Service-Connected Disability Compensation Benefits
Overview
Compensation benefits are paid by the Department of Veterans Affairs to a veteran due to a disability that occurred while on active military duty, or to a surviving spouse, child, or parent of a veteran because of the service-connected death of the veteran. If the veteran was discharged or released from service, the discharge or release must have been under conditions other than dishonorable. 38 U.S.C. § 101(2), (13).
Ratings for disability can be from 0-100% percent based on VA medical evaluation. Basic Compensation entitlement exists for a veteran if the veteran is disabled as the result of a personal injury or disease (including aggravation of a condition existing prior to service) while in active service and the injury or the disease was incurred or aggravated in the line of duty. 38 U.S.C. § 1110,1131. An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to Compensation based on disability evaluated as 30 percent or more disabling. (38 U.S.C. § 1115).
Ratings for disability can be from 0-100% percent based on VA medical evaluation. Basic Compensation entitlement exists for a veteran if the veteran is disabled as the result of a personal injury or disease (including aggravation of a condition existing prior to service) while in active service and the injury or the disease was incurred or aggravated in the line of duty. 38 U.S.C. § 1110,1131. An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to Compensation based on disability evaluated as 30 percent or more disabling. (38 U.S.C. § 1115).
The Legal Theory
The legal theory behind Compensation is based primarily upon an average impairment in earning capacity; that is, upon the economic or industrial handicap which must be overcome due to the injury or impediment. Total disability (100% rating) will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability is reasonably certain to continue throughout the life of the disabled person. (38 C.F.R. § 4.15.). Age cannot be a factor in the VA's decision.
Total Individual Un-employability
VA may grant “non-schedular” total disability ratings for compensation, where the actual clinical disability (“scheduled rating”) is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. This is termed “Total Individual Un-employability” or “TIUE”. If there is only one such disability, this disability must be at least 60 percent disabling or greater. If there are two or more disabilities, one disability must be rated at 40 percent or more, and sufficient additional disability exists to bring the combined rating to at least 70 percent. Disability to bodily systems (arms, legs, etc.) are considered as a group. Marginal employment is not considered substantially gainful employment. The VA’s established policy is that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. (38 C.F.R. § 4.16.). Age cannot be a factor in these decisions.
Our Focus
EVLAG will investigate our client’s individual circumstances to determine if a case can be made for a higher rating of disability based on the VA’s clinical schedule or if a viable case can be made to increase Compensation to 100% based on TIUE. A rating of total disability under Compensation can pay over twice as much as simple Pension. For this reason, EVLAG always pursues Compensation increase first before any evaluation of Pension eligibility is performed.
Note that, unlike Pension, Compensation is not dependent on income, assets or when the military service occurred (wartime or peacetime.)
Note that, unlike Pension, Compensation is not dependent on income, assets or when the military service occurred (wartime or peacetime.)