Understanding Veterans’ Disability Law
For those who have served our country in the Armed Forces, Congress has passed laws that provide for extensive medical and disability benefits. Congress wrote these laws to be “veteran-friendly.” Unfortunately, the Department of Veterans’ Affairs does not always interpret these laws in favor of the veteran.
Click to listen to Brian Hill speak about veterans disability law and VA claims lawyers.
Types of VA Benefits
Service Connected Disability Compensation Benefits
VA service connected disability compensation benefits are monthly payments made to veterans, and, in some cases, their families. The veteran is entitled to compensation when he can show that this disability is related to an injury or event in service. The disability payments, known as the disability rating are based on the degree of the current disability. A veteran does not have to be completely disabled to receive compensation benefits.
Non-Service Connected Pension Benefits
For servicemen who served in a period of war, the VA law allows non-service connected pension benefit, regardless of whether the disability was service connected. This veterans benefit is income and asset tested and only applies to those wartime veterans who do not have significant income and assets and are completely disabled.
Widows and widowers of deceased veterans may also be entitled to payments based on a disability of their spouse. The VA law provides for a monthly payment, known as DIC benefits, where a service connected condition contributed to the death of the veteran or where the veteran was totally disabled because of a service connected condition for a certain period of time before the death.
Making a Claim For VA Compensation
Congress designed the veterans’ claim process to be veterans’ friendly. As President Lincoln said the purpose of the Department of Veterans’ Affairs is “to care for him who shall have borne the battle and for his widow, and his orphan.” There is no time limit on when a claim can be brought. Congress recognized that, sometimes, an event that occurred in service may take many years to cause a disability. In these cases, the veteran is entitled to bring a claim no matter how long it has been since he got out of the service.
Just as important, a veteran has the right to reopen a claim that has already been denied by the Department of Veterans’ Affairs. In order to get another chance at proving his claim, all the veteran needs to do is produce new and material evidence showing that his claim should be granted.
Retroactive Awards for Veterans Disability Claims
If you receive a favorable award from the VA, you should read the Rating Decision closely. You want to read what evidence the VA used to determine your rating. It is imperative to make sure that you received all the benefits to which you are entitled. Specifically, you should closely scrutinize these parts of the Rating Decision: the award of service connection, the degree of disability granted, and the effective date of the award.
Get a Good VA Claim Lawyer
As VA disability lawyers, we routinely see veterans win the battle of service connection only to lose the war of getting the proper compensation. What this means is that service connection is the acknowledgment by the VA that your disability is related to service. A lot of times the VA grants service connection and low balls the rating. The differences in the percentages for the ratings vary greatly from $100 to $3000. It is important to make sure that the rating VA assigned is the proper one. A good VA claim lawyer is going to review the VA’s C&P exams against the veteran’s own evidence to make sure that the full award is given. A lot of times this careful review results in an appeal to get the proper benefits.
Another common mistake is not to fully investigate the effective date. VA disability lawyers are going to look back at all your previous claims in the C file and determine if there is a way to take the benefits back further than the date of the current claim. In some cases, your award may have an effective date that could go back for decades. When this happens, the VA is required to pay you all of the benefits you would have received over the years. This could result in a very large award of money.
Why Hire a Veterans Disability Lawyer
Veteran’s Disability Law is an extremely complex area of law. Prior to 2006, veterans were not allowed to hire VA disability lawyers to represent them in the Regional Office and the BVA. This law was changed in 2006 with the recognition by Congress that veterans should have the right to hire VA claim lawyers in this very important area of law. In veteran’s disability claims, a VA disability lawyer can help clarify the issues and ensure that the claim is properly supported by evidence so that the claim can be appealed, if necessary.
There are many VA disability lawyers so the question is how to select the proper one to represent you.
Selecting A Veterans Disability Lawyer To Fight For Your Claim
The decision to hire a VA claims lawyer to represent you for your VA disability compensation claim is an extremely important one. If you are going to pay a VA disability lawyer then that lawyer must be able to do more for your claim than the free representation that you can get from a veteran service officer. The VA claims lawyer must prove to you that they bring value added to your claim. Once you sign a contract with a VA disability lawyer you cannot easily get out of it.
Here is a checklist that you should use in researching and interviewing a VA disability lawyer for your claim:
VA Disability Lawyer Checklist Before Hiring
Any lawyer who holds himself out as a VA claim lawyer has to be ‘accredited’ by the VA. Please understand to become a “VA accredited attorney” means that the lawyer only had to watch a three-hour video for the accreditation process. VA has thousands of regulations and rules. Three hours is not enough to even do an overview of these laws. Further, most VSOs have more rigorous training than this; VSOs do not charge for representation. If the lawyer holds out being ‘accredited’ as the only experience that he has in VA law that is a red flag. If this is all the experience and training the lawyer has that means that the lawyer will be using your veterans claim case to get training on veterans law. His errors could undermine your case. Your case is too important for that. You want a VA disability claims lawyer that has practiced in this area for, at least, several years. You want to see a resume that shows expertise in the field. You want to see a VA claims lawyer who is involved in the advocate community and legal education, teaching others, and writing papers or books on how to represent veterans and VA claimants.
VA disability law is complicated and requires constant training and studying of the law as it changes. If you see a law firm that shows it does five different areas of law this is a red flag. If you see the firm doing many areas of law then you want to look and see if there are VA disability lawyers in the firm that only practice VA law. If not, you are trusting your case to someone who does not specialize in this area. VA law is too complicated to practice on a part-time basis.
An experienced VA disability lawyer will tell you about his plan to win your benefits. Now this plan will most likely be general in nature because, as any good VA claims lawyer knows, there is a lot of information to gather before a definitive plan is in place. This detailed plan would involve getting medical records, service records and previous decisions, all of which is found in a veteran’s C file. For a review of your latest decision, coupled with a detailed talk with you should allow the VA claim lawyer to understand what evidence might be missing and, at least, a goal for the benefits you should be getting.
Every claim is different and unique to that veteran. However, there are broad areas of claims—mental health, TBI, orthopedic, exposure cases—that experienced VA claims lawyers deal with. Make sure to ask if the VA disability lawyer has handled a case similar to yours before.
You want a lawyer that has an excellent record. At Hill & Ponton, if we determine that we can win a case then we are successful over 90% of the time. Granted, there are times when we get a case and we just don’t have the facts to prove it but any experienced VA claims lawyer should have a very high success record.
When You Do NOT Need an Attorney for Your VA Claim
This includes an original claim, a claim for increase, or a reopened claim. In these situations VA has a duty under the law to help you win your claim by getting any service records, social security records, VA medical records and private medical records that you tell VA are important to your claim. VA must also send you to one of their doctors, a C&P exam, if there is need for a medical opinion to win your case. In these situations you need to submit evidence or let VA know where to get it but you should make VA fulfill its duty.
VA often fails to pay a veteran for dependent benefits when a veteran wins service connected benefits. A veteran could hire an attorney here to appeal it but it would be easier and much faster to apply online through Ebenefits. A veteran service officer (VSO) can handle this claim for a veteran as well.
There has been a lot of information in the news of late where the VA ‘set’ C&P exams that the veteran never received notice for. Then VA turned around and denied benefits on this basis. Additionally, there are times where a veteran does not get notice of the C&P exam because it goes to the wrong address or the veteran has a conflict. In these situations, it would be best to not appeal but to write a letter to VA and explain why the veteran was unable to attend the C&P exam. Remember the veteran has a year to appeal the decision. Writing a letter about why the veteran could not attend and then asking for a new exam is potentially a faster way to get the proper benefits. Now if there is no response to the letter asking for a new exam after several months then the veteran should consider appealing. The appeal will take longer—possibly years—but if VA is not going to respond to the request for a new exam it is better to move the case forward.
Was VA missing evidence that you have and you know that will prove your claim? Can you get a statement from your doctor?
