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Special Monthly Compensation – Is it possible to be rated higher than 100%?

Basic VA compensation is designed to compensate the veteran for reduced earning capacity with the maximum compensation for a single veteran without dependents being $2769 per month for a veteran who is rated 100% disabled.  While this amount is certainly helpful to a disabled veteran, we are often approached by veterans for whom this amount falls short of providing the care they need.  In addition, some disabilities affect more than a veteran’s ability to earn.  Recognizing these shortcomings in the compensation system, the VA regulations do provide for compensation above and beyond 100% in specific circumstances.  This type of compensation is called special monthly compensation and is often referred to as SMC.

SMC’s are not based on a disability’s effects on earning but, rather, are designed to compensate a veteran for non-economic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability.  For instance, SMC’s may be available to veterans with disabilities which involve the loss of a limb, loss of vision, loss of hearing, or erectile dysfunction.  It is important to note that while loss of a limb qualifies for SMC, a veteran may also qualify for SMC for loss of use of a limb.  For instance, if a veteran cannot balance or step off of his foot, he may have lost the use of that foot so as to qualify for an SMC.  Similarly, if a veteran cannot pick up objects with his hand or write with a pen, he may qualify for an SMC for loss of use of that hand.

SMC’s are identified by letters ranging from (k) to (s), and while the SMC(k) ratings provide only an additional $99 per month, some of these SMC’s provide substantial support above and beyond the amount awarded for a 100% disability.

 One SMC that we are commonly asked about is entitlement to aid and attendance.  This SMC is available for veterans who, due to their service connected disabilities, need assistance in tending to their daily needs.  Depending on the level of care the veteran needs, this SMC can provide anywhere from an additional $677 per month to an additional $5156 per month.   This is, then, a significant benefit to the veteran and his family.

What does it mean to need aid and attendance?  If the veteran regularly needs someone to help him with dressing and undressing, bathing, taking care of personal hygiene, or making sure that he does not injure himself, he may qualify for this SMC.  It is important to note that the person providing this care does not necessarily have to be a medical professional.  Even if this care is provided by a family member or neighbor, the veteran may still qualify for aid and attendance benefits.  Where the care of a medical professional is required, the veteran may qualify for special aid and attendance benefits which provide increased compensation.

The VA is supposed to consider whether a veteran is entitled to SMC benefits whenever the evidence in his claims file indicates that he is entitled, even if he has never formally requested such benefits.  Sometimes, however, this can be overlooked.   You know your disabilities and your limitations better than anyone else, so it is important that you be aware of what may be available to you so that you can make the VA aware of the benefits to which you are entitled.

For Questions About Your Disability Claim... Contact Us

by Attorney Shannon Brewer
January 10, 2012

Non-Service Connected Pension

Service connected disabilities are defined as injuries or illnesses that are incurred in or aggravated by active military service. A disability can also be service connected through “secondary” service connection.  Secondary service connection was discussed in our October 4, 2011 post.

Many veterans are aware that when filing for VA disability benefits, they are entitled to file for service connected compensation. However, many are unaware that there are disability benefits available for other disabling conditions, even if they are not related to military service.  These benefits are known as non-service connected pension or simply known as veteran’s pension.  Assuming that a veteran meets all of the requirements for a pension, he/she could qualify even if none of the disabling conditions are related to service.

A veteran may qualify for pension if he/she:  (1) served during wartime, (2) has limited or no income, and (3) is age 65 and over, or if under 65, is permanently and totally disabled. In addition to these requirements, there is a length of service requirement (depending on the date the veteran entered active duty), the service must have been under conditions other than dishonorable, and the disabling conditions must not be the result of willful misconduct.

I will discuss three of the basic requirements for pension in this post.

Wartime Service– One might assume that this means a veteran has to have actually served in a war in order to be eligible. However, this assumption would be incorrect.  The wartime service requirement is fairly simple to meet as long the veteran’s service was within a qualifying period.  Meaning, the veteran does not have to have actually gone to war, the veteran simply has to prove that his/her service was during a period of war. In 38 C.F.R. §3.2, the VA gives the specific beginning and ending dates of each qualifying war period.  For example, the “Vietnam Era” encompasses the period beginning on February 28, 1961, and ending on May 7, 1975 for veterans who served in the Republic of Vietnam and from August 5, 1964 through May 7, 1975 in all other cases. 

Limited or No Income- a veteran must meet the income requirement in order to be eligible for pension. The VA will consider the veteran’s income, as well as the income of his dependents, including spouses and children. Countable income includes earnings or wages, retirement payments, interest and dividends, and some disability payments.  It is worth noting that even if a veteran has income that may appear to be over the limit, it is possible that the VA may be able to exclude some income from the calculation in certain circumstances, such as if the veteran has qualifying unreimbursed medical expenses, certain educational expenses, if the veteran receives Supplemental Security Income (SSI benefits), etc. It is best for a veteran to list all sources of income when filing for pension, and the VA will determine whether or not the veteran is over the income and net worth limits. 

Age 65 and Over- veterans who are age 65 and over do not have to prove they are permanently and totally disabled as long as they meet the other requirements such as qualifying length of service, wartime service, limited income, etc.  

If Under Age 65, Must be Permanently and Totally Disabled- The VA determines permanent and total disability by considering several factors, such as whether the disabilities are likely to improve with appropriate treatment, pertinent medical opinions regarding the permanency of the conditions, the length of any required hospital care, etc.  For veterans under age 40, the VA looks at the issue of permanent and total disability with more scrutiny.  For a veteran under 40, 38 C.F.R. § 3.342 states that “permanence of total disability requires a finding that the end result of treatment and adjustment to residual handicaps (rehabilitation) will be permanent disability of the required degree precluding more than marginal employment.”

Veterans entitled to pension are paid based upon the Maximum Annual Pension Rate (MAPR). The pension rates can be found on the VA’s website at http://www.vba.va.gov/bln/21/rates/pen01.htm.  As an example, as of December 1, 2011, a veteran without a spouse or child is entitled to a maximum pension rate of $12,256 per year, and a veteran with one dependent would be entitled to $16,051 per year. For each additional child, or if the veteran is housebound or requires aid and attendance, the amounts increase.

The lesson to take away is that a veteran may be able to receive pension benefits based on the combination of his/her disabilities, including service and non-service connected conditions.  It is important for the veteran to always file for non-service connected pension if there is a possibility that he/she may qualify. Even if a veteran is initially awarded based on disabilities that are not service connected, he/she can always attempt to establish service connection at a later date. If a veteran is entitled to both service connected compensation and non-service connected pension, the VA will pay whichever of the two benefits results in the higher amount, not both.

For Questions About Your Disability Claim... Contact Us

by Attorney Leslie Gaines
January 6, 2012

The Listing of Impairment

Social Security uses a five-step sequential evaluation process to determine a claimant’s eligibility for benefits.  First, the agency considers whether the claimant is presently working, and doing so at the level of what is known as “substantial gainful activity.”  If so, the claimant will be found not disabled; if not, the agency moves onto step two.  At step two, the agency asks whether the claimant has a severe medically determinable physical or mental impairment (or combination of impairments) which will last for twelve months or end in death.  If so, it will move onto step three; otherwise the claimant will be found not disabled.

The third step is the focus of this post.  At this step, the agency considers whether a claimant has an impairment that meets or equals one of the descriptions of conditions posted at appendix 1 of CFR §404.1520.  (Adult listings (Part A) can be found at http://www.ssa.gov/disability/professionals/bluebook/AdultListings.htm.  Childhood listings (Part B) can be found at http://www.ssa.gov/disability/professionals/bluebook/ChildhoodListings.htm.)  This appendix addresses with specificity a number of medical conditions, and details various aspects of each condition that must be present and documented for a claimant to meet or equal the listing.  If a listing is met or equaled, the claimant is found to be disabled.  If not, the agency moves onto the next step.

Although not the focus here, the last two steps of the process are worth noting.  At the fourth step, the agency considers a claimant’s functional capacity despite their documented limitations and asks whether that claimant could perform the work they have performed in the last fifteen years.  If a claimant would be able to perform past work, he or she will be found not disabled.  If a claimant is unable to perform his or her past work, the agency moves onto the last step, which asks whether the claimant could perform other work, given their age, education and work experience.  If a claimant can perform other work, they are not disabled; if step five yields no jobs that a claimant could do despite their impairments, then benefits are generally awarded.

Returning to step three and the listing of impairments, there are fourteen categories of impairments in the appendix, including musculoskeletal system, special senses and speech, respiratory system, cardiovascular system, digestive system, genitourinary impairments, hematological disorders, skin disorders, endocrine disorders, impairments that affect multiple body systems, neurological, and mental disorders.  Within each category are various impairments.

As a claimant enters the Social Security disability process, it is wise to consult the listings and consider whether his or her condition (and its severity) is described in the listings.  This is somewhat rare, as the standards are difficult to meet.  Furthermore, even if a claimant’s condition does meet one of the listings, he or she must be able to prove it with documentation. 

A great example is epilepsy, which is addressed in sections 11.02 and 11.03 under the category “Neurological.”  To meet the listing for convulsive epilepsy (grand mal or psychomotor), the condition must be documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once a month, in spite of at least 3 months of prescribed treatment; with daytime episodes (loss of consciousness and convulsive seizures) or nocturnal episodes manifesting residuals which interfere significantly with activity during the day.  Though the severity of a claimant’s epilepsy may meet this description, it may not be documented.  However, a claimant who is aware of these requirements would know to carefully document and report to their treating neurologist specific information about each seizure occurrence.  This type of documentation could allow for much quicker resolution of a claim.

Remember, documentation is the key.  A claimant must report disabling symptoms to their doctors so that the information appears in their medical records, especially when trying to prove listing-level severity.

For Questions About Your Disability Claim... Contact Us

by Attorney Anna Cowan
January 5, 2012

Bipolar Disorder and Social Security Disability Benefits

There are several types of mental impairments that qualify for Social Security Disability. Social Security has carved out categories of mental impairments that are considered severe enough to prevent a person from doing any gainful activity. Even though there are many different types of mental illness that may satisfy the requirements for benefits, this article will focus on Bipolar disorders and its effect.

According to The Merck Manual, “Bipolar disorders are characterized by episodes of mania and depression, which may alternate, although many patients have a predominance of one or the other.” Moreover, Bipolar disorders are classified as:

 Bipolar I disorder: Defined by the presence of at least one full-fledged (i.e., disrupting normal social and occupational function)

 Bipolar II disorder: Defined by the presence of major depressive episodes

 Bipolar disorder not otherwise specified (NOS): Disorders with clear bipolar feature that do not meet the specific criteria for other bipolar disorders

This type of condition involving depression and/or elation has to be well documented. It must also show that your condition has lasted or is expected to last for 12 consecutive months. Social Security will review all hospitalizations related to your mental illness we well as mental status exams, and Psychological testing. This is how Social Security determines how limited you are and if the condition satisfies the requirements of the law.

Bipolar disorder is a mental illness that is commonly misunderstood because those diagnosed with the disorder often have good and bad days. Even if someone responds to treatment, that person may still be seriously limited in their ability to work.

Some people experience loss of interest in things they used to enjoy, changes in appetite, difficulty sleeping—whether it is sleeping too much or not able to sleep at all. I have interviewed people that during a manic episode, they are full of energy and euphoric. At times, they can go days without sleeping then suddenly crash into dark depression experiencing feelings of guilt or worthlessness– even suicidal thoughts.

As mentioned earlier, the symptoms from the diagnosis have to be severe enough. This means, that your ability to function is limited resulting in serious restrictions in your daily activities, social functioning or even difficulties in maintaining concentration. This is how Social Security evaluates whether you have the ability to carry out simple tasks required in the most basic type of work.

It is helpful if your psychiatrist or psychologist can put in writing just how the symptoms of Bipolar affect you. If anyone knows you well enough and how your life is affected, it would be your psychologist or psychiatrist. They are in the best position to tell social security just how the condition affects you daily life and whether you have responded to medication, and if there is likelihood of improvement.

For Questions About Your Disability Claim... Contact Us

by Attorney Wendy Rivera
January 5, 2012

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