Questions & Answers

The Veterans Law Group has added this section as a means for veteran service officers to obtain information relevant to their individual cases.   The Veterans Law Group encourages veteran service officers to ask questions about the law, about record development, or about strategies of the case.  As examples, below we have listed some frequently asked questions.

 1) Q: How do you determine the effective date of a disability award?

 A: You look at two factors.  First, you must consider the date the last claim was received by the regional office, and second, the date the disability in question first manifested or became symptomatic.  The later of the two dates should be the effective date of the service-connected disability award.  See 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet.App. 28 (2000). 

 2) Q: What is the difference between a claim for total disability based based upon individual unemployability (TDIU) and a claim for an extra-scheduler disability rating?

 A: The VA generally refers to a claim as a TDIU claim when two conditions are met: 1) a veteran has one service-connected disability with a 60% or more disability rating, or has two or more service-connected disabilities with a combined rating of 70% or more, and 2) there is medical evidence of unemployability.  If the veteran satisfies these two conditions, then he will be entitled to a 100% disability rating, even though he does not satisfy that 100% disability rating under the schedule.  See 38 C.F.R. §4.16(a)

An extra-schedular rating, on the other hand, applies to veterans who are unemployable due to their service-connected disability(ies), but whose disability(ies) does not meet the percentage requirements under §4.16(a).  See 38 C.F.R. §4.16(b.) 

A veteran can be rated 100% disabled under both a TDIU or extra-schedular theory. See Bowling v. Principi, 15 Vet.App. 1, 5-9 (2001). 

3) Q: In a claim for service-connected aggravation of a pre-existing disability, must the veteran show an increase in disability during service to trigger the presumption of aggravation?

A:  No.  A published General Counsel Opinion has now made clear that, under 38 C.F.R. § 3.306(b), a claimant is not required to show that the disease or injury in question increased in severity during service to trigged the presumption of aggravation, thus requiring the VA to rebut the presumption by clear and unmistakable evidence.  See VAOPGCPREC 3-2003.

4) Q: Can The Veterans Law Group assist veterans if we aren't located near them or near their local VA Regional Office?

A:  Yes. In dealing with the VA, all evidence and argument is submitted in written form. Once we accept a case, the Regional Office sends us an entire copy of the claims file, so we are able to make a case in support of benefits by using the claims file and VA case law. If after reviewing the claims file, we feel as though there is not enough medical evidence to support a claim for benefits, we will advance the cost of a independent medical evaluation in close proximity to the veteran's location.

Have another question?  Please contact us with your question.