VA Disability Compensation?
VA disability compensation is a tax-free monthly payment to Veterans who have disabilities that are the result of a disease or injury incurred or aggravated during active military service.
Any Veteran who has served on active duty and has a service-connected disability may be eligible for VA disability compensation. A service-connected disability is one that was caused by or made worse by military service.
There are two main types of VA disability compensation:
Disability Compensation: VA disability compensation is a tax-free monthly payment to Veterans who have disabilities that are the result of a disease or injury incurred or aggravated during active military service.
Individual Unemployability (IU): IU is paid to Veterans who are unable to work due to their service-connected disabilities.
In addition to IU and TDIU, Veterans may also be eligible for:
Special monthly compensation (SMC): SMC is paid to Veterans who have certain severe disabilities.
Aid and attendance (A&A) and Housebound (HB) benefits: A&A and HB benefits are paid to Veterans who need help with activities of daily living or who are unable to leave their homes unassisted.
Dependency and indemnity compensation (DIC) and survivors’ pension benefits: DIC and survivors’ pension benefits are paid to the families of Veterans who died due to their service-connected disabilities.
You can file a claim for VA disability compensation online, by mail, or in person at a VA regional office. You can find more information on how to file a claim on the VA website: https://www.va.gov/disability/how-to-file-claim/
After you file a claim, VA will review your medical records and any other evidence you have submitted. They may also schedule a medical exam to assess your disability. Once VA has reviewed all of the information, they will issue a decision on your claim.
If your claim is denied, you can file an appeal. You have one year to file an appeal from the date of the decision. You can learn more about the VA appeals process on the VA website: https://benefits.va.gov/benefits/appeals.asp
A VA-accredited attorney can help you file your claim, gather evidence, and represent you during the appeals process. They can also explain your rights and options under the law.
Individual Unemployability
Individual Unemployability (IU) is a VA disability benefits that can be awarded to Veterans who are unable to work due to their service-connected disabilities.
IU is a benefit that pays Veterans at the 100% disability rate, even if their combined disability rating is less than 100%. To be eligible for IU, a Veteran must be able to show that their service-connected disabilities prevent them from obtaining and maintaining substantially gainful employment. To be eligible, a Veteran must have a single service-connected disability rated at 60% or more, or two or more service-connected disabilities with one disability rated at 40% or more and a combined rating of 70% or more. However, the VA can also award TDIU on an “extraschedular” basis, even if a Veteran does not meet these rating requirements.
Substantially gainful employment is generally defined as earnings above the Federal Poverty Threshold. For example, in 2023, the Federal Poverty Threshold for a single person is $14,580. If a Veteran is earning less than this amount per year, their employment will not be considered substantially gainful.
In addition, substantially gainful employment does not include situations where a Veteran is working in a “sheltered” or “protected” work environment, such as a family business or self-employment where they cannot be fired. In these cases, the Veteran would have to show that they are unable to work anywhere but a protected work environment due to their service-connected disabilities.
A Veteran who is awarded IU will receive benefits at the 100% disability rate. As of October 2023, the 100% disability rate for a single Veteran with no dependents is $ 3,621.95 per month.
To apply for IU, Veterans can file a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Veterans can also file for IU online at the VA website, or through a VA disability attorney.
One thing veterans need to keep in mind is the VA treats a claim for IU as a claim for increase for all service-connected disabilities. As such, veterans can expect to be scheduled for new C&P examination for disability and must attend those appointments.
A VA disability attorney can help Veterans file for TDIU and gather evidence to support their claim. They can also represent Veterans during the VA appeals process.
VA Handles Evidence
When a Veteran files a claim for VA disability compensation, the VA must review all of the evidence submitted by the Veteran and decide on the claim. In some cases, the evidence may be in equipoise, which means that the evidence is evenly balanced and does not favor either the Veteran or the VA.
When the evidence is in equipoise, the VA must resolve the doubt in favor of the Veteran. This is known as the “benefit of the doubt” rule. The benefit of the doubt rule is a legal principle that is designed to protect Veterans and ensure that they receive the benefits they deserve.
The VA uses a variety of factors to determine whether the evidence is in equipoise. These factors include:
The quality of the evidence.
The quantity of the evidence.
The consistency of the evidence.
The probative value of the evidence.
The VA will also consider the Veteran’s testimony when determining whether the evidence is in equipoise. The Veteran’s testimony can be very important in cases where the medical evidence is inconclusive or contradictory.
If the VA determines that the evidence is in equipoise, they will grant the Veteran’s claim. This means that the Veteran will receive disability compensation for their service-connected disability.
If you are a Veteran who has filed a claim for VA disability compensation and the VA has determined that the evidence is in equipoise, you should know that you are entitled to the benefit of the doubt. This means that the VA should grant your claim. If the VA denies your claim, you can file an appeal.
Independent Medical Opinion
When applying for VA disability compensation, it is often in the best interests of the Veteran to obtain an independent medical opinion (IMO). An IMO is a medical assessment performed by a doctor who is not employed by the VA. IMOs can be especially helpful in cases where the Veteran’s own medical records are incomplete or inconclusive, or where the Veteran disagrees with the VA’s assessment of their disability.
There are several key benefits to using an IMO when applying for VA disability compensation:
IMOs can help to establish nexus. Nexus is the connection between the Veteran’s military service and their current disability. The VA is more likely to grant a claim if there is a clear nexus between the Veteran’s military service and their disability. An IMO can help to establish nexus by providing a medical opinion on the likelihood that the Veteran’s disability was caused or aggravated by their military service.
IMOs can provide a comprehensive assessment of the Veteran’s disability. The VA often relies on the Veteran’s own medical records to assess their disability. However, these records may be incomplete or inconclusive. An IMO can provide a more comprehensive assessment of the Veteran’s disability by taking into account all of the available medical evidence, as well as the Veteran’s own testimony about their symptoms and how they affect their life.
IMOs can be used to challenge the VA’s assessment of the Veteran’s disability. If the Veteran disagrees with the VA’s assessment of their disability, they can use an IMO to challenge the VA’s decision. An IMO can provide a medical opinion on the severity of the Veteran’s disability and the impact it has on their life. This information can be used to appeal the VA’s decision and increase the Veteran’s chances of success.
In addition to the benefits listed above, IMOs can also be helpful in the following ways:
IMOs can help to expedite the VA claims process. When the VA has all of the necessary information to make a decision on a claim, they are more likely to process the claim quickly. An IMO can help to expedite the claims process by providing the VA with all of the medical information they need to make a decision.
IMOs can help to increase the Veteran’s chances of success. Studies have shown that Veterans who obtain IMOs are more likely to have their claims approved than Veterans who do not obtain IMOs. One study found that Veterans who obtained IMOs were twice as likely to have their claims approved as Veterans who did not obtain IMOs.
A VA-accredited attorney can help you find a private medical expert to assess your condition and provide an IMO.
VA’s Benefit of the Doubt Rule
The Veterans Administration’s (VA) Benefit of the Doubt Rule is a legal principle that states the VA must resolve any doubt in favor of the Veteran when deciding a VA disability claim. This means that if the evidence is evenly balanced, or if there is more evidence in favor of the Veteran than against them, the VA must grant the claim.
The Benefit of the Doubt Rule is codified in 38 U.S.C. § 5107(b), which states:
“When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.”
The Benefit of the Doubt Rule applies to all aspects of the VA disability claims process, including:
Nexus: The VA must give the Veteran the benefit of the doubt when deciding whether there is a nexus, or connection, between their service-connected disability and their current medical condition.
Severity of disability: The VA must give the Veteran the benefit of the doubt when deciding the severity of their disability rating.
Effective date: The VA must give the Veteran the benefit of the doubt when deciding the effective date of their disability benefits.
The Benefit of the Doubt Rule is a valuable right for Veterans, and it can help to ensure that they receive the benefits they deserve. However, it is important to note that the Benefit of the Doubt Rule does not mean that Veterans can simply make a claim and expect the VA to grant it. Veterans still need to provide evidence to support their claim, and the VA will weigh all of the evidence before making a decision.
Here are a few examples of how the Benefit of the Doubt Rule has been applied in VA disability claims:
In one case, a Veteran filed a claim for service-connected tinnitus. The Veteran had no medical records from his time in service to document his tinnitus, but he did have testimony from his friends and family members that he had been experiencing tinnitus since he returned from service. The VA granted the Veteran’s claim based on the testimony of his friends and family members, even though there was no medical evidence to support his claim.
In another case, a Veteran filed a claim for service-connected post-traumatic stress disorder (PTSD). The Veteran had a medical record from his time in service that documented his exposure to a traumatic event. However, the Veteran’s medical record did not explicitly diagnose him with PTSD. The VA granted the Veteran’s claim based on the fact that he had been exposed to a traumatic event and that his symptoms were consistent with PTSD.
In yet another case, a Veteran filed a claim for service-connected chronic back pain. The Veteran had a medical record from his time in service that documented his back pain. However, the Veteran’s medical record did not show that his back pain was caused by his military service. The VA granted the Veteran’s claim based on the fact that his back pain began while he was in service and that there was no other known cause for his back pain.
There are a few things that Veterans can do to increase their chances of having their claim granted under the Benefit of the Doubt Rule:
Gather as much evidence as possible to support your claim. This evidence may include medical records, service records, statements from witnesses, and your own personal statement.
Be honest and complete on your VA disability claim form. Do not exaggerate your symptoms or omit any important information.
If you need help filing your claim, contact us today for a free case evaluation.
VA Appeals Process Work
The AMA created a new three-lane appeals system, which gives Veterans more choices and flexibility in how they appeal VA decisions. If you disagree with a VA decision, you can file a Notice of Disagreement (NOD) within one year of the date of the decision. You will then choose one of the three lanes described below.
Supplemental Claim Lane: This lane is for Veterans who have new and relevant evidence to support their claim. VA will assist Veterans in gathering this evidence.
Higher-level Review Lane: This lane is for Veterans who want their claim reviewed by a more experienced adjudicator. VA will review the claim with all the information that was considered in the previous decision, but Veterans cannot submit any additional evidence.
Board of Veterans’ Appeals (BVA) Lane: This lane is for Veterans who want to appeal their claim directly to the BVA. Veterans can choose Direct Review if you don’t want to submit evidence or have a hearing; Evidence submission, if you want to submit additional evidence without a hearing; Hearing, if you want to have a hearing with a Veterans Law Judge (with or without new evidence).
The AMA also requires VA to provide improved notification of decisions and earlier claim resolution.
VA Assigns Probative Value to Evidence
When a Veteran files a claim for VA disability compensation, the VA must review all of the evidence submitted by the Veteran and assign probative value to each piece of evidence. Probative value is the degree to which the evidence tends to prove or disprove a fact.
The VA uses a variety of factors to assign probative value to evidence, including:
The Credibility of the Source – The more credible the source of the evidence, the more probative value the VA will assign to it. For example, the VA will give more probative value to a medical record from a doctor who is employed by the VA than to a statement from a friend or family member.
The Completeness and Accuracy of the Evidence – The more complete and accurate the evidence, the more probative value the VA will assign to it. For example, a medical record that includes a detailed description of the Veteran’s symptoms and the results of any diagnostic tests will be given more probative value than a medical record that simply states that the Veteran has a disability.
The Consistency of the Evidence – If the evidence is consistent, the VA will give it more probative value. For example, if the Veteran has a medical record from their time in service that documents their exposure to a toxic substance and they also have a medical record from after their service that documents that they have health problems that are consistent with exposure to that toxic substance, the VA will give more probative value to this evidence than if the Veteran’s medical records were inconsistent.
The Relevance of the Evidence – The VA will only give probative value to evidence that is relevant to the Veteran’s claim. For example, if the Veteran is filing a claim for service-connected PTSD, the VA will give probative value to evidence that documents their exposure to a traumatic event and their symptoms of PTSD. However, the VA will not give probative value to evidence that is unrelated to the Veteran’s claim, such as a medical record that documents a pre-existing condition.
The VA will also consider the Veteran’s testimony when assigning probative value to evidence. The Veteran’s testimony can be very important in cases where the medical evidence is inconclusive or contradictory.
Once the VA has assigned probative value to each piece of evidence, they will weigh all of the evidence together and make a decision on the Veteran’s claim. If the VA determines the weight of the evidence supports the Veteran’s claim, they will grant the claim. However, if the VA determines the weight of the evidence does not support the Veteran’s claim, they will deny the claim.
Sleep Apnea Secondary to PTSD
Obstructive sleep apnea (OSA) is a common sleep disorder that causes breathing to be repeatedly interrupted during sleep. OSA is caused by a blockage in the upper airway, which can be caused by a number of factors, including obesity, enlarged tonsils, and a narrow airway.
Post-traumatic stress disorder (PTSD) is a mental health condition that can develop after exposure to a traumatic event. PTSD can cause a variety of symptoms, including nightmares, flashbacks, anxiety, and depression.
There is a growing body of research that suggests that OSA and PTSD are linked, however the research is typically rebutted by VA examiners in VA Medical Opinions. This is what makes winning a VA claim for service connection for OSA secondary to PTSD so challenging. The VA requires Veterans to prove that their OSA is both caused by and/or aggravated by their PTSD.
One of the biggest challenges of winning a VA claim for service connection for OSA secondary to PTSD is overcoming the common medical belief that a mental condition cannot be the cause of OSA on a secondary basis. This belief is based on the fact that OSA is a physical condition caused by a blockage in the upper airway which is independent of and not caused by a mental condition. The VA has a presumption against service connection for OSA. This means that the VA assumes that OSA is not service-connected unless the Veteran can provide clear and convincing evidence to the contrary.
To overcome the VA’s presumption against service connection for OSA, Veterans need to provide evidence that their OSA is caused and/or aggravated by their PTSD. One of the most effective ways to do that is by using a VA-accredited attorney with experience in representing Veterans in this type of claim. Contact us today for a free case evaluation.