Disability Compensation

Disability Compensation

Texas Veterans Commission

Fall Conference 2009

Overview

• Comp. = Key

• 6 Lessons

1. Eligibility Criteria

2. Application Procedures

3. Claims Processing Flow

4. Ratings

5. Dependency Requirements

6. Payments

Eligibility Criteria

• Disability– Injured in service

– Aggravation of an injury in service

– Ill in service & continuing problems

– Condition developed in service

– Presumptive condition within 1 year of discharge

– Presumptive condition from exposure

Eligibility Criteria (Cont.)

• Types of Conditions

– Acute Condition

– Chronic condition

– Acute & Chronic

Eligibility Criteria (Cont.)

• Service Requirements– Active Duty

– Disease or Injury during full-time duty in Reserves or National Guard

– Injury during inactive duty for training in Reserves or National Guard

– No Dishonorable discharge

– Not incurred as a result of willful misconduct

Eligibility Criteria (Cont.)

• Service Requirements (Cont.)

– No Length of service requirement

– No wartime service requirement

Eligibility Criteria (Cont.)

• Establishing Service Connection

– Direct Incurrence

– Aggravation

– Presumption

– As a secondary condition

– Provisions of 38 U.S.C. 1151

Application Procedures

• VA Form 21-526

(Review Blank Form Provided)– Application for Compensation and/or Pension– 7 Pages of General Instructions– 4 Parts (A, B, C, & D)– Each part has sections numbered I, II, III, IV etc.– Each page has the Part & Page number at lower

right hand side of the page.

Application Procedures (Cont.)

Documents sent with Application

• Discharge papers

– DD-214 (copy 4)

– Veterans service before 1947

• Army veterans WDAGO 53-98

• Navy personnel NAVPERS Form 553

– Ltr from National archives

Application Procedures (Cont.)

Required Info on Separation Document

1. Branch of Service

2. Dates of Service

3. Character of Separation

Application Procedures (Cont.)

Documents sent with Application (Cont.)

• VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative

– Specific Power of Attorney

– National Organizations 38 (Membership does not mean POA)

– State Organization is TVC

Application Procedures (Cont.)

Documents sent with Application (Cont.)

• VA Form 21-4142, Authorization and Consent to Release Information to the Dept. of VA– Authorizes VA to obtain private medical

records– One per doctor, hospital or clinic– Not required for VA facilities

CLAIMS PROCESSING

Claims Processing Improvement (CPI) Teams (6)

1. Triage Team

2. Pre-Determination Team

3. Rating Team

4. Post-Determination Team

5. Appeals Team

6. Public Contact Team

CLAIMS PROCESSING(Cont.)

1. Triage team

– Receives Mail

– Processes little development claims

– Routes other claims

• Pre-determination

• Appeals

• POW

• Terminal Ill / Over 65

CLAIMS PROCESSING (Cont.)

2. Pre-Determination Team (Pre-D)

– “Develops” claim

• Request SMR’s / STR’s

• Request Service Records

• Request private medical records

• Request Compensation & Pension (C&P) Exam

CLAIMS PROCESSING (Cont.)

3. Rating Team– Renders decisions

(Rating reference is CFR 38 Part 4)

CLAIMS PROCESSING (Cont.)

4. Post-Determination Team• Prepares, inputs & sends notification letters

CLAIMS PROCESSING (Cont.)

5. Appeals Team

Appeal

– Long Process!

– Other options

• Reopened Claim

• Not possible Claims

CLAIMS PROCESSING (Cont.)

Appeals (Cont.)• Notice of Disagreement (NOD)

– VA Form 21-4138 (Statement in Support of Claim)

– Include:• “Notice of Disagreement with decision of

DD-MM-YEAR”• List each issue• If available submit evidence• Elect DRO or Traditional Appeal Process

CLAIMS PROCESSING (Cont.)

DRO = Decision Review Officer

• One Person

• Reviews Entire Claim

• Authority to Grant Benefits

• If DRO continues denial, Sends SOC (Statement of Case) & Form 9

• Form 9 starts Traditional Appeal Process

• Almost ALWAYS better to elect DRO

CLAIMS PROCESSING (Cont.)

Traditional Appeal (Form 9)

• Make a choice of a hearing or not

• List Issue(s) Appealing

• Make a Statement of Argument

CLAIMS PROCESSING (Cont.)

Appeal’s Time Limits

• NOD (Notice of Disagreement)

– 1 Year from date of Decision Letter

• VA Form 9

– 60 Days from Date of SOC (Statement of Case)

– 1 Year from date of Decision Letter

Whichever is Later

CLAIMS PROCESSING (Cont.)

6. Public Contact Team

– Walk-In Inquiries

– Mail Inquiries

– Congressional Correspondences

– Outreach

– Fiduciary Issues

RATINGS

Facts

• Congress Establishes Amounts

• Percentages Increase with Severity of Disability

• May be Rated at 0%

• Percentage is Impairment in Earning Capacity

• May have several ratings but only one combined rating

RATINGS

Combined Ratings (or VA Math)

30% + 20% is 40%

NOT 50%

Explanation:

A Single rating is what it is.

The second and following rating are the percentage of what is left over after the first or previous ratings.

RATINGS

Combined Ratings (Cont.)

30% + 20% = 40%

100% - 30% (Largest Rating) = 70%

20% (Next largest Rating) of 70% (What was left over) = 14%

Therefore 30% + 14% = 44% That Rounds to 40%

RATINGS

Combined Ratings Table

RATINGS

Read table in Matrix format

1st (Largest Number)

on left,

2nd Next largest Number

on Top

RATINGS

Intersecting Number is Rating

Ends in 4 or below

Round Down

Ends in 5 or Above

Round Up

Therefore 30% + 20% = 40%

RATINGS

Combined Ratings Table Practical Application

1. 60% + 10% =

60%

2. 50% + 30% + 20% =

70%

3. 80% + 40% + 30% =

90%

RATINGS

SMC (Special Monthly Compensation)

• Special Allowance for Sever Disabilities

• Usually Loss or Loss of Use of a body part

• Also for Housebound or in need of A&A (Aid and Attendance)

• 8 Designators (K, L, M, N, O, Q, R, & S)

• Combination & Intermediate Ratings make 60 Different Levels

RATINGS

I/U (Individual Unemployability)

• Rated at Less than 100%, but paid at 100% Rate

• SC (Service Connected) disabilities preclude GAINFUL employment

RATINGS

Gainful EmploymentIS = Over the Poverty Threshold for one Person

www.census.gov/hhes/www/poverty/threshld/thresh07

IS NOT = – Odd Jobs– Jobs in a “Protected” Environment

• Family Business• Sheltered Workshop

RATINGS

Temporary Ratings (38 CFR 4.28, 4.29, 4.30)

• Paragraph 28 (Prestabilization)

Normally for recently separated veterans with unstable disability

– Temp. 50% or 100%

• Paragraph 29 (Hospitalization)

Hospitalized more than 21 Days for SC disability

– Temp. 100%

RATINGS

• Paragraph 30 (Surgical/Convalescent)

– Surgery for SC disability requiring min. 1 month convalescence.

– Surgery for SC disability with severe postoperative residuals.

– Immobilization by cast of SC disability of at least 1 major joint.

RATINGS

Permanently & Totally Disabled (P&T)

• Permanent = Reasonably certain to continue throughout lifetime

• Totally = impairment render it impossible to follow gainful occupation

RATINGS

Reviews & Future Exams

• VA will schedule a periodic reevaluation of disabilities likely to improve

RATINGS

Reviews & Future Exams (Cont.)• Reexamination are NOT usually scheduled

if:– Veteran is over 55– Disability is static– Disability fm disease is permanent– Combined rating would not change if

lowered to lowest level possible– Over 5 years without material

improvement

RATINGS

Protected Ratings

• SC rating 10 years or more cannot be revoked

• SC rating 20 years or more cannot be reduced

RATINGS

Incompetency Rating

• Unable to manage own financial affairs

• Considered in every rating with a diagnosis of psychosis

• If incompetency is found, VA will appoint a Fiduciary

RATINGS

Special Issues, Concern to VA & Congress (7)

1. Post-Traumatic Disorder (PTSD)

2. Agent Orange Exposure

3. Prisoner of War (POW)

4. Radiation Exposure

5. AIDS

6. Asbestos Exposure

7. Mustard Gas Exposure

RATINGS

Review 3 Most Common Special Issues

1. Post-Traumatic Disorder (PTSD)

2. Agent Orange

3. Radiation

RATINGS

PTSD

• Three Requirements for SC

1. In-Service Stressor

2. Current Medical Diagnosis

3. Relationship (Nexus) between Stressor & Diagnosis

RATINGS

Stressor

• Threat to one’s life

• Threat to one’s Relatives or Friends

• Seeing another seriously injured or killed

RATINGSIn-Service Stressor• Combat-Related Decoration is stressor

– Any decoration with combat “V”– 12 additional awards, most common:

• Combat Action Ribbon• Combat Infantryman Badge• Combat Action Badge• Purple Heart

• Veteran without a combat decoration– VA Form 21-781(Statement In Support of

Claim For SC for PTSD)

RATINGS

In-Service Stressor

PTSD From Personal / Sexual Assault• Rape• Domestic Battery• Robbery / Mugging• Stalking

VA Form 21-781 A, (Statement in Support of Claim for SC for PTSD

Secondary to Personal Trauma)

RATINGS

Current Medical Diagnosis• Board-certified psychiatrist• Doctorate-Level Psychologist• Resident / Intern under supervision of

above individuals

Nexus (Connection / Relationship)• Specifically addressed in VA exam

NOTE: Diagnosis & Nexus usually determined by VA C&P Exam

RATINGS

Agent Orange

Eleven Presumptive Conditions

(NOTE: Exposure is not a disability)

1. Non-Hodgkin’s Lymphoma

2. Soft-Tissue Sarcoma

3. Hodgkin’s Disease

4. Respiratory Cancers

5. Multiple Myeloma

RATINGSAgent Orange (Cont.)6. Prostate Cancer7. Type 2 Diabetes8. Chronic Lymphocytic Leukemia

Note: 9 through 11 must diagnosed within one year of last exposure

9. Chloracne10. Porphyria Curanea Tarda (PCT)11. Peripheral Neuropathy

RATINGS

Radiation Exposure

Hiroshima, Nagasaki, Nuclear Testing or Occupational Exposure

Ref: 38 CFR 3.309 (d), & 38 CFR 3.311

Extremely Complex

RATINGS

Gulf War

• Environmental Hazards in Gulf War

• Undiagnosed Illness

• 13 Categories of Signs / Symptoms

• Illness must be Chronic (Excess 6 Months)

38 CFR 3.317

Dependency Requirements

• Rating of 30% or more Receive Additional Compensation for Dependents

• Dependents may Include:– Spouse– Child(ren)– Parents

Dependency Requirements

Dependent Spouse

• Proof of Marriage / Prior Marriage IS NOT required unless conflicting information

• Common Law Marriage IS acceptable in Texas (With Required VA Forms)

• Common Law Divorce DOES NOT exist

Dependency Requirements

Common Law Marriage Forms

Veteran – VA Form 21-4138 Addressing;– Agreement of Relationship at beginning– Time Living Together– Places / Dates of Residence– Any Child(ren) Together– Member of Church / Organization as Husband

& Wife– Business, Legal Document or Real Estate

Together

Dependency Requirements (Cont.)

Common Law Marriage Forms (Cont.)

Spouse

– VA Form 21-4170

Relative / Friend (2)

– VA Form 21-4171

Dependency Requirements (Cont.)

Dependent Child(ren)

• Unmarried, AND

• Under 18, OR

• Between 18 & 23 in Approved Education Institution, OR

• Permanently Incapable of Self-Support Before 18

Dependency Requirements (Cont.)

Dependent Child(ren) Relationship

• Natural / Biological Child

• Legally Adopted

• Stepchild living with veteran or receiving 50% support from veteran

(Some exceptions for stepchildren not living with veteran)

Dependency Requirements (Cont.)

Dependent Parents Relationship– Birth Father– Birth Mother– Father through Adoption– Mother through Adoption– Person who stood in relationship of

parent for 1 year prior to entry into service

Dependency Requirements (Cont.)

Dependent Parents

Requirements

– Conclusive Dependency (Below Income Requirement)

– Reasonable Maintenance

(Above Income Requirement, but doesn’t provide for a reasonable standard of living)

Payments

Effective Date

• Date Entitlement Begins

Date Determined by:

• Within 1 year of Discharge = 1st Day of Month following Discharge

• After 1 year of Discharge = 1st Day of Month after claim was received

Payments (Cont.)

Increases (6 Types)

1. Worsened disability

2. Temp increase for hospital / convalescence

3. Entitlement to SMC

4. Establishment of I/U

5. Cost-of-Living adjustment (COLA)

6. Added Dependents

Payments (Cont.)

Reductions (4 Situations)

1. Improvement in SC Disability

2. Loss of Dependent

3. Incarceration

4. Hospitalization

Payments (Cont.)

Incarceration Reduction

• Over 60 days

– 20% or more reduced to 10% rate

– 10% reduced to ½ of 10% rate

Payments (Cont.)

Apportionment

• Compensation not paid to incarcerated Vet may be paid to Dependents

– Dependent must request the Apportionment

– Dependent must show need

Payments (Cont.)

Rate Protected fm Reduction / Discontinuance

• Rate in effect for 10 or more years cannot be revoked

• Rate in effect for 20 or more years cannot be reduced

Payments (Cont.)

Discontinuances:

1. No longer warrants compensable rating

2. Veteran returns to active duty

3. SC was granted on fraud, error or bad faith

Review

7 Lessons

1.Eligibility Criteria

2.Application Procedures

3.Claims Processing Flow

4.Ratings

5.Dependency Requirements

6.Payments

QUESTIONS