Frequently Asked Questions
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.
Can The Veterans Law Group assist veterans if we are not located near them or near their local VA Regional Office?
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.
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?
No. A published General Counsel Opinion has now made clear that, under 38 C.F.R. Â§ 3.306(b), a claimant is not required to show that the disease or injury in question increased in severity during service to trigger the presumption of aggravation, thus requiring the VA to rebut the presumption by clear and unmistakable evidence. See VAOPGCPREC 3-2003.
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?
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. Â§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 Â§4.16(a). See 38 C.F.R. Â§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).
How do you determine the effective date of a disability award?
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. Â§ 5110(a); McGrath v. Gober, 14 Vet.App. 28 (2000).
Can a veteran receive both VA and Social Security benefits?
Yes. A veteran can receive both VA service-connected disability benefits and Social Security benefits. However, it is important to note that receipt of one does not guarantee receipt of the other. A veteran generally cannot receive both a VA pension and Social Security at the same time.
Can a veteran work while receiving VA disability?
A veteran generally can still work when receiving VA disability. However, typically in order to receive individual unemployability or a 100 percent schedule rating for certain disabilities, a veteran cannot work full time or make over a certain amount of money per year (generally anything above the poverty line). This depends on each individual case and if you have questions about a claim for unemployability, or if you are not able to work due to a disability incurred in service.
How do I increase my VA disability rating?
If a condition that you are service-connected for through VA has worsened, you can file an increased rating claim using the basic claims form or by submitting a letter to your regional office indicating that your condition has worsened and you would like it reevaluated. It might be helpful to submit treatment records to VA proving a worsening of your condition.
Are VA service-connected benefits taxable?
No. VA service-connected benefits are not taxable and are not considered a part of a veteran’s yearly earned income.
Are a veterans disability payments continued for a surviving spouse after death?
A veterans service connected disability is not automatically continued for his surviving spouse. But a surviving spouse may be eligible for a death pension depending on income or Dependency Indemnity Compensation (DIC) benefits.
What benefits are available for survivors of deceased veterans?
VA offers certain benefits for survivors and dependents of deceased veterans. A veteran’s spouse may qualify for Dependency Indemnity Compensation (DIC) benefits if: 1) the cause of the veteran’s death was due to service, 2) a veteran’s death resulted from a non service-related injury or disease and the veteran was receiving, or was entitled to receive, VA Compensation for service-connected disability that was rated as totally disabling for at least 10 years immediately before death, 3) the veteran was receiving the total disability for at least five years following his or her release from active duty immediately preceding death, or, 4) the veteran was a former prisoner of war who died after September 30, 1999, and was receiving benefits for at least one year prior to death.