The Basics of Veterans' Disability Compensation
| Publication year | 1993 |
| Pages | 277 |
| Citation | Vol. 22 No. 2 Pg. 277 |
1993, February, Pg. 277. The Basics of Veterans' Disability Compensation
With the rapid drawdown and radical force restructuring occurring in the armed services, many disability law practitioners can expect to see clients who have been recently discharged from active military, naval or air service.(fn1) In addition, some disability clients may not even be aware they are eligible for disability compensation administered by the Department of Veterans Affairs (formerly the Veterans Administration, hereinafter, "VA").(fn2) Thus, it is important for practitioners to familiarize themselves with the fundamentals of the veterans' disability compensation system and to understand the statutory limitations on attorney representation of veterans.
The comprehensive system of veterans' benefits is extensive and complex, including such areas of practice as mortgage foreclosures; dependency and indemnity compensation and survivors education benefits; hospital, nursing home and domiciliary care; medical treatment; non-service-connected pensions; education and vocational rehabilitation training; veterans' re-employment rights; and, of course, disability compensation. Accurate and correct advice must always be dispensed to veterans, lest they lose their rights to the entitlements they have earned through military service. However, this article focuses strictly on veterans' disability compensation because that is perhaps the most commonly encountered veterans' issue.
VA disability compensation is, in essence, a workers' compensation system for GIs. As it stands today, VA disability compensation is not dependent on whether the disabling condition was incurred in combat or during a period of war. This distinction is critical because the VA also administers a system of disability pensions which is dependent on wartime service.
The basic requirements for receipt of disability compensation are that (1) the disabling condition be "service-connected," and (2) the condition manifest itself to a compensable degree as set forth in the VA Schedule for Rating Disabilities, found generally in 38 C.F.R. Part 4. VA disability ratings range from 0 percent all the way to 100 percent, depending on the degree of social and industrial impairment involved. Even achieving a 0 percent service connection is valuable because the veteran will receive priority medical care for his or her condition.
Service connection can be shown in the following ways: the injury or condition was (1) incurred during service or (2) manifested itself to a degree of 10 percent or more within one year after leaving service (longer limitation periods apply for some conditions). Alternatively, service connection can be shown by establishing that a condition which pre-existed service was aggravated to a compensable degree (beyond the natural progression of the disease) while the veteran was on active duty. The determination of "active military service" can be tricky.(fn3) Most of the challenging litigation involves service-oriented conditions which have not manifested themselves until the veteran is of advanced age.
Generally, an honorable or general discharge is required to establish eligibility and receipt of disability compensation. Discharges inferior in grade to a general discharge will usually foreclose receipt of compensation. Further, there must not be any willful misconduct connected with the cause of the disabling condition. Likewise, conscientious objector, desertion or absent without leave ("AWOL") status for periods of 180 days or more may act to foreclose a veteran's eligibility for disability compensation. The eligibility rules are complex and do not apply to all benefits in like manner. However, military discharges affecting eligibility for compensation can sometimes be upgraded through the appropriate armed service board governing correction of military records. The VA also has provisions for reviewing the character of military discharges.
VA disability compensation is not taxable and is not offset by receipt of Social Security disability benefits. However, if the veteran received disability severance pay from his or her former branch of...
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