conclusion ... that contributes probative value to a medical opinion." Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124 (holding that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) ("Whether a medical opinion is adequate is a finding of fact which this Court reviews under the 'clearly erroneous' standard of review.").

13. VA Benefits-Filing a Claim/Refer to Veterans Guide to VA Claim Filing

13.1. How to Communicate with the VA

VA is the second largest agency in the federal government. With over 250,000 employees in hundreds of facilities, just figuring out who in VA you need to contact and how to reach him or her can be difficult. Another problem is that even with recent updates, VA remains a paper-driven – and paper-choked – organization. As a result, getting the right piece of paper to the right person is not easy.

In fact there is no way for anyone outside VA to guarantee that any communication to VA ever reaches anyone or, if it does, it is acted upon. VETSFIRST can only offer the following suggestions and good practices that have been shown to improve the chances that your communication to VA is successful.

  • Never rely on verbal communications (phone call, discussion at the regional office). "If its not on paper, it never happened" is a good rule to follow – so put all communications in writing.
  • If its worth mailing to VA, its worth mailing certified with a return receipt. The burden is always on a claimant to prove he or she sent required information to VA and "regular mail" cannot be tracked – $6 for certified letter is a small investment to protect hundreds or thousands of dollars a month in benefits.
  • Never send original documents to VA and keep a copy of exactly what you send in each piece of correspondence. VA is not secure storage: assuming that your documents are not lost in transit, VA employees stamp, write on, punch, fold, and otherwise abuse documents sent to them. VA does not generally need original documents, if VA does request to see an original, arrange a meeting at the regional office and show them the original – and then take it home with you.
  • If you choose not to send certified letters, at least backup a regular mail letter by faxing a copy to the same location. Most VA fax numbers are available online or by asking someone at the location for the nearest fax machine number. Save a copy of the fax transmission record as proof that you sent the document.
  • If you do have a phone call or a meeting with a VA employee and you receive assurances or promises, as soon as possible write a letter stating exactly what was said or promised and send it to VA with a request that they tell you if anything in the letter was wrong – at least you will have a chance of "reminding" VA of what it promised you.

The best place to look for the correct address to send a letter to VA is the letter or other document to which you are responding. You should always carefully read all parts of every VA letter sent to you because VA sometimes instructs you to reply to a different address than on the letterhead (and often buries deadlines for responses in the fine print at the end of letters). If no special address is identified, a response to the address on the letterhead is usually acceptable. If all else fails, most VA mailing addresses are available on the VA website.

VA has established some electronic communications tools, including the Inquiry Routing & Information System ("IRIS"), https://iris.custhelp.com/ and the infamous "800 number." While these tools can be helpful on rare occasions, experience has shown that the accuracy and quality of the responses and information returned by these sites can vary widely. VA is notoriously slow to update status information in its various computer systems. Further, the person responding to inquiries is unlikely to be in the same state, much less the same office, as where your claim is being worked. It is also risky to rely on these systems as there is no accountability and no realistic way of confirming the accuracy of the information that is reported.

13.2. Filing an Application for Compensation or Pension

All claims for VA benefits begin with an application. Unless there are very unusual circumstances, a claimant should use the form that the VA specifies for the benefit desired. As with all VA forms, you should read the Form  instructions carefully and get help if you are unsure of what is required. 

To obtain a copy of the current version of any VA form go to:

  1. http://www.va.gov click on "VA Forms" in the "Quicklist" menu on the right side of the page and click "Finding a VA Form", or
  2. visit or write the nearest VA regional office. or
  3. VA also has implemented an online "Do-it-Yourself" application process for benefits, where veterans can complete and submit an electronic VA Form listed on either https://www.ebenefits.va.gov/ebenefits/homepagehttps://www.ebenefits.va.gov/ebenefits/homepage  or http://www.vabenefits.vba.va.gov/vonapp.

Starting March of  2015, the VA introduced a new process know as the "Intent to file"  using VA Form 21-0966.    This form notifies the VA that you intend to file a claim for VA compensation, pension, or survivors' benefits but additional time is required to obtain the information needed for a completed claim.   You will have one year after filing the intent to file form to file a complete claim for either: Compensation (VA Form 21-526EZ), Pension (VA Form 21-527EZ), and Survivor's DIC/Death Pension/Accured Benefits (VA Form 21-534EZ). The date that the VA receives your intent to file for each specific benefit will be protected as the effective date for the benefit that you applied.   The intent to file process allows the VA to award benefits retoractively to the receivede date of the intent to file.  The VA will only recognize one intent to file per general benefit category at any given time. Thus, you can not file for two claims simultaneously for the same benefit category.  Once a completed claim is filed, the intent to file for that claim becomes inactive.   Then you can submit an new intent to file for the same benefit category for a different issue. 

Filing a complete application is important to avoid delays in processing a claim. VA is not required to take action on a claim until a substantially complete application has been filed. In addition, it takes considerable time for VA to review an application, notify a claimant of problems, and review the information received to correct the problems. During this time, nothing is being done to move the claim along. If the requested information is not submitted within 12 months, VA will deem the claim to have been abandoned and the claimant may have to start all over.

When submitting a compensation claim to VA, it is best to include all of the available information. A completed claim includes:

  1. Medical evidence that supports the claim (statements from your doctors, Nexus letter, examination reports, hospital records, labs, procedure reports, diagnostic studies such as MRI, CAT Scan, etc)  The VA has simplified the Private Physicain Statement Process with the use of Disability Benefits Questionnaires, (DBQs) instead of statements or  letters.  There are 70 DBQ Forms and the forms can be obtained at: http://www.benefits.va.gov/COMPENSATION/dbq_disabilityexams.asp.   Note that for one medical condition you might have multiple DBQs.   Have your Physician complete the DBQs and submit the DBQs as medical evidence.
  2. Copies of military service records or records of post-service medical treatment for the condition claimed as service-connected should also be submitted if available. Doing so will lessen the chance that VA will have to ask for these records and delay making a decision on the claim.  To receive your military records go to: http://www.archives.gov/veterans/military-service-records, download the "SF-180", complete the form and fax the form to National Personnel Records Center, NPRC Number: 314-801-9195. Note: Record will be sent to the address on the SF180. 

There are five ways to file a form,application or information with the VA:

  1. A Veterans Service Organization (VSO), To find a VA accredited VSO or VSO Representative go to:https://va.gov/ogc/apps/accreditation/index.asp, Service is FREE, or
  2. An Attorney, registered with the VA, To find a VA accredited Attorney go to: www.va.gov/ogc/apps/accreditation/index.asp  VA caps Attorney Fees at 20% of claim amount and 25% of claim amount for malpractice claims, or
  3. Applying In Person "Do-it-Yourself" by completing the application form and submitting it in person at the VA Regional Office or mailing the completed application to your VA Regional Office (Note: If help is needed when filing in person at the VA Regional Office, a VA regional office public contact representative will assist you)  A completed application should be submitted to the VA regional office responsible for processing the claim. This is usually the VA regional office located in the state where the claimant lives. In states with more than one regional office, a claim should be filed with the closest regional office. The locations and contact information for all VA regional offices can be found at: http://www2.va.gov/directory/guide/division_flsh.asp?dnum=3. Move the cursor over the state where the claimant lives to find the closest VA regional office.  , or
  4. Applying Online "Do-it-Yourself" application with either:  eBenefits at: www.ebenefits.va.gov/ebenefits/homepage  or Veterans On-Line Application (VONAPP) at: http://www.vabenefits.vba.va.gov/vonapp,  Note: You can not use VONAPP for Compensation benefit filings.
  5. By phone with the National Call Centers #800-827-1000.

What happens to my completed claim after it is submitted to the VA?

Unless the claimant is participating in a test of a new "paperless" process, when VA receives an application, the VA creates a "claims file" (widely known as a "C-file") for the claimant. The claimant also is assigned a "claim number" that is unique to that person. This number is important because VA uses it to identify that claimant for life. The person's VA claims number remains the same no matter how many other applications are submitted or claims awarded.

VA next reviews the application for compliance with the filing instructions. If the application is not "substantially complete" or is otherwise not acceptable, VA will notify the claimant and give them up to a year to submit the necessary information. If an application is not made substantially complete within a year, the application is considered abandoned and VA will take no further action. A new application has to be filed in such a case.

When a substantially complete application is received, VA will "develop" the claim. The C-file is submitted for review by different teams of VA employees. All incoming claims are reviewed by a "triage" team that looks to remove totally unsupported claims. Claims that pass the triage team are delivered to the "development" or "pre-determination" team who gathers service records, service medical records, private treatment records, and other information that VA needs to make a decision on the claim.

When the claim is deemed sufficiently developed to allow a decision on the claim, the pre-determination team forwards the claim file to a "rating" team for decision. The rating team consists of "rating specialists" who are VA employees trained to evaluate the evidence and decide whether a claim should be granted or denied under the legal rules for VA benefits. Although rating specialists are trained by VA for this job, they are not medical or legal professionals by education or experience.

The rating team has the authority to award compensation and set an effective date, which is generally the date that the application was received by the VA or the received date of the intent to file form (VA form 21-0966).   Payments usually start on the first day of the month following the effective date. The rating team can also send a C-file back to the development team for additional development without making a decision. This often occurs when a medical diagnosis is not unanimous among evaluating physicians or because a required record is missing.

 

13.3. Using Advocacy Organizations for Filing Claims

Congress intended the VA benefits system to be "non-adversarial" and friendly to veterans seeking assistance for hardships resulting from their service to the country. VA's duty to assist, the benefit of the doubt rule, and the ability to re-file denied claims are examples of a "veteran-friendly" process. For many veterans and dependents, the VA process has worked and continues to work well. For others, the process has proven to be difficult and confusing.

Even with VA "help," applying for and establishing entitlement to VA benefits can be a challenge. VA is overwhelmed with applications and rarely, if ever, provides updates or responds to calls or letters. Documents get lost and errors are frequently made in the haste to make decisions. The VA process also has "gotchas" that can trip up even the most experienced advocate. More often than not, a successful claim will require that a claimant have at least some knowledge of the specific benefit sought, an understanding of applicable laws, regulations and VA policies, and familiarity with the evidence that is necessary to support a claim, if only to detect the most obvious VA errors. Even if VA grants an award, a claimant still needs to check for errors in the rating or effective date assigned.

If a claimant is willing to put some effort into it, there is no reason why he or she cannot handle his or her own claim. Many veterans have been successful at obtaining the desired benefits without any assistance. Those who have been successful, however, often have some background in law, medicine, or administration and have an ability to conduct some level of legal research. Most importantly, they have the time to invest in learning about the VA system and to following the status of their claim.

Although VA rules allow almost anyone to be a representative, most claimants choose one of three types of representatives: service officers, claims agents, or attorneys. Service officers, also known as service representatives, are individuals who are employees of a recognized Veterans Service Organization ("VSO") or a state or county department of veterans affairs. Service officers through their experience, education, and training have been "accredited" by VA as having the ability to represent claimants in VA benefits claims. One advantage of service officers is that they do not charge any fee for assisting with a claim.

Another option claimants can use is a registered claims agent. Registered agents are non-attorneys who have been accredited by VA to represent claimants in much the same way as service officers. Agents are generally individuals with experience in the VA claims process who are not employees of a VSO. Unlike service officers, however, agents may charge a fee for their services assisting claimants after an NOD is filed (see discussion of fees in the attorney section).

Finally, a claimant can hire an attorney. Historically, attorneys were so constrained in the fees that they could charge that few if any veterans could hire an attorney to work on a VA claim. While some attorneys volunteered their work (known as working "pro bono"), veterans rarely were able to find an attorney who could help them. Attorneys are now able to represent claimants for a fee after a NOD has been filed. Many veterans have found that attorneys have the experience and training to respond to the legal issues which develop during appeals. This becomes even more true if a claim reaches the Court, although a claimant can still represent himself or herself at the Court. Attorneys, like agents, can charge a fee for their services that occur after an NOD is filed.

No matter whether a claimant decides to use a service officer, agent, or attorney as a representative, it is important to make sure that the individual chosen knows what he or she are doing. Representatives come in all sizes and shapes, just like any other service provider. No responsible representative will mind if a claimant asks questions about the representative's experience, what the representative will do to assist, and how much it will cost. A claimant should also do internet searches and talk to other veterans about representative recommendations. While most service officers handle cases from only their local area, agents and attorneys can and do handle cases from all over the country no matter where their office is located. This means that an attorney in New York can handle a case for a veteran in any other state. So if a veteran in California had a good experience with an attorney from Florida, that attorney may be a good person to start with when looking for a representative.

13.4. Self-Filing Good Practices

A claimant who decides to file his or her own claim can improve the chances of a smooth experience by considering some good practices that have proven to be useful by other self-filers. Not all of these suggestions will apply in every case, but many will. Also, anyone who is considering handling his or her own claim but finds these suggestions are too difficult or time consuming to follow should carefully consider whether self-filing is the right choice for them.

  • Never, never, never send VA original documents. VA loses documents all the time and it makes no difference who lost an original if it is needed to support a claim if the authenticity of a copy is questioned.
  • The only way to prove that a mailed document reaches VA is to send it by "certified" mail with a "return receipt" requested or use some other traceable method such as Fedex or UPS. Although these are more expensive than regular mail, regular mail provides no proof that VA actually received what you sent and if a document is not in the C-file, the claimant, not VA, suffers unless proof of delivery exists.
  • Always make and save a complete copy of everything sent to VA. Combined with the proof of delivery, this is the only way to protect against VA losing a document and the claimant being penalized.
  • Obtain the latest version of the VA form for the benefit sought from the VA website or a VA regional office.
  • Although an application filed with supporting documents is usually the best way to start a claim, it is not necessary to delay an application to gather all information that may be required to support an award. If you believe that you may be eligible for VA benefits, file an application as soon as possible because benefits, if awarded, generally start paying from the first day of the month after the application was filed.
  • If any of the following documents are available or can be obtained without a long delay, it is best to attach copies to the initial application: (1) discharge or separation papers (DD214 form or equivalent); (2) dependency records (marriage license, children's birth certificates); (3) medical evidence (examination reports, doctor's statements, hospital records); (4) relevant service records (deck logs, accident reports, unit reports); and (5) "buddy" statements.
  • Be sure to read the instructions for the Form 21-526 carefully. Double check that all information required on the form is provided and that it is accurately entered.
  • File the completed form with the correct VA office – generally the nearest VA regional office.
  • Read all correspondence from VA completely and carefully. Important information, including short response times (30- or 60-days), is often found in obscure places.
  • Respond to all VA requests for information as soon as possible. In most cases, if the requested information is not submitted within 12 months, VA will deem the claim to have been abandoned. Shorter response times (30- or 60-days) may also be required for certain responses.
  • If VA requests medical information, submit medical records that accurately describe the condition and its history.
  • Provide VA with the names and addresses of all medical service providers that may have records of treatment or diagnoses of the condition for which benefits are being sought. Consider contacting those providers and telling them that VA will be requesting records. Better yet, get copies of your medical records yourself and send copies to VA.
  • If existing medical information does not properly describe the current medical condition, consider getting a new examination.
  • If being treated by a medical professional for a condition, a claimant should ask the provider to write a letter for submission to VA describing the severity of the condition and its effect on the claimant's ability to work and on the daily activities of life.

Whatever else happens, a claimant should not hesitate to get help if he or she does not understand what the VA is requesting or if a claim is denied.

13.5. Increasing, Reducing, and Severing Disability Ratings

Obtaining an award is not the end of the process. Except under very specific circumstances, VA disability ratings can be increased, decreased, or completely ended ("severed"). Claimants, of course, enjoy the right to apply for an increase in disability rating whenever the evidence shows that the condition on which a rating was based has gotten worse. On the other side of the coin, VA has the authority to request claimants receiving compensation attend medical examinations and can, if the underlying condition improves, decrease a rating or even end compensation for that claim.

INCREASE

Unlike an initial claim, a claimant does not need to complete a full application to request an increased rating. The most direct way to request an increase is to send VA a letter stating that a service-connected condition has gotten worse and requesting a higher rating for that condition. VA can also accept other documents, such as medical reports showing that a condition has worsened, as a request for an increased rating.

VA duties on receipt of a request for an increased rating are similar to that for an initial claim. However, because service-connection has already been established, development of an increased rating is usually focused on medical evidence regarding the severity of the condition. Generally, VA schedules a C&P examination regardless of the medical evidence submitted by the claimant. If awarded, the effective date of an increased rating is the date that VA received the request for increase. The denial of an increased rating can be appealed the same way as the denial of an initial claim.

REDUCTION

VA is authorized to require claimants to periodically report for medical examinations. Examinations are usually scheduled for awards based on conditions that could change in severity over time. As with initial C&P examinations, claimants have a duty to report for examinations when scheduled. Failure to show for an examination without an acceptable reason could cause VA to reduce or stop payments.

If VA obtains medical evidence of an improvement in the claimant's condition, VA can seek to reduce the disability rating. Before monthly payments can be reduced, VA must follow a formal process to first propose a reduction in the rating and then reduce the rating. Most importantly, a claimant who VA is seeking to reduce in rating must receive notice of the proposed reduction before any change occurs and has the right to challenge the reduction and submit evidence against the reduction. Further, some long-term ratings have "protections" from reduction. In any case, a claimant receiving notice of a proposed reduction needs to respond quickly (usually within 30 days) to prevent a change in payments before he or she can challenge the decision to reduce.

Claimants who decide to challenge a proposed reduction and request that payments not be reduced during the appeal must be aware of the possibility of having to repay money to VA if the appeal is unsuccessful. This point is often overlooked. But, if VA pays compensation at a rate later found to be incorrectly high, the claimant will "generate an overpayment" which will have to be paid back to VA. If the rating change is large, the amount owed to VA could be significant. In addition, if the claimant cannot or will not repay the overpayment, VA will withhold an amount from future compensation payments until the overpayment is resolved. Claimants who challenge reductions are strongly urged to keep the impacts of a possible overpayment in mind.

Whatever the case, VA must make several determinations before a reduction can occur. These include: ensuring that the proposed reduction is based on a proper medical examination; finding that there has been an actual change in the condition, not just a temporary improvement; and basing a decision to reduce on entire history of the condition. Each of these determinations can be challenged by a claimant and a decision to reduce can be appealed the same way as an initial denial with the same risk of generating an overpayment.

SEVERANCE

VA can also terminate or "sever" service-connection of some or all claims. This is not a common action, but VA will sever claims when it determines that earlier decisions to grant were based on fraud, an illegality, or clear and unmistakable error by VA in making the award. The process for severing a claim is similar to a rating reduction and the claimant has similar rights to challenge the decision to sever and similar overpayment risks.

13.6. Staged and Temporary Ratings

For many reasons, including the lengthy period for deciding a claim or an appeal, a claimant's medical condition can change during the time his or her claim is awaiting decision. VA can provide different ratings for the periods where the claimed condition changes in severity. Such "staged ratings" apply in both initial claims and claims for an increased rating. The effective date for each staged rating is set by VA based on the facts in each case.

VA rules also allow for three types of temporary ratings. The first is a "prestabilization" rating. The purpose of this rating is to provide either compensation at either a 50% or 100% disability rate (whichever more closely matches the likely permanent schedular rating) while severe conditions stabilize following discharge. Such a rating can be assigned from the date of discharge of service and must continue without reduction for a 12-month period after discharge. If VA completes a schedular rating during the 12-month period, only a rating that provides higher compensation than the temporary rating can be implemented before the end of the 12-month period.

The second temporary rating is a total disability (100%) rating when a service-connected condition requires hospitalization for more than 21 days. The rating will generally be effective from the first day of hospitalization until the last day of the month of discharge from the hospital. Similarly, the third type of temporary rating, a "convalescent rating," will be assigned at a total (100%) rating for surgery requiring at least one month of convalescence, surgery with severe postoperative residuals, or immobilization by cast of one or more major joints.

All temporary ratings are generally followed by a scheduler rating based on the underlying condition(s).

13.7. Protected Ratings

As discussed above, VA assigns a "rating" based on how a service-connected condition affects the claimant's ability to perform gainful employment. As described earlier, the determination is based on the average impact on employment, not the specific impact to the particular claimant. The severity of many service-connected conditions can change over time, so claimants have the right to ask for higher ratings when a service-connected condition worsens. On the other hand, VA has the right to require periodic medical examinations and to reduce ratings for conditions that get better.

Congress has determined that under certain conditions it is not necessary for VA to expend resources to check on a claimant's medical status. As a result, some ratings can become "protected" under certain conditions. A "protected" rating is a VA rating that cannot be reduced or revoked by VA in the future, absent fraud in the application. There are only a few types of protected ratings and they are all described below.

First, all individuals receiving VA compensation are protected against reductions caused by future revisions of the rating schedule. Because Congress periodically revises the rating schedule, it is possible that the same medical condition could be rated less severely in the revised schedule than in the rating schedule that existed when VA assigned the rating. VA cannot, however, reduce the claimant's rating unless the condition has actually medically improved.

VA also cannot reduce a rating that has continuously existed at or above the current rating for 20 or more years. The only exception to this rule is that a rating based on fraud by the claimant can be reduced or severed at any time. For ratings that have been in effect for 10 years or more, VA cannot sever an award of service connection absent evidence of fraud or a showing that the claimant did not have the requisite service or character of discharge to initially qualify for the award.

Claimants should not confuse a "Permanent and Total" ("P&T") rating with a "protected" rating. A P&T rating is not a protected rating. What VA means by "permanent" is that the condition is assumed to be unceasing in nature and not likely to improve. "Total" means that the maximum rating has been assigned. As a result, VA will not schedule a P&T claimant for the routine medical examinations required of other claimants. However, if VA becomes aware of medical improvement, a P&T claim can be reduced just like any other claim. Claimants with a P&T condition should keep this in mind when considering whether to file additional claims because the resulting C&P exam could provide VA a basis to reduce the P&T claim. This could result in a lower total rating, even if the new claim is granted.

13.8. Section 1151 Benefits- Injured by VA Care or Voc Rehab or Medical Treatment

Section 1151 Benefits or VA Malpractice Claims

VA can also award benefits for veterans who suffer injuries or death as the result of VA medical care or from a VA-funded vocational rehabilitation program. Authorized by Section 1151 of VA's governing statutes, an "1151 claim" is essentially a medical malpractice claim against VA. If an award is approved, the condition that resulted from the malpractice is considered by VA as if it had occurred during service and is rated the same way.

In many cases an 1151 claim is also a valid claim against the government under the Federal Tort Claims Act ("FTCA"). Claimants can file either an 1151 claim, a FTCA claim, or both. However, if a claimant obtains an award on an 1151 claim and later wins a FTCA claim, the 1151 award is offset by the amount received in the FTCA case (no double recovery). VetsFirst strongly recommends claimants to not file a FTCA claim on their own because a mistake can be costly. FTCA claims have very specific requirements and cannot be refiled. Claimants should consult an experienced attorney if considering a FTCA claim.

Pursuant to 38 U.S.C. section 1151, claimants who were injured by VA care or medical treatment may be entitled to compensation.  Jackson v. Nicholson, 433 F.3d 822, 824 (Fed. Cir. 2005).  Section 1151 provides that compensation shall be awarded for an additional disability or death "in the same manner as if such additional disability or death were service-connected."  The additional disability or death is qualifying if:

  • not the result of the veteran's willful misconduct and:
  • the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary . . . and
  • the proximate cause of the disability or death was –

-    carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or

-    an event not reasonably foreseeable or

-    the provision of training and rehabilitation services or participation in a compensated work therapy program.

38 U.S.C. § 1151(a).  To be entitled to VA benefits, any additional disability must not be merely coincidental with VA medical treatment, but must stem from some fault in the care that was provided, including "carelessness, negligence, lack of proper skill, error in judgment, or some other similar instance of fault."  38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(1); Loving v. Nicholson, 19 Vet. App. 96, 100 (2005).  Section 1151 does compensate for issues arising from care provided on a fee basis or by non-VA physicians working at VA facilities.  38 C.F.R. § 3.361(f).

To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (2) VA furnished the care, treatment, or examination without the veteran's informed consent.  38 C.F.R. § 3.361(d)(1).  Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability.  The event does not have to be "completely unforeseeable or unimaginable" but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided."  38 C.F.R. § 3.361(d)(1).

"To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the . . . medical or surgical treatment . . . upon which the claim is based to the veterans condition after such . . . treatment."  38 C.F.R. § 3.361(b).  An additional disability is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability.  38 C.F.R. § 3.361(c)(1).  If an additional disability is caused by a veteran's failure to properly follow medical instructions, such a disability will not be considered to be caused by VA hospital care or medical treatment.  38 C.F.R. § 3.361(c)(3). 

A Board determination regarding entitlement to compensation under section 1151 is a factual finding that this Court reviews under the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); Look v. Derwinski, 2 Vet. App. 157, 161-62 (1992). 

14. Filed Claim - What Happens Next?

14.1. The VA Receives the Claim

Once a claim is received, VA must :

  • review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims.  See EF v. Derwinski, 1 Vet. App. 324, 326 (1991).  
  • The VA is required to apply all relevant law in adjudicating the claim even though not raised by the appellant.  See Shockley v. West, 11 Vet. App. 208, 214 (1998); see also Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) (holding that although the appellant had not filed the specific form asking for individual unemployability, an informal claim was raised because he had continually stated he was unable to work due to his service-connected mental disorder); Akles v. Derwinski, 1 Vet. App. 118, 121 (holding that VA was obliged to infer a claim for special monthly compensation where it "may be applicable and the veteran does not place his eligibility at issue").  
  • Upon review of the claim, establish that such a review "reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue of the claimant's entitlement to such a benefit or, if appropriate, to remand the issue to the RO for development and adjudication of the issue."  Suttmann v. Brown, 5 Vet. App. 127, 132 (1993); see generally Servello v. Derwinski, 3 Vet. App. 196, 198–200 (1992) (discussing evidence that could show "a belief" by the veteran that he was entitled to TDIU).  Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed.Cir.2004) (stating that "with respect to all pro se pleadings, [the Board and the Secretary are required to] give a sympathetic reading to the veteran's filings" (citing Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Norris v. West, 12 Vet. App. 413, 417 (1999) (Board must "review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims"); Suttman v. Brown, 5 Vet. App. 127, 132 (1993) ("In determining whether a particular claim has been raised, the [Board] must consider 'all documents or oral testimony submitted prior to the [Board] decision' and 'review all issues which are reasonably raised from a liberal reading' of such documents and oral testimony." (quoting EF v. Derwinski, 1 Vet. App. 324, 326 (1991))).

14.2. C&P Exam

Even though VA has a duty to assist, it is always a claimant's responsibility to initially support his or her claim for benefits. Every claim for compensation benefits requires medical evidence to establish a current condition and a nexus (connection) with an in-service event. Pension applicants require medical evidence to establish that they are totally disabled or over 65 and unemployable.

The Secretary's duty to assist a claimant includes providing a VA medical examination (commonly referred to as a "C&P exam") or obtaining an independent expert medical opinion (known as an "IMO") when such an examination or opinion is necessary for VA make a decision on the claim. This does not mean that VA must provide every claimant with a medical examination. VA is required to do so only when such an examination "is necessary to make a decision on the claim." This means that if a medical examination could not make difference, for example if the claimant has a dishonorable discharge and is ineligible for benefits, VA will not provide an exam.

In most cases, VA will schedule a medical examination after receiving a substantially complete application even if a claimant submits supporting examination reports from his or her own doctor. VA can accept the results of a medical examination by a claimant's private physician as long as the examination report satisfies VA requirements. Claimants, however, should still submit their own medical reports whenever possible because if a VA examination is ordered, the VA examiner must consider the private medical reports in arriving at his or her conclusion. Even if a claimant disagrees with the need for a C&P exam it is very important that a claimant attend any scheduled C&P exam because failure to attend an examination is a basis for denying a claim.

A C&P exam must comply with several legal requirements that a claimant should be familiar with before going to the examination. Most importantly, the exam must be "adequate" and the resulting report sufficiently detailed to support the results. A C&P exam report is adequate when it is based upon consideration of the veteran's prior medical history, fully describes the condition, and provides the reasons for each medical conclusion. If an examination report does not contain sufficient detail or is otherwise inadequate, VA is required to obtain a clarification of the report or schedule another C&P exam.

A claimant has an important role to play in a C&P exam and in making sure that the examination report accurately reflects his or her medical condition. A C&P exam will usually be conducted by a VA physician or contractor physician who may not have expertise with the claimant's particular medical condition. There are standard examination report requirements with which the physician must comply when documenting his or her medical opinion. A claimant that is prepared, such as by reviewing the relevant C&P Examination Work Sheet (see related pages below) and who can clearly describe his or her symptoms and provide relevant medical history information can help the examiner more accurately assess the condition. Even when the C&P examination report does not support service connection, a complete and accurate report of symptoms and medical history can be helpful in challenging denial of an award.

VA does not necessarily discharge its duty to assist by conducting a medical examination; the examination must be adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report).  Whether a medical opinion is adequate – and consequently, whether the Secretary complied with his duty to assist – are factual determinations by the Board, which the Court reviews under the "clearly erroneous" standard.  See 38 U.S.C. § 7261(a)(4); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Nolen v. Gober, 14 Vet. App. 183, 184 (2000) (per curiam order).

For example, in the context of examinations evaluating functional loss in the musculoskeletal system under DCs based upon limitation of motion, when pain is associated with movement, to be adequate for rating purposes an examination must "compl[y] with the requirements of section 4.40, and the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the arm is used repeatedly over a period of time."  Zang v. Brown, 8 Vet. App. 246, 252–53 (1995).  Such "determinations should, if feasible, be 'portray[ed]' ... in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."  Id. (quoting section 4.40); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011).

14.3. How To Check Claims Status

There are several ways for a claimant to accurately and directly get the status of a claim:

  1. VSO Contact: You can call your VSO, Veteran Service Organization, who filed your claim with the VA. Veteran Service Organizations have access to the same VA computer tracking systems as the VAROs and the call centers and can also provide their clients with the status as shown in those systems.   
  2. VA National Claim and Benefit Information Call Center: You can call #800-827-1000 and receive a status update from the VA, after providing identifying information. 
  3. VA Regional Office: You can physically go to the public service desk of your local VA Regional Office.  Provide photo ID and your social security number or VA file number and the service desk representative can answer your questions.
  4. eBenefits: You can go online to ebenfits and register.  However, eBenfits is not always reliable.  The VA contracts the eBenefits service from another company.  Vets have often expressed frustration with the service for not uploading documents correctly, complaints that documents in ebenefits are not in the VA system, complaints that the information is not accurate and updates are not current.

 

 

 

14.4. Obtaining a Decision

The time it takes VA to decide a particular claim depends on a number of considerations including the type of claim, the completeness of the application, the availability of service and medical records, the particular regional office where the claim was filed, and the backlog of cases already filed. There is no required time period within which VA has to make a decision on a claim. There is also no penalty to VA from delay, even excessive delay. Great patience is required because most claims are now taking many months for an initial decision.

The VA claims process is horribly overburdened and VA has a huge backlog of applications awaiting decision. Other than filing the most complete application possible and quickly responding to VA requests for follow-up information, there is little that a claimant can do but wait for VA to complete its work and issue a decision. This can be frustrating, especially because VA rarely provides any update and when it does the information is usually little more than a boilerplate "we are continuing to work on your claim" letter.

Unless there is a significant delay – on the order of a year or more – without any correspondence from VA, there is little chance that badgering VA or asking for a Congressional inquiry will be helpful. In many cases, a claim can be further delayed because VA may pull the claims file from the pile waiting for decision to prepare a response to the request for information, which is almost always "we are working on it" anyways.

When VA makes a decision, the claimant will be notified in writing. The notification will contain a cover letter and a rating decision. Claimants should read both of these documents very carefully and seek help if there is anything that they do not understand.

The cover letter will state what VA decided and what to do if you disagree with the decision. The "Rating Decision" is the official explanation of what VA decided and why. The decision will also list the evidence that VA considered and contain a discussion of the reasons for the decision on each claim. If the claim was for multiple conditions or multiple benefits, a claimant should carefully check on how each condition and benefit request was decided and make sure that all pending items were addressed.

Claimants should look at the date of mailing of the rating decision. This is very important because if a claimant disagrees with any part of a rating decision, he or she has one year from the date of the mailing of the rating decision to notify VA of the disagreement and start the appeal process. Note that the date of the Rating Decision and the cover letter are often different. Unless there are very rare and extraordinary circumstances, it is the date on the cover letter that is important if a claimant disagrees with a decision and wants to appeal.

 

14.5. Award Process

If VA grants the claim, it will award a benefit. For service-connected medical conditions, a disability evaluation or "rating" will be established that determines the amount of monthly payments. The numerical value of the rating is based on a schedule of disabilities established by Congress. The "rating schedule" is a listing of disorders, categorized by body systems, that include a description of symptoms for each disorder in an increasing order of severity. Each listed or "scheduler" disorder is assigned an unique diagnostic code.

VA assigns percentages of disability to each level of symptoms from zero (non-compensable) to 100 percent (totally disabling) in 10 percent increments. The rating is supposed to approximate the percentage of impairment to the employment of the claimant from the service-connected condition. If a particular condition is not listed, a rating is determined by analogy to the listed condition that it most closely resembles. VA pays the same dollar amount at each rating level, regardless of the rated condition, so the monthly payment for a 20% rating is the same whether the claimant suffers from diabetes, PTSD, or migraine headaches.

A claimant may be awarded more than one rating either because of multiple conditions or multiple effects from a single condition. A common source of multiple ratings is a "secondary" rating. A secondary rating is awarded when a service-connected condition directly or indirectly causes another condition. If properly claimed, the indirectly caused condition will be treated as if it were a result of the veteran's military service and will be evaluated for a separate rating. In the same way, if a claimant suffers from a condition that existed prior to a service-connected disability and the condition was aggravated by the service-connected disability, the amount that the pre-existing disability was aggravated by service may also be assigned a rating.

The amount of monthly benefits due to multiple ratings can be tricky to calculate because ratings are not added together but are combined by VA in a specific way to produce a total or "combined" rating for all of a claimant's service-connected conditions. In no case, however, can a combined rating be greater than 100 percent disabled.

After rating the conditions for which an award was granted, VA will establish an "effective date" of the award. This is a very important date because it determines the date from which VA will pay the benefits for the award. As a general rule, the effective date of an award of VA benefits is the date that VA received the application on which the award was granted, but there are exceptions. An important exception is that the effective date for veterans who submit an application within one year of separation from the military is the day after the veteran's discharge from active duty. Other exceptions include Nehmer claims, inferred claims, and informal claims, which are discussed elsewhere in this KNOWLEDGE BOOK. The payment of awarded compensation generally begins on the first day of the month following the effective date.

Claimants should understand that the effective date is not when a condition first occurred or was diagnosed. This is important because waiting to file an application can result in lost benefits which cannot be recovered later. For claimants who filed more than one application for the same condition, the effective date is not the date of the first application or any other application that was denied and become final: the effective date is the date of the granted application.

The process for deciding DIC awards is similar to compensation except that the claimant is the surviving spouse or other eligible survivor. The key issue in a DIC claim is usually whether the evidence establishes that theveteran died from a service-connected condition. If so, a surviving spouse can receive a monthly monetary benefit. Although a surviving spouse, or in some cases certain children and dependent parents, can file a DIC claim at any time even decades after the veteran died, the effective date of a DIC award is usually the date that VA receives the application. The exception in DIC cases is that if the application is received within one year of the veteran's death, the effective date is the date of death.

14.6. Benefit Payments

AVA disability compensation and DIC is paid monthly and is non-taxable. Although VA determines whether an award should be granted, the rating value, and the effective date, Congress sets the monetary amount of payments for the rating schedule. In most years, Congress adjusts the payment amounts through a cost-of-living allowance to account for economic inflation, although in some years there are no increases.

Unlike compensation and DIC, VA pension benefits are based on financial need, not medical condition. The application and review process, however, are not very different. VA will review the application based on the laws for pension established by Congress and make an award determination. Claimants receiving a pension award will be notified by letter similar to compensation and DIC awardees.

 

14.7. Retroactive Benefits

The term "retroactive payment" refers to a lump sum payment made to a claimant based on adjustments made to a prior monetary benefit or a payments for a first-time claim covering the period from the date the claim was received (or the effective date) until the date that the claim was awarded. In other words, retroactive payments are monetary benefits that were earned in the past but not paid to the claimant. Because of the lengthy delays in processing and appealing improper denials, some retroactive payments can be quite large – a few have been over $1 million.

It is important to understand that retroactive payments accumulate only while the underlying claim remains "alive" on appeal. This makes the possibility of a retroactive payment an important issue when a claimant is considering whether to continue appealing a denial or to re-submit a "new" or reopened claim. The backlog of appeals, especially at the Board of Veterans' Appeals, makes withdrawing an appeal (which can take 2-3 years to resolve) and resubmitting a new claim (which may take only 4-6 months) sometimes appears the quickest way to obtain an award. While this may seem to be a smart move, abandoning an appeal will forfeit all the retroactive payments owed to the claimant if an award is ultimately granted. In cases where the claimant has kept a claim alive for years or decades, abandoning the appeal could cost him or her a lot of money.

Retroactive payments can also be an important issue when a veteran dies with a VA claim pending. A surviving spouse, or in some cases a child or dependent parent, can file a claim for the retroactive benefits that would have been due the veteran had he or she not died, which are known as "accrued benefits" after the claimant's death. VA Form 21-534 [link] is the proper application for DIC, death pension, and accrued benefits. If an eligible person files an application for accrued benefits within one year of the claimant's death, VA must make a decision on the claim based on the information in the C-file at the date of death. If an award results, the survivor will receive a retroactive payment of the benefits that the deceased claimant would have received, in addition to any survivor benefits (DIC, burial allowance, etc.) that they are eligible to receive.

14.8. Choosing an Appeal Path

VA will respond to an NOD with a letter acknowledging receipt. This letter will also briefly explain the two options for proceeding with an appeal: the "Post Decision Review Process" and the "Traditional Appeal Process." As the choice of appeal process can have a significant impact on how long it may take to complete the appeal of a claim, claimants should carefully consider the advantages and disadvantages of each process based on the circumstances of his or her claims.

A claimant who has filed an NOD "has right to a review of that decision" by a Decision Review Officer [DRO]."  38 C.F.R. § 3.2600(a).  Selecting the Post Decision Review Process authorizes a review of the rating decision by a VA "Decision Review Officer" ("DRO").  

A DRO is usually a relatively experienced member of the regional office who is assigned to perform post decision reviews.  The DRO reviewer will be an individual "who did not participate in the decision being reviewed" and "will give no deference to the decision being reviewed."  Id. A DRO is authorized to perform a completely new review of all the claims decided in the rating decision and make a new decision regardless of the previous results.

The "reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions."  Id. § 3.2600(e).  A DRO review does not limit the appeal rights of a claimant.  Id. § 3.2600(f).  A DRO, however, cannot change the parts of a rating decision favorable to a claimant, unless there is a clear and unmistakable error or fraud. This is a very rare type of error, which is discussed elsewhere in this KNOWLEDGE BOOK.  If the DRO does not resolve all of the issues raised by a claimant, the unresolved issues shift to the traditional appeal process described below. 

If a claimant does not elect a DRO review, VA proceeds with a "traditional" appeal process and is required to prepare and send a "Statement of the Case" ("SOC") to the claimant. An SOC is another explanation for why VA decided the issues the way it did. For each claim appealed, the SOC must contain a description of the evidence considered by the VA in making the decision, the VA regulations applicable to the decision, and an explanation of and reasons for the decision.

A Statement of Case, SOC, can be very lengthy, but should be carefully read. Despite their length, SOC sometimes contains errors of fact or law or are otherwise inaccurate. Claimants should review the SOC in order to identify any errors which could affect the appeal.

This Court has held that:

  • "where a decision on one issue would have a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of the decision [on the claim] meaningless and a waste of judicial resources,' the two claims are inextricably intertwined."  
  • Henderson v. West, 12 Vet. App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet. App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009)); see also Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (holding that, where the facts underlying two claims are "intimately connected," the interests of judicial economy and of avoiding piecemeal litigation require the claims to be appealed together).

 

14.9. Disagreeing with a Decision

Filing A Notice Of Disagreement (NOD) - Background

Once a claimant has received a rating decision, it is up to him or her to decide whether to accept or disagree with VA's determination. If the rating decision is acceptable, for example, VA granted the award of benefits at an appropriate disability rating and with the correct effective date, no action is required by the claimant. If, however, a claimant disagrees with all or any part of a rating decision, he or she has up to one year to inform VA of the disagreement.

The year to file a NOD starts on the date on the VA letter forwarding the rating decision, which VA presumes to be the mailing date. The NOD must be postmarked within one year of the date of the VA letter forwarding the decision. Where the date on the VA letter is much different (earlier) than the postmark on the envelop, there is a chance that VA may allow an NOD within one year of the postmark date. There is no reason to risk an appeal in this way as an NOD can and should be submitted as soon as possible following an unfavorable decision.

To inform VA of a disagreement with a rating decision, a claimant must send a written Notice of Disagreement ("NOD") to the regional office that issued the rating decision, unless the claimant has been notified by VA that the C-file has been transferred to another office. If the file has been transferred, the NOD should be mailed to the office where the C-file is located (although sending a copy to both offices is recommended).

Veterans must use a VA standarized form to file a NOD.  Use VA Form 21-0958 (Notice of Disagreement).  An NOD must be dated, state the date of the rating decision with which the claimant disagrees, and be signed by the claimant or the claimant's VA-accredited representative. A claimant does not have to give any reasons for disagreeing with the decision, although he or she can do so. 

If the claimant does not file an NOD within one year of the date of the adverse rating decision, the decision becomes final. If this occurs, under most circumstances any benefits for the period since the application was filed are lost and cannot be recovered. The exceptions to finality rule are discussed later in this KNOWLEDGE BOOK.

Steps for Filing a Notice of Disagreement (NOD)

Generally, the VA Regional Office (VARO) nearest the veteran in the state where he or she resides will make the initial decision on a claim for VA benefits.  Once the VARO adjudicates a claim, it will send the claimant and his or her service representative, if any, a notice of the decision. 

If the VARO denies the claim, or grants benefits at a level lower than that warranted by the evidence or effective from a date later than that allowed by law, the claimant should immediately appeal the decision.  The first step in appealing a claim is to file a "Notice of Disagreement" (NOD) with the VARO that made the decision. 

Tips on filing a Notice of Disagreement

  • The NOD must be in writing.
  • You must use VA Form 21-0958 (Notice of Disagreement) to submit an NOD.  This form is available on the VA's website. Click here to view or download form
  • Identify the decision by the date that the decision was made.  Specifically state that you intend to appeal that decision. 
  • State the specific claim or issue that you are appealing if more than one issue was adjudicated.  Since you do not want to appeal an award of benefits that has been properly granted in this situation, specifically state any claim or issue that you do not intend to appeal.
  • The appeals process can be involved, time consuming, and sometimes frustrating. If you are unsure or uncomfortable with the process get professional advice or assistance.

In order to begin the appellate process, the VA must receive your NOD within one year of the date of the letter notifying you of its decision.  The NOD may be mailed or hand-delivered to the VARO, however, you can fax the NOD if the deadline is looming. 

It is always best to file the NOD as soon as possible after you have decided to appeal an adverse decision.  That way, the VA will begin to process the appeal sooner and you will avoid the chance of missing the deadline.  If the NOD is not timely filed, the VA will consider the VARO's decision to be final.  In that event, the VA will only reopen the claim if you submit new and material evidence of entitlement to the benefit sought, or if you can establish that the VARO's decision was the product of clear and unmistakable error (which is often very difficult to prove).

 

14.10. Perfecting an Appeal

An appeal of a rating decision is a two step process. Filing an NOD is the first step. The second step is to "perfect" the appeal by filing a VA Form 9 with the same regional office that issued the SOC. By statute, a claimant must perfect an appeal within 60 days after the date of the SOC cover letter or within one year from the date of the rating decision that is being appealed, whichever is longer. If a claimant does not meet this deadline, the rating decision will become final. A claimant must use a VA Form 9 to perfect an appeal. Not using this form risks rejection of the appeal.

A claimant is free to submit additional evidence, which VA is required to consider, until the C-file is physically sent to the Board of Veterans' Appeals. In addition, VA will review the C-file and rating decision before forwarding the file to the Board. If VA identifies an issue, it may ask for additional information and may revise or reverse the rating decision. Once the claim file leaves the regional office to be delivered to the Board, the raters can do nothing to change the rating decision until and unless the claim is sent back ("remanded") to the regional 0ffice or, in some cases to the VA Appeals Management Center ("AMC"), for further action (see discussion of AMC in the next section).

14.11. Appeals Process & Tips

  1. The VA has two appellate decision makers. Each VA Regional Office (VARO) has one or more Decision Review Officers (DRO).  The DRO reviews the claim basically from scratch and without any deference to the VARO's adjudicator's decision.  The DRO has the authority to modify a VARO claims decision by either granting benefits or ordering additional development of the evidence and readjudication. 
  2. You can expressly request review of your decision by a DRO in your NOD. You and your representative, if any, may appear in person before the DRO to explain why you believe that the VARO's decision is wrong, or you may submit a written explanation of your position, or both. 

The VA's highest appellate body is the Board of Veterans' Appeals, (BVA) located in Washington, D.C.  If you do not request a DRO review in your Notice Of Disagreement, the VA will send you and your representative, if any, a letter that acknowledges receipt of your NOD and asks whether you desire a DRO review or would rather have your appeal forwarded to the BVA for consideration. 

TIP: We recommend that you seek DRO review before you request a BVA appeal.  The DRO process frequently results in a favorable decision and is generally much faster than going directly to the BVA.  If you do not receive a better decision from the DRO, you can still appeal to the BVA.

If the DRO does not award benefits, or if you request BVA consideration instead, the VA will issue a "Statement of the Case" (SOC).  The SOC is the VARO's explanation of the reasons why it decided your claim(s) as it did.  It contains a discussion of the evidence considered, the relevant laws and regulations and an analysis of the application of the law to the facts surrounding the claim.  If you submit, or the VA acquires, new evidence concerning your claim after it has issued the SOC, the VARO will consider that evidence and will make a new decision.  It will then issue a Supplemental Statement of the Case (SSOC) that will explain its decision, much like a SOC will.

TIP: Read the SSOC carefully.  If the evidence considered after the SOC was issued raises a new claim, one that was not included in the decision on appeal, and that claim is denied in the SSOC, you must file a new NOD with respect to that issue in order to include that claim in the pending appeal.


The SOC is significant for two reasons.  First, it provides the basis on which you can attack the VARO's decision if the VA's interpretation of the evidence or the law is flawed.  Second, it triggers the deadline for "perfecting" an appeal to the BVA, which provides the BVA with jurisdiction to consider the appeal.  

You have 60 days from the date of the SOC (or the SSOC) or the remainder of the one-year period after the VARO's initial notice of its decision, whichever is later, to file a substantive appeal to the BVA using VA Form 9.  This form is available on the VA's website.
Click here to view or download form.

You must list each claim or issue that you want the BVA to review in your substantive appeal to the BVA, and you should explain the reasons why you are appealing the VARO's decision.  You can also indicate that you or your representative will subsequently submit a more detailed legal argument in support of the appeal. 

TIP: Be sure to file your substantive appeal to the BVA with the VARO, and not with the BVA directly,
The BVA can extend the deadline for filing a substantive appeal only for good cause shown, however, it's better to file the substantive appeal as soon as possible to avoid risking a denial of the extension of time.  An untimely substantive appeal will strip the BVA of jurisdiction to consider the appeal.

You will have the opportunity to request a personal hearing before the BVA prior to its deciding your appeal. You may elect to:

  • Come to Washington, D.C., and appear before the Veterans Lay Judge (VLJ) in person.
  • Request an in-person hearing at the VARO regional office (but you will have to wait until a VLJ is scheduled to visit that VARO).
  • You can request a video conference hearing.  The hearing will be on the informal side, with the VLJ listening to you or your representative's arguments in favor of the claim and asking you questions directly. 

TIP: Statistically, there is a slightly higher chance that the appeal will be granted if you appear for a personal hearing.  However, there is always a risk that you might say something detrimental to your claim or exhibit a behavior which may negatively influence the VLJ.

Personal hearings are advantageous in claims that involve factual issues (e.g., accidents or injuries during service, when symptoms began or how severe they currently are).  Nevertheless, since lay claimants do not have the medical training and expertise necessary to provide credible testimony on medical issues, a personal hearing where the outcome depends on medical evidence would be of little value (e.g., establishing a diagnosis, medical nexus or service-connection for a secondary disability).  

Whether or not you elect a personal hearing on appeal, you will have the opportunity to file a written statement with the BVA in which to argue your case for a full award of benefits. 

TIP: It is always advisable to have the assistance of an experienced veterans service representative who can prepare and submit a detailed legal argument on your behalf.  If you chose to represent yourself, however, you can use the SOC and any SSOC to become familiar with the laws and regulations that govern.  Remember that it is not enough to merely disagree with the VARO's decision.  You must point to the evidence in the record that rebuts or discredits the evidence that the VARO relied on in its decision, including military medical records,  VA health care records, private health care records, physicians' opinion letters, statements from lay individuals on non-medical matters, Social Security records and decisions, and other related documentation.  You should also point out if the VARO misapplied or failed to apply a relevant law or regulation.

On appeal, the BVA can take one of three actions.

  1. It can grant the claim and award the benefit(s) sought.
  2. It can uphold the VARO's decision and deny the claim. 
  3. If the VARO committed either a substantive or procedural error, the BVA can also remand the claim to correct the error. 

A remand decision is an order from the BVA to a lower VA decision maker to take some action that is necessary to readjudicate the claim properly.  Often, this involves further development of the evidence (e.g., conduct a medical or psychiatric examination, obtain medical records from the claimant's doctor(s) or secure other relevant evidence), or to cure a procedural defect (e.g., the VARO did not issue a SOC/SSOC or provide the claimant with a legally required notice).  Remand orders are usually directed to the VA's Appeals Management Center (AMC) for action, although sometimes claims are referred to the VARO.  BVA decisions that either grants or denies a claim are considered to be final decisions.  A remand decision, however, is not.       

OK. You have just received a copy of the BVA's decision in your appeal.  Hopefully, the BVA has overturned the VARO's decision and granted your benefits in full.  But suppose that the BVA improperly affirms the VARO's decision without granting benefits or commits some other error that results in less than a full award of benefits. 

Since the BVA is the last stop at the VA for claims decisions, where can you go? Prior to 1988, a claimant who was denied at the BVA simply had to accept that decision.  The BVA had the last word.  In 1988, however, Congress passed a law that created a special federal court to consider appeals of adverse BVA decisions.  The U.S. Court of Appeals for Veterans Claims (CAVC), formerly the Court of Veterans Appeals, has exclusive jurisdiction to review appeals of final BVA decisions.  This includes claims denials, partial grants of benefits and inadequate awards of benefits, but does not include remand decisions. 

TIP: Before filing a court appeal, there is still one last opportunity to have the BVA reconsider its decision.  The appellant (i.e., the person filing the appeal) can request the BVA to reconsider its decision.  Whether a motion for BVA reconsideration granted is at the BVA Chairman's discretion.  The request for reconsideration must be in writing and must specify an "obvious error of fact or law" that led to the improper decision.  Again, you must point to evidence of the record or a specific law or regulation that you believe the BVA either ignored or misapplied.  Newly discovered service medical records or previously unconsidered changes in service records by a board for the correction of military records are examples of evidence that can support a BVA reconsideration.  If the Chairman grants reconsideration, the original BVA decision is nullified and a new decision will be issue based on the reconsideration request.  If the request is denied, it's time to go to court!

Similar to the requirement of filing a substantive appeal to the BVA, you must file a notice of appeal (NOA) with the CAVC to confer jurisdiction on the court.  The deadline for filing a NOA with the CAVC is 120 days from date that the BVA mails its decision to you.  The mailing date is legally presumed to be the same date that appears on the front of the BVA decision.  The NOA should be filed with the CAVC, not the VARO or BVA. 
The Court's address is:

Clerk, US Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

The NOA must be post-marked by the U.S. Postal Service (rather than self-metered or shipped privately) within the 120-day period in order to be considered timely.  If the deadline is approaching, you may fax the NOA to the CAVC clerk's office at (202) 501-5848.   

There is a specific NOA form that is available at the CAVC's website, www.vetapp.uscourts.gov. You do not need to argue your case in the NOA, but you will need to indicate the date of the BVA decision that you wish to appeal.  There is a $50 filing fee for appealing to the court, which can be waived if payment would cause financial hardship.  The court's Form 4 (Declaration of Financial Hardship), is also available on its website.  Either the filing fee or the declaration must accompany the NOA.

If you are unrepresented at the CAVC and miss the NOA filing deadline, there are limited rules that allow the court to consider the circumstances leading to the late filing.  For example, the court will "equitably toll" the filing deadline if the appellant's medical or physical condition prevented the NOA's timely filing.

You do not need to have an attorney to represent you before the CAVC, although it is highly advisable.  The non-adversarial relationship between a claimant and the VA ends with the BVA's decision.  Once an appellant literally makes a "federal case" out of it, the parties become legal adversaries and the VA's attorneys go to work.  If you do not have an attorney when you file your NOA, the CAVC will provide you with information about the Veterans Pro Bono Consortium (www.vetsprobono.org).  The Consortium can review your appeal for judicial merit and, if it agrees that the BVA decision is in error, it will assign your appeal to one of its volunteer attorneys without any charge or fees.

The CAVC process often takes a year or more to complete.  Some cases have actually gone on for two to three years.  Once the parties agree on the contents of the record on appeal (which can take many months), the parties will file their initial, and possibly supplemental, briefs.  Unrepresented appellants are allowed to file an informal brief on the court's designated form.  It is possible that the CAVC could schedule the appeal for oral argument, although it will issue a call for attorneys to volunteer to represent the appellant in such cases, or it will ask interested parties to file amicus curiae (friend of the court) briefs in favor of the appellant and to appear at oral argument. 

If the VA's attorneys agree that the BVA erred in its decision, they may contact the appellant or appellant's legal counsel, if any, to discuss a joint motion for the court to remand the appeal to the BVA for readjudication.  A joint motion for remand is not a legal settlement, but, rather, the VA's acknowledging the error and both parties' requesting that the Court allow the VA to correct the defect without the need for full briefing and a formal decision by the Court.          

On appeal, the court can reverse the BVA decision and grant benefits, affirm the BVA decision and continue the denial or partial grant, or it can remand the appeal to the BVA. Typically, the CAVC will remand on the narrowest possible grounds, meaning that it will not address all assignments of error if one will do.

If an appellant wants to appeal an adverse CAVC decision, he or she must file an appeal to the U.S. Court of Appeals for the Federal Circuit.  At this point, the attorneys for the U.S, Department of Justice take over representing the government.  The Federal Circuit is not the best place for an appellant to be unrepresented by legal counsel.  A lawyer is almost always necessary to prevail at this level.

14.12. The Board of Veterans' Appeals

The Board of Veterans' Appeals is an independent organization within VA that has jurisdiction to review all factual and legal issues in a rating decision without considering how the regional office decided the issues. The Board consists of a Chairman and approximately sixty members who are designated a "Veteran Law Judge" ("VLJ"). Although historically the Board sat in panels of three members, the typical appeal is now decided by a single VLJ.

An appeal can be resolved "on the papers" or following a hearing with a VLJ. Hearings can either be in person in Washington, DC, or at a local regional office or by video conference. Before the Board, a claimant (technically an "appellant" once the appeal is certified) can represent himself or herself or can be represented by a person of his or her choosing, including a service officer, non-attorney agent, or attorney. Board hearings are informal and a claimant can submit written material, such as a summary of the claimant's argument, for consideration by the Board. The Board, however, cannot review evidence not reviewed by the regional office unless the claimant specifically waives regional office review (if evidence is submitted without a waiver, the claim is returned to the regional office for further development).

The Board is required to review all the evidence presented to it and issue a written decision. The Board can grant or deny a claim, or remand (send back) all or part of a claim to the regional office or the Appeals Management Center ("AMC") for further development. The AMC is an office in Washington, DC, that VA uses to assist regional offices on appeals were the claimant is self-represented or has designated a Veterans Service Organization ("VSO") as his or her representative. A Board decision is required to be written and identify the "reasons and bases" for each conclusion. The Board's reasons are important because inadequate reasons and bases are the most common ground for challenging a Board decision denying an award.

If the Board agrees with a claimant – now called an "appellant" – and orders an award, the claims file is returned to the regional office for processing of the resulting benefit payment. Action by the regional office also may include deciding any issues that were not resolved by the Board. For example, if a claim was initially denied and the Board ordered an award, the regional office will need to determine a numerical rating and effective date before payments can begin. In addition, even if the Board decided all the issues for an award, only the regional office can authorize payments. So, unless the Board denies all aspects of an appealed decision, the C-file must be returned to the regional office for additional action.

If the Board agrees with a claimant that the rating decision contained errors but is not sure whether or not a award should be granted, it will order the rating decision withdrawn and require the AMC or regional office to take specific actions to further develop the claim. While not an award, a remand provides a claimant a further opportunity to provide additional evidence in support of his or her claims. On the other hand, a remand means that there will be further delay in resolving a claim.

A claimant disappointed by a Board decision can request the Board "reconsider" or "vacate" its decision. The Board rarely grants reconsideration. If it does, the Board decision will be withdrawn and a new decision issued. A motion for Board reconsideration can be filed at any time.

14.13. Appeals to the Veterans Court

A disappointed appellant can also appeal an unfavorable Board decision to the Court of Appeals for Veterans Claims, known as the "CAVC" or "Court." The CAVC was established by Congress in 1988 to provide a further level of review for claimants denied benefits. The Court exists primarily to review Board decisions for legal errors. As a practical matter, this means that a claimant-appellant must identify a legal error in a Board decision to win an argument before the Court. Simply disagreeing with a Board decision is not enough to win an appeal at the Court.

Unlike a motion for Board reconsideration, an appeal to the Court has a very specific period in which to file for Court review. To appeal to the Court, an appellant has 120 days from the date of mailing of the Board decision to file a "Notice of Appeal" at the Court, not the regional office or the Board. As many veterans have sadly learned, the Court takes this 120-day period very seriously and strictly enforces it. A claimant-appellant wanting to appeal a Board decision should file his or her Notice of Appeal as soon as possible to avoid missing this deadline. VA cannot appeal a Board decision.

The process at the Court is very different than at the regional office or Board. The VA Secretary is now formally an "opposing party" and will argue against the claimant-appellant's position in an adversarial legal action. This means, among other things, that it is now the claimant-appellant's duty to identify the legal basis for his or her appeal and why the Board decision is wrong. Claimant-appellants are also responsible for meeting all the Court's deadlines and following the Court's rules. In other words, VA will no longer assist the claimant in his or her case. So, while claimants can and do represent themselves before the Court, it is much harder to do effectively than when the claim is being developed.

Once a number of procedural matters are completed a claimant-appellant submits a Brief, the Secretary submits his Brief, and the claimant-appellant can submit a Reply Brief. Initially, a single judge is assigned to each case. If one or more of the issue in the case is deemed significant enough, the Court assigns a three-judge panel to decide the case. Oral argument can be requested and, while not common, is scheduled for significant issues.

In its decision, the Court will either (1) affirm (agree with) the Board, (2) remand one or more issues for further development, or (2) reverse (overrule) the Board. Reversals are rare, with the most common result being either affirmation of the Board decision or remand for further consideration by the Board of one or more issues. As with the Board, the Court does not calculate awards or authorize payments, so even if a claimant-appellant wins a fully favorable decision at the Court, the decision and the C-file must be returned, first to the Board and then to the regional office or AMC from which it came.

14.14. Further Appeals

Either the claimant-appellant or the Secretary can appeal an unfavorable CAVC decision to the Court of Appeals for the Federal Circuit and, after that, to the United States Supreme Court. Appeals to these courts are significant and expensive actions that need to be carefully considered. For those reasons, VETSFIRST does not recommend claimants undertake such appeals without competent legal advice and representation.

 

Appendix I - General

1. ACRONYMS AND DEFINITIONS

The following is a sampling of some of the acronyms that a claimant or appellant may see in various VA records and documents.

1151 Claim A claim for benefits under 38 U.S.C. Section 1151 as a result of injury caused by VA treatment or rehabilitation services similar to a medical malpractice claim.
Appellant The party in an appeal who is challenging the decision on appeal. At the Board and the Court, the claimant seeking benefits (veteran or dependent) is always the Appellant.
Appellee The party in an appeal who is defending the decision on appeal. In the Veterans Court, the VA Secretary is always the Appellee.
Board The Board of Veterans' Appeals. The Board is the organization within VA that reviews appeals of unfavorable initial rating decisions.
BVA An acronym for the Board of Veterans' Appeals.
C-file Claims file. VA creates a hard copy paper file for each claimant that contains all the documents related to that claimant since the first application for benefits. C-files can contain thousands of pages of documents and must be physically shipped between offices when claims are reviewed by different VA groups or the Veterans Court.
CAVC The Unites States Court of Appeals for Veterans Claims. The appellate court to which claimants can appeal adverse Board decisions. Also known as the "Court," "CAVC," or "Veterans Court."
Claim Number Each claimant is assigned an unique VA claim number that VA uses to identify that claimant for life. Claimants should put their claim number on each document and correspondence sent to VA.
Compensation A monetary benefit awarded based on the degree of disability caused by a service-connected condition.
DIC Dependency & Indemnity Compensation. A benefit awarded to surviving spouses and qualifying dependents and dependent parents when a service-connected condition is a cause of a veteran's death.
DRO Decision Review Officer. Usually an experienced member of a regional office rating team who reviews a rating decision at the request of the claimant after an initial denial. DRO review is optional and cannot change decisions favorable to a claimant except for fraud or similar issues.
DVA

The Department of Veterans Affairs. A technically more accurate acronym than "VA," although not as widely used.

EFT

 Electronic Fund Transfer

Federal Circuit

The United States Court of Appeals for the Federal Circuit. The federal appellate court to which claimants and VA can appeal Court decisions.
Form 9 The VA form that must be submitted after receipt of a Statement of the Case to perfect an appeal to the Board of Veterans' Appeals.
NOD Notice of Disagreement. Claimants must file a written NOD within one year of receiving a rating decision to be able to appeal that decision.
Pension A VA benefit based on financial need available to fully disabled veterans and unemployed veterans over age 65 who served during a time of war.
Presumption A legal term meaning that no evidence of a nexus between a current medical condition and an in-service occurrence is required. A claimant currently suffering from a "presumptive condition" only needs to establish he or she experienced the specified in-service event to be awarded service connection.
PTSD Post-Traumatic Stress Disorder.
Rating Decision The initial VA decision on a claim which either grants or denies an award. In some cases, VA may "continue" a claim for further development.
Rating Schedule The table of medical conditions and disabilities established by law that VA raters use to determine the degree of disability for compensation purposes.
Remand Return of a decision to the organization that made it for additional review and revision. For most claimants, the Board remands decisions to the originating regional office or the AMC. The Court remands Board decisions to the Board.
Secretary The Secretary of Veterans Affairs. The Cabinet officer who is the administrative head of VA.
Service Connection A requirement that a claimant for VA compensation must (1) have a current medical condition; (2) identify an event or condition during military service; and (3) establish a nexus or connection between the medical condition and the in-service event or condition. Without establishing service connection, VA will not award compensation benefits.
SMC Special Monthly Compensation. Additional compensation available to the most seriously disabled veterans for anatomical loss of limbs or loss of use of body parts, aid and attendance, and other special needs.
SOC Statement of the Case. A document that VA must prepare and provide to a claimant who has submitted a timely Notice of Disagreement. The purpose of an SOC is to identify the facts and law VA used to reach the decision(s) with which the claimant disagrees.
TDIU Total Disability based on Individual Unemployability. A special rating that considers whether a claimant who does not meet the rating schedule requirements for 100% disability is still unable to work in a substantially gainful occupation. A TDIU award pays benefits at the 100% scheduler rate even though the actual rating percentage is less than 100%.
VA The most commonly used acronym for the Department of Veterans Affairs.
Veterans Court Another common name for the United States Court of Appeals for Veterans Claims. See also CAVC.
VLJ Veterans Law Judge. A member of the Board of Veterans' Appeals who hears appeals from claimants who disagree with a rating decision.
VONAPP Veterans Online Application. A VA website for electronically applying for VA benefits. https://www.ebenefits.va.gov/ebenefits-portal/ebenefits.portal?_nfpb=true&_nfxr=false&_pageLabel=Vonapp

 

2. ACRONYMS & TERMS USED IN VA BENEFITS CLAIMS & APPEALS

Much like the Department of Defense (DOD), the United States Department of Veterans Affairs (VA) uses many acronyms in the handling of claims and appeals for VA benefits. The following is a sampling of some of the acronyms that a claimant or appellant may see in various military and VA records and documents.

9 VA Form 9, Appeal to the Board of Veterans' Appeals
10-10EZ VA Form 10-10EZ, Application for Health Benefits
10-10EZR VA Form 10-10EZR, Health Benefits Renewal Form
10-10EC VA Form 10-10EC, Application for Extended Care Services
1151 Claim A claim for benefits under 38 U.S.C. Section 1151 as a result of injury caused by VA treatment or rehabilitation services similar to a medical malpractice claim.
A&A Aid and attendance
AAO Assistant adjudication officer
ABCMR Army Board for Correction of Military Records
ACAP Annual clothing allowance payment
ADA Americans with Disabilities Act
ADHC Adult day health care
ADL Activities of daily living
ADT Active duty for training
AFB Air Force Base
AFBCMR Air Force Board for Correction of Military Records
AFHRA Air Force Historical Research Agency
AFI Air Force instruction
AFIP Armed Forces Institute of Pathology
AGG Aggravated in service
AHRC Army Human Resources Command
AL American Legion
ALJ Administrative Law Judge
ALS Amyotrophic lateral sclerosis
AMC Appeals Management Center
AML Acute myelogenous leukemia
AMVETS American Veterans
AO Agent Orange or adjudication officer
AOCAP Agent Orange Class Assistance Program
AOJ Agency of original jurisdiction
AOR Agent Orange Registry
APA Administrative Procedures Act
Appellee The party in an appeal who is defending the decision on appeal.  In the Veterans Court, the VA Secretary is always the Appellee.
Appellant The party in an appeal who is challenging the decision on appeal.  In the Veterans Court, the claimant seeking benefits (veteran or dependent) is always the Appellant.
ARBA Army Review Boards Agency
AVSCM Assistant Veterans Service Center Manager
AWA All Writs Act
AWOL Absent without official leave
BCD Bad conduct discharge
BCMR Board for Correction of Military Records
BCNR Board for Correction of Naval Records
BDD Benefits Delivery at Discharge
BDN Benefits Delivery Network
BHL Bilateral hearing loss
Board The Board of Veterans' Appeals or "BVA".
BVA The Board of Veterans' Appeals.  The Board is the organization within VA that reviews initial rating decisions when the claimant files a Notice of Disagreement.
C-file Claims file.  VA creates a hard copy paper file for each claimant that contains all the documents related to that claimant since the first application for benefits.  C-files can contain thousands of pages of documents and must be physically shipped between offices when claims are reviewed by different VA groups or the Veterans Court.
CAAF Court of Appeals for the Armed Forces
CAVC The Unites States Court of Appeals for Veterans Claims.  The appellate court to which claimants can appeal adverse Board decisions.  Also known as the "Veterans Court."
C&P Compensation and Pension
CARES Capital Asset Realignment for Enhanced Services
CAVC Court of Appeals for Veterans Claims
CBO Chief business office
CBOC Community Based Outpatient Clinic
CCF Compound comminuted fracture
CDR Counter designation of record
CFR Code of Federal Regulations
CG Coast Guard
CGBCMR Coast Guard Board for Correction of Military Records
CHAMPUS Department of Defense Civilian Health and Medical Program of the Uniformed Service
CHAMPVA Civilian Health and Medical Program of the Department of Veterans Affairs
CHR Consolidated health record
CIB Combat Infantryman Badge
Claim Number Each claimant is assigned an unique VA claim number that VA uses to identify that claimant for life.  Claimants should put their claim number on each document and correspondence sent to VA.
CLC VA Community Living Center (formerly VA Nursing Home Care Units)
CLL Chronic lymphocytic leukemia
CMB Combat Medical Badge
CMD Chief Medical Director
CMO Chief Medical Officer
CNHC Community nursing home care
CO VA Central Office or commanding officer
COD Character of discharge
COG Convenience of the government
COLA Cost-of-living adjustment
Compensation A monetary benefit awarded based on the degree of disability caused by a service-connected condition.
CONUS The contiguous United States
COVA Court of Veterans Appeals (Renamed Court of Appeals for Veterans Claims)
COWC Committee on Waivers and Compromises
CPI Claims Processing Improvement
CRC Community residential center
CRDP Concurrent retirement and disability pay
CRSC Combat-related special compensation
CUE Clear and unmistakable error
CURR Center for Units Records Research
CWT VA Compensated Work Therapy Program
DAV Disabled American Veterans
DBQ Disability Benefits Questionnaire
DC Diagnostic code
DD Dishonorable discharge
DD-214 Discharge certificate
DDD Degenerative disc disease
DEA Dependent's educational assistance
DES Disability evaluation system
DFAS Defense Finance and Accounting Services
DFR Dropped from the rolls
DIC Death & Indemnity Compensation.  A benefit awarded to surviving spouses and qualifying dependents when a service-connected condition is a cause of a veteran's death.
DM Diabetes mellitus
DMZ Demilitarized zone
DOD Department of Defense
DRB Discharge Review Board
DRO Decision Review Officer.  Usually an experienced member of a regional office rating team who reviews a rating decision at the request of the claimant after an initial denial.  DRO review is optional and cannot change decisions favorable to a claimant.
DSM American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders
DSO Department service officer
DTR Deep tendon reflexes
DVA The Department of Veterans Affairs.  A technically more accurate acronym than "VA," although not as widely used.
EAD Entry on active duty
EAJA Equal Access to Justice Act
eBenefits VA online portal that allows veterans to manage their benefits and personal information.
ECA Expedited Claims Adjudication Initiative
ED Erectile dysfunction
EGC Electrocardiogram
EKG Electrocardiogram
EOB Explanation of benefits
EOD Entry on Duty or Explosive Ordinance Disposal
EVR Eligibility verification report
FDC Fully Developed Claim
Federal Circuit The United States Court of Appeals for the Federal Circuit.  The federal appellate court to which claimants and VA can appeal Veteran Court decisions.
FOIA Freedom of Information Act
Form 9 The VA form that must be submitted after receipt of a Statement of the Case to perfect an appeal to the Board of Veterans Appeals.
FTCA Federal Tort Claims Act
GAO Government Accounting Office
GC General counsel
GPO Government Printing Office
GSW Gun shot wound
GWS Gulf war syndrome
HB Housebound
HIPAA Health Insurance Portability and Accountability Act
HISA Home improvement and structural alterations
HIV Human immunodeficiency virus
HO Hearing officer
IED Improvised explosive device
IG Inspector general
IME Independent medical expert or independent medical evaluation
INC Incurred in service
IOM Institute of Medicine
IOP Internal operating procedures
IRIS Inquiry Routing and Information System
IU Individual unemployability
IVAP Income for VA purposes
JAG Judge Advocate General
JMR Joint motion for remand
JSRRC Joint Services Records Research Center
LOD Line of duty
LOM Limitation of motion
LSW Licensed social worker
M21-1MR Adjudication Procedures Manual Rewrite
M-1 VA Healthcare Adjudication Manual
M-21 VA Claims Adjudication Manual
MACR Missing air crew reports
MAPR Maximum annual pension rate
MGIB Montgomery GI Bill
MIB Marine index bureau
MOS Military occupational specialty
MPR Military personnel records
MRI Magnetic resonance imaging
MST Military Sexual Trauma
NA National Archives
NARA National Archives and Record Administration
NAS National Academy of Sciences
NAUS National Association for Uniformed Services
NHL Non-hodgkins lymphoma
NMCB U.S. Navy Mobile Construction Battalion
NOA Notice of Appeal
NOD Notice of Disagreement.  Claimants must file a written NOD within one year of receiving a rating decision to be able to appeal that decision.
NOS Not otherwise specified
NPC Naval Personnel Command
NPRC National Personnel Records Center
NRPC Naval Reserve Personnel Command
NSC Non-service-connected
NSLI National Service Life Insurance
NSO National service officer
NVLSP National Veterans Legal Services Program
OEF Operation Enduring Freedom
OGC Office of the General Counsel
OIF Operation Iraqi Freedom
OIG Office of Inspector General
OMPF Official military personnel file
OPC Outpatient clinic
OPT Outpatient treatment
OQP Office of Quality and Performance
OTH Other than honorable
PDBR Physical Disability Board of Review
PDR Physicians Desk Reference
PEB Physical Evaluation Board
Pension A VA benefit based on financial need available to fully disabled veterans who served during a time of war.
PERMS Permanent Electronic Records Management System
PG Persian Gulf
PGW Persian Gulf War
PIES Personnel Information Exchange System
PIF Pending issue file
PMC Pension Maintenance Center
POA Power of attorney
POW Prisoner-of-war
PRC Polytrauma Rehabilitation Center
Presumption A legal term meaning that no evidence of a nexus between a current medical condition and an in-service occurrence is required.  A claimant currently suffer from a "presumptive condition" only needs to establish he or she experienced the specified in-service event to be awarded service connection. See related Knowledge Book.
PT Physical therapy or permanent total disability
PTE Peace time era
PTSD Posttraumatic stress disorder
PEBLO Physical Evaluation Board Liaison Officer
RAD Release from active duty
Rating Decision The initial VA decision on a claim which either grants or denies an award or "continues" the claim for further development.
Rating Schedule The table of medical conditions and disabilities established by law that VA raters use to determine the degree of disability for compensation purposes.
Remand Return of a decision to the organization that made it for additional review and revision.  The Board remands rating decisions to the originating regional office.  The Veterans Court remands Board decisions back to the Board.
RMC Records Management Center
RMO Records Management Officer
RN Registered nurse
RO Regional Office
ROTC Reserve Officers' Training Corps
RVN Republic of Vietnam
RVSR Rating Veterans Service Representative
SBP Survivor Benefit Plan
SC Service-connected
SDRP Special Discharge Review Program
SDVI Service Disabled Veterans' Insurance
Secretary The Secretary of Veterans Affairs.  The Cabinet officer who is the administrative head of VA.
Service Connection A requirement that a claimant for VA compensation must (1) have a current medical condition; (2) identify an event or condition during military service; and (3) establish a nexus or connection between the medical condition and the in-service event or condition.  Without establishing service connection, VA will not award compensation benefits.
SF Special forces
SGLI Servicemembers' Group Life Insurance
SMC Special Monthly Compensation.  Additional compensation available to the most seriously disabled veterans for anatomical loss of limbs or loss of use of body parts, aid and attendance, and other special needs.
SMP Special monthly pension
SMR Service medical record
SN Service number
SOC Statement of the Case.  A document that VA must prepare and provide to a claimant who has submitted a timely Notice of Disagreement.  The purpose of an SOC is to identify the facts and law VA used to reach the decision(s) with which the claimant disagrees.
SPD Separation program designator
SPN Separation program number
SRD Schedule for Rating Disabilities
SSA Social Security Administration
SSB Special separation benefits
SSDI Social Security Disability Income
SSI Supplemental Security Income
SSN Social Security Number
SSOC Supplemental Statement of the Case
STR Service treatment records
STS Soft tissue sarcoma
TAD Temporary active duty
TBI Traumatic brain injury
TCDD 2,3,7,8-tetrachlorodibenzodioxin
TDIU Total Disability based on Individual Unemployability.  A special rating that considers whether a claimant who does not meet the rating schedule requirements for 100% disability is still unable to work in a substantially gainful occupation.  A TDIU award pays benefits at the 100% scheduler rate even though the actual rating percentage is less than 100%.
TRDL Temporary disabled retirement list
TDY Temporary duty
UCMJ Uniform Code of Military Justice
U.S.C. United States Code
U.S.C.A. United States Code Annotated
U.S.C.S. United States Code Service
USGLI United States Government Life Insurance
USJSRRC United States Joint Service Records Research Center
VA The most commonly used acronym for the Department of Veterans Affairs. 
VACO VA Central Office
VAF VA form
VAGC VA General Counsel
VAHAC VA Health Administration Center
VAMC VA Medical Center
VAOGC VA Office of the General Counsel
VAOIG VA Office of the Inspector General
VAOPC VA outpatient clinic
VAR VA regulation
VARO VA Regional Office
VBA Veterans Benefits Administration
VCAA Veterans Claims Assistance Act
VEAP Post-Vietnam Era Veterans' Educational Assistance Program
Veterans Court Another common name for the United States Court of Appeals for Veterans Claims.  See also CAVC.
VFW Veterans of Foreign Wars
VGLI Veterans' Group Life Insurance
VHA Veterans Health Administration
VISN Veterans Integrated Service Network
VJRA Veterans Judicial Review Act
VLJ Veterans Law Judge.  A member of the Board of Veterans' Appeals who hears appeals from claimants who disagree with a rating decision.
VMLI Veterans' Mortgage Life Insurance
VONAPP Veterans Online Application.  A VA website for electronically applying for VA benefits.  https://www.ebenefits.va.gov/ebenefits-portal/ebenefits.portal?_nfpb=true&_nfxr=false&_pageLabel=Vonapp
VRC Vocational rehabilitation counseling
VSCM Veterans Service Center Manager
VSM Vietnam Service Medal
VSO Veterans service organization
VSR Veterans Service Representative
WRIISC War Related Illness and Injury Center

3. THE HISTORY OF VETERANS BENEFITS

The United States has a long history of assisting its veterans and has one of, if not the, most extensive military veterans benefits systems of any nation in the world. The current VA can trace its roots back to 1636, when the Pilgrims of Plymouth Colony were at war with the Pequot Indians. The Pilgrims enacted a law that committed them to support soldiers disabled in defending the colony.

During the Revolutionary War, the Continental Congress of 1776 encouraged enlistments by authorizing pensions for soldiers who were disabled. Later, individual states and even communities provided medical and hospital care to veterans. In 1811, the first domiciliary and medical facility for veterans was authorized by the federal government. In the later 1800s, federal veterans assistance was expanded to include benefits and pensions not only for veterans, but also for their widows and dependents.

In 1862, the federal government established a system for settling veterans' claims for benefits arising from military service. Following the Civil War, a number of state veterans homes were also established. These facilities provided incidental medical and hospital treatment for all injuries and diseases, whether or not related to service. These homes cared for indigent and disabled veterans of the Civil War, Indian Wars, Spanish-American War, and Mexican Border period, as well as other discharged veterans.

Congress established a new system of veterans benefits when the United States entered World War I in 1917. Programs were created for compensation, insurance, and vocational rehabilitation for the disabled. Following the war, veterans benefits ended up being administered by three different federal agencies: the Veterans Bureau, the Bureau of Pensions, and the National Home for Disabled Volunteer Soldiers. This inefficient and confusing arrangement eventually proved too burdensome to effectively administer.

So, in 1930 Congress established the Veterans Administration to provide services to the veterans of World War I and earlier wars whose pension programs had been administered by sub-agencies in the War Department. The three existing agencies became bureaus within the Veterans Administration. Brigadier General Frank T. Hines, who had directed the Veterans Bureau for seven years, was named as the first Administrator of Veterans Affairs, a job he held until 1945.

The Veterans Administration or "VA" as it was and still is known, remained essentially unchanged in form or function. In 1989, however, Congress passed enabling legislation that transformed the Veterans Administration into the Department of Veterans Affairs and elevated the Secretary of Veterans Affairs (formerly the "Administrator") to a cabinet level officer. The Department or "DVA" as it is sometimes referred to is responsible for almost all federal programs that provide benefits to military veterans.

VA is organized into three "Administrations:" Veterans Benefits Administration ("VBA"), Veterans Health Administration ("VHA"), and National Cemetery Administration ("NCA"). These administrations, in turn, manage the large number of veterans programs funded by Congress each year.

VBA is responsible for providing benefits to veterans and their eligible family members. This includes administering VA's programs that provide financial and other forms of assistance to veterans, their dependents, and survivors. Major benefits include veteran's compensation, veteran's pension, survivor's benefits, rehabilitation and employment assistance, education assistance, home loan guaranties, and life insurance.

VHA is the nation's largest integrated health care system. VHA employs more than 240,000 staff at over 1,400 sites, including hospitals, clinics, nursing homes, domiciliaries, and Readjustment Counseling Centers (Vet Centers). In addition, VHA is the nation's largest provider of graduate medical education and a major contributor to medical research.

The NCA mission is to honor veterans with final resting places in national shrines and with lasting tributes that commemorate their service to our nation. NCA also maintains the VA national cemeteries and administers grants for establishing or expanding state veterans cemeteries.

All of these services and staff make VA the second largest Cabinet-level department in the U.S. government. In recent years the VA budget has well exceeded $100 billion dollars and it employs over 250,000 employees at thousands of VA facilities across the country and in U.S. territories. The Department administers hundreds of programs for veterans, spouses, and dependents in every state and territory.

A description of every VA program is well beyond the scope of this KNOWLEDGE BOOK. A few of the major programs administered by VA with the largest numbers of beneficiaries are described below.

Compensation and Pension Programs

The compensation program provides monthly payments to veterans in recognition of the effects of disabilities, diseases, or injuries incurred or aggravated during active military service. The compensation program also provides monthly payments, as specified by law, to surviving spouses, dependent children and dependent parents in recognition of the economic loss caused by the veteran's death during active military service or, subsequent to discharge from military service, as a result of a service-connected disability.

The purpose of the pension program is to provide monthly payments, as specified by law, to needy wartime veterans who are permanently and totally disabled as a result of disability not related to military service. The pension program also provides monthly payments, as specified by law, to needy surviving spouses and dependent children of deceased wartime veterans.

Educational Assistance Program

In 1944, Congress passed legislation providing college educational assistance payments for returning World War II veterans known as the "GI Bill." Congress has re-authorized educational benefits to cover Korean, Vietnam, Iraqi, Afghanistan, and peacetime-era veterans. VA estimates that more than 21,300,000 veterans and eligible dependents have received approximately $72.8 billion in educational benefits through these programs since 1944. It is estimated that 7,800,000 World War II veterans, 2,400,000 Korean War veterans, 8,200,000 Viet Nam and peacetime veterans, and 730,000 eligible dependents have received educational benefits from these programs.

Medical Care

VA operates over 150 Veterans Affairs Medical Centers ("VAMC"). Each state, the District of Columbia, and Puerto Rico has at least one VAMC within its borders. VA's extensive medical programs include more than 1,300 ambulatory care and community-based outpatient clinics, more than 130 nursing homes, 43 domiciliaries, 206 Veterans centers, and 88 comprehensive home-care programs. The VA medical system is also designed to support the Defense Department during national emergencies and serve as a federal support organization during major disasters.

Vet Centers

VA operates a Readjustment Counseling Service for returning combat veterans. The service provides psychological readjustment counseling and social services to veterans and their families through over 200 community "Vet Centers" located across the country. Vet Centers are intended to aid combat veteran and non-combat veterans who served in time of war or national emergency. Vet Centers also counsel service members who were victims of sexual assault or sexual harassment on active duty. VA reports that Vet Centers have provided assistance to more than 2,000,000 veterans since 1979 and serve over 130,000 veterans annually.

In addition to establishing VA as a full federal Department, in 1989 Congress also opened VA benefits decisions to judicial review for the first time. Until that time, VA decisions were only appealable from the regional office to the Board of Veterans' Appeals. A decision of the Board was final and no court could review it. The reason for this was the characterization (by the government) of the VA benefit system as a "non-adversarial," where VA was supposed to be a "friend of the veteran" who was legally bound to assist the veteran in developing the veteran's claim.

Public dissatisfaction with VA's performance, perceived arbitrary and unexplained decision-making, and lack of responsiveness finally persuaded Congress to create a new court dedicated to reviewing final decisions on veterans claims. Congress also established a path to the "regular" federal courts. What is now known as the Court of Appeals for Veterans Claims began hearing cases in 1989. At the same time, veterans were also first permitted to hire paid attorneys to assist them in appealing denied claims.

4. RESOURCES FOR FURTHER INVESTIGATION

Alvin L. Young Collection On Agent Orange - References for research on Agent Orange issues.


BVA - The Board of Veterans Appeals website.


CMS - The Center for Medicare and Medicaid Services website.


Disability worksheets - Worksheets for VA C&P examinations.


Federal Register - Daily publications of federal agencies, including VA, where proposed new rules are published.


Freedom of Information Act (FOIA) - Guidance of filing a FOIA request.


GAO - Reports of the Government Accountability Office, which is the investigative arm of Congress.


House Committee On Veterans Affairs - The authorizing committee for the Department of Veterans Affairs.


Precedent Opinions of the VA General Counsel - Interpretations of the law by the VA General Counsel that VA employees must follow when deciding benefit matters.


Senate Committee On Veterans Affairs - The Senate committee for all matters relating to veterans


Thomas - Legislative information from the Library of Congress.


Title 38 Code of Federal Regulations - The federal rules governing VA actions


USCAVC - The United States Court of Appeals for Veterans Claims.


VA Forms - Site for VA forms.


VA Handbooks - Information on a wide range of topics.


VA Home Page - Department of Veterans Affairs home page.


VAOIG - Office of the VA Inspector General.


Veterans History Project - First hand accounts of military service told by veterans.


Web Automated Reference Material Systems (WARMS) - The VA's internal guidance manuals.

5. KEY ACTS AND STATUTES

Veterans' Judicial Review Act of 1988 ("VJRA")

Established the Court of Appeals for Veterans Claims (originally named the "Court of Veterans Appeals") and authorized judicial review of VA benefits decisions for the first time.

Veterans Claims Assistance Act of 2000 ("VCAA")

Eliminated the requirement that a claimant must first submit enough evidence to make his or her claim "well grounded" before VA would process a claim and added the requirement for VA to make "reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim" which is the "duty to assist."

Veterans Benefits, Health Care, and Information Technology Act of 2006

For the first time authorized accredited agents and attorneys to charge fees for services after the claimant files a notice of disagreement in a case, rather than after the Board first makes a final decision in the case.

Statutes

38 U.S.C. § 501       "Rules and regulations"

38 U.S.C. § 511       "Decisions of the Secretary; finality"

38 U.S.C. § 1110     "Basic entitlement"

38 U.S.C. § 1111     "Presumption of sound condition"

38 U.S.C. § 1151     "Benefits for persons disabled by treatment or vocational rehabilitation"

38 U.S.C. § 5103     "Notice to claimants of required information and evidence"

38 U.S.C. § 5103A   "Duty to assist claimants"

38 U.S.C. § 5107     "Claimant responsibility; benefit of the doubt"

38 U.S.C. § 5109B   "Expedited treatment of remanded claims"

38 U.S.C. § 5110     "Effective dates"

38 U.S.C. § 5121     "Payment of certain accrued benefits upon death of a beneficiary"

38 U.S.C. § 5121A   "Substitution in case of death of claimant"

38 U.S.C. § 5902     "Recognition of representatives of organizations"

38 U.S.C. § 5904     "Recognition of agents and attorneys"

38 U.S.C. § 7104     "Jurisdiction of the Board"

38 U.S.C. § 7105     "Filing notice of disagreement and appeal"

38 U.S.C. § 7112     "Expedited treatment of remanded claims"

38 U.S.C. § 7252     "Jurisdiction [of the Court]; finality of decisions"

38 U.S.C. § 7261     "Scope of review"

38 U.S.C. § 7266     "Notice of Appeal"

6. KEY VA REGULATIONS

38 C.F.R. § 3.2           "Periods of war"

38 C.F.R. § 3.12         "Character of discharge"

38 C.F.R. § 3.103       "Procedural due process and appellate rights"

38 C.F.R. § 3.104       "Finality of decisions"

38 C.F.R. § 3.151       "Claims for disability benefits"

38 C.F.R. § 3.152       "Claims for death benefits"

38 C.F.R. § 3.155       "Informal claims"

38 C.F.R. § 3.156       "New and material evidence"

38 C.F.R. § 3.159       "Department of Veterans Affairs Assistance in developing claims"

38 C.F.R. § 3.303       "Principles relating to service connection"

38 C.F.R. § 3.304       "Direct service connection; wartime and peacetime"

38 C.F.R. § 3.306       "Aggravation of preservice disability"

38 C.F.R. § 3.307       "Presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents; wartime and service on or after January 1, 1947"

38 C.F.R. § 3.309       "Disease subject to presumptive service connection"

38 C.F.R. § 3.311       "Claims based on exposure to ionizing radiation"

38 C.F.R. § 3.313       "Claims based on service in Vietnam"

38 C.F.R. § 3.317       "Compensation for certain undiagnosed illnesses"

38 C.F.R. § 3.318       "General rating considerations"

38 C.F.R. § 3.340       "Total and permanent total ratings and unemployability"

38 C.F.R. § 3.350       "Special monthly compensation ratings"

38 C.F.R. § 3.400       "[Effective dates] General"

38 C.F.R. § 3.500       "[Reductions and discontinuances] General"

38 C.F.R. § 3.951       "Preservation of disability ratings"

38 C.F.R. § 3.957       "[Protection of] Service connection"

38 C.F.R. § 3.1000     "Entitlement under 38 U.S.C. 5121 to benefits due and unpaid upon death of a beneficiary"

38 C.F.R. § 3.2600     "Review of benefits claims decisions"

38 C.F.R. § 4.25         "Combined ratings table"

38 C.F.R. § 4.40 – 4.150     "Disability ratings" [Ratings schedule]

7. KEY COURT DECISIONS

Bell v. Derwinski, 2 Vet. App. 611 (1992)

Best v. Principi, 15 Vet. App. 18 (2001)

Breedlove v. Shinseki, 24 Vet. App. 7 (2010)

Caluza v. Brown, 7 Vet. App. 498 (1995)

Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)

DeLuca v. Brown, 8 Vet. App. 202 (1995)

Frankel v. Derwinski, 1 Vet. App. 23 (1990)

Freeman v. Shinseki, 24 Vet. App. 404 (2011)

Haas v. Nicholson, 544 Vet. App. 1306 (2008)

Henderson v. Shinseki, 131 S.Ct. 1197 (2011)

Landicho v. Brown, 7 Vet. App. 42 (1994)

Mahl v. Principi, 15 Vet. App. 37 (2001)

Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006)

Military Order of the Purple Heart v. Sec'y of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009)

Breedlove v. Shinseki, 24 Vet. App. 7 (2010)

Nehmer v. U.S. Dep't of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 14, 1991)

Ribaudo v. Nicholson, 21 Vet. App. 16 (2007)

Savage v. Shinseki, 24 Vet. App. 259 (2011)

Vasquez-Flores v. Shinseki, 24 Vet. App. 94 (2010)

8. C&P EXAMINATION WORK SHEETS

Acromegaly

Aid and Attendance or Housebound Examination

Arrhythmias

Arteries, Veins, and Miscellaneous

Audio

Bones (Fractures and Bone Disease)

Brain and Spinal Cord

Chronic Fatigue Syndrome

Cold Injury Protocol Examination

Cranial Nerves

Cushing's Syndrome

Dental and Oral

Diabetes Mellitus

Digestive Conditions, Miscellaneous

Ear Disease

Eating Disorders (Mental Disorders)

Endocrine Diseases, Miscellaneous

Epilepsy and Narcolepsy

Esophagus and Hiatal Hernia

Eye Examination

Feet

Fibromyalgia

General Medical Examination

Genitourinary Examination

Gulf War Guidelines

Gynecological Conditions and Disorders of the Breast

Hand, Thumb, and Fingers

Heart

Hemic Disorders

HIV-Related Illness

Hypertension

Infectious, Immune, and Nutritional Disabilities

Intestines (Large and Small)

Joints (Shoulder, Elbow, Wrist, Hip, Knee, and Ankle)

Liver, Gall Bladder, and Pancreas

Lymphatic Disorders

Mental Disorders (Except Eating Disorders)

Mouth, Lips, and Tongue

Muscles

Neurological Disorders, Miscellaneous

Nose, Sinus, Larynx, and Pharynx

Peripheral Nerves

Post-Traumatic Stress Disorder Initial, Review and Mental Disorders

Prisoner of War Protocol Examination

Pulmonary Tuberculosis and Mycobacterial Diseases

Rectum and Anus

Residuals of Amputations

Respiratory (Obstructive, Restrictive, and Interstitial)

Respiratory Diseases, Miscellaneous

Scars

Sense of Smell and Taste

Skin Diseases (Other than Scars)

Social and Industrial Survey

Spine (Cervical, Thoracic, and Lumbar)

Stomach, Duodenum, and Peritoneal Adhesions

Thyroid and Parathyroid Diseases

Traumatic Brain Injury

Appendix II - Military Records

1. Introduction to Military Records

Former U.S. service members and their family members often need copies of certain military records for a host of reasons such as obtaining benefits from the U.S. Department of Veterans Affairs (VA), seeking employment and genealogy.  Many relatives of former service members, also known as veterans, want copies for:

  • benefits purposes and
  • to learn more about what their relatives did while on active duty.

In addition to military personnel records and medical records veterans and eligible family members can also request a free replacement set of medals and ribbons that were awarded to the veteran. The majority of these records and awards and decorations are available from the National Archives and Record Administration which is frequently referred to as the Archives or NARA.  The Archives is the nation's record keeper.  In an effort to preserve important historical and legal documents the Archives maintains approximately one to two percent of all documents and material created in the normal course of business by the Federal government.  These important documents include military records.

2. Your DD-214

One of the most commonly requested military document from the Archives is a veterans Report of Separation.  The Report of Separation is issued on DD (Department of Defense) Form 214 and is frequently referred to as a DD-214.  A DD-214 is usually issued when a service member performs active duty or at least 90 consecutive days of active duty for training purposes.  If an individual dies while on active duty a DD-214 is not always issued. 

The DD-214 contains a wealth of information including the veterans:

  • Date and place of entry into active service
  • Home address at time of entry
  • Date and place of release from active duty
  • Home address after separation
  • Last duty assignment and rank or rate
  • Military job specialty or rating
  • Military education
  • Decorations, medals, badges, citations, and campaign awards
  • Total credible service
  • Foreign service
  • Separation/Discharge information such as:
    • type of separation,
    • character of service,
    • reason for separation and
    • reenlistment eligibility codes

Who Can Request a DD-214?

There are a number of categories of people who can request a DD-214 from the archives.  The first and primary category is the veteran or if deceased their next of kin.  The next of kin includes the veterans surviving spouse that has not remarried, father, mother, son, daughter, sister or brother.  If you are the next of kin of a deceased veteran you must provide proof of death such as a death certificate, letter from the funeral home or mortuary or a copy of an obituary that was published in a newspaper.

 

3. How Do I Get My DD-214?

A DD-214 can be requested in a number of different ways.  Perhaps the quickest and the easiest is the Archive's eVetRecs online military records request system.   Through this system, located at http://www.archives.gov/veterans/evetrecs/, eligible individuals simply need to follow the on screen instructions. 

The process is relatively simple and straightforward.  There are however two items to bear in mind. 

1. Deleted or Undeleted DD-214?

The first is your choice to request an undeleted or deleted DD-214.  An undeleted version contains all of the information contained on the original DD-214 which was issued at discharge.  In general, an undeleted version is usually required for VA benefit purposes.  If however you were discharged before May 1, 1974 and you are using your DD-214 for non-VA purposes you may want to consider requesting a deleted version. 

The reason for this is because the various military branches used Separation Program Numbers (SPN codes) on DD-214's.  These numbers, or codes, provided information about the veteran such as unsuitability, unfitness, homosexuality, bedwetting and a whole host of damaging information.  During the Vietnam era many codes were erroneously applied.  To make matters worse many employers at the time had copies of the SPN codes and they would often deny veterans employment based on an erroneous SPN code

2. Signing the Application and Sending it by Mail or Fax

The second thing to bear in mind is that once you complete and submit the electronic application you must print off and sign the application and mail it or fax it to the Archives within 30 days.  If your signature is not received within 30 days your request will automatically be deleted from the Archive's request system.  Make sure to make an additional copy for your records as well.

If you do not have internet access you can also make a request by mail or by fax.  Although it is not mandatory it is strongly suggested you make your request on a Standard Form (SF) 180.  A SF 180 is available for download at http://www.archives.gov/research/order/standard-form-180.pdf.  If you are unable to obtain an electronic copy of a SF 180 you can request a copy be mailed to you by mailing your request to:

           National Personnel Records Center
            9700 Page Avenue
            St. Louis, Missouri  63132     

 

The form may also be available from Federal Information Centers, VA facilities and veterans service organizations.

There are two advantages to using the SF 180.  The first is that informs you of what information is required.  The second, and most important, is the SF 180 has a section that lists the fourteen different addresses one of which is where your request should be mailed.  The easy to follow list takes the guess work out of trying to figure out who has the records you are seeking.

If you are told your DD214 was destroyed by fire (see related pages below) or lost you may want to check your local court house.  Many veterans, especially Vietnam-era veterans, registered their DD-214's with their local court house.  This provided safe keeping and allows the veteran to obtain certified copies from the court house.  Just remember you must go to the court house where it was recorded.  If it was recorded in county X county Y will not be able to access the document.

4. Military Record- Understanding Character of Discharge

Separation/Discharge information  is important for eligibility of VA benefits.  Your DD-214 contains the following information:

  • type of separation,
  • character of service,
  • reason for separation and
  • reenlistment eligibility codes

The "Character of your service" determines your eligibility for VA Benefits.    There are 6 types of "discharge of character" listed on military discharges:

1"Honorable"  or "Under honorable conditions"  This type of discharge includes all VA Benefits and is Desired for Employment and security clearances.

2."General under Honorable Conditions":

  • Check line 28 it could state "drug abuse" or "misconduct" 
  • Also check line 26 re-entry code (scale 1-4):
    • Reenlistment codes:                                                                                                                                                                                                   1=acceptable for further service or preferred reenlistment, 2= ineligible for reenlistment / seperated at the convenience of the government, 3=Otherwise eligible for reenlistment except for disqualifying factor/will need a waiver to reenlist and 4= ineligible for future enlistment/nonvaiverable disqualification. 
    • This DD214 can be challenged for upgrade (attorney needed).  No VA Benefits and Possible Hiring Employment Problems.

3."Other than Honorable" (OTH):  Administrative Board decides discharge. No VA Benefits and Possible Hiring Employment Problems

4."Bad Conduct" (BCD): Given only after Court-Martial preceedings No VA Benefits and Possible Hiring Employment Problems

5."Dishonorable" (DD) : Given only after Court-Martial preceedings  No VA Benefits and Possible Employment Hiring Problems

6."Entry Level (ELS) or Non-Characterized "   

  • This type of service is not characterized:
  • Given within first 180 days of an intitial enlistment and
  • Usually for failure to conform, participate, mental health issues, physical issues or other reasons. 
  • No VA Benefits and Possible Employment Hiring Problems

5. Your Military Service Records

In addition to requesting a DD-214 you can also request military service records and official military personnel files (OMPF) from the National Personnel Records Center using the SF-180 or using their web portal.  Military personnel records are essentially the veterans administrative file and usually contain the following information:

  • Enlistment/appointment
  • Duty stations and assignments
  • Training, qualification and performance
  • Awards and medals
  • Disciplinary actions
  • Insurance
  • Emergency data
  • Administrative remarks
  • Separation/discharge/retirement (including DD-214)

For many veterans their OMPF will also contain their military medical records.  This is because the personnel records and the medical records were retired to the Archives at the same time.  This practice changed for most service branches in 1992.  No matter when or where a veteran served it is always recommend that a request specifically state what is sought.  For example if you would like a copy of the personnel record and military medical records specifically state that in your request or check the appropriate box on the online application or SF 180.  With the exception of inpatient military medical records requests for a copy of the OMPF and military medical records are made in the same manner as a request for a DD-214. 

Time and time again the VA will wrongfully deny a claim for compensation because they or the veteran could not locate their military medical records.  Often times this is because the request for military medical records did not specifically request inpatient medical records.  Inpatient medical records are treated differently than outpatient medical records.  This subtle distinction has lost many veterans their well deserved benefits.

Inpatient or Hospital Records

Inpatient records, also referred to as clinical records or hospital inpatient records, are generated when a service member is admitted to a hospital or spends the night in a hospital.  These records are not stored with the veterans other military medical records.  Inpatient records are stored under the name of the treating facility.  As a result any request for inpatient medical records must include the name of the hospital, month of treatment, year of treatment and the veterans name and social security or service number.  These records can also be requested following the previously discussed methods.

The St. Louis Fire

From time to time a veteran, their next of kin or the VA will make a records request to the Archives and they are informed the records were destroyed in a fire.  It is possible a veterans records were destroyed by fire.  On July 12, 1973 a catastrophic fire ravaged the National Personnel Records Center (NPRC).  The fire destroyed between 16 and 18 million military personnel files.  Approximately 80% of Army records for personnel discharged November 1, 1912, to January 1, 1960 were lost.  Additionally 75% of Air Force records for personnel discharged, September 25, 1947, to January 1, 1964 with names alphabetically after Hubbard, James E. were also lost.

If a veteran falls into one of the above categories and are told their records were destroyed by fire it is entirely possible that their records were destroyed.  If however a veteran was still on active duty on July 12, 1973 and they are told their records were destroyed in the fire there is a serious problem.  If they were on active duty during the fire then their records had not yet been retired to the Archives thus they could not have been destroyed in the fire.  Likewise if the veteran served in a branch other than the Army or the Air Force.  All too often we find the VA telling claimants for benefits that their records were destroyed in the fire when their records were not even physically located at the storage location at the time of the fire.

Replacement Medals, Ribbons and Awards

In addition to requesting documents veterans and their next of kin can also request one free set of replacement medals, ribbons and awards.  Although it is not mandatory it is suggested you first obtain a copy of the DD-214.  Reason being is because block number 24 on the DD-214 lists decorations, medals, badges, commendations, citations and campaign ribbons awarded or authorized.  If you can provide the Archives with the DD-214 it makes their search quicker and easier.  It also notifies you what was awarded to the veteran so you can make certain you received everything you are entitled to.  Here again requests for replacement medals, awards and decorations can be made in the same manner discussed above.

 

Appendix III - VA Compensation Tables

1. 2017 Comp Table

Compensation

Veterans Compensation Benefits Rate Tables - Effective 12/1/16

Rates (No Dependents): 10% - 20%

Basic Rates - 10%-100% Combined Degree Only
Effective 12/1/16

Without Children

With Children

30% - 60%

30% - 60%

70% - 100%

70% - 100%

 

10% - 20% (No Dependents)

Percentage

Rate

10%

$133.57

20%

$264.02

 

30% - 60% Without Children

Dependent Status

30%

40%

50%

60%

Veteran Alone

$408.97

$589.12

$838.64

$1,062.27

Veteran with Spouse Only

$456.97

$654.12

$919.64

$1,159.27

Veteran with Spouse & One Parent

$495.97

$706.12

$984.64

$1,237.27

Veteran with Spouse and Two Parents

$534.97

$758.12

$1,049.64

$1,315.27

Veteran with One Parent

$447.97

$641.12

$903.64

$1,140.27

Veteran with Two Parents

$486.97

$693.12

$968.64

$1,218.27

Additional for A/A spouse (see footnote b)

$45.00

$59.00

$74.00

$89.00

 

70% - 100% Without Children

Dependent Status

70%

80%

90%

100%

Veteran Alone

$1,338.71

$1,556.13

$1,748.71

$2,915.55

Veteran with Spouse Only

$1,451.71

$1,686.13

$1,894.71

$3,078.11

Veteran with Spouse and One Parent

$1,542.71

$1,790.13

$2,011.71

$3,208.56

Veteran with Spouse and Two Parents

$1,633.71

$1,894.13

$2,128.71

$3,339.01

Veteran with One Parent

$1,429.71

$1,660.13

$1,865.71

$3,046.00

Veteran with Two Parents

$1,520.71

$1,764.13

$1,982.71

$3,176.45

Additional for A/A spouse (see footnote b)

$105.00

$119.00

$134.00

$149.08

 

30% - 60% With Children

Dependent Status

30%

40%

50%

60%

Veteran with Spouse and Child

$492.97

$702.12

$978.64

$1,230.27

Veteran with Child Only

$440.97

$632.12

$892.64

$1,127.27

Veteran with Spouse, One Parent and Child

$531.97

$754.12

$1,043.64

$1,308.27

Veteran with Spouse, Two Parents and Child

$570.97

$806.12

$1,108.64

$1,386.27

Veteran with One Parent and Child

$479.97

$684.12

$957.64

$1,205.27

Veteran with Two Parents and Child

$518.97

$736.12

$1,022.64

$1,283.27

Add for Each Additional Child Under Age 18

$24.00

$32.00

$40.00

$48.00

Each Additional Schoolchild Over Age 18 (see footnote a)

$78.00

$104.00

$130.00

$156.00

Additional for A/A spouse (see footnote b)

$45.00

$59.00

$74.00

$89.00

 

70% - 100% With Children

Dependent Status

70%

80%

90%

100%

Veteran with Spouse and Child

$1,534.71

$1,781.13

$2,001.71

$3,197.16

Veteran with Child Only

$1,414.71

$1,642.13

$1,845.71

$3,024.27

Veteran with Spouse, One Parent and Child

$1,625.71

$1,885.13

$2,118.71

$3,327.61

Veteran with Spouse, Two Parents and Child

$1,716.71

$1,989.13

$2,235.71

$3,458.06

Veteran with One Parent and Child

$1,505.71

$1,746.13

$1,962.71

$3,154.72

Veteran with Two Parents and Child

$1,596.71

$1,850.13

$2,079.71

$3,285.17

Add for Each Additional Child Under Age 18

$56.00

$64.00

$72.00

$80.76

Each Additional Schoolchild Over Age 18 (see footnote a)

$182.00

$208.00

$234.00

$260.91

Additional for A/A spouse (see footnote b)

$105.00

$119.00

$134.00

$149.08

 

FOOTNOTES:

1.     Rates for each school child are shown separately. They are not included with any other compensation rates. All other entries on this chart reflecting a rate for children show the rate payable for children under 18 or helpless. To find the amount payable to a 70% disabled veteran with a spouse and four children, one of whom is over 18 and attending school, take the 70% rate for a veteran with a spouse and 3 children, $ 1642.71, and add the rate for one school child, $182.00. The total amount payable is $1824.71.

2.     Where the veteran has a spouse who is determined to require A/A, add the figure shown as "additional for A/A spouse" to the amount shown for the proper dependency code. For example, veteran has A/A spouse and 2 minor children and is 70% disabled. Add $105.00, additional for A/A spouse, to the rate for a 70% veteran with dependency code 12, $1,590.71. The total amount payable is $1,695.71.

 

2. 2017 Special Monthly Compensation Table

Special Monthly Compensation   

 Special Monthly Compensation (SMC) Rate Table - Effective 12/1/16

 

SMC

Rate

Payment variation

K

$103.54

Usually added to other rate or paid as the rate when percentage is zero.

Q

$67

Paid in place of a rate.

 

Without Children

With Children

SMC-L through SMC-N

SMC-L through SMC-N

SMC-N 1/2 through SMC-S

SMC-N 1/2 through SMC-S

 

Without Children, SMC-L through SMC-N

Dependent Status

L

L 1/2

M

M 1/2

N

Veteran Alone

$3,627.87

$3,815.41

$4,003.72

$4,278.80

$4,554.51

Veteran with Spouse

$3,790.43

$3,977.97

$4,166.28

$4,441.36

$4,717.07

Veteran with Spouse and One Parent

$3,920.88

$4,108.42

$4,296.73

$4,571.81

$4,847.52

Veteran with Spouse and Two Parents

$4,051.33

$4,238.87

$4,427.18

$4,702.26

$4,977.97

Veteran with One Parent

$3,758.32

$3,945.86

$4,134.17

$4,409.25

$4,684.96

Veteran with Two Parents

$3,888.77

$4,076.31

$4,264.62

$4,539.70

$4,815.41

Additional A/A spouse. See footnote (b)

$149.08

$149.08

$149.08

$149.08

$149.08

 

Without Children, SMC-N 1/2 through SMC-S

Dependent Status

N 1/2

O/P

R.1

R.2/T

S

Veteran Alone

$4,822.42

$5,090.83

$7,274.39

$8,343.91

$3,263.43

Veteran with Spouse

$4,984.98

$5,253.39

$7,436.95

$8,506.47

$3,425.99

Veteran with Spouse and One Parent

$5,115.43

$5,383.84

$7,567.40

$8,636.92

$3,556.44

Veteran with Spouse and Two Parents

$5,245.88

$5,514.29

$7,697.85

$8,767.37

$3,686.89

Veteran with One Parent

$4,952.87

$5,221.28

$7,404.84

$8,474.36

$3,393.88

Veteran with Two Parents

$5,083.32

$5,351.73

$7,535.29

$8,604.81

$3,524.33

Additional A/A spouse. See footnote (b)

$149.08

$149.08

$149.08

$149.08

$149.08

 

With Children, SMC-L through SMC-N

Dependent Status

L

L 1/2

M

M 1/2

N

Veteran with Spouse and One Child

$3,909.48

$4,097.02

$4,285.33

$4,560.41

$4,836.12

Veteran with One Child

$3,736.59

$3,924.13

$4,112.44

$4,387.52

$4,663.23

Veteran with Spouse, One Parent and One Child

$4,039.93

$4,227.47

$4,415.78

$4,690.86

$4,966.57

Veteran with Spouse, Two Parents and One Child

$4,170.38

$4,357.92

$4,546.23

$4,821.31

$5,097.02

Veteran with One Parent and One Child

$3,867.04

$4,054.58

$4,242.89

$4,517.97

$4,793.68

Veteran with Two Parents and One Child

$3,997.49

$4,185.03

$4,373.34

$4,648.42

$4,924.13

Add for Each Additional Child Under Age 18. See footnote

$80.76

$80.76

$80.76

$80.76

$80.76

Each Additional Schoolchild Over Age 18. See footnote (a)

$260.91

$260.91

$260.91

$260.91

$260.91

Additional A/A spouse. See footnote (b)

$149.08

$149.08

$149.08

$149.08

$149.08

 

With Children, SMC-N 1/2 through SMC-S

Dependent Status

N 1/2

O/P

R.1

R.2/T

S

Veteran with Spouse and One Child

$5,104.03

$5,372.44

$7,556.00

$8,625.52

$3,545.04

Veteran with One Child

$4,931.14

$5,199.55

$7,383.11

$8,452.63

$3,372.15

Veteran with Spouse, One Parent and One Child

$5,234.48

$5,502.89

$7,686.45

$8,755.97

$3,675.49 

Veteran with Spouse, Two Parents and One Child

$5,364.93

$5,633.34

$7,816.90

$8,886.42

$3,805.94

Veteran with One Parent and One Child

$5,061.59

$5,330.00

$7,513.56

$8,583.08

$3,502.60

Veteran with Two Parents and One Child

$5,192.04

$5,460.45

$7,644.01

$8,713.53

$3,633.05

Add for Each Additional Child Under Age 18. See footnote

$80.76

$80.76

$80.76

$80.76

$80.76

Each Additional Schoolchild Over Age 18. See footnote (a)

$260.91

$260.91

$260.91

$260.91

$260.91

Additional A/A spouse. See footnote (b)

$149.08

$149.08

$149.08

$149.08

$149.08

 

Footnotes

1.  See footnote a on the DISABILITY COMPENSATION - BASIC RATES chart for an example of how to add a schoolchild.

2.  See footnote b on the DISABILITY COMPENSATION - BASIC RATES chart for an example of how to determine the rate where a spouse is entitled to A/A.

3. 2017 Special Benefit Allowances Rates

 

 

Special Benefit Allowances Rates: 2017

Rate Table

Benefit

Rate

Date Rate Changed

Public Law

Automobile Allowance

20,235.20 once

10-01-16

 

Clothing Allowance

$779.62

12-01-16

 

Medal of Honor Pension

$1,303.51

12-01-16

 

Special Benefit Allowances Rate Table

* The clothing allowance increase, while effective the date of the law, is not payable until the following August 1st. (Example: PL 97-306 effective October 1, 1982, increased the clothing allowance to $327.00. This rate was payable August 1, 1983.)

4. 2017 Dependency and Indemnity Compensation (DIC) Table

 

 Dependency and Indemnity Compensation - Effective 12/1/16

Veteran's Death Was On or After January 1, 1993
Effective 12/1/16
Basic Monthly Rate = $1,257.95 (38 U.S.C. 1311(a)(1))
Additional Allowances:
1. Add $267.12 if at the time of the veteran's death, the veteran was in receipt of or entitled to receive compensation for a service-connected disability rated totally disabling (including a rating based on individual unemployability) for a continuous period of at least 8 years immediately preceding death AND the surviving spouse was married to the veteran for those same 8 years. (38 U.S.C. 1311(a)(2))
2. Add the following allowance for each dependent child under age 18: *
- Effective 12/1/16 $311.64 per child (38 U.S.C. 1311(b))
3. If the surviving spouse is entitled to A&A, add $311.64. (38 U.S.C. 1311(c))
4. If the surviving spouse is entitled to Housebound, add $145.99 (38 U.S.C. 1311(d))
5. If the surviving spouse has one or more children under the age 18 on the award, add the 2-year transitional benefit of $270.00 (NO CHANGE EFFECTIVE 12/01/2016) (38 U.S.C. 1311(f)(4)
**DIC apportionment rates approved by the Under Secretary for Benefits under 38 CFR 3.461(b) will be the additional allowance received for each child.
________________________________________
Veteran's Death Was Before January 1, 1993
Surviving Spouse's Rates
Enlisted Pay Grades
Rates shown are for surviving spouse only.
See Note: e for additional amounts to be added per child.
E-1 f
E-2 f
E-3 a,f
E-4 f
E-5 f
$1,257.95 $1,257.95 $1,257.95 $1,257.95 $1,257.95
E-6 f
E-7 g
E-8 g
E-9 g
E-9 b
$1,257.95 $1,301.44 $1,373.92 $1,432.93 $1,546.82

Warrant Officer Pay Grades
Rates shown are for surviving spouse only.
See Note: e for additional amounts to be added per child.
W-1 g
W-2 g
W-3 g
W-4 g
$1,328.36 $1,381.16 $1,421.54 $1,504.37

Officer Pay Grades
Rates shown are for surviving spouse only.
See Note: e for additional amounts to be added per child.
O-1 g
O-2 g
O-3 g
O-4
$1,328.36 $1,373.92 $1,468.13 $1,556.13
O-5 O-6 O-7 O-8
$1,712.47 $1,930.94 $2,084.16 $2,289.17
O-9 O-10 O-10 c

$2,448.61 $2,685.70 $2,882.42

Children's Rates
If the Surviving Spouse is also Entitled
Additional Separate Award For Each Child Over 18 Rate
School Child: $264.02
Helpless Child: $531.14

If No Surviving Spouse is also Entitled Lump Amount Rate for One
Number of Children Total Payable Each Child Share
1 $531.14 $531.14
2 $764.09 $382.04
3 $997.05 $332.35
4 $1,186.53 $296.63
5 $1,376.01 $275.20
6 $1,565.48 $260.91
7 $1,754.96 $250.71
8 $1,944.44 $243.05
9 $2,133.91 $237.10

*For each helpless child over 18 add $311.64
**For each additional child add $189.48
Footnotes
1. Surviving spouse of Aviation Cadet or other service not covered by this table is paid the DIC rate for enlisted E-3 under 34.
2. Veteran who served as Sgt Major of the Army or Marine Corps, Senior Enlisted Advisor of the Navy, Chief Master Sgt of the Air Force, or Master Chief Petty Officer of the Coast Guard.
3. Veteran who served as Chairman of the Joint Chiefs of Staff, Chief of Staff of the Army or Air Force, Chief of Naval Operations, or Commandant of the Marine Corps.
4. If surviving spouse entitled to A/A, add $311.64; if entitled to HB, add $145.99.
5. Add $311.64 for each child under 18.
6. Add $267.12 if veteran rated totally disabled 8 continuous years prior to death and surviving spouse was married to veteran those same 8 years
7. Base rate is $1,525.07 if vet rated totally disabled 8 continuous years prior to death and surviving spouse was married to vet those same 8 years.

5. 2017 Birth Defect Rates


 Birth Defect Rates - Effective 12/1/16

Spina Bifida and Children of Women Vietnam Veterans Born with Certain Birth Defects Rate Tables

Level I | Level II | Level III

Effective 12-01-2016

Disability Level Rate
Level I $314
Level II $1,075
Level III $1,832

Children of Women Vietnam Veterans Born with Certain Birth Defects (Sec. 401 of PL 106-419)

Effective 12-01-2014

Disability Level Rate
Level I $145
Level II $314
Level III $1,075
Level IV $1,832

 

Appendix IV - VA Pension Tables

1. 2017 Pension Table

Veterans Pension Rate Table – Effective 12/1/16

Veterans Pension Rate Table

Veteran - Alone & With Dependents
Date of Cost-of-Living Increase: 12-01-2016
Increase Factor: .3%
Standard Medicare Deduction: Actual amount will be determined by SSA based on individual income.
Maximum Annual Pension Rate (MAPR) Category Amount

If you are a veteran... Your yearly income must be less than...
Without Spouse or Child $12,907
To be deducted, medical expenses must exceed 5% of MAPR, or, $ 645
With One Dependent $16,902
To be deducted, medical expenses must exceed 5% of MAPR, or, $ 845

Housebound Without Dependents $15,773

Housebound With One Dependent $19,770
A&A Without Dependents $21,531
A&A With One Dependent $25,525
Two Vets Married to Each Other $16,902
Two Vets Married to Each Other One H/B $19,770
Two Vets Married to Each Other Both H/B $22,634
Two Vets Married to Each Other One A/A $25,525
Two Vets Married to Each Other One A/A One H/B $28,385
Two Vets Married to Each Other Both A/A $34,153

Add for Early War Veteran (Mexican Border Period or WW1) to any category above $2,932

Add for Each Additional Child to any category above $2,205
Child Earned Income Exclusion effective: 01-01-2000 $7,200
(38 CFR §3.272 (j)(1))

This link takes you to the full regulation;
scroll down to get the specific citation. 01-01-2001 $7,450

01-01-2002 $7,700
01-01-2003 $7,800
01-01-2004 $7,950
01-01-2005 $8,200
01-01-2006 $8,450
01-01-2007 $8,750
01-01-2008 $8,950
01-01-2009 $9,350
01-01-2012 $9,750
01-01-2013 $10,000
01-01-2014 $10,150
01-01-2015 $10,300
01-01-2016 $10,350
01-01-2017 $10,400

2. 2017 Survivors Pension Table

Survivors Pension Rate Tables - Effective 12/1/16

Improved Death Pension Rate Table

Surviving Spouse/Child(ren) - Alone or With the Other

Date of Cost-of-Living Increase: 12-01-2016
Increase Factor: .3%
Standard Medicare Deduction: Actual amount will be determined by SSA based on individual income.
________________________________________
Maximum Annual Pension Rate (MAPR) Category Amount

MAPR Without Dependent Child $8,656
To be deducted, medical expenses must exceed 5% of MAPR or $ 433

MAPR With One Dependent Child $11,330
To be deducted, medical expenses must exceed 5% of MAPR or $566

Housebound Without Dependents $10,580
Housebound With One Dependent $13,249
A&A Without Dependents $13,836
A&A Without Dependents (SAW Veteran's Surviving Spouse) $14,397
A&A With One Dependent $16,506
A&A With One Dependent (SAW Veteran's Surviving Spouse) $17,006

SBP/MIW Annuity Limitation $8,656
Add for Each Additional Child $2,205

MAPR FOR CHILD ALONE $2,205

Child Earned Income Exclusion effective 1/1/2000 $7,200
(38 CFR §3.272(j)(1)) effective 1/1/2001 $7,450
effective 1/1/2002 $7,700
effective 1/1/2003 $7,800
effective 1/1/2004 $7,950
effective 1/1/2005 $8,200
effective 1/1/2006 $8,450
effective 1/1/2007 $8,750
effective 1/1/2008 $8,950
effective 1/1/2009 $9,350
effective 1/1/2012 $9,750
effective 1/1/2013 $10,000
effective 1/1/2014 $10,150
effective 1/1/2015 $10,300
effective 1/1/2016 $10,350
effective 1/1/2017 $10,400