VA Disability Claims Timeline & Process

Dennis
Hi there. Welcome to Legal Squeaks. I’m your host, Dennis VanDerGinst. And before I introduce my guests today and our topic, I’d like to ask you to be sure to subscribe to Legal Squeaks on your favorite podcast platform.

Dennis
It’s free, it’s easy, and we’d be so grateful. You can also check out the video version of this podcast and all of our podcasts by going to Legal Squeaks.com.

Dennis
So my guest today is Eric Bodo, an attorney with VanDerGinst Law. And the topic that we’ll be discussing is Veterans Disability benefits. Part of the mission at our law firm is to help people in the courtroom with respect to injury related matters, and also outside of the courtroom, we we try to focus our attention on helping a number of different groups to which we all owe a debt of gratitude.

Dennis
One of those groups would certainly be active military and military veterans. Veterans are not only deserving of our thanks for their service, but they also deserve the benefits that they earned by virtue of serving their country. But frequently that process, getting those benefits approved and in place is complicated and lengthy, and it’s quite the process. So fortunately, at VanDerGinst Law, we have several attorneys who have become certified to help veterans with those issues. There are other attorneys and other folks throughout the country who can assist with that as well.

Dennis
In our office, primarily, our focus is on assisting veterans in obtaining their service related disability benefits. There’s also a whole other process for getting pension benefits in place and things of that nature. So Eric’s here to discuss those benefits and that process a bit. So, Eric, thanks for being here.

Eric
Thank you, Dennis. Appreciate it.

Dennis
You bet. I want you to just feel free to jump on in. And by the way, those folks who who are checking us out on the video version of this podcast, I am flying my colors today. I’m wearing my Cubs shirt because they have vaulted into a tie for first place in the Central Division. So I have to show, you know, show them my support. So those of you who are listening, that’s what I’m wearing.

Dennis
Those of you who are watching and wondering why that’s what I’m wearing today. I know it’s not very lawyerly of me, but nonetheless, there you have it. So with that caveat, I will let you roll on with the with what you have to say about VA benefits.

Eric
Thank you, Dennis. And just by way of a brief comment, I appreciate your good taste. It’s always helpful, I think, to give people a little bit of an idea how some of the–what the lay of the land might be on these concepts, because the VA is sort of its own little universe and a lot of the legal concepts involved are pretty complicated. So just by way, a brief introduction, I’ll start by setting aside or rather clarifying a very important point, and that is who can make a claim for veterans benefits?

Eric
Well, surprisingly, veterans can do that, but it’s not as obvious as it sounds, even though it’s yes, veterans get the benefits, who qualifies as a qualified veteran is a different issue. So very briefly, 38 U.S. Code § 101 subparagraph two, defines an eligible veteran as a person who served in the military and received a discharge under conditions other than dishonorable discharge. So in other words, to break it down, you have to have seen active service and you have to have had to discharge that was either a general or an honorable discharge.

Eric
So as you can tell, the eligibility for most benefits is based on the nature of the discharge and existence of discharge from active duty. Therefore, it’s important that you keep your discharge paperwork, that’s step one, because you might need that. Now, it can be researched, it can be looked up, but it’s much easier if you have it accessible. So something to keep in mind on that point.

Eric
Also, there is a exception to that rule, and that is there’s a pre-discharge program for disability compensation under certain circumstances for active members of the military. A claim can be filed up to 180 days prior to the known separation date under what’s called the Benefits Delivery at Discharge program, or BDD. So that is sort of an exception to the general concept that you have to be a non-active veteran when you apply for benefits. There’s also something to note, and that is that there’s a system in place for all branches of the service which allows for review of discharge status.

Eric
So even if you were discharged under circumstances other than honorable or general, you can request a review of your discharge status in the hope that you might be upgraded in order to qualify for benefits.

Dennis
Right and it’s–

Eric
So that’s also something to note.

Dennis
Yeah, and I think that’s important to bring up. I’m aware of several situations where that comes up and people are successful in getting their discharge status upgraded and then qualifying for benefits. So I’m glad you pointed that out.

Eric
Sure, sure. And then beyond veterans themselves, of course, qualified family members can also qualify for benefits. And for purposes of today’s podcast, I’m just going to concentrate on disability benefits because of our time limitations. And, of course, there’s a lot of involved concepts. So in addition to veterans, keep in mind that they’re qualified family members can also obtain benefits. And usually that’s in the nature of benefits after the death of the veteran for, for example, benefits that have not yet been paid out.

Eric
With regard to that, of course, the law will provide very specific qualifications for those members. Specifically, it includes the surviving spouse. But of course, there are there are aspects to that as well in terms of the fact that the spouse has to have been married at least one year prior to the date of the death of the veteran or had a child with the veteran. Also children of the veteran, of course, can qualify. You generally have to be under 18 years of age, unmarried.

Eric
But it’s important to know that the children definition includes not only biological but adopted and stepchildren in most cases. Also children from 19 to twenty three years of age and still in school can qualify for benefits as can disabled and dependent adult children. Lastly, and some people don’t realize the surviving parents can also qualify for benefits, so it goes beyond just the spouse and kids.

Dennis
Yeah, and I think it’s important here to also mention, since you mentioned the surviving spouse and the need to to have been married for a year, I believe. Is that correct?

Eric
Correct.

Dennis
That, you know, common law marriages can qualify and that that is in place in certain states. And there are some other exceptions. Where are there are there have been issues I know where it’s been determined that folks who were originally thought not to qualify because they had they either weren’t officially married or they didn’t have the requisite time in the marriage somehow were they were able to still have that adjudicated and qualify.

Dennis
So folks that are that are listening in and wondering, do I qualify as a surviving spouse, given whatever your living arrangements were? And I think that has something to do with it. You know, where you put yourself out as married for that period of time, et cetera. You know, don’t just assume that you don’t qualify, you know, get someone to look at your specific situation to determine whether or not you still may.

Eric
No, absolutely there are often exceptions to every rule. And, of course, what we’re discussing today are generalities for the most part. So–

Dennis
Right.

Eric
That’s something, of course, to keep in mind. And again, it’s a good idea to consult an attorney because there are some exceptions and occasions that might not fit the pattern.

Dennis
Right.

Eric
I think the next issue, I guess, is what is a qualified what is a disability for purposes of the VA? Well, it’s important to note that disability doesn’t include merely the physical, like a physical injury, but it could also include a chronic ailment.

Eric
It can include mental conditions, mental health issues. Some examples would be, for example, of diabetes, pain disorders, eye disorders, gastrointestinal disorders, of course, PTSD is very common, anxiety issues… And any of these that developed before, during or after service, depending on how they linked causally to the service itself.

Dennis
Right.

Eric
So, again, there’s another big issue. What is causally related? Well, that’s that’s I think I think a topic for another time.

Dennis
Yeah, for sure.

Eric
Right. But that that’s what we’re talking about is more than just a simple injury, you know, an isolated event in itself. So if you are a veteran or qualify a family member and there is a disability, the question is, well, what are the what types of benefits might be available?

Eric
Well–

Dennis
Well–Eric, just a moment. Before you get into the types of benefits, I do think, you know, you raise a good point with the examples of ailments that might qualify, and yes, you you have to get into the causation issue to determine whether these ailments were caused by or aggravated by a service related activities. But a lot of folks, I think, again, aren’t aware. Well, you know, diabetes was a good example.

Dennis
You know, a lot of times people aren’t necessarily going to connect that to service as a service related qualifying disability. But there are obviously instances where these conditions, which may have been preexisting, were aggravated by service related activities. So, again, don’t rule out the possibility of exploring the elements that you might be suffering from as being service related or being aggravated by service related activities.

Eric
Exactly. And in terms of the disability compensation, we’re going to kind of explore that. It’ll interconnect with the causation question. So in terms of disability compensation, basically it provides a monthly tax free payment to a veteran who is sick or injured while serving in the military, of course, and to veterans whose service made an existing condition worse, for example, OK.

Dennis
Right.

Eric
And there are essentially three types. The first is: direct service connection claims. OK, so these are–disability is directly related to or caused by service in the military, the military service itself. And the subsidy that has three elements to it.

Eric
First being you have a current disability, whether it be, again, physical or psychological. There is some medical or even in some cases lay evidence of an in-service event, causal event. Plus, the resulting illness or injury, and so you have a medical evidence of a causal nexus between the service and the injury itself, so that’s under the rubric of direct service connection. In other words, the injury or condition is directly related to the service. The second category would be: secondary service connection, meaning that you have a condition resulting from that service connected condition.

Eric
So in other words, you have an injury or an illness caused by your service directly. And there is an event that’s identifiable during the course of service causing this. You then have that condition, which then leads to a subsequent condition. That subsequent condition can also qualify. OK, so it need not be the initial event or the initial injury that was caused. It can be something resulting from that.

Dennis
Right. How good do you have an example of that, Eric?

Eric
Certainly. Well, oftentimes if you have an orthopedic injury, natural musculoskeletal injury, that injury can result in subsequent problems. For example, if you have postural deficits as a result of a fracture or something like that, oftentimes, your posture and your gait are affected, which can then lead to back problems. So something can compound on itself. And that’s exactly what’s recognized here.

Dennis
Yeah. And I think, you know, another good example would be when you do develop a problem, a physical problem, but because of the physical problem, perhaps you develop some emotional or mental issues. PTSD, for instance, you know, you may have a physical component and then develop PTSD as a result of the same activity that caused that that physical problem.

Eric
Sure. Another good example. Absolutely.

Eric
The third category would be: presumptive service related connections, and that’s very limited. It can occur, for example, with use of chemicals like Agent Orange is a good example, historically. If something like that occurs, it’s presumptively related to the military service. Finally, you can also make a claim for disability compensation for non-service related disabilities under certain circumstances. One of the primary one would be, for example, if the disability is caused by the treatment a veteran received at a VA facility.

Eric
So if the VA–if the vet goes in for care at a VA-related service facility and they are injured at that facility during the course of treatment, they then would also have a claim. It’s sort of the VA equivalent of a medical malpractise case.

Dennis
Right.

Eric
Just a little context. Generally. So that’s one–that’s one aspect of non-specifically, not service related, but is sort of an exception to the rule.

Dennis
Mhm.

Eric
Also, if the disability was proximately caused by the veterans participation in a Chapter 31 rehab program, for example, or 1728 work therapy program, again, they can make a claim for that injury and it does not require a showing of negligence.

Eric
Also, these things can be claimed by the spouse who can get the DIC benefits. We’re going to talk about DIC in just a minute. So it’s something to keep in mind. So don’t feel that you’re limited. You know, if it’s not necessarily caused by your service, there are other avenues available and oftentimes people aren’t aware of the bigger picture.

Dennis
Perfect. Exactly.

Eric
All right. From a mechanics standpoint, from a practical standpoint, in terms of making a claim for disability compensation, basically the application process itself is not simple either. But it’s doable, it’s navigable.

Eric
So basically, the first step would generally be to file an Application for Disability Compensation form, or an ADC, an Application for Disability Compensation form form 21526 EZ is generally the avenue, OK? And that’s for occasions where that has never before applied for service collection injury or something like that.

Eric
If you’re reviewing a former claim there’s a whole other form for that, generally you’d mail or fax the application to the VA in Janesville, Wisconsin for our geographic region. Or you can do it online at eBenefits, or you can contact the attorney and the attorney can upload all this information for you, of course, which is one of the advantages of doing that. You can also go to www.Benefits.VA.Gov/compensation/mailingaddresses.asp to get the mailing address if you are not necessarily in the Janesville regulated geographic area.

Eric
Please note that filing an ADC, the Application for Disability Compensation form does not set an effective date for benefits. In order to set up an effective start date for your benefits claim, you’d actually need to file what’s called an Intent to File form before filing the ADC. That would set your start date. Now, if you file an ADC, theoretically you could get retroactive benefit benefits then from the time you file that, the Intent to File form. All right, it’s a little complicated again.

Eric
So again, there’s forms involved, but it’s not that bad. There’s the ADC and then there’s an Intent to File preceding it if you want to preserve your start date at that point.

Dennis
Which you do.

Eric
Which you generally do.

Dennis
Right.

Eric
Now, if you file online, if you file an online application, an ADC online, then it includes the Intent to File. OK, so be aware of that. If you do it online, you file the ADC that way.

Eric
Your start date is right there.

Dennis
Yeah.

Eric
OK, there is some question I’ve heard about fully developed claim versus filing a standard claim for disability. In a fully developed plan, basically, it’s a situation where the veteran themselves obtains their records and documents, which is usually the VA’s job. And if the vet has all the evidence they need to proceed with the claim other than the examination that might be required, they might get a faster decision through the VA, but it’s the VA–

Eric
But see, if the VA needs more, they’re going to have to convert it to a standard claim anyway, in which case you’ll have to go through the rubric anyway. So there is maybe some advantage to a fully developed claim, but it’s a lot more work for the veteran who probably doesn’t have a lot of experience in this. The standard claim is a safer way to go. It makes the VA do the legwork for you. And oftentimes if the fully developed claim isn’t done properly, it’ll convert anyway.

Dennis
Right.

Eric
So that’s something to keep in mind in terms of the evidence you’re going to be looking at…The VA is going to review the service medical records. That’s the primary source of evidence. And they may or may not–most likely would require an exam. So that’s what you’re going to need along with your discharge records and other evidence. For that question, in terms of what you would need to present, you can go to www.benefits.Va.gov/fdc/checklist.asp.

Eric
And that’s a kind of a good resource to kind of get a sense of what it is you you might need. OK, now I think we probably need to have some of these fundamental understanding of disability ratings. OK, so when you make a claim for disability benefits, the VA is going to set a rating after of course, after reviewing all the documentation, after considering the evidence in the case and most likely an examination, they’re going to set your disability rating. Now,

Eric
the VA uses a scale from zero to one hundred percent disability benefits. Any compensation does not start at one, two or three. It starts when you hit 10 percent disability. That’s that’s sort of the door. You have to walk through that door before you get any benefits. Compensation starts at 10 percent. One hundred percent is is what they call regular or permanent and total disability. And current monthly rates for disability vary. So at 10 percent level, you’re looking at around $142.29 a month, currently up to about $3106.04 for one hundred percent per month.

Eric
Now keep in mind, again, that’s tax free money that you’re getting from the VA on a monthly basis. Now, ratings can be either permanent or nonpermanent, so a disability can either be nonpermanent or a permanent condition, non permanent disability ratings are subject to change by the VA and therefore the VA may require an updated exam which is generally referenced or call the compensation and pension exam or C&P exam. That way, they can determine whether or not your condition has in fact improved, warranting a reduced a reduced rating with a non permanent condition.

Eric
They could reduce the rating based on new findings of sustained improvement under ordinary conditions of life. In fact, that’s the wording that’s used “sustained improvement” under conditions of normal life, meaning that the improvement can’t be simply temporary, transitory because a lot of conditions will feel better for a while, but still exist. However, if the VA is going to reduce the rating, changing the actual amount of compensation, then the VA must issue a notice of any proposed reduction and give the vet 60 days to submit evidence and 30 days to request a hearing.

Eric
So if they’re going to change your current disability rating and reduce it, thereby affecting your benefit amount, they have to give you a notice of that. You’re going to be involved in that. You have to be notified. You can present evidence, contrary evidence and have a hearing on the matter. But–

Dennis
Eric?

Eric
Yeah–yeah?

Dennis
Oh, I’m sorry, I didn’t mean to interrupt, but if you have a temporary rating and you feel that the rating is is not accurate because your condition is worsened, I know there’s an appeal process, but does will that be something that the VA will initiate on occasion or is that usually going to be the veteran or their representative? Who’s going to initiate that?

Eric
Yeah, no, generally it’s your best–it’s going to be the veteran or the veterans representative. So it’s in your best interest to be–have someone aware of that. So there’s essentially two processes for that. Well, three. You can appeal, but you can also file a supplemental claim if you have new evidence showing a worsening of the conditions since the last rating. If the last rating is less than a year old and you have new evidence of filing of a supplemental claim would be the route to go.

Eric
The other–the other route to go would be to file for an increased rate, just to simply file for an increased rating. And that’s it. The last rating is over a year old. OK, so those are your options to do that? Absolutely, yeah. Now, in the event of a permanent disability rating, if it’s reasonably certain based on medical evidence that the level of impairment will continue for the rest of the veteran’s life, then generally the condition is going to be qualified as permanent.

Eric
Now, that qualification is often age dependent. So, for example, a younger veteran is going to have a harder time getting a permanency rating than someone who’s older. Now, if this determination is made, then the re-examinations won’t be required, which is different, of course, of the non permanent condition where they will on occasion. They’ll have you reexamined to assess if that rating is still accurate. OK, if you’re one hundred percent rated permanent and total disability rating, well, that should not ever be reduced.

Eric
Now, that brings us to the topic of protected ratings, OK. So you can be rated, you can be rated nonpermanent, permanent, and from anywhere from zero to one hundred percent. Right? We’ve already discussed that. Now at certain points along that scale a rating can become what was called protected, OK. In other words, it can’t be reduced. If you have the same rating for over 20 years, 20 is the magic number when it comes to protected ratings.

Eric
If you have the same disability rating for over 20 years, then it’s considered continuous and for the most part generally can’t be reduced. So, again, that’s something to keep in mind, that the length of time you’re experiencing this condition is, of course, a major factor.

Dennis
Right.

Eric
And we already discussed, I think to some degree, how veterans can increase the rating by appeal, the supplemental plan, and just simply filing for an increased rating.

Eric
So those are the three options there. [coughs] Excuse me. There is another facet to disability benefits, and that is the Total Disability Individual Unemployability rating, or TDIU. This is not a claim in itself is actually a way to kind of supplement your rating under the disability benefit aspect of things. So Total Disability Individual Unemployability essentially means that if service–if you have a service connected disability, which prevents substantial–substantially gainful employment, then you can get compensation benefits at one hundred percent pay rate.

Eric
Even if the com–if the combination of service related disability doesn’t exceed a hundred percent. So in other words, if you have a disability, a qualifying disability, and you’re on the rating scale as a qualified disability–disabled veteran, and that condition or injury prevents you from substantially gainful employment–in other words, you can’t work because of the injury you’re suffering from–then you can get additional compensation benefits through TDIU. It’s a way to supplement.

Eric
It’s not its own claim. It’s part of your disability claim and essentially [coughs] you have to have at least one service connected disability at 60 percent or greater. Or if more than one, then at least one has to be at 40 percent and all combine for over 70 percent, so there’s a lot of statistics here, but you have to have at least one service connected disability at 60 percent or greater or a combination. Number two, you have to be incapable of securing or maintaining substantial or gainful employment due to functional limitations caused by the service connected disability.

Eric
If you have these two, then you may be entitled to TDIU. Excuse me. If not, then still you might get extra scheduler basis TDIU under certain circumstances. There’s an exception there as well. It’s a theory essential to–to increase your your disability rating is what TDIU is. It’s a different theory to get you a higher rating. And so it must be coupled with a claim for increased rating. So in other words, if you’re rating at, you know, 30 percent disability and you meet the requirements of TDIU, you use that in your claim to increase your rate.

Eric
So you bring your claim to an increase your rating, which is one of those three we talked about, ways to do that. Basically, you bring that in the context of your increased rating and because you’re unemployable, in theory, your rating can go up. That’s the idea there.

Eric
All right. Now, keep in mind, these disability, the payments under disability benefits don’t continue after the death of the veteran. However, qualified survivors, as I mentioned earlier, and wife children can be entitled to compensation under what’s called the Disability [sic] and Indemnity Compensation. DIC, OK.

Dennis
You mean the dependency…?

Eric
I’m sorry, I mean the Dependency and Indemnity compensation, DIC. Exactly. So now we move from the veteran themselves to the qualified family members we discussed earlier. OK. So in terms of the DIC, and I’m going to use DIC because it’s a lot easier to say than Dependency and Indemnity. And for those who don’t know, dependency, of course, means a degree of relationship to the deceased that qualifies them legally for benefits in this country.

Dennis
And I guess in the context that we’re all way too familiar–think, think taxes when you think dependents and that–

Eric
Exactly.

Eric
An indemnity just means compensation for something, being covered for something. So in terms of DIC, it’s again for vet survivors as a result of the death of the veteran for the accrued unpaid benefits, for example. OK. And it applies if number one, the veteran died while on active duty or number two, the cause of death is service related. OK. Or three, the vet was entitled to receive disability compensation for a totally disabling condition rated one hundred percent, for 10 years before death.

Eric
And he died of anything. But as long as he was in that disability, that one percent disability category, and died of something completely unrelated, his family members can benefit.

Dennis
Right.

Eric
And what you’re going to use there is the form 21P534 EZ for the spouse and children. And again, we discussed briefly sort of the marriage definition. There’s a different a different form to be filed in the case of parents. So keep that in mind.

Eric
And that’s that’s generally the gist of it. Now, the rate for spouses in terms of the benefits they can receive under DIC is $1,357.16-1,982 per month currently. Children, it varies. So the first child could get $573.20 per month, for the first child, and then it goes down by, by child thereafter. And you can check out www.va.gov/disability/survivor-dic-rates/#surviving-spouse-rates-if-the- .

Eric
I had–that’s a mouthful.

Dennis
Yeah, they’re all writing it down right now.

Eric
I’m sure they are.

Dennis
I’m just going to jump in and just let everybody know if these are things that you aren’t quick on the draw to write down and you need this information. Be sure to reach out and we’ll provide that information directly to you.

Eric
Exactly. And as to DIC claims, you’re going to keep in mind, you need the death certificate for that claim, as well as a doctor’s letter to clarify the form of death, marriage certificate to prove marriage, and not in all cases, but it’s helpful if you have a birth certificate for kids or adoption paperwork to establish the relationships needed. But that’s generally the gist of the disability benefits program, both for veterans and for family members who qualify. There are, of course, a lot of other benefits available through the VA, but I think that probably merits another podcast in itself.

Dennis
I think you’re right and we’ll certainly revisit some of those other benefits. And I appreciate, Eric, appreciate you doing this for us and presenting this information. It’s, I think, vitally important that the folks to whom this is designed to benefit are aware that there are opportunities out there that you might not necessarily consider. You know, as I mentioned throughout your presentation, there are situations that arise where people aren’t even aware that they may have a claim and or they’re just intimidated by the process.

Dennis
A lot of folks will do these things by themselves, but there are attorneys and there are other folks who are certified to assist veterans with this process. So certainly don’t hesitate to reach out. So thanks for that, Eric. I appreciate it.

Eric
No problem at all. Thanks.

Dennis
You bet. And again, I’d like to thank everyone for checking out Legal Squeaks. You can view the video version of this podcast, as I mentioned before, at LegalSqueaks.Com. You can also comment and suggest topics on LegalSqueaks.Com if there are certain legal topics that you’d like to hear us discuss. Also, be sure to check out our other podcast, Uncommon Convos. If you haven’t done so already, we would appreciate it if you’d subscribe to Legal Squeaks and Uncommon Convos on your favorite podcast platform.

Dennis
Be sure to check out Legal Squeaks next week when we discuss another legal or consumer issue that might impact your daily life. In the meantime, have a great day. Stay safe. And I love you all.