What if I am unemployable due to my service-connected injuries?

The VA provides Total Disability Individual Unemployability (TDIU, benefits equal to 100% disability benefits) to veterans who cannot work due to their service-connected impairments.  

There are 3 additional criteria to TDIU eligibility:

• At least 60% service connected due to one condition

• At least 70% combined service connection with at least one condition being rated at least 40%

• Neither of the above, but still unable to work due to severe service-connected injuries.

What if I am approved for TDIU, and the VA has established my effective date as the date I filed my TDIU application, but in reality, I was unemployable long before that date?

Can I appeal the effective date only?

Yes. Case law has established that the proper effective date for a TDIU claim is the date the Veteran became unemployable, not the date the application for TDIU was filed.  This is a common VA error that can be corrected on appeal or with a motion for revision based on clear and unmistakable error (CUE). 

What if I am service-connected for PTSD but feel that my rating should be higher?

You can appeal the percentage of the PTSD rating if the window for appeal is open, or you could file a claim for a higher rating.  Or you could have an attorney review your file to determine if the VA made an error in assigning a percentage, even if the appeal deadline has passed.  

Do I need a physician's opinion?

Yes, physician opinions are required by the VA in most cases to provide an opinion as to whether it is as likely as not (50/50 chance) that the Veteran’s current condition is related to his/her in-service injury and also to provide objective findings as to the severity of the condition.  The VA encourages private physicians, who know their patients best, to provide their opinions to the VA.  The VA provides forms for private physicians to use specifically for this purpose.  

The forms are geared toward VA compensation laws.  The forms may be downloaded at www.benefits.va.gov/compensation/dbq_publicdbqs.asp

There is a part for remarks in which the physician can insert his/her opinion as to whether it is as likely as not (at least 50% chance) or, better, more likely than not (greater than a 50% chance) that the Veteran’s current impairment is related to his/her in-service injury.  The important thing for the physician to remember is to always support an opinion with a rationale as to their thinking behind the opinion.  

Note that the VA does not have a DBQ for an initial PTSD evaluation.  However, there is a DBQ form for an increased rating for PTSD after the initial evaluation has been made. 

Our attorney at Vammen Law will be glad to answer any questions from medical providers regarding DBQs. No charge! 

How does the appeal process work?

The Veteran first applies for benefits through the VA by filing online through their account at Benefits.va.gov or with the help of a Veterans Service Officer. Or by calling the VA at 1-800-827-1000.  

If the claim is denied, the Veteran can appeal to the Veterans Administration and appeal again to the Board of Veterans Appeals.  If the claim is denied by the Board of Veterans Appeals, the Veteran has 120 days to file an appeal with the Court of Appeals for Veterans Claims (CAVC).  The Veteran can appeal on their own to the CAVC by visiting the website uscourts.cavc.gov and filling out the one-page appeal form on the site, or the Veteran may contact an attorney to file the appeal.  

Either way, it is highly recommended that the Veteran be represented by an attorney when appearing before a United States Court.  Over 80% of claims appealed to the CAVC are granted a second chance.  This means a chance for the original application to be won plus a chance for the back benefits to be awarded as of the date of the application.  If you have legal grounds for appeal, why not appeal rather than drop your case, start all over again in the same system but now requiring new and material evidence to reopen a claim? 

How much does it cost to appeal?

Vammen law does not charge the client attorney fees at all for appeals to the Court of Appeals for Veterans Claims.  Instead, we seek attorney fee payment from the US Government through the Equal Access to Justice Act for our hourly rate when we prevail in the case.  If the case is sent back to the VA or the Board of Veterans Appeals for a decision, the attorney may propose a contract with the Veteran for 30% percent of the back benefits if the case prevails and results in back benefits.  

What if my appeal deadline has passed, but I feel the VA made errors in my case?

Even if the appeal deadline has passed, your case may lend itself to a Motion for Revision based on a clear and unmistakable error (CUE) committed by the VA.  There is no time limit for filing a CUE claim. A CUE claim is rare, but powerful.  

Under 38 CFR 3.105(a) a clear and unmistakable error (CUE) exists if all three of the following requirements are met:

• either the correct facts, as they were known at the time, were not before the adjudicator, (e.g., the adjudicator overlooked them) or the statutory or regulatory provisions extant at the time were incorrectly applied

• the error must be the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and

• the determination must be based on the record and the law that existed at the time of the prior adjudication in question.

Is there a VA form for making a CUE request?

There is no specific form for a CUE claim.  It must be written as a Motion for Revision.  It is advisable to engage a VA-accredited attorney to represent you on a possible CUE claim.  You have only one chance to prove a CUE. 

My Agent Orange benefits don't go back as far as they should. What should I do?

The effective dates for Agent Orange exposure under Nehmer are complicated, and, unfortunately, the VA often gets it wrong.  Let our attorney analyze your “effective date”, the date your benefits began, to see if you have grounds for pursuing back benefits.  

Example: Vietnam veteran is diagnosed with one of the diseases listed by the VA as presumptive AO illnesses that are disabling to a degree of 10 percent or more. Thereafter, the veteran filed a disability claim for this disease on January 1, 1986. The claim was denied by the RO in 1986. The veteran files a second disability claim for this disease in 2011, which the VA grants. The correct effective date for the award of disability compensation is January 1, 1986—25 years before the second disability claim.

Now that the VA recognizes Agent Orange exposure illnesses, should I apply for Widow’s Benefits?

“My spouse was a Vietnam Veteran who did not receive any VA benefits before his death, but now the VA recognizes Agent Orange exposure illnesses.  Should I apply for Widow’s benefits?”

You may qualify.  Not only that, your benefits may go back to the date of death.  

Example: A Vietnam veteran died from complications of ischemic heart disease in 2005. In 2007, a qualifying surviving family member files a DIC claim that VA denies in 2008. The qualifying surviving family member files another DIC claim in 2017, which VA grants based on VA’s rule adding ischemic heart disease to the list of Agent Orange-related diseases. The correct effective date for the award of DIC is the date the VA received the DIC claim in 2007.

What if I applied for Widow's Benefits and was denied?

The law changes regarding service-connected injuries so often that you may now be entitled to Widow’s benefits even if you were not entitled earlier.  Also, the VA is only human, they get it wrong sometimes.  That’s why you need a lawyer to study the case and let you know whether you are eligible for the benefit and whether to appeal, reapply or drop it.

If my spouse was disabled and passed away, will I be entitled to Widow's/Widower Benefits?

If your spouse was 100% disabled for 10 years prior to death, the spouse is eligible to receive Widow’s benefits.  

OR

If the Veteran was not 100% disabled for 10 years prior to death but nevertheless the Veteran’s death was due to or furthered by a service connected impairment, the spouse is eligible for Widow’s benefits.

Do Widow's receive benefits?

The VA provides benefits to spouses who were married to Veterans who died from Service Connected illnesses.  These benefits are called Dependency Indemnity Compensation benefits but they are better known as Widow’s benefits.