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A Veterans Benefits Raters View

“First, allow me to introduce myself with some background info. I am a veteran, a nurse, a woman, and decide VA disability claims.” Author Unknown I share many of the frustrations of veterans when I see claims that have not been properly or expeditiously decided. It is my mission to correct these where possible. I have called errors on prior decisions and awarded benefits back to the original claim date. I’m sure that I also have made errors and hope others have caught and corrected these. Please keep in mind that this is my personal perspective. I have no authority to speak for my Regional Office or any other.

That said, I would like to :

1) share some insight on how veterans can help themselves to get their claims through the system as quickly as possible.

2) share some of my frustrations with many system clogging claims that I get and must address.

First, here’s some general info on claims processing steps in my office:
Next, for claims, the veteran’s C-file is retrieved from the files and is sent to the development section. Development then sends a letter acknowledging receipt of the claim and lists the claims. This letter should also include release of information form(s) 4142 so that private medical records (not VAMC) that the veteran says are relevant to the claim can be obtained. When the veteran returns the signed forms, the VA contacts the care provider by mail requesting the records. Sometimes we receive no response and must request the records again. This also delays the decision process. Please be aware that many VA Regional Offices, including mine, receive thousands of pieces of mail every day. Each of these must be stamped with the date received. This takes time.

When all records are received, or it is determined that records are not obtainable, the claim goes to the Rating Board.

1) Hints I hope are helpful:

– Be clear about what it is you are claiming. VA policy says that we must respond with a letter acknowledging and listing your claimed conditions or conditions for which you are claiming an increase. If we need to ask for clarification, it just slows the process. Example of unclear claim: “nerve condition” This could mean nerve damage or a mental condition. Please be specific.
– Put your claimed conditions where they can be found, at the beginning. The development people are buried in paper. A rambling explanation with claims hidden in lengthy text can get missed. I can’t count the number of times that I’ve had to send a claim back to the development section for another letter to the veteran acknowledging the missed claim. Another delay.

– I understand that some veterans cannot afford to pay for copies of their private medical records. However, if at all possible, include copies of relevant medical records with your claim. It really does speed the process. We have to give the doctor or hospital 60 days to respond to our request before sending a second request. They have 30 days after that. If they don’t respond, we do no more because it is ultimately the responsibility of the veteran to provide relevant private records.

Relevant is the key. I go through every piece of paper sent in support of the claim. If for instance, you are claiming knee problems, your psychiatry records, gynecologists records, billing/insurance statements, etc are not needed and just slow my ability to decide the claim. More is not better, relevant is.
Help us to help you. Do get copies of your service medical records and service personnel records when you are discharged or from the National Personnel Records Center (NPRC). If VA has them request copies. It’s free folks. It just takes a bit of effort on your part. Yes, VA and other agencies do lose/misfile records. It stinks, but this is the reality of any monstrously huge agency such as VA and NPRC. Without these records, my hands are tied. I may personally believe you, but I must have in-service medical evidence for most claims.
Don’t send in additional claims before you get a decision on the initial or increase claim. Depending on the issues, this can cause the processing of your claim to be sent back to the beginning.

2) Frustrations:

Think before you claim. Is this really a disability? Is this a condition that occurred in service? I must address each claimed condition no matter what it is. We have daily production requirements. Therefore, a claim that has numerous issues, especially obviously merit less ones (more on that later), tends not to get handled as quickly.
Our office processes 600-700 claims per week. We come back to work on Monday, only to find that many or more new claims. Most of us are hard workers who care about the quality of our decisions. It is frustrating to be accused of delay tactics when the sheer volume of claims and the complexity of many claims makes it impossible to schedule a VA exam or render decisions as quickly as the veteran would like. I apologize to you, but I’m pedaling as fast as I can.- Most veterans are sincere and want only what they deserve. Some are in desperate financial shape and are hoping we can help. My heart and my best efforts go out to them. Others may not realize a claimed condition is not a disability. Others…. Here are just a few examples of some claims for disability that I have received which cause a slow down in an already overloaded system: compensation for a venereal disease contracted and cured in 1971, abnormal PAP smears (weird cells but not malignant or showing other disease); tubal ligation, circumcision, vasectomy (the last 3 are voluntary: and unless there were medical complications are not disabling); exposure to local people; my wife’s miscarriage; numbness of the legs due to spinal anesthesia administered in the 1960s (this from a veteran serving a life prison sentence. No spinal anything in service: but the prison treatment records show diabetes with leg neuropathy); claims for injuries, medical conditions, and diseases that occurred long after the veteran left service (that are not presumptive i.e.: Agent Orange, radiation related); claims for medical problems that occurred while a dependent spouse.
Veterans working for the VA do NOT have their disability claims rated by the Regional Office in which they work. We employee veterans do not even have access to our VA files. They are stored at another VA office. And, I can personally attest that military veteran VA employees do not get preferential treatment for their claims. It is my experience and that of others in my office that we go through the exact same process as other veterans. The difference is that we know what is required to get a claim decided more quickly. I’m glad to share with you and hope it helps.

Requesting A Copy of Your VA Claims Folder (C-File)

VA Claims Folders, the infamous C-File We can not stress enough how important it is to: View your VA Claims Folder at the Veterans Affairs regional office (find your Regional VA Office here) Call the VA at 1-800-827-1000 and request an appointment to view your C-File (VA Claims Folder).

Ensure that all the records in your VA Claims Folder or C-File are yours.
Check that everything you have sent to the VA is included in your VA Claims Folder.
After viewing your VA claims folder (c-file) and correcting any mistakes you may find, you should request a hard copy of your C-File.

If you’re having a difficult time obtaining your VA Claims Folder from your Regional VA Office, you can file a written Freedom of Information Act (FOIA) Request. See below for more information on FOIA requests.

When you apply for disability benefits, the VA creates a claims folder. Information you send to the VA, records the VA obtains on your behalf, and documents created by the VA are all in this folder. The claims file is commonly referred to as the “C-file.”

Requesting Your Claims File

Source: Nolo

If you have been denied disability, you will want to obtain a copy of your VA Claims file to obtain information that will help you in filing your appeal. Request it from the VA Regional Office where you submitted your claim for benefits. If you do not receive it in a timely manner, make a Freedom of Information Act (FOIA) request for the file. For more information about filing a FOIA request, see Nolo’s article on obtaining VA records. You are entitled to receive one copy of your claims folder for free.

Typical Documents in a VA Claims Folder

When you receive your VA Claims Folder, don’t be surprised if the documents are somewhat disorganized. Also, there may be several copies of documents even though you really only need one copy. It can take awhile to sort it all out. If you want some help with this, you may want to find a VA disability attorney to assist you.

Here are some basic documents you might find in your C-file if you have applied for VA benefits. This is not an exhaustive list but merely a description of the most common and important documents you should find in your file. If any of these documents are missing, you will want to obtain them. (See Nolo’s article on obtaining VA records for more information about how to do that.)

DD-214, Report of Separation From Service

This is a very important document. It includes information about your character of service, which can determine your eligibility for benefits. Your DD-214 will also include your dates of service, specialties, any medals received, and other information about your term(s) of service.

Application for Benefits

Any applications for benefits that you have previously made should be included in your C-file. This can be important if you did not keep copies before submitting an application.

Denial Letter, Ratings Decision, and Code Sheet

If you have been denied benefits, there should be a letter in your file notifying you of the decision to deny you benefits. Until recently, the VA also issued detailed ratings decisions explaining why benefits were granted or denied, and why certain ratings were assigned to service-connected disabilities. Now the ratings decisions do not provide much information and tend to be quite brief.

There should also be a code sheet accompanying the ratings decision. The code sheet contains information related to the ratings decision, such as the diagnostic code that was used to assign the disability rating. It also provides information about the effective date of benefits and whether a future reexamination will be required, as well as additional details about the decision.

If you are going to hire an attorney, one of the first things they will ask you for is a copy of the denial letter, ratings decision, and code sheet.

Service Medical Records

You may find copies of your service medical records in the file, if the VA requested these while gathering information to decide your claim. An important
document in these records is the report from your enlistment examination. This exam report contains information about whether you suffered from certain medical conditions at the time you entered service.

VA Medical Records

You can request your medical records directly from the VA Medical Center by requesting them in person or over the phone.

Your file may contain records from the VA Medical Center where you receive treatment, but it may not. Or, it may contain an incomplete set of your medical records. You can request your medical records directly from the VA Medical Center by requesting them in person or over the phone.

Compensation and Pension exam

Another document a lawyer will want to see is a copy of your compensation and pension exam report. This is the exam you went to where the VA doctor evaluated your disabilities and made a recommendation to the Veterans Benefits Administration about whether or not your disabilities were service connected.

Service Personnel Records

Your file may also include copies of your active duty personnel records. This will include information about where you served, copies of certificates for medals you received, performance evaluations, and other information.

Appeal Documents in a Claims File

If you have already filed an appeal and had an appeal denied, the following documents may be in your C-file.

The Notice of Disagreement you filed, telling the VA you disagreed with their decision.
Statement of the Case, a document describing in detail how the conclusions in the ratings decision were reached.
A transcript of a hearing before a Decision Review Officer (DRO) or the Board of Veterans Appeals (BVA), if you had a hearing.
Information about your representative or attorney (if you had one).

Regarding FOIA Requests

As of September 19, 2011, the Department of Veterans Affairs will accept FOIA requests electronically.

If you have a FOIA request that relates to the Department of Veterans Affairs — Office of Acquisition and Logistics — Procurement Policy and Warrant Management Services, please submit your requests to our FOIA electronic mailbox.

ALL other FOIA related information, as it relates to the Department may be accessed at the VA’s FOIA web site. Please read all applicable sections including but not limited to; “How to Submit a Request”, “Fee Information”, and “How to appeal a FOIA request”. FOIA information as it relates to the VA is also contained in a downloadable Requesters Reference Guide.

The Department of Veterans Affairs maintains a collection of documents that are available electronically on the Internet. These public records include VA statements of policy, staff manuals, as well as high-profile records that have been previously requested by another member of the public and is likely to become the subject of another FOIA request. It is likely that the information you seek has already been made available on the VA FOIA reading room.

You may view an index of records that have already been requested by members of the public via the VA FOIA Reading Room Frequently Requested Recordssection.

The OAL FOIA contact is Mr. Richard Ha.

Access a complete listing of the VA’s FOIA points of contacts and FOIA electronic mailbox addresseson the VA FOIA web site.

VA Regional Offices

From the VA’s Website:

VA Form VA-3288 Request For and Consent to Release Information from Claimant’s Records This is a fillable online form so you can type in your answers and then print it out. I recommend printing out 2 and save 1 copy undated and unsigned so if you have to use this form again make a copy sign and date it and put your original away again in case you need it. I recommend this for all forms. Issue Date: 05/12/2014 You can search for any VA form you need here.

Additional Form Resources:

Request for DD 214 or other Military Records NARA SF 180
GSA Library of Standard and Optional Forms
DD Forms Department of Defense Forms Program
SGLI/VGLI Insurance Forms (including SGLV8286)
All US Government Forms https://my.usa.gov

VA Disability Claims Process

What VA Does after It Receives Your Claim

After VA receives your Application for Compensation, it sends you a letter. The letter explains what VA needs in order to help grant your claim. It states how VA assists in getting records to support your claim. The letter may include forms for you to complete, such as medical releases. They help VA obtain pertinent medical records from your doctor or hospital. You should try to complete and return all forms VA sends within a month. Your claim can often be processed more quickly if you send a copy of your own medical records. This letter is often referred to as the Duty to Assist letter.

Hadit.com Tip

Before signing any forms once they are completely filled out. Make several copies to keep in your files in case the one you send gets lost, then all you have to do is sign it and send it in.

What Records VA Obtains to Support Your Claim

VA then attempts to get all the records relevant to your claimed medical conditions from the military, private hospitals or doctors, or any other place you tell them. The person who decides your claim (called a Rating Veterans Service Representative) may order a medical examination. This is referred to as a Compensation and Pension Exam. This examination is free of charge. It is extremely important that you report for your examination at the scheduled time to avoid delaying your claim.

What to Expect during the Medical Examination

You should expect the examiner performing your medical examination to evaluate the condition(s) listed on your claim for benefits. Depending on the number and type of disabilities claimed, the length of the examination will vary. Psychiatric examination or that for multiple disabilities requires more time to evaluate. The examiner may ask more questions about your disability history, review pertinent medical records, or order additional testing or examinations, if necessary. The examination will not include any form of treatment for disabilities or acute illnesses. Unless additional information, tests, or evaluations are needed, the completed evaluation will be documented and forwarded to the VA Regional Office for processing.

What VA Does after Obtaining Your Records

After the Rating Veterans Service Representative has attempted to secure all the records (or evidence) required by law (including the report of any examinations), he/she reviews your file and makes a decision on the claim according to the law and the particular facts in your case. In the rating decision, the Rating Veterans Service Representative lists the evidence, the decision, and the reasons for it. VA then sends the decision with a cover letter. If benefits are granted, the letter provides the monthly payment amount and the effective date. Payments usually begin soon after you receive the letter (see Disability Award Attachment Information). However, if benefits are not granted and you think the decision was in error, or if you think the percentage evaluation or effective date is wrong, you may appeal. see How Do I Appeal.

VA Disability Compensation Rates (Historic for Retro) 1974 – 2004

VA disability compensation rates listed below are for calculating your retroactive pay once you win your claim. For example if you were awarded 50% from 1997 to present you will be paid at the 50% rate for the corresponding year.

VA Disability Compensation – The VA disability compensation benefit evaluates disability resulting from all types of diseases and injuries encountered as a result of military service. The degrees of disability that are determined by VA represent, as far as can practicably be determined, the average loss in wages resulting from such diseases and injuries and their complications in civil occupations. Generally, the degrees of disability specified are also designed to compensate for considerable loss of working time from exacerbation or illnesses. Source of Data: Veterans Affairs Compensation and Pension Benefits Website

You may wonder how does the VA decide if I’m 70% or 30% well there are many reasons but let’s start with the basics and move on from there.

First your disability is listed in the law 38CFR4 Schedule for Rating Disabilities this document is dry reading but read it. It will list your disability/diagnosis and it will tell you what symptoms equal what percentage. Now the compensation and pension exam doctor will examine you and make notes indicating your disability and your limitations then a VA rater will look at the doctor results, look at the evidence, look at your claim (contentions) and look at the law and then make a decision. So the moral of the story spending some time looking at 38CFR4 Schedule for Rating Disabilities

While I’m here also check out the side effects of any medications you are on for your service connected condition. Those can be claimed also. You are your best advocate.

Research was unable to find rates for 1983 and 1999

Effective Date	10%	20%	30%	40%	50%	60%	70%	80%	90%	100%	Effective Date
5/1/1974	$32	$59	$89	$122	$171	$211	$250	$289	$325	$584	5/1/1974
8/1/1975	$35	$65	$98	$134	$188	$236	$280	$324	$364	$665	8/1/1975
10/1/1976	$38	$70	$106	$145	$203	$255	$302	$350	$393	$707	10/1/1976
10/1/1977	$41	$75	$113	$155	$216	$272	$322	$373	$419	$754	10/1/1977
10/1/1978	$44	$80	$121	$166	$232	$292	$346	$400	$450	$809	10/1/1978
10/1/1979	$48	$88	$133	$182	$255	$321	$380	$440	$495	$889	10/1/1979
10/1/1980	$54	$99	$150	$206	$291	$367	$434	$503	$566	$1,016	10/1/1980
10/1/1981	$58	$107	$162	$232	$328	$413	$521	$604	$679	$1,130	10/1/1981
10/1/1982	$62	$114	$173	$249	$352	$443	$559	$648	$729	$1,213	10/1/1982

4/1/1984	$64	$118	$179	$258	$364	$459	$579	$671	$755	$1,255	4/1/1984
12/1/1984	$66	$122	$185	$266	$376	$474	$598	$692	$779	$1,295	12/1/1984
12/1/1985	$68	$126	$191	$274	$388	$489	$617	$713	$803	$1,335	12/1/1985
12/1/1986	$69	$128	$194	$278	$394	$496	$626	$724	$815	$1,355	12/1/1986
12/1/1987	$71	$133	$202	$289	$410	$516	$652	$754	$849	$1,411	12/1/1987
12/1/1988	$73	$138	$210	$300	$426	$537	$678	$784	$883	$1,468	12/1/1988
12/1/1989	$76	$144	$220	$314	$446	$562	$710	$821	$925	$1,537	12/1/1989

1/1/1991	$80	$151	$231	$330	$470	$592	$748	$865	$974	$1,620	1/1/1991
12/1/1991	$83	$157	$240	$342	$487	$614	$776	$897	$1,010	$1,680	12/1/1991
12/1/1992	$85	$162	$247	$352	$502	$632	$799	$924	$1,040	$1,730	12/1/1992
12/1/1993	$87	$166	$253	$361	$515	$648	$819	$948	$1,067	$1,774	12/1/1993
12/1/1994	$89	$170	$260	$371	$529	$666	$841	$974	$1,096	$1,823	12/1/1994
12/1/1995	$91	$174	$266	$380	$542	$683	$862	$999	$1,124	$1,870	12/1/1995
12/1/1996	$94	$179	$274	$391	$558	$703	$887	$1,028	$1,157	$1,924	12/1/1996
12/1/1997	$95	$182	$279	$399	$569	$717	$905	$1,049	$1,181	$1,964	12/1/1997
12/1/1998	$96	$184	$282	$404	$576	$726	$916	$1,062	$1,196	$1,989	12/1/1998
12/1/1999	$98	$188	$288	$413	$589	$743	$937	$1,087	$1,224	$2,036	12/1/1999
12/1/2000	$101	$194	$298	$427	$609	$769	$969	$1,125	$1,266	$2,107	12/1/2000
12/1/2001	$103	$199	$306	$439	$625	$790	$995	$1,155	$1,299	$2,163	12/1/2001
12/2/2002	$104	$201	$310	$445	$633	$801	$1,008	$1,171	$1,317	$2,193	12/1/2002
12/1/2003	$106	$205	$316	$454	$646	$817	$1,029	$1,195	$1,344	$2,239	12/1/2003
12/1/2004	$108	$210	$324	$466	$663	$839	$1056	$1227	$1380	$2299	12/1/2004
Effective Date	10%	20%	30%	40%	50%	60%	70%	80%	90%	100%	Effective Date

Historical Rate Tables

VA Disability Compensation Rates 2012 | 2011 | 2010-2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | 1999

Statement of the Case Example – How to Read and Understand this VA Form (Video)

After the VA receives a NOD from a veteran, it will prepare the Statement of the Case (SOC) for all issues that were not granted service connection or the maximum rating. The SOC is an explanation of the decision, including a cover letter that gives instructions about the appeal process. Also included in the SOC is a list of the issues being decided in the claim, a summary of evidence, the pertinent laws and VA regulations that relate to the claim, and the decision and reasoning behind each issue. The SOC may include helpful information in order for the veteran to prepare his or her appeal, but the most important thing to remember about the SOC is that the veteran has 60 days from the date of the SOC cover letter to send in VA Form 9, which is the substantive appeal. Failure to respond to the SOC within 60 days by filing VA Form 9 may result in the appeal being closed and the decision becoming final.

Statement of the Case Example Source: Attig Law Firm Statement of the Case Example – How to Read and Understand this VA Form

After watching this video, you will have learned:

How to calculate the CORRECT deadlines for filing your VA Form 9 Appeal to Board of Veterans’ Appeals
What a Statement of the Case looks like.
The 4 Parts of the Statement of the Case that you NEED to understand and verify
Tips to make your arguments in your VA Form 9
Appeal to Board of Veterans’ Appeals BETTER based on what you read on the Statement of Case
How to tell if the VA made some basic errors in denying your claim.
Much more!

6 Reasons to Keep Pursuing VA Claims and Appeals – AFTER you reach 100%

Today, I want to talk to you about a question that a lot of Veterans ask me: If I get a 100% rating, should I continue fighting the Veterans Affairs for benefits? Let’s jump right into the answer. Many Veterans perceive the 100% rating as the end of the line. The sign of victory over the Hamster Wheel. But….….is it REALLY over when you get to 100%? Well, the hard part sure is over….but I think that there are several reasons to keep on fighting – even after you reach the 100%. Let me tell you about 6 of those reasons…[Reprinted here with permission from Veterans Law Blog ]

Scenario #1: 100% TDIU May Not be Permanent.

There are several paths to a 100% rating in VA Compensation – one of the most common is the TDIU 100%.

TDIU – also known as “Total Disability Individual Unemployability” – is a 100% rating awarded when a Veteran’s service connected disability (or a combination of disabilities) renders that Veteran unable to procure substantially gainful activity. You can read more about TDIU on the Veterans Law Blog, or download my VA TDIU Field Manual eBook.

When a Veteran is awarded TDIU, there is no guarantee that TDIU 100% will last forever.

In fact, if the Veteran does not submit the annual income statements, or if the VA gets evidence that the Veteran is engaged in substantially gainful employment, the VA could reduce the Veteran’s rating to the combined rating in place prior to the TDIU grant.

It is almost always preferable to have a schedular 100% – meaning that your 100% rating is based on the schedule of impairment ratings for disabilities, and not on the circumstances of your employment.

So, even if you get approved for 100% based on TDIU, you might want to give serious consideration to pursuing a schedular 100% rating.

Schedular ratings become “protected” at certain points – again, too much detail for this post – but there are times when the VA can no longer reduce a 100% rating.

This is contrary to what many VSOs will tell you – VSOs frequently tell Veterans not to “rock the boat” and withdraw any appeals pending when the VA awards TDIU.

In my experience, this is one of those “fairy tales” that VSOs tell Veterans – rarely does this pan out to be true!

Scenario #2: A 100% rating doesn’t get you the right Effective Dates.

When I teach Veterans how to pursue an appeal for a denied claim, here’s the “order of battle” I teach:

Get your medical conditions service connected.
Make sure the VA assigns the correct Impairment Rating.
Fight for the earliest effective date possible.

Those last 2 often go hand in hand. But, many times, the VA will grant you a 100% rating – TDIU or schedular – and not give you the earliest effective date possible. At 100%, past due benefits can really start to add up.

Using the 2014 disability rate tables, a single Veteran loses out on $2,906.83 for each month. If the Veteran misses your correct effective date by 1 year, this means they are shorting a single Veteran $34,881.96. Double that for 2 years.

My point is this – just because the VA got your rating to 100% doesn’t mean that they gave you the right effective date. If you give up the fight early, you might be leaving a lot of benefits on the table.

Scenario #3: Special Monthly Compensation

Not many Veterans have ever heard of Special Monthly Compensation. And so many Veterans don’t pursue it when they get their 100% rating.

To be quite honest, far too many VA Raters haven’t heard of (or don’t correctly compute) Special Monthly Compensation.

Special Monthly Compensation is complicated – but generally, it works like this.

When a Veteran receives a 100% rating, the VA is supposed to consider whether they might be eligible for additional payments known as Special Monthly Compensation.

There are many different kinds of Special Monthly Compensation (SMC), but here are a few:

Statutory SMC – also known as SMC(s) is one of the more common types of SMC. It is commonly known as “Statutory/Housebound” SMC, because there are 2 ways to get it.

First, when a single Veteran with no kids has one 100% rating, and at least a 60% rating for a wholly separate condition/disability, that Veteran is entitled to an additional $347 a month in VA disability (using the rating tables effective 12/1/2014). This is the “Statutory” method of getting SMC(s).

Second, if a Veteran is housebound because of a service connected disability, that Veteran may be entitled to SMC(s) on a “housebound” basis. The VA’s definition of housebound is rather precise, and is discussed elsewhere on the Veterans Law Blog.

Loss – or loss of use – of extremities, sensory organs, and/or reproductive organs, might entitle one to Special Monthly Compensation as well. As could the need for Aid & Attendance.

The highest levels of Special Month Compensation can take a 100% Veteran as high as $8,859.84 a month – these Veterans are usually in pretty bad shape.

Even still, I’ve seen the VA “stiff” Veterans that are housebound, bed-bound, and quadriplegic out of Special Monthly Compensation.

This happens, most often, when a Veteran stopped fighting for their benefits after reaching 100%…..far too many Veterans think that is the highest level of compensation available.

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8 Steps to Improve Your VA Disability Claim or Appeal

This process is meant to help you stop making some of the most common errors in VA Claims and Appeals – the errors that delay claims for years and years. Each of the steps
in this process represents a common pattern of errors that I see Veterans make in their VA Claims and Appeals – and I’ve looked at THOUSANDS of Veterans C-Files and appeals.You don’t have to subscribe to my blog… or buy a single VA field manual (ebook) or a VA training video… to give these 8 steps a try. [Reprinted here with permission from Veterans Law Blog]

Proving a Non-Combat Stressor in a VA PTSD Disability Claim

[Reprinted here with permission from Veterans Law Blog]

VA Disability Rating for PTSD: Non-Combat Stressor

Do you have Non-Combat VA PTSD disability claim? Ever try to convince the VA that your non-combat stressor event occurred?

It’s a lot harder for non-combat Veterans – if you didn’t serve in combat, the VA isn’t going to take your word for it: you have to prove to the VA that the stressor event occurred. It’s really hard, isn’t it?

Today I want to talk about a new case out of the CAVC that requires the VA to go even FURTHER in its Duty to Assist the Veteran.

Veterans Must Prove Non-Combat Stressors in a VA PTSD Disability Claim.

As any of you who have tried to service connect a VA PTSD disability for a non-combat related event know, it is extremely difficult to corroborate that your stressor event occurred.

Maybe you witnessed a soldier cut in half when pinched between 2 tanks in a training drill.

Or saw your “battle buddy” plummet from the top of the rappel towers on an obstacle course, crushing his skull.

Or maybe you watched a little kid get rolled over by a tank on a training exercise in Korea.

These are non-combat events – real events that I have seen in real Veterans’ claims.

Under the current law of PTSD compensation claims, your word that something happened is not good enough for the VA to believe you.

Veterans with Non-combat stressor events have to corroborate the stressor event using “credible evidence”.

There are many ways to corroborate this event – from “buddy statements” to “newspaper articles” or medical treatment records, etc.

That’s not what this post is about. This post is about the JSRRC – and what it does in a PTSD Compensation claim.

This post is about the JSRRC – and what it does in a PTSD Compensation claim.

The JSRRC is the place that stores a TON of never before identified information about incidents occurring in the military.

JSRRC is the Joint Services Records Research Center Mission – that’s a real mouthful.

Basically, this is a DoD facility that does not store, but does have access to, information from tens of thousands of military units over several decades.

Neat, right?

Problem is, you can’t get access to it. Only the VA Can.

This is what the JSRRC says:

“When the Regional Office determines information from military unit records is necessary to process a claim, the Regional Office will request this assistance from JSRRC.”

Think of the JSRRC as a secret book – only the JSRRC can look at it, only the JSRRC knows what is in it, and only the VA can ask the JSRRC to search the “secret book” for evidence that the event occurred.

The VA has long used this power as a way to deny Veterans claims for PTSD in non-combat scenario. And they play the game the same way in almost every single case.

Here’s how the VA’s JSRRC PTSD Disability Stressor Game is Played.

It is played the same way in claim after claim after claim…..

* Veteran gives the details of an event that occurred outside of combat – a common scenario is witnessing a training death.

* The Veteran – due to the passage of time, the symptomatology of your VA PTSD disability, or basic human brainpower – forgets the precise date that the event occurred.

* The VA barks and hollers in it’s “Duty to Assist” letters that it needs the Veteran to define a 60 day window in which the event occurred, or they cannot ask the JSRRC to corroborate the stressor.

(Again, a made up excuse, as I’ll explain in a minute).

* When the Veteran can’t provide the exact 60-day window, the VA denies for failure to cooperate, or on the grounds it cannot fulfill the DTA without more information, or on the grounds that it cannot corroborate the alleged stressor event.

This is absurd, by the way – to require a Veteran to remember the specific date of an event or pinpoint a 60 day window when something happened.

The year before Obama was inaugurated into Presidency, I witnessed a drunk driver strike and kill the driver of a car stopped right in front of me. Every detail of the incident replays in my mind like a movie scene I cannot forgot. But you could offer me a million dollars to tell you what month it happened and all I can tell you (without doing a lot of digging) is that it was sometime in 2008. And the only reason I remember that is that I was interviewed by the Prosecuting Attorney prosecuting the drunk driver on the day of Obama’s inauguration.

That’s human memory folks – most of us don’t remember exact dates of even memorable incidents.

Guys….how many of our wives get on us for forgetting our anniversaries?

Gals – how many of you forget that you promised to let us watch college football all day every Saturday, without a honey-do list? See….forgot you promised that, didn’t you?

Back to our scenario – when the VA played its JSRRC 60-day window game with one Veteran, he had enough.

Veteran David Gagne had enough of the VA’s little JSRRC game, and appealed his PTSD Disability denial to the CAVC.

As a result, we have a new rule of law which says exactly what the VA has to do to fulfill the Duty to Assist.

Here’s how it played out.

The Veteran, while stationed in Thailand during the Vietnam War, was building a road between 2 bases.

One day, he watched a truck back into and kill an NCO on the site. The Veteran filed a claim for VA PTSD compensation years later, after he realized this incident was why he was having suicidal ideation and other symptoms of a PTSD disability.

The VA refused to ask JSRRC to verify the stressor, because the Veteran could not remember the 60-day window in which the event occurred.

Instead, the VA denied the claim for a failure to locate credible evidence of the stressor event.

The Veteran called “bullshit” – on appeal to the Court, he argued (through an outstanding advocate named Amy Odom at the NVLSP) that the VA’s Duty to Assist couldn’t be limited to 60 day windows.

The Veteran pointed out that the Duty to Assist is fulfilled only when future efforts to obtain records would be futile, or it is established to a reasonably degree of certainty that the records do not exist.

The VA, on the other hand, argued it was futile to ask the JSRRC to search through a years worth of records for a particular incident when the JSRRC and the VA had previously decided that it was easiest and most efficient for them to search in 60-day windows.

The VA’s attorneys – the Office of General Counsel – made the Veteran’s attorney brief the case, and go to oral arguments.

Only after oral arguments did the VA realize how bad its arguments were.

So, shortly after those arguments, the VA changed its position – expressly conceding that it failed to fulfill the Duty to Assist by not searching through the records as requested by the Veteran.

As an aside, the Veteran’s case was at the court for 20 months – since February 2014.

The OGC willingness to back down so easily and completely after making the Veteran fight for almost 2 years….AT THE COURT…. makes me wonder if this is just another example of the VA Office of General Counsel wasting everyone’s time with arguments it KNOWS it cannot win.

The Veteran’s Law Blog reported cases about this on the Veterans Law Blog before – including our assessment of how the VA’s Office of general Counsel is wasting MILLIONS of dollars each year on frivolous cases on appeal.

The Court ultimately made it clear that the VA’s Duty to Assist in asking the JSRRC for evidence corroborating a stressor was NOT limited to 60 day increments: the VA fulfilled its Duty to Assist in 2 scenarios:

Scenario 1: It is reasonably certain that the records sought do not exist

Scenario 2: Future efforts to find the records would be futile.

By the way – and this is VERY helpful in any Duty to Assist Argument – the court defined the word futile as “serving no useful purpose; completely ineffective”.

How to use this decision in your case:

1) Do you have a non-combat stressor event for your VA PTSD disability?

2) Send the VA a Sworn Declaration stating the Date ranges that you THINK it might have occurred.

Always go with a broader range than you think. If you think it happened in the Summer of 1968, broaden you statement ot the whole of 1968. If you’re pretty sure it happened in 1979, add a
https://www.veteranslawblog.org/product/every-vlb-product/?ref=hadit.comyear to each side to be sure (1978-1980).

3) Add this statement to your declaration: “I cannot narrow the timeframe of his reported stressor to a 2 month period.”

4) Cite to the Gagne case, for the position that the VA only fulfills the Duty to Assist if it submits multiple JSRRC requests for each 60 day period in your search range.

Hope that helps folks – please click here and let me know if this is a useful tip for your VA PTSD Compensation claim or if it helps you get your PTSD Disability claims service connected.

And if you want to read the actual decision in the Gagne case, here’s a link: Gagne v. McDonald, 2015 U.S. App. Vet. Claims LEXIS 1404 (October 19, 2015)

14-334 Summary

No Description

4 Things Veterans Should Know about VA Sleep Apnea Disability Claims

I get asked more questions about how to file and win a Veterans Affairs sleep apnea disability claim than almost any other topic in all of VA Benefits Law. [Reprinted here with permission from Veterans Law Blog]

True story. And I’ve been getting asked these questions for years. On top of that, for about 2 years, I noticed at my VA Benefits law firm and on the Veterans Law Blog that Veterans of all eras were seeking my help – from Vietnam to Cold War to Afghanistan and beyond – appealing their VA Sleep Apnea disability denials.

In short, I was seeing the sleep apnea disability hit the Veterans community like a typhoon! So a couple years ago, I started trying to figure out WHY the sleep apnea disability was such a problem in the Veterans community. – Chris Attig Veterans Law Blog

Trust me when I tell you this: a VA Sleep Apnea disability diagnosis has little or nothing to do with obesity and neck girth.

In the end, I wrote a book about how to claim and service connect the sleep apnea disability through the VA.

But I also learned a few extra things that I would like to share with you about the VA Sleep Apnea Disability claim. And that’s what today’s video is all about:

I asked:

Why were so many Veterans seeking service connection for sleep apnea?

Why was sleep apnea affecting Veterans across all generations
Why was it so hard for so many Veterans to win their VA sleep apnea disability claims?
I talked to doctors (cardiologists, pulmonologists, sleep specialists, and more) about the 3 different types of sleep apnea disability diagnoses.
I talked to hundreds of Veterans (from just about every era) and looked at dozens of their C-Files to see if I could figure out why some Veterans won their VA Sleep apnea disability claims and others did not.

I read just about every BVA Decision I could find on VA Sleep Apnea Disability appeals for a whole year.

Do you have questions about how to service connect sleep apnea claims?

You’re aren’t alone. Winning a VA claim to service connect sleep apnea is hard. Winning a VA Sleep Apnea is much harder. In fact, winning your VA sleep apnea claim can feel like you just led your team to victory in the World Cup.

It’s almost as much work – and it can often take as much dedication.

Veterans ask me more questions about sleep apnea than almost any other question about VA Benefits Law. Closely followed by PTSD, Hearing Loss, Tinnitus and TDIU.

* Can I service connect sleep apnea without a sleep study in service?

* What if it wasn’t diagnosed until years after service – can I service connect it then?

* Can Agent Orange cause Sleep Apnea? What about PTSD?

* How do I appeal the VA‘s denial of my Sleep Apnea?

I got so many questions that I began to do a lot of research into how to service connect Sleep Apnea claims and what is happening with Sleep Apnea in the Veteran’s community.

Here’s 4 lessons I learned that I want to pass on to you – if you can really learn and understand these lessons, you will have the power to really improve and service connect sleep apnea claims and appeals.

Lesson #1: Sleep Apnea is a Killer.

There are 3 things that the human body cannot live – or function – without: Blood/Oxygen, Food/Water and Sleep.

You can lose a kidney, and live a full and complete life. You can lose your arms and legs and still survive.

But if your body cannot get sleep, you will die. In fact, sleep deprivation is a common form of torture, as many of us know all too well.

That’s what Sleep Apnea does – while you are sleeping, you stop breathing.

You cut off oxygen to the brain and blood, and other body systems break down.

If you are lucky, you start breathing again.

Not a lot of VSO‘s or advocates get this when helping a Veteran file a VA Claim.

They think of Sleep Apnea as a disease of the obese, and then they tell them one of the big Fairy Tales about VA Claims.

Lesson #2: Sleep Apnea is affecting a LOT of Veterans.

In the year that I spent researching the Sleep Apnea Field Manual, I learned that there are 39 medical conditions – common among Veterans – that can cause or aggravate sleep apnea.

39 Medical Conditions!!

Here are just a few:

* Damage to the brain from a TBI (Traumatic Brain Injury)

* Heart conditions

* Post-Traumatic Stress (PTSD)

* Nerve conditions

* Rhinitis

* Diabetes

Here are a few examples of how Sleep Apnea has affected Veterans from all different eras of service:

* Don D. (he asked me not to use his real name) served mostly during the Cold War was in the best physical shape of his life – he was an avid weight-lifter. That is, until he damaged his knees in-service and had to get a knee replacement at a military hospital. After that knee replacement, he could no longer lift weights; the sudden weight gain the resulted caused his obstructive sleep apnea.

* Several Desert Storm, OIF, and OEF Clients have had Traumatic Brain Injuries which interfere with how their Nervous System works, and as a result, have a different kind of Sleep Apnea (oversimplified, where the brain’s signals to breathe don’t make it through to the lungs).

* Many Vietnam Veterans exposed to Agent Orange suffer from sleep apnea. They are ALL experiencing a “Perfect Storm” of Sleep Apnea problems: breathing disorders, mental health conditions, heart conditions and diabetes are all causing an epidemic of Sleep Apnea in our Vietnam Veterans.

No wonder Sleep Apnea is affecting so many Veterans – sleep apnea can be the result of other disorders or medical conditions.

Lesson #3: The VA & BVA really struggle to Service Connect Sleep Apnea claims.

I believe that the VA and BVA do not take Sleep Apnea seriously. I think that far too many raters and BVA judges think of sleep apnea as “made up medicine”.

Perhaps they’ll have to spend a night with someone that suffers from obstructive sleep apnea, hear the suffocating snoring, experience the fear that the person will stop breathing altogether, they will continue to not take seriously claims for sleep apnea.

Or perhaps when they realize that Sleep Apnea is going to be as big an issue for our current generation of Veterans as Agent Orange related conditions are to Vietnam Veterans, they will take it seriously.

Either way, Veterans have an uphill fight to get their sleep apnea service-connected.

Here’s a Statistic that will shock you:

From April 2013 to April 2014, theBVAdenied 76% of Veterans Sleep Apnea appeals.

Translation: 3 out of every 4 of you will see your sleep apnea claims and appeals denied…unless you learn how to prove your Sleep Apnea Claim the right way.

Lesson #4: More Veterans Should be Able to Service Connect Sleep Apnea.

I spent nearly a year researching Veterans and their Sleep Apnea claims. I talked to several doctors and sleep experts. I read hundreds of cases. I talked to hundreds of Veterans and read their C-Files to see where they went wrong.

I learned that to win your Sleep Apnea claim, you are going to have to put your Sleep Apnea Claim together right.

This is where I come in. I can teach you how to do that. I can teach you:

* HOW to prove your Sleep Apnea Claim – for any of the 3 types of Sleep Apnea you have.

* The EASIEST Way to prove Sleep Apnea.

* WHAT evidence to use and which path to Service Connection to use.

* WHERE to get the Lay Evidence that will give REAL POWER to your Sleep Apnea Claim.

* To prove your Sleep Apnea is service connected… without a sleep study in the military?

* The importance of a medical expert opinion in your Sleep Apnea claim. (In many cases, a medical expert report or opinion may be crucialto success).

* The SPECIFIC EVIDENCE you will need to prove another medical condition caused your sleep apnea

* How the VA will rate your sleep apnea condition after granting Service Connection.

How can you learn more about these things? Check out the Sleep Apnea Field Manual. There are 3 ways to get it:

Get an eBook version of the Sleep Apnea Field Manual
Get a paperback real book version of the Sleep Apnea Field Manual
Check out the this VA Sleep Apnea Field Manual Package and get the knowledge you’ll need to take back the power in your VA Sleep Apnea claim.

5 Things to Know about the VA Appeals Process

UPDATE: 12/15/2017: Most of the information in the following post is no longer applicable as VA has modernized and updated its appeals process to better ensure Veterans receive the benefits they deserve in a more-timely manner. The following post remains available to better understand the evolution of the appeals process. Here’s an article on the new Appeals Improvement

Appeals process: The multi-stage appellate process is available to you after you have already received one or more decisions on your claim, but disagree with some aspect of VA’s decision. During the appellate process, an appeal undergoes additional independent reviews, often multiple times and by different adjudicators, as you or your representative submit new evidence and/or a new argument. Nearly 74 percent of appeals are from Veterans who are already receiving VA disability compensation, but are seeking either a higher level of compensation or payment from an earlier effective date.

1 Appeals and Claims are different

Claims defined

You submit a claim when seeking VA disability benefits (or increased benefits) for one or more medical conditions you believe are related to military service. These claims can be filed online through eBenefits, submitted by mail or in person at the nearest VA regional office. The claim submission, the military service and health care records and any other evidence associated with the claim are reviewed in order to provide you a rating determination.

The Appeals Process

The multi-stage appellate process is available to you after you have already received one or more decisions on your claim, but disagree with some aspect of VA’s decision. During the appellate process, an appeal undergoes additional independent reviews, often multiple times and by different adjudicators, as you or your representative submit new evidence and/or a new argument. Nearly 74 percent of appeals are from Veterans who are already receiving VA disability compensation, but are seeking either a higher level of compensation or payment from an earlier effective date. Continue Reading

The appeals process: Appeals and claims are as different as apples and oranges – VAntage Point

UPDATE: 12/15/2017: Most of the information in the following post is no longer applicable as VA has modernized and updated its appeals process to better ensure Veterans receive the benefits they deserve in a more-timely manner. The following post remains available to better understand the evolution of the appeals process.

2 Appeals at the Regional Office

Once a VA office issues its decision on your claim, you have one year from that date to file an appeal. Read the decision letter closely: it will tell you why VA made the decision it did. If you are unsure why or how VA made its decision, ask a Veterans service officer for help. You can also call VA or go to your regional office.

If you disagree with VA’s decision for any reason – the effective date of your award, the rating percentage you were given or the reason you were denied – you should file a Notice of Disagreement (NOD). Continue Reading

3 Appeals at the Board of Veterans Appeals

Once the board receives your appeal, it assigns a docket date based on the date VA received your Form 9. This date is important: under the law, the board must work appeals in docket order. Currently, the median, or middle, docket date of appeals the board is working is July 2014. Some newer appeals can be pushed to the front of the line: those from older Veterans and survivors, those who are terminally-ill or those who have documented financial hardship, etc. It’s important to know that if the board remands (returns) your appeal to the regional office to gather more evidence, you won’t lose your place on the board’s docket. Continue Reading

The appeals process: Appeals at the Board of Veterans’ Appeals – VAntage Point

There is a perception that a lot of the regional offices’ decisions are appealed to the Board of Veterans’ Appeals. This is not accurate. Historically, only 4 percent of all claims the Veterans Benefits Administration decides are appealed to the board.

4 When an appeal is remanded

The appeals process: When an appeal is remanded – VAntage Point

Appeals are remanded for many reasons…if there has been a change in law, a worsening of a disability on appeal, the Veteran introduces new evidence or theory of entitlement at the Board or if the regional office did not process your claim correctly.

5 VA’s Plan

The appeals process: Your comments and VA’s plans – VAntage Point

UPDATE: 12/15/2017: Most of the information in the following post is no longer applicable as VA has modernized and updated its appeals process to better ensure Veterans receive the benefits they deserve in a more-timely manner. The following post remains available to better understand the evolution of the appeals process.

Board of Veterans Appeals

Source: BVA Site

The Board of Veterans’ Appeals (also known as “BVA” or “the Board”) is a part of the VA, located in Washington, D.C.

Members of the Board review benefit claims determinations made by local VA offices and issue decision on appeals. These Law Judges, attorneys experienced in veterans law and in reviewing benefit claims, are the only ones who can issue Board decisions. Staff attorneys, also trained in veterans law, review the facts of each appeal and assist the Board members. {38 U.S.C. §§ 7103, 7104}

Anyone who is not satisfied with the results of a claim for veterans benefits (determined by a VA regional office, medical center, or other local VA office) should read the “How do I Appeal” pamphlet. It is intended to explain the steps involved in filing an appeal and to serve as a reference for the terms and abbreviations used in the appeal process.

Further Reading

VA Disability – Step 7: The Notice of Disagreement (VA Appeal)

The VA Regional Office [VARO] decides your claim initially. But if you disagree with their decision, you can ask for it to be reviewed within the VA, and then by the courts. First, you can request review by a Decision Review Officer within VA; Second, you can appeal a denied claim to the Board of Veterans’ Appeals.

VA Disability – Step 8: Filing A Court Appeal | Stateside Legal

The Veterans Court is an appellate court, which means it only reviews Board decisions. The Court primarily looks to see that the Board followed the laws that apply to your case. The Court does not make its own factual findings.

Video Blog – Board of Veterans’ Appeals – Hill & Ponton, P.A.

Matt Hill: Welcome to another Hill & Pontin VA Disability Blog. My name’s Matthew Hill and I’m here with … Carol Ponton: Carol Pontin. Matt Hill: Today we’d like to talk to you about the Board of Veterans’ Appeals. What it is, how you get there, and what do you do there.

The Appeals Process at a Glance – Hill & Ponton, P.A.

The VA Claims process can be long and confusing. Below is a simplified overview of the appeals process. The three main entities that handle a claim and its subsequent appeals are the VA Regional Office, the Board of Veterans Appeals, and the Court of Appeals for Veterans Claims. You begin by filing a claim for benefits with the Regional Office (RO).

Remand for bad C&P exam. August 17, 2018
I just got a remand on my appeal for a bad C&P exam. They said the examiner didn't review my service records. Does this mean the VA is going to reschedule me for a C&P exam and how long do you think this may take them? Also, do you think the VA will be trying […]
Need Opinions August 15, 2018
Am rated at 0% fro scars. Applied for an increase. Had a C&P examination for the increased scar rating. The DBQ of the examiner clearly pointed out two characteristics of scars which would have entitled a rating of 30% Instead of granting the increased rating, the VA failed to award an increase and failed to send […]
Disability Percentage Changed August 12, 2018
I was just granted a additional 20% for Dry Eyes, if i add this new 20% to my Current - 20%,30%,10%,60%,30%,10%,20%,10%,10%,10% will i be at 95% which would take me to 100%?
Awaiting my NOD outcome August 12, 2018
I filed a NOD in January 2017 for limitation of ankle (Right) motion , left Knee strain, lower Back pain, bilateral Plantar Fasciitis and Insomnia (they listed as dysthymic disorder). Since I filed the NOD, I received 30% for persistent depressive disorder (dysthymia) with anxious distress which includes chronic sleep impairment. I currently have a rating […]
ANYONE MEMBER SC FOR RADIC AND OTHER NERVES? August 12, 2018
MY QUESTION IS TO FIND OUT IF ANY MEMBER HERE IS RATED FOR LOWER EXTREMITY RADICULOPATHY AND ANY OTHER NERVES
DUTY TO ASSIST Claim vs DENY CLAIM in 90 days August 11, 2018
Ebenefits shows claim Opened and Closed in 90 days flat. Right on the date. Had some C&P's. No BBE with reasons yet. BUT IT IS CLEAR that the VA is doing more to DENY then to assist. Did not ask me for any additional information. So went from Claim to Deny in 90 days? But this […]
great bva letter arrived....can the judge allow paramid? August 11, 2018
not wanting to get to involved in the absolute of this but,,,,, has anyone heard of a Washington DC Judge find his way around pyramiding....? his order describes that i DESERVE A HIGHER RATING IN ADDITION TO THE ALREADY BILAT 10%,,,, THEN EXPLAINS WITH DETAIL THE NEW SERVICE CONNECTIONS... MY POINT IS,, A LAYMAN WOULD […]
when the judge awards NEW SC THAT I DIDNT ASK FOR? August 10, 2018
WHAT KIND OF LAWS FOLLOW WHEN THE JUDGE GRANTS A NEW SERVICE CONNECTION THAT WAS NOT ON APPEAL BUT IT WAS FOUND WITHIN THE RECORD. ? LIKE DO I STILL HAVE RIGHT OF APPEAL ?
It's Official! Awesome BVA Decision Received. Appeal for EED? August 10, 2018
I received my BVA Decision Letter this afternoon. I feel totally vindicated in that the judge repeatedly pointed out that my STRs and medical records plus nexus letters and IMOs provided the basis for granting Service Connection, while the C&P medical examiners and the VARO failed to thoroughly address several issues of secondary SC, thereby […]
Finally got some RAMP news TODAY! August 9, 2018
Today marks Day 92 since I opted into RAMP and today eBenefits went from Claim Received status straight to Pending Decision Approval. These Appeals are all HLR with requested Informal TeleConference, which has still yet to take place. I am just wondering if anyone else has got to this point and an Informal TeleConference either happened […]

Common Claimed VA Service Connected Disabilities

Disability	Body system	Male	Female	Total
Tinnitus	Auditory	1499066	80299	1610911
Hearing loss	Auditory	1035336	19128	1084069
Post-traumatic stress disorder	Mental	803136	70175	887899
Lumbosacral or cervical strain	Musculoskeletal	704552	132218	844353
Scars, general	Skin	713811	97732	827459
Limitation of flexion, knee	Musculoskeletal	646058	103745	755204
Paralysis of the sciatic nerve	Neurological	528197	43097	580986
Limitation of motion of the ankle	Musculoskeletal	446556	60814	511300
Diabetes mellitus	Endocrine	419036	5621	438572
Migraine	Neurological	376518	52663	436339

Full 2016 VBA Annual Benefits Report

Full 2015 VBA Annual Benefits Report

VA Disability Compensation

The Compensation program provides tax-free monthly benefits to Veterans in recognition of the effects of disabilities caused by diseases, events, or injuries incurred or aggravated during active military service. The program also provides monthly payments to surviving spouses, dependent children, and dependent parents in recognition of the economic loss caused by the death of individuals during their military service or as a result of service-connected disability after their discharge.

To be eligible for disability compensation, the Veteran must have served under conditions other than dishonorable, and the disability must not be the result of the Veteran’s own misconduct. VA pays disability compensation monthly, and the amount varies according to the degree of disability and the number of dependents. The degree of disability is graduated from 0% to 100%, in increments of 10%. VA calculates the total service-connected disability by combining evaluations for individual disabilities rather than adding them. VA pays additional special monthly compensation when severe disabilities confine Veterans to their immediate premises, require the aid and assistance of others, or include anatomical loss or loss of use of extremities or creative organs.

Types of Veterans Compensation Benefits Claims

There are numerous types of claims that apply to disability compensation. They can be based on disabilities that existed when entering military service, but were made worse, disabilities that occurred during service, or disabilities that arose after you left military service. Additionally, there are claims that are filed for special circumstances.

Pre-Discharge Claims

Service members that are within 180 days of separation or retirement from active duty or full time National Guard duty may file claims for disability compensation. Learn more about pre-discharge claims

It is to your advantage to submit your disability compensation claim prior to separation, retirement, or release from active duty or demobilization. Processing times tend to be much shorter for claims submitted pre-discharge than after discharge. Pre-discharge programs provide Servicemembers with the opportunity to file claims for disability compensation up to 180 days prior to separation or retirement from active duty or full-time National Guard or Reserve duty (Titles 10 and 32).

You can apply for disability compensation through one of the following:

Claims Based on Pre-Service Disabilities

Individuals may enter military service with a known disability. Should this disability become worse due to military service, VA may be able to pay compensation. This is known as aggravation; however, compensation can only be paid for the level of aggravation. For example, at entry into military service, an individual has a disabling condition that could be considered 10% disabling. In order for this condition to be considered aggravated, it would have to have worsened due to military service to at least 20%.

Claims Based on In-Service Disabilities

These claims are based on disabilities that are a result of an injury or disease that occurred in active service, and in the line of duty. Injuries or diseases as a result of the Veteran’s own willful misconduct or abuse of alcohol or drugs are excluded.

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Tinnitus – VA Disability Claims

Tinnitus is the number one disability among veterans. According to Military.com, in 2015 over 150,000 veterans were diagnosed with tinnitus. On average, tinnitus affects at least one in every 10 American adults, and is experienced as a clicking, ringing, buzzing or hissing sound in the ears.

VA disability claims for noise-related hearing loss or tinnitus, there are certain things you’ll want to do to help your case:

Provide detailed statements that explain the noise exposure you experienced during your military service.
Cite the sources of the noise such as the machinery you used or the environment you worked in.
Cite the duration of the exposure, and explain the type of hearing protection available for use (including no protection)

All related Tinnitus Information Click Here

Tinnitus BVA decisions from 2015 – 2017

7 Steps to Proving VA Tinnitus Claims. – Veterans Law Blog

VA Tinnitus Claims (tinnitus is that incessant ringing in the ears that nearly every Veteran suffers from) are one of the most common VA Claims. And,VA Tinnitus Claims used to be one of the easiest to prove.

Read the article on veteranslawblog.org >

Veterans With Symptoms of Noise Exposure Are Eligible for VA Disability Benefits

Noise-related hearing loss affects many people in the military. Over 250,000 service members reported some type of hearing loss after being redeployed from the Gulf War, and over 350,000 service personnel have reported symptoms of tinnitus. Tinnitus is a ringing or humming sound or noise that comes from within the ear instead of a sound in the outside environment.

Tinnitus – it’s a brain malady…

Neuroscientists believe they have discovered your dysfunction. Or, more accurately, your neural mechanisms dysfunction. They “gate” noise controlling the noise and pain signals. You see. there are “circuit breakers” that should work, but are not. After an injury tinnitus can occur and sufferers experience phantom sounds. Veterans are exposed to some … Continue reading

References:

eCFR – Code of Federal Regulations

The Code of Federal Regulations (CFR) annual edition is the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government produced by the Office of the Federal Register (OFR) and the Government Publishing Office.

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Can a 100 percent Disabled Veteran Work and Earn an Income?

You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons after being rated 100% disabled.

Some Veterans like to work just for the sake of having something to do.
Other Veterans like to work for non-profits or other organizations that provide a public service …. after all, Veterans as a community are more heavily oriented to public service than many other groups of people.

Yet other Veterans still like to keep doing the job that they did, as they find that the income from even a 100% VA disability rating is not enough to cover all their expense.

Whether the family’s bills, funding college educations for kids and grand-kids, medical bills for spouses and children, or paying off the mountains of debt that have likely built up in the 5-10 years you have probably been waiting for the Veterans Affairs to get off it’s arse and make the right decision….100% disability rating is barely enough money to live off.

So, here’s the answer…and it’s a lawyers FAVORITE answer….It Depends. Whether a 100 percent Disabled Veteran can work turns on the answer to this question: Are you getting a 100% schedular rating, or 100% unemployability (aka, TDIU or IU)?

Veterans that Receive 100% Schedular Ratings have NO Limitations on Their Ability to Work.

Veterans are rated for their Veterans Affairs Disability based on a set of tables known as the VA Impairment Rating Tables. These are also known as the “Schedule of Ratings”. So, if your 100% VA Disability Rating comes because you qualify for the 100% rating specified for a single (or combination of multiple) service-connected conditions using the Schedule of Ratings, then you have NO limitations on your ability to work.

Some Veterans think that this doesn’t make sense: after all, if you are 100% disabled, that means you can’t do anything, right? This is one of the problems with the VA Disability Compensation system – for years, we have been led to believe that the percentage of rating equates to a percentage of how much our body is disabled.

In reality, the percentage of your disability rating means that you have had that percentage of interference with your ability to earn an income.

So a Veteran whose service connected condition equates to a 100% disability rating is not – in the eyes of the law – 100% disabled. Instead, in the eyes of the law, the Veteran’s ability to earn an income has been 100% interfered with.

Bottom line, if you are rated 100% using the Schedule of Ratings, or the Impairment Ratings Table – whether it is for one condition or multiple conditions – than you can work as much or as little as you want.

In theory, you could make $1,000,000 a minute and still collect a 100% Veterans Affairs Disability Schedular Rating. Of course, to make that kind of money, you’d probably have to become a Congressional representative, and put your hand into the pocket of some pretty unseemly political and lobbying organizations. But the point is the same: Veterans that Receive 100% Schedular Ratings have NO Limitations on Their Ability to Work or earn an income.

Can a Veteran Earn an Income while Receiving VA TDIU Benefits?

To answer this question, we need only look to the law.

For those of you that don’t know what TDIU is, I encourage you to read this post to get a basic understanding of the 2 types of TDIU Benefits.
To those of you trying to win your VA TDIU Claim, I encourage you to consider whether a copy of the VA TDIU Field Manual, or the VA TDIU eBook Package – will help you understand and improve your VA TDIU Claims.

38 C.F.R. §4.16(a) – the section of the Code of Federal Regulations that states the requirements for eligibility for TDIU Benefits, states the following:

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

Now, as I’ve discussed before on the Veterans Law Blog, the law does not clearly define what substantially gainful occupation is. But the law DOES define what Substantially Gainful employment IS NOT.

Read the rest of 38 C.F.R. §4.16(a):

38 C.F.R. §4.16(a) – Marginal employment shall NOT be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. (emphasis is mine).

So there you have it – the 2 ways that Veteran can earn an income while receiving VA TDIU benefits: when the employment is “marginal” and when the employment is “sheltered”.

We’ll look at them in more detail, below.

You might ask “Why” a Veteran is allowed to earn an income in these 2 scenarios while receiving TDIU Benefits.

Truth be told, I have no clue why Congress wrote the laws this way when they wrote them – someday I’ll dig into the legislative history to understand it.

But since Congress allowed it, there is NOTHING wrong with Veterans getting Marginal or Sheltered Employment income while receiving TDIU Benefits.

#1: Marginal Employment & TDIU Benefits.

This is the type of income that many Veterans are aware that they can receive even after being granted TDIU Benefits.

Simply go to the US Bureau of Census website, and look up the “poverty threshold for one person”. (Click here to see the historical poverty ratings tables from 1959 – 2015).

You will see that, for 2014, the poverty threshold for one person is $12,316 per year (if you are under 65), or $11,354 (if you are over 65).

Each year, the VA will ask you to verify your employment (or lack thereof) to determine whether you are eligible to continue to receive TDIU Benefits. They typically require that you use VA Form 21-4140 or 21-4140-1 to do this report.

The VA does cross check 2 databases that I know of: Social Security databases that record your work/income history, and IRS databases that record your family income on your annual tax returns. Word to the wise: if you are telling different income stories to different federal agencies, you are playing with fire, and may even be committing fraud.

If you indicate in this form that your income is higher than the poverty threshold, a proposal to reduce your TDIU benefits will be forthcoming.

It’s one of the few times that the VA acts with a sense of purpose – when they want to STOP paying you.

#2: Sheltered Employment & TDIU Benefits

Another way that Veterans can earn an income while receiving TDIU Benefits is by participating in what is called “sheltered employment”.

There are many ways that your income can be considered “sheltered”, but 2 that are clearly identified in the regulation itself:

Family business
Sheltered Workshop (these are supervised workplaces for adults with a physical and/or mental handicap)

Now, just because you are working for a family business doesn’t mean your job is considered “sheltered employment”. It has to be what the regulation refers to as a “protected environment”.

A protected environment occurs when the employer makes special accommodations to employ and provide an income for a family member or a disabled worker. This happens quite a lot – a family business, to reduce its tax burden or simply to help another family member, pays a disabled Veteran family member an income that they would not otherwise be able to receive.

How can you tell if there is a protected work environment?

What kind of questions would you ask, and what kind of evidence would you need?

If you can get answers to these kinds of questions – typically in an affidavit by the business owner or the executive in charge of hiring/staffing – you will have a much stronger proof of entitlement to TDIU benefits even while earning an income well above the poverty threshold in a sheltered employment situation.

1) Did they employer provide any special accommodations (especially if they are not required to by the Americans With Disabilities Act) to accommodate the employee with disabilities? These accommodations are most commonly adjustments to the work schedule, the work environment, or the work duties.

I have not handled a case yet where a major employer, covered by the Americans With Disabilities Act, provides an accommodation to a 100% disabled Veteran as required by law to do. This is an interesting question as to whether or not the employment could be considered sheltered when the company has a legal obligation to enact accommodations. I am not aware of any VA precedent on this topic – if you do know of a precedential case on this topic, don’t hesitate to let me know!

2) If the employee leaves the company, will the business hire a “similarly situated” person to fill the position (i.e, another worker with a disability)?

There are 3 scenarios here:

Scenario #1: If the business plans to modify the Veteran’s position after he or she leaves so that there are no longer accommodations to the work duties, environment or schedule, then you can make a pretty good argument that the employment is sheltered. Why? Because it appears that the position may have been created or modified just for the disabled Veteran.
Scenario #2: If the business plans on continuing the accommodation, then its a pretty good argument that the position itself – and anyone that holds it – is sheltered employment. (Many employers do this for the tax advantages available to certain types of “sheltered workshops”).
Scenario #3: If the business plans to eliminate the position after the disabled Veteran leaves the job, then it is most likely “sheltered employment”.

None of the above scenarios are absolute: the more evidence you can show that an employer created a job for a 100% disabled Veteran – whether for “feel-good” reasons, tax incentives, or any other reason other than common business reasons, the stronger your case of showing that your position is “sheltered employment”.

3) Is there evidence that another business in the same industry would NOT hire a similarly situated employee, and pay them a similar income, for the same type of work?

What do I mean here?

If your family business pays you $50,000 a year, while allowing you to come in to the job “only on the days you feel up to it”, look to other businesses in the same industry to see if they would pay that same salary to an employee that comes and goes at will.

Where do you get evidence of this sort of thing?

Honestly, you would hire an economist to prepare an expert report on the nature of the employment and whether or not it is sheltered, based on a survey of the particular industry.

This type of expert report can get really expensive, so I would not typically do this unless it was really questionable whether the employment was sheltered or not, and there was a lot riding on the outcome.

Frankly, providing evidence that answers Question #3 is probably a bit “over the top” in most Sheltered Employment claims.

Legal Advice in Sheltered Employment situations.

Be VERY careful with the Sheltered Employment rules.

They are not frequently applied, many in the VA do NOT know about them (or don’t understand them when they do know about them), and the Sheltered Employment Rules can lead to serious consequences if applied incorrectly.

I’m not telling any details here, but I know of a couple Veterans who have been charged with criminal fraud for collecting TDIU benefits while getting an income and doing nominal work for a family member’s business.

These charges usually will not stick – as the US Attorneys that prosecute these crimes have far less understanding of VA regulations than even most VA raters or Board Hearing Officials.

But you’re going to have to pay a criminal defense attorney to make it go away, and the VA ain’t repaying your attorneys fees.

That said, it is ALWAYS BEST to get legal advice – call a VA Accredited attorney and ask for a consultation – if you are considering earning income above the poverty threshold and want to know if it is or is not considered “sheltered employment”.

100% Rating – How I Did It! – Member Ping Juice

Greetings: I am grateful that one afternoon a few years ago, I Googled “I’ve had it with the VA”. That simple “search” born out of utter frustration led me to “Hadit.com”. And there it all started! As of two weeks ago, I’m rated 100% (long overdue). And, I am still NOT done with the VA.

For those looking to do there own research I offer this process:

Obtain your Military Service and Medical Records by mailing (certified, return receipt requested) an SF-180, found here: Download SF-180
Obtain your full VA treatment records from the “release of information” window at the center you receive treatment at.
Review the CD-rom (PDF file) for all CHRONIC medical conditions, treatments, and diagnosis – chronocity is critical!
Identify the incident, event, or situation in service that “caused” this condition. If it’s in your active duty medical records that’s extremely valuable. If it manifest after service you’ll need to find a way to “connect” it to service – the “nexus”.
Next search USC 38 part 4 for your CHRONIC DIAGNOSIS, found here: 38 CFR 4 Schedule for Rating Disabilities
Match up the conditions and rating percetnage to the CHRONIC diagosis in your medical records.
Review the DBQ the C&P examiner “must” use to rate your current condition, found here: List By DBQ Form Name
Search for VA court cases on your condition(s) to understand how the VA Regional Offices is likey to “rule and rate” on your claim. HINT, the cases tell you what evidence actually supports a claim.
For example, here’s a search for Sleep Apnea secondary to chronic Sinusitis: Google sleep apnea secondary to chronic sinusitis
Look for evidence in these cases that would support your claim, and THEN match and find your evidence – NEVER, EVER lie!
Gather all your evidence, write up a Statement in Support of Claim, found here: Veterans Affairs Statement in Support of Claim and mail it certified return receipt requested.
NUMBER every single page, make copies, and wait.
Make someone sign for your mailed packaged – VA has NEVER lost my packages!
Before you go to a C&P review your evidence and especially the questions the Dr. is going to ask from the DBQ. I usually hand write a list of the 6-7 items that supports my claim. I make sure the examiner see this. I’m so done with the VA, I walked into to my last C&P with my 4″ binder and the Dr. undersood I knew what is going on. A C&P exam is a LEGAL MEEETING, not medical treatment.

I submitted my last three claims in July and they were fully decided correctly in six months. Help the VA help YOU! And, most importantly, never, never, never, ever give up. Be relentless! Most grateful, PJ

I got a request to see how I wrote Claims, so here they are:

Hearing loss, Peripheral Vestibular Discorder, and Tinnunitis.
Digestive disorder.
Skin disorder.
VA’s 2015 Decision on these three Claims.

Preparing for Your C and P Exam

The exams should be to what you’re asking for, what kind of compensation. If it’s the first claim to say that something is related to service, like a back claim saying, “I believe that my back was injured in service and that’s why I currently have this disability,” the question isn’t really so much the extent of this disability now; the question is whether it’s related or not.

But most of the C&P exams we see are for the rating to say, “Is this the proper rating?” The veteran goes and, as Carol said, hopefully they’ve called to see what kind it is, but we feel like there is more than just calling that should take place. Source: Hill and Ponton

Transcript:

Matthew: Hello, and welcome to the Hill & Ponton Veterans Video Blog. I’m Matthew Hill.
Carol: I’m Carol Ponton.
Matthew: Today we’d like to talk to you about C&P exams – more specifically, how you as a veteran should prepare for them.
When you get a notice in the mail for a C&P exam, it’s important to understand what it’s for. Unfortunately, a lot of times, they don’t send you that information.
Carol: But if you call the number, they will tell you exactly what it’s for and you should do that. That’s the number on the notice that you got for the exam.
Matthew: The exams should be to what you’re asking for, what kind of compensation. If it’s the first claim to say that something is related to service, like a back claim saying, “I believe that my back was injured in service and that’s why I currently have this disability,” the question isn’t really so much the extent of this disability now; the question is whether it’s related or not.
But most of the C&P exams we see are for the rating to say, “Is this the proper rating?” The veteran goes and, as Carol said, hopefully they’ve called to see what kind it is, but we feel like there is more than just calling that should take place.
Carol: You need to know how the VA rates people. What’s the point of the exam? What are they looking for?
For instance, backs. If you have horrible, limiting back pain, you wouldn’t think that your entire rating is based on how far you can bend before the pain stops you, but that’s it.
A lot of people go in and they’re talking about the pain and how it devastates them, but they bend too far and they get a zero or a 10%. You need to know what the VA is looking for.
That’s just backs.
They actually have what’s called DBQs. Those are a guide, an outline that the C&P examiners use when they’re figuring out how to evaluate you for your C&P exam.
Matthew: Yeah. DBQ is Disability Benefits Questionnaire. I will link to that in the blog notes on this.
Essentially, it is exactly how they rate you. There are a bunch of boxes that the examiner can check. It’s important that you have an opportunity to look over that before you go just so you can look and say, “Well, what of these applies to me.”
Clearly, all of it will not apply to you, and there might be some that do apply that you just don’t know because it’s a medical term. But the more knowledge you have before going in, the better.
Carol: Let’s go to the back again. Usually, most people can’t get more than a 40% rating for their back. Unless your back is fixed in one place so it really doesn’t move, that’s all you’re going to get.
Where you get the additional ratings is in the problems that the back causes. For instance, how about radiculopathy where you have that pain, that electrical feeling that goes down your leg, or you have numbness in your feet? What if you become incontinent?

All of these things relate to the back but if you don’t bring them up, don’t wait for them to mention them. It’s important that you bring this out.
Matthew: That’s a really good point. This isn’t like a treating doctor’s visit. When they ask you how you’re doing, you don’t say, “Oh, I’m okay,” or, “I’m doing well today.” That’s going to be written down and, unfortunately, used against you.
When you go in there, you need to be ready to offer as much detail as possible. As Carol said, you don’t wait for the question. You say, “Oh, and we didn’t talk about this: my incontinence related to my back,” or whatever it is. You need to go in.
Carol: “The fact that I fall because my legs give way. That electrical shock is very strong, and it really impairs me.”
Matthew: It’s just things you need to be aware of going in there. Now, a couple of other things with C&P exams: we always recommend that they take somebody with them. A lot of times, our veterans will ask if we as their attorneys can go, and that would just be a nightmare. The VA would throw us out of the building.
We ask the veterans to take a spouse, take a good friend just to be there to watch. Wives are the best. When a veteran will say, “Oh. My pain is at a six.” The wife will say, “You haven’t gotten out of bed in eight days.” Make sure that the truth is known.
Also, they’re there to make sure that if something doesn’t go as it should at the C&P exam, there are two sets of eyes to talk to that instead of just the veteran. A lot of times, unfortunately, we see that the VA won’t even allow the buddy or the wife into the exam room. I still think it’s important to go.
Carol: To be able to say he was only in there five minutes. The reason that supposedly you can’t bring somebody in is privacy. Well, it’s your privacy, and you have the right to waive it.
But let me tell you what I saw in a Board of Veterans Appeal decision the other day that was really disheartening. This client had gone to the C&P exam, spent five minutes, did not do any of the measuring about how far they could bend and wrote a 4138 where he swore to what happened. He did that. His wife said how little time they spent with him.
The VBA totally disregarded that. They said that we’re going to consider the regularity that this doctor would have done exactly what he needed to do. It didn’t happen that way. That really hurt the veteran’s case.
The more information that you can give to the VA about what’s happening, and if you feel that the exam wasn’t fair, tell the medical facility there. They need to know. They’re paying these doctors. They need to know did this doctor really evaluate you? That’s where you can get a change.
Matthew: To wrap up, just remember that when you go to these exams, it’s not a friendly affair. You need to come prepared with information about how your pain and how your problem is affecting you. You need to try and understand how they’re going to rate that, and if you can bring people with you, that’s the way to go.

Holiday Greeting Card to the “Sandbox”

A holiday greeting card for our brothers and sisters who are serving or have served in the Middle East.
This is a cyber Christmas Card. Please download and forward.
Click here to Save the PDF below and send your greeting now!

Greeting to the Sandbox

The Greeting to the Sandbox was originally painted before Christmas 2007 to serve as a “cyber Christmas card” from any American at home to an American warrior in the Sandbox (esoteric slang for the Iraq and Afghanistan theatres). Once downloaded, the Greeting could be forwarded through cyber space from anyone to a friend or loved one halfway around the world where the message was ultimately aimed.

The Greeting was embraced and forwarded on by veterans’ rights organizations and former American warriors from coast to coast. The Greeting was printed and placed by the bedsides of all the wounded at Walter Reed, the local Fisher House and the local USO. By way of a chance encounter at Midway Airport in Chicago, a recently-returned squadron commander forwarded the message to his whole squadron still in Iraq.

It is now coming on to Christmas 2016, and there are still Americans deployed in the Iraq and Afghanistan theatres and elsewhere in the Middle East and South Asia. The aim and intent of this Greeting for them is the same intent as it was nine years ago for their former comrades in arms.

Take a minute, send the Greeting from home through cyber space until it lands in the “Sandbox”, and put a smile on a most deserving American warrior’s face.

Tad Foster
Combat Veteran – USMC, 4^th Combined Action Group
Vietnam ’68-‘69

Click here to Save the PDF below and send your greeting now!

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Appeal vs Reconsideration – Hill & Ponton, P.A.

Today, we’re gonna talk about the appeal itself. Once you get a decision, what you need to do after the decision. The two avenues we’ve seen are to appeal it, or to ask for a reconsideration. Carol, what are your thoughts on this?
Don’t ask for a reconsideration. That’s my thought. You know, one of the saddest things is that we see people not continue their appeals. If you’re asking for a reconsideration, you’re not appealing. It’s sort of a new claim, a reopened claim, whatever you want to call it. You’ve got to say, “I disagree” and now there’s a form that you have to use. – Carol Ponton

Read Full Article

Video Blog – Common Mistakes – Appeal vs Reconsideration – Hill & Ponton, P.A.

Matthew Hill: Hello, and welcome to another Hill & Ponton Veteran’s Video Blog. I’m Matthew Hill here with … Carol Ponton: Carol Ponton. Matthew Hill: Today we’re continuing our series on what we see are big mistakes that veterans make with their claims. This is the third mistake.

CUE, the Presumption of Soundness, and Really Old Errors by Chris Attig

[Reprinted here with permission from Veterans Law Blog]5 years ago, in 2012, I first wrote about an issue that has been one of my major “preaching” points in VA Claims and

Appeals.
I pointed out, in a post called “CAVC lashes out at VA: “Again, you failed to follow the law.” that the VA had for a very long time been forcing Veterans to prove something that by law the VA was required to prove.
In that case, it was the second prong of the Presumption of Soundness – the VA could in some situations overcome the Presumption of Soundness by showing clear and unmistakeable evidence that the condition was NOT aggravated by military service.

The Court’s Stern Warning to the VA about the Presumption of Soundness.

Pre-Horn, the VA wasn’t following the law – they were forcing Veterans to prove that the condition WAS aggravated by military service.
The Court was really frustrated by this. Here is how the Veterans COurt closed the Horn opinion – believe me when I tell you that a) this language is stern language from any Court, no less the Veterans Court, and b) stern language from a court merits careful and cautious attention from all litigants:
“The problem has been that VA has yet to step up to its responsibility under that law and its own regulation. Further, there is no immediate cost to the taxpayers in this particular reversal, because the veteran has only received the benefit of the presumption soundness. To obtain service
connection, he still would need to establish that he has a current disability and a nexus to the inservice aggravation. Nonetheless, any cost to taxpayers is dwarfed by the prospect of future cases generated by the misperception that the Court will tolerate the continuance of defective evidentiary development in presumption of soundness cases.” )Internal Citations Omitted)

Ouch! What the Court is saying is that they: a) are not going to tolerate continued failure to improperly shift the burden of proof in presumption of soundness cases to the Veteran, and b) allowing cases to rise to the Veterans Court is a burden on the taxpayer and a waste of judicial resources.
If I was the VA, I would have taken note. Serious note.

Defective Analysis of Presumption of Soundness May Form the Basis of a CUE Claim or Motion.

But they didn’t, and so for the last 5 years, I have been telling you that, if the VA attempts to rebut the presumption of
soundness by arguing that you failed to provide (or the record lacks) evidence that any condition pre-existing service was aggravated by military service, appeal immediately.
Many of you did just that.
A lot of you took this knowledge and went a step further.
You argued that old decisions – even though final – that contained this error may contain CUE, and should be reopened and readjudicated.
I know a lot of you have cases like this in the appeals pipeline: that a final VA Ratings Decision contains CUE because it shifted the burden of rebutting the presumption of soundness to you.

Pages: 1 2 3

VA Compensation for PTSD and Other Mental Disorders – Hill & Ponton, P.A.

Source: Hill and Ponton

Does it matter whether the VA finds that a veteran is service-connected for PTSD, as opposed to some other psychiatric disorder? For purposes of compensation, no, it does not.

The VA rating schedule provides one general rating formula which it applies to every mental disorder, whether the diagnosis is for PTSD,
depression, anxiety, schizophrenia, or for any other psychiatric diagnosis. (A diagnosis of personality disorder is an exception where VA has determined that personality disorders do not qualify for compensation as they are not capable of being caused by service). The compensation rate will be the same, regardless of the diagnosis.

The key question for a mental disorder, then, is whether the condition was caused by or began during military service, not whether the veteran has anxiety disorder or PTSD.

For purposes of treatment, of course, it is important that the veteran’s treating mental health professionals understand the condition so that they can offer the proper medications and/or therapy. Getting the appropriate care is the most important consideration. It is frustrating and extremely upsetting, however, when a C&P examiner does something like disregard the treatment a veteran is receiving for PTSD secondary to military sexual trauma and, instead, diagnoses an anxiety disorder. Understandably, the veteran wants the VA to acknowledge what happened to him or her in service and admit fault. If the examiner finds that the improperly diagnosed anxiety disorder is caused by or began during service, though, the veteran will receive the same compensation as if the examiner had properly diagnosed PTSD. Sometimes, the best that we can do is to make sure the veteran is properly treated for the condition and that he or she is receiving the proper amount of compensation for his or her symptoms, regardless of the diagnosis.

Based on the VA’s General Rating Formula for Mental Disorders, compensation will be based on the symptoms from which the veteran suffers rather that the diagnosis assigned to the disorder. VA is concerned with how much occupational and social impairment is caused by the veteran’s symptoms, not with the diagnosis. The rater will look at factors such as how often the veteran suffers from depression and or panic attacks, whether the veteran suffers from suicidal or homicidal thoughts, whether the veteran has problems with memory loss, or whether the veteran has problems with irritability, anger, delusions or hallucinations. In addition, the rater will consider how the veteran deals with stressful situations and whether the veteran is able to make and keep relationships with friends, family, or co-workers.

In other words, a veteran who experiences social and employment impairment because of symptoms such as suicidal thoughts, near-constant depression, a violent temper, or an inability to get along with co-workers or deal with stress, will be entitled to a 70% disability rating, whether he is diagnosed with PTSD or with a Major Depressive Disorder. A veteran who cannot work and cannot function in society due to persistent hallucinations is entitled to a 100% rating, whether he is diagnosed with schizophrenia or PTSD. Ensure that you are receiving the proper treatment from your treating doctors and the proper compensation for the symptoms from which you suffer, but do not be concerned if the VA service-connects you for something other than PTSD.

Veterans Affairs Ratings Reduction – Read More, Fear Less

Did you receive a letter proposing to reduce your Veterans Affairs disability rating? Check out the articles below to learn more. Forewarned is forearmed. Forge on brothers and sisters…

Try not to panic, panic clouds your judgement. Use your military mind to push the panic back a bit and move forward.
DO NOT MISS a VA Re-Examination appointments. Call an Uber if you have to, beg your friends, neighbors, family whatever it takes just get to that appointment.
Veterans Affairs has to show material improvement to reduce you.
1. While there are specific rules involved in reducing specific kinds of ratings, there are several general rules that the Veterans Affairs must follow:
  - Any proposed reduction must be based upon review of the entire history of the veteran’s disability
  - The VA must determine whether there has been an actual change in the disability since the last rating decision
  - Any improvement must reflect a material improvement in the veteran’s ability to function under the ordinary conditions of life and work
  - Examination reports reflecting any such change must be based on thorough examinations
  In addition, the VA Procedures Manual (M21) provides further requirements that the VA raters must follow when adjudicating rating reductions:
  - The VA must outline the time period during which the condition is said to have materially improved
  - The VA must cite evidence of sustained improvement after one review examination (C&P), or show that evidence predominantly demonstrates sustained improvement based on more than one exam.
  - The VA must explain why it is reasonably certain that improvement will be maintained under the ordinary conditions of life

In a VA Disability Claim, can your medications reduce the rating the VA gives you? – Veterans Law Blog

As former service men and women, we’re also battle-hardened veterans of bureaucratic warfare – – it’s just a function of life in the military. “Back in the Day”….back when we were in the military …. we had a real interest in fulfilling the training or supply requirements of our units and our higher-ups had a requirement to provide those resources.

Read the article on veteranslawblog.org >

How the VA picks your pocket: VA Benefits Reduction proposals. – Veterans Law Blog

Veterans often go through years of administrative paperwork, fighting, and waiting before being approved for disability compensation benefits for the military service-connected injury. Often veterans feel that when they finally get the rating that they are happy with, that is the end of the process.

Read the article on veteranslawblog.org >

Can the VA Reduce Disability Benefits? – Veterans Law Blog

You bet the VA can reduce your disability compensation! They can do anything they want – which, unfortunately, is the big problem with the VBA and the BVA. The question I wish more Veterans would ask, though, is this: is the VA’s proposal to reduce my VA Disability Benefits lawful?

Read the article on veteranslawblog.org >

The VA Wants to Reduce My Rating – Now What? – Hill & Ponton, P.A.

While it is easy to assume that once a veteran is awarded the correct rating with the correct effective date that the fight with the VA is now over, unfortunately there are some circumstances in which the VA seeks to reduce a disability rating or terminate service connection entirely.

Read the article on hillandponton.com >

Protected Ratings – When the VA Can’t Reduce Your Rating – Hill & Ponton, P.A.

If there is evidence that a veteran’s service-connected condition has improved, the VA might notify the veteran that they are going to reduce the rating currently assigned. However, there are certain instances where a veteran’s rating is protected and cannot be reduced by the VA.

Read the article on hillandponton.com >

Rating Reduction and Severance of Service Connection – Hill & Ponton, P.A.

Read the article on hillandponton.com >

Veteran Shocked by Disability Rating Reduction from 70 to 0

One veteran recently wrote in on our Facebook group, Disabled Veterans – Chapter 31 Voc Rehab, of their horror being reduced from his $1,300 per month payment to $0. For most American, that kind of change can result in homelessness, and a great deal of stress.

Read the article on disabledveterans.org >

PTSD Guide: VA Compensation Service Connection from Hill and Ponton

In order for the VA to recognize a veteran’s PTSD in order to award service connection, the diagnosis must be provided by a qualified medical professional. Even though many veterans are treated by VA or private therapists who are not doctors or psychologists (i.e. licensed mental health social workers, licensed counselors, etc.), the VA will not accept their opinions initially diagnosing PTSD. According to the VA Clinician’s Guide (available to download on the VA website), professionals qualified to perform PTSD Compensation and Pension examinations (C&P exams) must have doctoral-level training in psychopathology, diagnostic methods, and clinical interview methods. They must have a working knowledge of the DSM-V and extensive clinical experience in diagnosing and treating veterans with PTSD.

Read Full Article Here

VA Disability Compensation and PTSD

Military Sexual Trauma Markers

Can't Prove your non combat PTSD Stressor to the VA? Here's a fix.

Meet the VA PTSD Guru (Facebook Livestream Interview)

Spartan Pledge.mp4

Introduction – PTSD Guide – Hill & Ponton, P.A.

Doctors and psychiatrists categorize the symptoms of PTSD in four general groups: intrusive memories, avoidance behaviors, negative changes in thought and mood, and emotional reactions. These symptoms can significantly take a toll on one’s mental health and can even negatively affect one’s professional or social life.

Can I work and receive TDIU? Yes, in some cases you can.

I can’t work if I’m getting Unemployability, right? No, in fact, unemployability does not always mean that a veteran is not working. The key, however, is that all income earned from employment must be at or below the poverty level, or from a job that is considered to be “sheltered”. These types of marginal employment are not considered as substantially gainful occupation.

Marginal employment is considered as “earned annual income that does not exceed the poverty threshold for one person as established by the US Department of Commerce, Bureau of the Census.” For 2016, the poverty level for which a veteran must be working under was $11,880.

Alternatively, a job in a “sheltered environment” (such as a family business, sheltered workshop, or a position tailored to the specific needs of the veteran) is considered to be marginal employment, even if that job earns an income over the current poverty threshold. Sheltered employment means that you are given concessions due to your service connected disabilities that would not normally be given to other employees. For example: a veteran with PTSD works for a family friend’s business. The family friend provides the veteran with an office and duties that afford limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. Because the veteran’s job has been tailored to his individual needs (limited interaction with other people), his job is considered to be sheltered, and therefore falls under “marginal employment.” The VA cannot consider this job as being substantially gainful employment, and must not use it against him in determining IU.

One thing that the VA often overlooks is the requirement that a veteran be able to maintain substantially gainful employment. For instance, a veteran may be able to hold a job for a few months, but then loses the job due to his service connected disabilities. He then may be able to get another job for a few months, before losing that one, and the cycle repeats. In such a case, the veteran is able to get jobs, but he is not maintaining employment, and is eligible for IU.

So, what does this mean on a practical level? First, it means that VA law does allow for some veterans who work to also receive IU benefits at the same time, depending on the circumstances. Second, it means that disabled veterans who are working should not automatically assume that they are not eligible for IU simply because they work.

Can a Veteran Earn an Income while Receiving VA TDIU Benefits?

To answer this question, we need only look to the law.

For those of you that don’t know what TDIU is, I encourage you to read this post to get a basic understanding of the 2 types of TDIU Benefits.

To those of you trying to win your VA TDIU Claim, I encourage you to consider whether a copy of the VA TDIU Field Manual, or the VA TDIU eBook Package – will help you understand and improve your VA TDIU Claims.

38 C.F.R. §4.16(a) – the section of the Code of Federal Regulations that states the requirements for eligibility for TDIU Benefits, states the following:

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities

Now, as I’ve discussed before on the Veterans Law Blog, the law does not clearly define what substantially gainful occupation is.

But the law DOES define what Substantially Gainful employment IS NOT.

Read the rest of 38 C.F.R. §4.16(a):

Marginal employment shall NOT be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.

Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. (emphasis is mine).

So there you have it – the 2 ways that Veteran can earn an income while receiving VA TDIU benefits: when the employment is “marginal” and when the employment is “sheltered”.

We’ll look at them in more detail, below.

You might ask “Why” a Veteran is allowed to earn an income in these 2 scenarios while receiving TDIU Benefits.

Truth be told, I have no clue why Congress wrote the laws this way when they wrote them – someday I’ll dig into the legislative history to understand it.

But since Congress allowed it, there is NOTHING wrong with Veterans getting Marginal or Sheltered Employment income while receiving TDIU Benefits.

Marginal Employment & TDIU Benefits.

This is the type of income that many Veterans are aware that they can receive even after being granted TDIU Benefits.

Simply go to the US Bureau of Census website, and look up the “poverty threshold for one person”. (Click here to see the historical poverty ratings tables from 1959 – 2015).

You will see that, for 2014, the poverty threshold for one person is $12,316 per year (if you are under 65), or $11,354 (if you are over 65).

The VA does cross check 2 databases that I know of: Social Security databases that record your work/income history, and IRS databases that record your family income on your annual tax returns. Word to the wise: if you are telling different income stories to different federal agencies, you are playing with fire, and may even be committing fraud.

If you indicate in this form that your income is higher than the poverty threshold, a proposal to reduce your TDIU benefits will be forthcoming.

It’s one of the few times that the VA acts with a sense of purpose – when they want to STOP paying you.

Sheltered Employment & TDIU Benefits

Another way that Veterans can earn an income while receiving TDIU Benefits is by participating in what is called “sheltered employment”.

There are many ways that your income can be considered “sheltered”, but 2 that are clearly identified in the regulation itself:

1) Family business

2) Sheltered Workshop (these are supervised workplaces for adults with a physical and/or mental handicap)

Now, just because you are working for a family business doesn’t mean your job is considered “sheltered employment”. It has to be what the regulation refers to as a “protected environment”.

How can you tell if there is a protected work environment?

What kind of questions would you ask, and what kind of evidence would you need?

2) If the employee leaves the company, will the business hire a “similarly situated” person to fill the position (i.e, another worker with a disability)?

There are 3 scenarios here:

Scenario #1: If the business plans to modify the Veteran’s position after he or she leaves so that there are no longer accommodations to the work duties, environment or schedule, then you can make a pretty good argument that the employment is sheltered. Why? Because it appears that the position may have been created or modified just for the disabled Veteran.

Scenario #2: If the business plans on continuing the accommodation, then its a pretty good argument that the position itself – and anyone that holds it – is sheltered employment. (Many employers do this for the tax advantages available to certain types of “sheltered workshops”).

Scenario #3: If the business plans to eliminate the position after the disabled Veteran leaves the job, then it is most likely “sheltered employment”.

3) Is there evidence that another business in the same industry would NOT hire a similarly situated employee, and pay them a similar income, for the same type of work?

What do I mean here?

Where do you get evidence of this sort of thing?

Honestly, you would hire an economist to prepare an expert report on the nature of the employment and whether or not it is sheltered, based on a survey of the particular industry.

Frankly, providing evidence that answers Question #3 is probably a bit “over the top” in most Sheltered Employment claims.

Legal Advice in Sheltered Employment situations.

Be VERY careful with the Sheltered Employment rules.

These charges usually will not stick – as the US Attorneys that prosecute these crimes have far less understanding of VA regulations than even most VA raters or Board Hearing Officials.

But you’re going to have to pay a criminal defense attorney to make it go away, and the VA ain’t repaying your attorneys fees.

Unemployability from Hill and Ponton

100% vs Unemployability

VA Disability Compensation 100 Disability

VA Compensation Benefits Unemployability or IU

Inidividual Unemployability Considerations

Individual Unemployability Combo Ratings

Individual Unemployability C & P Exam

Individual Unemployability and the Rating You Need

Working with 100 Disability

100 Service Connected and Student Loans

Common Mistakes - 100% vs Unemployability

Individual Unemployability - When to File

How Do I Get A 100 Percent VA Disability Rating

Excerpt from Hill and Ponton’s What is Post Traumatic Stress Disorder (PTSD)

The goal for many veterans is to get to a 100 percent disability rating, but this is not always possible through the rating schedule due to an individual’s particular conditions. But, there is another way to be awarded a 100 percent rating: total disability based on individual unemployability (TDIU). Under 38 C.F.R. s. 4.16, a total disability rating may be assigned if a person who fails to meet the schedular rating is, nevertheless, unable to obtain and maintain a substantially gainful occupation. TDIU is not a separate claim for benefits, but is instead part of the rating process. During the VA benefits process, a veteran is assumed to be seeking the highest benefit allowable, so if facts exist in the record that indicate the veteran is unemployable, the VA is obligated to consider and adjudicate TDIU. Note that this does not always happen, so it is in the veteran’s best interest to begin the TDIU process by submitting VA Form 21-8940 or submitting an informal claim for TDIU in a signed and dated letter or Form 21-4138 (Statement in Support of Claim). If the veteran does the latter, the VA will ask the veteran to complete and submit VA Form 21-8940, which is the formal application for total disability based on individual unemployability. The fact that TDIU claims can be raised by the record, but the VA also requires the submission of Form 8940 complicates the process of determining the correct effective date for TDIU, which is discussed below.

TDIU is an individualized determination that is made in the context of an individual veteran’s capabilities, whether or not an average person would be able to secure substantially gainful employment under the same conditions. Also note that the availability of work in the national or local economy is irrelevant to the consideration of TDIU, and the VA may also not consider the veteran’s age or any non-service-connected disabilities. When making a determination of TDIU, the VA will consider factors such as the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran’s employment history and current employment status, the veteran’s educational history, and the veteran’s annual income from employment, if any. Standing alone, the fact that a veteran may be young or highly educated, or may have been recently employed with a long work career, is not a sufficient justification for a denial of TDIU. The VA is obligated to consider the totality of the circumstances regarding the veteran’s service-connected disabilities and inability to secure and maintain substantially gainful employment, keeping in mind the benefit of the doubt doctrine. If the veteran is taking medication to treat the service-connected disability, the VA should also make an assessment of the effects or side effects of the medication on the veteran’s employability. In addition, if the VA is put on notice that a veteran is receiving Social Security Administration benefits, it is obligated to obtain any relevant records.

The VA should schedule a general medical exam if a veteran expressly asks for a TDIU evaluation or the issue of TDIU is raised in the record. During the exam, the examiner will be asked to provide an opinion as to whether or not it is at least as likely as not that the veteran’s service-connected disability or combined disabilities make him or her unable to secure and maintain substantially gainful employment. The examiner must describe the disabilities’ functional impairment and how that impairment affects both physical and sedentary employment. See Part Three for more C&P exam tips.

TDIU TWO-STEP ANALYSIS

There is a two-step analysis for determining whether a veteran qualifies for TDIU. First, the veteran’s service-connected disabilities must satisfy certain percentage rating requirements under the rating schedule. Second, the veteran must be unable to secure substantially gainful employment due to his or her service-connected disabilities.

For the first step of the analysis, the veteran must have one service-connected disability that is rated at 60 percent or higher, or a combined disability rating of 70 percent, with one of the service-connected disabilities rated at least 40 percent. Note that for the combined disability calculation, certain disabilities are rated together, for example, disabilities that stem from the same accident or that are all part of the same body system.

It is also theoretically possible for a veteran who does not meet either the 60 percent or 70/40 percent requirement to qualify for extraschedular TDIU, although this is a difficult hurdle. For some veterans, they may not meet the percentage requirements, but the nature of their service-connected disability is such that they are not able to secure substantially gainful employment. For example, a veteran may suffer from debilitating migraines, which only have a maximum disability rating of 50 percent, but because the veteran must call in sick to work regularly, he is unable to keep a job. This veteran may want to argue that he should be receiving TDIU on an extraschedular basis. His case will be referred by the regional office to the VA Central Office in Washington, DC, where it will be reviewed by the Director of Compensation and Pension. The referral by the regional office must include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and other factors bearing on the issue, which will usually take the regional office a long time to gather and send along.

The second element of proving TDIU is that the veteran is unable to maintain substantially gainful employment due to his or her service-connected disabilities. Again, note that non-service-connected disabilities are irrelevant in the determination of TDIU. It is important for the veteran to emphasize that it is his or her service-connected disabilities in particular which are causing his or her inability to maintain substantially gainful employment.

What is substantially gainful employment? In simplest terms, substantially gainful employment is employment that is not marginal. Marginal employment means that a person’s earned annual income is less than or equal to the poverty threshold for one person as established by the United States Department of Commerce, Bureau of the Census. Sometimes it is possible for a veteran to earn more than the poverty threshold and still qualify for TDIU. For example, if he or she works in a sheltered environment such as a family business or if he or she is provided accommodations or leniencies by his or her employer on account of service-connected disabilities, such as excessive time off or the ability to leave work at will, that may be considered a sheltered work environment. If a veteran is working, whether in a sheltered environment or in less than substantially gainful employment, the VA will evaluate whether the fact that the veteran is employed is proof of the fact that he or she has the ability to find and secure substantially gainful employment. Therefore, it is important to make clear that while the veteran may be currently employed, he or she does not have the ability to perform work with reasonable consistency and for a reasonable time due to his or her service-connected disabilities. The best evidence for a TDIU determination is a professional opinion from a vocational expert or competent medical doctor stating the due to his or her service-connected disabilities, the veteran is unable to secure substantially gainful employment.

EFFECTIVE DATE

Perhaps the most complicated issue relating to TDIU is the effective date. Because TDIU is not a separate claim, but part of the rating process, it can be difficult to figure out when the award of TDIU should begin, and this is often something that the VA gets wrong. In simplest terms, to determine the effective date for TDIU you must first figure out the date on which the VA first received evidence from some source which indicates that the veteran was unemployable. This could be a letter from a doctor or a notation in medical records which states that the veteran is unable to work due to his or her service-connected disability. Second, you must determine the status of the veteran’s disabilities at the time the VA received this evidence.

There are three main ways to answer the second question. The first possibility is that the VA first received evidence of the veteran’s unemployability when he or she filed a claim for service-connection or when the VA was considering whether to grant service connection. If the VA eventually grants service-connection for the veteran’s disability and awards TDIU, the effective date for the TDIU would be the date the VA received the claim for service connection or the date the veteran first became unemployable due to his or her service-connected disabilities, whichever is later.

If the VA first received evidence of the veteran’s unemployability after the VA granted service connection, but before the VA made a final decision on the rating for the disability, the effective date for an award of TDIU would be the date the VA received the claim for service connection or the date the veteran first became unemployable due to his or her service-connected disabilities, whichever is later.

And finally, if the VA first received evidence of the veteran’s unemployability when he or she filed a claim for an increased disability rating or while a claim for an increased disability rating is pending, the effective date for an award of TDIU would be the date the VA received the claim for an increase in disability rating or the date the veteran first became unemployable due to his or her service-connected disability ratings, whichever is later.

As you can see, this can be a tricky determination to make, so it is always important to analyze the effective date set by the VA to see whether they got it right.

AFTER A TDIU DECISION

If TDIU is denied or the wrong effective date is assigned, the veteran can appeal the decision in the same manner as any other rating decision by filing a Notice of Disagreement (NOD) within one year of the date on the letter that accompanied the TDIU decision. If the veteran fails to file a NOD within one year, the decision becomes final and can only be reopened by submitting new and material evidence or by demonstrating that the decision was the product of clear and unmistakable error.

When a veteran is awarded a total disability rating based on TDIU, the VA may not reduce the benefits unless there is clear and convincing evidence that establishes that the veteran is capable of actual employability. This is a high burden for the VA to meet. Even if a veteran’s disability has materially improved, if the VA cannot prove by clear and convincing evidence that he or she is able to engage in substantially gainful employment, TDIU must be preserved. In addition, if a veteran’s disabilities improve and he or she decides to return to work, his or her TDIU benefits will continue for a year until they are terminated.

Before the VA reduces a disability rating, including TDIU, it must provide a notice of proposed reduction and give the veteran 60 days to submit evidence to show that his or her condition has not improved. The veteran also has the opportunity to request a hearing. It is also likely that the VA will request that the veteran report for a re-examination. An examination that is the basis for a reduction must be even more thorough than the examination that established the current rating or TDIU (see Part Three). The VA must review all the new evidence, including the re-examination report, in the context of all of the evidence in the record in order to reach a new decision on TDIU.

Hurry Up and Wait – at VA the tradition continues

Being in the military everyone knows the hurry up and wait or the standing by to stand by. In this blog post Amanda Dejesus from Hill and Ponton tells about ways veteran’s claims can be expedited.
The VA is notoriously known for their long wait times and their immense backlog. This will often time leave veterans who are dealing with the VA frustrated and wanting to give up. I have heard it too many times before:

“The VA is just waiting for me to die”.

It saddens me every time I hear this. With the continuous backlog, it doesn’t seem to be getting any better.
I was in line waiting to pay for my groceries at my local grocery store when the woman in front of me turned around and stated: “hurry up and wait; that is the story of my life”. I didn’t realize that we must have been waiting in line for at least 15 minutes without moving. We ended up talking about her husband, a veteran, who also understands the struggle of the “hurry up and wait” business. She explained that her husband has been waiting several weeks for his hearing aids. She mentioned that her husband is nearly deaf without them.

The VA’s backlog is not only affecting veterans who are waiting for their hearing aids and other needed medical treatment, but also the veterans who are facing homelessness and extreme financial hardship. The good news is that there may be some light at the end of the tunnel. There are three circumstances that can qualify a veteran’s claim to be expedited or processed with priority:

Veterans who are terminally ill
Veterans who are facing extreme financial hardship and/or homelessness
Veterans who have reached advanced age – there is uncertainty in the law as to whether the age for expedite begins at age 75 years of age or 85 years of age

Providing the VA with evidence of the above circumstances will help the VA determine if a request for an expedite can be granted. However, it is very important to keep in mind that the VA does not have to grant a veteran an expedite.

Some examples of evidence that can be provided to the VA to support a request for an expedite is as follows:

Veterans who are terminally ill:
- A letter from the veteran’s doctor
Veterans who are facing extreme financial hardship:
- Past due bills
- Bank statements
- Proof of bankruptcy
- VA Form 5655: Financial Status Report. This report will show the VA how your monthly expenses exceed the veteran’s income
Veterans who are facing homelessness or who are homeless:
- An eviction notice
- Other proof of homelessness, living in a shelter, etc.
Veterans who have reached advanced age:
- Proof of advanced age, such as a birth certificate or government ID card

Unfortunately, other than under the above circumstances, there are no other real ways to speed up the VA. The VA works on its own time schedule. For this reason, the “hurry up and wait” slogan will be attached to the VA for the foreseeable future.

Veterans who meet the criteria to request an expedite on their claim should do so. As previously stated, it is not guaranteed that the VA will grant the request. But, if all of the necessary evidence and circumstances are present, it is definitely worth a try.

Also checkout

Reasons the VA will Expedite your Case – Hill & Ponton, P.A.

The VA process can be very difficult and frustrating for our veterans in their time of distress. Every veteran’s case presented to the VA is not all the same nor are they merely similar to one another. The average VA claim case can take anywhere from two to five years.

14 Questions about VA Disability Compensation Benefits Claims

History of PTSD in Veterans: Civil War to DSM-5 by Matthew J. Friedman, MD, PhD Senior Advisor and former Executive Director, National Center for PTSD

Exposure to traumatic experiences has always been a part of the human condition. Attacks by saber tooth tigers or twenty-first century terrorists have likely led to similar psychological responses in survivors of such violence. Literary accounts offer the first descriptions of what we now call posttraumatic stress disorder (PTSD). For example, authors including Homer (The Iliad), William Shakespeare (Henry IV), and Charles Dickens (A Tale of Two Cities) wrote about traumatic experiences and the symptoms that followed such events.

The PTSD diagnosis has filled an important gap in psychiatry in that its cause was the result of an event the individual suffered, rather than a personal weakness. PTSD became a diagnosis with influence from a number of social movements, such as Veteran, feminist, and Holocaust survivor advocacy groups. Research about Veterans returning from combat was a critical piece to the creation of the diagnosis. War takes a physical and emotional toll on Servicemembers, families, and their communities. So, the history of what is now known as PTSD often references combat history.

Early attempts at a medical diagnosis

Accounts of psychological symptoms following military trauma date back to ancienttimes. The American Civil War (1861-1865) and the Franco-Prussian War (1870-1871) mark the start of formal medical attempts to address the problems of military Veterans exposed to combat. European descriptions of the psychological impact of railroad accidents also added to early understanding of trauma-related conditions.

Nostalgia, Soldier’s Heart, and Railway Spine

Prior to U.S. military efforts, Austrian physician Josef Leopold (1761) wrote about “nostalgia” among soldiers. Among those who were exposed to military trauma, some reported missing home, feeling sad, sleep problems, and anxiety. This description of PTSD-like symptoms was a model of psychological injury that existed into the Civil War.

A second model of this condition suggested a physical injury as the cause of symptoms. “Soldier’s heart” or “irritable heart” was marked by a rapid pulse, anxiety, and trouble breathing. U.S. doctor Jacob Mendez Da Costa studied Civil War soldiers with these “cardiac” symptoms and described it as overstimulation of the heart’s nervous system, or “Da Costa’s Syndrome.” Soldiers were often returned to battle after receiving drugs to control symptoms.

The thought that physical injury led to PTSD-like symptoms was supported by European reports of “railway spine.” As rail travel became more common, so did railway accidents. Injured passengers who died had autopsies that suggested injury to the central nervous system. Of note, Charles Dickens was involved in a rail accident in 1865 and wrote about symptoms of sleeplessness and anxiety as a result of the trauma.

Shell Shock

In 1919, President Wilson proclaimed November 11th as the first observance of Armistice Day, the day World War I ended. At that time, some symptoms of present-day PTSD were known as “shell shock” because they were seen as a reaction to the explosion of artillery shells. Symptoms included panic and sleep problems, among others. Shell shock was first thought to be the result of hidden damage to the brain caused by the impact of the big guns. Thinking changed when more soldiers who had not been near explosions had similar symptoms. “War neuroses” was also a name given to the condition during this time.

During World War I, treatment was varied. Soldiers often received only a few days’ rest before returning to the war zone. For those with severe or chronic symptoms, treatments focused on daily activity to increase functioning, in hopes of returning them to productive civilian lives. In European hospitals, “hydrotherapy” (water) or “electrotherapy” (shock) were used along with hypnosis.

Battle Fatigue or Combat Stress Reaction (CSR)

In World War II, the shell shock diagnosis was replaced by Combat Stress Reaction (CSR), also known as “battle fatigue.” With long surges common in World War II, soldiers became battle weary and exhausted. Some American military leaders, such as Lieutenant Gen. George S. Patton, did not believe “battle fatigue” was real. A good account of CSR can be found in Stephen Crane’s Red Badge of Courage, which describes the acute reaction of a new Union Army recruit when faced with the first barrage of Confederate artillery.

Up to half of World War II military discharges were said to be the result of combat exhaustion. CSR was treated using “PIE” (Proximity, Immediacy, Expectancy) principles. PIE required treating casualties without delay and making sure sufferers expected complete recovery so that they could return to combat after rest. The benefits of military unit relationships and support became a focus of both preventing stress and promoting recovery.

Development of the PTSD diagnosis

In 1952, the American Psychiatric Association (APA) produced the first Diagnostic and Statistical Manual of Mental Disorders (DSM-I), which included “gross stress reaction.” This diagnosis was proposed for people who were relatively normal, but had symptoms from traumatic events such as disaster or combat. A problem was that this diagnosis assumed that reactions to trauma would resolve relatively quickly. If symptoms were still present after six months, another diagnosis had to be made.

Despite growing evidence that trauma exposure was associated with psychiatric problems, this diagnosis was eliminated in the second edition of DSM (1968). DSM-II included “adjustment reaction to adult life” which was clearly insufficient to capture a PTSD-like condition. This diagnosis was limited to three examples of trauma: unwanted pregnancy with suicidal thoughts, fear linked to military combat, and Ganser syndrome (marked by incorrect answers to questions) in prisoners who face a death sentence.

In 1980, APA added PTSD to DSM-III, which stemmed from research involving returning Vietnam War Veterans, Holocaust survivors, sexual trauma victims, and others. Links between the trauma of war and post-military civilian life were established.

The DSM-III criteria for PTSD were revised in DSM-III-R (1987), DSM-IV (1994), DSM-IV-TR (2000), and DSM-5 (2013) to reflect continuing research. One important finding, which was not clear at first, is that PTSD is relatively common. Recent data shows about 4 of every 100 American men (or 4%) and 10 out every 100 American women (or 10%) will be diagnosed with PTSD in their lifetime.

An important change in DSM-5, is that PTSD is no longer an Anxiety Disorder. PTSD is sometimes associated with other mood states (for example, depression) and with angry or reckless behavior rather than anxiety. So, PTSD is now in a new category, Trauma- and Stressor-Related Disorders. PTSD includes four different types of symptoms: reliving the traumatic event (also called re-experiencing or intrusion); avoiding situations that are reminders of the event; negative changes in beliefs and feelings; and feeling keyed up (also called hyperarousal or over-reactive to situations). Most people experience some of these symptoms after a traumatic event, so PTSD is not diagnosed unless all four types of symptoms last for at least a month and cause significant distress or problems with day-to-day functioning.

Today and tomorrow

Today VA operates more than 200 specialized programs for the treatment of PTSD. In Fiscal Year (FY) 2013, more than a half million Veterans diagnosed with PTSD received treatment at VA medical centers and clinics.

VA is committed to provide the most effective, evidence-based care for PTSD. It has created programs to ensure VA clinicians receive training in state-of-the-art treatments for PTSD. At of the end of FY 2013, VA had trained more than 5000 of its clinicians to use Cognitive Processing Therapy (CPT) or Prolonged Exposure (PE), which are cited by the Institute of Medicine Committee on Treatment of PTSD as proven to be effective treatments for PTSD.

VA’s National Center for PTSD was created in 1989 by an act of Congress, and celebrated its 25th anniversary on August 29, 2014. We continue to be at the forefront of progress in the scientific understanding and treatment of PTSD. In addition to improving upon existing treatments, we are researching effective new treatments. We are also developing new educational products such as our What is PTSD?whiteboard video. For more information on the National Center for PTSD, please visit our About Us section of the website.

Sources

National Center for PTSD May 2017

Portions of this fact sheet originally appeared in a Veterans Day observance post on VA’s blog, VAntage Point (November 7, 2013). For more information about the history of the PTSD diagnosis, see PTSD History and Overview in the Professional Section of our website.

How Common Is PTSD?

Posttraumatic stress disorder (PTSD) can occur after you have been through a trauma. A trauma is a shocking and dangerous event that you see or that happens to you. During this type of event, you think that your life or others’ lives are in danger.

Going through trauma is not rare. About 6 of every 10 men (or 60%) and 5 of every 10 women (or 50%) experience at least one trauma in their lives. Women are more likely to experience sexual assault and child sexual abuse. Men are more likely to experience accidents, physical assault, combat, disaster, or to witness death or injury.

PTSD can happen to anyone. It is not a sign of weakness. A number of factors can increase the chance that someone will develop PTSD, many of which are not under that person’s control. For example, if you were directly exposed to the trauma or injured, you are more likely to develop PTSD.

Here are some facts (based on the U.S. population):
- About 7 or 8 out of every 100 people (or 7-8% of the population) will have PTSD at some point in their lives.
- About 8 million adults have PTSD during a given year. This is only a small portion of those who have gone through a trauma.
- About 10 of every 100 women (or 10%) develop PTSD sometime in their lives compared with about 4 of every 100 men (or 4%). Learn more about women, trauma and PTSD.

PTSD and the Military

When you are in the military, you may see combat. You may have been on missions that exposed you to horrible and life-threatening experiences. These types of events can lead to PTSD.

The number of Veterans with PTSD varies by service era:
- Operations Iraqi Freedom (OIF) and Enduring Freedom (OEF): About 11-20 out of every 100 Veterans (or between 11-20%) who served in OIF or OEF have PTSD in a given year.
- Gulf War (Desert Storm): About 12 out of every 100 Gulf War Veterans (or 12%) have PTSD in a given year.
- Vietnam War: About 15 out of every 100 Vietnam Veterans (or 15%) were currently diagnosed with PTSD at the time of the most recent study in the late 1980s, the National Vietnam Veterans Readjustment Study (NVVRS). It is estimated that about 30 out of every 100 (or 30%) of Vietnam Veterans have had PTSD in their lifetime.

Other factors in a combat situation can add more stress to an already stressful situation. This may contribute to PTSD and other mental health problems. These factors include what you do in the war, the politics around the war, where the war is fought, and the type of enemy you face.

Another cause of PTSD in the military can be military sexual trauma (MST). This is any sexual harassment or sexual assault that occurs while you are in the military. MST can happen to both men and women and can occur during peacetime, training, or war.

Among Veterans who use VA health care, about:
- 23 out of 100 women (or 23%) reported sexual assault when in the military.
- 55 out of 100 women (or 55%) and 38 out of 100 men (or 38%) have experienced sexual harassment when in the military.

There are many more male Veterans than there are female Veterans. So, even though military sexual trauma is more common in women Veterans, over half of all Veterans with military sexual trauma are men.

Sources
- National Center for PTSD
- This fact sheet is based on a more detailed version located in the “Professional” section of our website: Epidemiology of PTSD.

Contact Federal Elected Officials

Whitehouse Veterans Complaint/Information Line 855-948-2311 Use this number for all veteran related complaints.
President Donald Trump – Contact the President of the United States by filling out the online contact form or by calling the White House switchboard at 202-456-1414 or the comments line at 202-456-1111 during business hours.
Members of the U.S. Congress
- U.S. Senators – Get contact information for your Senators in the U.S. Senate.
- U.S. Representatives – Find the website and contact information for your Representative in the U.S. House of Representatives.

Contact State Elected Officials

State Governors – Learn how to get in touch with your state governor.
State Legislators – Find the names and current activities of your state legislators.

Contact Local Elected Officials

U.S. Mayors – Locate mayors by name, city, or population size.
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Recipients, Payments and Disabilities FY 2016

Read the Full Report here VBA Annual Benefits Report FY 2016

Trending VA Disability Claims Topics

Tinnitus | Hearing Loss
PTSD
Retroactive Pay
ETS
Notice of Disagreement (NOD)
Major Depression
Migraines
FDC Fully Developed Claim
Veterans Evaluation Services
Degenerative Disc Disease
E-Benefits
- Preparation Decision Approval
- Preparation for Notification
- Sleep Apnea
- Erectile Dysfunction
- Hypertension High Blood Pressure

The most common VA disabilities:

Totals – new recipients

Veterans who began receiving compensation benefits	284,550
Survivors who began receiving service-connected death benefits	28,891
Total:	313,441

Estimated annual amounts paid – new recipients

Benefit program	Number of recipients	Estimated average individual amount paid annually	Estimated total amount paid annually
Compensation	284,550	$11,661	$3.32 Billion
Service-Connected Death1	28,891	$16,016	$462.7 Million
Total:	313,441	$12,063	$3.78 Billion

Most prevalent service-connected (SC) disabilities of new compensation recipients

(Note: Total disabilities are not the total number of veterans, as one veteran may have multiple disabilities)

Tinnitus	149,429
Hearing loss	77,622
Limitation of flexion, knee	72,270
Lumbosacral or cervical strain	71,653
Scars, general	58,134
Post-traumatic stress disorder	53,983
Limitation of motion of the ankle	48,601
Migraine	42,400
Impairment of the knee, general	36,490
Paralysis of the sciatic nerve	34,505
Total number of most prevalent disabilities Total number of disabilities2	645,087 1,495,373

Average number of SC disabilities per new compensation recipient

New Recipients: 284,550	Total number of disabilities: 1,495,373
Average SC disabilities per Veteran:	5.26

Tinnitus – it’s a brain malady…

After an injury tinnitus can occur and sufferers experience phantom sounds. Veterans are exposed to some very loud noises and there are times that ear protection is not practical, among veterans claimed disabilities tinnitus has been the top disability receiving compensation for at least the past 2 years. Compounding the problem of tinnitus and the pain it brings is an increased risk for depression and anxiety. Two disabilities that veterans are at risk for.

It’s a pretty interesting article, I hope you enjoy it.

In the October issue of Trends in Cognitive Sciences, researchers say identifying the problem is the first step to developing effective therapies for these disorders, which afflict millions of people. None now exist.

The scientists describe how the neural mechanisms that normally “gate” or control noise and pain signals can become dysfunctional, leading to a chronic perception of these sensations. Neuroscientists reveal the brain malady responsible for tinnitus, chronic pain

Further Reading

VA disability claims for noise-related hearing loss or tinnitus, there are certain things you’ll want to do to help your case:

Provide detailed statements that explain the noise exposure you experienced during your military service.
Cite the sources of the noise such as the machinery you used or the environment you worked in.
Cite the duration of the exposure, and explain the type of hearing protection available for use (including no protection).

Tinnitus – VA Disability Claims

Neuroscientists reveal the brain malady responsible for tinnitus, chronic pain

Neuroscientists at Georgetown University Medical Center and Germany’s Technische Universität München say they’ve uncovered the brain malady responsible for tinnitus and for chronic pain – the uncomfortable, sometimes agonizing sensations that persist long after an initial injury.

The Power of 38 CFR 4.6

I mention here, from time to time, the power of 38 CFR 4.6. I am putting this in the main forum because I think Veterans Affairs makes more CUEs regarding this regulation, then we know. Source Berta Simmons VA Claims Forum

One of the first things vet reps should look for in a denial, is whether the VCAA letter was correct (if that letter is detrimental to the claimant, it will surely become a lengthy BVA case, remand due to VCAA violation, and back to BVA scenario ).

VCAA letters are different fopr survivors then for veterans…I made that point here in past posts and then whether the decision contains a CUE……do most vet reps really check those important points?

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6

A violation of this regulation can be a basis , within or out of the appellate period., for a valid CUE claim. I claimed CUE immediately under this regulation regarding my initial AO IHD decision and that CUE was fixed right away. The decision however contained another CUE which I have claim pending on.

I was going over my pending CUE based on this regulation, (38 CFR 4.6 ) I almost forgot I had cited a BVA decision that, because it is a legal decision and not medical, and explains what I mean.Also theBVA decision cited Veterans Affairs case law that I didn’t have to reiterate.”

In part:

“The veteran’s assertion of CUE is based on VA’s failure to consider highly relevant medical evidence, that is, the RO denied the existence of medical evidence that was clearly of record at the time of the rating decision. The Board is convinced that the RO committed error based on the record and the law that existed at the time the decision was made and had the error not been made, the outcome would have been manifestly different. Grover, supra.

This error is significantly more than a disagreement as to how the facts were weighed or evaluated. Crippen, supra. Rather, it was a denial of the existence of facts of record. Moreover, a persuasive reason has been given as to why the error manifestly changed the outcome. This reason is that had the error not been made, a compensable rating for irritable bowel syndrome would have made effective the day following separation from active military service, rather than the day that a Veterans Affairs outpatient treatment report noted irritable bowel syndrome. This review for CUE is based solely on the evidence of record at the time of the February 2000 rating decision. Russell, supra.

In conclusion, the veteran has shown that error occurred based on the record and the law that existed at the time the decision was made. After considering the evidence of record at the time of the June 1989 rating decision as well as the veteran’s later testimony concerning VA’s failure to observe that evidence, the Board finds that the veteran has demonstrated CUE in the February 2000 RO decision. An earlier effective date of October 29, 1989, for a 30 percent rating for irritable bowel syndrome must be granted.”

CONCLUSIONS OF LAW

1. The criteria for a 30 percent schedular rating for irritable bowel syndrome with gastroesophageal reflux are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10,
4.114, Diagnostic Code 7319 (2008).”

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp08/Files5/0844495.txt

Evidence in the record at time of the alleged CUE decision, violation of basic Veterans Affairs case law, regarding evidence, in place at time of the past decision proof of a ratable condition at time of the alleged CUE decision, and a proven manifested and altered outcome…meaning more retro is due the vet (in this case back to the day after his discharge…..1989.

I am glad I found that I had used this decision in my pending claim because maybe it will help others to understand how I have been successful with both types of CUE claims.

But besides using this decision,in my claim, my evidence is relevant and probative and fits into the entire gamit of CUE regs, as above.

It is evidence that was in VA’s possession at time of alleged CUE decision, and ignored completely by the VA.

The manifested outcome, I stated to VA, is 100% P & T ,1151for 16 additional months, due the veteran, plus one spouse, one child.Plus SMC S for those 16 months.

This is also an example of why every surviving spouse should substitute themselves ASAP for any claims the veteran had pending at death.

And aggressively fight over any decisions that contain CUE to their detriment.

Back and Cervical Pain – Bulging Disc and the C and P Exam ROM Test

I have a C&P coming up in October for Neck/Back pains. While in Iraq in 2004, I fell off of a 916 semi-truck and have buddy statements to verify this. I also have medical proof that I went to the TMC in theater and it was considered a “sprain” and was given light duty for a few days. In my medical records from the field hospital in Iraq, it states that this the back injury is service connected. When I returned home in 2005, I went to the VA and had MRI’s done that confirmed I had a bulging disc going away from my spine. Since 2005, I have dealt with varying levels and range of motion and pain. My family doctor wrote a Stressor statement for me that he has been treating me for a Bulging Disc and believes that is it Service Connected. My Family Doctor is also a DR in the Army Reserves. My concern is that I have constant lower back pain due to the bulging disc, but if forced to try and ignore the pain, my ROM may appear to be better than it is, especially if PAIN is considered a much less gauge when testing for SC back problems.

I have read on many forums that ROM is the main test used to determine a SC rating, but if that range is done in PAIN, will they take that into consideration. I do not want to do anything that would seem shady or lying, I simply want what is owed to me for my service and the injuries I incurred while in theater. Should I state that I have constant lower back pain in varying levels of pain when testing my ROM? I’m concerned after reading many post that pain is not the primary assessment tool used but rather ROM. If your able to move your neck and back but am always in pain, what’s that say? Should I stop when the pain occurs? Rodney

I can only speak as a licensed massage therapist, but, I’ve witnessed ROM exams before. Usually common sense, which I know is not very common, should prevail. But you should inform anybody testing or touching you before they touch you about your injury and request that they DO NOT HURT YOU. Do this without drama, its a fairly reasonable request.

A good tester should ask when is the pain felt? and to what degree of pain? Like you said, just be honest – don’t exaggerate, and do not understate your pain either. Usually they will try to find first pain range and take you to a reasonable limit – but it will be both of your jobs to keep communicating. You should not be brought to severe pain. So, yes, your pain indication is taken into account during ROM testing. But so is the credability of your response — the examiner will also evaluate if your embellishing or exaggerating. Just be honest. Real Simple.

Generally, there are 2 types of ROM tests. Passive: When they move your limbs and Active, where they test your own ability to move. Either way. Tell them when it hurts. No drama. Here is a great clip to see if your faking, they very well may do this on you.

Regarding your family doctor statements. He needs to use different language than just “believes” its service connected.

VA requires more than “belief.” Terms such as “more likely than not” and he should state the actual injury as the event. Use the dates of injury. Also, having disc bulges are not in and of itself a nexus as many people have bulges without pain. Back pain science is very much in disagreement. So the MRI in 2005 doesn’t prove the bulge was caused by your injury – only you have a disc bulge. And please, I do understand your situation. The best documentation for you will be to have a specialist, such as an Orthopedic Dr, state your current condition, your pain, your physical (and even mental) limitations and also state that you incurred the injury (just as you mentioned it) and he opines this injury is “more likely than not” causing your disability.

Hell – he might write its definitely causing it. But not necessary. I’m sure the rest of the message board gives all the legal jargon pretty much the same. Mikey5311

Less Likely, More Likely Than Not – and why reasonable doubt rule is one of the most important liberalizing rules that Veterans Affairs uses…

If you spend any time reading VA case law you’ll come across the phrase less likely, more likely than not and so on. In the VA Clinicians Guide for Disability Examination it lays out how these are weighted.

Independent Medical Opinions by Your Private Physician

An Independent Medical Opinion (IMO) from a treating physician is in many instances a critical part of a veteran’s disability compensation claim. An IMO may sway the “benefit of the doubt” in favor of a veteran’s claim, or it may actually be the missing ‘link’ or nexus in a claim. When a veteran asks his or her physician to compose an IMO, there are a couple of things that should be noted in it. One of most important things that should be done and mentioned in the IMO is that the medical professional has reviewed the entire medical record including the veteran’s SMR’s. The medical professional should also state his or her area of expertise and additional training.

For example, if the doctor is board certified in radiology, they should state that; especially when rending any comments in regards to radiological film studies. Also, it is very important that the physician give their rational as to why they have come to a certain conclusion. The physician, when giving his/her rational, should also cite any relevant medical literature that may support the findings. By doing all of this, the IMO becomes probative. There is also certain language the physician needs to use when opining whether or not the disability(ies) at hand is/are related to the veteran’s service. The following phrases are from the Department of Veterans Affairs “Clinician’s Guide for Disability Examination;”

“is due to” (100% sure)
“more likely than not” (greater than 50%)
“at least as likely as not” (equal to or greater than 50%)
“not at least as likely as not” (less than 50%)
“is not due to” (0%)

The phrase “at least as likely as not” is the legal phrase that is needed for VA to award service-connection for a particular disability based on the “Benefit of the Doubt” when an IMO should be the deciding factor in the evidence of record.

Note: You shouldn’t send your regional office any medical articles printed from the internet. They only pertain to the general population and aren’t afforded very much weight when they are being evaluated by the decision maker. The VA needs something from a doctor that states your disability(ies) are related to your service, not something meant for the general public.

Reasonable Doubt Rule

The Reasonable Doubt rule is one of the most important liberalizing rules that VA uses to grant veterans benefits and is defined under 38 CFR, §3.102. The Reasonable Doubt rule means that when there is an equal balance of evidence for and against the claimant, that the claimant be awarded there claim. This is just like in baseball as the “tie goes to the runner.” Keep in mind this doesn’t mean that just because there is ten pieces of evidence for your claim and 10 against that you will be granted your claim. It means that after consideration by the decision maker at VA, they have weighed the evidence and in their judgment there is an equal balance, then they must resolve reasonable doubt in the claimants favor. It also doesn’t mean that if, for example, there is 5 pieces of evidence in favor of a claim and only one against, that a claim will automatically be granted because there is a preponderance of evidence (meaning more evidence in favor of the claim than against) in your favor. The decision maker must still weigh the probative value of each piece of evidence and determine the weight of each piece in relationship to each other and the claim, and then reach a decision as to whether there is a balance of evidence for the claim and against the claim based on the weight given to each of that evidence.

Note: The resolution of the Reasonable Doubt doctrine can not be the basis for a Clear and Unmistakable Error (CUE). Since the Reasonable Doubt doctrine is based on Judgment made by a decision maker, it cannot be a basis for a CUE.

More

Veterans Self Help Guide

VA Decision Ready Claims

The Decision Ready Claim (DRC) Program is the fastest way to get your claim processed. With the DRC Program you can get a decision on your claim within 30 days when you work with an accredited Veterans Service Organization (VSO). Your VSO will help you gather and submit all relevant records and evidence, including federal and medical records and Disability Benefits Questionnaires (DBQs), and will request your VA claim exam, so your claim is ready for VA to make a decision when you submit it.

What types of claims are eligible for the DRC Program?

Currently, the DRC Program is limited to compensation claims for increase. The disability must already be service-connected, and you must have medical evidence to show the condition has gotten worse since your
last rating.

You cannot le your claim through the DRC Program if you currently have another disability claim pending, if you have an appeal pending for the condition you want an increase for, or if your claim is related to pension or special monthly compensation (SMC). To see a full list of exclusions that would remove your claim from the DRC Program, go to www.bene ts. va.gov/compensation/drc.asp.

VA is working to expand the DRC Program to include more types of claims. Check back with your Veterans Service Organization (VSO) to see if any updates have been made to the DRC Program.

How do I file a claim under the DRC Program?

You must work with an accredited VSO to le a claim through the DRC Program. You can nd an accredited VSO near you and appoint them to serve as your representative free of charge by going to www.ebene ts. va.gov/ebene ts/vso-search.

Your accredited VSO will help you determine if the DRC Program is right for your claim. They are fully trained on the DRC Program and can serve as a quali ed advocate for you.

What information do I need to submit so that my claim is decision-ready?

Bring copies of your federal records, medical records, completed Disability Bene ts Questionnaires (DBQs), and any other supporting evidence when you meet with your VSO. Your VSO can also help you gather any medical information you are missing to make sure your claim is complete.

As part of the DRC Program, VSOs can now quickly request a VA claim exam for you, also sometimes called a Compensation & Pension (C&P) exam, before you submit your claim. Providing all relevant evidence when you submit your DRC allows VA to process your claim faster.

For more information about the DRC Program, go to www.bene ts.va.gov/compensation/drc.asp or call 1-800-827-1000 (toll-free).

Potential Exposure at Fort McClellan

From Hill and Ponton

Fort McClellan, AL, served as training and scientific research ground for some of the most volatile chemical, biological, and radiological materials used by the US military. As the US was gearing up to enter WWI, President Woodrow Wilson purchased the property, and it was utilized to train and mobilize troops headed off to the Great War. After the armistice, it served as a demobilization station until 1922 when it began its long history in the training of chemical warfare with the assignment of a Chemical Warfare Service Officer who inspected the installation’s suitability for chemical warfare training and demonstrations. In 1999, the installation was closed due to BRAC legislation. This legislation included a requirement for environmental cleanup before the transfer of the property to public domain status. Almost 100 years after the creation of Fort McClellan, in 2013, an Agency for Toxic Substances and Disease Registry (ATSDR) assessment stated that the property is “not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility (Monsanto).”

Toxic Exposure

Fort McClellan’s toxic exposure history is long and involved outside industry as well as the US Army’s own chemical, biological, and radiological materials. Starting in the 1920s, Fort McClellan and Anniston, AL, were home to polychlorinated biphenyls (PCBs), mace, tear gas, mustard gas, white phosphorus, Cobalt (Co-60), uranium, plutonium, Cesium (Cs-137) Napalm-B, Agent Orange, nerve and blister agents. Over 600,000 troops were exposed between 1927 and 1999 to an array of toxins through direct exposure in chemical weapons training, or indirect exposure through the air, soil, and water that was polluted by the toxins from the installation and the nearby Monsanto plant. Monsanto settled a class action lawsuit with the residents of Anniston, AL in 2003, but veterans who lived and trained at the fort were not included in that lawsuit. Read about additional superfund cleanup sites at Army and Air Force bases in our blog “Is Jet Fuel Another Agent Orange?”

https://www.hillandponton.com/fort-mcclellan-toxic-exposures-veterans-need-know/

From Veterans Affairs

Fort McClellan was an Army installation in Alabama that opened in 1917.

Some members of the U.S. Army Chemical Corp School, Army Combat Development Command Chemical/Biological/Radiological Agency, Army Military Police School and Women’s Army Corps, among others, may have been exposed to one or more of several hazardous materials, likely at low levels, during their service at Fort McClellan. Potential exposures could have included, but are not limited to, the following:

Radioactive compounds (cesium-137 and cobalt-60) used in decontamination training activities in isolated locations on base.
Chemical warfare agents (mustard gas and nerve agents) used in decontamination testing activities in isolated locations on base.
Airborne polychlorinated biphenyls (PCBs) from the Monsanto plant in the neighboring town.

Although exposures to high levels of these compounds have been shown to cause a variety of adverse health effects in humans and laboratory animals, there is no evidence of exposures of this magnitude having occurred at Fort McClellan.

PCBs and the Monsanto chemical plant

From 1929 to 1971, an off-post Monsanto chemical plant operated south of Fort McClellan in Anniston. PCBs from the plant entered into the environment, and the surrounding community was exposed.

Since the 1990s, several investigations have been conducted to characterize the exposure of Anniston residents to PCBs from the Monsanto plant. In 2015, the Agency for Toxic Substances and Disease Registry (ATSDR) published an assessment of the potential health risks caused by airborne PCBs in Anniston and concluded that the concentrations found were “not expected to result in an increased cancer risk or other harmful health effects in people living in the neighborhoods outside the perimeter of the former PCB manufacturing facility.”

Fort McClellan today

Fort McClellan closed in 1999 as part of the Army Base Closure and Realignment Committee (BRAC) program. The BRAC legislation required the environmental cleanup of Fort McClellan prior to its transfer to the public domain. Oversight of parts of the base have since been transferred to the Alabama Army National Guard, Department of Health and Human Services, Department of Justice, and the Department of the Interior, as well as to the community of Anniston, where the re-development and re-use of the land is overseen by the McClellan Development Authority.

Veteran health care and compensation benefits

Veterans who are experiencing health issues that they associate with their service while at Fort McClellan should see their primary care provider or contact their local Environmental Health Coordinator.

Veterans may also file a claim for disability compensation. VA decides these claims on a case-by-case basis.

Source: https://www.publichealth.va.gov/exposures/fort-mcclellan/ Last updated 2017

Useful resources

DoD Fort McClellan website
Environmental Cleanup Program Fact Sheets
McClellan Land Use Map
Chemical Fact Sheets
Environmental Baseline Survey
- Volume I
- Volume II
ATSDR Health Consultation: Airborne PCBs in Anniston
Federal Register Notice of Intent (2001)
EPA Superfund Webpage: Anniston, AL

Caluza Triangle defines what is necessary for service connection.

Caluza Triangle – Caluza vs Brown defined what is necessary for service connection see COVA– CALUZA V. BROWN–TOTAL RECALL

This has to be MEDICALLY Documented in your records:

Current Diagnosis. (No diagnosis, no Service Connection.)
In Service Event or Aggravation.
Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”

This is also known as the “Hickson Elements” for a later case. Why you need to know: If all 3 of these things are not documented in your medical and service records, then you will need to obtain this documentation before getting service connected. This applies if you applied last week, or 10 years ago.

Note: Secondary Service Connection and Presumptive’s are a little easier. If you have a diagnosis, and a doctor says that your diagnosis is at least as likely as not a result of your (service connected condition), then you need not AGAIN establish an in service event or aggravation. A presumptive Service connection means if you meet the applicable criteria, then your condition is “presumed” to be caused by military service. You are still gonna need a current diagnosis, but you may get a bye on the nexus if you meet the requisite criteria for presumptive conditions.

Hickson Elements

In order to establish service connection for the claimed disorder, there must be

medical evidence of a current disability;
medical, or in certain circumstances, lay evidence of the incurrence or aggravation of a disease or injury in service or during the presumptive period; and
medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).

More on Caluza Triangle from member Broncovet:

uscova-90-0818-caluza-v-brown

Veterans Appeals Improvement and Modernization Act

The new VA appeals process explained by Matt Hill, grab a cup of coffee and a notepad, as to be expected from VA, it’s not a simple straightforward line.

The VA appeals process is going through its biggest change since the 1980s. In 2017, Congress passed the Veterans Appeals Improvement and Modernization Act. This act takes apart the current appeal system and replaces it with a new process aimed to improve the experience for all involved in the process.

First, let’s recap what the system currently looks like. Ready?

Claimant files a claim. The VA regional office, RO, sends VCAA letter. After that, RO mails notice of its decision. Claimant files notice of disagreement. The claimant must file NOD within one year of mailing of rating decision.

The claimant has the option of requesting a DRO review, but the claimant must request DRO review within 60 days of VA letter offering it. If the claim is denied, VA mails a statement of the case, SOC. Note, if the VA grants the claim, then you go back to the beginning of this process. The claimant has 60 days to file the Substantive Appeal VA Form 9 from the date of the SOC or a year from the date of the rating decision, whichever is later.

Board of Appeals decides the case, appeals to the CAVC within 120 days. Of course, if a claim is granted at any point, then it goes back to the beginning of this cycle, and the appeal process starts all over again. Ugh.

Let’s take a brief look at what stays the same and what is changing. Then we can talk about how the process works.

There will still be a rating decision after every claim is filed. A claimant will still have the opportunity to have a more seasoned adjudicator review the decision in the regional office. The claimant can still appeal to the Board of Veterans’ Appeals.

What’s gone? State of the case, gone. VA Form 9, gone. Reopened claims? Not anymore. The need for new and material evidence, gone. DRO decision, gone. What is replacing these? Supplemental claims, relevant evidence, higher level review, one NOD filed directly to the Board of Veterans’ Appeals. The middleman is gone.

In the current system, when a veteran is dissatisfied with a decision and wants to preserve the date of the claim, he has only one route: file an NOD. Forgot to file a necessary document? File an NOD. Missing a piece of evidence? File an NOD. The VA made a mistake of law? File an NOD.

Veterans Appeals Improvement and Modernization Act

Now, when a veteran files a new claim, the VA will issue a rating decision that must contain the following: what issues were decided, summary of evidence considered by the VA, summary of applicable laws and regulations, identification of findings favorable to the claimant, explanation of why claim was denied, explanation of how to get evidence used in making the decision, and identification of criteria that must be satisfied to grant service connection or the next higher level of compensation. After this rating decision, you have one year to take action. You are to appeal for a higher review at the RO, file new evidence or file an NOD to go to the Board of Veterans’ Appeals.

Higher Level Review

You have one year from the initial claim to seek this route. This lane allows for a quality check on the original opinion while still at the VA regional office. Now, you cannot submit additional evidence or request a hearing here. The review is de novo, which is fancy Latin meaning review without giving weight to the prior decision. If the decision is favorable, your original claim date is preserved. If it is unfavorable, you have an option to file a supplemental claim or to file an NOD to appeal to the board.

Supplemental Claim

Welcome to the new evidence lane. You have one year from the date of your decision to file additional evidence. Under the new law, this is now referred to as a supplemental claim. In this lane, you may submit additional evidence that is new and relevant. Upon receipt of your new evidence, VA will attempt to make a decision within 125 days. Your effective date, the day from which the VA will pay your benefits, will be the day you file the first claim.

Once the adjudicator makes a decision, you must ask yourself, are you satisfied with this decision? At this point, you get to choose from the three options again: one, as you’ve already done, you can submit additional evidence within a year and preserve the date of your claim; two, you can request a higher level review; or three, board review lane.

Board Review Lane

This is where you file an NOD and your case moves from the regional office to the Board of Veterans’ Appeals. Here, there will be three lanes to choose from: one, fully developed appeal, a claim that is ready for decision by the BVA and there is no further evidence to submit; two, hearing request with the chance to submit additional evidence; or three, request to submit evidence but not hold a hearing. If the decision is favorable, your original claim date is preserved. If it is unfavorable, you have an option to file a supplemental claim within a year, or you can file an appeal to the Court of Appeals for Veterans Claims. You only have 120 days to file this appeal though.

File an appeal with the CAVC and win, and your original claim date is preserved. If you do not prevail, then you have a year to file a supplemental claim. Should you win after that, you still preserve your original claim date.

Reprinted with permission from Hill and Ponton Disability Attorneys

Further Reading

Featured

Requesting Your Claims File

Typical Documents in a VA Claims Folder

DD-214, Report of Separation From Service

Application for Benefits

Denial Letter, Ratings Decision, and Code Sheet

Service Medical Records

VA Medical Records

Compensation and Pension exam

Service Personnel Records

Appeal Documents in a Claims File

Regarding FOIA Requests

Hadit.com Tip

Historical Rate Tables

Scenario #1: 100% TDIU May Not be Permanent.

Scenario #2: A 100% rating doesn’t get you the right Effective Dates.

Scenario #3: Special Monthly Compensation

VA Disability Rating for PTSD: Non-Combat Stressor

Veterans Must Prove Non-Combat Stressors in a VA PTSD Disability Claim.

This post is about the JSRRC – and what it does in a PTSD Compensation claim.

Here’s how the VA’s JSRRC PTSD Disability Stressor Game is Played.

Veteran David Gagne had enough of the VA’s little JSRRC game, and appealed his PTSD Disability denial to the CAVC.

Do you have questions about how to service connect sleep apnea claims?

Lesson #1: Sleep Apnea is a Killer.

Lesson #2: Sleep Apnea is affecting a LOT of Veterans.

Lesson #3: The VA & BVA really struggle to Service Connect Sleep Apnea claims.

Lesson #4: More Veterans Should be Able to Service Connect Sleep Apnea.

1 Appeals and Claims are different

Claims defined

The Appeals Process

2 Appeals at the Regional Office

3 Appeals at the Board of Veterans Appeals

4 When an appeal is remanded

5 VA’s Plan

Board of Veterans Appeals

VA Disability Compensation

Pre-Discharge Claims

Claims Based on Pre-Service Disabilities

Claims Based on In-Service Disabilities

Pages: Page 1 Page 2

VA disability claims for noise-related hearing loss or tinnitus, there are certain things you’ll want to do to help your case:

More from our site:

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Veterans that Receive 100% Schedular Ratings have NO Limitations on Their Ability to Work.

Can a Veteran Earn an Income while Receiving VA TDIU Benefits?

#1: Marginal Employment & TDIU Benefits.

#2: Sheltered Employment & TDIU Benefits

Legal Advice in Sheltered Employment situations.

I got a request to see how I wrote Claims, so here they are:

Hearing loss, Peripheral Vestibular Discorder, and Tinnunitis.

Digestive disorder.

Skin disorder.

VA’s 2015 Decision on these three Claims.

EFFECTIVE DATE

AFTER A TDIU DECISION

Early attempts at a medical diagnosis

Nostalgia, Soldier’s Heart, and Railway Spine

Shell Shock

Battle Fatigue or Combat Stress Reaction (CSR)

Development of the PTSD diagnosis

Today and tomorrow

Sources

PTSD and the Military

Totals – new recipients

Estimated annual amounts paid – new recipients

Average number of SC disabilities per new compensation recipient

Independent Medical Opinions by Your Private Physician

Reasonable Doubt Rule

What types of claims are eligible for the DRC Program?

How do I file a claim under the DRC Program?

Toxic Exposure

PCBs and the Monsanto chemical plant

Fort McClellan today

Veteran health care and compensation benefits

Useful resources

Veterans Appeals Improvement and Modernization Act

Higher Level Review