VA Duty to Maximize

The VA Duty to Maximize is just one of the many legal duties the VA owes to Veterans. Setting aside the fact that the VA’s legal duties are treated more like “if-you-cans” than legal obligations, the Duty to Maximize is often overlooked in the VA disability compensation claims and appeals process.

Why is it overlooked?

Because it is hard to understand what exactly it means. Or so the VA will tell you.

Honestly, the VA will tell you that about all their legal duties: whether it is the duty to assist, the duty to notify, the duty to apply the benefit of the doubt or the duty to expedite your VA disability compensation claims, they make them so complex that they become impenetrable.

Or, like a petulant teenager, they shirk compliance with their duties by arguing its “just too hard” to comply with the duty for all veterans.

To understand the concept of the Duty to Maximize VA Benefits, we need to first explore a couple of “First Principles.”

What’s a “First Principle”? They are the foundational concepts on which an entire system rests.

For example, in American government, a “First Principle” is the separation of powers between the branches of government. Before one can truly understand how our system of government works, and how it has survived for nearly 3 centuries, one must understand the different roles and functions of Congress, the Executive Branch and the Judiciary.

Same thing with VA disability benefits.

If you understand the purpose of VA benefits and the scope of a VA claim, then you have a real sense of what the VA should and should not be doing for (or to) veterans.

Principle #1: What is the Purpose of the VA Disability Benefits system?

In the civilian workforce, if you are disabled on the job, your employer can be liable for damages – loss of wages, compensatory damages (monetary and non-monetary), punitive damages, etc.

Not so when you sign the dotted line to serve in the military. Not because of any noble concepts of sacrifice or service.

One of the oldest legal principles in Western law is that, unless the government consents to being sued, it cannot be sued. This concept, known as sovereign immunity, is particularly true in matters related to the military. We don’t want Congress, the President or judges inserting themselves into military discipline, and so we don’t allow service-members to sue the government for injury in military service, with rare exceptions.

One of the exceptions to the doctrine of sovereign immunity is the VA Disability compensation system. The government has acknowledged that it is patently unfair for service-members to make a sacrifice that less than 1% of our country makes, and then leave those service-members high and dry when they are unable to earn a living wage after their time in the military.

So a First Principle – if not THE first principle underlying the VA disability system – is that benefits are meant to off-set the loss of earning capacity that results from injuries suffered or diseases incurred in military service.

That comes straight from the mouth of Congress:

“For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.  38 U.S.C. §1110.

AND

“The Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall  be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.” 38 U.S.C. §1155.

Reduced to its essence, this is the VA disability compensation system: for current disabilities that are related to military service, the VA is supposed to pay the veteran for the average impairment of earning capacity in a civil occupation.

Put a pin in that and remember it. It’s important.

Principle #2: What is reasonably encompassed in the scope of a VA Claim?

The second principle that helps us understand the VA’s duty to maximize benefits involves an understanding of the answer to this question:

When you file a VA disability claim, what exactly are you seeking?

If you ask a VA employee, they will often tell you that a claim includes only those benefits which you claimed in writing and for which you expressed an intent to claim benefits.

In reality, though, those are the elements of an “informal claim” which has nothing at all to do with the scope of a formal claim for benefits.

What then, is included in a claim for benefits?

It’s simple: any benefit that will help reduce the impairment in earning capacity that results from “injury incurred” or “disease contracted” in military service.

If you are a subscriber to the Veterans Law Blog®, then you have access to a substantial library of video and ebook training. One of the video training modules teaches you “How to Prove Service Connection in a VA Claim.” 

This is the course I teach to attorneys – I will spend over 5 hours teaching you the ins and outs of proving your VA service connection claim, and provide you with several worksheets, checklists, and forms to help you. 

To find this course, subscribe to the Veterans Law Blog® on a monthly or annual basis, then click on “My Courses” in the upper left corner of your browser window, and you will find all the courses.

Here’s a short  – and non-exhaustive – list:

  1. Service connected disability compensation for primary conditions. This is the basic benefit that most veterans think they are seeking when they file a claim.
  2. Secondary service connection for disabilities resulting from, or aggravated by, primary conditions. Often considered one of the 5 paths to proving service connection, secondary service connection is so much more. If you file a claim for Condition A, and evidence developed during the claim demonstrates that Condition B is caused or aggravated by Condition A, your original claim for Condition A reasonably encompasses a claim for Condition B. Read more about secondary service connection here.
  3. Non-Service Connected pensions.  If you are not eligible for VA disability compensation benefits because your symptoms are not service connected, the VA is supposed to consider whether or not you are entitled to a “non-service connected pension,” which is payable to certain “wartime veterans,” whose income is below certain levels, are over the age of 65, or are under the age of 65 but totally and permanently disabled by a non-service connected disability.
  4. Analogous ratings. Also known as “rating by analogy,” when your condition or symptoms do not appear on the VA’s schedule of ratings, the VA must consider whether – and how – your condition is analogous to other conditions on the VA Disability Schedule of Ratings.
  5. Multiple ratings for a Single disability. The VA often dodges this issue, by claiming that giving you multiple ratings for the same disability is unlawful “pyramiding” of benefits.” The distinction is that the VA must rate ALL of your symptoms for a single disability – if those symptoms are not on the schedule of rating for that particular disability, the VA should be looking to other diagnostic codes to rate those symptoms.
  6. Increased Ratings. The VA must pay you additional disability compensation for any increase in severity of your currently service connected conditions. This increase in severity can include increases in frequency, duration, chronicity of current symptoms; increases in severity manifested by new symptoms; increases in severity manifested by new medical conditions, and more. (If you are reading this and thinking that a claim for secondary service connection of a new condition is included in a claim for an increased rating, you are beginning to understand how the Duty to Maximize works.)
  7. Total disability compensation payments based on individual unemployability (TDIU).  When a veteran’s service-connected disabilities inhibit their ability to get and keep substantially gainful employment, the VA is supposed to give you a 100% rating based on individual unemployability.
  8. Additional Monthly Compensation for Dependents.  To offset the costs incurred by veterans with dependents whose income is limited by their service-connected disability, the VA is supposed to pay an additional monthly benefit to veterans with certain types and numbers of dependents. Currently, these benefits are payable only to veterans who have a “Leave it to Beaver” family: if you are a 100% disabled veteran raising your grandkids because their mom and/or dad died in Iraq or Afghanistan, no benefits for you. (We’re working on changing that…but if you believe that the VA denied you additional monthly compensation because of the unique structure of your family, please reach out to my law firm, as we are working to change this law).
  9. Special Monthly Compensation (SMC).  Special Monthly Compensation (SMC) is a benefit paid above-and-beyond your current schedular impairment rating  who lost – or lost use of –  specific organs or extremities in military service. For example (another non-exhaustive list), you may be entitled to SMC for loss, or loss of use, of hands, feet, sight, buttocks, reproductive organs, breasts, the major senses (speech, smell, sight), aid-and-attendance, and/or paralysis. You may also be entitled to SMC for combinations of disability ratings, or combinations of SMC ratings. SMC is incredibly complex, so this is one of those times you may want to ask a lawyer for help with ensuring the VA pays it properly.
  10. Extra-schedular ratings. When the VA rating schedule does not properly compensate a veteran for the frequency, severity and duration of a service connected disability, the VA is required to consider an “extra-schedular” rating. You can learn more about 38 CFR 3.321(b) and extra-schedular ratings by clicking here.
  11. Effective Dates. In addition to service connecting your disabilities incurred in, or aggravated by, military service, and in addition to giving you the highest rating possible, maximizing your VA disability benefits requires that the VA give you the earliest possible effective date for your VA claim or appeal.
  12. Dependents Educational Assistance (DEA). Certain veterans will have survivors or dependents who are eligible for Dependents’ Educational Assistance (DEA). The DEA programs offers education and training opportunities to eligible dependents when the qualifying veteran was permanently and totally disabled due to a service-related condition or died while on active duty or as a result of a service-related condition.
  13. DIC and Accrued Benefits. Another benefit available to certain survivors (dependent parents, children, and spouses) are the DIC pension and/or accrued benefits. You can read about both of these benefits by clicking here.

The VA Duty to Maximize Benefits.

The VA duty to maximize benefits is the child of those two principles: it is the embodiment of the idea that the VA is supposed to compensate veterans for all loss of earning capacity that is reasonably encompassed or raised in a particular claim for benefits.

Remember I told you to hold on to an idea earlier? The idea that the VA Disability compensation system is supposed to compensate the veteran for the average impairment of earning capacity in a civil occupation?

This is a good rule of thumb. If your VA disability (or a non-service connected disability affected by a VA disability) is keeping you from reaching the earning capacity of the average individual in your occupation, then there is a good chance that the VA is overlooking one of the benefits on the list above in your claim or appeal.

Now, I’m not saying that your VA disability benefits should match your ideal individual earning capacity. Just the average. And it won’t be a dollar-for-dollar match. But if you are unable to work because of your hearing loss from your time in the artillery, but are only receiving a 10% service connected disability rating, then something isn’t adding up – and I suspect there is a benefit on the list above that, if the VA considered its Duty to Maximize, would have been developed and decided in your VA claim or appeal.

One last thing – don’t expect the VA to fulfill its Duty to Maximize for you. If the VA has a legal duty, there is a good chance that you are better off ensuring that your VA claim or appeal has afforded you the maximum benefits possible. If not, keep appealing or filing supplemental claims until it does.

Isn’t this all a little “thinky” for VA disability claims?

Yes…what separates the Veterans Law Blog® from other fly-by-night snake oil salesmen who claim to be VA claims insiders, but who aren’t accredited, aren’t licensed to practice law, but who really want your money.

When you subscribe to the Veterans Law Blog®, I will begin to teach you the law of VA claims and appeals.

I don’t want your money. As many of you know, it is really hard to get representation in a claim at my law firm – I’m not in this for the money. I’m in it to fix the system for my brother and sister veterans.

Now, the Veterans Law Blog® does charge a subscription to cover the cost of providing this knowledge, but that is it.

No pledging your benefits for “elite” status in some vague club…no paying us for experts with dubious credentials…no fees for us to fill out forms you can fill out yourself.

Simply subscribe, and start learning. I’ll teach you not just the law of VA claims and appeals, but I’ll also teach you my 8-step process for improving your OWN VA Disability Claim or Appeal.

So what is the practical benefit of the information in this post?

If nothing else, when you get a VA ratings decision, look through the list of benefits that are reasonably encompassed in your VA claim and make sure that the VA has awarded all that you are entitled to.

If not, consider a supplemental claim or an appeal to the BVA.

 

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