VA pays disabilitiy compensation to veterans who suffered an injury or disease while serving in the U.S. armed forces, and who continues to currently have residual symptoms of that injury or disease. This is called a 'service-connected' disability.
There are three types of service-connection 1) Direct 2) Presumptive and 3) Secondary service-connection.
There are three requirements to establish direct service-connection for residuals of injuries and diseases;
1) In-service documentation of an injury or disease, or an event that caused the injury or disease.
2) A current a medical diagnosis
3) and a medical nexus connecting 1 and 2.
An in-service injury or disease means that it generally must be documented in the veteran’s service treatment records (STR’s) -previously known as "Service Medical Records-. A medical diagnosis means that the claimed condition has to show current residuals from that in-service injury, and it must have a current (within the past 6-12 months) medical diagnosis from a physician. In some instances the diagnosis can be obtained from the VA C&P exam. If the VA sees that your condition was “chronic” while in the service, or that you have medical documentation of continuity of treatment since discharge, more often than not they will schedule the veteran for a C&P exam to obtain the needed diagnosis and current disabling effects of the claimed disability.
Something connecting the two (or sometimes called a "nexus"), means either continuity of treatment of the claimed disability from time of discharge to the present, or, if this is not the case, then a statement will be needed from a physician to establish the link between the two. A lot of times a medical statement, or medical opinion, is a critical part of the veteran's claim. An independent medical opinion can sway the benefit of the doubt in the veteran’s favor if the claim is borderline, or it can flat out prove service-connection in some claims! For example, by borderline I mean let’s say that a veteran was seen for lower back pain once while on active duty over a period of a four year enlistment. And now it is ten years since his discharge and the veteran hasn’t been treated for the lower back until recently, or only had one episode of back pain within those ten years since getting out of the military. The veteran would need a medical opinion stating that his current lower back condition is some how related to the episode while on active duty. Another example of where a medical opinion can establish service-connection would be where a veteran was seen one time for a knee condition while on active duty and this incident is noted in his STR’s. Ten years later the veteran is experiencing pain in that same knee but didn’t have any type of treatment since his discharge, he would need a medical opinion to establish that his current disability is somehow related to the in-service episode.
Presumptive service-connection is when certain disabilities have manifest themselves to at least 10% disabling (some disabilities, however, do not require this threshold though) within the prescribed time limits after leaving military service. These disabilities and diseases do not need to be annotated in the veteran's service treatment records (VA will concede that the disability/disease was incurred while on active duty). Hence, it is "presumed" that the disability or disease occurred while on active duty. The presumptive disabilities and diseases and their periods of manifestations can be found under 38 C.F.R. §3.307, §3.308, §3.309, §3.317 and §3.320.
In addition, please see the new PACT Act of 2022!
Secondary service-connection is when an already service-connected disability has caused another disability. For example, a common one would be lower extremity radiculopathy due to a herniated lumbar disc. The vast majority of secondary service-connection claims require a medical opinion from a physician as stated above to establish service-connection on a secondary basis. Secondary disabilities are awarded service-connection and rated just as directly service-connected and presumptive disabilities and diseases are.
To file a claim for disability compensation, simply fill out the VAF 21-526ez below and attach a copy of your DD214, and any private medical records since your discharge, to the form and submit it to VA.
Applying for an increase in evaluation:
If you are already receiving disability compensation from VA and your service-connected disability has gotten worse since the last rating decision, you can request an increase in evaluation from VA. To do so, simply fill out the above VAF 21-526ez and attach any private treatment records pertaining to your service-connected disability(ies) since your last C&P exam and rating decision. Once the VA receives your request for an increase, it will go through the development phase. After your claim is “Ready to Rate,” it will go to the rating activity for a decision just like a normal claim would. Once the RVSR has made a decision, the rating goes to the Post-Determination team to be promulgated.
If you disagree with the RVSR’s decision, you can either file a supplemental claim with "new and relevant" evidence (explained below), file a higher level review (HLR), or file an appeal (a Notice of Disagreement) with the BVA.
***Please note that when one files a claim for an increase in evaluation, a granted increase by VA may, or may not, change one's overall combined rating. This is, of course, dependent on one's individual rated disabilities. In many, many instances an awarded increase in one or more disabilities will not change the overall combined rating due to the "combined ratings table under 38 C.F.R. §4.25.***
A note on the above VAF 21-526ez; if you are able to submit all the needed evidence with this form, then you'll want to mark the box "Fully developed claim" in item 1 on page 8. If you do not have all of the evidence to substantiate your claim upfront and will be sending evidence after submitting this form, then mark the box "Standard claims process" in item 1 on page 8.
Supplemental claim (having VA re-adjudicate a previously denied claim):
If you have been previously denied a claim for disability compensation and that decision has become final, meaning the one year appeals period has expired, or you're still within the one year of the rating decision and you have "New and Relevant" evidence, you can request to have that claim be re-adjudicated. However, in order to do so, you must submit “New and relevant” evidence with the claim. This means evidence which is “new," or was not previously before the decision maker when they made their previous decision, and “relevant,” which is evidence "that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed."
"New and Relevant" can be either private treatment records or Federal treatment records. If you have private treatment records that are "new and relevant," then either obtain them yourself and attach to the below VAF 20-0995 or attach the VAF's 21-4142 and 21-4142a identifying where those private treatment records are located. If you have Federal records that are "new and relevant" to your claim, then ensure you list them in block 15 of the VAF 20-0995.
Once you have submitted “new and relevant” evidence VA will send out a rating decision as they would like an orginal claim or claim for an increase noted above. Keep in mind that by simply submitting "new and relevant" evidence doesn't mean that your claim will actually be granted. It just means that there is enough prima facia evidence to warrant another look by the VA! To have VA re-adjudicate a previously denied claim with "new and relevant" evidence simply fill out VAF 20-0995 and attach the "new and relevant" evidence to the form and send both to VA.
Priority Processing of a claim:
If you are terminally ill, experiencing financial hardship (forclosure or eviction), age 85 or older, diagnosed with ALS, or a Medal of Honor recipient or former POW, you can request that VA process your claim on an expedited basis by filling out and submitting VAF 20-10207.
Reduction in current awards:
If you are already receiving disability compensation from VA for a disability or disabilities and the VA wants to reduce those awards, the VA will send you a “proposal to reduce” letter showing the proposed action (Proposed rating they want to assign and the effective date of the reduction). This is just a proposal and cannot be appealed. Once you receive a “proposal to reduce,” you have 60 days from the date of that proposal to submit any additional evidence to the Regional Office stating why you think your evaluation shouldn’t be reduced. After the 60 day period is up, a RVSR will make a decision whether to actually reduce the award(s) or maintain the current rating as is. Once the RVSR makes a decision, they will send you a rating decision detailing their decision. If the RVSR decides to reduce the award(s), then the veteran has the one year period to appeal that decision by choosing of the options noted above.
If you want to make the VA hold off on reducing the monetary amount on the proposed date, you can file a request for a hearing. This must be done in writing within 30 days of receiving the “Proposal to Reduce.” Once you have submitted a request for a hearing (just a simple letter as there is no prescribed form) the VA cannot reduce the evaluation on the proposed date until the hearing is held, regardless of how long it takes to have that hearing.
Individual Unemployability (IU) or also known as Total Disability due to Individual Unemployability (TDIU) is a rating that pays veterans at the 100% rate who do not meet the schedular 100% criteria because they are unable to secure and maintain a substantial gainful occupation due to their service-connected disability(ies). The requirements needed to be considered for IU are spelled out in 38 C.F.R. §4.16.
One thing to keep in mind is that if a veteran doesn’t meet the schedular requirements stated in sub paragraph (a), there is still the possibility of obtaining IU under sub paragraph (b). However, considerations under sub paragraph (b) rarely happen because, first, the RVSR must think you are unable to obtain and maintain a substantial gainful occupation due to your service-connected disabilities, which becomes a judgmental call on their part and, second, if the RVSR thinks you can’t work because of your service-connected disabilities, he/she must submit the claim -through the Veteran Service Center Manager- to the Director of Compensation and Pension in Washington, D.C. for extra scheduler approval.
Having said all of this, a veteran still should file the application for IU (VAF 21-8940) if they are unable to work because of their service-connected disability, regardless of their rating percentages. I say this because when a veteran submits VAF 21-8940, it also acts as a claim for an increase in evaluation as well. If the veteran does not meet the schedular requirements stated in sub paragraph (a) and submits the IU application, the VA will first see if the disability(ies) warrants an increase in evaluation. If so, they will determine whether the increase then meets the schedular requirement, and if they do, then VA will address the issue of Individual Unemployability. By submitting VAF 21-8940 when one is unable to secure and maintain a substantial gainful occupation due to their service-connected disability(ies), regardless of their rating percentages, they protect the earliest effective date possible.
If you decide to apply for IU, there are a couple of things you can do to speed the process up a little bit. When sending in VAF 21-8940, you should have each of your former employers from the last five years you worked fill out and sign VAF 21-4192 and then attach them to the IU application. Also, if any of your private physicians can write statements concerning your inability to work because of your service-connected disabilities, they will help and should also be attached to the IU application.
Note: Your service-connected disability(ies) must be the sole reason for being unable to work. If there is any non service-connected disability(ies) involved, then a physician will need to make a statement as to why the non service-connected disability(ies) are a non factor in your inability obtain and maintain any substantial occupation.