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What Veterans Should Know About the Difference Between the Higher-Level Review Lane and the Supplemental Claim Lane

The difference between the Higher-Level Review lane and the Supplemental Claim lane is who reviews your appeal and whether you can submit new evidence.

THE HIGHER-LEVEL REVIEW LANE

In RAMP’s (the Rapid Appeals Modernization Program) Higher-Level Review Lane, you send your appeal for review by a more senior VA official than the person who initially reviewed your claim. The senior reviewer can overturn a decision, return a decision for a correction, or confirm the previous decision. This review is done based on the evidence of record.

THE SUPPLEMENTAL CLAIM LANE

In the Supplemental Claim lane, a rating specialist will review your appeal and any additional evidence you submit and determine whether to grant or deny your claim. Veterans who choose this lane will be able to include additional information with their appeal.

In this lane, VA has a “duty to assist” veterans in obtaining the evidence they need to support their claim.

ARE THERE ANY OTHER OPTIONS IN RAMP?

Not at this time. Once the new Appeals Reform system is fully implemented, there will be a third appeal lane- the Notice of Disagreement Lane (Board Lane).  This lane allows you to appeal your case directly to the Board. However, this lane is not available to RAMP participants until October 2018 at the earliest.

CAN I CHANGE LANES IF I CHOOSE THE WRONG ONE?

Yes, but not immediately. If you file your appeal in one lane but realize you chose the incorrect one, you must wait until you receive a decision in that lane before you can opt in to a different lane. For example, say you chose the Higher-Level Review lane but realize that the issue stemmed from a lack of evidence establishing service connection. You would need to wait until a decision is made on your appeal in the Higher-Level Review Lane before moving your appeal to the Supplemental Claim lane.

AM I ELIGIBLE TO JOIN RAMP?

When VA first rolled out RAMP at the end of 2017, it limited access to the program by only inviting a set number of veterans to participate in the program each month. Those who wanted to switch from the “Legacy” (current) system to RAMP had to wait to receive a letter inviting them to participate.

However, due to a low number of veterans actually opting in to the program, in April 2018, VA opened RAMP to all veterans with pending appeals (i.e., you submitted a VA Form 9, you filed a Notice of Disagreement, the Board remanded your appeal, or the Board certified your appeal but it has not yet been activated for a decision). That means you can join even if you did not receive a letter inviting you to opt in.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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How VA Evaluates 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.

Allowable Deductions from Countable Income for VA Pension

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.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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How Military Sexual Trauma is Handled During VA Disbailities Claims

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.

DOWNLOAD MST BROCHURE: military-sexual-trauma-mst-brochure-for-veterans

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veteran Should Know About 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.

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.

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 combinedpressure 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 fromblast 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.

Polytrauma Points of Contact (PPOC)
VISN Facility/Health Care System Contact Information
1. Louis A. Johnson VAMC- Clarksburg, WV (304) 623-3461
2. Beckley VA Medical Center, WV (304) 255-2121
3. Asheville VA Medical Center- Asheville NC (828) 298-7911
4. Fayetteville VA Medical Center- Fayetteville, NC (910) 488-2120
5. Carl Vinson VA Medical Center- Dublin, GA (334) 727-0550
6. Central Alabama Veterans Health Care System: East Campus- Tuskegee, AL (478) 272-1210
7. Columbus Outpatient Clinic- Columbus, OH (614) 257-5327
8. Chillicothe VA Medical Center- Chillicothe, OH (740) 773-1141
9. VA Northern Indiana Health Care System- Marion, IN (989) 497-2500
10. Aleda E. Lutz VA Medical Center- Saginaw, MI (260) 426-5431
11. Battle Creek VA Medical Center- Battle Creek, MI (269) 966-5600
12. Iron Mountain, MI VAMC (906) 774-3300
13. Marion VA Health Care System- Marion, IL (618) 997-5311
14. VA Eastern Kansas Health Care System: Colmery-O’Neill VA Medical Center Topeka, KS (785) 350-3111
15. Harry S. Truman Memorial Veterans’ Hospital- Columbia, MO (573) 814-6638
16. John J. Pershing VA Medical Center- Poplar Bluff, MO (573) 778-4359
17. Southeast Louisiana Veterans Health Care System- New Orleans, LA (504) 556-7245
18. Kerville VA Medical Center- Kerville, TX (830) 896-2020
19. Waco VA Medical Center- Waco, TX (254) 0743-0711
20. VA Texas Valley Coastal Bend Health Care System (956) 291-9000
21. Amarillo VA Health Care System- Amarillo, TX (806) 355-9703
22. West Texas VA Health Care System- Big Spring, TX (432) 263-7361
23. El Paso VA Health Care System- El Paso, TX (915) 564-6159
24. Northern Arizona VA Health Care System- Prescott, AZ (505) 265-1711
25. VA Montana Health Care System- Ft. Harrison, MT (406) 442-6410
26. Cheyenne VA Medical Center- Cheyenne, WY (307) 778-7550
27. Sheridan VA Medical Center- Sheridan, WY (307) 672-1677
28. Alaska VA Healthcare System- Anchorage, AK (907) 257-4854/6911
29. VA Roseburg Healthcare System- Roseburg, OR (541) 440-1000
30. VA Puget Sound Health Care System-American Lake (206) 277-3693
31. VA Southern Oregon Rehabilitation Center and Clinics- White City, OR (541) 826-2111
32. Spokane VA Medical Center- Spokane, WA (509) 434-7018
33. Jonathan M. Wainwright Memorial VA Medical Center- Walla Walla, WA (509) 525-5200
34. Sierra Nevada Health Care System- Reno, NV (775) 786-7700
35. VA Central California Health Care System- Fresno, CA (559) 225-6100
36. VA Pacific Islands Health Care System- Honolulu, HI (808) 433-0605
37. Manila Outpatient Clinic-Manila, Philippines (632)-318-8387 or (632)-833-4566
38. VA Southern Nevada Healthcare System- Las Vegas, NV (702) 636-3000
39. Fargo VA Medical Center- Fargo, ND (701) 239-3700

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Veterans Should Know About VA Pension Non-Service Connected Disability

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).

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.

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.

 Maximum Annual Pension Rate for VA NSC Pension

Date of Cost-of-Living Increase: 12-01-2017
Increase Factor:  2.0%
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 $13,166
To be deducted, medical expenses must exceed 5% of MAPR,  or,  $ 659
With One Dependent $17,241
To be deducted, medical expenses must exceed 5% of MAPR,  or,  $ 863
Housebound Without Dependents $16,089
Housebound With One Dependent $20,166
A&A Without Dependents $21,962
A&A With One Dependent $26,036
Two Vets Married to Each Other $17,241
Two Vets Married to Each Other One H/B $20,166
Two Vets Married to Each Other Both H/B $23,087
Two Vets Married to Each Other One A/A $26,036
Two Vets Married to Each Other One A/A One H/B $28,953
Two Vets Married to Each Other Both A/A $34,837
Add for Early War Veteran (Mexican Border Period or WW1) to any category above $2,991
Add for Each Additional Child to any category above $2,250
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
01-01-2018 $10,650

*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.

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.

Allowable Deductions from Countable Income for VA Pension

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.

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.

NSC Pension Reporting: 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.

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.

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

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What Veterans Must Know About Special Rules For Certain Claims

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.

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.

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 combinedpressure 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 fromblast 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.

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.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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How VA Compensates Disabled Veterans With Special Monthly Compensation (SMC)

Special Monthly Compensation (SMC)

Special Monthly 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).

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, it is recommends that severely injured veterans get help in filing their SMC claims from someone experienced in such cases.

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.

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.

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What Disabled Veterans Must Know About 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.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veterans Must Know About 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).

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.

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.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veterans Must Know About 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.

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).

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. 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.

Also see the discussion of the “presumption of soundness” as it applies to determining if a medical condition pre-existed service.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency