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How to get started with a VA compensation claim
There are no tricks, no secrets, no mysteries, no enigmas nor conundrums when you deal with the Veterans Benefits Administration (VBA). The Veteran who wrote the above note to me took control of his claim and was awarded the benefits he deserved. He played by the VBA rules. It really is just that simple. Once you begin to grasp the methods of the Department of Veterans Affairs process to obtain a deserved disability benefits award, the logic is plain to see. Mr. Spock would approve.
Let's review a basic principle of the VBA disability claims process.
The foundation of your claim must be firm. You must be eligible to receive benefits by being a Veteran with an other than dishonorable discharge and proof of your service. The DD 214 that you were told to safeguard is the document you need. You must have a disability. That disability must have been caused by or aggravated by your service. The physical ailment you have, whether an illness or an injury is referred to as a "condition" by VBA.
You must have proof of the condition you will claim as a disability. A reader who is claiming that his Hepatitis C is service connected recently wrote me to say, "We all know how I got the disease. It was from those shots with the air guns." No, we don't all know that. Just because you say it doesn't make it a fact. You must prove everything you claim. More about evidentiary requirements another day.
The first document you submit to the VBA is the most important. Documents submitted later become less meaningful in a geometric progression.
In that first document, whether you write a simple letter to VBA stating your claim or whether you use the VA forms or even go the on-line route, it must be as close to perfection as you can get it. Your personal information must be complete and correct. You must be very clear in spelling out the disability benefit you request and why you are requesting it.
If you write a letter rather than using the usual VBA forms, you should be as brief as possible while including all relevant information. That letter should be formatted to closely resemble the documents that VBA provides.
Forms are here http://www.va.gov/vaforms/
On line applications are here http://vabenefits.vba.va.gov/vonapp/main.asp
Rather than typing out a formal letter, you may submit the form 21-526 to apply
http://www.vba.va.gov/pubs/forms/21-526.pdf
and then write a Statement in Support of Claim on a VA Form 21-4138 that you will find here
http://www.vba.va.gov/pubs/forms/vba-21-4138.pdf
Whether you use forms or write a letter, you should stick to only speaking of your disability. Don't discuss the health of your dependents or any financial circumstances that are driving you to apply for benefits. VBA awards benefits for one reason...that you earned them and qualify for them.
Being precise at this point of your claim is so important that a even small error now may result in years of delays.
If you tell VBA; "I injured my leg in Nam and it hurts and I need some benefits. I also have erectile dysfunction, probably PTSD and high blood pressure.", you may eventually get something, you may not.
If you tell VBA; "I was hit by shrapnel on the afternoon of August 15th 1968 while on patrol with my unit while serving in Vietnam. My lower left leg received a large cut directly above my ankle exposing the bone. I was evacuated and treated at a field hospital and soon evacuated to the states. My wound became infected requiring 6 subsequent surgeries and numerous skin grafts. I am enclosing copies of all medical records that I have available. Today I have significant pain, scarring and skin contractures at the site of the wound. I have lost most of the motion in the left foot. I walk with a pronounced limp and must use a cane. I have numerous scars on both thighs and buttocks that are very sensitive where skin grafts were harvested. I have a chronic back ache that I believe is caused by my limp. My left arm has become very painful at the shoulder and elbow and wrist due to the use of the cane. I have developed 2 "trigger fingers" on my left hand because of using the cane. I have been prescribed pain medication that has left me nauseous, short of breath, weak and dizzy. I request that you award me a combined disability rating of not less than 70% disabled. I also request that you award my rating as being Permanent and Total (P&T) with no future examinations scheduled. I request that you assist me in developing my claim by retrieving all available pertinent records and copying those records to me."
The verbiage in the first example is open ended and leaves all decisions up to the rater who interprets your claim. He may look at your file, note that you use a cane and assign you a 10% rating. You'll probably be denied any compensation for ED and hypertension or PTSD.
In the second example the rater is pointed toward understanding that your lower left leg condition causes you significant disability due to pain, scarring and loss of motion. That becomes the primary service connected condition. The back ache, leg and buttocks scarring, hand, elbow and shoulder conditions will be viewed as secondary conditions to the primary condition. Symptoms such as negative side effects of medicines associated with treatment of either primary or secondary conditions will be taken into consideration. In this letter you have remained focused on the condition that is most likely going to result in an award. Once that decision is resolved in your favor, those secondary conditions are more likely to also be awarded a rating.
You didn't actually have to do any calculations on your own to know that you wanted 70% as your rating. You claimed that number because you know that a combined rating of 70% (or a single condition of 60%) is a threshold to achieve 100% Individual Unemployability (IU) should you need it in the future. By stating what you want, the rater is quietly persuaded that he has a goal that will make you a satisfied Vet if he can achieve it for you. In other words, you've told him that if you get 70%, you aren't appealing anything...good news all around.
You've been specific that you wish P&T "...with no future exams scheduled...". This is most important at the 100% level whether it is a schedular rating or an IU rating. When you receive your award letter, there will be included a phrase that you should read carefully. If your letter says "...100% disabled with no future examinations scheduled...", this means that VBA does not expect that there is likely to be any meaningful or significant improvement in your condition even with ongoing treatment. To be P&T with no future examinations allows your dependents to be eligible to apply for CHAMPVA health insurance and Chapter 35 Dependents Educational Allowance (DEA). You'll also find state benefits such as a Disabled Veterans license plate and registration, fishing and hunting licenses and even drivers licenses all at no cost to you. If you are near a military base you'll be able to apply for an ID card that will allow you and your dependents to shop at the BX and commissary.
The initial request for "P&T with no future examinations" becomes critical if you have been diagnosed with any of the Agent Orange presumptive cancers.
Our American way of modern medicine has given us many blessings. Today, many cancers are almost more of an inconvenience than they are fatal. We successfully treat prostate cancer, breast cancer, testicular cancer and even lung and colon cancers when they are detected early.
We've become so successful in treating cancer that the VBA defaults almost every time to your cancer being a "temporary" condition rather than P&T.
For example; If you're a Vietnam Veteran and you have been diagnosed with lung cancer, your condition is "presumptive" to have been caused by your Agent Orange exposure and is approved for a service connected rating of 100% disabled. When you filed your claim, did you remember to tell VBA that you requested that you be rated as "P&T with no future exams"? Did you provide any documentation from a health care provider that said that you were more likely than not going to die from this lung cancer condition?
Go back and read your award letter carefully. If you didn't tell VBA precisely what you wanted, you may see that you are "...scheduled for future examinations...". The VBA has just told you that your condition is expected to improve and you're going to do just fine even if your lung cancer has been diagnosed as stage 4.
VBA also just told you that your dependents aren't eligible for CHAMPVA health insurance benefits and your college bound kids ages 18 to 26 won't be seeing the nearly $900.00 each month that they each could collect with Chapter 35 DEA. The BX, commissary and those licenses are all off limits too. As a final blow, if you aren't rated as 100% P&T and you die from any cause other than your service connected condition, your spouse isn't eligible to receive Dependents Indemnity Compensation (DIC) benefits.
OK...your initial application wasn't perfect and now you want to correct it. What next?
You appeal. Appeals are notoriously contentious and take a lot of time. Old evidence won't be reconsidered. You must provide "New & Material" evidence. Maybe you retain an attorney who will do the appeal but in doing the work for you, he'll be paid out of any award you may receive. Your appeal may be sent to the Board of Veterans Appeals (BVA) where it gets in line with thousands of others. The BVA looks it over and remands (returns it) back to your original Veterans Affairs Regional Office for rework. Your VARO puts it in line with thousands of others there and in a couple of years they reach the same conclusion and your remanded appeal is denied. You return to the BVA and that line is now longer.
It's a lot easier on you (and the VBA) to get it done right the first time.
Submit your application for benefits with all the required correct information, state your claims clearly and in plain English, don't try to use lawyer-speak and quote rules to the VBA. Make sure it's all legible and provide as much evidence as you can get your hands on right then or very soon after. Only use registered mail, return receipt requested for everything you send to VBA. Don't fax it. I read some experts who will tell you a fax is best because it provides you with a record. It may also be the worst copy in the world on the other end, smeared and smudged beyond comprehension. The VBA fax lines are always busy and it's often painful to try to get through. Registered mail is the most cost effective and reliable way to get the task done.
Who should do all this hard work when submitting an initial claim for disability benefits? Should you do it yourself, use a Veterans Service Officer (VSO) or hire a lawyer?
The rule that applies here more than any other is: Nobody will care about your claim as much as you do.
You can't retain a lawyer for the initial application process unless he'll work for free. Somehow that doesn't look right does it? That sentence has the words "lawyer" and "free" in it and we know better than that. Just kidding, I love my lawyer buddies. They have to get paid too. The truth is that until you are at an appeals stage you must DIY or use a VSO.
I'm not a supporter of the VSO system unless you're a Veteran who can't read and write or your comprehension of the American English written word isn't very good. If you managed to find this article using your computer, you're probably going to be able to do as good a job as any VSO.
If you insisted on a VSO I would only recommend that you went to a county or state employee VSO.
Here's why...
The Veterans Service Officer (VSO), usually a member of a Veterans Service Organization (VSO) is poorly equipped to help you. With the exception of the County VSO (CVSO), all too often, these guys are well intentioned good ol' boy volunteers who put in maybe 8 or 10 hours each week. If they are employed, such as a DAV VSO might be at a Regional Office, their case load may be in the thousands per VSO employee.
The VSO is not a part of the VA system although many will try to impress you that they are. I'm always amazed at how many Veterans write to me and tell me they assumed that they had to work with VBA through an intermediary VSO when in fact, VBA is designed for use by the Veteran without any representation. The VSO is an intermediary between you and the VBA. The VSO, particularly the hometown volunteer, has no authority to make anything at all happen at VBA.
To become certified to represent you to the VA, a VSO must pass a test that is 25 questions, some multiple choice, some true and false. He is given 90 minutes for that. Many VSO's who work for a VSO (confused yet?) never take a test at all as they are "rubber-stamped" by their parent organization. The VA has been harshly criticized for the sorry state of the VSO system by the GAO but no changes have been made.
The VSO has little or no accountability for the quality of their work. They aren't licensed like lawyers and there is no national standard.
In 2005 the Knight-Ridder News Services published an article highly critical of the VSO system. In the article (which has mysteriously disappeared from the Internet) the authors tell us that; "Many veterans' cases go bad even before they file claims.
Applying for disability benefits requires veterans to navigate a labyrinth of bureaucratic rules and unforgiving deadlines. It can require the skill of an investigator and the mind of a physician.
That's why national veterans groups have for decades provided free help. About 40 veterans service organizations, such as the American Legion and Disabled American Veterans, are authorized to handle VA claims, as are many states.
But Knight Ridder found that the network of VA-accredited service officers is a patchwork of well-meaning helpers whose training and expertise vary widely.
Two-thirds of the veterans who submit claims use service officers, and picking the right one can determine whether they get the full payment they're due, a fraction of it or nothing.
The VA, through its national accreditation program, is supposed to ensure that all service officers are "responsible" and "qualified." But the VA program does little more than rubberstamp names submitted by veterans groups. About 11,000 service officers are currently on the VA's roster - about 80 percent are accredited through nonprofit groups."
The system was built up decades ago to help returning Vets complete their paperwork. The VSO today does just that. He completes your paper for you, sends it to VA and is done with it. He has no meaningful contact with VA and no influence in any decisions. From the moment your paper goes to VA, as anything develops, they notify you first and copy him.
In my opinion, in the initial stage of your disability benefits application, you're much better off in a Do It Yourself mode.
The VA is very responsive (such as it is) to the Vet who writes to them in plain English. I've even been told by a VA Insider that a rater may be more lenient if he realizes that he's dealing directly with the Veteran. The Vet isn't expected to know all the laws and can be given some slack for his spelling or grammatical errors.
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