Title:Service Connected Disability
Author:Josh Penner, Veterans Advocate
Date:March-June 2012
Source:www.vetscvc.com
Part 1: Purpose & Intent
This article is going to be the first of a multiple part series covering all aspects of Service Connected Disability, from premise to appeals - I'll cover a new part of this topic each month. Today, I'm going to cover the purpose and intent of a VA Service Connected Disability.
For many Veterans a Service Connected Disability is the nexus of their experiences with the VA. It is a life changing designation and because of this it often seems the process of obtaining it is life changing as well - perhaps not always for the better. In fact, it can be an incredibly stressful and discouraging process and it is not uncommon for an initial claim to take upwards of a year or more before a decision is made and a subsequent appeal to any part of or the entirety of the VA's decision may easily take two or more additional years.
There are many articles describing how one might go about fixing an appeal to a bad decision, or even in some cases speed it up (we'll discuss this in a later post), but we're going to look at the situation a little different for March. I would like to make sure that everyone reading this text understands going into a VA SCD claim, what their intention was and whether it held merit - for the purposes of the benefit.
So — what is a service connected disability? The title itself is a little misleading perhaps. It invokes that one must have a severely limiting condition in order to qualify. In point of fact, a service connected disability may be something that even a doctor might not see initially. A service connected disability is compensation paid to the Veteran for injuries and/or diseases that may have occurred or been made worse while on active duty or by active military service. In some cases - the Service Connected Disability also pertains to injuries received by the Veteran due to VA medical care.
Key points to remember:
- The presumption is that you went in to the military at 100% or near to it. If you came out less, regardless of cause (other than general entropy due to aging), you probably do have a claim for Service Connected Disability.
- The burden of evidence required is that the injury or illness was more likely than not (50% or greater) caused or aggravated by or due to military service.
And a couple of key points to understand:
- A VA Service Connected Disability - with the exception of Total Disability Individual Unemployability (TDIU) has nothing to do with your ability to work and make a living. It is completely different than Social Security - in that it is a compensation for loss of function, rather than a compensation for inability to work. You can work and collect a Service Connected Disability (except TDIU).
- The ONLY discharge status that will stop you from being able to claim a Service Connected Disability is a Dishonorable Discharge. It is a common myth that an Honorable Discharge is required for this benefit. Though, you may not be able to collect financial remuneration with an Other than Honorable or Bad Conduct Discharge - you will always receive health care relating to the disability upon award of this benefit.
Hopefully - this clears things up a little and brings us all to the same page so that next month we can cover more about eligibility and the process of filing a Service Connected Disability Claim.
In the meantime, if you have any questions, send me an email: Josh@VetsCVC.com.
Part 2: Eligibility
Last month I wrote an article discussing why a Veteran might go about filing for a service connected disability. If you missed it, here is link: part 1. For part two I will be sticking with the service connected disability theme, but adjusting fire a bit - to focus in on eligibility.
The first thing a Veteran should know about their eligibility for this benefit is that it is not a matter of policy, or practice — subject to varying degrees of interpretation. Their eligibility to file for this benefit is codified in Title 38 of the US Code. In other words it's law. This is actually good news for Veterans wanting to access this benefit, as it sets the stage for appeals to unfavorable decisions, a system which has been used extensively in recent years.
Digging in to this law — there are two main things a Veteran is going to want to answer when figuring out their own eligibility to file for service connected disability.
- - Do they have a qualifying condition — an/any (persistent) "illness or injury that was incurred or aggravated during active military service."
- - Did they serve in an honorable manner — or as the law states, were they "terminated through separation or discharge under conditions other than dishonorable."
Taking a look at those criteria, #1 is relatively clear, but #2 is a nightmare of verbiage for Veterans and Veterans advocates both. In fact, this seemingly straightforward statement is why I wanted to dedicate a stand-alone piece solely to eligibility in this series
"...terminated through separation or discharge under conditions other than dishonorable."
So what is a condition other than dishonorable? The issue here is that the language of the law and the language of Veterans discharges are slightly misaligned. One would assume the VA probably always views Honorable and General discharges as issued under conditions other than dishonorable, and oppositely — Dishonorable discharges are most likely always issued under dishonorable conditions. Which leaves a huge hole of ambiguity regarding the small but significant number of Veterans who have Other than Honorable (OTH) or Bad Conduct Discharges (BCD), especially if they have an injury that is otherwise service related.
If you haven't figured it out — the idea of what a condition other than dishonorable is, has not been determined — so if this applies to you, or a Veteran you're working with - it's going to be one of those case-by-case situations. This can be another piece of good news, especially to those Veterans in this grey area (OTH/BCD vs 'dishonorable conditions').
It's clear that not every Veteran is going to be considered eligible for a service connected disability, but if questions about eligibility keep a Veteran from filing — they're never going to receive the compensation they deserve.
The bottom line to this article. If a Veteran has:
- A service related illness or injury
- A discharge other than dishonorable
They should file for a service connected disability, either themselves, or through an intermediary. Both methods I will break down next month in part 3.
In the meantime, if you have any questions, send me an email: Josh@VetsCVC.com.
Part 3: Claim with Assistance
If you've had the chance to follow this newsletter for the last couple months you many remember this is now the third part in a series on Service Connected Disability. Parts one and tow being available here: Part 1 / Part 2. We've now covered why you would consider a Service Connected Disability claim and whether or not you may be eligible. This month's topic is who to turn to for assistance in filing your claim.
By all accounts filing your VA Service Connected Disability claim is a big deal. Minor mistakes, missed mail inaccurate information, inadequate evidence, and more can take what seems like a straightforward claim and muddle it in years of appeals-causing anguish, heartache, undue financial burden and more. This alone is grounds for educating yourself on the different options for assistance in filing your claim.
Some of you, perhaps many of you, will be more than capable and willing to deal with the rigmarole of self-presentation, while others - either by nature or because of your disability will not be best served by spearheading this process on your own. For those that wish/require assistance there are four options:
Option 1: Service Officer -
According to the VA website there are approximately 90 Veterans Service Organizations.
The most popular of these being (in no particular order): the VFW, American Legion,
Disabled American Veterans, (DAV), AMVETS, Military Order of the Purple Heart (MOPH),
etc...
Each of these organizations has VSO representatives that are trained and certified by their organization to assist you in your VA claim. To be quite frank, the quality and availability of service officers varies greatly. Many of them are unpaid volunteers and while they cannot deny assistance to you, they may have difficulty providing the best service possible to your particular claim. Others are fantastically capable, but overworked. A good service officer is worth their weight in gold, but a good service officer that is overwhelmed seems to be the status quo.
If you chose to have a Service Officer represent you, you will then sign a power of attorney (POA) over to the Service Officer and they will begin the process (in coordination with you) of getting your claim filed. Then, if they/you haven't already done so, they will start to gather and submit in support of your claim, supporting evidence (medical records, official military records, buddy statements, historical and legal precedent, and more).
Option 2: Claims Agent -
A VA accredited claims agent is an independent contractor that is not an attorney
(though they may be one), or a service officer (though they may be/been this as
well). To become an accredited claims agent, one must pass a test administered by
the VA requiring extensive knowledge of the laws governing VA benefits, rules, and
regulations. A list of accredited claims agents can be found here.
Many claims agents work for attorneys in a paralegal type role as their subject matter experts on VA claims. Though, there are many who operate independently as well. We'll cover more of their services in the upcoming article concerning Service Connected Disability appeals.
Option 3: Attorney -
Attorneys need to be VA certified in order to practice VA case law. This means the
VA must file the VA Form 21a and be approved by the Office of the General Counsel.
Specific knowledge of 38 C.F.R.
(the law of the claim), as well as procedural knowledge
is variable depending on the attorney and their experience. A list of VA accredited
attorneys can be found here.
The process for using an attorney to represent you is similar to a VSO and a Claims Agent in that it will require you to submit to a POA so that the attorney can build your case and represent you. You should be aware though, that many attorneys will not represent you on an initial Service Connected Disability application as there is no monetary benefit available for them in doing so. We'll cover the attorney option more in the before mentioned future article on appeals to Service Connected Disability denials.
Option 4: Another person -
A person may assist one time in materially assisting Veterans in claiming their
Service Connected Disability. What this means to you — you have the option of working
with another un-affiliated, un-credentialed person to file and process your claim.
Perhaps you know another Veteran that successfully lobbied their own claim, or someone
who is otherwise highly capable that you trust implicitly?
A few key facts to know about your initial claim:
- You can change your representative at any time by filing a new POA with the VA.
- No one is able to charge you for the initial application. Including attorneys or claims agents.
- Anyone not listed above is legally forbidden from providing assistance to you in your claim. Being an attorney or a Veteran is not good enough, accreditation is key (except option 4).
As we wrap up this article though, I want to leave you with clarity of thought. Each of the four options I've detailed to assist you in your claim will in reference to the other three, often describe why you should not use the other three. I would say that the success rates of any of them are not entirely great. This is the time to do a 'gut check' and figure out what it is you really need. Are you best served by working with someone else? Can you deal with difficult people? Do you have someone in your life that you think can assist you better than someone who does this every day? For each of us, the answers to these questions will be different. Thus the help we may need will be just as different.
Next months article will cover the process/procedures for 'going it alone' and filing your own Service Connected Disability claim.
Part 4: Loan Warrior - Filing your own Service Connected Disability Claim
This is the fourth piece (Part 1 - Part 2 - Part 3) in an ongoing collection of articles detailing the 'ins-and-outs' of VA Service Connected Disability (SCD) claims. I've covered various aspects of eligibility and your options for getting assistance with your SCD claim. For those of you who may be your own best advocate (and there are many of you) — In the following paragraphs I will attempt to break down how to approach this process.
To begin, there are two methods for initiating a SCD claim: formal and informal. In fact, the informal method of contacting the VA will be enough to get the ball rolling from here on out (including appeals). Put simply, an informal claim is a brief letter (by you) that you send to the VA (VA-Regional Office near you) stating that you wish to file a claim for Service Connected Disability. The VA will then respond with an acceptance of your claim request and provide you a VA Form 21-526 which you need to fill out in order to formalize your SCD claim. Of course, you can always file the VA Form 21-526 initially and proceed from the beginning with a "formal claim". Either way, formal or informal, any documentation you mail to the VA (VARO) for purposes of SCD claims should be done using Certified Mail with a return receipt.
Another option for filing your claim is to use the online VA application, VONAPP.
Now the VA has your formal claim in hand and your work is to develop your claim to the point the VA can make a decision in your favor. The VA has a "mandate" to assist you in developing your claim — this will take the form of letters that you will receive over the next couple months reminding you to submit any and all evidence supporting your claim. The evidence you're looking for is going to be Doctors or other medical professionals opinions that verify your disability was "likely as not" caused and/or aggravated during or due to your military service. Having a copy of your military records on hand can be very helpful here too — as it may help to piece elements of your claim together in order to create the "Service Connection" that the VA adjudicator is going to be looking for. Moreover, it may assist you in connecting with former comrades for the purpose of buddy statements — to support events or situations not covered in your military records.
*I have a YouTube video, here, showing you step by step how to order your military records.
At some point you are going to receive a notice about a compensation and pension exam (C&P). This is going to be your opportunity to discuss your Service Connected Disability with a VA physician. This is a very important exam and even if it's short notice you should make every effort to make the appointment. Missing this appointment may easily result in a denial of your initial claim — and a frustrating appeal to follow.
Following the C&P exam, is undoubtedly the hardest part of the claim process — waiting. Each VARO is going to have differing processing times, based on local backlog. The typical waiting time for initial applications is upwards of 12-18 months as of the date this article is written. A word of warning here — despite your motivations, if you're considering writing your congressman, Senator, or the VA itself to speed up your claim, this will not speed up your claim — and the more hands your claim has to go through for review or because of the statements you make in your letter, the longer it will likely take to get back to you with a decision. If you do want to do something to help your claim, continue researching and collecting supporting evidence and mailing it, certified, to the VARO for inclusion in your claim.
Now, let me address a couple exceptions to the statements I just made — in certain circumstances, critically ill or terminally ill Veterans may, with the supporting documentation provided and endorsed by a physician, write a letter to the VA requesting prioritization of the SCD claim. Once again, this should be sent via certified mail.
So, there you have it- the application process. On the surface it is pretty straightforward: file a claim, submit supporting evidence, attend C&P exam, wait. Why then are so many claims denied? There's enough controversy on that subject to fill a book. Next month, I won't answer that question, but I will cover what to do when you receive a denial letter to your SCD claim.
