Tag: Individual Unemployability

Special Compensation Types Available to a Veteran: TDIU, CRSC, and SMC

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After you receive your rating decision and are awarded service connection by the VA, you may think you’re finally done with your fight.  For many, that may be just be the case.  However, there are other types of compensation available if you meet certain criteria.  These are Total Disability based on Individual Unemployability (TDIU), Combat Related Special Compensation (CRSC), and Special Monthly Compensation (SMC).   Each of these requires specific criteria to qualify and each are routinely overlooked.

With that in mind, a brief overview of each of these is warranted.  TDIU, much like your standard VA compensation, is based on the veteran’s ability to work.  The VA rates disabilities based on how they affect a veteran’s earning capacity.  TDIU (or IU) is also based on this, but is similar to “gap insurance” that you would purchase for your car.  When rating TDIU, the VA must review if the veteran is capable of holding “substantially gainful employment.”  If his disability prevents this, he can receive 100 percent compensation even though his disabilities are not rated as such.  This is discussed in much further detail in the links above.

CRSC is another additional benefit that is available to veterans.  CRSC was created for veterans with “combat-related” disabilities.  It is a tax free entitlement that is paid along with any other retired pay or disability that you may already be receiving.  (It is important to note that CRSC is not a VA benefit, but is instead provided by the Department of Defense).  If a veteran qualifies for CRSC, DFAS will audit his account to determine if he is due retroactive benefits.  To qualify for CRSC, a veteran must:

  • Be entitled to and/or receiving military retired pay
  • Be rated at least 10 percent by the VA
  • Waive your VA from retired pay
  • File a CRSC application with you Branch of Service.

The third type of compensation mentioned above, and the focus of this post, is SMC.  SMC is meant to provide additional compensation to veterans for their impairments in daily life.  Whereas the other compensations are based on the veteran’s earning capacity, SMC is meant to compensate for non-economic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability.  SMC comes in a variety of flavors, and each is identified by a letter between (k) and (s), and each of these letters relate to a different monthly compensation rate.

SMC monthly rates start at an addition $99 per month for SMC(k) and increase from there.  One type.  A type of SMC that is especially helpful for veterans is SMC(s).  SMC(s) is available when a veteran (1) has a 100 percent disability rating and another disability at or combing to 60 percent or more, or (2) who is substantially confined to his dwelling or immediate premises as a result of a service connected disability.  It is important to note here that the VA has a tendency to add the housebound requirement to (1) which is the wrong way to interpret the statute.

In regard to the 100 percent rating mentioned, it is important to note that TDIU mentioned above also counts as 100 percent for purposes of SMC(s).  As stated in the discussion of TDIU, it is a gap filler can elevate a lower percentage to a higher percentage for compensation purposes.  However, because that disability has been used to get to 100 percent, it cannot be used for the additional 60 percent requirement.  An example would be, a veteran can be rated at 60 percent for his PTSD and be granted TDIU based on his PTSD.  The PTSD is then, for SMC purposes, considered to be a 100 percent rating.  The veteran must have another disability at or totaling to 60 percent to qualify for SMC(s).  The “totaling to” language follow because multiple disabilities can be combined to a single percentage because of a common core.  An example of this would be a limp on the left leg causing problems with the right leg, these can be combined for rating purposes because there is a common etymology.

The third type of SMC to discuss today is Aid and Attendance (A&A).  To qualify for A&A benefits, a veteran must show that he requires regular assistance and not necessarily constant assistance of another.  A&A is meant for a veteran that needs help performing everyday living activities, or protecting himself from hazards of his daily environment.  The VA must consider a veteran’s personal functions and connection with the veteran’s condition as a whole.  A veteran should also receive A&A when he is bedridden because of his service connected disability or disabilities, he is a patient in a nursing home because of mental or physical incapacity, or is blind (or nearly blind to have 5/200 vision in both eyes).

The VA is supposed to consider whether a veteran is entitled to both SMC and TDIU whenever the evidence before them shows potential entitlement, however, it has tended to overlook these issues on a regular basis.  Therefore it is important to know if you qualify for SMC or TDIU to get the benefits owed to you.  It is likewise important to ask questions regarding this of your representative or the VA.

Author Nicholas Simpson, Hill & Ponton, P.A. Attorney

VA Benefits – How the VA Rates Disabilities

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When a veteran applies for disability compensation benefits, the VA has to decide if the veteran is eligible and entitled to those benefits and how much they can receive. The VA’s initial decision is called a Rating Decision, where the veteran is assigned a percentage for their service-connected disability that determines how much monthly compensation they will receive.

In order to determine how much compensation the veteran is entitled to, the veteran is assigned a rating. The rating is a percentage, ranging from 0% to 100% and increasing in increments of 10%. The VA rates mental and physical conditions based on the average decrease in earning capacity due to that condition. The VA rating system is meant to be a way to compensate veterans for a loss they suffered in service that decreases their ability to earn a living for themselves and their families. The higher the degree of disability, the greater the compensation because the more severe the condition, the greater the impact it has on the veteran’s ability to earn a living.

The goal for most veterans is a 100% disability rating, also known as total disability rating. This rating entitles the veteran to the most amount of money (currently $2,906.83 per month) because they are considered totally disabled. If the disability would make the average person incapable of work, a total rating is assigned, even if the veteran is working. The other way to get total disability rating, without reaching 100%, is through individual unemployability.

On the other side of the spectrum, the VA can assign a 0% rating, or a noncompensable rating. 0% does not qualify the veteran for monthly compensation, but it does have its advantages.  A noncompensable rating establishes service-connection, preserves the right to seek higher compensation if the condition gets worse, and entitles the veteran to other benefits such as preference in federal/state jobs.  If the veteran has two or more separate noncompensable service-connected disabilities, the VA can grant a 10% disability rating.

The rating schedule, which can be found here, lists all types of diseases and conditions that tend to result from military service. The ratings are categorized by body system, with each system containing a series of diagnoses and each having its own numerical code. This numerical code is called a diagnostic code, which is then assigned a percentage, and each percentage has a designated compensation amount. For each degree of disability, there is a description of the symptoms the veteran must have in order to qualify for that evaluation. The degree of disability increases with the severity of the symptoms.  The rating board will determine the severity of the symptoms and the appropriate rating for the veteran based on the evidence provided, such as service records, medical statements, buddy statements, and VA examinations. This is why it is so important to get the right evidence into the VA so they can make the right decision and assign the highest rating possible. The goal is to prove the highest level of severity in order to get the highest rating and receive the most compensation.

The VA is supposed to choose the diagnostic code with the highest evaluation under which the veteran qualifies, and avoid evaluating the same disability under different diagnostic codes. When there are two different evaluations to apply, the VA will assign the higher rating of the two if the disability meets the criteria for the higher rating (if not, the lower rating will be applied).  Not all disabilities are listed in the rating schedule, so when the condition is not included, it will be rated under a closely related disease or injury. This is known as an analogous rating. The analogous condition should affect similar functions in the same part of the body and have similar symptoms.

When there are two separate disabilities, the overall percentage is determined by combining the individual ratings, not adding them together. The VA does this by considering each disability in order of severity, beginning with the highest evaluation, and subtracting that from 100%. The number that remains is what the VA considers the remaining healthy part of the veteran, so the next disability is subtracted from that remaining number. The result is then rounded to the nearest tenth. For example, if there are two disabilities rated at 50%, the first 50% is subtracted from 100%. The second disability of 50% is taken from the remaining 50%, resulting in 75%, which is then rounded to 80%. For a more detailed explanation with examples, click here and here. There is also an app that can help you calculate combined ratings called VetCalc that can be downloaded in the App Store.

If you do not agree with what the VA has decided and you think you are entitled to a higher rating, you can appeal your decision. Find out how to do so by clicking here.

Author Melanie Franco, Hill & Ponton, P.A. Attorney

Veteran Benefits: Veteran’s Application for Increased Compensation Based on Unemployability – Submitting VA Form 21-8940

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Individual Unemployability (IU), also known as Total Disability based on Individual Unemployability (TDIU), is a total disability rating based on a veteran not being able to secure substantially gainful employment. Substantially gainful employment is an occupation where an individual can earn a living wage above poverty level. Poverty level is defined by the U.S. Census Bureau as the poverty threshold for one person, and is currently $11,770.  When a veteran cannot gain or keep a job where they earn a living wage because of their service-connected disability, they can apply for IU. For information on how to qualify for IU, click here and here.

To apply for IU, a veteran must fill out and submit the VA form 21-8940. Although filling out this form can be confusing, it is what your claim will be based on so it needs to be filled out accurately. Below is an explanation of a few of the trickier sections of the form and how to avoid having your claim denied based on these. To view the form and follow along as we walk through the sections, click here.

Section I asks about the veteran’s disability and medical treatment. Block 6 should state what service-connected disability prevents the veteran from working. If the veteran has only one service-connected disability, it is presumed that disability causes the veteran’s unemployability. If the veteran has multiple service-connected disabilities, it should be indicated which disability causes the unemployability. Not specifying which service-connected disability causes the unemployability could risk having the application denied.

Blocks 7-11 refer to whether the veteran is under a doctor’s care and/or has been hospitalized within the last 12 months.  Block 8 should state the frequency with which the veteran visits the doctor (once a week, twice a month, etc.), as well as the start date of treatment if it is known. Block 9 asks for the name and address of the doctor. If it is a VA clinic, the name, city, and state of the clinic will suffice. If it is a private doctor, indicate the name of the doctor as well as the address. Remember this information refers only to treatment for the service-connected disability listed in Block 6.

Section II requires employment information. Block 12 asks for the date the veteran’s disability affected their full-time employment. An example of this would be if the veteran had to switch from full-time to part-time work because of their disability, indicate the date this occurred. Block 13 asks for the date the veteran last worked full time, which would be the date the veteran’s full-time employment ended. Block 14 asks for the date the veteran became too disabled to work at all and had to stop working completely because of their disability, referring to part-time or self-employment and not just full-time. These dates may all be the same, or may vary depending on each case and disability.

Block 16 should list the employment information for the last 5 years that the veteran worked. This does not mean the last 5 calendar years, but the last 5 years in which the veteran was working. It is very important to include accurate information and addresses because the VA will send requests of employment records to some or all of the employers listed. If there is an employer that moved or is no longer in business, it should be indicated on the form. This list should also include self-employment that meets the minimum amount required by the IRS to report. Block E asks for time lost from illness, which refers to any time the veteran had to miss work because of doctor appointments or absences for being too sick to work.

Section III and the rest of the form are self-explanatory, but for more help click here. It is important to note that the form must be signed by the veteran; it cannot be signed by a third party source, such as a power of attorney. Remember, it is essential to include accurate information because the VA will be using this form to decide the veteran’s qualifications for IU.

Author Melanie Franco, Hill & Ponton, P.A. Attorney