Many benefits are available to veterans of the United States Armed Forces and their surviving family members. Unfortunately, the Veterans Administration (VA) does not tell people that they might be eligible for these benefits, so veterans and their families often miss out on benefits that they may be entitled to based on their sacrifices and service to our nation. Our firm works to ensure that veterans and their families are made aware of these benefits. We screen our clients for a variety of benefits and offer assistance with the applications.
Mr. McLaughlin is a VA-accredited attorney. By law, an individual must be accredited by VA as an agent, attorney, or representative of a VA-recognized veterans’ service organization to assist in the preparation, presentation, and prosecution of a claim for VA benefits, and no person or organization may charge claimants a fee for assistance in preparing applications for VA benefits or presenting claims to VA.
One of the most common types of benefits available to veterans is disability compensation. Unlike disability pensions, disability compensation benefits are not subject to asset and income limits and are not limited to individuals with “wartime” service. Veterans may be eligible for disability compensation if they meet the following criteria:
- were discharged or released under conditions other than dishonorable,
- their illness or injury was incurred or aggravated in the line of duty, and
- the disability is not the result of their own willful misconduct or abuse of alcohol or drugs (but note that alcohol or drug abuse that is secondary to a service connected condition is not necessarily a bar to benefits)
Veterans who are entitled to disability compensation receive monthly payments from the VA. As of December 1, 2016, a single veteran without dependents may receive payments ranging from $133.57 per month for a disability rated 10% disabling to $2,915.55 for a 100% rated disability. A veteran who is rated 30% or more can also receive additional funds for dependents, including spouse, children, and dependent parents. Veterans claiming dependent parents must prove the parent’s financial dependency.
Disabilities are rated based upon the average impairment of earning capacity in civil occupations that would result from the injury. The higher the degree of impairment, the more compensation the veteran will receive. A veteran with disabilities involving anatomical loss or sensory impairment, such as loss of or loss of use of a hand, foot, or reproductive organ, loss of vision or hearing, etc., may also be entitled to special monthly compensation (SMC) in addition to the basic compensation that is based on earning capacity impairment.
Surviving spouse, children, and parents of deceased veterans whose deaths were related to service connected conditions may be eligible to receive Dependent and Indemnity Compensation (DIC).
For the surviving spouse to receive DIC, the spouse must provide proof of marriage to the veteran, must have been married to the veteran at the time of the veteran’s death, and must have been married to the veteran for at least one year prior to the veteran’s death, unless the marriage occurred before or during the veteran’s service, or if the couple had a child at any time. The surviving spouse must not have remarried, but if the remarriage ends, the spouse may once again be entitled to DIC. There is also an exception for surviving spouses who remarry on or after they reach age 57 if the remarriage took place on or after December 16, 2003 and their claim was pending on or filed after January 1, 2004. The VA may also infer remarriage if the surviving spouse is cohabiting with another person and held themselves out openly to the public as the spouse of the other person at least once.
The VA defines “children” fairly broadly and the definition includes biological children, adopted children, stepchildren, and “helpless” children (biological, adopted or step), who became “permanently incapable of self-support” prior to age 18 due to a physical or mental disability. The children must be unmarried to qualify for DIC. Children who are between the ages of 18 and 23 must be pursuing a course of education or training at an approved educational institution.
“Parent” includes biological and adopted parents, and also includes a “foster parent,” which is any person who stood in place of the veteran’s parent for a continuous period of at least one year prior to the veteran’s 21st birthday and continued to do so for one year prior to the veteran’s entry into active military service, when the biological or adopted parent ceased to provide for the child and the normal parent/child relationship has been broken. Surviving parents’ countable income must not exceed the applicable DIC income limit.
To qualify for service connected benefits, the veteran must prove that the disability has a nexus to the military service through one of the following:
- the illness or injury is directly linked to military service; or
- a pre-existing condition was aggravated by or worsened during service; or
- a current condition that did not manifest during service, but is presumed to be connected to service by a statute or regulation; or
- Example: both type 2 diabetes and Parkinson’s disease are presumed to be service connected for veterans who served in Vietnam between 01/09/1962 to 05/07/1975 due to Agent Orange exposure
- Example: Lou Gehrig’s disease is presumed to be service connected if the veteran had active, continuous service of 90 days or more
- Example: veterans diagnosed with chronic diseases (such as arthritis, diabetes, or hypertension) within one year of release from active duty
- a current condition that is secondary to a primary service connected condition (for example, premature cataracts resulting from diabetes or sciatic nerve damage resulting from back injury in service); or
- a current condition caused by VA Health Care.
For DIC, death of the veteran due to any of the above constitutes service connection.
If the evidence is balanced between the disability being service connected and non-service connected, the VA must give the claimant the benefit of the doubt and resolve the issue in favor of the claimant.
Presumptive Service Connection
Policies Specific to Vietnam Veterans
Although conditions related to tobacco use are no longer considered to be service connected, Vietnam veterans who have or died of lung cancer may be awarded benefits based on the presumption of herbicide exposure, regardless of whether he or she used/uses tobacco.
Nehmer claims are the result of a class action lawsuit against the VA for denial of service connected claims on the basis of herbicide exposure in-county in Vietnam. When a condition is added to the list of presumptively service connected conditions and a claim for that condition was previously filed or denied after September 25, 1985, the effective date of the VA benefits award will be the later of the date the claim was filed or the disability onset date. In other words, for Nehmer to apply, the first claim of service connection for the condition at issue must have been received BEFORE the condition was added to the list of Agent Orange-related disabilities and the effective date for the grant of service connection will also be BEFORE the condition was added to the list of Agent Orange-related disabilities.