1. An introduction to VA disability benefits
5/6/2011
An introduction to VA disability benefits
Unruh Law, P.C.
100 Pine Street, Suite 1250
San Francisco, CA 94111

2. About Me
B.A. from the University of California, Berkeley with a major in Art History, in 2001.
J.D. from the The Ohio State University in 2006.
Fellowship at the Legal Aid Society of Hawaii, Honolulu from 2006 to 2007, representing low-income public housing tenants in eviction proceedings.
Worked as a Staff Attorney and Pro Bono Coordinator at Swords to Plowshares, a Veterans Service Organization, from 2007 to 2013, where I represented veterans applying for disability benefits from the Department of Veterans Affairs (VA).
Opened my own practice in 2012 focusing on representing disabled individuals seeking employer sponsored disability benefits from private insurance companies and local, state and federal governments. I also handle bad faith cases related to individual disability policies, and I continue to represent veterans seeking benefits from the VA.
Recovered over $1,000,000 in unpaid benefits on behalf of clients.

3. What is the Department of Veterans Affairs?
5/6/2011
Veterans Health Administration (VHA)
Veterans Benefits Administration (VBA)
National Cemetery Administration
Veterans Administration changed to US Dep’t of Veterans Affairs.
VHA provides the care – medical centers (153), community-based outpatient clinics, community living ctrs (nursing homes), domiciliaries, vet centers.
VBA makes the decisions – they create the rules & regulations, and decide who gets benefits (when/how/how much/etc.).

4. VA Benefits Pension Compensation
5/6/2011
VA Benefits
Pension
Not service-connected
Means tested
Compensation
Service connected
Not means tested
Benefits for Dependents (DIC and Survivors Pension)
Health Care
Education and Training
Home Loan Guaranty
Life Insurance
Burial and Memorial Services

5. Basic eligibility: “Veteran” status
5/6/2011
Basic eligibility: “Veteran” status
Federal: Army, Navy, Air Force, Marines, Coast Guard. National Guard only if federalized.
Active: Reserve only if mobilized.
Honorable service:
“A person who has served in the active military, naval or air service, and who was discharged under conditions other than dishonorable.” (38 USC § 101, 38 CFR § 3.12(a, d), emphasis added.)
No statutory bars: 38 CFR § 3.12(b, c)
Conscientious objector, general court martial, deserter, AWOL > 180 days unless mitigated
Armed Forces are Army, Navy, Marines, Air Force, Coast Guard and their reserve branches
Explain discharges: “Conditions other than dishonorable” means Honorable or General/under hon conditions. We’ll get into that more later.

6. VA Character of Discharge evaluation
“Discharged or released under conditions other than dishonorable.” 38 USC § 101(2)
Characters of service: 
Honorable
General (under honorable conditions)
Other than Honorable or Undesirable
Bad Conduct
Dishonorable
Uncharacterized

7. Pension: Eligibility “Veteran” status. Time in service: Prior to 1980:
90 days
Since September 1980
At least 24 continuous months, or
Completion of time ordered to active duty, or
Compensable service-connected disability.
Disabled:
Permanently disabled for any reason (SSI usually sufficient), or
At least 65 years old.
Low-income: monthly income under $1,097 (current pension rate as of 12/01/17); assets under ~ $70k. Income can be offset by some expenses, and some exempt assets.
Wartime service: At least one day during a declared wartime.

8. Pension Wartime Periods Wartime period Start End World War II
December 7, 1941
December 31, 1946
Korean Conflict
June 27, 1950
January 31, 1955
Vietnam Era
August 5, 1964
May 7, 1975
Vietnam Era if in theater
February 8, 1961
Persian Gulf War
August 2, 1990

9. Compensation
38 USC §§ 1110, 1131
Compensate reduction in earning capacity caused by military service.
Awarded on percentage basis, 0% – 100% in 10% increments.
Not each disability is ratable at each increment.
Monthly payments.
Tax free.

10. Compensation: Eligibility
“Veteran” status. No time in service requirements.
Service connection: current disability incurred or aggravated during service.
Rating: evaluation of present impairment.

11. Compensation: Service connection
To have a viable claim for service connected disability compensation you need the following three elements:
An in-service event, injury, or diagnosis; plus a
current disease or disability; and a
nexus between the two.

12. Compensation: In-service injury or illness
5/6/2011
Compensation: In-service injury or illness
Incurred in or aggravated during military service. As shown by:
Lay evidence of event, corroborated by objective evidence. Special standards for events in combat and for PTSD. 38 CFR § (d, f)
Medical evidence of illness during service.
Medical evidence of illness during a presumptive period CFR § § , 3.309
Presumption of soundness.
Not a result of willful misconduct. 38 CFR § 3.301
Read slide
The injury does not have to have been a result of combat or even work-related. Injury while playing football while in service can be service-connected.
The condition did not exist prior to service or it did exist but it was
“aggravated by” service = worsening was NOT due to “natural progression of the condition.”
Certain illnesses will be considered to have begun in service for VA purposes if they occur within a set time period after discharge e.g. if a veteran develops psychosis within one year of service it is presumed to have started during service
Willful misconduct – injury from getting in a bar fight

13. Compensation: Current disability
5/6/2011
Compensation: Current disability
Current diagnosis
Use DSM-V for mental disability
Non-compensable:
Personality disorders
Adjustment disorders
Current Disability: evidence (usually medical) that veteran currently suffers from a disability
3. Nexus: evidence of a link between the current disability and incident
Proving Nexus:
Directly by proving there is a medical link b/w the present condition and the in service condition. The type of evidence varies based on the condition. In the case of a chronic condition, it may be apparent due to the nature of the condition that it has existed continuously since service—contracted HIV in service, currently have HIV. Obviously, the two are connected because the illness is chronic, does not go away.
evidence of continuity: sought medical treatment shortly after service and has been going to the doctor regularly ever since to have the knee looked at and records are provided to the VBA or medical opinion linking the condition to service, e.g. had knee surgery in service, now has knee problems, need a medical opinion that the current knee problem is connected to in service problem and/or
Secondarily: condition is proximately the result of or linked to service connected condition
Example: veteran has service connected diabetes, develops peripheral neuropathy (nerve pain and numbness) due to diabetes, the peripheral neuropathy is service connected as secondary to diabetes
Already have a service connected disability, and then a new disability emerges from the original disability (can receive a rating for both and combine the two ratings)
Presumptive: Vietnam veterans who were on the ground in Vietnam are assumed to have been exposed to Agent Orange. Agent Orange is known to cause a number of cancers and illnesses. If the veteran is a Vietnam vet who develops one of the conditions the VA recognizes it as resulting from Agent Orange exposure, there is a presumed connection.
Two of the most common Agent orange presumptive conditions: diabetes / prostate cancer

14. Compensation: “Nexus”
Causal relationship between in-service injury and present disability.
Theories of service connection:
“Direct”
Typically requires continuity of treatment.
“Chronic” = permanent. Does not require continuity of treatment.
“Presumptive” No nexus required. 38 CFR § §
“Secondary.” Condition is a result of another condition that is already service-connected. May include substance abuse for mental health disabilities.
“1151.” Disability due to VA malpractice. 39 USC § 1151
Competent evidence. Must be medical opinion. May use treatise evidence, but not given much weight.
Standard. “At least as likely as not” (50% or greater).

15. Compensation Rates (as of 12/01/17)
Rating
Compensation
10%
$136.24
20%
$269.30
30%
$417.15
40%
$600.90
50%
$855.41
Rating
Compensation
60%
$1,083.52
70%
$1,365.48
80%
$1,587.25
90%
$1,783.68
100%
$2,973.86

16. Compensation Rates Criteria. Duration. Can be temporary or permanent
Measures functional loss
Based on schedule 38 CFR § 4.40 et seq.
Duration. Can be temporary or permanent
Combining ratings.
Consider it like a discount on a discount. 38 CFR § 4.25
No “pyramiding.” 38 CFR § 4.14
Supplements
Total Disability for Individual Unemployability (TDIU). If one disability is rated 60%, or multiples add up to 70%, then may increase to 100% if combination of disabilities allows no or marginal employment. 38 CFR § , VA Form
Special Monthly Compensation.

17. Benefits for Dependents
Dependency and Indemnity Compensation (DIC)
Monthly benefit paid to eligible survivors.
Service member who died on active duty.
Veteran whose death resulted from a service connected condition.
Veteran whose death did not result from a service connected condition, but who was had been receiving disability compensation and rated “totally and disabled” for the 10 years immediately before death.
Survivors Pension (“Death Pension”)
Monthly benefit for low-income unremarried surviving spouse and/or unmarried child(ren) of veteran with wartime service.
Current maximum rate of $735 per month.
Please note, this list is not exhaustive, so please check the regulations if contacted by a dependent.

18. How to make a claim?
Original. (VA Form for Pension or Compensation)
Fully Developed Claim. (VA Form EZ)
Reopened. Requires new and material evidence.
CUE “Clear and unmistakable error”.
a legal error in the original decision that determined an unfavorable outcome. May mean benefits are retroactive to the date of original claim.

19. Administrative Appeals
Notice of disagreement
Within 1 year of decision.
State basis for disagreement. Include additional evidence or argument.
DRO review and hearing are optional.
Statement of the Case (SOC)
Outline of issues, law and evidence.
Notice of Right to Appeal.
VA Form 9 “Appeal to Board of Veterans Appeals”.
BVA hearing
Single judge.
Usually results in a remand to the Regional Office.
If an unfavorable decision at the BVA level, an appeal is made to the Court of Appeals for Veterans Claims (CAVC), which removes the claim out of the VA Administrative System.

20. Overview Claims Process
Initial claim
Informal claim
Formal Claim (1 year deadline)
Compensation and Pension (C&P) Exam
Rating Decision
Regional Office appeal
Notice of Disagreement (1 year deadline)
Decision Review Officer (RDO) review. De novo. Optional. With hearing if requested.
Statement of the Case (SOC)
Supplementary Statement of the Case (SSOC)
Board for Veterans Appeals (BVA)
Form 9 (60 day deadline)
BVA hearing: in person or teleconference. De novo.
Decision, usually with remand.
Judicial review
Court of Appeal for Veterans’ Claims (CAVC) (120 day deadline)
Federal Circuit
SCOTUS

21. Tips and pointers
Dates matter! Be sure to maintain confirmation dates of all documents submitted to the VA. The VA will misplace or lose a document you have submitted.
Until you reach the BVA level, your audience is a lay person with no legal training. Write accordingly and keep it simple.
Sources of authority:
38 CFR
BVA and CAVC case law
M21-1MR manual
Check before filing if a specific form is necessary and use the most current version of any form you submit.
Rely on the Disability Benefits Questionnaires (DBQ).
Veterans Benefits Manual is an essential tool, published annually by LexisNexis and available at the San Francisco Law Library.

22. Representation of Vets: Accreditation and Fees.
To assist a veteran with a claim for benefits, you must be accredited by the VA. See 38 C.F.R. § , et seq.
There is no cost, but there is an application process and continuing education requirements.
Fees are allowed, but only after a Notice of Disagreement has been filed.
A 20% contingency fee is presumed to be reasonable. A fee in excess of 20% will be more closely scrutinized by the VA.
File your Fee Agreement with the VA so the VA withholds your payment.

23. 5/6/2011
Questions?