Being a disabled Veteran
Being a disabled Veteran. What does that mean? Does it mean being immobility impaired or just having a handicap? Or does it mean no longer being able to function in society? There are a lot of mixed attitudes and conceptions as to this question. Hopefully, this article can help in us getting an understanding as to this question of “being a disabled Veteran.”
The federal government has a law about who and what it means to be an adult with a disability. The law is the Americans with Disabilities Act (ADA). The ADA says a disability is “A physical or mental impairment that substantially limits one or more major life activities of such individual.” Sounds straight forward. Anything that hampers a major life activity. What about a minor life activity? Ok, what is a life activity and what makes it major or minor? The ADA defines a major life activity as “An activity that an average person can perform with little or no difficulty.” So basically, anything you do as a human being is a major life activity. Nothing we do is minor.
A problem is the ADA does not actually define “disabled.” It talks about having a disability and not being disabled. So, what is the definition of “disabled?” Websters Dictionary defines disabled as “impaired or limited by a physical, mental, cognitive, or developmental condition affected by disability or incapacitated by illness or injury;” while the Cambridge English Dictionary defined disabled as “having an illness, injury, or condition that makes it difficult to do some things that other people do or injury lacking one or more of the physical or mental abilities that most people have.” Given these definitions, and what the ADA says, if a Veteran has sinusitis rated at 0%. Is that person a disabled person or is he a person with a disability? When does the Veteran get to say he or she is disabled? If the ADA only concerns itself with discriminating against a person with a disability; making sure the person gets access to facilities and, can have a job and keep one only. Who gets to say you have a disability in the first place? For Veterans, it is the VA.
The VA looks at a Veteran being disabled in the context of ability to work. This is what the VA says in the 38 Code of Federal Regulations (CFR) Part 4, Paragraph 4.1
“The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.”
And 38 CFR 340(a) states,
“Total disability 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. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.”
Subsequently, the VA says a Veteran is permanent and totally disable as follows from 38 CFR 340(b)
“Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence”
And the VA only gives Permanent and Total rating to those who meet 100% by the rating scale. Once in a while, they will for those on TDIU, but will not actually rate them 100% by the ratings schedule. Go figure.
A point here is that the VA works off of the “whole person theory” and a person cannot be more than 100% able-bodied. Able-bodied means a fit, strong, healthy body with no physical disabilities. The VA provides percentages has to how much you are no longer able-bodied. This confusing to understand. If a Veteran is 70% rated for a mental health issue, then he or she is only 30% abled bodied. Wow! Only 30% abled bodied! And you can work! But what happens if the VA gives a mental health rating of 0% or more practically sinusitis at 0%. This means the Veteran is still 100% able-bodied, but does the Veteran not have disabilities? Well, it has nothing to do with justly compensating you for your injuries sustained serving our country. It’s about a Veteran being able to successfully work or not. A Veteran can be rated at 94% (rounded down to 90%) meaning he or she is actually 6% abled bodied or 10% on the round down. And the Veteran can gainfully work 8-12 hours a day like a person who is 100% abled bodied, no problem. Really, and the Veteran has to show he or she is disabled and cannot work, from his or her service-connected disabilities and petition to be paid at 100%. Can you imagine how bad-off a Veteran disability-wise is to get 100% P&T from the combined ratings table as is?
Then there is the Social Security Administration. Veterans are also citizens who paid into the program like everyone else. The SSA also defines disabled 20 CFR Part 416, Paragraph 416.905
“The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”
Here the SSA says it is “substantial gainful activity.” What is substantial gainful activity? The SSA says in the same paragraph “To meet this definition, you must have a severe impairment(s) that makes you unable to do your past relevant work (see § 416.960(b)) or any other substantial gainful work that exists in the national economy.” And that cited paragraph 416.960(b) says “Past relevant work is work that you have done within the past five years that was substantial gainful activity and that lasted long enough for you to learn to do it (see § 416.965(a)).” And paragraph 416.965(a) says “Work experience means skills and abilities you have acquired through work you have done which show the type of work you may be expected to do. Work you have already been able to do shows the kind of work that you may be expected to do.” [and down the rabbit hole we go!] What happens if you were an artillery specialist or infantry. Your job was to attack and eliminate the enemy. How does that fit into the national economy?
Both the VA and SSA deal with disability in terms of a Veteran and a person’s ability to work. You can work, you are not disabled. Can’t work, you are disabled. This shows the schism within the federal government. The ADA says if an impairment impacts a major life activity (anything we do), you are disabled. However, the SSA says if you have a disability but it is not severe enough to impact gainful activity, then you can work and not disabled. The VA goes along with the SSA, but the disability must be service connected and at a percentage level to say you are disabled.
Why is it important to Veterans to be labeled disabled. Benefits. States All states have something for the 100% rated Veteran though. A 100% rated Veteran can get health insurance for his family, but the Veteran who is actually rated at 94% cannot. A 100% rated Veteran can get education benefits to his family, but a 94% rated Veteran cannot. Why? It is because a 100% rated Veteran is considered disabled and everyone else has what? “Issues?” Then there are tax breaks for disabled Veterans depending on the state you live. Some states give tax breaks on property taxes while others give tax breaks on license plate renewals. But the biggest one is the benefit of getting handicap license plates. In all states, a 100% rated Veteran can get Disabled Veteran license plates that allow him or her to park in disabled parking. Some do base it on your rating percentage too, so check your state laws on it. Great thing, right. But what if the Veteran who is 100% rated P&T by schedule can walk and is mobile, but a Veteran who is rated at 90%, but is actually 94% because he or she just cannot get that extra 10%, and has knee and hip ratings in the 20% must find parking in the back lot. Or even better, the Veteran who gets 100% for TDIU generally for mental health gets that special license plate too. Makes no sense right? A lot of people still believe the issuing of plates depends on if you are immobile or not. And who gets to judge that? [Doctors or VA adjudicators]
Being disabled for a Veteran also comes down to perception. The vast majority of Veteran feel they are disabled, but society in general may not. Society needs to see you physically struggle before agreeing you are disabled to accommodate the person. Even the VA and SSA must see you cannot work and not be a productive member of society before considering you are disabled. A Veteran who has 10% for his knee is not necessarily considered by the VA or SSA as disabled, but the ADA recognizes this person just needs a walk-up ramp to get into a building. Society does not understand the pain in the knee at 10%. Even the VA had to be ordered by the federal courts to recognize pain as part of a disability rating.
So, concluding the question, “What does it mean to be a disabled Veteran?” It depends on the importance of the label “Disabled.” Why is it important? It is because the vast majority of Veterans did not get his or her disability from an accident, getting old, or straight natural occurrence. The Veterans got their disabilities doing something only less than one percent of their generation did…. join the military, serve their county faithfully, go to war for it…and get injured in the process. Maybe this is why Veterans feel they deserve more than a “Thank you for your service,” cliché, and want true recognition from their country of their injuries.
