Additionally, the compensation amount can be raised if there are dependent children or parents, and also if the spouse of the veteran requires the aid and attendance of other individuals. This extra amount is generally a few hundred dollars per month.
The determination as to the rating percentage is basically an objective test. The VA has published regulations that outline a series of tests depending on the nature of the injury. Based on the results of these tests, a percentage is assigned. For a veteran who is claiming neuropathy based loss of function in the extremities, there are tests to examine range of motion, tactile ability, etc. to determine how severe the neuropathy is at that point in time. Because these tests are fairly standardized, it would hopefully eliminate any preferential treatment between one examiner and another, and provide equal treatment for all veterans. These regulations can be found online at http://www.benefits.va.gov/warms/bookc.asp.
Understanding Pyramiding: Many veterans will have multiple injuries suffered during their time in service. For example, a World War II veteran who served in the artillery during the Battle of the Bulge (Ardenne Forest) might have hearing loss and also have loss of function in each of his four extremities because of exposure to extreme cold during the winter of 1944. So that veteran might have five different injuries suffered. Each injury is separately rated, but then those ratings are combined and a percentage is used, but is not as simple as adding each of the injuries together (and is actually not beneficial to the veteran, as the multiple injuries will never cause the same percentage as adding the two numbers together- it will always be lower). This calculation is explained in 38 C.F.R. § 4.25, but the basic logic is that if condition A renders you 40% disabled, then condition B can’t be judged vs. a completely healthy person, so they will take the percentage that is left over (60% in this example) and multiply that times the “normal” percentage if there weren’t multiple conditions. For example, if A=40%, B=20%, then the combined percentage would be equal to .4 + (.2*.6), which would equal 52%, rounded down to 50% instead of 60% (.4+.2).
Unemployability:Another possibility for a veteran who was significantly disabled, but his/her rating is not 100% is to make a claim for unemployability. This claim is effectively saying that because of the injuries, the veteran is unable to hold employment, so for all practical purposes, the veteran is 100% disabled. If it is found that the veteran is unemployable, then they will be compensated as a 100% disabled veteran. In order to make this claim, the veteran must have a rating of at least 70% in the event of a single injury or 60% in the event of multiple injuries where at least one of the injuries is 40% rated.
Vietnam Era Veterans
Agent Orange was used extensively as a defoliant during the Vietnam era in several areas of Southeast Asia. This herbicide is now known to cause many health issues for people who have been exposed, but these symptoms were typically not present for a significant period of time after exposure. Because of its widespread use, and after intense pressure and lobbying from veterans groups, Congress passed legislation that created a presumption that any veteran who had a “boot on the ground” in Vietnam (and also for veterans serving at the 38thparallel in Korea during the Vietnam era) was exposed to Agent Orange. This eliminates the need for the veteran to prove exactly when and where he/she was exposed, which was often impossible years after the fact. This presumption is a very significant breakthrough for veterans, and it is important for any elder law attorney to be aware of how Agent Orange exposure affects compensation benefits. However, just because exposure to Agent Orange is conceded, that does not mean that your claim for any injury will be successful. It is still necessary to show that Agent Orange caused, or is at least as likely as not to have caused the claimed injury. This has been another hard fought battle with the VA in getting concessions that certain diseases are caused by exposure, and the last several years has seen many breakthroughs. The VA maintains a list, which is being added to periodically, of certain diseases that they will concede was caused by Agent Orange Exposure. This list currently includes the following:
In addition to the Veterans who actually did have a “boot on the ground” in Vietnam, there are also certain Navy Veterans who will be included in presumptive exposure because of the proximity of their ships to Vietnam. These ships are called “Brown Water Ships” and typically operated on inland waterways in Vietnam or just off the coast for extended periods.
If you have a Vietnam era veteran who was in country, and is affected by one of the above diseases (or you feel that you can prove the nexus between their injury and Agent Orange exposure), the Veteran will receive some level of compensation, but they will still need to have an examination to determine their rating percentage prior to receiving any benefits. These claims typically take many months, with many lasting over a year. The VA does pay back benefits that typically will go back to the first time that the Veteran expressed a clear intent to file for compensation. Additionally, if you have someone who was in the area, but their ship or their disease is not on the presumptive list, it can still be important to file, as these lists are being updated. If the list is later updated, you can have a claim that extends back to the original application date (even though it got rejected) instead of just starting with the later application date which could be years later. This can be as simple as a written statement to the VA (and delivered to them) that says “I believe I have a compensation claim resulting from my time in the military.” This by itself would be obviously be insufficient to have a successful claim, but should be able to hold the date of intention if expanded with a complete application, medical records, etc.
38 CFR 3.307(a)(6)(iii)