The A to Z Guide to VA Disability Benefits
JimStrickland912
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Congress should stop treating veterans like they're asking for a hand out when it comes to the benefits they were promised, and they should realize that, were it not for these veterans, there would be nothing to hand out.
Nick Lampson
Nick Lampson
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Advisor
http://www.vba.va.gov/bln/21/advisor/runtime/utilities/login.asp
VA Advisor is a training program teaching about disability compensation; pension; death benefits; education; vocational rehabilitation; medical/dental; insurance; and loan guaranty.
The site warns that, "ADVISOR is for VA employees and VSOs only, and is not intended for veterans and their dependents."
However, VA has conveniently provided a portal into the site by using the "Information Only" button you'll find there.
I've found the site to be useful and up-to-date and I'd recommend that anyone who is seeking a more formal educational approach to the rules surrounding your VA to have a look at it.
Advisory Committees
Your VA runs on meetings and advisers and meetings with advisers. As a veteran who wants to understand how your VA works, you should be familiar with some of these and at least marginally aware of the big picture.
Click here for minutes of meetings, schedules, lists of attendees and so on.
It's your VA. You can participate and make things happen or you can stand on the sidelines and observe things as they happen or you can wonder what just happened.
It's your choice.
Aggravation
If you entered active duty service with a pre-existing condition and your military service caused that condition to become worse over time, you may be eligible for a service connected disability benefit.
Title 38: PART 3, Subpart A
§ 3.306 Aggravation of preservice disability.
(a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.
(Authority: 38 U.S.C. 1153)
(b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.
(1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.
(2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability.
(Authority: 38 U.S.C. 1154)
(c) Peacetime service prior to December 7, 1941. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service.
Aid and Attendance
A & A
Update October 28th 2009
Title 38: PART 3
§ 3.352 Criteria for determining need for aid and attendance and “permanently bedridden.”
a) Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance (§3.351(c)(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others.
(b) Basic criteria for the higher level aid and attendance allowance. (1) A veteran is entitled to the higher level aid and attendance allowance authorized by §3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:
(i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p).
(ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.
(iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(2) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.
(2) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof.
(3) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(2) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice.
(4) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional.
(5) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial.
(Authority: 38 U.S.C. 501, 1114(r)(2))
(c) Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.
Update: 10/15/2009
My friend John Crotty is a CVSO in New York. John looked over my writing on the A & A benefit and was kind enough to let me know of a new twist to A & A:
"Hi Jim, Today’s Q&A on A&A caught my eye as I’ve been educating myself on this since my last communication with you on A&A.
The new 21-2680 [Jun 2008] is much much better for the Vet than the old one which left a lot of wiggle room for the VA to read in or out of the Veterans real disability status. On the new form items 21 thru 27 are yes and no. A phone call or letter to the doctor explaining what the VA needs to hear has been very effective to produce success."
Thanks John!
Click here for that VA Form 21-2680.
From The VA...
The A & A benefit is one of the more misunderstood of all. The best information comes directly from the VA web site. It's sometimes hard to find so I'll paste in in here for you.
The basics:
The documentation that should be provided must be perfect. Statements from physicians, financial statements, etc. must have everything required and more if you expect smooth sailing. No shortcuts are allowed and a shortcut is a sure way to see a speedy (or not so speedy) denial.
Caution: Don't confuse A & A or Housebound benefits with Special Monthly Compensation (SMC). Each of those benefits may add more money to a severely disabled veteran's award but each benefit has its own pathway.
From the VA:
What are Aid and Attendance and Housebound benefits?
* Aid and Attendance (A&A) is a benefit paid in addition to
monthly pension. This benefit may not be paid without eligibility to
pension. A veteran may be eligible for A&A when:
1. The veteran requires the aid of another person in order to
perform personal functions required in everyday living, such as
bathing, feeding, dressing, attending to the wants of nature,
adjusting prosthetic devices, or protecting himself/herself from the
hazards of his/her daily environment, OR,
2. The veteran is bedridden, in that his/her disability or
disabilities requires that he/she remain in bed apart from any
prescribed course of convalescence or treatment, OR,
3. The veteran is a patient in a nursing home due to mental
or physical incapacity, OR,
4. The veteran is blind, or so nearly blind as to have
corrected visual acuity of 5/200 or less, in both eyes, or concentric
contraction of the visual field to 5 degrees or less.
* Housebound is paid in addition to monthly pension. Like A&A,
Housebound benefits may not be paid without eligibility to pension.
A veteran may be eligible for Housebound benefits when:
1. The veteran has a single permanent disability evaluated as
100-percent disabling AND, due to such disability, he/she is
permanently and substantially confined to his/her immediate premises,
OR,
2. The veteran has a single permanent disability evaluated as
100-percent disabling AND, another disability, or disabilities,
evaluated as 60 percent or more disabling.
A veteran cannot receive both Aid and Attendance and Housebound
benefits at the same time.
How to Apply for Aid and Attendance and Housebound:
* You may apply for Aid and Attendance or Housebound benefits by
writing to the VA regional office having jurisdiction of the claim.
That would be the office where you filed a claim for pension benefits.
If the regional office of jurisdiction is not known, you may file the
request with any VA regional office.
* You should include copies of any evidence, preferably a report
from an attending physician validating the need for Aid and Attendance
or Housebound type care.
* The report should be in sufficient detail to determine whether
there is disease or injury producing physical or mental impairment,
loss of coordination, or conditions affecting the ability to dress and
undress, to feed oneself, to attend to sanitary needs, and to keep
oneself ordinarily clean and presentable.
* In addition, it is necessary to determine whether the claimant
is confined to the home or immediate premises.
* Whether the claim is for Aid and Attendance or Housebound, the
report should indicate how well the individual gets around, where the
individual goes, and what he or she is able to do during a typical
day.
Appeal
(How To Appeal)
(Take Me To Katrina Eagle's Appeals Page)
Almost ever step of every VA process is able to be appealed if you disagree with the findings. Many cases, simple and complex, are won on appeal.
I believe that about 70% of all initial applications for disability compensation benefits will be denied. I further believe that those denials are almost always flawed and may be won on appeal.
Any time the Veterans Benefits Administration tells you "No" for almost any reason, you have a right to appeal to the next higher authority. The VA will often deny your application for disability compensation and in turn you must give the VA notice that you disagree.
When you get a denial letter in the mail, you must read it very carefully. You shouldn't be shocked or surprised, you shouldn't allow yourself to become angry or depressed over the denial...this is only a part of the routine and it means you've cleared one more hurdle.
With that denial letter in hand, you have actions to take and options to consider. All of this must be "timely" done. Delaying or stalling hurts your case.
Your choices are to ask for reconsideration, to ask for Decision Review Officer review process or to go straight to the Board of Veterans Appeals (BVA).
In your own analysis of why your claim was denied, you should look for the obvious and glaring issues. In the denial, does it appear that all evidence was reviewed? If there is evidence that you're sure supports a higher rating and it isn't mentioned, that's the focus of your appeal.
First though, be realistic in your expectations. When you applied for a benefit, did you have enough evidence available to prove you deserved the award of that benefit?
In an appeal the VA will not simply go over the materials that have already been reviewed. If VA indicates to you that all your evidence was reviewed and it didn't support your claim, you must provide further evidence that is both new (not seen before and not merely cumulative) and material (it is relevant to your case).
The secret to winning your appeal is most likely in the denial letter.
It's my opinion that you should always do your best to keep your claim at your Regional Office for appeal.
Many advocates will ask that VA "reconsider" a claim that's been denied. I don't use reconsideration as a tool to have a review. The reconsideration process takes the claim back to the individual who denied it in the first place.
I prefer to go straight to a formal appeal and ask for a Decision Review Officer (DRO) process.
If you believe that there was adequate evidence in your VA file to support your application for a benefit but the VA didn't review that evidence, you may appeal and ask that the particular evidence you have in mind be specifically considered by DRO process.
The DRO process is generally as efficient a way as any to ensure that a good and thorough reading of your file is accomplished. The DRO is usually an individual who has a lot of experience and seniority. The DRO process requires that the reviewer be "de novo" and that he or she was not a part of any work that was done on your claim before.
The DRO may be the first person that will actually read your folder cover to cover.
Once you have a denial, you may also consider retaining an attorney to guide you. If you have any doubts that you're able to accomplish the necessary letter writing for an appeal, I suggest moving in that direction as soon as possible.
To begin your appeal is simple.
You only need to write a letter that includes all the points that you wish to make.
A written letter to the VARO is the most powerful tool you have in your arsenal. All letters to VA should look much the same as the letters VA sends to you.
Use bullet points where appropriate. Be as brief as possible.
Do not ever include any information that isn't relevant. The reader of your letter isn't going to be swayed by your tales of woe about the car needing repairs or your wife needing that operation.
Above all, never let emotion enter into your writing. Spouting your opinions of the VA work ethic or the reader's family lineage isn't going to intimidate him or her. Keep all that to yourself, this letter is strictly business.
For example, your document should look like this:
Date
VIA Certified Mail, Return Receipt Requested
Department of Veterans Affairs
VARO Address
PO BOX 12345-1234
City, State Zip
Reference: (Your name, your C-file #, Your SSN, "Reply To" data from your denial letter, etc.)
Dear Sir/Madame:
I am in receipt of your letter of (date). In that letter you tell me that you have denied my claim for disability compensation for (list conditions or conditions that were denied).
Please accept this document as my Notice of Disagreement (NOD) with your decision.
I disagree with your decision because (briefly tell your reasons for the NOD).
I request that my application for benefits be reviewed by the Decision Review Officer (DRO) process. I request that I be allowed a personal hearing so that I may present my evidence to said DRO.
Thank you for your kind attention to my request.
Respectfully submitted,
Your Signature
Your Printed Name
Address
Telephone
Email
Using the format above accomplishes a number of things for you. The reader is able to quickly grasp your points. You seem to be serious and the reader is more likely to give your thoughts serious consideration. Your tone is respectful and that respect is likely to be returned to you.
Reasons that you're appealing may include such statements as:
"To my knowledge and belief, critical evidence was not reviewed in its entirety. For example; The records I submitted from my civilian doctor as well as the nexus letter from her were not mentioned in the denial letter."
"I do not believe that my C & P examination was adequate. The report that the examiner issued you does not make any mention of facts that I'm confident would compel you to award the compensation benefit that I seek. For example, there is no mention of the fact that I am wheelchair bound due to the severity of my back injury. There is no mention of the recent surgery that I had to correct such a condition, etc."
"I applied for a benefit that is presumptive to my service in Vietnam and exposure to the herbicide Agent Orange. The denial letter states that I did not have qualifying RVN service. The fact is that I served 2 tours of duty in Vietnam and that service is well documented throughout my records."
You will eventually receive a notice of your date of your personal hearing where you'll be allowed about one hour to present your reasoning as to why the denial was wrong.
Prior to the hearing you'll want to get well organized and practice what you'll say, make copies of any documents you want to deliver and make your plans so you'll arrive with ample time to find out where you're supposed to be.
The alternative to a DRO review and hearing is an appeal to the Board of Veterans Appeals (BVA). This will be your alternative if you are denied by a DRO. I recommend that veterans do not attempt a BVA appeal alone.
This is more formal and more adversarial that the DRO hearing and I believe that this is the point you must retain a lawyer.
You are allowed to have a DRO hearing that you handle on your own and if that is not successful, you may still retain a lawyer.
To learn more of how to retain an attorney, see the section about lawyers.
Appeal
Updated October 25th 2009
Clinical Decision Appeals
If you disagree with your doctor or treatment plan, this is the route to take to be heard.
Apportionment
Apportionment is very similar to wage garnishment. The VA will hear requests for apportionment from spouses or other dependents to whom the veteran may be required to pay child support or alimony.
The veteran will be allowed an opportunity to appeal an application for apportionment. The timeliness and other requirements are strict and the veteran must pay close attention to the details outlined in the apportionment proceeding notice.
The veteran who receives notification that an apportionment request has been made must act quickly. The veteran may ask for a personal hearing to dispute the apportionment as well as ask that no deductions be made to the veteran's compensation payment until appeals are exhausted.
The most common reason for apportionment is child support arrears. The veteran must recognize that in many states, any money collected through apportionment and delivered to the obligee (custodial parent) may not actually satisfy the state as a child support payment.
Many states require that payments must be recorded directly through the state's child support enforcement authority or it will be classed as a "gift" and it will not be applied toward arrears.
Learning as much as you can about apportionment is your best defense.
Begin by clicking http://www.warms.vba.va.gov/M21_1MR.html and then read;
Part 3 - General Claims Process
SubptV - General Authorization Issues and Claimant Notifications
Chapter 3 - Apportionments
Apportionments
§ 3.450 General.
(a)(1) All or any part of the pension, compensation, or emergency officers' retirement pay payable on account of any veteran may be apportioned.
(i) On behalf of his or her spouse, children, or dependent parents if the veteran is incompetent and is being furnished hospital treatment, institutional, or domiciliary care by the United States, or any political subdivision thereof.
(ii) If the veteran is not residing with his or her spouse, or if the veteran's children are not residing with the veteran and the veteran is not reasonably discharging his or her responsibility for the spouse's or children's support.
(2) Where any of the children of a deceased veteran are not living with the veteran's surviving spouse, the pension, compensation, or dependency and indemnity compensation otherwise payable to the surviving spouse may be apportioned.
(Authority: 38 U.S.C. 5307)
(b) Except as provided in §3.458(e), no apportionment of disability or death benefits will be made or changed solely because a child has entered active duty with the air, military, or naval services of the United States.
(c) No apportionment will be made where the veteran, the veteran's spouse (when paid “as wife” or “as husband”), surviving spouse, or fiduciary is providing for dependents. The additional benefits for such dependents will be paid to the veteran, spouse, surviving spouse, or fiduciary.
(d) Any amounts payable for children under §§3.459, 3.460 and 3.461 will be equally divided among the children.
(e) The amount payable for a child in custody of and residing with the surviving spouse shall be paid to the surviving spouse. Amounts payable to a surviving spouse for a child in the surviving spouse's custody but residing with someone else may be apportioned if the surviving spouse is not reasonably contributing to the child's support.
(f) Prior to release of any amounts the relationship of the claimant and the dependency of a parent will be fully developed, and the necessary evidence secured.
(g) The provisions of §3.460 are applicable where the surviving spouse is entitled to a higher rate of pension under the circumstances described in that section.
§ 3.452 Situations when benefits may be apportioned.
Veterans benefits may be apportioned:
(a) If the veteran is not residing with his or her spouse or his or her children and a claim for apportionment is filed for or on behalf of the spouse or children.
(b) Pending the appointment of a guardian or other fiduciary.
(c)(1) Where an incompetent veteran without a fiduciary is receiving institutional care by the United States or a political subdivision, his or her benefit may be apportioned for a spouse or child, or, except as provided in paragraph (c)(2), for a dependent parent, unless such benefit is paid to a spouse (“as wife” or “as husband”) for the use of the veteran and his or her dependents.
(2) Where a married veteran is receiving section 306 or improved pension and the amount payable is reduced under §3.551(c) because of hospitalization, an apportionment may be paid to the veteran's spouse as provided in §3.454(b).
(Authority: 38 U.S.C. 501(a); 5307; 5503(a))
(d) Where additional compensation is payable on behalf of a parent and the veteran or his or her guardian neglects or refuses to contribute such an amount to the support of the parent the additional compensation will be paid to the parent upon receipt of a claim.
Cross References:
Institutional awards. See §3.852. Disappearance of veteran. See §3.656. Reduction because of hospitalization. See §3.551. Penal institutions. See §3.666.
[26 FR 7266, Aug. 11, 1961, as amended at 27 FR 6974, July 24, 1962; 40 FR 21724, May 19, 1975; 44 FR 45940, Aug. 6, 1979; 66 FR 48560, Sept. 21, 2001; 68 FR 34542, June 10, 2003]
§ 3.451 Special apportionments.
Without regard to any other provision regarding apportionment where hardship is shown to exist, pension, compensation, emergency officers' retirement pay, or dependency and indemnity compensation may be specially apportioned between the veteran and his or her dependents or the surviving spouse and children on the basis of the facts in the individual case as long as it does not cause undue hardship to the other persons in interest, except as to those cases covered by §3.458(b) and (c). In determining the basis for special apportionment, consideration will be given such factors as: Amount of Department of Veterans Affairs benefits payable; other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and special needs of the veteran, his or her dependents, and the apportionment claimants. The amount apportioned should generally be consistent with the total number of dependents involved. Ordinarily, apportionment of more than 50 percent of the veteran's benefits would constitute undue hardship on him or her while apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee.
Atomic Veterans
National Association of Atomic Veterans
http://www.vba.va.gov/bln/21/advisor/runtime/utilities/login.asp
VA Advisor is a training program teaching about disability compensation; pension; death benefits; education; vocational rehabilitation; medical/dental; insurance; and loan guaranty.
The site warns that, "ADVISOR is for VA employees and VSOs only, and is not intended for veterans and their dependents."
However, VA has conveniently provided a portal into the site by using the "Information Only" button you'll find there.
I've found the site to be useful and up-to-date and I'd recommend that anyone who is seeking a more formal educational approach to the rules surrounding your VA to have a look at it.
Advisory Committees
Your VA runs on meetings and advisers and meetings with advisers. As a veteran who wants to understand how your VA works, you should be familiar with some of these and at least marginally aware of the big picture.
Click here for minutes of meetings, schedules, lists of attendees and so on.
It's your VA. You can participate and make things happen or you can stand on the sidelines and observe things as they happen or you can wonder what just happened.
It's your choice.
Aggravation
If you entered active duty service with a pre-existing condition and your military service caused that condition to become worse over time, you may be eligible for a service connected disability benefit.
Title 38: PART 3, Subpart A
§ 3.306 Aggravation of preservice disability.
(a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.
(Authority: 38 U.S.C. 1153)
(b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.
(1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service.
(2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability.
(Authority: 38 U.S.C. 1154)
(c) Peacetime service prior to December 7, 1941. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service.
Aid and Attendance
A & A
Update October 28th 2009
Title 38: PART 3
§ 3.352 Criteria for determining need for aid and attendance and “permanently bedridden.”
a) Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance (§3.351(c)(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others.
(b) Basic criteria for the higher level aid and attendance allowance. (1) A veteran is entitled to the higher level aid and attendance allowance authorized by §3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:
(i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p).
(ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.
(iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(2) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.
(2) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof.
(3) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(2) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice.
(4) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional.
(5) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial.
(Authority: 38 U.S.C. 501, 1114(r)(2))
(c) Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.
Update: 10/15/2009
My friend John Crotty is a CVSO in New York. John looked over my writing on the A & A benefit and was kind enough to let me know of a new twist to A & A:
"Hi Jim, Today’s Q&A on A&A caught my eye as I’ve been educating myself on this since my last communication with you on A&A.
The new 21-2680 [Jun 2008] is much much better for the Vet than the old one which left a lot of wiggle room for the VA to read in or out of the Veterans real disability status. On the new form items 21 thru 27 are yes and no. A phone call or letter to the doctor explaining what the VA needs to hear has been very effective to produce success."
Thanks John!
Click here for that VA Form 21-2680.
From The VA...
The A & A benefit is one of the more misunderstood of all. The best information comes directly from the VA web site. It's sometimes hard to find so I'll paste in in here for you.
The basics:
The documentation that should be provided must be perfect. Statements from physicians, financial statements, etc. must have everything required and more if you expect smooth sailing. No shortcuts are allowed and a shortcut is a sure way to see a speedy (or not so speedy) denial.
Caution: Don't confuse A & A or Housebound benefits with Special Monthly Compensation (SMC). Each of those benefits may add more money to a severely disabled veteran's award but each benefit has its own pathway.
From the VA:
What are Aid and Attendance and Housebound benefits?
* Aid and Attendance (A&A) is a benefit paid in addition to
monthly pension. This benefit may not be paid without eligibility to
pension. A veteran may be eligible for A&A when:
1. The veteran requires the aid of another person in order to
perform personal functions required in everyday living, such as
bathing, feeding, dressing, attending to the wants of nature,
adjusting prosthetic devices, or protecting himself/herself from the
hazards of his/her daily environment, OR,
2. The veteran is bedridden, in that his/her disability or
disabilities requires that he/she remain in bed apart from any
prescribed course of convalescence or treatment, OR,
3. The veteran is a patient in a nursing home due to mental
or physical incapacity, OR,
4. The veteran is blind, or so nearly blind as to have
corrected visual acuity of 5/200 or less, in both eyes, or concentric
contraction of the visual field to 5 degrees or less.
* Housebound is paid in addition to monthly pension. Like A&A,
Housebound benefits may not be paid without eligibility to pension.
A veteran may be eligible for Housebound benefits when:
1. The veteran has a single permanent disability evaluated as
100-percent disabling AND, due to such disability, he/she is
permanently and substantially confined to his/her immediate premises,
OR,
2. The veteran has a single permanent disability evaluated as
100-percent disabling AND, another disability, or disabilities,
evaluated as 60 percent or more disabling.
A veteran cannot receive both Aid and Attendance and Housebound
benefits at the same time.
How to Apply for Aid and Attendance and Housebound:
* You may apply for Aid and Attendance or Housebound benefits by
writing to the VA regional office having jurisdiction of the claim.
That would be the office where you filed a claim for pension benefits.
If the regional office of jurisdiction is not known, you may file the
request with any VA regional office.
* You should include copies of any evidence, preferably a report
from an attending physician validating the need for Aid and Attendance
or Housebound type care.
* The report should be in sufficient detail to determine whether
there is disease or injury producing physical or mental impairment,
loss of coordination, or conditions affecting the ability to dress and
undress, to feed oneself, to attend to sanitary needs, and to keep
oneself ordinarily clean and presentable.
* In addition, it is necessary to determine whether the claimant
is confined to the home or immediate premises.
* Whether the claim is for Aid and Attendance or Housebound, the
report should indicate how well the individual gets around, where the
individual goes, and what he or she is able to do during a typical
day.
By an unknown photographer, August 3, 1965"Da Nang, Vietnam...A young Marine private waits on the beach during the Marine landing"
Appeal
(How To Appeal)
(Take Me To Katrina Eagle's Appeals Page)
Almost ever step of every VA process is able to be appealed if you disagree with the findings. Many cases, simple and complex, are won on appeal.
I believe that about 70% of all initial applications for disability compensation benefits will be denied. I further believe that those denials are almost always flawed and may be won on appeal.
Any time the Veterans Benefits Administration tells you "No" for almost any reason, you have a right to appeal to the next higher authority. The VA will often deny your application for disability compensation and in turn you must give the VA notice that you disagree.
When you get a denial letter in the mail, you must read it very carefully. You shouldn't be shocked or surprised, you shouldn't allow yourself to become angry or depressed over the denial...this is only a part of the routine and it means you've cleared one more hurdle.
With that denial letter in hand, you have actions to take and options to consider. All of this must be "timely" done. Delaying or stalling hurts your case.
Your choices are to ask for reconsideration, to ask for Decision Review Officer review process or to go straight to the Board of Veterans Appeals (BVA).
In your own analysis of why your claim was denied, you should look for the obvious and glaring issues. In the denial, does it appear that all evidence was reviewed? If there is evidence that you're sure supports a higher rating and it isn't mentioned, that's the focus of your appeal.
First though, be realistic in your expectations. When you applied for a benefit, did you have enough evidence available to prove you deserved the award of that benefit?
In an appeal the VA will not simply go over the materials that have already been reviewed. If VA indicates to you that all your evidence was reviewed and it didn't support your claim, you must provide further evidence that is both new (not seen before and not merely cumulative) and material (it is relevant to your case).
The secret to winning your appeal is most likely in the denial letter.
It's my opinion that you should always do your best to keep your claim at your Regional Office for appeal.
Many advocates will ask that VA "reconsider" a claim that's been denied. I don't use reconsideration as a tool to have a review. The reconsideration process takes the claim back to the individual who denied it in the first place.
I prefer to go straight to a formal appeal and ask for a Decision Review Officer (DRO) process.
If you believe that there was adequate evidence in your VA file to support your application for a benefit but the VA didn't review that evidence, you may appeal and ask that the particular evidence you have in mind be specifically considered by DRO process.
The DRO process is generally as efficient a way as any to ensure that a good and thorough reading of your file is accomplished. The DRO is usually an individual who has a lot of experience and seniority. The DRO process requires that the reviewer be "de novo" and that he or she was not a part of any work that was done on your claim before.
The DRO may be the first person that will actually read your folder cover to cover.
Once you have a denial, you may also consider retaining an attorney to guide you. If you have any doubts that you're able to accomplish the necessary letter writing for an appeal, I suggest moving in that direction as soon as possible.
To begin your appeal is simple.
You only need to write a letter that includes all the points that you wish to make.
A written letter to the VARO is the most powerful tool you have in your arsenal. All letters to VA should look much the same as the letters VA sends to you.
Use bullet points where appropriate. Be as brief as possible.
Do not ever include any information that isn't relevant. The reader of your letter isn't going to be swayed by your tales of woe about the car needing repairs or your wife needing that operation.
Above all, never let emotion enter into your writing. Spouting your opinions of the VA work ethic or the reader's family lineage isn't going to intimidate him or her. Keep all that to yourself, this letter is strictly business.
For example, your document should look like this:
Date
VIA Certified Mail, Return Receipt Requested
Department of Veterans Affairs
VARO Address
PO BOX 12345-1234
City, State Zip
Reference: (Your name, your C-file #, Your SSN, "Reply To" data from your denial letter, etc.)
Dear Sir/Madame:
I am in receipt of your letter of (date). In that letter you tell me that you have denied my claim for disability compensation for (list conditions or conditions that were denied).
Please accept this document as my Notice of Disagreement (NOD) with your decision.
I disagree with your decision because (briefly tell your reasons for the NOD).
I request that my application for benefits be reviewed by the Decision Review Officer (DRO) process. I request that I be allowed a personal hearing so that I may present my evidence to said DRO.
Thank you for your kind attention to my request.
Respectfully submitted,
Your Signature
Your Printed Name
Address
Telephone
Using the format above accomplishes a number of things for you. The reader is able to quickly grasp your points. You seem to be serious and the reader is more likely to give your thoughts serious consideration. Your tone is respectful and that respect is likely to be returned to you.
Reasons that you're appealing may include such statements as:
"To my knowledge and belief, critical evidence was not reviewed in its entirety. For example; The records I submitted from my civilian doctor as well as the nexus letter from her were not mentioned in the denial letter."
"I do not believe that my C & P examination was adequate. The report that the examiner issued you does not make any mention of facts that I'm confident would compel you to award the compensation benefit that I seek. For example, there is no mention of the fact that I am wheelchair bound due to the severity of my back injury. There is no mention of the recent surgery that I had to correct such a condition, etc."
"I applied for a benefit that is presumptive to my service in Vietnam and exposure to the herbicide Agent Orange. The denial letter states that I did not have qualifying RVN service. The fact is that I served 2 tours of duty in Vietnam and that service is well documented throughout my records."
You will eventually receive a notice of your date of your personal hearing where you'll be allowed about one hour to present your reasoning as to why the denial was wrong.
Prior to the hearing you'll want to get well organized and practice what you'll say, make copies of any documents you want to deliver and make your plans so you'll arrive with ample time to find out where you're supposed to be.
The alternative to a DRO review and hearing is an appeal to the Board of Veterans Appeals (BVA). This will be your alternative if you are denied by a DRO. I recommend that veterans do not attempt a BVA appeal alone.
This is more formal and more adversarial that the DRO hearing and I believe that this is the point you must retain a lawyer.
You are allowed to have a DRO hearing that you handle on your own and if that is not successful, you may still retain a lawyer.
To learn more of how to retain an attorney, see the section about lawyers.
Appeal
Updated October 25th 2009
Clinical Decision Appeals
If you disagree with your doctor or treatment plan, this is the route to take to be heard.
Apportionment
Apportionment is very similar to wage garnishment. The VA will hear requests for apportionment from spouses or other dependents to whom the veteran may be required to pay child support or alimony.
The veteran will be allowed an opportunity to appeal an application for apportionment. The timeliness and other requirements are strict and the veteran must pay close attention to the details outlined in the apportionment proceeding notice.
The veteran who receives notification that an apportionment request has been made must act quickly. The veteran may ask for a personal hearing to dispute the apportionment as well as ask that no deductions be made to the veteran's compensation payment until appeals are exhausted.
The most common reason for apportionment is child support arrears. The veteran must recognize that in many states, any money collected through apportionment and delivered to the obligee (custodial parent) may not actually satisfy the state as a child support payment.
Many states require that payments must be recorded directly through the state's child support enforcement authority or it will be classed as a "gift" and it will not be applied toward arrears.
Learning as much as you can about apportionment is your best defense.
Begin by clicking http://www.warms.vba.va.gov/M21_1MR.html and then read;
Part 3 - General Claims Process
SubptV - General Authorization Issues and Claimant Notifications
Chapter 3 - Apportionments
§ 3.450 General.
(a)(1) All or any part of the pension, compensation, or emergency officers' retirement pay payable on account of any veteran may be apportioned.
(i) On behalf of his or her spouse, children, or dependent parents if the veteran is incompetent and is being furnished hospital treatment, institutional, or domiciliary care by the United States, or any political subdivision thereof.
(ii) If the veteran is not residing with his or her spouse, or if the veteran's children are not residing with the veteran and the veteran is not reasonably discharging his or her responsibility for the spouse's or children's support.
(2) Where any of the children of a deceased veteran are not living with the veteran's surviving spouse, the pension, compensation, or dependency and indemnity compensation otherwise payable to the surviving spouse may be apportioned.
(Authority: 38 U.S.C. 5307)
(b) Except as provided in §3.458(e), no apportionment of disability or death benefits will be made or changed solely because a child has entered active duty with the air, military, or naval services of the United States.
(c) No apportionment will be made where the veteran, the veteran's spouse (when paid “as wife” or “as husband”), surviving spouse, or fiduciary is providing for dependents. The additional benefits for such dependents will be paid to the veteran, spouse, surviving spouse, or fiduciary.
(d) Any amounts payable for children under §§3.459, 3.460 and 3.461 will be equally divided among the children.
(e) The amount payable for a child in custody of and residing with the surviving spouse shall be paid to the surviving spouse. Amounts payable to a surviving spouse for a child in the surviving spouse's custody but residing with someone else may be apportioned if the surviving spouse is not reasonably contributing to the child's support.
(f) Prior to release of any amounts the relationship of the claimant and the dependency of a parent will be fully developed, and the necessary evidence secured.
(g) The provisions of §3.460 are applicable where the surviving spouse is entitled to a higher rate of pension under the circumstances described in that section.
§ 3.452 Situations when benefits may be apportioned.
Veterans benefits may be apportioned:
(a) If the veteran is not residing with his or her spouse or his or her children and a claim for apportionment is filed for or on behalf of the spouse or children.
(b) Pending the appointment of a guardian or other fiduciary.
(c)(1) Where an incompetent veteran without a fiduciary is receiving institutional care by the United States or a political subdivision, his or her benefit may be apportioned for a spouse or child, or, except as provided in paragraph (c)(2), for a dependent parent, unless such benefit is paid to a spouse (“as wife” or “as husband”) for the use of the veteran and his or her dependents.
(2) Where a married veteran is receiving section 306 or improved pension and the amount payable is reduced under §3.551(c) because of hospitalization, an apportionment may be paid to the veteran's spouse as provided in §3.454(b).
(Authority: 38 U.S.C. 501(a); 5307; 5503(a))
(d) Where additional compensation is payable on behalf of a parent and the veteran or his or her guardian neglects or refuses to contribute such an amount to the support of the parent the additional compensation will be paid to the parent upon receipt of a claim.
Cross References:
Institutional awards. See §3.852. Disappearance of veteran. See §3.656. Reduction because of hospitalization. See §3.551. Penal institutions. See §3.666.
[26 FR 7266, Aug. 11, 1961, as amended at 27 FR 6974, July 24, 1962; 40 FR 21724, May 19, 1975; 44 FR 45940, Aug. 6, 1979; 66 FR 48560, Sept. 21, 2001; 68 FR 34542, June 10, 2003]
§ 3.451 Special apportionments.
Without regard to any other provision regarding apportionment where hardship is shown to exist, pension, compensation, emergency officers' retirement pay, or dependency and indemnity compensation may be specially apportioned between the veteran and his or her dependents or the surviving spouse and children on the basis of the facts in the individual case as long as it does not cause undue hardship to the other persons in interest, except as to those cases covered by §3.458(b) and (c). In determining the basis for special apportionment, consideration will be given such factors as: Amount of Department of Veterans Affairs benefits payable; other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and special needs of the veteran, his or her dependents, and the apportionment claimants. The amount apportioned should generally be consistent with the total number of dependents involved. Ordinarily, apportionment of more than 50 percent of the veteran's benefits would constitute undue hardship on him or her while apportionment of less than 20 percent of his or her benefits would not provide a reasonable amount for any apportionee.
Atomic Veterans
National Association of Atomic Veterans