July 2009 Update - Call For Authors
I am inviting potential authors to contribute to this knol.
I believe that many of our successes and experiences working with the VA system should be shared with others.
If you have had an experience with the VA that you believe could benefit others or if you have a special knowledge about a particular niche subject in the VA disability pension and compensation process, please drop me an email at <jim912@gmail.com>
I'd ask that you tell me briefly of your planned topic and your approach. I won't accept diatribes that are merely bitch sessions about how poorly VA operates or how you've been mistreated.
While I'm considering a section to allow such rants, for the purposes of this exercise I'd like to have your input and your writing that will teach another veteran a trick or a tip or method that will further enable success in obtaining a fair and just award from the VBA.
Griping is easy, problem solving isn't.
You don't need to be a professional writer. I'm certainly not. If you can reasonably get your point across you can be considered for becoming a contributer.
Depending on who happens to be measuring the numbers, this knol has had about 250,000 visits. I hear from a lot of veterans that they used the information they found here to successfully navigate the choppy waters at the VBA and they have obtained their deserved benefits.
You can be a part of that if you wish. I'll promise you that it is a good feeling to know that your words have helped a brother or sister in their quest for justice.
Thanks,
Jim Strickland
The American military veteran hungers for knowledge.
I write regular question and answer columns for veterans who seek information about how to best handle their benefits claim. These articles, "Jim's Mailbag", are published at VAWatchdog and The Veterans Voice. Editors Larry Scott at VAWatchdog and Clairice Still at The Veterans Voice have worked for years to provide veterans with an oasis of information on the often hostile and barren Internet. Those sites provide facts about benefits as well as other news of interest to the veteran community.
The veterans who write to us are active, intelligent citizens who have accomplished tasks often thought impossible as they served their country.
The VA uses as its motto a phrase coined from President Abraham Lincoln's March 4, 1865, second inaugural address; "To care for him who shall have borne the battle and for his widow, and his orphan." As the Civil War ended, President Lincoln recognized that the country had a responsibility to help those who were so badly damaged by the fighting. From that concept grew what today is our VA.
The veterans who write to us are active, intelligent citizens who have accomplished tasks often thought impossible as they served their country.
The veteran has earned certain benefits during the time of service. Those benefits are available only after the veteran works through a process that is often adversarial and sometimes incomprehensible. The laws, rules and regulations that govern the award of benefits that are associated with service connected disabilities are particularly perverse and worrisome.
This knol will attempt to provide the reader with some of the tools and the basic knowledge necessary to determine what benefits the veteran is eligible for.
Veterans visit those pages to learn. This knol is provided as an extension of the good work Larry and Clairice are doing.
The attorneys who have graciously agreed to co-author are each experts in disability law and have busy practices that focus on the needs of the veteran. Their contribution here isn't one that they're required to do but is given freely out of their personal commitment to America's warriors. In many ways, these lawyers are warriors themselves, prepared to stand up and fight for your rights.
This knol is always a work in progress, always unfinished. If it seems long and a bit unorganized at times, please use the provided search engine to find the topic you're looking for. If we haven't addressed it, leave a comment or email one of us directly. We have a lot of ground to cover and your suggestions as to how to best do that are appreciated.
Our Disclaimer
This Knol is provided to you to describe general processes and procedures that occur during the application for disability compensation and pension and other benefits within the Department of Veterans Affairs System. Any author you find here is not providing you with legal advice. Any information provided by this Knol or any contributor to this Knol is not intended as and should not be construed as legal advice. You should always consult an attorney to help answer specific questions regarding how VA laws apply to you and/or your situation. The summaries provided here are incomplete, and the DVA laws and regulations are subject to change. We do not guarantee and we are not liable for the accuracy or completeness of any of the information provided, or any results or outcome as a result of the use of this information.
The Department of Veterans Affairs, formerly the Veterans Administration and still commonly referred to as the "VA," is the second largest Cabinet department reporting to the executive branch of our government, with over 275,000 employees and a $90 billion budget. Most of the VA runs better than one might expect given the size and complexity of the organization. Better, however, is still often still not adequate for many veterans.
The VA uses as its motto a phrase coined from President Abraham Lincoln's March 4, 1865, second inaugural address; "To care for him who shall have borne the battle and for his widow, and his orphan." As the Civil War ended, President Lincoln recognized that the country had a responsibility to help those who were so badly damaged by the fighting. From that concept grew what today is our VA.
Based on these origins, VA managers often assert that the agency is "paternalistic" and "veteran-friendly." Whether such is true today is often debated. Whether true in practice or not, many of the laws controlling today's VA claims process assume VA employees are actively helping veterans obtain awards and maximize the benefits available to them. Any veteran seeking VA benefits, therefore, is wise to "trust, but verify" VA processing of the claim. A veteran who "files and forgets" a claim is likely to regret it.
Divided into 3 business units, the VA is made up of the Veterans Health Administration, the National Cemetery Administration and the Veterans Benefits Administration. Veterans health care is often lauded as the best available and the national cemeteries honor our service men, women and families remarkably well.
The VBA is the gatekeeper of all services for veterans. At
57 Regional Offices VBA staff are charged with determining if the applicant for any veterans benefit is who he or she claims to be and then the level of benefit that they are entitled to receive. This is often as simple as setting up a loan to purchase a home or it may be as complex as a vague but disabling injury received during the course of military service. The VBA is the gatekeeper of all services for veterans. At
Compensation and Pension
Within the Veterans Benefits Administration is found the Compensation and Pension services ("C&P") section. When a veteran believes that an injury or illness (known as a "condition" by the VA) that was incurred during active duty military service (or if preexisting was aggravated by the service) has become disabling, the veteran may apply for a disability compensation benefit. In some situations, the veteran may also be eligible for a pension benefit. Compensation and Pension are entirely different benefits and have different eligibility requirements.
Compensation is by far the most common benefit applied for by veterans with 2.9 million recipients in 2008. Compensation is not based on finacial need, it is based solely on the degree of disabiilty. There are three fundamental requirements for a veteran to be eligible for a compensation benefit: (1) evidence of a current medical condition or disability; (2) evidence of an in-service occurence; and (3) evidence of a connection between the condition and the in-service occurence (also know as a "nexus"). Most delays, disputes and appeals to higher and then higher yet authorities are centered on the validity of a claim for disability benefits. And most of the validity disputes involve questions regarding evidence of a connection between the current condition and the in-service incident. Veterans should note that each of the three requirements requires "evidence" to establish. So right from the start, a veteran filing a claim for VA benefits must start thinking about legal issues and legal standards.
Pension, in contrast to Compensation, is a need based system. This means that there are restrictions on a veteran's annual income and savings that limit the amount of pension which a veteran can receive. The basic requirements for a VA pension are: (1) total and permanent disability; (2) military service during a "time of war;" and (3) income below specified limits. Also unlike Compensation, the disability for pension purposes does not need to be service connected. Pension, however, is subject to a dollar-for-dollar set-off against income. Approximately 317,000 veterans were receiving pensions in 2008.
DIC
One other VA benefit is important to a large number of veterans, or more specifically, surviving spouses, and in some cases, children or parents, of deceased veterans. Death and Indemnity Compensation (more commonly referred to as "DIC") is a benefit for surviving spouses of veterans whose death was the result of a service-connected condition. DIC is a separate benefit from the veteran's own benefit (a veteran's benefits are said to "die with the vet") and the survivor must file his or her own claim. Sadly many survivors do not learn about DIC until long after they are eligible, if ever. If a DIC claim is not filed within one year of the veteran's death, payments before the date of the claim are lost. All veterans should know about DIC and make sure that their spouses do too.
Computing Division, Veterans Bureau, Washington DC, 1929.
Three dozen Burroughs adding machines were being used to compute veterans' benefits.
http://www.officemuseum.com/
The Process
To apply for a VA benefit, a veteran (spouse or other eligible dependent) must file a "claim" with VA. Although the law recognizes an "informal claim," which may be a letter or other communication to VA expressing the desire to file a claim, any claim started other than by completing and submitting a VA Form 21-526 is asking for trouble. Even if an informal claim is submitted and recognized by VA, a VA Form 21-526 usually must be completed within one year to formalize the claim. Better to just file the Form 21-526.
Starting with the Form 21-526 and continuing for as long as a veteran deals with VA, the veteran must make and keep a complete copy of everything sent or handed to VA (and, for that matter, an attorney or non-attorney representative). Put plainly, VA has a terrible record for "losing" documents sent in by claimants. Whatever the reason, a veteran would be extremely lucky to go through the entire claims process without VA losing at least one impotant document. So, if a veteran does not keep copies, he or she is risking the entire claim because VA will deny a claim for lack of evidence even if VA loses the documents. So keep copies and send everything "certified mail with return receipt" and keep those receipts (little green cards).
While the process is supposed to be largely administrative and the VA has a legal "duty to assist" every claimant in developing the claim and obtaining the required evidence, as a practical matter the VA benefits system is adversarial and full of legalistic traps for the unwary. A large part of this knol is dedicated to identifying these traps and providing thoughts on how to avoid them.
It is important, therefore, that a veteran planning to file a claim or who already has a claim in process, (1) understand at least the basics of the VA process to know if something goes wrong and (2) closely follow the processing of the claim and (3) read and understand the importance of letters from VA.One of the most common pitfalls veterans fall into is the failure to read and respond to VA letters requesting information or setting deadlines for some action by the veteran. Veterans who do not carefully read and respond to VA letters can, and often do, have their claims rejected for failure to respond. Even if a veteran survives to have the merits of his or her claim adjudicated, the rules of evidence used by VA to make a decision can be as strict as those used in any courtroom. Sadly, the much talked about VA "duty to assist" is often performed in a perfunctory manner, if at all. And, any errors made by VA, even if later corrected, mean additional months, if not years of delay for the veteran.
Althought the actual legal requirements for information to start a claim are pretty low, a veteran should complete the claim form as fully as possible. This will likely require a veteran to spend some time gathering information before filling in the claim form. This is time well-spent, as errors or missing information will likely result in lengthy delays as VA holds the claim while sending letters asking for additional information. Once VA decides that a complete application has been received, VA will send the claimant a letter (1) explaining the process, (2) describing the evidence VA will try to gather and (3) identifying the evidence the claimant will have to provide to support an award.
The process is explained by the VBA here. While this is an oversimplification, it gives a good overview of what happens as you seek the benefit you believe you deserve.
To fully appreciate what happens to a claim, one must dig a little deeper into how the system works. The GAO report, VBA-Problems and Challenges Facing Disability Claims Processing tells us that, "VBA’s problems with large backlogs and long waits for decisions have not yet improved, despite years of studying these problems." Please click the above link "VBA Problems and Challenges..." and scroll to page 12 of the report to view a series of graphics that illustrate the complex path your claim must follow through VBA. Although this report was written in 2000, many of the same problems still exist and some have even gotten worse.
Many veterans enter the VA system believing that they will complete a few forms and soon receive their earned benefits only to find themselves years later in an appeals court in Washington D.C. Some veterans have few, if any, problems with their claims. These days, however, "filing and forgetting" a VA claim is a risky way to go. Any benefit worth the effort to file a claim should be worth the time to do do what is required to make VA makes the best possible decision.
It is important for a claimant to keep a close watch on hie or her claim because the measures used by VA to rate and promote its employees rewards those who worry more about following the administrative process than they are with any individual or an individual claim. The process of adjudicating a claim is rooted in statutes enacted by Congress. These laws have been enacted over decades and sometimes create conflicting requirements. Sadly, VA claims processing employees often choose to interpret the law in the way that makes their job easier ... whether it makes sense or not.
One sure way to have a claim denied or at least significantly delayed, is for the veteran to attempt to take a short-cut or to skip some detail of the process. That person will soon discover that his or her attempt to speed things up has slowed everything down, or worse. There are no shortcuts. There are no secret codes. There is no speedy process for "special" claimants. There are only claimants who follow the rules and keep track of what VA is doing and claimants that do not. The first type of claimant has the best chance of a fair decision and a good result.
Claimants have to keep the "big picture"in mind at all times. While the VA isn't always right in their decisions, it owns the process of making the decisions. A savvy veteran will recognize that there is no way to avoid the process and that to play within the rules from the very beginning is the best way to ensure that a claim will at least move along, even if at a slow pace. That is not to say that there are not tools that can be used to increase the chances of a more timely and more likely favorable decision, only that there is a time and place for each. The articles that follow are intended to educate veterans onthe VA benefits process and how to maximize the chances that a claim will result in a fair award in the minimum time.
How To File A Claim
To learn how to file a claim, click here. This knol segment provides information to guide the veteran in filing a new claim, evidence requirements, increasing the rating percentage of an existing claim and representation to the VA by Veterans Service Organizations.
The C&P examination is an integral part of the process of rating the degree of disability of a claimed condition. This knol segment offers th veteran practical advice on how to conduct himself and how to prepare for the exam.
A letter that provides an expert opinion to connect the veteran's current condition to a previous event may make the difference of an award or a denial if other evidence isn't able to confirm the alleged cause.
How To Appeal
To learn how to appeal, click here. This knol segment will provide you with information about your rights to appeal, the processes involved in an appeal, how the Board and the Court work and how to initiate a CUE claim.
Agent Orange/Radiation/Gulf War Syndrome
Click here to learn more about the presumptive list of conditions associated to Agent Orange exposure as well as radiation exposure & Gulf War Syndrome
Diabetes
Click here to learn more about the condition of diabetes.
PTSD
Click here to learn more about the condition of PTSD.
Hearing Loss
Click here to learn about hearing loss and related conditions.
The Joints
Click here to learn more about conditions of the joints.
Erectile Dysfunction
Click here to learn more about the condition of erectile dysfunction.
Prostate Cancer
Click here to learn more about prostate cancer.
Sleep Apnea
More on Sleep Apnea
The C & P Exam
To learn about the Compensation and Pension exam, click here.The C&P examination is an integral part of the process of rating the degree of disability of a claimed condition. This knol segment offers th veteran practical advice on how to conduct himself and how to prepare for the exam.
The Nexus Letter
To learn how to develop and write a nexus letter, click here.A letter that provides an expert opinion to connect the veteran's current condition to a previous event may make the difference of an award or a denial if other evidence isn't able to confirm the alleged cause.
How To Appeal
To learn how to appeal, click here. This knol segment will provide you with information about your rights to appeal, the processes involved in an appeal, how the Board and the Court work and how to initiate a CUE claim.The Law & Lawyers
Understanding the law as it applies to your case and how to work with your attorney. <NEW>The Conditions
Injuries or illnesses are called "conditions" in the VA scheme. To learn about each unique condition, click the appropriate link below.Agent Orange/Radiation/Gulf War Syndrome
Click here to learn more about the presumptive list of conditions associated to Agent Orange exposure as well as radiation exposure & Gulf War Syndrome
Diabetes
Click here to learn more about the condition of diabetes.
PTSD
Click here to learn more about the condition of PTSD.
Hearing Loss
Click here to learn about hearing loss and related conditions.
The Joints
Click here to learn more about conditions of the joints.
Erectile Dysfunction
Click here to learn more about the condition of erectile dysfunction.
Prostate Cancer
Click here to learn more about prostate cancer.
Sleep Apnea
More on Sleep Apnea
The Ratings
To learn more about how a condition is rated, click here.Ratings are assigned according to complex schedules, methods of combining separate conditions, tables of various ratings, reviews of medical records and examinations by health care professionals. The veteran who is applying for a disability compensation benefit is wise to understand how a particular claimed disability may be rated. Are you 100% IU or 100% Schedular? What is VA Math? Does P & T protect you from any rate reductions? All that and more is in here.
Related Benefits
Click here to learn about benefits that may be available secondary to VA disability compensation.When VA disability compensation is awarded to a veteran, other benefits may come available to include enhanced VA health care benefits, Social Security Disability Insurance, various state benefits and dependents benefits.
Fleeing Felons & Other Unusual Rules
Click here to learn about fugitives, fiduciaries and other odd points of VA regulations.Have you ever had a warrant issued against you? Are you competent to manage your own finances? What should you do when you receive a letter that tells you your compensation pay is being apportioned?
38 USC section 1151 & the Federal Torts Claims Act
Click here to learn about actions you may take if you believe you were harmed by care provided in the VA system.An Index of Links
Click here to view a page of links to important sites.The veteran or advocate who is researching to find relevant information about a condition or rules that may govern a particular case often spend hour searching for the right information. Here I'll provide links that I've found worthwhile.
The Blue Water Navy
This is a Work In Progress page that will address many of the issues of non-presumptive conditions, CFR 3.313 and exposure to carcinogens in other locales.The Dirty Dozen
One dozen of the most important hints, tips and tricks to help you survive the process and win your claim.Frequently Asked Questions
Just the FAQs Ma'amThe Hall of Shame
VA Bloopers and beyond.The Scrapbook
Fast Letters, papers, bulletins and things that just don't fit elsewhere.The Letters Collection
The best questions and answers from my "Jim's Mailbag" articles on the VAWatchdog dot org. These are also part of the archived material on the VAWatchdog site , however, these are representative of the best and may be searched by keyword. If you don't find what you need elsewhere, plunder these letters to see what others have asked before you.Survivors Benefits
DIC and more for the family of the veteran.  |
| Disabled veteran, ca. 1943 Franklin D. Roosevelt Library Public Domain Photographs, 1882 - 1962 |
jo ann gilley
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Information in the section
wish i had known some of the info i have read today when we first started this is very informative, thank you
i tell everyone i work with (army reserves) to do their research prior to filling and they wont be playing catch up in the end like me and my husband are.
we had no real guidance and i did not know these web sites were out there, i will tell people about this web site
and thank you again
Jim
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Anonymous
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Certified Mail
You may contact me directly at jim912 at gmail dot com
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Krishan Maggon
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Listed in the New Top Ten Quality Authors List
You are included in our new list of top ten quality authors.
Knol Site Metrics
حمودة الاسيوطى
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it s very good with great thanks
Anonymous
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Am I too late?
The VA letter I got in 2005 says that I have one year to appeal. I'm outside that window. Am I really too late? Can I follow the procedures for ammeding an existing claim to ask to have the disability rating upgraded from 0%?
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I would file a 21-4138 (Statement In Support of Claim)
and request adjudication under clear and unmistakable error
(CUE) for a compensable rate of 10 percent, and request an effective
date of the 2005 (which is now a final, unappealed decision)Rating Decision that granted service connection of three separate conditions - each at zero percent.
Use this 38 CFR regulation to try and get an adjudication of compensation paid at 10 percent.
http://ecfr.gpoacces
§ 3.324 Multiple noncompensable service-connected disabilities.
Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities the rating agency is authorized to apply a 10-percent rating, but not in combination with any other rating.
[40 FR 56435, Dec. 3, 1975]
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Anonymous
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what about the still classified operations that are holding up many claims
An issue we veterans will always face is that we see things like this that we know are of great importance. Then we ask, "Why doesn't someone do something about the injustice?" The answer is obvious. We are the "someone" who should be acting on the issues but yet we expect that others will do it for us.
The reality is that the only people that care about veterans of the Vietnam era are veterans of the Vietnam era. In the last couple of years I've had the honor of giving presentations to honors classes at high schools. The Vietnam war is 2 pages in a textbook...and it's been that way for a long time.
As with so many things VA, you have to DIY.
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A FOIA request is a start. Assume you will be denied and prepare from the start to appeal and fight for a declassification review. A serious effort will likely require a skilled attorney and lots of patience, but if properly done a judge can order the government to provide the documents for the judge's review and identify the basis for the continued classification of the information.
With the order from the new President to all government agencies to be more open and forthcoming in responding to FOIA requests, there may be a window of opportunity to get some new information.
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Anonymous
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Untitled
truly rocks
Shiva
http://www.supershiv
http://www.versatile
Anonymous
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Maybe a note about 'Blue Water Navy' Vietnam Vets and Non-Hodgkins Lymphoma?
And maybe a list of the Cancers consdered NHL's ...
Anonymous
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Thank you all for this great gift to Vets
Anonymous
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Great Information
As always, from you, great information. As I just learned of your new site today, I have not read it closely, but will be back often. Somehow the veteran filing a claim for the first time needs to be informaed and then accept how to deal with situations such as: a C&P doctor writing a report for a medical condition that directly quotes the VA's 50% rating criteria and the veteran being rated 30% by the VARO, or having several doctors (including one VA doctor) opine that a veteran's medical condition initiated while on active duty and having the VA not find the condition SC.
It is a tough situation to accept until, as you know, one experiences the process.
Thanks for all you do.