OVERVIEW OF VA DISABILITY
What is the Department of Veterans Affairs?
When you served your nation in the armed forces, you entered
into an honored contract where your military commitment to our
country which still entitles you to certain benefits should you
become disabled as a result of your military service. Our
Nation's Department of Veterans Affairs (formerly the VA or
Veterans Administration) pays for your loss of health or earning
ability with disability benefits in an effort to restore or make up
for your sacrifice for the nation. This federal system of
hospitals, claims offices and Vet Centers is intended to honor
this contract with those who sacrificed for the Nation. When
you apply for DVA disability benefits, the VA determines your
degree of service connected disability and must grant the
appropriate monthly amount you are to be paid for disability.
Even if you are not service connected, you are still eligible for
"pension" if you are disabled for non service-connected
reasons if you served during a period of wartime - even if you
did not actually serve in the combat zone.
What is DVA service connected Disability?
The DVA has complex regulations to determine if you are
eligible for service connected benefits or Pension. These
benefits are paid to people whose military service caused
health problems or disability limitations. These benefits are
paid for any condition which affects your efforts towards
competitive work. Even if your service-connected disability is
non compensable or "zero" percent, you are entitled to medical
care for the service connected condition. The DVA regulations
take into consideration such additional factors as additional
medical care based on your medical condition. Disability means
that you have a service connected medical condition which
affects or prevents you from performing competitive
How does a Veteran apply for benefits?
Go to your local Veteran's service representative and apply for
benefits immediately if you believe you have health problems
caused by military service and which are service connected.
After your medical records are reviewed, the DVA Regional
Office will send you a letter giving you a rating decision. Most
people who apply are denied service connected benefits at
this initial stage of application.
How long will a decision take?
Currently the backlog of cases within the DVA is several years –
repeat, several years! Most DVA Regional Offices have
backlogs of several years according to a recent study initiated
by President George W. Bush.
Should a Veteran appeal a rating decision?
Yes! The DVA may try to give a veteran a slight increase in
hopes that the veteran will be satisfied. Unfortunately, many
people simply give up after an initial denial. The next stage of
appeal is called “Notice of Disagreement”. You must give your
"NOD" within one year after initial denial or your claim cannot
be appealed. Some disabled Veterans like to have an
experienced representative at all stages of application. Most
people who give a Notice of Disagreement are also denied
again when the Regional Office issues a "Statement of the
Case" (SOC). Sometimes the Regional Office issues a
Supplemental Statement of the Case (SSOC) after sending an
SOC. A Veteran should submit both a Notice of Disagreement
and a VA Form 9 to any SSOC - since the Regional Office rarely
tells the Veteran whether the SSOC is a new issue requiring a
Notice of Disagreement or whether the SSOC requires a VA
Should a Veteran appeal the SOC?
Yes! Now you can appeal to the Board of Veterans Appeals
(BVA) in Washington, DC. After your SOC denial, you must
appeal to the BVA within 60 days by filing a VA Form 9 with the
Regional Office. The BVA will allow you to testify at a hearing.
BVA backlogs can be several years causing further delays
When can a Veteran hire an Attorney to Represent the Veteran
before the Veterans' Administration?
Call TODD HAMMOND Immediately!
PHONE at 503.365.0659 or
EMAIL at firstname.lastname@example.org or
FAX at 503.365.8822.
The United States Code changed on June 20, 2007. On
December 22, 2006, the President signed Public Law 109-461.
Section 101 of Public Law 109-461, the Veterans Benefits,
Health Care, and Information Technology Act of 2006, amends
chapter 59 of title 38, United States Code, governing the
recognition of individuals for the preparation, presentation,
and prosecution of claims for benefits before VA. The
provisions shifting the entry point for paid representation are
effective on June 20, 2007, and the provisions relating to
fee assessments and review of fee agreements are effective
upon publication of VA's final rule.
SUMMARY OF NEW LEGISLATION
Section 101 of Public Law 109-461 makes the following
amendments to 38 U.S.C. §§ 5902, 5903, 5904 and 5905:
· Eliminates the current prohibition on the charging of fees
for services of an attorney or agent provided before the Board
of Veterans’ Appeals (Board) makes its first final decision in the
case. As amended, section 5904 will allow accredited attorneys
and agents to charge fees for services provided after a notice
of disagreement (NOD) has been filed with the VA Regional
Office (RO) in the case.
· Authorizes the Secretary to collect an assessment from an
individual recognized as an agent or attorney under section
5904 in any case where VA pays the agent’s or attorney’s fees
from past-due benefits owed to a claimant. The amount of the
assessment shall be equal to five percent of the amount of the
fee paid to the agent or attorney from past-due benefits. The
assessment may not exceed $100. An agent or attorney who is
charged an assessment may not receive reimbursement for
such assessment from the claimant. VA will deposit the
amounts collected in an account available for administrative
expenses for veterans’ benefits programs.
· Authorizes VA to regulate the qualifications and standards
of conduct applicable to agents and attorneys.
· Adds four additional categories to the list of grounds for
suspension or exclusion of agents or attorneys from further
practice before VA.
· Authorizes VA to review fee agreements between agents
or attorneys and claimants and order a reduction in the fee if
the Secretary finds that the fee is excessive or unreasonable,
although a fee that does not exceed 20 percent of the past due
amount of benefits awarded on the claim will be presumed to
· Eliminates fee matters as grounds for criminal penalties
under 38 U.S.C. § 5905.
· Subjects Veterans Service Organization representatives
to suspension on the same grounds as apply to agents and
What does it cost to hire an attorney?
An attorney cannot charge a fee for representing a disabled
Veteran unless approved by the DVA or Court of Appeals for
Veterans Claims. Contingency fees are limited to 20% of past
due benefits by the US Code and DVA regulations. Most
attorneys charge a percentage or “contingency” fee of 20
percent because most disabled Veterans cannot afford an
attorney until benefits are awarded. A contingency fee means
no attorney fee is owed if benefits are not awarded, however,
most attorneys charge actual office expenses (such as doctor
charges for medical records) even if the case is lost. The DVA
may withhold 20% of past due benefits for the attorney in
disability cases. The claimant is expected to pay the attorney
20% if the DVA fails to withhold benefits. After winning benefits,
the attorney is not entitled to further fees for future benefits.
Can a Veteran ask for benefits before the date of first VA
No! A Veteran can only ask for benefits to start on the first day
of the month after application unless there is a reopening of a
prior claim which has clear and unmistakable error, grave
procedural error an unadjudicated claim for an earlier effective
Can a Veteran work and still be disabled for service-
Yes. The DVA allows a Veteran with a percentage up to 100% to
continue to work. If the Veteran receives individual
unemployability or Pension, he cannot continue to work.
Can a Veteran receive Social Security disability benefits and VA
Veterans benefits at the same time?
Yes. The DVA allows a Veteran with a percentage up to 100% or
with individual unemployability to continue to receive Social
Security disability benefits if insured. Pension is reduced by the
amount of Social Security disability
|TODD S. HAMMOND