AI & the Accredited Representative

What is Artificial Intelligence
How is Artificial Intelligence Being Used & By Who…..
Benefits of Artificial Intelligence for Veterans and Accredited Representatives
Cautions & Hazards of Using Artificial Intelligence
Best Practices

Objectives

Artificial intelligence (AI) is the capability of computer systems or algorithms to imitate intelligent human behavior, such as learning, reasoning, problem-solving, and decision-making.

AI Subsets:
Machine Learning (ML): A core subset where computers learn rules and improve from data analysis without being explicitly programmed.
Deep Learning: An advanced form of ML using neural networks inspired by the human brain to handle complex tasks like speech and image recognition.
Generative AI: Systems trained on large datasets to create new content, such as text, images, or audio.

What is Artificial Intelligence?

Everyday Examples
Virtual assistants like Siri and Alexa
Customer service chatbots and support agents
Recommendation systems on streaming and shopping platform

Generally Benign and Innocuous…..

Everyday Examples of AI

Federal & State Governments
Dept of Veterans Affairs (directly impacting accredited Reps and Veterans)
Corporations & Social Media

Claim Sharks or Fee-Based Services
VetClaims.ai: Offers flat-fee ($1,250) record analysis and evidence building without taking a percentage of your back pay.
VeteranAI: Provides a subscription-based self-service tool to analyze C-Files (Claim Files) and draft personal or buddy letters

Every Iphone and Android User

How is AI Being Used & by Whom

Productivity
VA GPT: VA’s Generative AI Chat
Claims Screening & Records Review
Software Development
Clinical Care
AI-Assisted Clinical Decision Support
Veterans Health Administration Stratification Tool for Opioid Risk Mitigation (STORM) is an AI-driven clinical decision support system designed to help mitigate risk factors for overdose and suicide among Veterans who are prescribed opioids and/or with opioid use disorder
AI-Assisted Colonoscopy
Fraud Detection
Identifying potentially fraudulent changes related to payments

Veterans Affairs Use of AI

Artificial intelligence is potentially transforming veteran services by accelerating benefit claims, improving healthcare outcomes, and easing administrative workloads at the Department of Veterans Affairs
Targeted treatments: AI analyzes electronic health records and genetic information to help screen for traumatic brain injuries, toxic or burn pit exposures, and early signs of cancer
Assistive health devices: AI-powered wearable tech, such as Cala TAPS therapy, treats essential hand tremors non-surgically, helping veterans regain daily independence.
Assistive research for medical case studies to help support service connection
Clarifying VA letters and regulations into common language and reducing “legalese”

Benefits of AI for Veterans

Hallucinations and Errors
General AI chatbots can fabricate case law, misinterpret federal regulations, or provide incorrect answers regarding disability criteria.
Lack of Access
Public AI tools cannot access private Department of Defense or VA claims files (VBMS), meaning they lack complete case histories
Hallucinations and Errors
General AI chatbots can fabricate case law, misinterpret federal regulations, or provide incorrect answers regarding disability criteria.
Potentially Fraudulent Claims

Limitations & Risks for Veterans

Automated Document Analysis
AI tools can instantly scan, sort, and extract relevant data from bulky medical records, Disability Benefits Questionnaires (DBQs), and supporting evidence, turning hours of manual review into minutes. (Create a Synopsis)
Reduced Burnout and Backlog
By automating repetitive paperwork and administrative tracking, AI tools free up hours each week per advocate
Improved Accuracy and Flagging
Machine learning models can cross-reference claims against updated criteria, helping catch missing records, inconsistencies, or unverified medical opinions before a claim is submitted.
Appeals Arguments & other Correspondence
Automatic grammar and spell checking
Clarifying writing style

Benefits of AI for Accredited Reps

Inaccurate Medical Documentation
Clinicians are increasingly using generative AI to draft patient notes and support clinical decisions.
The VA OIG warned that these tools routinely omit information and produce inaccuracies. If a VSO relies on AI-generated Electronic Health Records (EHR) to build a disability claim, they may unknowingly present flawed medical evidence
How do we Know??

Hallucinations and Errors
General AI chatbots can fabricate case law, misinterpret federal regulations, or provide incorrect answers regarding disability criteria.
Others??

Hazards of AI for Accredited Reps

Drafting & Structuring Statements
Use AI to turn a veteran’s raw bullet points and spoken recollections into a coherent narrative layout for a personal statement
Explaining Claims in Plain Language
You can ask AI to translate dense medical or bureaucratic jargon into simple terms that you can use to explain the claims process to veterans
Summarize long documents, articles, or meeting notes
Translating foreign medical files or documents
Brainstorming Secondary Conditions
If a veteran has a primary service-connected condition, you can use AI to research common secondary conditions that you might want to have them discuss with their PCM

Potential Practices Using AI

Consider the purpose of any decisions to use AI technologies and ensure that the scope of application is well-defined so that the benefits of use outweigh the risks.
Safety and Security of any PII
Potential for Fraudulent Claims

AI is a tool, not a mandate or requirement

Tips for assessing when to use AI

Questions??

AI & the Accredited Rep

Please scan the QR Code or click on the link below to take an anonymous survey about your experience during the Training Conference.

https://www.research.net/r/ZG5FHLK

ANCILLARY BENEFITS

Ancillary benefits are:

Secondary benefits that are contingent on a veteran’s eligibility for compensation or a dependent’s eligibility for Dependency and Indemnity Compensation (DIC)

Eligibility for ancillary benefits is based on the type of disability entitlement the veteran has or the circumstances of the veteran’s death.

ANCILLARY BENEFITS

Ancillary benefits are controlled by different areas of VA depending on their application.

Being aware of the forms number will aid you in correctly submitting a claim for ancillary benefits

Forms beginning with 21 are VBA related
Forms beginning with 10 are VHA related
Forms beginning with 26 are VBA related through the appropriate Regional Loan Center

ANCILLARY BENEFITS

AUTOMOBILE ALLOWANCE

38 CFR 3.808
Financial assistance in the purchase of a new or used automobile or other conveyance may be made to a veteran with specific disabilities up to once every 10 years

Prior to January 5, 2023, veterans were only entitled to one auto allowance in their lifetime. If a veteran had already received an automobile allowance prior to 1/05/2023, they may apply immediately for a new auto allowance if more than 30 years have elapsed since they received their most recent auto allowance.

Beginning on January 5, 2023, veterans may apply for an additional auto allowance once 10 years have passed since their previous auto allowance was awarded.

38 CFR 3.808

Financial assistance, in the form of a grant, is available to purchase a new or used automobile (or other conveyance) to accommodate a veteran or servicemember with certain service-connected disabilities.

The grant may also be paid if disabilities are a result of medical treatment, examination, vocational rehabilitation, or compensated work therapy provided by the VA.

The grant is paid directly to the seller of the automobile for the total price (up to $27,074.99 as of 2026) of the automobile.

AUTOMOBILE ALLOWANCE

A veteran or servicemember must have one of the following disabilities to qualify for the automobile grant:

Loss, or permanent loss of use, of one or both feet
Loss, or permanent loss of use, of one or both hands
Impairment of vision 20/200 or less in better eye with correction or peripheral field less than 20 degrees
Severe burns causing contracture which limits motion of limbs
Amyotrophic lateral sclerosis (ALS)

AUTOMOBILE ALLOWANCE

The VA Form 21-4502 “Application for Automobile or Other Conveyance and Adaptive Equipment” is used to apply for an automobile allowance.

Only Sections I and II are to be completed when initially submitting the claim, Section III will be completed by VA and then the form is returned to the veteran.

Once the veteran receives the 21-4502 back from VA they can fill out Section IV and purchase their new or used vehicle.

Once purchased, the seller will need to submit the completed 21-4502 to VA in order to receive payment.

AUTOMOBILE ALLOWANCE

38 CFR 3.808(e)
That equipment which must be part of or added to a vehicle to make it safe for use by the claimant and to assist in meeting the applicable standards of licensure of the proper licensing authority.
38 CFR 17.158

Adaptive equipment may be certified for the initial vehicle purchased or for subsequent vehicles. This is not a one-time allowance.

ADAPTIVE EQUIPMENT ALLOWANCE

Adaptive equipment includes, but not limited to, power steering, power windows, power seats, and special equipment necessary to assist the eligible person into and out of the vehicle.

Contact should be made with the local VA medical center’s Prosthetic Department prior to purchasing any equipment.

The adaptive equipment grant may be paid more than once and it may be paid to either the seller or the veteran.

ADAPTIVE EQUIPMENT ALLOWANCE

The VA Form 10-1394 “Application For Adaptive Equipment
Motor Vehicle” is used when applying for adaptive equipment only.

If filing for both an automobile grant and adaptive equipment, only the 21-4502 needs to be completed.

ADAPTIVE EQUIPMENT ALLOWANCE

A veteran or servicemember must have one of the following disabilities to qualify for adaptive equipment:

Loss, or permanent loss of use, of one or both feet
Loss, or permanent loss of use, of one or both hands
Impairment of vision 20/200 or less in better eye with correction or peripheral field less than 20 degrees,
Severe burns causing contracture which limits motion of limbs,
Amyotrophic lateral sclerosis (ALS)
Ankyloses of one or both knees or one or both hips

ADAPTIVE EQUIPMENT ELIGIBILITY

A disability which is acquired as a result of treatment in a VA medical facility (38 USC 1151) or as a result of training under 38 USC Chapter 31 (compensated work therapy), even though compensation is payable, does not qualify a veteran for these benefits.

Even though compensation may be payable under 38 CFR 3.383, claimants do not qualify for adaptive equipment based on a loss of paired SC and NSC organs or extremities. (38 USC 1160)

ADAPTIVE EQUIPMENT ELIGIBILITY

SPECIALLY ADAPTED HOUSING

The Specially Adapted Housing (SAH) program offers grants to servicemembers and veterans with severe service-connected disabilities to assist them in building, remodeling, or purchasing an adapted home.

38 CFR 3.809

An eligible person may receive a grant of not more than 50 percent of the cost of a specially adapted house.

Current 2026 SAH maximum is $126,526.

The grant can be awarded three times not to exceed the maximum dollar amount allowable.

SPECIALLY ADAPTED HOUSING

SAH grants can be used in one of the following ways:

Construct a specially adapted home on land to be acquired

Build a home on land already owned if it is suitable for specially adapted housing

Remodel an existing home if it can be made suitable for specially adapted housing

Use the grant to help pay the unpaid principal mortgage balance of an adapted home already acquired without the assistance of a VA grant

SPECIALLY ADAPTED HOUSING

SPECIALLY ADAPTED HOUSING ELIGIBILITY

The SAH grant is available to veterans and servicemembers who are entitled to VA disability compensation due to:

Loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair

Blindness in both eyes, plus loss or loss of use of one lower extremity

Loss or loss of use of one lower extremity together with either

residuals of organic disease or injury or

the loss or loss of use of one upper extremity, affecting balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair

Loss or loss of use of both upper extremities at or above the elbows

A severe burn injury

An eligible person may receive a grant for the actual cost to adapt a house or for the appraised market value of the necessary features already in a house when it was purchased.

SPECIAL HOME ADAPTATION

38 CFR 3.809a
The SHA grant is available to veterans and servicemembers who are entitled to disability compensation due to:

Blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens
The anatomical loss or loss of use of both hands or extremities below the elbow,
A severe burn injury.
Certain severe respiratory conditions
Current 2026 SHA maximum is $25,350
The grant can be awarded three times not to exceed the maximum dollar amount allowable

SPECIAL HOME ADAPTATION

Temporary grants may be made to those who are or will be temporarily residing in a home owned by a family member

SAH maximum for 2026 is $50,961

SHA maximum for 2026 is $9,100

Temporary grants do count as one of the three usages of SAH/SHA

TEMPORARY RESIDENCE ASSISTANCE (TRA) GRANT

VA Form 26-4555, “Veterans Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant” is used to apply for SAH, SHA, and TRA

The VA Regional Loan Center is responsible for determining entitlement to, and payment of, SAH, SHA, and TRA.

Conditional approval includes consideration of:
disability requirements
feasibility and suitability, and
usage or dollar amounts of assistance available vs. any amounts previously paid.
Final approval requires consideration of property requirements including
details of proposed adaptations
ownership
certifications
insurance
geographic limits

SAH, SHA, & TRA PROCEDURES

The veteran will be contacted by the Prosthetics department of VHA to determine:

Prescription for need of adaptation
Review of any required cost estimates

SAH, SHA, & TRA PROCEDURES

The HISA benefit provides home improvements and structural alterations necessary only to ensure the continuation of treatment and/or to provide access to the home or to essential lavatory and sanitary facilities authorized under 38 USC § 1717.

Lifetime benefit up to $6,800 may be provided for:
Veterans and Servicemembers who have a Service-connected condition that requires an adaptation
Veteran rated 50% or more and requires an adaptation even if the condition requiring the adaptation is not S/C

Lifetime benefit up to $2,000 may be provided for:
Non-service-connected Veterans

HOME IMPROVEMENT AND STRUCTURAL ALTERATIONS (HISA)

SAH and SHA eligible Veterans will also likely be eligible for Home Improvements and Structural Alterations (HISA)

HISA can provide additional funds for needed home modifications

The HISA grant may be used in conjunction with either the SAH or SHA grants

HOME IMPROVEMENT AND STRUCTURAL ALTERATIONS (HISA)

HOME IMPROVEMENT AND STRUCTURAL ALTERATIONS (HISA)

COMMONLY APPROVED
Permanent Ramps that allow entrance to or exit from the residence
Access to kitchen or bathroom sinks or counters
Entrance pathways or driveways
Plumbing;
Electrical systems/outlets
Hardwood flooring
Door latches
Roll-in showers/ Walk-in bathtubs
Widening doorways to essential lavatories or sanitary facilities
Interior and exterior lighting
Costs related to taxes, permits, inspections fees, which are required by local ordinances

COMMONLY DISAPPROVED
New home construction
Spa or Jacuzzi type tubs
Exterior decking
Any alterations or modifications that the property owner is required to furnish under the Americans with Disabilities Act due to commercial zoning
Home Security Systems
Elevators
Pathways that lead to workshops and barns
Regular home maintenance routine repairs (e.g. replacement of roofs, furnaces, or air conditioners)

Commonly Approved

Commonly Disapproved

WHAT IS NEEDED FOR HISA

A prescription from a VA physician that includes:
Beneficiary’s name, address and phone number
Description of the prescribed improvement or structural alteration
The diagnosis and medical justification for the prescribed improvement or structural alteration
VA Form 10-0103-HISA application with advance payment request
Homeowners notarized authorization (if applicant is a renter)
Written itemized estimate of costs for labor, materials, permits, and inspections
A color photograph of the unimproved area
Incomplete applications: if missing documentation is not received within 30 days, VA will notify beneficiary and close application
VA will conduct a pre-award inspection of site no later than 30 days after receiving a complete HISA package

CLOTHING ALLOWANCE

Veterans who utilize certain prosthetics are eligible for a yearly clothing allowance from VA to help replace articles of clothing that are worn out faster because of their prosthesis.

CLOTHING ALLOWANCE

38 CFR 3.810

Eligibility:

The veteran must have been prescribed and use either of the following for a service connected disability:

Prosthetic or orthopedic appliance, such as a wheelchair, crutches, braces, artificial limb, etc. (Note: soft and flexible devices, such as an elastic stocking or soft brace, are not included)

Medication prescribed by a physician for a service-connected skin condition that causes permanent stains or otherwise damages outer garments

CLOTHING ALLOWANCE

Applications are collected throughout the year and held until the closing date of August 1st.

Applications are processed by the VA prosthetics department and veterans will receive payments between September 1st and October 31st.

This is an annual payment and will only be made during this time frame.

CLOTHING ALLOWANCE

Veterans are eligible to receive multiple clothing allowance benefits, with a limit of two (2) per garment affected and total maximum of four (4) clothing allowances.
Annual clothing allowance benefit is currently $1,053.19 for 2026

Approved Articles of Clothing:

Skirts
Pants
Blouses
Shirts

Disapproved Articles of Clothing:
Hats, Caps
Underwear
Socks, Stockings, Pantyhose
Shoes
Scarves, Ties, Gloves

CLOTHING ALLOWANCE

How to Apply

Have the veteran submit VA Form 10-8678, “Application for Annual Clothing Allowance” to the prosthetic representative at their local VA medical center.

Applications must be submitted by August 1 in order to be processed for that year

A new application must be submitted each year

CLOTHING ALLOWANCE

VA HOME LOAN GUARANTY FUNDING FEES

A veteran wanting to use the VA loan guaranty to purchase a house generally is subject to a funding fee based on the type of loan, their military category (NG, AD etc.) and if they have used their guaranty before.

VA HOME LOAN GUARANTY FUNDING FEES

38 CFR 36.4313(e)(5)

The VA Loan Guaranty funding fee can be waived if:

Veteran is receiving VA compensation
Veteran would be entitled to receive compensation for a SC disability if he/she were not receiving retirement or active duty pay
Surviving spouse of a veteran who died of a SC disability
Veteran rated eligible to receive VA disability comp based on a pre-discharge rating and exam or a rating based on existing medical evidence.
The veteran received a compensable memorandum rating from VR&E

VA HOME LOAN GUARANTY FUNDING FEES

If a veteran indicates that they desire to utilize the VA Home Loan Guaranty, ensure that a disability claim is filed before the home closes if possible. (At least an ITF)

If compensation is awarded after the loan closing but the effective date is prior to closing, the veteran can request reimbursement of the funding fee – the reimbursement is paid towards the principal loan balance

Certificates of Eligibility can be obtained from E-benefits

Married couples who both have eligibility cannot combine their benefit to raise the maximum amount of guaranty, though both are still eligible in their own right. However, if one veteran is not eligible to have the funding fee waived, VA requires that the borrowers pay half of the funding fee if both veterans are on the loan.

VA HOME LOAN GUARANTY FUNDING FEES

VA has launched the Partial Claim Program to help financially struggling Veterans remain in their homes and avoid foreclosure. Authorized by the VA Home Loan Reform Act, the program provides a new loss-mitigation tool for delinquent VA home loans.

Signed into law on July 30, 2025 The Partial Claim program helps eligible veterans on a 3 month trial payment plan to assess their ability to stay current on their loan.

VA PARTIAL CLAIM PROGRAM

The process for this program works through the following steps:

Mortgage servicers identify Veterans who are in default and might be able to qualify for the Partial Claim Program.

Servicers place qualified Veterans on a three-month trial payment plan to assess their ability to stay current on their loan.

When a Veteran successfully completes this trial period, the mortgage servicer will pay the overdue amount on the mortgage to make the Veteran current again.

VA Partial Claim Program Process

VA will then pay that same amount to the mortgage servicer.

Servicers must repay VA when the loan is paid in full, refinanced, or the property is sold.

Veterans having difficulty reaching a resolution with their mortgage servicer can contact VA at 877-827-3702, option 6.

VA Partial Claim Program Process Continued…

Veterans’ Group Life Insurance (VGLI) allows veterans to continue life insurance coverage after service.

VGLI provides lifetime coverage as long as the premiums are paid. Veterans may enroll for a maximum amount of coverage that is equal to the amount of Servicemembers’ Group Life Insurance (SGLI) coverage they had when they separated from service.

Once enrolled in VGLI, veterans can increase coverage by $25,000 every five years up to the legislated maximum of $500,000, until age 60.

VETERANS’ GROUP LIFE INSURANCE (VGLI)

38 CFR Part 9

Enrollment Period
Veterans have 1 year and 120 days from their date of separation to apply for VGLI. If they apply for coverage within 240 days from separation, no health questionnaire is needed.

VETERANS’ GROUP LIFE INSURANCE (VGLI)

Veterans are eligible to apply for VGLI, if they had SGLI, and are within 1 year and 120 days of the following events:

release from active duty or active duty for training under a call or order to duty that does not specify a period of less than 31 days.

separation, retirement or release from assignment from the Ready Reserves/National Guard

assignment to the Individual Ready Reserves (IRR) of a branch of service or to the Inactive National Guard (ING).This includes members of the United States Public Health Service Inactive Reserve Corps (IRC)

placement on the Temporary Disability Retirement List (TDRL)

VETERANS’ GROUP LIFE INSURANCE (VGLI)

Veterans are also eligible to apply for VGLI if they had part-time SGLI and while performing duty, suffered an injury or disability that rendered them uninsurable at standard premium rates. This includes travel directly to and from duty.

If the veteran is totally disabled at the time of separation, they can apply for an SGLI Disability Extension which provides free coverage for up to two years from the date of separation. An extension of SGLI due to total disability is not automatic.

At the end of the extension period, the veteran automatically becomes eligible for VGLI, subject to premium payments.

VETERANS’ GROUP LIFE INSURANCE (VGLI)

S-DVI is an optional life insurance for service-connected veterans only that stopped taking applications after December 31, 2022.
If a veteran was already enrolled in S-DVI they can keep it
The basic S-DVI program insures eligible Veterans for up to $10,000 of coverage.
Veterans who have the basic S-DVI coverage and are 100% P&T service-connected can have their premiums waived.
If a premium waiver is granted, policyholders may apply for additional coverage of up to $30,000 under the Supplemental S-DVI program.
Premiums for Supplemental S-DVI coverage cannot be waived.

SERVICE-DISABLED VETERANS INSURANCE (S-DVI)

To be eligible for S-DVI the veteran must meet all of the following requirements:

Released from service under other than dishonorable conditions on or after April 25, 1951

Must have a service-connected disability (even one rated 0%)

Healthy except for the service-related disability

Must apply within two years of being notified of a service-connected disability (can apply any time veteran receives a new disability award, even one rated 0%)

SERVICE-DISABLED VETERANS INSURANCE (S-DVI)

In January 2023, VA launched Veterans Affairs Life Insurance (VALife), which provides guaranteed acceptance whole life insurance coverage to service-connected veterans aged 80 and under. Some Veterans aged 81 and older may also be eligible.

VALife offers guaranteed acceptance whole life insurance coverage that lasts for an individual’s entire life and provides the following benefits:
All veterans aged 80 and under with 0-100% VA disability ratings are eligible.
Fully automated online enrollment with instant approvals.
Coverage comes in increments of $10,000, up to a maximum of $40,000
No medical requirements for enrollment.
Cash value that builds over the life of the policy after the first two years of enrollment.

VETERANS AFFAIRS LIFE INSURANCE (VALIFE)

Veterans who currently hold an S-DVI policy can either keep their current coverage or apply for VALife.

Veterans can keep their S-DVI policy until the full coverage of VALife begins two years after enrollment as long as the application is received between Jan. 1, 2023, and Dec. 31, 2025.

VETERANS AFFAIRS LIFE INSURANCE (VALIFE)

VETERAN READINESS AND EMPLOYMENT (VR&E)

Vocational rehabilitation and employment services, job training, employment accommodations, resume development, and job seeking skills coaching are available to veterans with at least a 20% compensation rating or who have a 10% rating with a serious employment handicap.

Other services may be provided to assist veterans in starting their own businesses or independent living services for those who are severely disabled and unable to work in traditional employment.

VETERAN READINESS AND EMPLOYMENT (VR&E)

Basic period of eligibility:
Ends 12 years from the date of notification of one of the following, whichever is later:

Date of separation from active military service

Date the veteran was first notified by VA of a service-connected disability rating.

The basic period of eligibility may be extended if a Counselor determines that a veteran has a Serious Employment Handicap and needs extra time.

VETERAN READINESS AND EMPLOYMENT (VR&E)

How to apply:
The veteran will have to submit the VA Form 28-1900 “Disabled Veterans Application For Vocational Rehabilitation” to VA and then will meet with a counselor to determine the best course of action and eligibility.
If the veteran has not received a VA rating or has not yet been discharged (up to 6 months prior to discharge), they can still apply for VR&E; They will complete and submit the 28-1900 and the Notice to VA Veterans Service Center, located on the bottom of 28-0588. VA will review the available evidence and issue a memorandum rating determining eligibility

VETERAN READINESS AND EMPLOYMENT (VR&E)

COMMISSARY AND EXCHANGE PRIVILEGES

As of January 1, 2020, all service-connected veterans, former POWs, and Purple Heart recipients have access to Commissary, Exchange, and MWR services on military installations.

To gain access to the installation and use these services, veterans will need to enroll in the VA healthcare system and show their VA healthcare card at the military installation.

Note: Even though DoD and VA authorize these benefits, the Base Commander has the ultimate say on who is allowed on the base.

Veterans who are not eligible to enroll in VA health care, or who are enrolled in VA health care but do not possess a VA healthcare card will not have access to military installations for in-person commissary, exchange, and MWR privileges, but will have full access to online exchanges and American Forces Travel.

COMMISSARY AND EXCHANGE PRIVILEGES

Though these benefits are provided by Department of Defense (DoD), VA does provide assistance in completing DD Form 1172, "Application for Uniformed Services Identification and Privilege Card." For detailed information, contact the nearest military installation.

This application is only used for 100% P&T service-connected veterans

As of November 11, 2017 all Honorably discharged veterans may shop the online exchange

https://www.shopmyexchange.com/account/register

COMMISSARY AND EXCHANGE PRIVILEGES

Concurrent Retirement and Disability Pay (CRDP)

Combat Related Special Compensation (CRSC)

Objectives

At the end of this session, you will be able to answer the following questions:

What are CRSC and CRDP?
Who is eligible for each program?
How do veterans qualify for these programs?
How does VA/DoD determine how much a veteran receives?

Why Discuss CRSC & CRDP?

While not chartered to file CRSC or CRDP applications, accredited representatives are a veteran’s lifeline on all things related to life after service.

Prohibition on Concurrent Receipt and the VA Waiver

Submission of an application for VA compensation constitutes a waiver of retired pay, unless the veteran checks the box on the 21-526ez negating the waiver. If a uniformed service retiree checks the box negating the waiver, VA may not pay compensation.

If a veteran has waived retired pay as described above, VA will withhold retroactive VA compensation (limited to gross retired pay) and the Veteran’s retired pay center (RPC) will withhold the amount of VA compensation being paid from current retired pay.

This is where CRSC and CRDP come into the picture

What are CRSC and CRDP?

CRDP and CRSC are Military Retiree benefits administered by the Department of Defense and Services
They are not administered by VA
VA’s function is to check with DFAS (Defense Finance and Accounting Services) to ensure there is no overpayment
CRDP and CRSC restore ONLY “vested service” retired pay based on longevity and still prohibits double payment of disability pay

What are CRSC and CRDP?

Veterans can choose either CRDP or CRSC not both

You can change your selection once a year at “open season”

Combat-Related Special Compensation (CRSC)

CRSC is a special monthly benefit paid to Veterans who retired from the uniformed services and have VA service-connected disabilities deemed combat-related by their branch of service.

CRSC restores, partially or completely, retired pay that is being lost due to the VA waiver.

CRSC is paid by the Defense Finance and Accounting Service (DFAS) and the U.S. Coast Guard (USGC); however, sometimes VA must reduce retroactive retired pay withholdings for a Veteran to receive his/her full CRSC entitlement.

Combat-Related Special Compensation (CRSC) Eligibility

NOT a VA program
Veterans must apply through their military service branch
Must be entitled to and/or receiving military retired pay
For Reservists, at least 60 years old OR retired under Temporary Early Retirement Authority OR medically retired
Must have VA waiver
Tax free
Must be receiving VA compensation for combat-related injury/condition or disability directly related to a Purple Heart (10% or more)
Includes additional allowance for dependents

CRSC: What is combat related?

Injuries incurred as direct result of:
Armed conflict
Hazardous duty
Instrumentality of war
Simulated war

Agent Orange exposure disabilities count
Other exposure disabilities as a result of instrumentality of war (radiation, mustard gas, lewisite, etc.) also count: if not sure, file

CRSC: Features

Application-based program (must file a claim) with documentation to show disability is combat-related
Vet will receive special “3rd” payment equal to monthly dollar-for-dollar reduction in military retired pay for combat-related disability(ies)
Tax free
CRSC is separate from retired pay

CRSC
(Branch of Service Pays)

CRSC: Features

Court orders regarding “retired pay” do not include CRSC

But CRSC is not VA pay, so it is subject to:
Child support/alimony
Garnishments
Government debts

CRSC: What is needed for the application?

DD Form 2860 (Application)
Retirement orders
20 year letter or statement of service (for reservists)
Relevant pages in VA C-File or service treatment record showing disability
VA rating
Purple Heart award citation if applicable
DD 214

CRSC: Application tips

The quality of the information is more important than the quantity

Send copies not originals – Branch will not return any documents

Mail or fax to branch of service

CRSC: When to reapply

A veteran may reapply for CRSC when:

VA has added more disabilities to their rating that they think might qualify

To reapply: Visit branch of service website for the reconsideration form

CRSC Payable

For veterans in receipt of retired pay based on years of service (RPBOYOS), the amount of CRSC payable is the amount payable for the combined evaluation of the Veteran’s service-connected (SC) combat-related (CR) disabilities (Limited to Gross Retired Pay (GRP)).

Example:
Gross Retired Pay: $2,000
Gross VA Compensation payment: $2,200
CRSC: $2,200 (All disabilities are combat related)
CRSC Payable: $2,000

CRSC CALCULATIONS FOR DISABLED RETIREES (Medical Board Retirees)

For CRSC Eligible Disability Retirees, Concurrent Receipt is Limited to RPBOYOS
Example:
GRP: $1,600
RPBOYOS: $600
Gross VA compensation payment: $1,100
CRSC: $1,100 (all disabilities are combat related)
Concurrent Receipt is limited to $600
Net Retired Pay (NRP) (GRP – GVA) = $500
Therefore, CRSC is $100
The Veteran will receive $1,100 from VA and $600 from DFAS ($500 in Retired Pay and $100 in CRSC)

Concurrent Retired and Disability Pay (CRDP) Eligibility

CRDP is a program which allows concurrent receipt of uniformed service retired pay and VA compensation. Veterans must have a combined VA service-connected evaluation of at least 50% and be retired based on longevity* or retired due to disability with at least 20 years of service.

CRDP is not a special payment; rather, it is included with Veterans’ military retired pay. As with CRSC, sometimes VA must reduce retroactive retired pay withholdings for a Veteran to receive his/her full CRDP entitlement.

*Veterans retired under the Temporary Early Retirement Authority (TERA) are retired based on longevity.

CRDP Amount

Veterans in receipt of RPBOYOS receive the full amount of their retired pay and VA compensation if their VA compensation rating is 50 percent or greater.

Example: (CRDP based on RPBOYOS)
RPBOYOS: $1,400
Gross VA (GVA): $950
$1,400 (RPBOYOS) + $950 (GVA) = $2,350

CRDP for Medically Retired Reservists

Medical retirement only counts active duty time

If the veteran served 20 “good years” in the reserves but was medically retired with less than 20 years active duty, the veteran must wait until age 60 to qualify for CRDP

The veteran may qualify for CRSC before age 60 if there are any combat related disabilities

CRDP Process

No application required; DFAS automatically determines eligibility
Opted for the VA waiver
Military payments are taxable (DFAS statement); VA benefits are not taxable
Will receive gross retired pay, not “3rd payment”

CRDP Features

CRDP is essentially a substitute for a portion of military retired pay that must be waived

Because it is a restoration of retired pay and is not VA pay, the gross amount of CRDP may be reduced for
Taxes
Child support/alimony
Garnishments
Government debts

Audit Error Worksheet (AEW)

VA releases retroactive retired pay withholdings due veterans as a result of CRSC/CRDP entitlement via the AEW process:

VA promulgates an award and withholds retroactive compensation

The VA award lines are transmitted to DFAS/USCG via a bi-weekly combined interface file (CIF)

DFAS/USCG determines CRSC/CRDP eligibility and calculates amounts due

Audit Error Worksheet (AEW) continued

If DFAS/USCG determines amounts are due from VA, they send VA an audit
DFAS electronically transmits audits to VA in a single file during the first week of each month
USCG sends audits to VA on a CD via US mail once a month

VA transforms the audit into an AEW
DFAS AEWs are automatically uploaded into VBMS and a “work item” is automatically established on each AEW
USCG AEWs are manually uploaded into VBMS and VAROs are notified via email that the AEW needs to be worked

AEW Payment

Normally it takes approximately 35 to 100 days from the date of the VA award action to receipt of the audit from DFAS. However, most audits are received approximately 65 days from the date of the VA award action.

DFAS does not send VA audits one at a time.
DFAS does not send VA audits on a day other than a day during the first week of the month

Most AEWs are processed automatically within 24 hours of the date the audits are received from DFAS. Payment will be made within 5-7 days.
AEWs not automatically processed must be manually processed.

Taxes and VA benefits

If an award of CRSC or CRDP results in a reduction of tax liability (veteran was paid taxable retired pay and should have been paid non-taxable VA or CRSC), the veteran can file an amended tax return

The Court case allowing an amended tax return for retroactive VA awards is called the Strickland decision and Revenue Ruling 78-161
DFAS will not send an amended 1099-R for retro years, only for the present year
Consult a tax professional to determine whether to file amended return: Military retirees may go to the legal assistance office/tax center on many bases for help

Program Comparison

CRSC/CRDP Fast Facts

CRSC
Any combat-related, compensable service-connected disability.
CRSC is not retired pay and is a tax-free entitlement that is paid separately from VA disability compensation and retired pay.
Enrollment is not automatic. Veterans must apply to their branch of service CRSC board (DD Form 2860).
Payment is based on VA compensation rate tables (20% CRSC=20% rate from VA rate tables).

CRDP
Veterans must have a combined VA disability evaluation of 50% or more and be retired due to longevity. Disability retirees must have at least 20 years of service.
CRDP is considered retired pay, is taxable, and is not a separate payment. It benefits the Veteran by increasing net retired pay.
Payment is determined by the Defense Finance and Accounting Service (DFAS) or Coast Guard (CG).

QUESTIONS?

Frequently Asked Questions

Is a Veteran who retired under the Temporary Early Retirement Authority with less than 20 years of service eligible for CRDP?
Answer: Yes, provided the Veteran has a combined service- connected evaluation of 50% or greater.

Can a Service member apply for CRSC prior to being discharged?
Answer: No. A VA rating decision is required before applying for CRSC.

Is a Reservist with a 20-year letter who is in receipt of disability retired pay eligible for CRDP prior to age 60 or the eligibility age applicable under 10 U.S.C. 12731(f)(2)(A)?
Answer: No. Such a retiree would not be eligible for CRDP until reaching age 60, or the eligibility age applicable under 10 U.S.C. 12731(f)(2)(A).

Frequently Asked Questions

If a disability retiree is in receipt of VA compensation and their branch of service determines that one or more VA service connected disabilities are combat-related, will they receive CRSC?
Answer: Maybe. For disability retirees, if Net Retired Pay (GRP – GVA) is greater than or equal to RBOYOS, CRSC is not payable.

If a veteran doesn’t agree with the amount of CRSC received, should they contact VA?
Answer: No. VA does not pay or calculate CRSC. They should contact their retired pay center. (DFAS or CG)

EDUCATION BENEFITS OVERVIEW

TOPICS

VA Education Programs
VR&E (Chapter 36)
Fry Scholarship
VA Training Programs
VFW Programs
Q & A

VA EDUCATION PROGRAMS

Post 9-11 GI Bill
Forever GI Bill
Montgomery GI Bill
Survivor & Dependent Benefits
Work Study
Tutorial Assistance
Non-College Degree Programs

POST 9-11 GI BILL

ELIGIBILITY
Served at least 90 aggregate days on active duty* after 9/11/2001
Honorable discharge from active duty for a service-connected disability after serving 30 continuous days following 9/11/2001
BENEFITS
Based on number of months served on AD
Tuition & Fees paid to School
Public School – All Tuition & Fees for In-State Student
Private School - $29,920.95 per year maximum

POST 9-11 GI BILL

BENEFITS (Continued)

Book Stipend - $500 per semester/$1K year
Monthly Housing Allowance (MHA)
Based on E-5 w/Dependents Rate
Zip Code of campus – majority of classes
One-time Payment – Rural Benefit - $500
Transferability Option
Yellow Ribbon Program

https://www.benefits.va.gov/gibill/education_programs.asp

POST 9-11 GI BILL

TRANSFERABILITY

Allows transfer of all or some unused benefits to spouse or dependent children
Any member of the Armed Forces (AD or RC, officer or enlisted) on or after 1 August 2009, who is eligible for the Post-9/11 GI Bill, AND
Has at least 6 years but not more than 16 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years from the date of election, OR
Has at least 10 years of service in the Armed Forces (AD or RC) on the date of election, is precluded by either standard policy (service or DoD) or statute from committing to 4 additional years, AND agrees to serve for the maximum amount of time allowed by such policy or statute
Transfer requests must be submitted & approved while the member is on active duty

https://www.va.gov/education/transfer-post-9-11-gi-bill-benefits/

FOREVER GI BILL (FGIB)

Harry W. Colmery Veterans Educational Assistance Act
34 provisions improves and extends benefits
Eliminates the 15-year expiration date:
Veterans who departed AD on or after 1 January 2013
Restoration of benefits due to school closures
Transfer of Reserve Benefits to Post 9/11 GI Bill
Work Study Programs permanently authorized
Independent Study Programs authorized

FOREVER GI BILL

FOREVER GI BILL - IMPACTS

VA started implementing provisions in August 2017. Some highlights include:

School Closure Eligibility Restoration. VA is authorized to restore benefits to Veterans affected by school closures or some program disapprovals.
Restore entitlement used during the term when the school closed
Can continue receiving housing payments until the original end of the term or for 120 days (whichever occurs sooner)
Priority Enrollment. Certain schools offer priority enrollment for Veterans with the GI Bill Comparison Tool. Visit the VA.GOV website
Reserve Educational Assistance Program (REAP) Eligibility Credited Toward Post-9/11 GI Bill Program. The individuals who lost their eligibility to REAP may apply for the Post-9/11 GI Bill. VA sent letters with instructions to the eligible individuals.

FOREVER GI BILL - IMPACTS

Active Duty and Housing Allowance
Those leaving active duty are eligible for the Post-9/11 GI Bill housing allowance day of discharge
Purple Heart Recipients
100% Post-9/11 GI Bill benefits if served on or after September 11, 2001. Regardless of length of service.
Yellow Ribbon for Purple Heart and Fry Recipients
May use beginning August 1, 2018
Informing Schools About Beneficiary Entitlement
VA will share entitlement information with schools, students can opt out
Less Entitlement Charged for License and Certification No longer taking an entire month of benefits

FOREVER GI BILL - IMPACTS

Changes to Survivors’ and Dependents’ Educational Assistance (DEA) Program.
The new law increases the amount of educational assistance payable under DEA but decreases the amount of entitlement that new eligible individuals will receive from 45 months to 36 months
Changes to Transfer of Benefits (TEB).
Veterans who transferred entitlement to a dependent can now designate a new dependent if the original dependent dies. If the Veteran dies, a dependent who received transferred entitlement can now designate a new eligible dependent of the Veteran to transfer any of the dependent’s remaining entitlement.
GI Bill Monthly Housing Allowance.
Housing will be paid based on the “campus” where the student attends the majority of classes.

GI BILL COMPARISON TOOL

MONTGOMERY GI BILL

First entered active duty on or after 1 July 1985
Minimum 2 years of service
*Paid $1200 to participate in the program
Has an Honorable period of qualifying service
Obtained a high school diploma, or GED or equivalent, prior to applying for the benefits
$600 Buy-Up Option = $5400 additional benefits
* Refundable if eligible for Post 9/11 GI Bill

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https://www.benefits.va.gov/gibill/mgib_ad.asp

MGIB AD - BENEFITS

Up to 36 months of benefits, up to 10 years following release from active duty
Benefits may be applied to;
degree and certificate programs
flight training
apprenticeship/on the job training
correspondence courses
Funds are paid to the student

17

https://www.benefits.va.gov/gibill/mgib_ad.asp

CURRENT RATE OF PAY

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As of 2026
** Tuition & Fees only. Cannot exceed this amount

Montgomery GI Bill Selected Reserve Chapter 1606

6 year commitment (after 6/30/1985)
36 months of eligibility (max)
Paid to the student
Ends upon ETS from selected reserve

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MGIB – RESERVE COMPONENT

https://www.benefits.va.gov/gibill/mgib_sr.asp

ELIGIBILITY

https://www.benefits.va.gov/gibill/mgib_sr.asp

20

First entered active duty after 30 June 1985 and did not decline MGIB
Veterans entitled to Chapter 34 under Vietnam era GI Bill
Certain veterans involuntarily separated under certain conditions and those separated under VSI (Voluntary Separation Incentive) or SSB (Special Separation Benefit)
Former Veterans Educational Assistance Program (VEAP) participants who converted to MGIB

CURRENT RATE OF PAY

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SURVIVOR AND DEPENDENT EDUCATION ASSISTANCE

Marine Gunnery Sergeant John David Fry Scholarship
Survivors and Dependents’ Educational Assistance Program (Chapter 35)

22

https://www.benefits.va.gov/gibill/survivor_dependent_assistance.asp

FRY SCHOLARSHIP

Eligibility
Children and surviving spouses of A/D who died in the line of duty on or after Sept 11, 2001
Children Ages 18 to 33
Spouses have a *delimiting period of 15 years from date of death. Eligibility is lost upon remarriage
Must make an irrevocable choice between Fry and DEA.
Surviving spouses are eligible to receive DIC while using the Fry Scholarship
Children in receipt of DIC must relinquish it upon use of Fry Scholarship
May now use the Yellow Ribbon Program also
*Delimiting date removed if eligibility began after 1/1/2013

23

https://www.benefits.va.gov/GIBILL/Fry_scholarship.asp

YELLOW RIBBON PROGRAM

24

Allows approved institutions of higher learning & the VA to partially or fully fund tuition & fee expenses that exceed the established thresholds under the Post-9/11 GI Bill
Matching Funds by the School & VA to cover the difference
Tuition & Fees only – Not Room & Board
School must participate, but is limited w/the number of quotas that it allocates

SURVIVOR AND DEPENDENT EDUCATION (CHAPTER 35)

Chapter 35 provides education benefits to the spouse and children of:
Service members who died on Active Duty
Veterans who died or are permanently & totally (P&T) disabled due to a service connected (S/C) disability
Veterans who have died from any cause while such P&T S/C disability existed

25

https://www.benefits.va.gov/GIBILL/DEA.asp

SURVIVOR AND DEPENDENT EDUCATION (CHAPTER 35)

Benefit expiration
Surviving spouses - Veteran
10 years from date of eligibility or death of Veteran
If VA rated Veteran 100% P/T within 3 years of discharge – 20 years
Surviving Spouses – Service Members
20 years from date of death
Children
Ages 18-26

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https://www.benefits.va.gov/GIBILL/DEA.asp

Service member MIA or captured by hostile force.
Service member forcibly detained or interned in the line of duty by a foreign government.
Service member who is hospitalized or receiving outpatient treatment for a S/C P&T disability and is likely to be discharged for that disability
If child qualifies for both Fry and DEA
May be eligible for both, but only use one at a time
81 months total of full-time training (not concurrent)

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https://www.benefits.va.gov/GIBILL/DEA.asp

SURVIVOR AND DEPENDENT EDUCATION

CHAPTER 35 RATES

28

As of 2026

WORK STUDY

29

Training on a full time or ¾ time basis
Post-9/11 GI Bill--(Chapter 33) (Veterans and transfer-of-entitlement recipients)
Montgomery GI Bill--Active Duty (Chapter 30)
REAP Participants
Montgomery GI Bill--Selected Reserve (Chapter 1606)
VEAP (Chapter 32)
Dependents’ Educational Assistance Program (Chapter 35)
National Call to Service Participants
Vocational Rehabilitation & Employment Program -- (Chapter 31)

https://www.benefits.va.gov/gibill/workstudy.asp

29

VFW service offices can request to have a work study assist in the office

Though they would not be accredited, individuals using the work study program can help with administrative duties in the office

Contact your VARO Voc Rehab department to see if there is any availability for your office

WORK STUDY

NON-COLLEGE DEGREE PROGRAMS

Available for training at non-college-degree institutions
HVAC Repair
Truck Driving Schools
EMT Training
Barber/Beautician/Cosmetology School
Benefit based on number of clock hours attended each week of month
Payments are issued after the training is complete

30

https://www.benefits.va.gov/gibill/non_college_degree.asp

VA TRAINING PROGRAMS

Flight
Co-Op
National Testing
Licensing and Credentialing

31

FLIGHT TRAINING

Must have a private pilot license and medical certification certificates

Payments are issued after the training is completed and the school submits your enrollment information to VA.

Payment Amounts Under the Montgomery GI Bill

If using the Montgomery GI Bill, VA will reimburse 60% of the approved charges.

If using Post 9/11 GI Bill, payments will be based on the type of school (public, private, or vocational)

32

https://www.benefits.va.gov/gibill/flight_training.asp

CO-OP TRAINING

Attending school part-time and working full-time
Payment amount varies based on the GI Bill Program utilized
Post 9/11
Public - in-state tuition & fees
Private – Lesser of national maximum or in-state tuition & fees
Other GI Bills
Monthly rate varies based on program and how long qualifying service was

33

https://www.benefits.va.gov/gibill/coop_training.asp

NATIONAL TESTING

Reimbursement for mandatory national tests
Registration, Fees, Admin Fees for tests such as:
SAT
LSAT
GRE
GMAT
CLEP
ACT
MCAT
Reduces overall GI Bill Benefit

34

https://www.benefits.va.gov/gibill/national_testing.asp

LICENSING & CREDENTIALING

Additional licensing and credentialing required for employment
Up to $2000 per test - Reimbursed
Unlimited number of attempts, but it reduces your GI Bill Benefit
Apply for reimbursement within one-year of test date

35

https://www.benefits.va.gov/gibill/licensing_certification.asp

VETERAN READINESS & EMPLOYMENT (VR&E)

Program offers personalized counseling and support
Career path
Goal accomplishment
Most effective use of VA benefits
Veteran Employment Tracks
Reemployment
Rapid Access to Employment
Self-Employment
Employment through long-term services
Independent living

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https://www.benefits.va.gov/VOCREHAB/index.asp

ELIGIBILITY
Active Duty
Expect to receive Honorable/Other than Dishonorable Discharge
Memo rating of 20% or more VA Disability
Veterans
Other than dishonorable discharge
Minimum 10% SC Disabled
Expires 12 years from separation from Active Duty* or
Date veteran was first notified of a VA SC disability rating

* May be extended due to serious employment handicap

37

https://www.benefits.va.gov/vocrehab/eligibility_and_entitlement.asp

VETERAN READINESS & EMPLOYMENT (VR&E)

ENTITLEMENT DETERMINATION
Veteran meets with Veteran Rehabilitation Counselor (VRC) to determine if employment handicap exists
Assessment of Veteran’s interest, aptitudes and abilities
Assessment of whether SC disabilities impair the Vet’s ability to find and/or hold a job using occupational skills already developed
Vocational exploration and goal development leading to employment and/or max independence
Employment Handicap
Determine transferable skills, aptitudes, and interests
Identify viable employment and/or independent living options
Explore labor market and wage information
Develop individualized rehab plan to achieve goals

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https://www.benefits.va.gov/vocrehab/eligibility_and_entitlement.asp

VETERAN READINESS & EMPLOYMENT (VR&E)

VFW PROGRAMS

Voice of Democracy
Patriot’s Pen
VFW/SVA Fellowship
1 Student Veteran
Sports Clips – Scholarship

39

VFW PROGRAMS - VOICE OF DEMOCRACY

Available scholarships for High School students
3-5 min audio essay – Patriotic Theme (Changes Each Year)
Submitted to Department (State) NLT - 31 October
Must be in grades 9-12 by the deadline
Minimum $1K for each Department (State) Winner
All expense paid trip to Washington DC – March
First-place winner - $30K Paid to College/University

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https://www.vfw.org/community/youth-and-education/youth-scholarships

Available for Middle School students (Grades 6-8)
Written Essay no less than 300 but no more than 400 words
Patriotic Theme – changes every year
Submitted to VFW Post NLT – 31 October
Minimum $500 for each Department winner
All expense paid trip to Washington DC – March
First-place winner - $5K

41

https://www.vfw.org/community/youth-and-education/youth-scholarships

VFW PROGRAMS – PATRIOT’S PEN

Partnership with Student Veterans of America
10 Fellows selected each year
Must be eligible for VFW membership
Active SVA chapter at college/university
Essay submission of advocacy proposal on four priority issues for the veteran community

42

https://www.vfw.org/studentfellowship

VFW PROGRAMS – VFW/SVA FELLOWSHIP

Partnership with Student Veterans of America
Provides resources and guidance to student veterans
Difficulties with benefit payments
Explanation of benefits
1StudentVeteran@vfw.org

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https://www.vfw.org/assistance/student-veterans-support

VFW PROGRAMS – 1 STUDENT VETERAN

Sponsored by Sport Clips
Scholarships up to $5000 to qualified applicants
Honorably discharged, retired, active duty, reserve component
Separated with or currently hold military rank of E-5 or below
Completed Basic Training and follow-on training (AIT, Tech School, etc.)
Demonstrate a need for financial assistance
Currently participating in, accepted, or enrolled in VA-approved program or school at an accredited post-secondary institution
Paid directly to schools for tuition and fees only

44

https://www.vfw.org/assistance/student-veterans-support

VFW PROGRAMS – HELP-A-HERO SCHOLARSHIP

RESOURCES

VA Education Hotline – 888-442-4551
https://www.benefits.va.gov/WARMS/bookg.asp (VR&E)
1studentveteran@vfw.org (VFW Student Support)
www.benefits.va.gov (General Benefits Info)
https://www.benefits.va.gov/GIBILL/FGIBSummaries.asp (FGIB)
https://benefits.va.gov/benefits/factsheets.asp
https://iris.custhelp.va.gov/ (IRIS Support System)

45

QUESTIONS?

How to Review Rating Decisions

Topics

What is a rating decision?
What does a rating decision look like?
Types of rating decisions
Why do we review rating decisions?
How to review a rating decision
What to do if you find an error
Common errors
Tips to improve efficiency

What is a Rating Decision?

A rating decision is a document prepared by VA that explains the outcome of a veteran or dependent’s claim for benefits.

All compensation and pension claims should receive a rating decision once a VA rater renders a decision.

What Does a Rating Decision Look Like?

What Does a Rating Decision Look Like?

The first part of the rating decision is called the Narrative. It contains Demographic Info, Introduction, Decision, Evidence Considered, Reasons for Decision, Favorable Findings, and References

What Does a Rating Decision Look Like?

Narrative:

Demographic Info: States the veteran’s name, claim number, and the date of the decision

Introduction: States the era in which the veteran served, service dates, the type of claim, when the claim was received by VA, and the effective date of the claim

Decision: States VA’s decision on each issue

Evidence Considered: Lists all of the evidence that VA considered when making the decision

What Does a Rating Decision Look Like?

Narrative:

Reasons for Decision: Lists each issue separately with the reason why VA made their decision. If the issue was granted, VA will also include the requirements for the next higher rating

Favorable findings: If an issue is denied, VA will list any favorable findings

References: Lists which legal references were used to make the decision

What Does a Rating Decision Look Like?

What Does a Rating Decision Look Like?

The Code Sheet contains Demographic Info, Active Military Service, Legacy Codes, Future Exam Dates, Jurisdiction, Associated Claims, A list of Service Connected and Non-Service Connected Issues, The Combined Evaluation, Special and Ancillary Benefits, and the Rater’s Signature

What Does a Rating Decision Look Like?

Code Sheet:

Demographic Info: States the veteran’s name, claim number and the date of the decision

Active Military Service: Lists the veteran’s active-duty dates, branch of service, and character of discharge

Legacy Codes: These are used to help determine eligibility to other Non-VA benefits

Future Exam Dates: Shows when and if the veteran will be scheduled for a routine future examination

What Does a Rating Decision Look Like?

Code Sheet:

Jurisdiction: Shows the type and date of the claim

Lists of Service Connected and Non-Service Connected Disabilities: Lists each disability in the order of severity. There may be two lists, one for service connected and one for non-service connected. This also shows the Diagnostic Codes, Era, Type of Service Connection, Future Examination, Percentage Granted, and Effective Date

Combined Evaluation: The total evaluation granted including Bilateral Factors and Effective Dates

What Does a Rating Decision Look Like?

Code Sheet:

Special and Ancillary Benefits: Lists any Special Monthly or Ancillary Benefits and their Effective Dates

Rater’s Signature: This space is reserved for the signature of the person who decided the claim

Types of Rating Decisions

Original/New: Issues that the veteran has never claimed before

Supplemental Claims: Can be claims for increase or a reopening of an issue that was previously denied

Non-Service Connected Pension: Claims for pension based on non-service connected conditions

Proposal to Reduce: Preliminary decisions that notify the veteran of the VA’s intent to reduce a rating or sever service connection

Types of Rating Decisions

Death/Burial Decisions: Determines if a veteran’s death is service connected and eligibility to burial benefits

Survivor Claims: Claims initiated by surviving dependents, can be for compensation or pension

Administrative Decisions: Used for non-rating issues such as character of discharge determinations

How to Access Rating Decisions

In order to review rating decisions, you must have access to VA’s Veterans Benefits Management System (VBMS)

Once logged in, define the search criteria to find the ratings needing review.

The current search criteria can be found in the VBMS filters Job aid in the Resources section of the Online Learning Portal

How to Review a Rating Decision

Ensure that you have the correct rating decision to review and determine the type of rating.

Look at the issues decided compared to what the veteran claimed on the claim form – Are they the same? Did VA address all the issues?

Check the evidence VA used to make their determination. Did they consider all of the pertinent evidence in the file?

How to Review a Rating Decision

Review the Reasons for Decision. Did VA correctly decide each issue? If the issue was granted, use your CFR to determine if the correct rating percentage was applied. If the issue was denied, look at the reason and determine if it is a valid reason for denial.

Check the effective dates for each granted issue.

Determine if bilateral factors, special benefits, or ancillary benefits have been correctly applied.

What To Do if You Find an Error

If you discover an error during your review notify the veteran and discuss possible appeal options

Annotate the error and any actions taken in TVB.

Remember: There is a big difference between a factual error and a difference in opinion. Not every denial is an error.

Common Errors

Missed Evidence: Did VA consider all of the evidence? Did they miss something in the STR, Medical Record, E-Folder?

Effective Dates: Did VA apply the correct effective date? Be sure to look for ITF or other ways that an effective date may be earlier that the date on the claim form.

Bilateral Factors: Did VA apply all of the eligible bilateral factors?

Special Monthly Benefits: Is the veteran eligible for SMC?

Chapter 35: Did VA grant CH 35 if eligible?

Missed contentions: Did VA address all issues claimed?

Tips to Improve Efficiency

The type of decision will determine the type of review. (i.e. For initial claims you may need to review the STR, whereas for increases you do not)

You are looking for obvious errors (don’t dig too deep)

Have all of your reference material readily accessible

Use VBMS-R and Online tools if necessary

Questions?

Non-Service-Connected Pension

Needs-based benefit

Provides supplemental income to a wartime veteran or their survivor

Tax-free

Paid monthly (unless amount is small)

A.K.A. “Improved Pension” since 1979 – some recipients are on prior pension programs… 38 CFR 3.3 (Service Pension; Spanish-American War, Section 306 Pension, Improved Pension)

Non-Service Connected Pension

The Maximum Annual Pension Rate (MAPR) is the maximum pension benefit someone can receive from VA per year

If income minus medical expenses exceeds the MAPR, veteran will not be paid pension
If income minus medical expenses is less than the MAPR, veteran will receive difference between income and the MAPR

The MAPR varies based on number of dependents or if there is entitlement to Special Monthly Pension (SMP)

(38 CFR 3.271-3.273)

Maximum Annual Pension Rate

Character of discharge

Wartime service

Qualifying period of service (duration)

Permanent and Total Disability rating or advanced age

Meet income and net worth guidelines

Which of these criteria differ from compensation?

Improved Pension Eligibility - Veterans

Discharge must be:
Honorable,
General Under honorable conditions, or
Determined to be Honorable for VA Purposes

If Veteran has an Other than Honorable Discharge or less, VA will conduct an Admin Review/Decision to determine eligibility of benefits.
(38 CFR 3.12)

Character of Discharge

For pension eligibility, the veteran must have at least 1 day of service during wartime.

Mexican Border Period – May 9, 1916 – April 5, 1917
World War I – April 6, 1917 – November 11, 1918
World War II - December 7, 1941 – December 31, 1946
Korean War – June 27, 1950 – January 31, 1955
Vietnam – November 1, 1955 – May 7, 1975 (for veterans who served in country) otherwise – August 5, 1964 – May 7, 1975
Gulf War – August 2, 1990 through a date TBD

(38 CFR 3.2 and 3.3)

Wartime Service Dates

In addition to wartime service, prior to 1980, a veteran must have 90 days or more of active service to be eligible for pension

Exception: If discharged before 90 days due to service-connected disability eligibility is established

(38 CFR 3.3, 38 CFR 3.6)

Period of Active Service

In addition to wartime service, for veterans entering service after September 7, 1980 (or October 16, 1981 for officers), to be eligible for pension, the veteran must also complete at least 24 months of continuous active duty OR the entire period called to active duty

Exceptions to 24 month rule:
Discharged due to early out/hardship
Discharged due to service connected disability
Holds a 10 % disability rating for anything

38 CFR 3.12a

Period of Active Service

The veteran must be Permanently and Totally Disabled to receive pension*.

Ways to determine total disability for pension purposes:
Age 65 or older
Patient in a nursing home for long-term care
Receiving Social Security Disability benefits
Receiving Supplemental Security Income
Exam/Medical evidence

*Includes both service connected and NSC disabilities
38 CFR 3.3

Total Disability

VA must complete a disability rating if:

Veteran is under 65 yrs and not already receiving SSD or SSI, or a long-term patient in a nursing home OR

There is a claim for or indication of special monthly pension OR

Competency is an issue (from VA Form 21-2680)

The decision is made to determine if veteran is permanently and totally disabled, meaning unable to adjust to substantially gainful employment

This decision includes both service connected and NSC conditions

Disability Decisions

Housebound : 38 CFR 3.351(d)
Must have a single permanent disability rated at 100% , and
Substantially confined to the home by reason of their disabilities, or
Have other disabilities independently ratable at 60% or more
Aid and Attendance: 38 CFR 3.351(b) 3.352(a)
Beneficiary is blind or nearly blind, or
So helpless as to require the aid of another person to perform the personal functions required in everyday living, or
Is a patient in a licensed nursing home receiving skilled or intermediate care
Notes:
Medical evidence needs to include diagnosis and description of severity of each disability (VA Form 21-2680 must be signed by a physician)

Qualifications for Special Monthly
Pension (Higher Rates of Pension)

Now that we know how a veteran can become eligible for NSC Pension, we must look at how they can become entitled to actual benefits

Eligibility vs. Entitlement

Net worth limitations
(savings/property)

Annual income limitations
(what is coming in every year)

Unreimbursed medical expenses
(what is being paid out-of-pocket)

Pension Entitlement

Pension is intended to maintain a minimum level of security, not to protect substantial assets or build up an estate

VA’s evaluation of net worth is based on the date of claim, not the date of entitlement.

The term net worth is the sum of the claimant’s:
Assets and
Income for VA purposes, including the income of dependents
While subtracting prospective annual unreimbursed (out-of-pocket) medical expenses

Net Worth

Assets do not include the following:

The value of a claimants primary residence under 2 acres

If a veteran is residing in an institution, the value of their primary residence, if they still own a home, is still excluded from net worth. However, if they are renting out the property, the rental income is included as part of countable income.

The value of personal effects suitable to and consistent with a reasonable mode of life, such as appliances and family transportation vehicle

10% of a claimant’s IRA if under the age of 59.5

Net Worth

Net worth limitations and how they are calculated were changed by the VA on October 18, 2018.

Prior to the change, the net worth limitation for pension was $80,000.

Under the new procedures, the net worth limits are:

Effective December 1, 2025 to November 30, 2026 = $163,699

Net Worth

Net Worth

VA will calculate net worth when they receive any of the following:

An original pension claim
A supplemental pension claim after a period of non-entitlement
A request to establish a new dependent
Information that a veteran’s, surviving spouse’s or child’s net worth has increased or decreased.

Net Worth

VA has implemented a 36-month look back period immediately preceding the date of claim. However, it will not include a look back for any transfers prior to October 18, 2018.

Only transfers for less than fair market value will be considered for a penalty period

Transfers for less than fair market value means:
Selling, conveying, gifting or exchanging an asset for an amount less than fair market value, or
A voluntary asset transfer to, or purchase of, any financial instrument that reduces net worth unless the entire balance of the asset can be liquidated for the claimant’s benefit

Net Worth

Covered Asset is an asset that:

Was part of the claimant’s net worth
Was transferred for less than fair market value during the look-back period, and
If not transferred, would have caused or partially caused the claimant’s net worth to exceed the net worth limit

Covered Asset amount is the monetary value by which a claimant’s net worth would have exceeded the limit due to covered assets alone if the uncompensated value of the covered asset had been included in net worth. This amount is used to calculate the Penalty Period.

Net Worth

Penalty period:
A period of non-entitlement due to the transfer of a covered asset during the look back period
Cannot exceed 5 years
Begins on the first day of the month following the date of the last transfer, and
Is calculated by dividing the total covered asset amount by the monthly penalty rate and rounding down.
Monthly penalty rate is the MAPR for a Veteran at the A&A rate with one dependent on the effective date of payment, divided by 12 and rounded down to the nearest dollar
This is the same for all pension claimants

Net Worth

Veteran’s spouse
Always considered in total family net worth
This includes separate property
Dependent child
Evaluate net worth of child independently of net worth of Veteran
If the child’s net worth is excessive, deny or remove child from the award
Trusts
Revocable and Irrevocable (may still be countable net worth even if it is called irrevocable)
Need a copy of:
the trust,
schedule of assets (current values of assets held in trust)
Life Estates
The life tenant is the owner of the property during his/her life and is entitled to exclusive possession and control of the property (still considered for net worth)
Need a copy of Life estate

Net Worth – What counts?

Examples of common countable income:
Gross earnings
Gross Social Security disability benefits
Gross retirement income
Interest/Dividends
Unemployment compensation
Net business or rental income
Gross withdrawals from IRAs

Examples of common excluded income:
VA Pension
Profit from sale of primary residence (net worth issue)
Welfare or Supplemental Security Income
Income Tax Refunds
Conversion of assets
Withdrawals from bank accounts and CD’s
Cashed in life insurance on death of Veteran
Potentially mineral royalties (Depends on land ownership)

Countable Income

The general rule set is that all income is countable for pension unless specifically excluded.

Compensation and DIC are counted as income
Veteran will be paid either compensation or pension
Survivor will be paid either DIC or pension

If entitled to both, whichever is the greater benefit at the time of filing will be paid

Veteran/survivor may elect to switch programs at any time
38 CFR 3.701

Does VA Service-Connected Compensation or DIC Count as Income?

A deduction for medical expenses is permitted if all of the following conditions exist:

Expenses are actually paid by the beneficiary or beneficiary’s spouse
Expenses are unreimbursed
Expenses are for a beneficiary or relative who is a constructive member of the household
Expenses are paid on or after the date of pension entitlement
Expenses exceed the five percent medical deductible (the 5% figure can be found in the pension rate chart on the VA website).

Medical Expense Deductions

Examples of common medical deductions:
Medicare Part B and D premiums
Private medical insurance (Life insurance and burial insurance do not count)
Prescriptions and co-pays
Non-prescription drugs (OTC), medical supplies, vitamins, herbal remedies, and food supplements (M21-1 IX.iii.1.G.3.r.)
($1,500/year limit per household member)
Medical supplies include incontinence supplies
Adaptive equipment
Care facilities or in-home care providers for beneficiaries entitled to A&A or HB benefits
Reimbursement for travel to medical appointments

Medical Expense Deductions

Nursing home costs

Count all facility and medical service fees if a responsible official of the nursing home certifies that the claimant or relative is a patient in the nursing home

Use the 21-0779 for this

Counting Care Facility Expenses

Other types of facilities (Assisted Living, Independent, Senior Living, Residential Care for the Elderly, Group Homes, etc.)

Count room and board if the facility provides health care or custodial care.
Custodial care includes:
Providing assistance with 2+ Activities of Daily Living or
Supervision due to physical, mental, developmental or cognitive disorder
Facility must be licensed if required by the State or county in which the facility is located. The facility must be staffed 24 hours per day with care providers.

Counting Care Facility Expenses

Rated Special Monthly Pension (primary beneficiaries)
Provides medical or nursing services, or provides custodial care
Does not have to be a licensed health care provider
Count all charges

Not Rated SMP (primary beneficiaries or dependents)
If the provider is a licensed health professional

Not Rated SMP and Not a Licensed Provider (dependents)
Signed statement from a physician that the person (dependent) requires the medical/nursing care provided by an in-home care attendant

Counting In-Home Fees

Payments must be commensurate with the number of hours that the provider attends to the disabled person.

Receipts or other documentation of payment of this expense is required. The evidence submitted must show:

Amount paid
Date payment was made
Purpose of the payment
Name of the person services were provided for
Identification of the provider

Counting In-Home Fees

Prediction of future expenses
Amount and frequency of payment is easily predictable
Common continuing medical expenses:
Nursing home, assisted living, in-home care
Private medical insurance
Medicare Part B and D
Incontinence supplies
Diabetic supplies

Counting Medical Expenses

Medical expenses can be reported directly on Form 21p-527ez / 21p-534ez
If additional medical expenses need to be reported, report on VA Form 21p-8416
Report in year paid, not year incurred
Be sure to calculate roundtrip mileage if you used your own car
No mileage if using taxi/public transportation, just fare
For self, spouse, child
Have veteran keep receipts for at least 3 years: VA may ask to verify

Reporting Medical Expenses

Reporting Medical Expenses
VA Form 21p-8416

Education expenses paid for veteran or surviving spouse may be deducted on a dollar for dollar basis

Tuition
Fees
Books

38 CFR 3.272(i)

Education Expenses

Veterans Pension Rate Table and Survivors Pension Rate Table – Effective 12/1/2022

Veterans Pension Rate Table:
https://www.benefits.va.gov/pension/current_rates_veteran_pen.asp

Survivors Pension Rate Table:
https://www.benefits.va.gov/pension/current_rates_survivor_pen.asp

Two different Rate Tables: Veterans and Survivors

Annual COLA tied to SSA: may increase each year

MAPR based on dependents and disability level

Medical expense deduction (5%) is based on if the veteran has dependents

Two veterans married to each other?

Child earned income exclusion

Reading Pension Rate Tables

Fractions of dollars are rounded down for both income and monthly pension rate. Consider the following example with generic numbers.

Single vet, MAPR is $17,441 per year
If zero income, veteran would receive $17,441 per year, or $1,453/mo in VA pension.
Veteran’s income is SSDI of $850/mo. Or $10,200/year
MAPR of $17,441 minus income of $10,200 = $7241 annual pension

$7241 ÷ 12 = monthly pension of $603
Total of SSDI + VA Pension = $17,441

How to Calculate Pension

Single vet, MAPR is $17,441/year
Income is SSDI of $10,800/year
He pays total medical expenses of $2,687 for 2026
5% of MAPR is $ 872 (meds above this are deductible)
Total expenses minus $872 = $1,815
(allowable medical expense to deduct from income)
Countable income is now $10,800 - $1815 = $8,985
Veteran will receive MAPR minus countable income

$17441 - $8,985 = $8,456
$8456 ÷ 12 = monthly pension of $704

How to Calculate Pension with
Medical Expenses

Can two married veterans both receive a VA Pension?
Yes, two married veterans can both receive a VA Pension at the same time, provided they both individually meet the active duty, wartime, income, and asset requirements
Household Limits: The Department of Veterans Affairs treats married veterans living together as a single household for needs-based programs.
Combined Income Limits: The VA compares your combined household income to a specific Maximum Annual Pension Rate (MAPR) set for two married veterans.
Individual Payments: If your combined household income and net worth fall below the limit, the VA can award a pension to each spouse, adjusted to account for your total countable family income.

How Dual-Veteran Pensions Work

Recipients are expected to keep VA informed of any change that may affect their pension benefit, including changes to income, net worth, marital status, nursing home patient status, and deductible expenses

For those with consistent income, especially receiving SSA, there’s no need to report annually unless there is a change, however expenses must be reported to be deducted

Reporting Changes in Income and Expenses

VA works with SSA and IRS to verify continued eligibility for pension benefits through computer matching programs

As a result, VA no longer sends Eligibility Verification Reports (EVR’s) to most beneficiaries

But, failure to report changes that affect pension benefits may result in an overpayment (veteran owes $ to VA)

If there is any doubt that a beneficiary’s income or expenses may affect their payments, report it!

VA Matching Programs and
Income Verification

Veterans Pension may be awarded to a Veteran retroactive for up to one year prior to the date of receipt of the claim if any of the following criteria are continuously met from September 17, 2001 until the date of claim:
Age 65; or
Found disabled by Social Security Administration (SSA) for the purpose of Social Security disability benefits; or
a patient in a nursing home for long-term care because of disability

No liberalizing law for Survivors Pension.

Qualifications for Liberalizing Law

38 CFR 3.551 (i) states VA must limit claimants to $90/month for a veteran, surviving spouse or surviving child who:
Has neither spouse nor dependent child, and
Is in a Medicaid approved nursing facility, and
A Medicaid plan covers in part or all of his or her nursing home care.
Note(s):
No overpayment is created when reducing to the $90 rate
The $90 payment is for personal use and cannot be used to cover nursing home expenses
Exception: not reduced to $90 rate if in a State Veterans Home
Be sure to include the name and phone number of the facility
If claimant has a running award, due process is initiated before $90 rate is set.

Medicaid $90 Rate

Hospitalization Adjustments

According to CFR 3.551(a), “hospitalization” is defined as when a Veteran resides in a…
VA hospital – VA medical center.
VA domiciliary – longer term residence for Veterans who are economically-disadvantaged, suffer from mental health, and/or require substance abuse treatment.
VA nursing home – nursing home paid for by VA (State Veterans Homes are excluded).
Private facility under VA contract – private facility paid for by VA.

…and care is being provided at VA expense

When a veteran becomes hospitalized, his/her benefits must be adjusted based on CFR 3.551 and 3.552.

Reduction under CFR 3.551
Veterans with no dependents, in receipt of Improved Pension at the basic rate, are reduced to $90.00 when provided with domiciliary or nursing home care at VA expense.

Reduction under CFR 3.552
Veterans with A+A entitlement are reduced to the housebound rate (A/H) when provided with hospital, domiciliary, or nursing home care at VA expense.

Hospitalization Adjustments

VA has three Pension Management Centers (PMC):

St. Paul, MN
Milwaukee, WI
Philadelphia, PA

The majority of pension claims are processed at these offices. However, VA Regional Offices still handle pension in many cases, such as when the application is for both pension and service connected compensation.

Pension Management Centers

The Pension Management Centers have established the following dedicated telephone numbers for VSO use ONLY.
DO NOT give these numbers to your clients.

St. Paul [phone number removed] PENSION.VBASPL@va.gov
Milwaukee [phone number removed]
Philadelphia [phone number removed] VBAPHI_PMC@va.gov

Pension Management Centers

Use ITF if you can’t submit claim right away…
If the number of claimable expenses is excessive, have the veteran/family create a list to report to VA
Let VA figure out the math – report everything
Include other forms/expense statements if applicable
If family member assisting, make sure veteran signs/marks claim if possible
Remind client to notify VA about income/dependent changes

Pension Processing Tips

If the veteran/survivor is considered for incompetency (from the VA Form 21-2680), a fiduciary may be assigned (38 CFR 3.850)

Explain fiduciary’s role and selection – managed by VA Fiduciary Hub

If in receipt of pension, at least Priority Group 5 for VA Health Care

Be aware of state and local veterans benefits

Pension Processing Tips

Reductions & Debt Management

What is a Reduction
Common Reductions
Proposed Reduction what to do
Actions other than Appeals
What is the Debt Management Center
Debt Establishment
Debt Resolution Options
Risks of Non-Payment
DMC Contact information

Overview

A reduction in benefits occurs when VA finds reason or cause to reduce or sever a benefit previously granted to the claimant.

What is a reduction?

VA Benefits can be reduced due to a variety of reasons:
Veteran’s disability showing material improvement
Failure to attend the required exam
Prison sentence
Review of medical history
VA finds a Clear & Unmistakable Error
TDIU removal due to the ability to maintain employment

Common Reasons for a Reduction

Act quickly
Respond immediately to any notification from the VA
60 day response window to request a hearing
Submit evidence to support the disability at the original rating
Attend any reexaminations
Request a decision review

What to do if a reduction is proposed

Stabilized ratings (5-year rule)
Ratings that have been in place for five or more years are considered "stabilized" and have additional protections, though reduction is still possible if there is sustained improvement
Continuous ratings (20-year rule)
A continuous rating of 20 years or more can only be reduced if the VA proves the original rating was based on fraud.
100% ratings
A 100% rating can only be reduced if there is "material improvement" shown through an examination

Special circumstances & protections

Apportionment
May be requested in the case of a reduction due to a prison sentence
File a VA Form 21-0788
Allows the family of the veteran to receive a portion or all compensation if there is undue hardship.
New Claim for residuals of a condition (IE Cancer)
File using a VA Form 21-526ez
Request 1-year waiver of TDIU to show the ability to maintain substantial gainful employment.

Actions other than an Appeal

The VA department responsible for establishing a “debt” when a claimant has an overpayment that is not related to a VA error.

What is the Debt Management Center(DMC)

Debt Establishment

Debt Establishment

Debt Collection

DMC sends Notice of Indebtedness letters, monitors accounts, and advises debtor of any delinquency, including the requirement to refer their account to Treasury

Example Debt Letter

Relief, Resolution, & Referrals

Requesting a Waiver

Debtors have one year from date of first DMC debt letter to request waiver
Request must be:
Made in writing and submitted to DMC
Include VA Form 5655 Financial Status Report
Explain why debtor is unable to repay the debt
Received in the first 30 days for Education or 90 days for C&P debt to stop collection action

What makes a “good” waiver request

Answer: There is no formula to guarantee the outcome of a waiver. Here are some things to bear in mind:

Indication of fraud, misrepresentation, or bad faith precludes granting of a waiver (See 38 U.S.C 5302(c) )

Request should explain facts and circumstances to enable the committee to consider the standards of equity and good conscience (see 38 C.F.R 1.965 for more details ):
- fault of debtor - balance of faults
- undue hardship - defeat the purpose
- unjust enrichment - changing position to one’s detriment

An accurate VA Form 5655 Financial Status Report facilitates evaluation of financial hardship

How to Appeal a Waiver Decision

Language from Committee on Waivers and Compromises (COWC) letter:

*** Veterans should not use VA form 10182, 20-0996, or 20-0995 to appeal a waiver decision with DMC***

Appealing a Waiver Decision (cont)

Disputing a Debt

Debtors can dispute the existence or amount of the debt created by VBA
Dispute must be in writing
DMC forwards disputes to the Regional Office/Regional Processing Office of jurisdiction
Veterans can now submit through the online debt portal

What if Payment is not Made?

Future VA benefits awarded will be withheld to satisfy debt
Department of Treasury
Offset of Federal payments
Referral to private collection agencies
Administrative Wage Garnishment Program

VA Debt Portal for Veterans or Claimants

Debt Portal: https://www.va.gov/manage-va-debt/
Veterans can log in to view balances
FAQ’s
Email notifications to Veterans
Online VA Form 5655 Financial Status Report (FSR) with “wizard”
Online Dispute
More enhancements to come

Contacting the DMC

In February 2022 VA Debt Collection policy changed where VA can only report a debt to a consumer reporting agency if:

The debt owed is more than $25;
The debt is classified as not currently collectible, meaning all other collection efforts have been exhausted;
The debt is not owed by an individual who is determined by VA to be “catastrophically disabled” or has reported to VA a gross household income below the applicable geographically adjusted income limits that would entitle a VA beneficiary to free health care, medications and/or beneficiary travel.

Reduced Debt Reporting to Credit Bureaus

Incarcerated Veterans
&
Dependent Considerations

VA Definition

Incarceration for Department of Affairs (VA) purposes the Term incarceration:

Refers to the confinement of an individual in a penal institution, even though the individual may be allowed outside the institution temporarily on furlough or for medical treatment, and includes confinement at any of the following, as long as confinement is pursuant to a criminal sentence: medical facility or mental institution, or other locations, such as work camps, forestry camps, or boot camps.

Regulation

38 CFR 3.665 requires the reduction of a beneficiary’s disability compensation or Dependency and Indemnity Compensation (DIC) when the beneficiary is incarcerated more than 60 days following conviction of a felony.

38 CFR 3.666 requires the discontinuance of a beneficiary’s pension when the beneficiary is incarcerated more than 60 days following conviction of a felony or misdemeanor.

38 CFR 3.666 requires the removal of an incarcerated dependent from a beneficiary’s award if the beneficiary receives pension.  There is no such requirement, however, if the beneficiary is a Veteran receiving disability compensation, or surviving spouse receiving DIC

Exceptions

Do not reduce or discontinue benefits for any period during which the Individual in question is:
Participating in a work release program
Under community control
Incarcerated in a foreign penal institution

Do not reduce or discontinue benefits for any period during which the individual in question is residing in a:
Halfway house
Residential re-entry center
Civil commitment center

Benefits during Incarceration

WHAT HAPPENS TO THEIR COMPESATION
WHEN A VETERAN BECOMES INCARCERATED?

Benefits during Incarceration

VA can pay certain benefits to veterans who are incarcerated in a Federal, State, or local institution but the amount depends on the type of benefit and the reason.

VA disability compensation payments are reduced if a veteran Is convicted of a felony and given a prison term for more than 60 days.

How much is a veteran entitled to while incarcerated?

Benefits during Incarceration

A veteran rated at 20 percent or more will receive the 10 percent disability rate.

Benefits during Incarceration

A veteran who is rated at 10 percent will receive how much?

Benefits during Incarceration

A veteran who only receives 10 percent disability compensation the payment is reduced to one half.

Benefits during Incarceration (SMC)

If the veteran’s disability evaluation for all service-connected (SC) disabilities is 0 percent, but the veteran is entitled to SMC under 38 U.S.C. 114(K) or a protected rate under 38 CFR 3.959 (statutory SMC Q) then 38 CFR 3.665(d)(2) requires VA to reduce the veteran’s monthly award to one half of the amount of the amount payable for a SC disability evaluated as 10 percent disabling.

Incarceration Calculation

When calculating the 61st day of incarceration, start with the first full day of imprisonment following conviction.

Do not include in the calculation the number of days the incarcerated individual spent in confinement while awaiting trial, or for examination or treatment, even if the individual is credited for those days as “time served” following conviction.

Regaining Benefits

VA does not require beneficiaries to submit a specific form to report that incarceration has ended.
May be reported in writing
By telephone or email
Or through a VA claims submission service website

For VA purposes incarceration ends when an individual:
Is released from prison
Is placed under community control (per VAOPGCPREC 59-1991)
Begins participation in a work release program
Moves to a halfway house, civil commitment center or residential re-entry center (as defined by M21-1, Part VI, Subpart iii, 1.A.1.d)

VA cannot resume the payment of benefits that VA reduced or discontinued due to incarceration without confirmation from an official source that incarceration has ended

What are official sources for VA purposes?

Regaining Benefits

Official sources for VA notification of release
Bureau of Prisons
County or State Department of Corrections
County Sherriff or other law enforcement
Prosecutor’s office
Parole Board
Prison Administration

Regaining Benefits

Apportionment to Dependents

This Photo by Unknown Author is licensed under CC BY-NC-ND

All or part of the compensation not paid to an incarcerated veteran may be apportioned to the veteran’s spouse, child, or children and dependent parents based on individual need.

Completion of the online Apportionment Form is required

The recent change to apportionments still allows this action under the revised guidance

Apportionment to Dependents

Apportionment to Dependents

VA form 21-0788 is what needs to be completed for the person seeking apportionment

Upon receipt of the claim, VA will develop evidence to decide the claim

For a claimant to receive an apportionment of a competent primary beneficiary's benefits the claimant must:

File a claim and:
Demonstrate a need for benefits, per the requirements of 38 CFR 3.451 or
Live apart from the veteran and did not receive a reasonable level of support per 38 CFR 3.450

If the requirements are met and the primary beneficiary will not suffer undue hardship, VA may authorize an apportionment of the primary beneficiary’s benefits to be paid to the claimant.

General Apportionment Rules

What may trigger an appeal

Incorrect date of incarceration (61st day)
Overpayment due to no notice to VA of incarceration
Apportionment denied

What other actions or circumstances may cause a need for appeal with an incarcerated beneficiary?

Appeal Considerations

All appeal lanes are available to incarcerated or justice involved beneficiaries

Communication with the incarcerated individual will be limited or restricted

Establishment of 3rd party consent may be beneficial

Service-Connected Claims and Development

WHY IS SERVICE CONNECTION IMPORTANT?

Compensation
A monthly payment made by the VA to a veteran because of a service-connected disability.

38 CFR § 3.4 (a)

Health Care
FREE VA health care is provided for all service-connected disabilities
*Note: there is another category of service connection for treatment purposes only:
Establishes health care but not compensation: special eligibility to service connection solely for treatment purposes

WHY IS SERVICE CONNECTION IMPORTANT?

Many veterans will confuse compensation with other benefits such as pension or military retirement.

It is your job to explain the differences between these programs and identify entitlement to the greatest benefit possible.

Common Confusion

COMMON ELEMENTS OF SERVICE CONNECTION

Current disability – Incurred or Aggravated
In line of duty
In the active military, naval, or air service

38 CFR §3.1(k)

Disability: Must have a current disability from injury/disease
Incurred: Event occurs anytime while on active duty (on leave, ACDUTRA, INACDUTRA)
Aggravated: Disability made worse during service or due to service-connected disability (more on this later)
In line of duty: Considered in line of duty unless willful misconduct is shown
38 CFR §3.301

COMMON ELEMENTS OF SERVICE CONNECTION

THE FOUR (4) PREFERRED PATHS TO SERVICE CONNECTION

There are four preferred paths to service connection:
Direct
Aggravation
Secondary
Presumptive

DIRECT SERVICE CONNECTION

Three elements of Service Connection:
1. Current Disability (established by lay or medical evidence)

2. Event in Service (injury, exposure to toxic substance, noise, trauma)

3. Link between Current Disability and Event in Service, termed “Nexus”
(For BDD claims the event in service is the link)

Caluza v. Brown, 7 Vet.App. 498 (1995)

DIRECT SERVICE CONNECTION

With Direct Service Connection, the current disability can develop or get worse many years after service, it just has to be due to the in-service event or exposure.
This can get more difficult to prove years after service, and will usually require a nexus opinion
Examples: Late-onset PTSD, Skin cancer due to sun exposure in tropical/desert locations, Disability due to exposure to asbestos, jet fuel, etc.
38 CFR 3.303(d) Post service initial diagnosis of disease

DIRECT SERVICE CONNECTION: EVIDENCE

Service Treatment Records
Personnel and Unit Records
Private Medical Records
Medical Opinions
C&P exams/DBQs
Secondary Evidence showing Incurrence
Letters, Diaries, Cancelled Checks, Receipts, Newspaper Articles, Insurance Exams, Workers Compensation Claims, Lawsuits

DIRECT SERVICE CONNECTION: WHAT IF YOU HAD THE SAME PROBLEM BEFORE SERVICE?

38 CFR 3.304(b)
Presumption of Soundness
When accepted for military service, presumed “sound” or healthy EXCEPT FOR:
Conditions that are noted on entrance physical OR
Clearly and unmistakably pre-existing service

Signed statement of the veteran that disability pre-existed service is of no effect unless other data supports it was pre-existing

AGGRAVATION

Two types of Aggravation:
38 CFR 3.306: Aggravation of Pre-Service Disability
38 CFR 3.310(b): Aggravation of Non-Service Connected Disability After Service

Remember 38 CFR §3.1(k): incurred or aggravated

AGGRAVATION OF PRE-EXISTING DISABILITIES DURING SERVICE

38 CFR 3.306
If accepted into service with pre-existing disability
And disability worsens during active service (remember anytime during active service)
Pre-existing disability can now be service-connected
Unless evidence shows it wasn't aggravated beyond the natural progress of the condition

38 CFR 3.310(b)
Non-service connected disability pre-existed service or happened after service but not caused by military service
The non-service connected disability cannot be the result of willful misconduct
Example: Veteran develops a non-service-connected skin condition, and service-connected diabetes makes the skin condition worse.

AGGRAVATION OF PRE-EXISTING DISABILITIES AFTER SERVICE

38 CFR 3.310(b)
Medical evidence is required
Rating a non-service-connected condition that is aggravated after service:
Establish baseline – severity of condition if service-connected condition wasn't making it worse
Compensated for the difference between baseline and current severity

AGGRAVATION OF PRE-EXISTING DISABILITIES AFTER SERVICE

SECONDARY SERVICE CONNECTION(SERVICE-CONNECTED DISABILITY CAUSES ANOTHER DISABILITY)

38 CFR 3.310(a)
This path is similar to aggravation, but the service-connected disability actually CAUSES another disability
Unlike with aggravation, there is no need to establish a baseline
Disability is rated the same as if directly service-connected
Some disabilities are already recognized as secondary in the regulations

SECONDARY DISABILITIES RECOGNIZED BY CFR

Certain disabilities are recognized in the CFR as causing other disabilities
Some examples include:

Above the knee amputation or double ankle amputation causes Cardiovascular disease 38 CFR 3.310(c)

Traumatic brain injury causes Parkinsonism, Seizures, Depression, certain dementias and certain hormone deficiencies 38 CFR 3.310(d)

Certain disabilities are recognized in the M21-1 as causing other disabilities
Some examples include:

Diabetes with nephropathy causes Hypertension (M21-1 V.iii.11.2.g)
Many other common complications are listed in the M21-1 sections for rating specific disabilities but will need a medical opinion.

SECONDARY DISABILITIES RECOGNIZED BY M21-1

MEDICAL EVIDENCE REQUIRED IF NOT LISTED IN CFR OR M21-1

A medical opinion that a service-connected condition or treatment for a service-connected condition caused another disability is required if the disability is not already established as secondary in the regulation.

WILLFUL MISCONDUCT AND ALCOHOL OR DRUG ABUSE

38 CFR 3.301(c)(2) and (3)
Disabilities that are the result of Alcohol or Drug Abuse can't be directly service-connected. However, if the substance is used because of a service-connected condition, it is not willful misconduct, and resulting disabilities can be secondarily service-connected

Example: Veteran has cirrhosis of the liver, due to alcohol addiction.

If alcohol addiction is result of a service-connected disability (for example, PTSD, or severe pain due to orthopedic condition), cirrhosis of the liver may be secondarily service-connected

PRESUMPTIVE SERVICE CONNECTION

Presumptive service connection can be granted if the veteran meets certain criteria as put forth in 38 CFR.

For presumptive service connection we know some facts about the veteran, and we are presuming that certain disabilities are service-connected because of those facts.

WHAT IS A PRESUMPTION?

There are many presumptions in veterans’ law (Title 38 USC and Title 38 CFR)

Some examples:

Combat Veteran Presumption: Because veteran was in combat, we presume that their statements as to disabilities that occurred during combat are true. 38 USC §1154(b)

Presumption of Soundness: Because the veteran was found fit for
service, we presume that he or she did not have any disabilities other than those noted on the physical exam. 38 CFR §3.304(b)

These presumptions both help to prove in-service incurrence
of a disability

PRESUMPTIONS THAT PROVE BOTH IN-SERVICE EVENT AND NEXUS

Each presumption regulation lists:

Reason why there is a presumption (examples: radiation
exposure, POW status, herbicide exposure, etc.)

2. Facts about veteran’s service that must be true
- When and where they served
- Sometimes, MOS or job function

3. List of disabilities associated with this presumption

If the veteran’s service meets the requirements, all you must show is
evidence of a current disability that is on the list of presumptive conditions.

Particulate Matter Presumptive Conditions

In 2021, VA recognized the following conditions as presumptive to
particulate matter exposure:

Asthma
Rhinitis
Sinusitis, to include Rhinosinusitis

To qualify the veteran must have:
• Served any length of time in the Southwest Theater of Operations
during the Persian Gulf War, or

• Served any length of time in Afghanistan, Syria, Djibouti or Uzbekistan
on or after September 19, 2001 and

• Manifests one of the following to any degree within 10 years from the
date of separation from military service:

LIMITATIONS OF PRESUMPTIONS

Strategy:

What if the veteran meets the time period and facts of service,
but has a disability that is not listed in the regulation?

Possible actions to take?

LIMITATIONS OF PRESUMPTIONS

If it is not on the presumptive list, you will likely need a good medical opinion to lead to a grant of compensation.

ALWAYS file claims as long as they have:

A current, chronic disability and some evidence of exposure

unless it is clear the disability was caused by an incident after service such as a workplace accident

BE REALISTIC when explaining processing timelines and chances of success

Get the facts on record in case the law changes in the future

THREE PATHS “AS-IF” SERVICE CONNECTED

The next three paths to service connection treat the disability “as if” it were service connected

The veteran will be paid compensation but may not receive all of the ancillary benefits that normally come with service connection

PAIRED ORGANS

38 CFR §3.383

1. When there is service-connected severe disability
(usually loss or loss of use) of certain organs or extremities AND

2. Non-service-connected disability of the paired organ or extremity

BOTH organs or extremities will be treated as service-connected
for determining compensation

Applies to:
Hands, Feet, Eyes, Ears, Kidneys, and Lungs

38 CFR §3.383 – Why?

Rating Schedule percentages assume that if only one of the
organs/extremities is impaired, the veteran can compensate for the
impaired/missing organ

If both are impaired or missing, veteran is less able to compensate

Example: Veteran has service-connected deafness of one ear due to
antibiotic use in service. He also has non-service-connected hearing loss
in the other ear due to a scuba diving incident. 38 CFR 4.85(f)

Without paired organs regulation: 10% rating for one ear
With paired organs regulation: Rating for both ears, up to 100%

PAIRED ORGANS

COMPENSATED WORK THERAPY OR REHABILITATION

38 USC §1151 and 38 CFR §3.361
If the Veteran is participating in VA sponsored CWT, it’s treated like worker’s compensation
Must have suffered additional disability or death while in CWT
Not due to willful misconduct
Apply for compensation using same process as other claims: 21-526EZ

VA FAULT/NEGLIGENCE

38 USC §1151 and 38 CFR §3.361
1. Suffered additional disability or death
2. Due to VA medical care or Failure of VA to diagnose/treat
(Not due to the natural progress of disease)
3. VA was at fault

Three ways to prove VA Fault: 38 CFR §3.361
1. VA failed to exercise the degree of care that would be expected of a reasonable health care provider, OR
2. VA furnished hospital care, medical or surgical treatment, or examination without the veteran's informed consent, OR
3. The additional injury or death was not reasonably foreseeable (unexpected based on the usual effects of treatment)
A MEDICAL OPINION IS NEEDED FOR THIS

VA FAULT/NEGLIGENCE

NOTE: Remember, this path is “AS-IF” Service Connected
If granted compensation under 38 USC §1151, veteran will not get all ancillary benefits such as DEA because the condition is not actually service-connected
You may be able to choose a better path even if negligence is an issue
- Which type of claim is it if a service-connected disability gets worse due to treatment?
- Which path is it if treatment for a service-connected disability causes another condition?
File on VA Form 21-526EZ

VA FAULT/NEGLIGENCE

NOTE on Federal Tort Claims and Offsets:

The veteran/claimant can also file a “Federal Tort Claim” against a federal agency or employee. VFW CANNOT assist in these claims.

There may be an offset of benefits (won’t receive VA compensation and award from Federal Tort Claim settlement at same time)

*IMPORTANT: we are not allowed to recommend specific lawyers. Direct the veteran to Legal Aid or LawHelp.org for clearinghouse of legal aid providers.

VA FAULT/NEGLIGENCE

Think about which path makes most sense for the veteran based on the facts and evidence

Direct, Secondary, Presumptive paths are best, then Aggravation, then “as-if” service-connected paths.

Do not need to state the path if it is direct service connection, that will always be considered. Recommend stating the path on claim form if it is NOT direct service connection.

In the end, it is the veteran’s or survivor’s claim. Explain clearly the evidence they will need to provide but never dissuade them from filing, especially if it is an original claim.

THOUGHTS ON SERVICE CONNECTION

Now that we have discussed the major points of service connection, let’s talk about claims development and VA’s duties to notify and assist veterans with their claims.

To trigger a C&P exam, the claim must be plausible

To have the claim granted, the claim must be probable

The claim need not be conclusive, only “at least as likely as not” (50/50)

It is your responsibility to guide the veteran in preparing a claim with the best chance of success

MAJOR POINTS IN THE CLAIMS PROCESS:

Your role is to assist the veteran in developing and submitting a timely, complete, and accurate claim.

Once certain criteria are met, VA is required by law to assist the veteran in obtaining required documentation to support their claim and continue development.

Neither of which relieves the veteran of their ownership of the claim. The veteran also has a duty to assist you and the VA in accomplishing the mission. It is THEIR claim.

DUTIES AND RESPONSIBILITIES

An application is only complete if the following are included (38 CFR 3.160):

Claimants Name
Service Information
Benefit claimed
Signature
For Compensation: disabilities for which benefit is claimed (listing diagnosis or chronic symptoms)
For Pension/parent’s DIC: statement of
income

CRITERIA: “SUBSTANTIALLY COMPLETE” CLAIM

Obtaining any and all available evidence;

Understanding the process including: time frames and reasonable expectations;

Compensation requires a current diagnosed disability, proof of incurrence, and a nexus;

Pension requires medical evidence or presumption of a permanent and total (over age 65) and income/net worth evidence

WITHOUT PROPER DEVELOPMENT THE CLAIM WILL FAIL

DEVELOPMENT OF A CLAIM CONSISTS OF:

Evidence is every type of proof offered to establish a fact.
(M21-1 V.ii.1.A.1.a. )

Testimonial – Oral and written statements

Documentary – documents

Real – a tangible object

Demonstrative – illustrates testimony of a witness

Direct – capable of proving by itself of proving a fact or issue

Circumstantial – allows the fact finder to deduce a certain fact from other facts that can be proven

EVIDENCE

Evidence must be on or accompanied by a VA approved standardized form; if you are not submitting the evidence at the same time as the claim, include a 21-4138 explaining the evidence and reason for its submittal.

VA forms are updated frequently and can be obsolete in a short period of time. Visit VA’s website for latest edition or you may use the forms provided in VetraSpec.

REMEMBER… web addresses that end in “.com” are not government web addresses and are often outdated or contain incorrect information.

EVIDENCE

38 CFR 3.159(a)(2)

Lay evidence is:

any evidence not requiring that the writer have specialized education, training, or experience.

competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.

used to fill in blanks and can help to balance other evidence

LAY EVIDENCE

Some Examples include:

Veteran’s statement (spoken or written)
Lay statement (spouse, friend, family)
Buddy statement
Photographs
Newspaper clippings
Performance evaluations
Copies of bills paid on time

Q: What if veteran’s uncle is a nurse who wants to provide testimony?

EXAMPLES OF LAY EVIDENCE

Credibility
Person making statement must be believable
e.g. malingering, exaggeration, motive

Competency
Person’s words have value
e.g. description of symptoms vs diagnosis

M21-1 V.ii.1.A.2.b
“accept evidence at face value”

LAY TESTIMONY REQUIRES:

Veteran’s description of their own experience
Witness to same in-service event (another veteran)
Witness of current symptoms (spouse, co-worker, neighbor)
Opinion of how disability is related to event in service
Comparison of symptoms before disability and now
Spouse also heard what doctor said
Description of how bad pain can get
Example of how symptoms impact daily life
Veteran reports unit, rank, and theater

VALUABLE LAY TESTIMONY

38 CFR 3.304(d) Combat. 

Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation.

COMBAT VETERANS

Submit all available treatment records (both VA and private)

In most cases, it is best for the veteran to obtain private treatment records.

Request all records related to the claim using VA Forms 21-4142 and 21-4142a
VA does not pay for private records

If a claim has been filed in the past, VA has those records; submit updates that occurred after the previous claim was filed.

TREATMENT RECORDS

Some other common types of evidence that may be helpful:

Journals
Medical Studies
HR Reports
Notes/letters home
Buddy Witness statements on VA form 21-10210

What other types of evidence may be available?

Other Helpful Evidence

Note: In 1973, a fire at the National Personnel Records Center (NPRC) in St. Louis destroyed records held for veterans who were discharged from the Army and Air Force during certain periods of time. Records may have been destroyed in the fire if discharged from the Army between November 1, 1912 and January 1, 1960, or if discharged from the Air Force between September 25, 1947 and January 1, 1964.

If your veteran was affected by this, records can be reconstructed by using the following forms:

NA Form 13055 (medical records)
NA Form 13075 (service verification)

DESTROYED NPRC RECORDS

38 USC 5103 (duty to notify)
38 USC 5103A (duty to assist)

38 C.F.R. §3.159(b) & (c)

VA’s duty to notify and assist begins:

When the VA receives a substantially complete application for benefits;

Before VA has a duty to assist the veteran/claimant, a substantially complete claim must be submitted.

VA will notify the veteran/claimant of evidence that is necessary to substantiate the claim.

VA ASSISTANCE IN DEVELOPMENT
VETERANS CLAIMS ASSISTANCE ACT “VCAA”

WHAT IF THE APPLICATION
IS NOT
“SUBSTANTIALLY COMPLETE”?

Considered incomplete application. VA will send a development letter and the veteran must then file a substantially complete claim.

TRIGGERING VCAA

If a development letter is needed VA will:

Mail notice to claimant;

Notice will include what VA will do and what the claimant needs to do

5103 notice response included if not already completed on the 526EZ

(38 USC 5103 – duty to notify)

DEVELOPMENT LETTERS

Notification is sent to the wrong address
Standard notification letters ask for info that may already be on file
Issue is misidentified, so incorrect info is requested
May overlook evidence filed after claim forms submitted, and fail to send subsequent notice

COMMON DUTY TO NOTIFY ERRORS

VA will assist in obtaining the following records:

Service Treatment Records/Personnel Records
Military Unit Records
National Guard and Reserve Records
VA Medical Treatment Records
Social Security or any other federal agency records
Medical Records not in federal custody (Requires VA Form 21-4142 and 21-4142a)

DUTY TO ASSIST: OBTAINING RECORDS WITH VA ASSISTANCE

VA will make as many requests as necessary to obtain relevant records from a Federal department or agency

List dates of treatment and facilities on VA form 21-526EZ (or other form such as 21p-534EZ for survivor benefits)

VA will make two requests to obtain private records
List dates of treatment, facilities, and addresses on VA Form
21-4142 and 21-4142a
May be quicker to have veteran request records from provider
VA will not pay fees for records (38 CFR 21.1032)

If VA provides a “formal finding of unavailability” that the records do not exist or further attempts would be futile, they can stop requesting records.

DUTY TO ASSIST: OBTAINING RECORDS WITH VA ASSISTANCE

VA will assist in obtaining competent medical evidence to decide the claim:
38 CFR 3.159(c)(4)

When competent medical evidence is not of record (if it is, VA can go ahead and grant!)
Competent lay or medical evidence of current disability
Established event, injury, disease or event that triggers a presumption in service
Claimed disability or symptoms may be associated with the established event, injury, or disease or with another service-connected disability

DUTY TO ASSIST: MEDICAL EXAMS/EVIDENCE

Original Claims: VA required to fully complete duty to assist (DTA)

Reopened Claims/Reconsideration (filed prior to 2/19/19): DTA required only if new and material evidence is presented

Supplemental Claims (filed after 2/19/19): DTA required only if new and relevant evidence is presented.

Survivor Claims: DTA applies to all claimants, including survivors: qualified persons who may stand to gain a benefit.

Higher Level Review/Appeal to the Board: If VA attempted but did not complete DTA, that is an error. Board can order the VA to fix if benefit cannot be granted immediately.

DUTY TO ASSIST IN DIFFERENT CLAIM TYPES

VA does not need to provide Duty to Assist when:

Application is not complete

No legal standing (not a claimant)

Claim is inherently incredible

Claimant fails to cooperate

Claimant fails to notify VA of relevant records

NO REQUIRED DUTY TO ASSIST

VA will discontinue Duty to Assist when:

VA can grant on the evidence of record

All evidence is of record

VA is notified that records are not available and further attempts would be futile

Records have no bearing on issue

DISCONTINUING DUTY TO ASSIST

Records
Request is made by VA to the wrong facility/wrong address
The correct type of records are not requested
Wrong dates are requested

Exams
VA fails to request exam when warranted
Examiner fails to review evidence of record
Medical opinion fails to address correct path of service connection/does not provide rationale

How can you help prevent these types of errors?

COMMON DUTY TO ASSIST ERRORS

Spelling counts! Check names, addresses, dates
Review the file and ensure that all relevant records have been properly requested and obtained
If key records are unavailable, cite applicable laws that can presume evidence (combat veteran presumption, fear-easing stressors, etc.)
Understand what is being requested in VA’s letters and help claimants complete requested responses
Keep veteran informed, especially of VA timeliness requirements

HOW CAN YOU HELP?

There is a lot of mis-information out there, be sure to verify if you are unsure on something before you share it with a veteran.
Below are some common claim misconceptions:

Filing for “Agent Orange”
Misconception: Veterans believe they can file a claim for “Agent Orange” as if it is a disability.
Reality: Agent Orange exposure itself is not a disability. Veterans must file for specific conditions linked to Agent Orange, such as diabetes mellitus type 2, ischemic heart disease, or certain cancers.

Common Claim Misconceptions

Filing for “The PACT Act”
Misconception: Veterans think they can file a claim under the “PACT Act” as if it’s a benefit.
Reality: The PACT Act expanded presumptive conditions and locations for toxic exposure claims (e.g., burn pits), but veterans must still file for specific conditions like chronic bronchitis, asthma, or cancers listed under the Act.

Common Claim Misconceptions

Filing for “Burn Pit Exposure”
Misconception: Veterans assume “burn pit exposure” is a claimable condition.
Reality: Burn pit exposure may qualify a veteran for benefits, but only if they have a diagnosed illness tied to the exposure, such as chronic respiratory issues or certain cancers.

Common Claim Misconceptions

Filing for “Gulf War Syndrome”
Misconception: Veterans believe they can file for “Gulf War Syndrome” as a standalone claim.
Reality: Gulf War Syndrome is a term for a range of medically unexplained chronic symptoms. Veterans must claim specific symptoms or conditions, such as chronic fatigue syndrome, fibromyalgia, or functional gastrointestinal disorders.

Common Claim Misconceptions

Special Monthly Compensation

SMC (K)

SMC criteria for Housebound and A&A

SMC for extremity losses at all levels (L thru O)

(P) elevations

The five ways to get to (O)

SMC (R) and (T)

Course Topics

Special Monthly Compensation is a monetary benefit that is paid above and beyond the normal rating schedule to veterans that have certain service-connected disabilities or conditions.

What is Special Monthly Compensation?

38 CFR 3.350

38 CFR 3.352

38 CFR 3.552

References

(Single Veteran no Children)

$139.87 per month, added on
(S) $4,408.53 per month
$4,900.83 per month
$6,877.12 per month
(R1) $9,826.88 per month
(R2/T) $11,271.67 per month

Effective December 1, 2025

Selected SMC Rates

Generally, SMC at the (K) rate is payable for loss or loss of use of a single body part or loss of a single body function.

The current rate (effective 12/2025) is $139.87; this is added to the basic compensation rate.

38 CFR 3.350(a) and 38 USC 1114(k)

SMC (K)

SMC (K) is payable for:

Loss or loss of use of one hand
Loss or loss of use of one foot
Blindness of one eye, having light perception
Loss of use of both buttocks
Bilateral Deafness
Aphonia
Loss or loss of use of a creative organ
Breast loss (females only)

38 CFR 3.350(a)

SMC (K)

Loss of use of a hand will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of a suitable prosthetic appliance.

38 CFR 3.350(a)(2)(i)

Loss of Use (LOU) of a Hand

Effective remaining function is assessed on the basis of grasping and manipulation.

Can the veteran pick up small objects such as paper clips or coins? Can he/she oppose the index finger to the thumb? Can he/she button clothing, open an envelope, or use a screwdriver?

Loss of Use (LOU) of a Hand

Loss of use of a hand could also be established by a clinical finding of complete ankylosis of two major joints of an upper extremity.

What is ankylosis?

3.350(a)(2)(i)(a)

Loss of Use (LOU) of a Hand

Similar criteria as for hand. No effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee, with the use of a suitable prosthesis.

3.350(a)(2)

Loss of Use (LOU) of a Foot

Effective remaining function is assessed with respect to the elements of balance and propulsion.

Can the veteran raise the heel off the floor? Can he/she push off with the ball of the foot?

3.350(a)(2)(i)

Loss of Use (LOU) of a Foot

Loss of use of a foot could also be established by a clinical finding of:

Complete ankylosis of two major joints of a lower extremity

Shortening of a lower extremity by 3 ½ inches

Extremely unfavorable ankylosis of the knee

Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop with characteristic organic changes.

3.350(a)(2)(i)(a)and (b)

Loss of Use (LOU) of a Foot

The SMC (K) rate is added to any other SMC entitlement until the SMC level reaches SMC (O).

You can have more than one SMC (K)

SMC (K)

SMC (K) is payable for loss or loss of use of a single extremity.

If another extremity also has loss or loss of use, the SMC for the pair of extremities is SMC (L) or higher.

The (K) no longer applies.

SMC (K)

Example:

Vet is rated for loss of one foot and receives SMC (K). If she later loses the other foot due to a service connected disability, she is entitled to SMC (L) instead of two SMC (K)’s.

SMC (K)

Requires a single SC disability rated at 100%

and either:

An additional SC disability or combined disabilities independently ratable at 60 percent or more

or

The veteran is permanently housebound as a result of SC disabilities.

38 CFR 3.350 (i)

SMC (S): Housebound

The “single disability” must be one condition rated 100 percent.

When a veteran has multiple conditions that combine to 100 percent, but none is rated 100 percent by itself, housebound is not payable.

SMC (S): Housebound

Example (100 percent plus 60 percent):

PTSD rated at 100 percent and Hearing Loss rated at 60 percent would qualify for SMC (S).

Example (Housebound “in fact”)

The veteran is rated 100 percent for lung disease. He is on home oxygen and cannot leave home except to go to the doctor. He is medically confined to his home and therefore entitled to SMC (S).

SMC (S): Housebound

Example

70% PTSD
60% Type 2 Diabetes Mellitus
20% Peripheral Neuropathy – Left Upper
20% Peripheral Neuropathy – Right Upper
20% Peripheral Neuropathy – Left Lower
20% Peripheral Neuropathy – Right Lower
10% Diabetic Retinopathy
10% Tinnitus

The veteran is not confined to their home.

Should SMC(S) be applied?

SMC (S): Housebound

How about now?

70% PTSD –TDIU granted solely on this condition
60% Type 2 Diabetes Mellitus
20% Peripheral Neuropathy – Left Upper
20% Peripheral Neuropathy – Right Upper
20% Peripheral Neuropathy – Left Lower
20% Peripheral Neuropathy – Right Lower
10% Diabetic Retinopathy
10% Tinnitus

The veteran is not confined to their home.

Should SMC(S) be applied?

SMC (S): Housebound

The 100% for SMC (S) can be based on individual unemployability, provided the TDIU rating is based on a single disability.

See Bradley v. Peake, 22 Vet.App. 280 (2008)

SMC (S): Housebound

SMC (S) can also be assigned based on a temporary total evaluation under paragraph 28, 29 or 30.

Example:
A veteran requires 1 year of post-surgical convalescence for a service-connected disability. If the other disabilities combine to 60% or higher, SMC (S) is payable during the Paragraph 30 time period.

SMC (S): Housebound

SMC (L) and/or higher are awarded for:

Double extremity loss or loss of use (LOU)

Need for aid and attendance (A&A)

Blindness and Deafness

38 CFR 3.350

SMC (L) and Higher

SMC (L) is payable when the veteran requires regular aid and attendance:

To perform activities of daily living (ADL)

To protect from the hazards of daily living

Includes being “bedridden”

38 CFR 3.350(b) and 3.352

SMC (L) for Aid and Attendance

What are some ADL’s?
Dressing and/or Undressing
Cleaning/Bathing
Frequent adjustment of prosthetics needing the aid of another person that normally could be adjusted without aid
Feeding/preparing meals
Calls of Nature
Protection from the hazards of daily living

38 CFR 3.352(a)

SMC (L) for Aid and Attendance

For SMC (L) based on need for A&A, a 100 percent rating is generally required.

This includes multiple ratings for a “single disease entity” such as Parkinson’s or Multiple Sclerosis.

Example:

MS-related conditions:
80% Eye condition
70% Depression
40% Right upper extremity
30% Left upper extremity

Combined is 100%.

If the vet needs A&A, SMC (L) applies

SMC (L) for Aid and Attendance

Example:

100% for Diabetes Mellitus
40% for left below the knee amputation (BKA)
Vet needs A&A due to service-connected disabilities.

SMC level is L plus K
L for A&A
K for BKA

**Note that K entitlement can be used with L for A&A.

SMC (L) for Aid and Attendance

The starting levels for SMC due to multiple extremity loss are as follows:

SMC (L) is payable for both feet

SMC (L) is payable for one foot and one hand

SMC (M) is payable for both hands

38 CFR 3.350 (b) and (c)

SMC for Double Extremity Loss

To understand the concept of building up SMC entitlement for greater losses, we need two ideas:

Elevating an SMC level by 1/2 steps

Joint Levels

38 CFR 3.350 (b),(c), and (d)

SMC for Double Extremity Loss

A half step elevation means to increase the SMC level to the next higher rate or intermediate rate: e.g. from (L) to (L ½) or from (M ½) to (N).

A full step elevation would be from (L) to (M) or from (M ½) to (N ½).

The principle is that SMC is elevated ½ step per joint level per extremity affected.

38 CFR 3.350 (b)-(f)

SMC for Double Extremity Loss

Lower Extremity Joint

Levels:

Foot: Below knee
amputation (BKA)
or loss of use

Knee: Above knee
amputation (AKA)
or loss of natural
knee action with
prosthesis in place.

Hip: Amputation (only)
so high as to prevent prosthesis

SMC for Double Extremity Loss

Upper Extremity Joint

Levels:

Hand: Below elbow
amputation (BEA)
or loss of use

Elbow: Above elbow
amputation (AEA)
or loss of natural
elbow action with
prosthesis in place.

Shoulder: Amputation (only)
so high as to
prevent prosthesis

Loss of Natural elbow or knee action

This means that the veteran does not have natural use of the joint, to the point that muscles affecting joint motion, if not already atrophied, will become so. Ankylosis or paralysis of the joint is entitling.

38 CFR 3.350(c)(2)

SMC for Double Extremity Loss

Examples of elevations based on multiple extremity loss:

For a BKA on one side and an AKA on the other, the SMC (L) for both feet would be elevated ½ step for the knee level to SMC (L ½).

For loss of a hand on one side and above elbow amputation on the other side, the starting level of SMC (M) would be elevated to (M ½) for the elbow level.

SMC for Double Extremity Loss

SMC for Double Extremity Loss

Elevation of SMC level under (P)

For a veteran already rated at SMC (L) or higher, the following factors permit elevation of the SMC level.

Additional independent 50% disabilities= Half step

Additional independent 100% single disability = Full step

Triple extremity loss = Half step

38 CFR 3.350(f)(3), (f)(4) and (f)(5)

SMC (P) Elevations

Additional independent 50% disabilities

A half step elevation is provided for an additional single disability or combination of disabilities independently ratable as 50 percent or more.

38 CFR 3.350 (f)(3)

SMC (P) Elevations

½ Step Examples:

1. 100 percent for bilateral BKA = SMC(L)
50 percent for PTSD
SMC entitlement is now (L ½)

2. 100% for LOU of both hands = SMC(M)
30 percent for heart disease
30 percent for GI disorder
SMC entitlement is now (M ½)

SMC (P) Elevations

Additional independent 100 percent disability

A full step elevation is provided if the veteran has an additional single disability independently ratable as 100 percent.

Whole Step Example:

100 percent both hands SMC (M)
100 percent heart disease Full step to SMC (N)
0 percent creative organ Add SMC (K)
SMC Entitlement is now SMC (N) + (K)

38 CFR 3.350(f)(4)

SMC (P) Elevations

The 50% (P) elevation permits a combination of disabilities but the 100% (P) elevation requires a single disability.

SMC (P) Elevations

A veteran may only receive either the 50% or 100% (P) elevation NOT BOTH

Example:
100% for both hands (LOU) SMC (M)
100 % heart disease Full step to SMC (N)
50% PTSD (No Change)
0% creative organ Add SMC (K)

SMC entitlement is now SMC (N) plus (K)

SMC (P) Elevations

(P) elevation for triple extremity

Anatomical loss or loss of use, or a combination of loss and loss of use, of three extremities is entitled to a ½ step elevation.

This elevation is in addition to SMC (K) entitlement and can be used with the 50 or 100 percent elevations.

38 CFR 3.350(f)(5)

SMC (P) Elevations

Triple Extremity Example:

Both feet SMC (L)
One hand (60%) ½ for triple plus ½ for 50% (P) plus (K)

SMC entitlement is now SMC (M)+(K)

NOTE: Loss or loss of use of a hand is ALWAYS rated at least 60 percent.

SMC (P) Elevations

Triple Extremity Example:

1. Both hands (M)
One foot (40%) ½ for triple plus (K)

SMC entitlement is now SMC (M ½) + (K)

2. Both hands (M)
One foot (40%) ½ for triple plus (K)
100% Heart Disease Full step (P) elevation

SMC entitlement is now SMC (N ½) + (K)

SMC (P) Elevations

(P) Elevations with Aid and Attendance

For SMC (L) based on A&A, the (P) elevations under 3.350 (f)(3) and (f)(4) are permitted.

The (L) can be elevated a half step for an additional 50 percent evaluation.

The (L) can be elevated a full step for an additional, single 100% disability.

SMC (P) Elevations

A&A Example with P Elevation:

100% for Diabetes Mellitus
50% for Migraines
40% for left BKA
Vet needs A&A due to diabetes.

100% with A&A (L)
½ for additional 50% condition (L½)
BKA (K)

SMC entitlement is SMC (L ½)+(K)

SMC (P) Elevations

There are 5 ways to get to SMC (O):

Both arms, shoulder level amputation

Paraplegia with loss of bowel and bladder sphincter

Conditions entitling to two SMC codes rated (L) to (N)

Elevations under (P)

Blindness and deafness

SMC (O)

SMC (O): Paraplegia with loss of bowel and bladder sphincter control

Paraplegia (paralysis of both lower extremities) together with loss of anal and sphincter control entitles the veteran to SMC (O), even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures such as a bowel management program.

Bowel management program: Overcoming the inability to void the bowel using medical or artificial means such as laxatives & digital stimulation.

38 CFR 3.350(e)(2)

SMC (O)

SMC (O): Conditions entitling to two SMC codes rated (L) to (N).

Must be separate and distinct disabilities but can be losses resulting from a common etiological agent, for example, one injury or rheumatoid arthritis.

38CFR 3.350(e)(1)(ii)

SMC (O)

SMC (O): Conditions entitling to two SMC codes rated (L) to (N).

Examples:

1. 100% LOU Hands SMC (M)
100% LOU Feet SMC (L)
SMC entitlement is SMC (O)

2. 100% Hands SMC (M)
100% Psychosis requiring A&A SMC (L)
SMC entitlement is SMC (O)

SMC (O)

SMC (O): Elevations under (P) to the (O) level.

Example:

100% Both legs, hip level amputations SMC (N)
100% PTSD Full step (P)
SMC entitlement is now SMC (O)

SMC (O)

SMC (O): Blindness and Deafness

Bilateral service connected hearing loss rated at 60% or more disabling in combination with service-connected blindness with bilateral visual acuity 20/200 or less.
Or

Service-connected total deafness in one ear or bilateral deafness rated at 40% or more disabling in combination with service-connected blindness of both eyes having only light perception or less.

38 CFR 3.350(e)(iii) and (iv)

SMC (O)

Once a veteran is entitled to SMC (O), SMC (K) no longer applies

There is no SMC (O ½) or SMC (O)+(K)

38 CFR 3.350(a)

SMC (O)

Eligibility for SMC (R)

1. Requires A&A

And

2. Meets one of two threshold levels:
SMC (O)
SMC (N ½) plus (K)

38 CFR 3.350(h)(1) and (2)

SMC (R)

Eligibility for SMC (R)

Examples:

1. 100% Both legs, hip level amputations SMC (N)
50% PTSD SMC (N½)
0% Loss of creative organ SMC (K)
If the vet needs A&A SMC level will be elevated to SMC (R)

2. 100% Both hands above elbow amputation SMC (N)
100% Heart Disease SMC (O)
If the vet needs A&A SMC level will be elevated to SMC (R)

SMC (R)

SMC (R) is based on a factual need for A&A under 38 CFR 3.352, the same criteria for SMC (L) based on A&A.

SMC (R) can be payable even if A&A was a partial basis of the rate under SMC (O) or SMC (P).

In other words, even if the A&A was used to determine SMC (O) entitlement, it can also be used to determine SMC (R) entitlement.

NOTE: SMC (R) is only paid when the veteran is not hospitalized at the government’s expense.

38 CFR 3.350(h)(1) and (2)

SMC (R)

The SMC (R1) rate is paid unless the veteran meets the specific requirements for SMC (R2)

(R2) is only provided when a higher level of care is required to prevent institutionalization.

If a veteran who is receiving SMC (R2) is hospitalized, the rate is reduced to SMC (R1).

If a veteran is receiving SMC (R1) or (R2) and is hospitalized at the government’s expense, the rate will be reduced to SMC (O)

38 CFR 3.352(b)(1) and (2)

SMC (R)

SMC (R2): Higher Level of Care to Prevent Institutionalization

Entitled to (R1)

Without higher care, the veteran would be institutionalized.

Need must be certified by a physician.

38 CFR 3.352(b)

SMC (R)

SMC (R2) Higher Level of Care Criteria:

Skilled services (e.g. PT, injections, indwelling catheter, sterile dressing, etc.)

Performed in the person’s home

Daily

Performed by a licensed health care provider or by a person under regular supervision of a LHC professional (Can be a relative)

38 CFR 3.352 (b)(2),(3),and (4)

SMC (R)

SMC (T) is equal to the (R2) rate and is payable for veterans who:

Need regular A&A for residuals of traumatic brain injury (TBI),

AND

Would require hospitalization, nursing home, or other residential institutional care in the absence of regular in-home A&A

38 CFR 3.350(j)

SMC (T)

SMC (T) is not payable if the veteran is otherwise eligible for SMC (R2)

If a veteran receiving SMC (T) is hospitalized the rate is reduced to SMC (S) plus any applicable (K’s)

SMC (T)

In 2024, the CAVC ruled in Laska v. McDonough that a higher lever of care is not required to receive SMC T benefits for service connected TBI. Only the need for regular aid & attendance is required.

If you know of any veterans not receiving SMC T because of the higher level of care provision, encourage them to refile due to this updated criteria.

SMC (T)

Ancillary Benefits

Most veterans who qualify for SMC will also qualify for additional ancillary benefits such as:

Specially Adapted Housing (SAH)
Special Home Adaptation (SHA)
Temporary Residence Adaptation (TRA)
Automobile Allowance
Adaptive Equipment for Auto
Commissary Card
Dependent Education
Dependent Healthcare

Always talk to your veterans to determine if any claims for ancillary benefits should be filed

Final Thoughts

Special Monthly Compensation is paid to veterans whose injuries are more severe than the rating schedule reflects

Remember to look for SMC entitlement when reviewing ratings (especially SMC (K))

There can be eligibility to multiple SMC (K)’s but once the vet reaches SMC(O) they no longer apply

A SMC (P) elevation can only be used once per veteran

SMC can be applied during temporary rating periods (4.28, 4.29, 4.30)

Final Thoughts

Don’t expect to master SMC in a day

Always use your references

If you have any questions once you return to your office, please ask!!

Survivor Benefits

Survivor Benefits are benefits awarded to the dependents of deceased veterans

These benefits are awarded based on the veteran’s service and/or disabilities

What are Survivor Benefits?

There are five (5) Survivor programs that will be discussed in this class:

Accrued Benefits
Dependency and Indemnity Compensation
Substitution
Survivors Pension
Burial Benefits

What are Survivor Benefits?

Accrued benefits are benefits that are owed to the veteran but not paid prior to the veteran’s death.

VA must receive an accrued benefits claim within one year after the veteran’s death.

Accrued Benefits (38CFR 3.1000)

Examples of accrued benefits include:

A claim or appeal was pending at the time of the beneficiary’s death and all of the evidence needed for a favorable decision was in the file on the date of death

A claim had been granted, but the beneficiary died before award action could be taken

At the time of the beneficiary’s death, one or more benefit checks had not been deposited

Accrued Benefits (38CFR 3.1000)

VA pays accrued benefits based on the claimant’s relationship to the deceased veteran. Payments are made to only one category and are awarded to the highest category available

Eligible dependent categories:

Surviving Spouse
Dependent Children*
Dependent Parents*

*Equal shares are distributed to eligible dependents in the category

Accrued Benefits (38CFR 3.1000)

Entitlement to accrued benefits is determined according to the line of succession established by law.

The fact that a preferred beneficiary fails to file or prosecute a claim does not permit payment of his/her share of accrued benefits to a person or persons having an equal or lower preference.

A waiver of right also does not permit such payment.

Accrued Benefits (38CFR 3.1000)

If there are no living dependents, VA will pay accrued benefits to reimburse the person(s) who paid for or who are responsible to pay for the veteran’s last illness and burial expenses.

If the expenses were paid from funds of the deceased beneficiary’s estate, the claim should be filed by the executor of the estate.

The amount of accrued benefits payable as reimbursement is limited to the actual amount of expenses paid, or the amount of accrued benefits available, whichever is less.

Accrued Benefits (38CFR 3.1000)

Time Limits:

Claims for accrued benefits must be filed within 1 year of the veteran’s death.

If an incomplete application is submitted, VA will notify the claimant of what information is missing and they will have 1 year from the date of the notification to submit the missing information

Intent to File will not extend 1 year filing period

Accrued Benefits (38CFR 3.1000)

Dependency and Indemnity Compensation (DIC) is a tax free monetary benefit paid to eligible survivors of military service members who died in the line of duty or eligible survivors of veterans whose death was related to a disease or injury that was caused by active military service.

A claim for DIC can be filed at any time after the veteran’s death.

Dependency and Indemnity Compensation (38 CFR 3.5)

Effective date rules:

If a surviving dependent files for DIC within one year of the veteran’s death, the effective date will be the day after the veteran’s death

If the claim is filed more than a year after the veteran’s death, the date of claim is the date the ITF or claim was filed

**If an ITF is filed within one year of the veteran’s death the effective date will be the day after the veteran’s death if the claim is submitted within 1 year of the ITF

Dependency and Indemnity Compensation (38 CFR 3.5)

The following dependents are eligible for DIC:

Surviving Spouse
Dependent Children
(If not living with surviving spouse)
Dependent Parents

Unlike accrued benefits, DIC can be paid to all eligible dependents regardless of who else may be entitled to the benefit.
Only one surviving spouse and only one set of parents are recognized as eligible. If there is a dispute, this is a contested claim.

Dependency and Indemnity Compensation (38 CFR 3.5)

DIC is payable to a surviving spouse when:

The surviving spouse was married to the veteran for 1 year prior to the veteran’s death; or

There was a child born of the marriage (even if born before the marriage took place)

and

The veteran’s death is deemed as service-connected

Dependency and Indemnity Compensation (38 CFR 3.22)

Types of DIC

Active Duty death
Service connected death
Presumptive condition cause of death
Contributory cause of death
USC 1318 (permanently & totally service connected disabled at death)
USC 1151 (death caused by VA treatment)

Dependency and Indemnity Compensation (38 CFR 3.5)

Active Duty Death
A death while on active duty is given priority processing. Most cases are submitted by a DOD casualty assistance officer.

Service Connected Death
A death caused by a rated service connected disability or by a condition that can be linked to service

Dependency and Indemnity Compensation (38 CFR 3.5)

Presumptive Condition Cause of Death
If a veteran passed away due to a condition that VA has labeled as a presumptive condition (AO exposure, CLCW, Radiation exposure, etc.) an eligible dependent may receive DIC benefits even if the veteran never filed for benefits.

Contributory Cause of Death
If a service connectable condition is listed as a contributory or secondary cause of death on the death certificate, dependents can still claim DIC.

Dependency and Indemnity Compensation (38 CFR 3.5)

DIC under 38 USC 1318
Entitlement to DIC in the same manner as if death were service connected, if a veteran was in receipt of or entitled to receive a 100% P&T compensation rating for:
10 or more years immediately preceding death, or
a continuous period of at least five years from the time of separation from service until death, or
1 or more years immediately preceding death if the Veteran was a former prisoner of war

**Includes those evaluated under the Individual
Unemployability benefit if P&T

Dependency and Indemnity Compensation (38 CFR 3.22)

DIC under 38 USC 1151
DIC may be awarded if the veteran’s death was caused by:

Hospital, medical, surgical treatment, or examination at a VA facility or VA contract facility
Participation in Vocational Rehabilitation Training
Participation in Compensated Work Therapy

If eligibility is established under Section 1151, the disability is considered service-connected for payment purposes ONLY.

Dependency and Indemnity Compensation (38 CFR 3.5)

A few key facts about DIC:

DIC will be discontinued if a surviving spouse remarries before age 55; if remarried after 55, DIC remains active

DIC is paid as a flat monthly rate regardless of the veteran’s former disability percentage

A higher payment called enhanced DIC is payable if the veteran was rated 100% P&T for 8 continuous years prior to death and the surviving spouse was married to the veteran for those same 8 years.
(sometimes called the 8x8 rule)

Dependency and Indemnity Compensation (38 CFR 3.5)

DIC Scenario 1:

Julie Parsons was a gulf war veteran who was service connected for narcolepsy, tinnitus, and right knee instability with a total rating of 60%. She was driving home from work and was unfortunately killed in a car accident. Her spouse is now in your office asking if he should file for DIC.

Is DIC a possibility?

Dependency and Indemnity Compensation (38 CFR 3.5)

DIC Scenario 2:

Walter Murphy was a Vietnam veteran who recently passed away due to a heart attack. He did have boots on the ground service in Vietnam but never filed a claim with VA for service connection. He was married for nearly 40 years to his wife Sally prior to his passing.

Is Sally eligible for DIC?

Dependency and Indemnity Compensation (38 CFR 3.5)

Pending claims for benefits used to end with the veteran’s death, but the substitution law allows the claim to continue under some circumstances.

The relative of the deceased veteran, who would have been a dependent beneficiary, may file a claim to substitute for the deceased Veteran and continue the process of completing the claim.
The substitution request must be filed within 1 year of the veteran’s death

Substitution (38CFR 3.1010)

Once the substitution application is filed, VA will process the claim in the normal fashion (minus any in-person examinations) and the substitute claimant will receive any benefits that the veteran would have been entitled to up to the date of death

Substitute claimants retain the same due process and appeal rights that would have been given to the veteran

For more information review M21-1 Part XI, Chapter 3

Substitution (38CFR 3.1010)

Survivor’s Pension is a “needs based” benefit available to un-remarried surviving spouses and unmarried dependent children of deceased wartime veterans.

If a dependent is already receiving DIC, they may not receive Survivor’s Pension at the same time. VA will only award the greater of the two benefits.

To be eligible for survivor’s pension, a surviving dependent must meet the following criteria:
Income Limits
Net Worth Limits
Service Requirements (of veteran)

Survivor’s Pension (38 CFR 3.3)

Income and Net Worth Limits

As of December 1, 2025 the maximum annual pension rate (MAPR) for a surviving spouse with no dependents or Special Monthly Pension (SMP) is $17,441

The net worth limit is $163,699
This means that in order for a surviving spouse to receive pension benefits, their income minus any deductible expenses must be below $17,441 and their net worth must be under $163,699

Survivor’s Pension (38 CFR 3.3)

Similarly to non-service connected pension, the surviving dependent’s income can be offset by unreimbursed medical expenses and other expenses such as the veteran’s final debts and school tuition.

Remember, medical expenses are not deducted on a dollar for dollar basis, instead VA subtracts 5% of the Maximum Annual Pension Rate (MAPR) from the expenses then uses the remainder as the offset. You should always use the pension rate chart to figure out the 5% exclusion rate.
VA will then subtract the expenses from the income to determine the adjusted income which is then subtracted from the MAPR to determine the payment amount.

Survivor’s Pension (38 CFR 3.3)

Final Expenses:

burial expenses (if not reimbursed)
medical expenses based on last illness
just debts (legal debts of the veteran payed by the claimant)

The term last illness means the period from the onset of the acute attack causing death to the date of death. Generally, expenses incurred more than one year prior to date of death should not be considered expenses of last illness.
If death resulted from a lingering illness, the period of last illness is considered to have begun at the time the person became so ill as to require the regular and daily attendance of another person.

Survivor’s Pension (38 CFR 3.3)

The same service requirements needed for non-service connected pension are used for survivor’s pension.

For service on or before September 7, 1980, the veteran must have served at least 90 days of active military service, with at least one day during a war time period (Wartimes are listed in 38 CFR 3.2)
Instead of 90 days active service, there is an additional active duty service requirement for enlistees after 9/7/80 or officers after 10/16/81 (38 CFR 3.12a):
24 months OR full period called or ordered to active duty
Except if released under early out/hardship/disability
Was discharged from service under other than dishonorable conditions.

Survivor’s Pension (38 CFR 3.3)

Dependents with special medical needs may qualify for special monthly benefits.

There are 2 types of special monthly benefits that can be added to either DIC or Survivors Pension:

Housebound

Aid & Attendance

Special Monthly Benefits

Housebound benefits require medical evidence showing that the surviving spouse is substantially confined to dwelling and immediate premises, institution, ward or clinical area.

Special Monthly BenefitsHousebound (38 CFR 3.351, 38 CFR 3.352)

Aid and attendance may be granted when the surviving spouse is a long-term patient in a nursing home, or when there is medical evidence showing claimant:

requires the assistance of another to protect them from the hazards of daily living or
bedridden, or
have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of visual field to 5 degrees or less

Special Monthly BenefitsA&A (38 CFR 3.351, 38 CFR 3.352)

Applying for Housebound or A&A

VA Form 21-2680, Examination for Housebound Status or Permanent Need for Aid and Attendance
OR
VA Form 21-0779, Request for Nursing Home Information in Connection with Claim for Aid and Attendance

VA does not provide examinations for surviving spouses to support a claim for HB or A&A.

Special Monthly Benefits

The VA Burial Allowance is a flat rate monetary benefit that is generally paid at the maximum amount authorized by law for an eligible veteran’s burial and funeral costs.

Eligible surviving spouses of record are paid automatically upon notification of the veteran’s death, without the need to submit a claim.

VA may grant additional benefits, including the plot or interment allowance and transportation allowance, if it receives a claim for these benefits.

Burial Allowance (38 CFR 3.1700 - 3.1713)

In order to be eligible for a burial allowance one of the following criteria must be met:
The veteran died as a result of a service-connected disability

The veteran was receiving VA pension or compensation at the time of death

The veteran was entitled to receive VA pension or compensation, but decided instead to receive full military retirement or disability pay

The veteran died while hospitalized by VA, or while receiving care under VA contract at a non-VA facility

Burial Allowance (38 CFR 3.1700 - 3.1713)

The veteran died while traveling under proper authorization and at VA expense to or from a specified place for the purpose of examination, treatment or care

The veteran had an original or reopened claim for VA compensation or pension pending at the time of death and would have been entitled to benefits from a date prior to the date of death

The veteran died on or after October 9, 1996, while a patient at a VA–approved state nursing home.

Burial Allowance (38 CFR 3.1700 - 3.1713)

If the veteran died on or after September 11, 2001, the maximum service-connected burial allowance is $2,000.

If the veteran died before September 11, 2001, the maximum service-connected burial allowance is $1,500.

If the veteran is buried in a VA national cemetery, VA may reimburse some or all of the cost of transporting the deceased veteran’s remains.

Burial Allowance: Service Connected Death

If a veteran who was in receipt of VA benefits passed away due to a non-service connected reason:

VA will pay up to $780 toward burial and funeral expenses for deaths on or after October 1, 2018 (if hospitalized by VA at time of death)
or
$300 toward burial and funeral expenses (if not hospitalized by VA at time of death)
and
$780 plot-interment allowance (if not buried in a national cemetery).

Burial Allowance: Non-Service Connected Death

The cost of transporting the veteran’s remains to the place of burial may be paid in addition to the burial allowance when:
The veteran died of a service-connected disability or had a compensable service-connected disability and burial is in a national cemetery; OR
The veteran died while in a hospital, domiciliary or nursing home to which he/she had been properly admitted under authority of VA; OR
The veteran died while traveling under prior authorization of VA for the purpose of examination or treatment; OR
The veteran's remains are unclaimed and burial is in a national cemetery.

Transportation Expenses Prior to January 2023

When the transportation benefit is payable under 38 U.S.C. 2303(a), VA will pay reasonable costs incurred to transport a Veteran’s remains from the place of death to the place of burial if the:
Veteran’s date of death is on or after January 5, 2023
Death occurs within a State
Place of burial is in any State, and
Veteran meets any of the following:
The veteran died while hospitalized by VA or other facility listed in 38 CFR 3.1706
The veteran’s remains are unclaimed, or
At the time of death, the veteran was in receipt of any of the following:
Disability compensation
Military retired pay in lieu of disability compensation
VA pension

Transportation Expenses after January 5, 2023

If the burial benefit has not been automatically paid to the surviving spouse, VA will pay the first living person to file a claim from any of the following categories:

Veteran’s surviving spouse
The survivor of a legal union between the deceased veteran and the survivor
The veteran’s children, regardless of age
The veteran’s parents
The executor of the estate of the deceased veteran

Who is Eligible to File?

Only the person who paid for the veteran’s burial and/or funeral may apply for a burial allowance

The claimant must not have been reimbursed by another government agency or some other source, such as the deceased veteran's employer

If the veteran pre-paid for his/her final expenses the VA will not reimburse the cost

Who is Eligible to File?

A claim for non-service-connected burial allowance must be filed with VA within 2 years after the date of the veteran's permanent burial or cremation.

If a veteran's discharge was corrected after death to "Under Conditions Other Than Dishonorable," the claim must be filed within 2 years after the date of correction.

There is no time limit for the service connected burial allowance, plot or interment allowance, VA hospitalization death burial allowance, or reimbursement of transportation expenses.

Time Limits for Burial Benefits

The VA furnishes upon request, at no charge to the applicant, a headstone or marker for the unmarked grave of any deceased veteran discharged from the US Armed Forces under conditions other than dishonorable.

Minimum active duty requirement for enlistees after 9/7/80 or officers after 10/16/81 in 38 CFR 3.12a - minimum of 24 months or be completed under special circumstances, e.g., death on active duty.
Persons with 20-years service in the National Guard or Reserves who are entitled to retired pay subsequent to October 27, 1992
A copy of the Reserve Retirement Eligibility Benefits Letter must accompany the application.
Active duty service while in the National Guard or Reserves also establishes eligibility.

Headstones and Markers38 CFR 38.630 - 38.633

To submit a claim for a VA furnished headstone or marker, a completed VA Form 40-1330 must be submitted along with the veteran’s discharge document to the VA National Cemetery Administration Memorial Products Service. The address and fax number is located in the instructions on the form.

Headstones and Markers

Veterans and dependents can apply for burial in a National Cemetery at any time

The following people are eligible to apply:
A service member on active duty, or
A veteran who didn’t receive a dishonorable discharge when they separated from the military, or
The spouse or dependent child of a service member or veteran, even if the service member or veteran has already passed away
The adult dependent child of a service member or veteran

Pre-Need Eligibility Determinations for Burial

Please note:

The application is only for national cemeteries

This application doesn’t apply to Arlington National Cemetery or the United States Soldiers and Airmen’s Home National Cemetery

Getting a pre-need determination of eligibility doesn’t guarantee you’ll be buried in a specific VA national cemetery

Pre-Need Eligibility Determinations for Burial

To apply, veterans or dependents can visit:

https://www.cem.va.gov/pre-need/

Or they can submit a VA Form 40-10007 “Application for Pre-need Determination of Eligibility for Burial in a VA National Cemetery” to the National Cemetery Scheduling Office

Applicants will need the veteran’s SSN, date and place of birth, and discharge documents

Pre-Need Eligibility Determinations for Burial

Only one burial flag may be provided per veteran. Most veterans are eligible for a burial flag. Reservists entitled to retired pay are also eligible to receive a burial flag.

When burial is in a national, state or post cemetery a burial flag will be provided.

When burial is in a private cemetery, burial flags may be obtained from VA regional offices, national cemeteries and most U.S. post offices by completing VA Form 27-2008, “Application for United States Flag for Burial Purposes” and submitting it with a copy of the veteran’s discharge papers at any of these locations.

Burial Flags

A Presidential Memorial Certificate (PMC) is an engraved paper certificate, signed by the current President, to honor the memory of deceased Veterans who are eligible for burial in a national cemetery.

Eligible recipients include the deceased veteran’s next of kin and loved ones.

Eligible recipients may apply for a PMC by submitting a VA Form 40-0247 “Presidential Memorial Certificate Request Form”

Presidential Memorial Certificates

Accrued Benefits, DIC, and Survivors Pension are all filed using the VA Form 21P-534EZ: “Application for DIC, Death Pension, and/or Accrued Benefits”

The 21P-0847: “Request for Substitution of Claimant upon Death of Claimant” is used for requests for substitution

What are some examples of evidence that you would recommend be included with the submission?

How to File for Survivor Benefits

When filing for survivor benefits, pay close attention to the instructions on the form. If the form is not properly filled out, VA will not process it and the claimant could miss out on benefits

Some key points to pay attention to on the 21P-534EZ:
Block 17– Ensure that ALL applicable boxes are checked; VA will only process applications for the selected benefits.
Nowhere on the form does it ask why the veteran’s death should be service connected. If it is not a clear cut, obvious connection to a disability that is already service connected submit a 21-4138 explaining why the death should be service connected.

How to File for Survivor Benefits

Individual Unemployability(TDIU)

Objectives

What is TDIU
TDIU Requirements
Ways to compute the Single 60% or 40% disability
Unemployable Vs. Unemployed
What is “Substantial Gainful Employment”
Scenarios

Compensation will be paid as if the veteran was rated 100% disabled if it is shown that service-connected disabilities prevent the veteran from securing or maintaining substantially gainful employment.

38 CFR 4.16

TDIU Basics

A single disability evaluated at 60% or more

OR

Two or more disabilities that equal a combined 70% and at least one 40% rating

Degree of Disability Requirements

That the veteran is unable to work solely due to service-connected disabilities.

It is not sufficient to state that the veteran is unemployable due to nonservice-connected disabilities.

What the VA must find

Are Unemployed and Unemployable the same thing?

NO!!

Being unemployable and being unemployed are not synonymous for the purpose of determining entitlement to an IU rating under 38 CFR 4.1

A veteran may be unemployed and even have a history of unemployment from several jobs, but not be incapable of substantially gainful employment (unemployable).

Unemployment can be due to economic factors, work performance issues, or other reasons and not necessarily related to being unable to secure or follow substantially gainful employment due to an SC disability

A veteran might also be unemployed from one job due to an SC disability, but still be capable of securing or following another substantially gainful occupation.

Unemployable Vs. Unemployed

The inability to secure or follow a substantially gainful occupation, as defined in 38 CFR 4.16(b), hinges on two components:

Economic, as discussed in M21-1 VIII, Subpart iv, 3.A.2,

Non-Economic, as discussed in M21-1, Part VIII, Subpart iv, 3.A.3.

Components of inability to secure or follow a substantially gainful occupation

The Economic Component of an IU determination is based on a decision about the wages an individual is capable of earning. 

The evidence must be reviewed to determine the nature of any employment or ability to be employed. VA must take into account the Veteran’s earning capacity in employment or potential employment scenarios including whether such employment would be:

Substantially Gainful, as defined in M21-1, Part VIII, Subpart iv, 3.A.2.b,
OR
Marginal, as defined in M21-1, Part VIII, Subpart iv, 3.A.2.c.

Components of inability to secure or follow a substantially gainful occupation

The Non-Economic Component of an IU determination is based on factors contributing to a Veteran’s abilities and inabilities.
In determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to whether the Veteran has the ability to perform the type of activities required by the occupation at issue.
Factors to consider include:

vocational and educational history, as discussed in M21-1, Part VIII, Subpart iv, 3.A.3.b,

limitation of ability, as discussed in M21-1, Part VIII, Subpart iv, 3.A.3.c.

Components of inability to secure or follow a substantially gainful occupation

Does the veteran have to meet the schedular requirement under 38 CFR 4.16 to be eligible for individual unemployability?If a veteran does not meet the strict percentage standards in paragraph (a), but is still completely unable to maintain a gainful occupation due to service-connected conditions, the rating board submits the file to the Director, Compensation Service for extra-schedular review.

Extra-Schedular Consideration (§ 4.16(b))

When the issue is expressly raised by the veteran

Or
When there is evidence the veteran may be unable to secure or follow a substantially gainful occupation and IU cannot be granted because the minimum requirements are not met because there is evidence of exceptional or unusual circumstances indicating that the rating schedule may be inadequate

When should extra-schedular evaluation be considered?

Cantrell v. Shulkin, docket no. 15-3439 (Apr. 18, 2017)

The Court of Veterans Appeals ruled that “the Board’s approach in this case improperly focused on individual symptoms, rather than the collective impact of those symptoms on the veteran’s disability picture.”

In other words, TDIU requires a comprehensive evaluationof all the evidence, including a vocational expert’s report.

Employment in a Protected Environment

Cantrell v. Shulkin, docket no. 15-3439 (Apr. 18, 2017)

VA has not defined “employment in a protected environment” for purposes of entitlement to TDIU, but factors to consider include:

The magnitude of a veteran’s job responsibilities
The degree of accommodation necessary for successful, full-time work

VA adjudicators must consider the combined impact of a veteran’s multiple service-connected disabilities in determining whether referral for extra schedular consideration is warranted.

Employment in a Protected Environment

Filing a claim for TDIU

VA Form 21-8940

IU cannot be granted without VA Form 21-8940

Supporting Evidence, including statements from doctor, VR&E records, employment records, SSA decision, if applicable

What is required?

The date the veteran became unemployable

An employment history for the five-year period preceding the date on which the veteran claims to have become too disabled to work

Name and address of places worked

Information needed on 21-8940

The VA must obtain and consider complete copies of the SSA decision if the veteran has been examined or awarded disability benefits by SSA

The decision by SSA is not binding on the VA but may indicate the level of impairment of the veteran’s SC disability

The VA should pay close attention to what disability resulted in a grant of SSA benefits, and whether that disability is one for which service connection has been granted.

What is the VA required to do?

When a veteran’s claims folder indicates that he/she was seen by the Vocational Rehabilitation and Employment Service (VR&E), the VA must obtain and evaluate those records

Those records may document the veteran’s participation in a training program, or show that training was not feasible or was unsuccessful

The VA will send form 21-4192 unless it has been more than 5 years since the veteran last worked

Evidence Development

Oftentimes the VA Rater will not look at the big picture:

In this case, neither phrase on their own would be enough to grant TDIU. However, when put together, TDIU should be granted.

Common Errors in TDIU denials

“Though the veteran cannot work in a physical environment, Veteran’s knee conditions do not prevent sedentary employment”

“Veteran’s back condition limits the veteran’s ability to sit for more than 15 minutes at a time but does not prevent employment in a physical environment”

VA is supposed to consider the veteran’s education level, any specialized training, geographic location, and previous work experience when determining employability.

This rule is often overlooked by VA Raters.

38 C.F.R. § 3.341
38 C.F.R. § 4.16
M21-1VIII.iv.3.B.1.a.

Common Errors in TDIU denials

Does a disabled veteran have to be unemployed to be entitled to unemployability?

NO!!

If the employment is not Substantially Gainful, TDIU may be granted

Substantially gainful employment is defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.

Marginal Employment shall not be considered as substantially gainful employment

Substantially Gainful Employment

Withers v. Wilkie, Aug 20, 2018, 30 Vet.App. 139 (2018)

The court ruled that the meaning of sedentary work must be determined from the particulars of the medical opinion that employs the term. The Board must explain this meaning as well as how the concept of sedentary work factors into the veteran’s overall disability picture, vocational history, and ability to secure or follow substantially gainful occupation.

Substantially Gainful Employment

Marginal employment generally shall be deemed to exist when a veteran's earned annual income is less than the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.

Marginal Employment

Usually a family business

Wages and profits will be considered

Determinations are based on the frequency and types of services or duties performed

Tightly held corporation(Sheltered Workshop)

Self-employed veterans need to provide the following evidence with their claim:

Type of work performed
Veteran’s net and gross income for the past year
Hours worked per week over the past year
Amount of time lost due to s/c disabilities over the past year
Work limitations due to s/c disabilities

The VA will make a determination based on the relationship between the veteran’s earnings and the work performed

Evidence needed for self-employed veterans

Does the work performed by the veteran constitute substantially gainful employment?

If not, the veteran may be eligible for TDIU

The Bottom Line

If the most recent examination shows that the veteran’s disabilities will permanently affect employability, a permanent and total (P&T) rating should be awarded.

A P&T rating for TDIU is treated just like a 100% P&T rating. (Chapter 35 benefits)

If the examination does not show that the veteran’s disabilities will permanently affect employability, a future examination will likely be required

Temporary vs Permanent TDIU

If the veteran’s disabilities improve or the veteran returns to work, TDIU benefits will be terminated, and the veteran will receive their actual percentage of disability.

Ensure the VA is notified immediately upon the veteran’s return to work as a significant overpayment could result if the VA is not notified

VA will continue TDIU benefits during a trial period of 1 year to determine whether the veteran can maintain full-time work or if it should be considered only marginal employment

If the veteran cannot sustain the employment, then VA will continue TDIU, if after the 1-year period, the veteran is still working, then VA will reduce their benefit

Reductions of TDIU

Questions?

Secondary Conditions and Service Connection

You will leave with a better understanding of:

Conditions secondary to SC conditions
What is required for a VA examination for them
How presumption of soundness is used
Special circumstances when secondary service connection is assumed by VA

Course Objectives

38 U.S.C. 1110 Basic Entitlement
38 U.S.C. 1131 Basic Entitlement
38 CFR 3.310 Disabilities proximately due to, or aggravated by, service-connected disease or injury
M21-1 V.ii.2.D.1. Secondary SC, Including Aggravation
M21-1 V.ii.2.A.2.a. Presumption of Soundness
M21-1 V.iii.11.2. Complications of Diabetes Mellitus
M21-1 V.iii.5.1.f Secondary SC due to amputation
M21-1 V.iii.12.B.3.a. Secondary SC due to TBI

References

Veterans can file a secondary claim to get more disability benefits for a new disability that’s linked to a service-connected (SC) disability they already have.
Examples of when to file a secondary claim:
The veteran develops arthritis that’s caused by a service-connected knee injury
The veteran develops heart disease that’s caused by service-connected high blood pressure

Secondary Service Connection Basics

M21-1 V.ii.2.D.1. Disability which is proximately due to or the result of a service-connected (SC) disease or injury shall be service connected
SC on a secondary basis requires showing causation

Three elements must be satisfied prior to VA requesting an examination on a secondary claim:
Lay or medical evidence of a current disability or symptoms,
evidence of an SC primary disability, and
Indication that the claimed secondary condition may be associated with the primary disability.

Secondary Service Connection Basics

Causation must be more than a general statement from veteran.
Example: Veteran claims stomach problems secondary to SC heart condition. A statement contends that since starting prescribed medications two years ago for the heart condition, the Veteran has experienced stomach problems to include constipation, pain, and indigestion.

Analysis: While the Veteran’s lay statement is not sufficient to ultimately prove the claim, it is sufficient in this instance to warrant an examination. The Veteran is competent to describe symptoms and the possible association of symptoms to the SC condition. Furthermore, the statement appears credible when considering the evidence at hand.

Secondary Service Connection Basics

A veteran can make a claim for service connection on a secondary basis the first time they make a claim (i.e. even if they are not already SC), as long as the claim also includes the service connected condition. (Delisio v Shinseki)

Example: The veteran’s very first claim is for direct service connection of a lumbar spine disability (due to Army injury) and a secondary claim for a sciatic nerve disability.

Secondary Service Connection Basics

When considering claims based on aggravation of a preservice disability, the presumption of soundness applies when deciding whether a claimed condition clearly and unmistakably existed prior to service.

M21-1 V.ii.2.A.2.a. Definition of Presumption of Soundness: A veteran will be considered to have been in sound condition (the claimed disability did not exist) when examined, accepted, and enrolled for service.

Presumption of Soundness

The presumption of soundness applies only when the Veteran underwent a physical examination at the time of entry into service

Only the conditions that are recorded in the enlistment examination report are to be considered as noted
A history of pre-service conditions recorded at the time of the entrance examination is not a notation of the condition
It is just one factor that must be considered on the question of presumption of soundness

Presumption of Soundness

Example: Veteran is claiming chronic bronchitis secondary to SC GERD. Their STRs include a handwritten note that they had severe bronchitis at the age of 14. The enlistment examiner notes “NCD” (not considered disqualifying) beside the veteran’s note. There is no evidence of an examination for a bronchial condition, and there is no other mention of it at the time of enlistment.

Analysis: Even though the veteran said they had a bronchial condition, they were presumed sound.

Presumption of Soundness

Example: Veteran claims SC for a right knee condition secondary to SC ankle condition. Enlistment exam revealed history of right knee meniscal tear and surgical repair but indicated the condition was asymptomatic at the time of enlistment.

Analysis: Although the Veteran claimed SC on a secondary basis, the evidence shows that a knee condition clearly and unmistakably existed prior to service, although it was asymptomatic on enlistment. The possibility of aggravation will be considered.

Presumption of Soundness

Complications of diabetes mellitus type II

M21-1 V.iii.11.2.c. Effective Date
A claim asserting new complications of SC diabetes is a claim for increase rather than a claim for secondary SC.
This can mean an earlier effective date
M21-1 V.iii.11.2.f. Hypertension
VA is required to raise and decide whether hypertension is a complication of diabetes mellitus in the absence of an explicit claim when the evidence supports a grant.

Special Secondary Circumstances

M21-1 V.iii.11.2.d. Cardiovascular Complications of Diabetes Mellitus in addition to hypertension, include, but are not limited to:

atherosclerosis/ arteriosclerotic heart disease/ coronary artery disease
peripheral arterial disease
peripheral vascular disease
cardiomyopathy
congestive heart failure, and
stroke (macrovascular complication)

Special Secondary Circumstances

Example: Veteran has service-connected diabetes mellitus type II, and makes a new claim for peripheral vascular disease.

Analysis: VA can grant peripheral vascular disease on a secondary basis without needing a medical opinion.

Special Secondary Circumstances

M21-1 V.iii.5.1.f. Service connection on a secondary basis must be granted for the following conditions that develop subsequent to the SC amputation of one lower extremity at or above the knee, or SC amputations of both lower extremities at or above the ankles:
Ischemic heart disease, or
Other cardiovascular disease, including hypertension

Special Secondary Circumstances

M21-1 V.iii.12.B.3.a. For a veteran who has SC traumatic brain injury (TBI), the following are secondary:
Parkinsonism, including Parkinson's disease
Unprovoked seizures
Dementia if manifest within 15 years
Depression if manifest within 3 years
Diseases of hormone deficiency if manifest within one year

Special Secondary Circumstances

Celia Clark served honorably in the Navy until 2021. At the time of discharge, she had “pre-diabetes,” which is not subject to service connection. In August of 2025, she began feeling numbness in her toes for the first time. After seeing her doctor, she received a diagnosis of diabetes mellitus type II.

She wants to make a claim for SC for DMII on a direct basis. Is that a good choice? Can you suggest any other claim for her to make?

Practice Exercises

Celia Clark heard about the Adams decision, and wants to make a claim for obesity secondary to her SC diabetes as well. Which of the following does she need to show in her claim, for VA to consider it to be secondary:

A diagnosis of a recognized obesity disability.
Evidence that she has obesity.
Medical evidence of functional impairment impacting employability/employment
Medical baseline to show that but-for diabetes, obesity would not have been as severe.

Practice Exercises

Ruma Nandini has SC hypertension. In her private medical records, there are treatment notes from 8 years ago of ankle swelling and fatigue that her doctor attributed to heart problems, and then symptoms improved. Recently, her doctor said the hypertension seems to be making her heart act up again, and has scheduled an echocardiogram to see if a diagnosis can be made for a heart disability.

What does she need to make a secondary claim on an aggravation basis? (clues on previous slide)

Practice Exercises

QUESTIONS?

The Appeals Process & Hearings

If a VA benefits claim is denied, the claimant has the right to appeal the decision

Currently, there are 3 decision review options to choose from which will be discussed later in this class

Prior to the current appeals process (AMA), the Legacy Appeals process was in effect which offered a more limited approach to appeals

WHAT TO DO IF A BENEFITS CLAIM IS DENIED

Character of Discharge/Status as a veteran
Service connection
Rating percentage
Effective date
Dependency & Indemnity Compensation
Waiver of overpayment
Entitlement to special monthly compensation/pension

EXAMPLES OF APPEALABLE DECISIONS

Proposed actions – the most common are reductions of ratings and ratings of incompetency

Proposed actions are not a “final” decision - All final decisions should include appeal rights in notification letter

ACTIONS THAT CAN NOT BE APPEALED

Legacy appeals pertain to claims that were decided prior to February 19, 2019, when the Appeals Modernization Act (AMA) became effective

What are Legacy Appeals?

APPEALS MODERNIZATION

GOAL: Ensure veterans receive fair appeals decisions in a timely, transparent, consistent and simple manner.

Improves rating decision notice letters to better inform veterans of reasons for decision, evidence considered, and appeal rights

Formalizes two options to offer veterans resolution to claim disputes at the lowest possible level

Allows appeal directly to Board of Veterans Appeals, replacing duplicative and confusing processes like NOD elections, Form 9, and 646

Protects veterans’ effective dates so long as claimants pursue adjudication in the timeframes prescribed by VA

Veterans Appeals Improvement and Modernization Act of 2017 (AMA)

AMA applies to decisions dated on or after February 19, 2019 and to those who opted in to AMA (including under RAMP)

Can use three new options: supplemental claim, higher level review, appeal to BVA

Non-RAMP decisions before February 19, 2019 fall under Legacy Process

Can opt into AMA once a SOC is received

Does AMA or Legacy apply?

AMA Decision Review Options

Claim

Rating Decision issued on or after 2/19/19 or through RAMP

Supplemental Claim
20-0995

Higher Level Review
20-0996

Appeal to BVA
10182

1 year time limit from date of notice of decision for all filing options to protect effective date. Supplemental can be filed anytime but will lose effective date if filed after 1 year.

Under AMA, the evidentiary record that VA is obligated to consider “closes” at the time of the rating decision

Evidence submitted after the rating decision will not be automatically considered: must select decision review option that allows submission of evidence

Evidence submitted before the rating decision but not considered by VA: select decision review option based on the same evidence to have it considered

Creates quality feedback mechanism: if claim granted based on same evidence, there was an error

“Closing the record”

VA’s duty to assist is only triggered by evidence submitted before the initial claim OR before each supplemental claim

If VA did not take adequate steps to assist veteran, can raise through higher level review or BVA

VA will return to supplemental claim lane or BVA will remand for additional development if VA did not comply with duty to assist 38 CFR 3.159(c)

If additional evidence is submitted at BVA (through evidence only or hearing dockets), it will not trigger the duty to assist, but VA can still grant or deny based on the additional evidence.

Closing the record and VA’s Duty to Assist

38 CFR 3.2500
Supplemental Claims
Higher Level Review
Board of Veterans Appeals

Claimants can pursue only one decision review option at a time for the same claimed issue

There are no limits to the number of times a veteran may pursue a claimed issue

AMA: Decision Review Options

AMA: Decision Hierarchy

New: AMA allows submission of new and relevant evidence to RO after CAVC, BVA, or DROC denial

Just as an appeal is moved up one step at a time, it is sent back one step at a time to fix errors

Requesting a new rating decision from VA based on the submission of “New and Relevant” evidence

If filed within one year of VA issuing a rating decision, Board of Veterans Appeals Decision, or CAVC Decision, protects effective date of claim

Claimants can perpetually file supplemental claims on the same issue, provided they satisfy the “New and Relevant” criteria

Submission of new and relevant evidence triggers duty to assist

AMA: Supplemental Claims38 CFR 3.2501

Supplemental Claims: When to use

Denial from CAVC: supplemental claim is only option to preserve effective date

Denial from BVA: you don’t think an error was made, and you have new evidence

Rating decision denial, and you know what evidence you need to submit

Rating decision denial, missed C&P exam

What is “New and Relevant?” - 3.2501(a)(1)

“New” means it is not already in the veteran’s claim file

“Relevant” means it is pertinent to the benefit sought and reason benefit was previously denied (even if not favorable to claimant: lower threshold than “material”)

Example:

Red Foreman is claiming his diagnosed ischemic heart disease is the result of exposure to herbicides while serving in Korea in 1970. His claim for service connection was denied because his military service records did not indicate that he served in a unit in or near the Korean demilitarized zone.

Supplemental Claims: New and Relevant Evidence

Which of these are “New and Relevant?” (assume not in file)

Buddy statements from those who supervised Mr. Foreman while serving in Korea and witnessed him on the DMZ.

Doctor’s notes confirming that Mr. Foreman has a diagnosis for ischemic heart disease

Spouse statement documenting the effects of ischemic heart disease on Mr. Foreman’s daily life

Photos of Mr. Foreman in Korea alongside defoliated areas or signs/landmarks indicating he was physically present at the DMZ

Supplemental Claims: New and Relevant Evidence

Supplemental Claim Form VA Form 20-0995

Block 13A: List specific issues – be sure to list whether service connection, increased rating, etc.

Block 13B: What if you don’t have date of prior decision notice?

Notice Opt-In from SOC/SSOC

Block 14: Submit or Identify new and relevant evidence
Non-federal records will require VAF 21-4142
Federal records: Block 15

Block 16: Signature
Have claimant sign if possible – especially if opting in to AMA
We can sign if POA already of record

Currently VA is requiring a supplemental claim form any time you re-apply for a benefit that was previously denied

Should also include specific claim form if the evidence is substantially different (example: pension may require 21p-527EZ, 21p-8416)

E-Benefits still allows veterans to file reopened issues on 21-526EZ, this will generate a request for application letter. There is now a warning about this on eBenefits

Supplemental Claim Form VA Form 20-0995

Supplemental Claim Decision

Request for higher level review can identify duty to assist errors in first or subsequent supplemental claim decision

VA must review entire record

If claim denied due to no new and relevant evidence being submitted, can challenge (higher level review or NOD) determination on whether evidence was new and relevant

Must have submitted or identified some evidence

Post-Supplemental Claim Decision Review Options

Supplemental Claim 20-0995

Rating decision denial issued on or after 2/19/19 or through RAMP

Supplemental Claim
20-0995

Higher Level Review
20-0996

Appeal to BVA
10182

Veteran requests “de novo” review of rating decision by a higher authority

Review is solely on evidence of record – cannot submit additional evidence

Decisions can be overturned based on difference of opinion or CUE

Can only be requested within one year of a notice of a rating decision

An informal conference with the reviewer can be requested

Higher Level Review38 CFR 3.2601

Higher Level Review When to use

VA made a clear mistake of applying the law and you can easily find it in the CFR
Decision will be quicker than appeal to BVA

VA made a duty to assist error (did not request an exam or records)
BVA can’t order development, so this will get additional development done quicker

VA has established three “Decision Review Operation Centers” (DROCs) to address decision review requests for higher level review and BVA remands

Located in Seattle, St. Petersburg, and Washington, D.C. (Appeals Management Office)

Higher Level Review Jurisdiction

Example:

Johnny Utah claimed service connection for fibromyalgia related to service in Southwest Asia in 2005. He was diagnosed with fibromyalgia in 2011, three years after he separated from the military. Johnny completed an exam for fibromyalgia that sufficiently demonstrates his current level of impairment and the DBQ is in his record, along with his service records and his 2011 diagnosis.

However, VA denied service connection based on the lack of a diagnosis of fibromyalgia while in service.

What are some reasons Johnny might consider Higher Level Review?

Higher Level Review Example

Why could Johnny request HLR?

Fibromyalgia is a presumptive condition for Southwest Asia service

Johnny’s military record indicates that he has qualifying Southwest Asia service in Iraq in 2011

Johnny has a current diagnosis of fibromyalgia present for more than six months

Johnny’s exam indicates that the condition is compensable at a rate greater than 10%

VA misinterpreted the presumption, which dictates that the condition must have emerged while serving in Southwest Asia OR by December 21, 2021.

Higher Level Review Example

Higher Level Review Form VA Form 20-0996

Block 13: Doesn’t really matter – all higher-level reviews being sent to three Decision Review Operation Centers (DROCs) in Seattle, St. Petersburg, and Washington, D.C.

Block 14: Informal conference – check with your DSO on who will be representing at conference – It will be a teleconference

Block 15: Must list specific issues – be sure to list whether service connection, increased rating, etc.

Notice Opt-IN from SOC/SSOC

Block 16: Signature
Have claimant sign if possible – especially if opting in to AMA
We can sign if POA already of record

38 CFR 3.2601(g), 3.2502

Decision can deny or confirm and continue benefits
Decision can grant benefits
Decision can propose to reduce benefits
Decision can send claim to supplemental claim lane for additional development

Higher Level Review Decision

When higher level review or BVA review is requested and the claim cannot be granted on the evidence of record BUT VA made a duty to assist error
HLR decision is made and form HLR Return is completed (20-0999)
EP 040 HLR DTA Error is created to address the error
Because development was triggered, claimant can now submit new evidence
New rating decision made; veteran has all three options for decision review if disagree

Higher Level Review Returnto Supplemental Claim: If More Development is Needed

Post- Higher Level Review Decision Review Options

Higher Level Review 20-0996

Rating Decision Denial issued on or after 2/19/19 or through RAMP

Supplemental Claim
VA Form 20-0995

Higher Level Review
20-0996

Appeal to BVA
VA Form10182

Under AMA, the NOD (VA Form 10182) is filed directly with the BVA

There are three separate BVA dockets:

Direct Review docket with no introduction of new evidence

Evidence Only docket with limited window introduction of new evidence (90 days after NOD)

Hearing docket with limited window for introduction of new evidence (at hearing or 90 days after hearing)

Remands only issued for pre-existing duty to assist errors or to obtain an advisory medical opinion

Appeal to Board of Veterans Appeals38 CFR 20.202

Appeal to Board of Veterans AppealsWhen to use

VA did not weigh the evidence as you feel they should have
BVA must discuss lay testimony in decisions

AOJ has mischaracterized the issue
Reductions treated as claims for increase
Earlier effective date of rating treated as earlier effective date of service connection

You don’t want VA to engage in additional development
You have a well-reasoned nexus opinion and don’t want VA to counter it

Under AMA, VA no longer requires VSOs to complete the VA Form 646 or Form 9.

Instead, all arguments and contentions will be made with the new Notice of Disagreement (VA Form 10182) for claims going directly to the BVA.

Block 11: Select Docket
Block 12: List specific issues
Check box if providing argument (always)
Notice Opt-In from SOC/SSOC

Board Appeal VA Form 10182

Appeals submitted directly to BVA (especially on the direct docket) must be researched fully

10182 should have at least a 21-4138 attached with a well thought out argument

Ensure only one docket option is selected – if you want to select different dockets for different issues, complete separate 10182s.

Tips on VA Form 10182

If BVA asks for clarification of the issues or the docket select on a NOD, claimant has 60 days or remainder of one year appeal period to respond (whichever is longer)

This is crucial, because if the claimant does not respond, VA will not establish or will close out the appeal

38 CFR 20.202

Clarification of VA Form 10182

Once sent to the BVA, the case will receive a docket date which is based on the date the claim is certified to the BVA

With limited exceptions, the BVA works cases in docket date order

BVA publishing “appeals metrics” on their public website: https://www.bva.va.gov/Appeals_Metrics.asp

AMA allows flexibility in how cases are managed between dockets – not a set ratio of legacy/direct/evidence/hearing

Docket Dates

Advancement on the Docket can be done after the case is “certified” to BVA – call VFW office at Board of Veterans Appeals and they will file motion if veteran is seriously ill, has severe financial hardship, or is of advanced age (75+) and at the discretion of the Chairman (such as areas affected by severe natural disasters)

38 CFR 20.902 for Legacy (20.800 for AMA)

Questions about status of a BVA appeal or new evidence for appeal, contact VFW’s BVA Office (202) 632-4605

EXPEDITING APPEALS AT THE BOARD OF VETERANS APPEALS

You can switch dockets at the BVA by filing a new VA 10182

Time limit: within original one year from the rating decision, or 60 days after first 10182 filed, whichever is later (38 CFR 20.202)

If switching to evidence only docket, 90 days to submit evidence starts from the date the request to switch dockets is granted.

Once evidence is submitted or a hearing is held, you cannot switch to the direct review docket

Why? You have changed the evidentiary record and VA can’t “un-see” the evidence or testimony
38 CFR 20.301, 20.302, 20.303

Switching Dockets

Post-BVA Appeal Decision Review Options

Appeal to BVA 10182

Supplemental Claim
20-0995
1 year

Appeal to CAVC
(NOA)
120 days

Appeal to BVA
10182

BVA denial

BVA remand

Rating Decision

Higher Level Review
20-0996

Supplemental Claim
20-0995

Caseflow

Caseflow: VA’s IT program used to establish and track AMA decision review requests

Caseflow Hearings shows upcoming BVA hearings
Caseflow Queue allows search for claimants with appeals docketed at BVA
Functionality still being created/updated

If you or the client have chosen one decision review option and decide that another option is more favorable, AMA does allow limited circumstances to withdraw an option and change lanes

AOJ: 38 CFR 3.2500(d)
BVA: 38 CFR 20.205

You only have the original appeal window because you are withdrawing a review option and choosing a new one

Example: Rating decision 3/2/20, select higher level review on 6/14/20. Still only have until 3/1/2021 to select supplemental claim or appeal to the BVA.

Otherwise, you can wait until decision is rendered and then select another option if not granted

Changing Decision Review Options

Just as in the legacy system, if a benefit is granted but has “downstream issues” such as ancillary benefits, effective date or evaluation, you will need to start all over again if you disagree with the downstream issues

38 CFR 3.151(c)(2) states that all downstream issues must be appealed in same lane

Example: service connection granted, but you disagree with effective date and evaluation
You have all 3 options available for decision review but must choose same option for both effective date and evaluation

Issues within a claim or “downstream issues” 38 CFR 3.151

Opting into AMA today

Appellant in legacy appeal process can “opt-in” to AMA after receiving a Statement of the Case or Supplemental Statement of the Case

Can select any lane, but only has time limit noted in SOC/SSOC (30 or 60 days)
Once a veteran opts-in to AMA, that decision is final and the veteran cannot revert back to the legacy appeals program
Can opt to file Form 9 instead and remain in legacy (or if Form 9 already filed, wait)

Final Thoughts on AMA

AMA creates more choice and more decisions to make about which option is best for your client

AMA options are not one size fits all, they have pluses and minuses depending on the evidence and how quickly a decision is needed

Because the effective date is protected if the claim is continuously pursued within 1 year after each decision, if the outcome was not desirable, you can choose a different option

HEARINGS

93

A hearing is a meeting between a claimant and the VA

These meetings often take place during the appeal process, but can be held anytime during the claim process

Although many veterans believe that this is their “Day in Court”, hearings are non-adversarial in nature and are intended to help VA reach an accurate decision

What is a Hearing?

Types of Hearings

A claimant may request a hearing at any time during the claims process, however the type of hearing is determined by the stage of the process that the claim is in.

VSR/RVSR Hearing
Prior to an initial decision or prior to an appeal (ex: admin decision or proposed reduction)
DRO Hearing
During the Legacy Appeal process only before the Form 9 is filed
Informal Conference
Used during AMA HLR to discuss issues with the claim with no new evidence
Board Hearing
After the substantive appeal (Form 9/VA 10182) is filed to the Board of Veterans Appeals

If the claimant selected a VSR or DRO hearing, the hearing will usually be in person at the VA Regional Office (VARO). Videoconferences may be possible depending on your VARO.

For a Board of Veterans Appeals (BVA) hearing, there are four locations of hearings:
Central Office (In person at the BVA in Washington, DC)
Videoconference (Judge in DC, veteran at local RO or VA facility)
Travel Board (Judges visit Regional Offices on a rotating basis – this is the type with the longest wait and can no longer be requested for new appeals)
Virtual Hearing Online using VA’s teleconferencing software

Locations of Hearings

Preparing for a Hearing: Reviewing the File

No matter which type of hearing the veteran chooses, the preparation is essentially the same

Prior to your hearing with the veteran, you must review the claims file to determine your plan for the hearing

This should be done several days in advance if possible

If you need additional evidence or information for the claim to be successful, call the veteran and ask

Preparing for a Hearing: Reviewing the File

When reviewing the file, you should pay close attention to the following things:

What is the reason for the hearing?
What are the issues that will be discussed?
What type(s) of evidence will be needed to help the claim be granted
What do you want VA to do? (new exam, obtain new records, etc.)

It may help to create a short summary or timeline of the claim for your notes

Preparing for a Hearing: Reconciling Errors

If during your review of the file, you notice something that is easily reconciled, do your best to fix it prior to the hearing.
Common examples include:

Missed exams
Outdated or inadequate exams
Missing diagnosis
Missing nexus

What are some other common things you may notice that are easily fixed?

Preparing for a Hearing: Cancelling Hearings

If you are able to get the issue on appeal resolved without having the hearing, by all means do so

Cancelling the hearing will often allow the claim to resolved more quickly than if the hearing were to take place

When cancelling a hearing, be sure to get the request in writing from the veteran because cancelling a hearing without written consent is considered withholding evidence!

Preparing for a Hearing: Withdrawing Appeals

If during your review of the file, you determine that the claim has no merit, contact the veteran, explain why the claim has no merit, and professionally ask if they will withdraw the appeal.

Any withdrawal must be authorized in writing with the veteran’s signature in accordance with NVS Policy and Procedure

Preparing for a Hearing: Withdrawing Appeals

At no time should you intimidate or refuse to represent a veteran because of their unwillingness to withdraw an appeal or hearing request.

Preparing for a Hearing: The Pre-Hearing Conference

Prior to any hearing you MUST hold a
Pre- Hearing Conference with the veteran.

Be familiar with all issues
Create a written summary of the claim and evidence
Prepare all questions in advance (know what the veteran is going to say and tailor questions)
Explain how the hearing will function
Establish your position as the pace-setter (let the veteran know you may have to interrupt if the veteran gets off-topic)
Explain what you hope to accomplish – but never make any promises

Preparing for a Hearing: Closed Ended vs. Open Ended

Your function during the hearing is to ask the veteran leading (closed ended) questions

This ensures you are not doing all the talking, but also helps prevent the veteran from getting off track

Instead of asking “When did you last seek treatment for your condition?”

Ask, “You were last seen for your condition on October 17th 2019, correct?”

Preparing for a Hearing: Additional Evidence

During your pre-hearing conference, the veteran may bring additional evidence and/or a witnesses testimony may be considered.

Review this evidence prior to the hearing, as it may be enough to get the issue resolved without a hearing.

Resist the temptation to have the veteran present the evidence on their own during the hearing.

When reviewing additional evidence brought to the hearing, keep in mind that not all evidence may be helpful to the claim.

If you come across evidence that may hurt more than help, explain to the veteran why the evidence should probably not be submitted.

Suggest what would make the evidence stronger and discuss ways to obtain it.

Preparing for a Hearing: Additional Evidence

Conducting a Hearing: During the Hearing

During the Hearing you should:

Always thank the VA Hearing Officer for their time
Restate the issues being discussed
Discuss each issue in a clear and concise manner and stick to the point
Present any additional evidence (not previously considered) and explain its relevance
Explain to the Hearing Officer what you think is the best course of action for the veteran

During the Hearing you should:

Speak clearly, you are being recorded

Don’t allow the veteran to ramble, YOU are the pace setter

Ask closed ended questions
Try to anticipate the veteran’s responses
Have a signal to stop the veteran if he/she gets off topic or says something detrimental to the claim

If you need to hold a “sidebar” with your claimant or the hearing officer, you can request to go “off the record” by asking that the recording be paused at any time.

Conducting a Hearing: During the Hearing

The Dreaded Question:

At the end of each hearing, the hearing officer will always ask if the veteran has anything to add.

This is when many veterans will want to voice their frustration with VA. It is your responsibility to prepare them for this question during your pre-hearing conference and try to prevent this.

Conducting a Hearing: During the Hearing

Conducting a Hearing:During the Hearing - Witnesses

Veterans will often want to bring a witness to their hearing. Witnesses can include:

Spouse
Friends
Doctors
Other family members

**Lawyers, other representatives, and media members are NOT allowed to be present in the hearing unless they are only acting as a witness**

When working with witnesses:

Have each witness sign an affidavit (VA will provide this prior to the start of the hearing)
Prepare the witness during your pre-conference hearing on what to expect
Explain that even though the witness may contribute, it’s still the veteran’s hearing
Do not allow witnesses to take over the hearing!

Conducting a Hearing:During the Hearing - Witnesses

Conducting a Hearing: After the Hearing

After the hearing is complete, you should meet with your veteran to discuss:

Any additional development or medical examinations that are needed

How the decision will be sent to the client

Estimated timeframes – remind your veteran that a decision will not be made during the hearing

Your expectations, but never make any promises

What to do once a decision is reached

Final Thoughts on Hearings

Hearings can be unpredictable and time consuming, but many veterans want their chance to speak to VA in person – make sure you’re prepared and prepare your veteran

If additional evidence is needed, you can ask the hearing officer to hold the record open for 30 or 60 days. In new appeals to the Board, the record will automatically stay open for 90 days

Remember, hearings are non-adversarial in nature

Try to get issues resolved without a hearing if possible. Waiting for hearings to be scheduled can often delay the appeals process

This type of claim exists when the granting of benefits to one claimant results in the denial/reduction of benefits for another
These can include:

Benefits paid to a surviving spouse
Benefits paid to a veteran’s parent
Apportionments

Contested claims have short appeal windows

CONTESTED CLAIMS

38 CFR 3.1010(g)(1)(i)
Substitutions are allowed on pending claims and appeals at the time of claimant’s death
Claim is considered pending if within appeal period to file NOD or Form 9
Time limit is what was remaining at claimant’s death

38 CFR 3.1010(g)(1)(ii)
If the Board issued a final decision on an appeal prior to the claimant’s death, the appeal is not pending
However, survivor may file appeal with CAVC in the claimant’s place: CAVC Rule 43

SUBSTITUTIONS AND APPEALS

38 CFR 20.1305

VA allows changes in representation up until 90 days after appeal received by Board of Veterans Appeals

However, after an appeal to the Board has been filed, VFW’s Policy and Procedure requires approval by the NVS Director before accepting representation

CHANGE OF REPRESENTATION AT BVA

38 CFR Part 4 VA MATH

OVERVIEW

What is meant by VA Math
By the end of this session you will understand VA Math

VA MATH

VA MATH CONCEPT

VA does not add disability ratings together, rather they combine the disabilities using the combined ratings table

To help understand the concept of VA Math think of a sale:
A shirt costs $100 regular price
The store advertises 50% off – The new price is $50
The store takes off an additional 50% – New price is $25 you save 75% total
Why? Because you take the additional percentage from what’s left of the original price
The veteran is the original price, the disabilities are the sale, and the total saved is the combined rating

§4.25 COMBINED RATINGS TABLE

Calculated in order from highest percentage to lowest

Read down, then across - figure at intersection represents the actual (true) percentage

After all the disabilities are combined the final value is rounded to the nearest 10% to create the combined percentage (values ending in 5 are rounded up)

Table begins at 19 (combination of two 10 % disabilities)

What would be the combined rating if the veteran had disabilities rated at 20% and 30%?

BASIC VA MATH EXAMPLE

Example:
20% Left shoulder limitation of motion
10% Tinnitus

Step 1 Start with 100% Whole Veteran
-20% Left Shoulder
80% Whole / 20% Disabled

Step 2 Continue to combine disabilities 80% Remaining
- 10% Tinnitus (10% of 80 is 8)
72% Whole / 28% Disabled

Actual rating is 28% VA will round and assign the veteran a 30%

§4.26 BILATERAL FACTOR

Requires more than one compensable disability
(both arms, both legs, paired skeletal muscles)

Applied before any other combinations are carried out and treated as one disability when combining with non-bilateral disabilities
Combine in order of severity
Add additional 10 percent before combining other non- bilateral disabilities (not combined, added)

§4.26 BILATERAL FACTOR

In order for a bilateral factor to be applied, the veteran must have disabilities of the extremities in sections across from each other. (1 & 2) or (3 & 4)

§4.26 BILATERAL FACTOR EXAMPLE

10% Left Shoulder Limitation of Motion
10% Right Elbow Sprain
50% PTSD
Step 1 Combine Bilateral Disabilities: 100% Whole Veteran 90% Whole Veteran
-10% Left Shoulder -10% Right Elbow
90% Whole / 10% Disabled 81% Whole / 19% Disabled

Step 2 Determine Bilateral Factor: 19% Disabled + 1.9 (10% of 19 = Bilateral Factor) = 20.9 (round to 21)
Step 3 Determine Bilateral Rating 100% Whole Veteran
-21% Bilateral Disabilities
79% Whole / 21% Disabled
Step 4 Continue to combine disabilities 79% Remaining
-50% PTSD
39.5% Whole / 60.5% Disabled

Actual rating is 61% VA will round and assign the veteran a 60%

We have provided you a Bilateral Factor Worksheet in the OLP and chat box which can be used to help combine ratings with bilateral factors

Use the worksheet determine the combined rating for the following disabilities:
60% Left hand loss of use
30% Cervical disc disease with right upper arm radiculopathy
10% Amputation of the left ring finger
10% Tinnitus

§4.26 BILATERAL FACTOR EXAMPLE WITH WORKSHEET

VA Healthcare

Review of the basic VA Health Care System - enrollment and priority groups
Identify Health Registries and Newsletters available
Available Medical Services
Know the exclusions and limited benefits associated with the Medical Benefits Package
VA Caregiver Programs
Community Care Program
VA Urgent Care
Review of the issue resolution and the role of the VA Patient Advocate

OBJECTIVES

VA has more than 1380 health care facilities across the United States, including VA Medical Centers and Outpatient Sites

MyHealtheVet is now a portal on VA.gov

24 hours access

VA’S HEALTH CARE SYSTEM

Veterans must enroll into the VA Health Care System as a condition for receiving the medical benefits package by submitting a VA Form 10-10EZ

Enrolling establishes eligibility and Priority Group assignment

Veterans can be placed in Priority Group categories 1-8 (category 1 is the highest)

38 C.F.R. 17.36 and 17.37

ENROLLMENT

PRIORITY GROUP CATEGORIES

Priority Group 6 - You have a compensable service-connected disability that we’ve rated as 0% disabling, or
You participated in Project 112/SHAD, or
You served in World War II between December 7, 1941, and December 31, 1946, or
You served in the Persian Gulf War between August 2, 1990, and November 11, 1998, or
You served on active duty at Camp Lejeune for at least 30 days between August 1, 1953, and December 31, 1987

You may also be assigned to this groups if you were exposed to hazards during service; participated in TERA – This is the group veterans are assigned afforded for by the PACT Act

Priority Groups Categories

PRIORITY GROUP CATEGORIES

Health Registries were developed to track and monitor the health of specific groups of veterans
Environmental Health Registry Evaluation for Veterans - Public Health - This site introduces registries available for veteran participation, which include:
Agent Orange
Airborne Hazards and Open Burn Pit Registry
Gulf War Registry
Ionizing Radiation Registry
Depleted Uranium Follow-Up Program

HEALTH REGISTRIES

Veteran and/or family members must have resided at Camp Lejeune for 30 days or more between August 1, 1953 - December 31, 1987, to receive care under the new law
There is no Requirement For Consecutive Days
There are multiple conditions eligible for presumptive service connection associated with military exposures
www.va.gov/disability/eligibility/hazardous-materials-exposure/camp-lejeune-water-contamination/

38 CFR 17.129 and 38 CFR 17.400 (Health Care)
38 CFR 3.309(f) (Service Connection)

CAMP LEJEUNE WATER CONTAMINATION BENEFITS

The Sergeant First Class (SFC) Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act became law in August 2022

It expanded and extended eligibility for VA health care for toxic exposed Veterans, and added new presumptive conditions and locations
It requires VA to provide a toxic exposure screening to every Veteran enrolled in VA health care
It helps us improve research, staff education, and treatment related to toxic exposures

www.va.gov/resources/the-pact-act-and-your-va-benefits/

2022 Pact Act and VA Health Care

MEDICAL BENEFITS PACKAGE

Some Growing Fields:
Geriatric Care
Home Based Primary Care
Assisted and Extended Care
Whole Health
Fertility Treatment

Basic Services:
Primary/Critical
Emergency/Urgent Care
Inpatient/Outpatient Care
Specialty Care
Surgical Care
Pharmacy
Prosthetics and Sensory Care

Available Medical Services include, but are not limited to:

Ambulance Services

Home Health Care

Dental Care

IVF

LIMITED BENEFITS

There are some services excluded from the VA health benefit package, to include:
Non-FDA approved drugs/devices
Cosmetic Surgery
Health Club/Spa Membership
Veterans housed in institutions (incarcerated in state or government facility), the legal obligation to provide services and care is the responsibility of the agency with a veteran inmate

38 C.F.R 17.38 (c)

EXCLUDED BENEFITS

The VA has two caregiver programs:
1. Program of General Caregiver Support (PGCSS)
2. Program of Comprehensive Assistance for Family Caregivers (PCAFC)
Both programs provide training, peer support, and coaching
PGCSS is available to all caregivers of veterans enrolled in VA healthcare; enroll with your local Caregiver Support Team
PCAFC has an application process, there is eligibility criteria for the caregiver and the veteran; one eligibility criteria for the Veteran is that they must have a VA disability rating, individual or combined, of 70% or higher
www.caregiver.va.gov

VA Caregiver Programs

Eligibility to Community care is based on access standards, to include:

Drive time: 30 minute drive time for primary care, mental health and non-institutional care services
Drive time: 60 minute drive time for specialty care
Appointment wait time: 20 days for primary care, mental health and non-institutional care services
Appointment wait time: 28 days for specialty care

38 C.F.R 17.4000 – 17.4040

COMMUNITY CARE PROGRAM

Individuals must be enrolled in VA Healthcare and have received care through VA within the past 24 months to use this benefit; use the VA facility finder to find VA approved urgent care providers:
Find VA Locations | Veterans Affairs
Priority Group 1-5 – $30 copay charged for fourth visit and all subsequent visits in calendar year.
Priority Group 6 – Visits related to specialty authority or exposure will have no copay, then $30 copay for all unrelated conditions at the fourth visits and subsequent visits in calendar year.
Priority Groups 7-8 – $30 copay per visit
38 C.F.R 17.105, 17.108 and 17.4600

VA URGENT CARE

VA can pay for emergency care at a non-VA hospital if the emergency is related to a service-connected condition and meets certain standards
VA can also pay for emergency care in non-VA facilities for conditions that are not service-connected, under the authority of 38 CFR 17.100 - 10008
Emergency care is only authorized in a non-VA facility until stable enough for transport to a VA facility
The VA must be notified of care within 72 hours; the hospital can report this, but it MUST be reported
Notification can be by phone, or online
The following provides more information about notification
https://www.va.gov/communitycare/programs/veterans/emergency_care.asp

EMERGENCY MEDICAL CARE PROGRAM (EMCP)

A Patient Advocate is a VA employee specifically designated to manage feedback received from Veterans and their family members.

If a veteran has a complaint:

Concerns should always be addressed with the Primary Care team first;
If unresolved, they should speak with the individual’s supervisor or Chief of Service;
If still unresolved, contact the Patient Advocate and request resolution to the concern.

PATIENT ADVOCATE PROGRAM

VA’s Foreign Medical Program (FMP) furnishes care to veterans outside the US if:
It is to treat a service-connected disability, or a disability determined to be aggravating a service-connected disability; OR
If the veteran participates in the Veteran Readiness and Employment (VR&E) program
Veterans no longer have to enroll in the FMP program. If they have at least one VA rated service-connected condition, if they are living or traveling outside the U.S. and they separated from the military under other than dishonorable conditions they will be automatically enrolled in FMP
Their Benefits Authorization letter will be found in their VA.gov account
38 CFR 17.35

VETERANS CARE OUTSIDE THE UNITED STATES

Healthcare Issues/Denial of Care:
If a patient disagrees with a medical decision made by VA, the decision can be appealed using the Clinical Appeal process
Decisions such as the use of a specific medication, certain therapy or treatment, or referrals to Community Care can be appealed
Clinical appeals are handled by VHA and start at the local Patient Advocate Office
Provide a letter to the Patient Advocate describing what you disagree with and why, and provide supporting documentation
There are two clinical appeal levels: the local facility level and the VISN level appeal
Clinical Appeals Of Medical Treatment Decisions | Veterans Affairs

MEDICAL APPEALS

If you are working with a veteran who needs assistance with their healthcare needs, first try to resolve the issue using local resources such as the patient advocate or Chief of Service.

If unsuccessful, the VFW Healthcare Team may be able to help.

WHO TO CONTACT FOR HELP

Julie Holt
Special Assistant
Veteran Health Policy
(202) 281-0390
Jholt@vfw.org

Marion Fera
Health Consultant
Veteran Health Policy
(202) 608-8349
mfera@vfw.org

WRITING APPEAL ARGUMENTS

Learn how to use the appeal writing method: IRAC
Identifying the Issue(s): rewrite and recognize
Listing the rules
Analyzing the facts
Concluding with the desired outcome
Review tips on writing clearly and persuasively

LESSON OBJECTIVES

An appeals argument is your opportunity to explain to the VA in writing why the claim was incorrectly decided

Remember: Even though it is called an “argument” you should not be argumentative when writing

WHAT IS AN APPEAL ARGUMENT?

An appeal argument should clearly list the following:

The issue on appeal
What the VA did wrong or failed to do in making their decision, citing objective evidence to support your argument
What will satisfy the appellant (what does he/she want)
What does the appellant want VA to do?

**If possible, limit your argument to no more than 2-3 paragraphs for each issue

WHAT IS AN APPEAL ARGUMENT?

ALL appeals should be accompanied by an appeals argument prepared by the representative.

This includes:

Supplemental Claims (21-0995)
Higher Level Review (21-0996)
Appeals to the BVA (101-82)

*Remember there is a difference between argument and evidence

WHEN TO WRITE AN ARGUMENT

Prior to writing an appeals argument, you must review the claims file to determine:

The issue on appeal
The reason why the benefit was denied
What evidence/action is needed to grant the benefit

BEFORE WE BEGIN WRITING

IRAC stands for:

Issue – What is the issue on appeal?
Rule – What rules/regulations apply to this claim?
Analysis – What are the facts of the case?
Conclusion – What will resolve the issue?

Though this method is not mandatory, it will help keep your argument organized

IRAC APPEAL WRITING METHOD

Locate the rating decision narrative that addresses the veteran’s issue

The issue is already presented to you in a numbered list in the decision being appealed and is phrased in terms of “entitlement to” the issue

The rating decision narrative will also include the reasons for the denial

Why are the reasons for denial important?

IDENTIFYING THE ISSUE

Kendall Johnstone was recently granted a 0% service-connected rating for headaches. She wants to appeal the rating. The rating decision states the following:

We have assigned a noncompensable evaluation for your headaches based on:
• With less frequent attacks

A higher evaluation of 10 percent is not warranted unless there are characteristic prostrating attacks averaging one in 2 months over the last several months.

What is the issue on appeal?
Why was the benefit not awarded?
What evidence/action is needed to grant the benefit?

IDENTIFYING THE ISSUE

What is the issue on appeal?

The assigned rating percentage

Why was the benefit (increased rating) not awarded?

VA determined that the medical evidence showed symptoms corresponding to a 0% rating

What evidence/action is needed to grant the benefit?

Current proof of the frequency and severity of the headaches

IDENTIFYING THE ISSUE

Some of the most overlooked/misstated issues are:

Earlier effective date of a rating vs increased rating or earlier effective date for service connection
Example: Veteran appeals 50% rating for PTSD. Is awarded 70% rating after 3 years in appeals, but only as of exam date. Continues appeal asking not for 100%, but earlier date of 70% rating.
Separate ratings vs increased ratings
Example: you cannot receive a rating higher than 40% under the diagnostic code for a certain condition based on limitation of motion, but you also have neuropathy that should be rated under another diagnostic code
Disagreement with the creation of an overpayment vs Request for a waiver of an overpayment
You may have both issues in an appeal, but they are very different arguments: the fact that you never owed anything v. telling VA it was not your fault/you have a hardship so you should not have to pay

IDENTIFYING THE ISSUE

Same types of claims will typically use the same rules, some of which will be stated in the rating decision
However, there are many exceptions in veterans' law, which the rating decision may leave out

After identifying the issue, you can either:
Start with the facts, and match up which rules apply to those facts, or
Start with every possible rule, and see if the facts support that rule

RECOGNIZING THE RULE(S)

Issue is entitlement to compensation with aid and attendance. The veteran is service connected at 100% for loss of use of the arm, hypertension, and erectile dysfunction.
The rules are:
Veteran must need aid and attendance of another person
For at least two activities of daily living
Due solely to service-connected conditions
And the rating for compensation purposes generally needs to be at least 100%
Now we can review the rating decision and the claims file to see which rules VA thought the veteran did not meet, based on the evidence presented.

STARTING WITH THE RULE

If the rating decision does not tell you a lot, starting with the facts may be easier

Issue is service connection for a right shoulder condition denied due to no event in service.

Facts: Veteran claims he injured his shoulder during combat mission in Afghanistan. Post-deployment health assessment shows complaint of upper extremity problem after deployment. Veteran was activated Guard member and did not have a separation physical. Right shoulder arthritis diagnosed 10 months post service.

STARTING WITH THE FACTS

In this example, the facts lead you to the rules:

Combat veteran presumption can apply and presume event in service (38 CFR 3.304)
While the STRs do not show diagnosis/injury, the post-deployment assessment is consistent with veteran’s complaints
Arthritis was diagnosed within one year of veteran’s release from active duty. If veteran had at least 90 days continuous active service, chronic condition presumptive rule should apply to show nexus
(38 CFR 3.307 & 3.309(a))

STARTING WITH THE FACTS

It’s inevitable:
You will come across issues that have no merit.

NON-MERITORIOUS APPEALS

A non-meritorious appeal fails to meet the necessary criteria for a grant – there is no way to argue or change the facts.

Examples:
NSC Pension when the veteran has no wartime service
DIC when the veteran and spouse were divorced at the time of death and have no children
Service connection cases where the veteran does not have the claimed disability

NON-MERITORIOUS APPEALS

If there are no facts to support the applicable rules, you MUST explain this to the client and suggest how the evidence can be improved or suggest either not appealing or withdrawing the appeal.

Per NVS Policy & Procedure, the client must sign if withdrawing the appeal, not the service officer, even though VA rules allow it.

DO NOT refuse to represent the veteran if you feel there is no merit to the claim.

WITHDRAWAL OF APPEALS

If the veteran is adamant about continuing the appeal:

Outline the facts of the case
Restate the veteran’s contentions
State that the VFW supports the veteran's right to appeal.

NON-MERITORIOUS APPEALS

If you have facts that support the client’s claim, compare them with the previous rating and explain where VA erred in their decision.

Example:

The veteran has a current diagnosis of arthritis of the right shoulder that was diagnosed 10 months after he was released from active duty. In the September 1, 2021, rating decision, VA denied service connection due to a lack of an in-service incident or injury. However, the veteran’s right shoulder arthritis should be considered service connected since it occurred during the veteran’s combat service, as evidenced by the veteran’s post-deployment assessment of 3/1/2015.

ANALYSIS/ARGUMENT

You may have the same analysis/argument for multiple issues. For example, if VA did not find the veteran’s service records, that failure of the duty to assist will likely impact all claims for service connection.

Example:
The issues of service connection for hearing loss, tinnitus, PTSD, and a bilateral knee condition should all be resolved by VA requesting the veteran’s complete service record and then re-adjudicating the claim. Previously, only the records of his first period of service were obtained, but service treatment records from 2010-2013 were not obtained. Please obtain these records and then re-adjudicate the claim.

ANALYSIS/ARGUMENT

Reasonable Doubt (38 CFR 3.102)
a.k.a. Benefit of the Doubt

“When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.

COMMON ARGUMENTS

Reasonable Doubt (38 CFR 3.102)
a.k.a. Benefit of the Doubt

Should only be used when the evidence is approximately equal on both sides (equipoise)
If the evidence is 51% or more on the veteran’s side, DO NOT argue benefit of the doubt
Allows you to say the evidence is equal so the tie should go to the veteran.
Benefit of the doubt should not be cited routinely and should NEVER be used in non-meritorious cases.
If you believe that benefit of the doubt applies to your claim:
Discuss the evidence in FAVOR of the claim
Discuss the evidence AGAINST the claim
Explain that the evidence is in EQUAL BALANCE “for” and “against” the claim so VA should grant the claim.

COMMON ARGUMENTS

Example:

In the April 4, 2021, C&P examination, the examiner opined that the veteran’s left knee instability was not related to his service-connected left ankle sprain. However, in a medical statement from the veteran’s primary care doctor dated April 11, 2021, Dr. Jones stated that the residuals of the veteran’s left ankle sprain directly contributed to the instability of the left knee.
Both medical opinions are from doctors who have examined the veteran, so they should be given equal consideration. According to 38CFR 3.102, if there is an approximate balance of positive and negative evidence, reasonable doubt should be resolved in favor of the veteran. Therefore, we request that service connection be granted for the veteran’s left knee instability secondary to his service-connected left ankle sprain.

COMMON ARGUMENTS

Failure of the Duty to Assist (DTA) (38 CFR 3.159(c))
A DTA error is a failure by VA to properly apply the provisions of 38 CFR 3.159 for gathering evidence. This can include omitting development or failing to request certain examinations or opinions.
Remember, a HLR or BVA appeal can only identify previous DTA errors
State that records have been identified but were not obtained, or a medical opinion is warranted because the evidence meets the threshold for providing an exam in 38 CFR 3.159(c).
Common reasons that records are not obtained: wrong name, wrong address, did not find all duty periods

COMMON ARGUMENTS

Inadequate medical exam/opinion (38 CFR 3.326)
Once VA provides a medical exam or opinion, that exam or opinion must be adequate
Common reasons exams are inadequate:
did not consider positive evidence of record
did not consider veteran’s lay statements
did not complete all required tests (especially in musculoskeletal claims)
did not consider all theories of service connection
relied only on results of one examination versus the disability over time
did not give rationale (reasons) for medical opinion
did not review all records

COMMON ARGUMENTS

If you determine that an examination or medical opinion is inadequate, explain why in your argument.

Example:
In the examination dated July 12, 2021, the examiner offered a medical opinion that the veteran’s bilateral hearing loss is less likely than not related to service. However, the examiner did not offer any rationale for this opinion. Therefore, we ask that this claim be sent back to the medical examiner to determine a rationale for the medical opinion

COMMON ARGUMENTS

Cite to the CFR and general principles such as duty to assist, adequacy of exams, secondary service connection, etc.

Also cite to the M21-1 if it helps you, at either the RO or the Board of Veterans Appeals (BVA).

VA Office of General Counsel Precedent Opinions and court cases can also be helpful.

No need to go overboard, one good citation that helps you is better than three that may or may not.

CITATIONS

Your conclusion should ask for an outcome based on the analysis of the rule and the evidence
You may ask the VA to:
Grant the benefit
Restore the benefit
Provide additional development such as requesting records, providing an examination or medical opinion

**If there is no merit to the appeal, restate the veteran’s contentions and state that we support their right to appeal

CONCLUSION

You can ask for more than one outcome:

For example, you can ask for VA to grant the benefit, or if there is not sufficient evidence to immediately grant, correct a duty to assist error and then re-adjudicate the claim.

You can also ask for more than one development task to be completed: such as obtaining federal records, requesting a new opinion based on those records, and considering a new theory of the claim.

CONCLUSION

Example Conclusion:

The veteran meets all criteria of service connection: he has a current diagnosis of right shoulder arthritis, an in-service injury during combat, and a nexus to military service. The veteran’s right shoulder arthritis was diagnosed in December 2009, within a year of his release from active duty in February 2009. Service-connected compensation should be granted on a presumptive basis for right shoulder arthritis according to 38 CFR 3.309(a).

CONCLUSION

Why is clear writing important?
So that the reader understands it the first time they read it – raters and judges have many claims to decide and limited time
It can save time in claim/appeal process and eliminate unnecessary hearings, letters, telephone calls

Which is better?
The veteran’s service treatment records show onset of her conditions.
The veteran’s separation physical of July 2004 shows diagnoses of hypothyroidism and bilateral carpal tunnel syndrome which began during active service.

CLEAR WRITING

Elements of clear writing

Logical organization
Short sentences
Short paragraphs
Common, everyday words
Active voice
Use of headings
Reading ease

CLEAR WRITING

Use Spell Check & Grammar Check every time you write an argument.

CLEAR WRITING

DO:
Address all of the issues that are on appeal
Use Spellcheck
Only include pertinent evidence
Cite only applicable law and evidence that supports the claim in the argument
Tell VA what will satisfy the claimant
If issue(s) has no merit and you cannot give credible argument rooted in fact or law, paraphrase the veteran’s contentions

APPEALS ARGUMENTS TIPS

DO NOT:

Argue issues that are not part of the appeal
Bring up new issues in an appeals argument
Do not cite regulations, law, or case law that do not apply
Belittle, condescend, or be rude/unprofessional in your argument

APPEALS ARGUMENTS TIPS

Many representatives save templates to help speed up the writing process

This practice is not prohibited, but you still must research the appeal prior to crafting the argument

If you use a template, make sure you are not using the same “boilerplate” argument for all appeals

TEMPLATES

Mr. Pennyworth is a 66-year-old veteran who is appealing his denial of Non-Service-Connected Pension. He served in the Army from 1979 to 1982 and received an honorable discharge. He was not discharged due to a service-connected disability and has no income other than a small social security check of $500 a month.

SCENARIO 1

After reviewing the facts of the case, the service officer provided the following argument:

The veteran contends that his service in the Army from 1979 to 1982 is sufficient to establish eligibility to non-service conected pension. Being that he is under the VA prescribed income limit and is over 65 years old, the VFW asks that the VA make a special excepion to the wartime service requirement and grant non-service connected pension to this veteran. We also ask that all benefit of the doubt be resolved in favor of the veteran in accordance with 38 CFR 3.120.

SCENARIO 1 – WHAT IS WRONG WITH THIS ARGUMENT?

What is wrong with this argument?

There were 2 obvious spelling errors: exception & connected
The service officer asked the VA to make a “special exception” to a regulation
It appears that the VFW is supporting a case without merit
The service officer referenced benefit of the doubt without good cause and used the wrong citation number

SCENARIO 1 – WHAT IS WRONG WITH THIS ARGUMENT?

Instead, the service officer should have written something like this:

The veteran contends that his service in the Army from 1979 to 1982, low income, and age (66) are sufficient to establish eligibility to non-service connected pension. The VFW supports the veteran’s right to appeal this issue and thanks the Board for their time and consideration.

Notice that nowhere in this argument does the service officer state that the veteran should be granted pension. By writing the argument this way, you save yours and the VFW’s reputation while still showing that you support the veteran’s rights and reviewed the facts of the case.

SCENARIO 1 – WHAT IS WRONG WITH THIS ARGUMENT?

Cyrus Cage is a Marine veteran that served from 1968 to 1971. Mr. Cage deployed to Vietnam and years later developed type 2 diabetes mellitus. In a report dated 1/8/21, his private doctor, George Smith, stated he is on a restricted diet, must take insulin daily, and is no longer allowed to do strenuous outdoor activities for more than 20 minutes at a time.

The VA granted service connection for type 2 diabetes mellitus at 20%. Mr. Cage appealed the decision, believing that he should be at a higher rating and sent you his brother’s Board decision that granted 40% for diabetes. Mr. Cage stated that his brother was also in Vietnam and now has diabetes just like his.

SCENARIO 2

After reviewing the evidence and appropriate regulations, your appeal argument should look something like this:
The veteran contends that his diabetes mellitus is severe enough to warrant a rating higher than 20%. In a medical statement dated January 8, 2021, Dr. Smith stated that Mr. Cage has a diagnosis of diabetes mellitus that requires a restricted diet, daily insulin, and regulation of activities. Based on this medical evidence, the VFW requests that the veteran’s rating for diabetes be increased in accordance with 38 CFR 4.119 DC 7913. We thank you for your time and consideration in this matter.

SCENARIO 2

As you can see, there was no mention of the veteran’s Vietnam service because the issue of service connection has already been addressed and granted. Instead, the argument simply references the medical opinion that shows Mr. Cage has regulation of activities which would allow for a 40% rating.

Also notice that there was no mention of his brother’s Board decision as it has no bearing on the case.

SCENARIO 2

When writing an appeals argument:
Ensure you’ve addressed all the issues on appeal, looked up rules that apply, cited to pertinent evidence, and asked for an outcome
Cite to evidence in the file to support your argument and make it easy for the reader to find
Short and clear arguments are more persuasive than long and confusing arguments
Remember to keep tone pleasant and professional; never insult or be derogatory towards VA in your arguments

FINAL THOUGHTS