This is all the FAQ that have been written to date.

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Dave Barker's Checklist to win a VA Claim:
This is a basic summary for your review.
1. a disability incurred or aggravated by active duty;
2. verification of the event and treatment with diagnosis in the presumptive period;
3. a nexus to the current disability;
4. the validity of the disability under 38 CFR;
5. treatment records showing continuity from the event to current treatment.

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Reasonable Doubt:
Only if there is equal evidence both for and against the veterans claim will the claim be resolved in the veterans favor based on
§ 4.3 Resolution of reasonable doubt.

If the evidence is against the veteran based on sound medical evidence, knowledge or standards of clinical care and diagnosis then this rule does not apply.

Also if the evidence is against the veteran as to the timing and or etiology of a medical diagnosis as to it being service connected, then there is not reasonable doubt.

Reasonable doubt only applies when the scales are balanced, tipping the ruling always in favor of the vet.

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100% Rating Types:

You can be:
100% P & T scheduler
100% temp scheduler
IU P & T - paid at 100%
IU temp - paid at 100%

Scheduler total means your have one or more disabilities that are combined to be rated at 100%. Combined it takes 95.1% to get to 100% scheduler and is very hard, and that is why IU exists. For those who have a lot of disabilities that combine make them unable to work, but do not have a single 100% disability or several 60% plus disabilities.

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Extra Scheduler:
In order to get an extra-scheduler rating, which is what you are proposing, the Asst Secretary of the VA must sign off.

From my reading of available information on this topic, in order to have extra-scheduler approved, you Rating Specialist must decide that you deserve more than the schedule would normally grant. They must take this case to their Regional Director. If they agree it must be written up and sent to the Director of Compensation and Pension Service at the Central Office in Washington. I believe that short of a court order by the CVA, you probably will not have this granted.

The person I found the information from was a Rating Specialist at a RO for 30 years. He stated that in his time he only saw two or three cases submitted for Extra Scheduler Consideration, and that NONE where approved.

And here is a quote from elsewhere:
"Congress must understand that extra-scheduler ONLY comes into play when the AVERAGE scheduler rating doesn't go FAR ENOUGH in adequately determining the EXTENT and EXTENUATING circumstances and other mitigating factors (i.e. massive amounts of medication to control pain, which impedes the thinking process, just ONE of the many factors that stand in the way of the IU from being gainfully employed") when making the final decision that this particular disabled veteran is in fact "totally" disabled, literally as well as figuratively and therefore is assigned the rating of total,100 percent."

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The 4 time rules:

1. 5 years - requires two evaluations before they can decrease your rating after 5 years of continuous rating - scheduler ratings.
2. 10 years - they can not sever service connection except fraud.
3. 20 years - they can not reduce your scheduler rating except fraud. IU is a separate issue.
4. 55 years old - they are not supposed to reevaluate a disability after age 55 that is stable.


"The ten year rule applies to severing service connection, the twenty year rule applies to protected ratings (Title 38 CFR 3.951), if a disability has been static for more than five years, the VA cannot reduce on any one examination (Title 38 CFR 3.344). "

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Total and Permanent


I could never find this portion of the code. I received this from the VA last week as I applied to be made Permanent.

§ 3.340 Total and permanent total ratings and unemployability.

(b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability.

Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling
when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence.

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Psychiatric Disorder

When requesting service connection for a psychiatric disorder, consider Title 38 C.F.R. §§3.303, 3.304, 3.306 and 3.310.

Establishing service connection generally requires: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in–service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. McClain v. Nicholson, 21 Vet.App. 319 (2007); Kent v. Nicholson, 20 Vet.App. 1 (2006); 38 C.F.R. § 3.303(a).

Continuity of symptomatology for purposes of satisfying service connection elements, may be established if a claimant can demonstrate: (1) that a condition was “noted” during service; (2) evidence of post service continuity of the same symptomatology;
and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Barr v. Nicholson, 21 Vet.App. 303 (2007); see also 38 C.F.R. § 3.303(b).


Disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Specifically regarding mental health conditions, the provisions of 38 C.F.R. §§4.125, 4.126 and 4.130 are for particular application.

Subsequent to considering all of the evidence, if a reasonable doubt arises regarding a determinative issue in a claim, the benefit of the doubt should be given to the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

When there is “significant evidence” in support of the veteran’s claim, if the Board denies the claim, it must provide an adequate explanation as to why the evidence is not in “relative equipoise” so as to warrant application of the benefit-of-the-doubt rule in 38 U.S.C.A. § 5107(b) (West 1995). See William (Willie) v. Brown, 4 Vet.App. 270, 273-74 (1993).

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Nexus

To win a claim for VA Disability Compensation, you must prove that the claim is Service Connected. To do this you must prove a nexus.

1. You must document that an injury or illness happened in the military, you where treated for the issue and it is documented in your records.

2. You must have had treatment since the service for this problem

3. There is a relationship between the disability and the medical issue from the service

One additional point, you must have a compensatable disability by VA standards. Some diseases are not rated as disabilities.


There are some exceptions where action in combat or boots on the ground in Vietnam will provide Nexus for PTSD or Agent Orange, but you still must prove an event happened (A Stressor) or you were in Vietnam during a certain period.

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Duty to Assist

Veterans Claims Act of 2000 and Duty to Assist
The new law requires that the VA obtain any records in the VA's possession, or within any other Federal agency. The law also mandates the VA tell the claimant what evidence is needed to support their claim. The VA now must make several efforts to obtain any evidence identified by the claimant.

The VA also must provide a medical examination, if warranted.


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IU - TDIU - individual unemployability

Total disability based upon individual unemployability - TDIU - is an extraordinary remedy available to veterans who do not meet the 100% disability requirement, but who are otherwise unable to secure a "substantially gainful occupation". In these instances a veteran may be awarded TDIU and receive monthly disability compensation benefits as if rated 100% even though the veteran has not received an 100% disability rating.


TDIU bases the monthly compensation on the specific veteran's ability or lack thereof to work. To understand it another way, TDIU is an acknowledgement by the VA that even though the veteran, because of his or her specific conditions unique to the veteran, is not entitled to an 100% disability rating, overall objectively, there are subjective reasons unique to the individual veteran which allow the VA to assign to him a 100% disability rating. The VA focuses on the veteran as an individual, and not on how his or her medical condition measures up against an average composite of all other veterans.

Requirements to TDIU

1. Is the veteran unable to secure, or follow substantially gainful occupation as a result of a service connected disability or disabilities?

2. If the veteran has only one service-connected disability, is it rated at or above 60%? Or, if the veteran has a combined disability of 70% or more, is one of the disability ratings at least 40%?

If it is awarded, a TDIU award may be temporary or permanent depending on the facts involved.

Claims for TDIU are judged on a case by case basis. Each veteran's life is remarkably different. Accordingly, the awards are as unique. They are entirely fact specific.

The primary focus for an award of TDIU is whether the veteran can "secure a substantial gainful occupation".




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Working on VA disability

There are 3 types of VA Service Compensation 100% disability for work purposes.

1. 100% Scheduler – rated 100% for physical disabilities based on the VA CFR schedule.
2. 100% Scheduler for PTSD or other psychiatric disability – by definition can not work.
3. 100% TDIU – Individual Unemployability – the name says it – you can not work due to disability.

Disabled veterans on scheduler disability can work except where the definition of the disability makes the presumption that the veteran is unable to hold a job.

Veterans receiving 100% disability for PTSD may not work, as that is part of the definition of 100% disabled by psychiatric disability.

The definition of 100% PTSD.

Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

This is the 70% definition:

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful cir***stances (including work or a worklike setting); inability to establish and maintain effective relationships

You can see that even at 70% employment is not consistent with the rating, and at 100%, "inability to perform activities of daily living" and "Total occupational and social impairment" to me says that work is an issue. Having this problem means a person is unable to work.

VA Pension by definition says that the person does not have and can not hold gainful employment due to disability and there total income is below the threshold set by law and regulation.


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Concurrent Receipt

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Effective dates

1. The date of separation from service if the claim is filed within one year of separation.
2. The date the claim is received by the Regional Office (RO) if not filed within one year of separation from service.


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New and material evidence
"New" evidence means more than evidence that has
not previously been included in the claims folder, and must
be more than merely cumulative, in that it presents new
information.

Evidence is material if it "tend[s] to prove the
merits of the claim as to each essential element that was a
specified basis for that last final disallowance of the
claim.”

New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim.

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Informal Claim

An informal claim is any claim that shows an intent to apply for benefits from the VA. Usually an informal claim is not filed on the prescribed form and may be unsigned. An informal claim may also result from treatment or hospitalization at a VA facility. So if you write the Regional Office a letter saying you should receive compensation for an illness or injury that first manifested or occurred while on active duty, that is an informal claim.

The RO should send you the prescribed form to complete. You have one year to submit that form to convert your informal claim to a formal claim.

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Social Security Disability Insurance
Veterans are eligible to receive social security benefits. Disabled veterans who are unable to work may apply and receive Social Security Disability in addition to Service Connected Compensation.

Veterans automatically receive extra credit to their Social Security account, and it is applied when they are first granted benefits.

If you served in the military from 1957 through 1977, you are credited with $300 in additional earnings for each calendar quarter in which you received active duty basic pay.
If you served in the military from 1978 through 2001, you are credited with an additional $100 in earnings, up to a maximum of $1,200 a year, for every $300 in active duty basic pay. After 2001, additional earnings are no longer credited.
If you began your service after September 7, 1980, and did not complete at least 24 months of active duty or your full tour, you may not be able to receive the additional earnings. Check with SSA for more information.
Unlike the VA, Social Security has a simple standard. Either you can work, or you can not. If you can not you are disabled and eligible for Social Security Disability. Social Security pays each claim based on the earning credit, so each individual collects a different amount.

Social Security uses what is called the Blue Book for their ratings.
http://www.ssa.gov/disability/...ok/AdultListings.htm

By law, Social Security has a very strict definition of disability. To be found disabled:
• You must be unable to do any substantial work because of your medical condition(s); and
• Your medical condition(s) must have lasted, or be expected to last, at least 1 year, or be
expected to result in your death.


There is a 6 month waiting period when you can not work. This period can begin before or after you file. If your last day of work is Friday, then the period would begin on Saturday and last 180 days. During that period you will receive no benefits. After the waiting period, you will start to receive a monthly check. Checks or direct deposit are on Wednesday of each month and vary the date day of your birth.

Second Wednesday If birth date on 1st - 10th
Third Wednesday If birth date on 11th - 20th
Fourth Wednesday If birth date on 21st - 31st

<<Note those claims filed before a certain date are paid on the third of the month>>

The SSDI Disability starter kit can be found at:
http://www.socialsecurity.gov/...r_kits_adult_eng.htm

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VSO Availability
Dave Barker a VSO with AMVETS, along with the other two service officers on this board who are moderators Daniel and Tim have shared this information with us.

Sometimes a VSO is so overwhelmed by those claimants present in the office, it is difficult to return phone calls. On a daily basis a [Service Officer[/b] (VSO or NSO) may see between 24 and 45 veterans. With that type of work load it is hard to return the 40 phone calls a day. Many work 10 hour days and have only part time help. They also may have several remote officers they must visit within the region, taking them out of the office.

Hopefully you will not be to harsh on the VSO.

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What will my rating be?
Your condition will be evaluated by a Rating Specialist (RS). It is based on the degree your condition falls in the rating schedule. The RS will compare all of your progress notes (treatment records) your current work history, as recorded by you, your doctor and possibly your current employer. This information is compared to your statements made in developing your claim. Everything is developed through the Schedule of Rating Disabilities (scale). It is difficult for a VSO to tell anyone what a rating will be without all of the data.
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Appeals

Appeals can only be taken on final decisions (proposed reductions are not final decisions) by the agency of original jurisdiction, usually the Regional Office (RO). Every final action should include a letter advising the claimant of the decision, (the reasons and basis) and include a notice of appeal rights. Just about anything in the RO’s decision can be appealed, . The appeal process must begin within one year of the date of notice or the decision becomes final and cannot be appealed. Medical decisions can not be appealed to the RO.

Appeal vs. New Evidence: When the decision is made, your will get a copy of the narrative of the decision explaining why the decision was reached. Read it over, and if it appears that the decision can be overturned by supplying missing evidence (i.e. a VA form 21-8940, or a diagnosis of a claimed condition ect.), obtaining the evidence needed is the better (and often quicker) path to take.

What is the Issue, and Can Your Prevail on Appeal?
• New and Material Evidence-If the reopened claim is denied for lack of new and material evidence, that will be the only issue that can be appealed. New meaning the evidence has not been previously considered, and is not redundant of the evidence of record. Material in that it bears directly and probatively to the issue at hand. Once a claim is considered reopened the VA then has to determine whether or not the claim can be granted based on the evidence now of record. Sometimes claims are denied for reasons that cannot possibly be overcome.
• Relationship to Service or Service Connected Disability-Whether or not the claimed condition has it's origins in service or a medical relationship to a service connected disability. This requires a probative medical opinion substantiating a link between the claimed condition, the opinion of a lay person will not generally suffice.
• Diagnosis-Validity of disability under Title 38 C.F.R. and/or the ICD-9 or DSM-IV-TR. There must be a definitive diagnosis, unless otherwise provided under Title 38.
The Board of Veterans Appeal has often applied the regulations, statutes, and Court precedents very liberally in their final decisions, however, without any of the three as outlined above with almost always result in a denial.

The most expedient course of action would be to identify whether or any of the three issues are deficient. Reopen the claim within the 1 year appellate period to have the claim readjudicated (38 C.F.R. 3.156(b), and 3.400(q)). Should the reopened claim result in a denial, and you feel strongly that the RO was wrong in the denial, file the NOD and then continue obtaining additional evidence required to prevail. This is the first step in the appeals process. It is best to work with a VSO on your appeal.

DeNovo Review or Decision Review Officer (DRO) process 38 C.F.R. 3.2600

***In many Regional Offices, you must elect a DRO or default to the Traditional Appeals process***

A Decision Review Officer (DRO) is part of the appeals process prior to advancing the appeal to the BVA Board of Veterans Appeals. A DRO is a "senior" rater who didn’t participate in the decision being reviewed and has the authority to over turn the prior deicsion, initiate additiona development or examinations, and if requested will conduct a hearing on the appealed issues. The DRO step is optional; you may waive this step and elect a traditional appeal. In my opinion the DRO step is another opportunity to win your claim without the two year or longer wait to get the appeals hearing. Appeals are hard to win. Every tool provided should be considered. This is an area where you need an experienced professional supporting you.

A DRO hearing may be formal or informal, may be conducted in person or via video-teleconference, or at your choice may be resolved without your presence.

A DRO can consider all evidence of record and applicable law and will give no deference to the decision being reviewed. A DRO can only increase, not decrease, your rating (so you are getting two bites at the apple) unless clear and unmistakable error improperly gave you a higher rating.

BVA – Board of Veterans Appeals – A department of the VA
If you are still not successful with the DRO, you can appeal to the Board of Veterans Appeals by completing a VA form 9 subsequent to obtaining a Statement of the Case (SOC). The VA Regional Office will mail you a SOC describing what facts, laws and regulations were used in deciding your claim.

You must file your appeal with the Regional Office and not directly with the Board. You must appeal on a timely basis, typically 60 days from the mailing of the SOC or within the 1 year appellate period, which ever is later. Again that information will be in the SOC decision you receive from the RO after the DRO makes a decision.

You can request a personal hearing before the BVA prior to the Board deciding your appeal. You have 3 options.

1. Go to Washington , DC and appear before the Veterans Law Judge (VLJ) in person.
2. Request an in-person hearing at the VA Regional Office when the VLJ is scheduled to hold hearings at that office – expect a wait for your case to be heard.
3. A video conference hearing. This hearing is on the informal side, with the VLJ listening to you or your representative present the case in favor of your claim, and asking question about your case.
There is a statistically slightly higher chance to prevail on your appeal if you appear in person, however there is risk that you may do or say something to negatively influence your case. Regardless of the choice of the method of hearing you chose, you and your representative have the opportunity to make a written presentation of your case to the BVA.

You need professional help to make a good case if you expect to win. Many Veterans Service Officers do this on a regular basis, and all the major service organizations have representative at the Regional Offices who are experts at appeals

The BVA can take one of these actions:

1. Grant the claim and award the benefit.
2. Uphold the RO decision and deny the claim.
3. Remand the case to the RO to correct their errors or develop the issues.
A remand requires the RO to take actions to properly adjudicate your claim. Remand orders are usually directed to the VA Appeals Management Center (AMC) for action, but can be referred to the RO.

The mission of the AMC is to process remands timely and consistently. The AMC has complete authority to develop remands, reach decisions based on additional evidence gathered, and authorize the payment of benefits. If the AMC is unable to grant an appeal in full, the appeal is recertified to BVA for continuation of the appellate process.

U.S. Court of Veterans Appeals (CAVC) – an Independent court of the Federal Judicial Branch
If you disagree with the decision of the BVA, you can appeal to the U.S. Court of Appeals for Veterans Claims. You must file a Notice of Appeal with the Court within 120 days from the date of the board’s decision. There is a $50 filing fee which in some cases may be waived. You will be required to obtain private counsel, or an attorney. Some Service Organizations will represent before the Court at their choosing. No additional evidence may be submitted at this point, and hearing presentations are not automatic as a right of due process. The Court will only discuss whether or not the interpreatin of the law, it application or any other instance of the same was valid at the time of the BVA's decision.

The next level is the U.S. Court of Appeals for the Federal Circuit, then the Supreme Court. Very few of the hundreds of thousands of claims ever reach these appeal courts and you can expect to spend one or two decades on these appeals.



VA Math – one plus one does not equal two

The VA math is based on a formula of takes into the residual efficiency of an individual after taking the first disability into consideration. Each disability is used in order of the percentage rated by the RO.

So if you have a disability rated at 50%, you have a 50% residual or remaining non-disabled capability. Then if you have an additional disability of 30%, that is applied against the residual capacity of 50% for an additional disability of 15%. That then totals 65% total disability.

If a third disability of 10% is assigned, then that is 10% of 35% or 3.5% for a total of 68.5%. And if a forth disability is assigned, then you take residual of 31.5% times the 10% for an additional disability of 3.15%. We now have a total of 71.65% or rounded to 70%.

So the math is 50%+(30% * 50)+(10% * 35)+(10% * 31.5) = 71.65 rounded to 70%.

This message has been edited. Last edited by: Dave_M,