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5 things you Didn’t Know about Total VA Disability Ratings

VLB

 

The phrases “100% disabled,” “permanent and total VA disability ratings,” and “total VA disability rating” get thrown around a lot in Veterans disability benefits claims.

Problem is, that phrase doesn’t always mean the same thing to everyone.   In fact it can mean several different things in at least 5 different types of service connection claims.

Let’s see if we can clear some of the confusion up.

5 things many Veterans don’t know about Total VA Disability Ratings.

1)  There are MANY paths to a 100% rating.

The idea of a Total VA Disability Ratings start from the same point:

Total (100%) disability ratings will be assigned “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. § 3.340(a) (2013).

There are 5 ways to get there, though:

* Total VA Disability Based on 100% Schedular Rating. When the Veteran’s service-connected condition meets the 100% impairment rating requirements found in Table 4 of 38 CFR, they receive a 100% schedular rating).

* Total Disability Based on Schedular TDIU (When a Veteran has one service connected condition at 60%, or a total rating of 70% with one being at least 40%, the Veteran can request a 100% schedular TDIU rating).

* Total Disability Based on Extra-Schedular TDIU. (When a Veteran is service connected for one or more conditions, but is not able to secure substantial gainful employment, he/she can seek an extra-schedular TDIU rating of 100% even if their ratings don’t reach the schedular TDIU requirements above).

* Total Disability Based on an Extra Schedular Rating (if the VA schedule of ratings does not adequately compensate a Veteran’s service connected disability, they can seek a 100% extraschedular rating.  This is NOT the same as extra-schedular TDIU)

* Temporary Total Disability based on hospitalization (generally speaking, this is awarded when a Veteran is hospitalized for a service-connected condition and for the 6 months following that hospitalization).

Don’t confuse these PATHS to a 100% rating with the designation that a Veteran has “permanent and total disability rating.” A lot of Veterans spend a lot of time trying to get to this designation, and while I’m not discouraging it (quite the contrary), it is an end state, not a path.

So, for example, a lot of Veterans email my law firm and ask to hire us to get a “permanent and total disability rating.”You do NOT need to have a 100% rating to get a permanent and total VA disability rating. This type of rating only happens when a Veteran has no chance of recovering or improving from their disability – it protects them from a reduction. So, if your goal is to get your VA disability properly rated at 100%, focus on getting that rating. Then focus on showing the VA that there is zero chance that you will recover or improve from that level to get the permanent and total VA disability designation.

2)  A Claim for Increase is also a claim for TDIU when there is evidence of unemployability.

In the Rice v. Shinseki case (22 Vet. App. 447, 454-55 (2009)), the Federal Circuit held that a Veteran’s request for a higher disability rating, coupled with evidence indicating that the Veteran’s ability to work was “significantly impaired” by his or her service connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation. 

This type of claim is an inferred claim and should be considered by the VA Regional Office whether the Veteran specifically asks for it or not.

What does that mean in practical terms? Depends on where you are in your case.

When FILING a claim for increase, if you are unemployable because of the service-connected condition – regardless of the percentage, include VA Form 21-8940 and specify that you are seeking TDIU in addition to the claim for increase for that condition (include all service-connected conditions that impact your ability to get and keep substantially gainful employment).

When arguing that the VA wrongly denied a claim, look in your C-File for claims for increase where you also alleged you are  unemployable or unable to get employment because of that condition, and then you could argue that the TDIU claim is reasonably raised by the record.

We are arguing the opposite in a case currently before the Board of Veterans Appeals – that a claim for TDIU, being a claim for increase, necessitates that the Board adjudicate the increased compensation claim as well as the TDIU claim.

NOTE: Don’t confuse the concept of unemployability with unemployment. This is a common mistake, and one that the BVA makes far more often than it should. Unemployability means the ability to get and keep substantially gainful employment. Unemployment is largely irrelevant to a TDIU claim – in fact, Veterans can still work and collect TDIU.

3) Extraschedular TDIU is NOT an Extra schedular Rating.

Adding MORE confusion to the mix, there are 2 totally different types of “Extra Schedular” ratings.

The first is a 38 CFR 3.321(b) Extra Schedular Rating.

This is available “in exceptional cases where the [normal schedule of ratings] is inadequate.” Thun v. Peake, 22 Vet.App. 111, 114 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

To determine whether a 3.321(b) extra schedular rating is warranted, the Board must determine that the schedular evaluation under which the Veteran is rated does not contemplate the [Veteran’s] level of disability and symptomatology, and that the Veteran has an “exceptional disability picture exhibited by factors such as ‘marked interference with employment’ and ‘frequent periods of hospitalization.’ “

The second type of extra-schedular rating is “Extra Schedular TDIU”.

Extra-schedular TDIU is governed by 38 CFR 4.16(b) – and is totally separate from the consideration of an extra-schedular rating under 3.321(b).   See Kellar, 6 Vet.App. at 162; Stanton v. Brown, 5 Vet.App. 563, 564-70 (1993) (issue of extraschedular evaluation is separate from issue of TDIU rating)

A key difference – but not the only difference – is that Extra Schedular TDIU requires evidence that a Veteran is unemployable, but does NOT require proof that the Veteran is inadequately compensated by the normal schedule of ratings.  a 3.321(b) extra schedular rating has nothing to do with unemployability – you merely need to prove that the normal Schedule of Ratings does not adequately compensate you for your service-connected disability.

4) The VA will deny your claim for TDIU – administratively – if you don’t file the 21-8940.

I see this happen SO much.  Veteran claims unemployability or TDIU, and the VA actually catches the inferred claim.

They send a letter saying – essentially – send us a copy of VA Form 21-8940.  The Vet never sends it in.

The VA has an internal policy of an administrative denial of a request for TDIU if the Veteran fails to send in VA Form 21-8940.   And they usually don’t give a second warning.

If your request for TDIU was “administratively denied“, what can you do?

Send in the VA Form 21-8940 within a year of the VAs request for the VA Form 21-8940, and your claim should get processed properly (knowing full well that the VA rarely does what it should).  Take a look at 38 USC 5103(b)(1) for the authority on this.

5) The VA will NOT give you an exam for a TDIU claim unless you specifically identify the medical condition that led to the Unemployability.

Hell, they may not even give you the exam anyway.

But the important point to note, here, is that you should list on VA Form 21-8940 every single medical condition that is, or that you believe should be, service-connected that you believe plays a role in rendering you unemployable.

They may not give you a CP exam on each of those conditions – but at least you’ve laid the groundwork for arguing later that the VA failed to fulfill its Duty to Assist if it denies your claim.

And, by the way, in about half of the cases where the VA says that the Veteran never submitted a VA Form 21-8940, I’ve found that they have already submitted at least one copy of the Form.

How do you find out if you submitted one and the VA is just not seeing it?

Get a copy of your C-File: it’s the most important document in your VA Claim.

And check out the TDIU Field Manual and TDIU training package at the Veterans Law Blog store.

Source

Get Your VA Benefits for the Top 3 Anxiety Disorders

Anxiety Disorders

 

An Overview of Anxiety Disorders in Veterans

Some Veterans develop anxiety disorder after experiencing trauma, or during high-stress situations, such as the transition from military to civilian life. Feeling anxious from stress is a normal part of life, and everyone endures stress from time to time. However, severe anxiety in Veterans is not temporary. Anxiety after military service can be long-lasting.

Severe anxiety in Veterans is common and there are help and treatment for anxiety and anxiety related issues. There are also VA disability benefits available to Veterans as well for anxiety disorders. In today’s post, we will go over some of the different types of anxiety disorder and their symptoms.

General Anxiety Disorder

General Anxiety Disorder (GAD) is most common among Veterans who were involved in a conflict. This anxiety disorder is characterized by excessive, persistent worrying that is hard to control, and by psychological and physical symptoms of anxiety that together, can cause significant personal distress and impairment to everyday functions. Some symptoms of GAD include:

  • Poor sleep
  • Being irritable
  • Fatigue
  • Difficulty concentrating
  • Headaches
  • Physical pain in the neck, shoulders, and back

Panic Attacks and Panic Disorder

Panic attacks are intense periods of fear or feelings of doom that develop over a short time. Panic attacks are associated with sudden overwhelming fear, chest pain, and shortness of breath, sweating, and sometimes a feeling of being detached from the world.

Panic disorder involves recurrent panic attacks along with the constant fear of having panic attacks in the future and avoiding situations in which a panic attack may arise.

Social Anxiety Disorder

Social Anxiety Disorder can also be referred to as “social phobia”. Veterans who experience frequent and unending fear of social situations or situations where they are expected to perform in some way may be suffering from a social anxiety disorder. Veterans may also experience fear in appearing anxious or acting in a way that will produce embarrassment or humiliation. These symptoms can considerably interfere with a Veteran’s work life, relationships and normal day to day living.

Specific Phobias

A specific phobia typically involves a strong fear and avoidance of one particular type of object or situation. Unlike panic disorders and social anxiety, there is no fear of a panic attack occurring or fear of humiliation or embarrassment, rather a fear of direct exposure to the phobia causes a panic-like reaction. With a specific phobia, the fear is always out of proportion to the real danger posed by the object or situation. Typically, the fear and avoidance are strong enough to interfere with a Veteran’s normal routine, work and relationships. Agoraphobia is a common specific phobia that most Veterans with an anxiety disorder encounter. Agoraphobia is the extreme or irrational fear of entering an open crowded place, of leaving one’s own home, or of being in a place from which escape is difficult.

VA Disability for Anxiety Disorders

The VA uses a rating schedule that determines compensation for mental disorders called the general rating formula for mental disorders. This disability rating schedule for mental disorders ranges from 0, 10, 30, 50, 70 and 100 percent rating. These ratings are based upon severity and occupational impairment. It is important to note that all mental health conditions are evaluated using the same rating criteria. This means that a Veteran can only be rated for mental health disability to avoid the VA’s rule against pyramiding.

Getting Help

If you are a Veteran or know of a Veteran who is suffering from an anxiety disorder, the good news is that there are help and resources available. Click this link for a list of resources provided by the VA.

Source

Get the Hearing Loss VA Benefits You Deserve

Hearing Loss 001

 

VA Benefits for Hearing Loss, Tinnitus, etc Explained

Some of the most common disabilities among Veterans are hearing conditions. These conditions include tinnitus, hearing loss, and deafness. Many Veterans are exposed to high volumes of noise for prolonged periods of time while in service. This noise exposure can cause a plethora of issues which include noise-induced hearing loss or tinnitus. In fact, tinnitus is the number one most commonly claimed condition by Veterans with over 1.6 million claims according to the Veteran’s Benefits Administration Annual Benefits Report. Tinnitus is a condition which causes noise in your ears. This noise can differ from person to person, with some individuals reporting ringing, buzzing, roaring, or clicking. Tinnitus can begin gradually or suddenly and can occur months or even years after a Veteran has had damage occur. Tinnitus can decrease your quality of life by causing depression, sleep disturbance, or lack of concentration.

Hearing conditions such as noise-induced hearing loss can be caused by both a one-time exposure or by a long term exposure. Not only do these conditions affect your ability to hear but they can significantly impact your day to day life. Hearing loss that interrupts your ability to communicate or understand speech in daily situations can cause adverse social outcomes and negatively impact your ability to socialize. It can also affect your ability to perform cognitively and minimize your ability to concentrate on tasks.

How Does Noise Exposure Affect Me?

Now, that we have some background information on hearing conditions, we are going to discuss the impact of noise exposure directly. For example, a Veteran, while in service, suffered for many years from exposure to extremely loud noises from mortars, small arms, and other gunfire now suffers from tinnitus and hearing loss. Additionally, this Veteran was a paratrooper and completed a number of jumps. It is also important to recognize that the Veteran, a paratrooper, spent numerous hours within a military aircraft.

Table 1 and 2 below depict the amount of permissible noise allowed in the workplace according to the Occupational Safety and Health Administration and the peak sound pressure level range of different weapons. As you can see, the weapons emit high levels of noise, in fact, they emit much higher levels of noise than permissible in a workplace setting.

What the Professionals Say about Noise Exposure

Table 1: Amount of permissible noise exposure allowed in the workplace:[1]

Duration per day (hour)

Sound level (Dba)

8

90

6

92

4

95

3

97

2

100

1 ½

102

1

105

½

110

¼ or less

115

[1] Adapted from OSHA 2014. Standards. US Dept Labor: Occupational Noise Exposure [Online]. Available by Occupational Safety and Health Administration. https://www.osha.gov/SLTC/noisehearingconservation/index.html

Table 2: Peak sound pressure level range of different weapons:[2].


Type of weapons

Peak sound pressure level range (dB)

Rifles

.45-70 rifle

155.2-159.9

.30-06 rifle

158.7-163.1

Shotguns

.410 bore

151.0-157.3

20 gauge

154.8

12 gauge

156.1-161.5

Pistols

.22

151

9 mm luger

159-163

.45 ACP

158

Other weapons

Hand grenade

158

Light anti-tank weapon

184

Inside armored vehicle, continuous noise

LAeq 103-107

[2] Adapted from Chen L, Brueck SE. Noise and lead exposure at an outdoor firing range – California. Health Hazard Evaluation report Sept 2011, and from Kramer WL. Gunfire noise and hearing. American Tinnitus Association. June 2002:14-15.

How it All Applies to the Military

The correlation between hearing loss and noise exposure is described by Jenica Su-ern Yong and De-Yun Wang in their article entitled, “Impact of Noise on Hearing in the Military” which reported that:

“The US Department of Defense published a medical surveillance monthly report on noise-induced hearing loss and it was found that noise-induced hearing injuries were more prevalent among combat-specific occupations (41.2 per 1000 person-years of active component military service) [8]…Military aircraft personnel is not spared…In fighter planes, the noise level ranged from 97 to 104 dBA, in jet trainers the noise level was at 100 to 106 dBA and in transporter aircraft, the noise level was found to be between 88 to 101 dBA [12]. In such settings, due to chronic noise exposure, pilots were found to exhibit hearing impairment [13].”

Using Table 1 in correlation with the article above, we can determine that the noise level produced by a fighter jet would only be permissible in the workplace for approximately 1-2 hours. Comparatively, 80 dBA is equivalent to an alarm clock; while 85 dBA is equivalent to the sound of city traffic from inside your car. Sounds reaching 106 dBA which are only permissible for a ½ hour to 1 hour can be compared to a jet taking off, a jackhammer, or a live rock concert. Alternatively, if you look at Table 2, you can see that the peak sound pressure generated by firearms is far greater than the permissible level of noise allowed in a workplace setting. Being exposed to that level of noise for prolonged amounts of time or repetitively can cause severe damage to your hearing.

What About Hearing Loss and Airborne Veterans?

Additionally, it is imperative to note that pilots demonstrated hearing impairment due to the noise exposure produced from military aircraft. Our Veteran from the earlier example would have also been subjected to chronic noise exposure within the aircraft itself while onboard to complete jumps. Sudden pressure changes, such as jumping out of an airplane, can be significantly damaging to the auditory system as well.

As we discussed above, the impact of these events can lead to serious effects on your day to day life by interfering with your ability to communicate, concentrate, and socialize. If you have suffered hearing loss or tinnitus due to your time in service, it is important to remember what is required to prove your claim. To establish service connection, you will need a diagnosis of a hearing condition, evidence of an event (or events) that caused the condition, and a medical opinion that links together both your current condition to the event that you experienced in service. For more information on filing a claim, speak with your local VSO.

Do You Have Hearing Loss But No Benefits from the VA?

Check out our VA Hearing Disability calculator here where you can easily get an estimate on your VA benefits for hearing for free!

Source

Veteran’s wife dies. VA declares him dead, takes away his benefits

Vets Wife Dies

 

A local man, who served our nation in uniform and is coping with the death of his wife, is now dealing with another emotional trauma.

“VA – they’ve been taking care of me for what, 75 years, and they’ve been phenomenal,” said Mario Salvi, referring to the United States Department of Veterans Affairs. “They’ve been great.”

But the VA now considers Salvi dead.

“It’s tough,” said Salvi through tears.

When Salvi’s wife, Geraldine, died in January, he said he followed the law and notified the VA of her passing. He told the government agency to take out the stipend relating to his wife. A few months later, a letter arrived addressed to Geraldine. It offered her condolences for her husband’s death.

“I jumped immediately on the telephone,” Salvi said. “That was an error that I was much alive.”

Since the VA listed him as deceased, the government agency reached into his bank account and confiscated six months worth of benefits paid to him after his supposed date of death.

Salvi, 93 years old, said it had been a nightmare. He depended on the nearly $1,500 a month he used to collect. Now that the VA took back his benefits, he said his bank account is overdrawn.

Salvi and his family are working on getting the nation he served proudly in uniform to admit its mistake. Salvi wants his name taken off the list of the deceased and have the money he deserves returned to him.

“At this point,” Salvi said, “nothing has been taking care of.”

Since the story aired, Sen. Rick Scott has expressed a willingness to help Salvi. In a statement, he said:

As a Veteran and member of the Senate Armed Services committee, taking care of military members, Veterans and their families is Senator Scott’s top priority. Senator Scott will always fight to support our nation’s Veterans and make sure they have every resource they need to succeed. Our office is reaching out to Mr. Salvi to help in any way that we can.

Source

Wolf signs Pa. GI Bill into law: ‘While you have our backs, we have yours’

GI Bill into law

 

Gov. Tom Wolf signed into law Monday a first-of-its-kind measure providing tuition assistance to the spouse and family of Pennsylvania National Guard members upon their signing on for a six-year reenlistment.

This law, which Wolf dubbed the PA GI Bill," provides to National Guard members who re-enlist up to 10 semesters of tuition assistance for their spouse and/or family member toward earning an industrial certificate, associate or bachelor’s degree at most Pennsylvania colleges or universities.

It would cover the lesser of the cost of tuition or the in-state tuition rate set by the Pennsylvania State System of Higher Education, which last year was $3,858 a semester. The first grants from this program will be available starting with the fall semester of 2020. The 10 semesters can be divided up amongst a Guard members’ family members.

The measure could benefit up to 8,000 family members of Guardsmen, who themselves are eligible for tuition assistance through the Education Assistance Program with their initial service obligation of six years.

Prior to signing the bill surrounded by National Guard members and equipment, Wolf said, “I want all of you, members of the National Guard and family members, to know that while you have our backs, we have yours.”

While proud of the work that the Guard does, Wolf called the families of Guard members unsung heroes.

“They take on many extra roles and offer endless support to the service member whether at home or deployed,” he said. “The PA GI bill is one more way that we can support both the service members and their families.”

Lawmakers who assisted in crafting the bill also voiced their praise for the behind-the-scenes role played by families of the nearly 20,000 soldiers and airmen who serve in the Pennsylvania National Guard.

“Make no mistake. Guard families sacrifice just as much as their loved ones in the Guard,” said Rep. Stephen Barrar, R-Delaware County, the bill’s sponsor who worked with Rep. Chris Sainato, D-Lawrence County, to get this bill through the House of Representatives.

Getting Guard members to re-enlist and continue to apply the skills acquired through their training in service to the state and nation has posed a challenge as they complete their initial tour and have begun starting families.

“We needed an incentive for that reenlistment and that’s what this is,” said Sen. Mike Regan, R-Cumberland County, who championed the bill in the Senate along with freshman Sen. Lindsey Williams, D-Allegheny County. “Having this benefit will be something that will keep our high-level, highly trained Pennsylvania National Guardsmen in place and we all know it’s a family commitment.”

Wolf said the only state in the nation that offers anything similar is Minnesota but that state limits its tuition assistance to the service member’s spouse. Maj. Gen. Tony Carrelli, Pennsylvania’s adjutant general, said Pennsylvania is not likely to stand alone for long. He said he’s already been contacted by at least a dozen other states’ adjutant general asking to see how this new law is written.

“It’s a great bill,” Carrelli said. “It’s great for Pennsylvania to lead the way throughout the nation.”

Source

Don’t implement controversial GI Bill transfer rule yet, or at all, lawmakers tell Pentagon

GI Bill Transfer

 

Lawmakers are asking the Defense Department to hold off on a controversial education benefits change while they try and force a legislative fix.

The change, scheduled to roll out July 12, will bar long-serving troops from transferring the Post-9/11 GI Bill to their dependents — a move the Pentagon has said is necessary to preserve the benefit as a recruitment and retention tool.

Yet members of the House of Representatives Armed Service Committee voted unanimously in mid-June to throw out the new policy as part of the National Defense Authorization Act, with one member calling it “a truly lousy decision" by DoD.

But because the NDAA is unlikely to pass through Congress before the July 12 start date, 29 members of the committee have signed a letter to Acting Secretary of Defense Mark Esper, asking him to delay implementing the new policy — or do away with it entirely — to avoid “whiplash of a potential reversal" if the NDAA as it currently stands becomes law.

The Pentagon did not respond to request for comment by press time.

Currently, troops with at least six years of military service may transfer their GI Bill benefits to a spouse or child, provided they agree to serve for four more years. The impending policy change would end transfer options for service members with more than 16 years in uniform.

In the letter, signed by 23 House Democrats and six Republicans, lawmakers write, “We strongly disagree with this change in policy. It remains critically important to attract and retain the best-qualified individuals for military service and we believe it sends exactly the wrong message to some of our most seasoned service members to make them ineligible for incentives to continue their service to our nation.”

They have asked for a written response from the acting secretary before July 12.

Source

Practical Steps To Take with New VA Appeals Process

New VA Appeals Process

 

Appeals Modernization Act – Practical Steps

The Appeals Modernization Act was designed to give Veterans more choices and faster decisions from the VA. Under the previous system, now referred to as Legacy, the VA was facing a backlog with no end in sight and Veterans were facing a complex system with no set timeframe. This new system is intended to streamline the appeals system for faster processing times. So let’s answer some questions and see what this AMA system will actually look like…

What can I hope for in AMA?

Decisions under AMA are supposed to provide improved notice about the reasons for the VA’s decisions and your available options. Decisions should identify the issues decided on, favorable findings, what was not met, and the criteria needed to get the decision granted.

These appeals are also supposed to be processed faster (4-5 months for Supplemental claims and Higher-level review, and 1 year for Direct Review to the Board). It is not known how long the BVA Evidence Submission and Hearing lanes will take, only that they will take longer. But the VA intends to provide regular wait time predictions to keep Veterans up to date on the status of their appeals.

How do I get my claim into AMA?

If you file a new claim today, or you did after February 19, 2019, it will automatically be in the new system and the new rules apply to you. If you received a decision on or after February 19, 2019, on your initial claim, you are also automatically in the new system.

If you have a pending appeal that is in the Legacy system, you can opt into the new system after receiving an initial decision, a Statement of the Case (SOC), or a Supplemental Statement of the Case (SSOC).

Note: If you are opting into the new system after receiving an SOC or SSOC, you only have 60 days from the date of the SOC/SSOC to do so.

What if I am in AMA but I don’t like it?

Unfortunately, you’re stuck. Once you are in the new AMA system, whether by opting in as explained above or by filing a new claim, you cannot return to the Legacy system.

How do I appeal my decision?

Remember there are now three options to choose from when you want to appeal a decision. There are also new forms to file, whether electronically or by paper.

  • Supplemental Claim: VA Form 20-0995
  • Use this form to initiate a supplemental claim. Here you will identify the issues you want to appeal, and specify what new records you would like the VA to help you locate
  • Higher-Level Review: VA Form 20-0996
  • Use this form to request a higher-level review, and identify the issues you wish to appeal
  • Board of Veterans Appeals: Notice of Disagreement – VA Form 10182
  • Use this form to appeal your decision to the Board and identify the specific issues that you disagree with. Here you will also select which of the three paths you wish to take (either Direct Review, Evidence Submission, or Hearing).

Can I change the appeal option I’ve selected?

If you selected one appeal option (Supplemental, Higher level Review, or Board of Veterans Appeals), you can change to another lane if the VA has not yet issued a decision. If you change lanes within one year of the decision you’re appealing, you will still preserve your effective date. So if you appealed through Higher-Level Review and then realize you have new evidence to submit, you can do so and it would be processed under the Supplemental Claim lane.

If you selected to appeal to the Board of Veterans Appeals, and you select one of the three options to have your case reviewed by the Board, you can also change your mind. But if you change your mind, you have to do so within 30 days of the Board receiving your Notice of Disagreement form (or within one year of the original decision on appeal, whichever is later).

Note: If you selected Evidence Submission and have already submitted evidence, you cannot then move to the faster lane of Direct Review. In the same way, if you select to have a hearing, you cannot then move to the faster lane of Direct Review once you have had your hearing.

What happens to my claim in Legacy?

If you currently have pending appeals in the Legacy system and you did not opt your appeals into RAMP while that was still an option, you remain in the Legacy system. AMA will not bring change to the way Legacy claims are handled and processed. The VA will continue to work all of the appeals in the Legacy system together with the appeals in the new system.

If you did opt your appeal into RAMP, your appeal will now be handled in the new system and RAMP will be phased out.

Source

GI Bill transfer ban for older troops could be thrown out

GI Bill Transfer Ban

 

Senior service members would once again be able to share their GI Bill benefits with spouses and children under a provision included in a House panel’s budget bill draft.

The measure was unanimously approved by the House Armed Services Committee during their debate of the annual defense authorization bill on Wednesday. Sponsor Rep. Joe Courtney, D-Conn., said the idea is to reverse “a truly lousy decision by the Department of Defense last year.”

The measure still must survive negotiations with the Senate before it becomes law, but supporters said they hope it sends a clear message to Defense Department leaders about their disapproval of the rule change, which blocks troops with more than 16 years of service from transferring their education benefits to a spouse or children.

That move goes into effect on July 12. Military officials in recent weeks have warned affected service members to finish their transfer paperwork before that deadline or lose out on sharing tens of thousands in education benefits with their family.

“This decision … punishes those who have served over a long period of time, maybe got married late or started a family later,” Courtney said. “It cuts them off from being able to get the GI Bill’s really special component of transferability.

“If you talk to service members, it is one of the most popular aspects of the benefit — to have that for their family.”

Service members wounded in combat are exempted from the rule change.

Courtney said reserving the decision would not have a significant financial impact on the federal government but could help with retention and morale.

The post-9/11 GI Bill benefits cover the full cost of in-state tuition plus a monthly living stipend for eligible troops, Veterans and family members. Troops must serve six years before they can transfer benefits to a family member.

Officials from Iraq and Afghanistan Veterans of America have lobbied for the change in recent months, arguing it unfairly limits benefits promised to service members.

Senate officials have not yet weighed in on the idea.

Source

VA Disability Claims: How to Approach Hard to Prove Hearing Loss Claims

Hearing Loss Claims

 

It’s a straightforward conclusion that if someone loses a leg in combat, their loss of a limb is related to military experience. That is a simple and clear A+B=C situation. However, in many cases, such as hearing loss claims, the direct link between the current condition and an incident in service is far less clear.

Many Claims are Clear Cut, and Much More are Not

We used the example of someone having an enemy assisted amputation above, but what if instead of a combat-related trauma the leg was lost due to an infected cut from a dirty stair rail at the barracks? Well, it happened during service, so it is still presumably service connected. Take our example a little further, an infection started the day after separation, from an unknown source, and it resulted in the loss of a limb, is it then still service connected? What about if the infection began 2 months after service?

The truth is, while many claims are clear cut, there are lots of VA claims for service connection that are reasonable, but the ties that connect them to service incidents are harder to prove. This issue is why we spent so much time talking about overcoming a service nexus denial in this article.

Service Nexus Denials

Service nexus denials are one of the top reasons Veterans end up seeking the support of an experienced VA claims attorney in the first place. They are hard to prove, and to overcome the denial means getting much deeper into the details of a given Veterans’ service records than most initial claims for compensation delve.

The first step in overcoming the nexus denial barrier is to figure out if there is, in fact, no way to directly tie an injury (mental or physical) to a service incident. It is ok if there is no clear link, but eliminating all the easiest paths first is usually the best course of action.

If there is no clear and direct connection between the current injury or ailment and a service incident, then the particulars of the Veteran’s military service become the next thing to take an in-depth look into, regarding the pursued claims? Moreover, it helps to figure out how the claim(s) fit into the broader picture of the Veterans history – before during and after service?

An Example Of A Hearing Loss Claim Denial Will Help

A Marine has discharged from service ten years ago and is claiming bi-lateral hearing loss & tinnitus. There’s no direct service connection, no med-call records of ear pain, trauma, or anything related to ears, hearing, or head injuries. The claim is denied because there’s no direct connection to the injury from the Marine Corps Veteran’s military experience. The service nexus is unclear. This claim is a Hard to Prove VA Disability.

Fortunately, “hard to prove” can be overcome with the VA, especially if we remember that the burden of proof is as likely as not, rather than absolute proof beyond all other doubt.   In this example, the way to approach a solution is to look at some of the following lines of conjecture.

What Was the Veteran’s Vocation After Service?

This line of questioning is necessary to either establish that alternative explanations are less likely than their military service to have caused the hearing loss or to recognize the alternative hypothesis the VA through a Decision Review Officer or the VA Board of Appeals may raise.

If for instance the Marine Veteran worked an office job for the last ten years and their exposure to loud noises was minimal, it is a much more reasonable argument that combat and training for combat are the likely cause of hearing damage. Whereas, if the Veteran worked in a construction environment the last ten years, after leaving service, the alternative explanation for hearing loss is much more likely to be something that needs to be addressed and overcome. In this particular example, a strong approach is to lean hard on the idea that a 50/50 chance of one proposed nexus vs. another means the VA should side with the Veterans claims when pressed to do so.

What Was the Veteran’s Vocation While in Service?

Again, taking a more wide angle approach means looking at potential alternative genesis, like we just looked at, and it means seeking to look at a lifetime of possible experiences vs. any particular incident. For instance, a Marine Veteran is likely to have spent extensive time firing weapons and operating in loud environments. In this case, making the claim that Marines will be exposed to conditions that harm hearing is about as straight forward as it gets.

Still, obvious for one person is obtuse for the next. So, breaking down the conditions that may harm a service member’s hearing is helpful in making sure there’s no doubt the Veterans experiences were at least as probable as any other alternative explanation. To make this, list out the circumstances, the numbers, the details, as best you can determine. Here’s how you might go about it in a letter to the VA on a Veteran’s behalf.

“Mr. Smith, while serving in the Marine Corps as an admin clerk was exposed to loud noises and severe conditions on a regular basis. Hearing protection was not always readily available nor practical for using due to operational needs. Starting in boot camp, Mr. Smith fired weapons from his right-hand side, was exposed to extreme noise (repeated loud yelling) in close-proximity, on both sides.

 

In Marine Combat Training (MCT), and required to go through basic training, Marine combat Mr. Smith fired larger weapons and practiced using them in operational environments where hearing protection was not always available. As an admin clerk, Mr. Smith was exposed to loud vehicle noises on a regular basis as he was required to work in close collaboration with armored vehicle sections and was also required to participate in regular weapons qualification and training.

 

Since separating from military service, Mr. Smith has completed college and worked in software development. Both environments are much less likely than a typical military environment, and especially a Marine Corps armor, weapons, and training environment. Mr. Smith also has no family history of hearing loss and cannot propose an alternative explanation for his condition.

 

Without an alternative proposal that is more likely than Mr. Smith’s Marine Corps experiences, the VA should acknowledge the Nexus between his current condition and his experiences in the military, and award Mr. Smith the compensation appropriate per his hearing impairment levels.”

This Process Works Well for Other VA Claims Too

We are leaning heavily on the loss of hearing as an example, but this process works well for other impairments too. The basic premise is sound for PTSD, back injuries, knee pain, TBI, and other conditions or incidents that can be hard to prove at first.

We are scratching the surface on this. Please reach out to us and share your thoughts and experiences.   There is a lot more to talk about in regards to nexus denials.

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Did the VA lowball your VA PTSD rating? Here’s how to find out.

Lowballing

 

The day was just like any other day. Until you checked your mail. The big brown envelope was in it, with the VA logo in the upper left corner. You knew it was your VA PTSD Rating Decision. It’s about time – you filed your PTSD service-connection claim 18 months ago. “Why does the VA take so long,” you think. “It shouldn’t be that hard for the VA to service connect PTSD.”

You tear off the envelope open expecting to see a 70%, or 100% rating. That dude in your unit who was there that day – and saw the same things you did – got a 70%, and he seems to be having an easier go of life than you.

Part of you is excited. That extra compensation is going to make a difference. You are struggling to make ends meet as it is. You got fired from the last job for getting upset with your boss. The job before that you quit because all the people moving around that place wanting to talk made you jumpy and anxious.

When you read the letter, your heart sinks. Then, a wave of anger and frustration.

10%. That’s what they gave you. The same rating they give to every Veteran with tinnitus.

Where do you go? What do you do?

First, it is important to know that you are not alone – the VA is not out to get you, and didn’t do this as retaliation against you.

I’m serious about that: the VA is just plain incompetent when it comes to rating most medical conditions. Most of their raters try to do a good job – many are Veterans themselves – but the VA doesn’t give them training. VA management has created a culture of hostility and back-stabbing where all problems are blamed on the “unions.” Don’t let me go down THAT rabbit hole.

A lot of Veterans – some worse off than you, some better off than you – have a diagnosis of service-connected PTSD and find themselves “low-balled” with a rating that is much lower than that of their peers and that does not reflect the severity of their medical condition and the affect it is having on their lives.

When it comes time to appeal that low rating though, most Veterans have something else in common: they don’t have the tools to adequately challenge the low VA PTSD rating and don’t know where to start even if they did.

I’m going to give you some ideas to deal with the lowball VA PTSD rating.

The #1 thing to consider when your VA PTSD Rating is low-balled.

There is nothing wrong with getting a professional to help you.

VA PTSD claims can be really tough, even on straightforward facts. Recently, I talked to a Vet who witnessed some horrible, horrible things during the invasion of Panama that messed him for a long time and put him on a path to opioid abuse and homelessness. The VA denied him service connection for PTSD.

At my own firm, I’ve gone to the Veterans Court many times to straighten the BVA out on low-balled VA PTSD ratings. I’ve stopped them from symptom hunting. I’ve seen ratings so bad that the Veterans Court found the BVA’s actions “disconcerting.” And we stopped the BVA from an absurd decision that gave a 30% PTSD rating to a Veteran who had regular hallucinations due to his trauma.

These cases are hard to fight – there are so many traps for the unwary that just add stress and anxiety to a situation that probably already has too much.

And I’m here to tell you, if I was fighting the VA on my own PTSD claim, there is only one attorney I would get to help me: Matt Hill.

I don’t recommend people very often on the Veterans Law Blog® – it’s not what we are trying to do here. I”m trying to educate Veterans, not shill for other businesses. I’ll tell you about lawyers, and experts, but I rarely make suggestions.

I’ve known Matt for almost 10 years now, and he knows his stuff when it comes to PTSD claims. Click here to watch a quick interview with him a couple years back – use the form on that page and it will email him your info and ask for a consultation. And you can absolutely tell him that Chris Attig said he was the best.

But don’t let me pressure you: if you want to handle your own VA PTSD rating appeal – and many, many Veterans do so successfully without having to pay an attorney or stress out over a non-responsive VSO – the rest of this post is a good place to start figuring things out.

So, I’m going to walk you through 9 Things that might help you get the VA PTSD rating you are entitled to.

These are not the ONLY 9 things, and every case is different. Let’s get started.

Understand where your VA PTSD rating fits in the 4 Pillars.

When we talk about a VA Claim, we talk about simplifying it by building the 4 Pillars.

The 4 Pillars are the 4 things that every Veteran, in every VA claim, needs to prove before they will recover service-connected disability compensation.

Impairment ratings – or the way that the symptoms of your service-connected condition are equated to a percentage and a dollar value – are the 3rd Pillar.

The VA PTSD rating table is a little intimidating at first. It’s a jumble of sentence fragments, a massive list of symptoms, written by government bureaucrats that have long since forgotten how to communicate with earth people. Take a look:

VA lowball

That right there, my friends, is the definition of “impenetrable jargon.”

Here are 9 pointers to help you evaluate the rating in your VA PTSD claim.

#9: Did you File your VA Claim – the Right Way?

The 2 biggest errors that Veterans make in their VA Claims – and the 2 errors that cause them to get stuck in the VA backlog for longer and longer periods of time, are these:

A) They filed their claim and expected the VA to do the work – or to do the RIGHT work – in developing the claim.

B) They didn’t “connect the dots” for the VA in a simple straightforward way that made the VA Rater WANT to grant the claim.

What does that mean in the context of a VA PTSD rating? Usually, it means the Veteran dumped 3, 5, or 10 years of mental health treatment records, and a couple handwritten statements on a VA Form 21-4138, on the VA and hoped the rater would see how bad things were.

Remember, they don’t get training. And they see so darn many claims that they aren’t going to spend but a few minutes deciding your VA PTSD rating.

You can avoid those solutions by Filing Your VA Claim – the Right Way – from the very start.

* Find out WHAT 5-star evidence you need to put in your VA Claim.

* Find out HOW to make the arguments in a way that makes them easy for a rater to understand.

It’s a simple fact that if you put the RIGHT evidence into your claim, and explain in a very clean and basic way how that evidence shows your sleep apnea is service connected, your claim will go quicker.

And you will probably get better results.

When you are ready to start learning How to File Your VA Claim the right way, click here & read this post.

#8: The best-kept secret in a VA PTSD Rating are the Bankhead and the Mauerhan cases.

The Code of Federal Regulations – before listing the PTSD rating criteria in DC 9411 – says that when rating PTS, the VA should consider symptoms “such as” those listed.

That’s key language – as the Courts told us in Mauerhan.

You don’t have to find ALL the factors on the list to qualify for a particular rating. You just have to make a case for your symptoms being similar to the symptoms listed at the rating level you believe you are entitled to.

And what the Courts told us in Bankhead is that the VA is supposed to look HOLISTICALLY at your medical condition when assigning a rating for PTSD. I’m not going to get into Bankhead in too much detail here. I write a blog to help lawyers learn Veterans law, and have written about Bankhead.

#7: Occupational Impairment factors are more important for VA PTSD Rating purposes.

I’ve reviewed hundreds, if not thousands of Veterans C-Files.

When the VA PTSD rating is too low, a common reason I have seen is that the Veteran focused on the social impairment factors, and not the occupational impairment factors.

Take a look at all the factors in the 50% category for PTSD.

In addition to equating those symptoms to your social life (home, family, friends and social interactions), relate them to your ability or inability to get or keep a job.

#6: The VA PTSD rating criteria is NOT a complete list of PTSD symptoms.

Remember that the list of symptoms on this list are not meant to be every possible symptom.

If you have symptoms, or manifestations of symptoms of your PTSD that are not on this list (and there are plenty), see which ones on the list are similar to yours. And then make that argument – that your symptom is like such-and-such a symptom of the 70% rating.

The list of symptoms in the table above is not as a comprehensive listing of PTSD symptomatology. Think of it as an objective tool that was supposed to help make sure Veterans get rated as consistently as possible when PTSD affects them in similar ways.

#5: Did the VA examiner consider the frequency, severity and chronicity of PTSD symptomatology?

This is one thing that C&P Examiners overlook the most often. They hunt-and-peck through your medical records for a symptom that matches the one on the rating list, and if they don’t find it, they move on and give you a 10% rating. This is called “symptom-hunting” and it misses the whole point of Bankhead, discussed above.

To make a “holistic analysis” of your mental health condition’s impact on your life, the VA rater must consider the frequency, chronicity and severity of your PTSD in work and social settings.

Rarely do C&P exams for Veterans with a PTSD claim discuss how long the symptoms last or the length of any periods of “remission”. Sometimes, they discount the resilience/remission factors so much so that they change the Veteran’s diagnosis altogether.

For example, we were able to get one Veteran a higher PTSD rating by showing that her “resilience” was not as high as one might thing from frequent periods of remission: because of the nature of her symptoms, she still had significant social and occupational impairment limitations during the “remission” period.

#4: Did the VA consider ALL of the evidence in the record?

Far too often, VA C&P examiners focus on the most recent symptomatology.   The doctor has to look at the whole of the evidence of the record.

One thing you can consider doing is making a copy of any medical record relating to your PTSD out of your C-File.

Organize those documents from your C-File in chronological order, and type up an EASY to read outline of the chronology of your symptoms – keep it to 1 page, double spaced, so it’s easy to read.

Share it with your C&P Doc, and ask them to put the chronology in your C-File when they are done.

Don’t argue your position, just hand it to the doc and say “Here’s the chronology of my condition, if it helps you, use it. If not, just put it in my C-File.”

This is really hard to do if you don’t have your C-File – here’s how to get a copy of your C-File.

#3: What is the GAF scale?

The GAF scale is a subjective rating, on a scale of 0 to 100, for a doctor to “evaluate” a Veteran’s overall psychological, social and occupational functioning. The higher the score, the more ability the Veteran has – in theory – to function in a wide range of activities.

Problem is, GAF scores are nonsense. Seriously, ask a psychiatrist or psychologist how they come up with a GAF score. They pick a number out of thin air that “feels right.” One doctor could give you a GAF score of 30 (low functioning). Another could give you a GAF score of 60 (reasonably high functioning). For the same symptoms.

So, in DSM-V, the medical profession threw GAF scoring to the crap-pile.

Even still, I see many, many PTSD ratings that give heavy consideration to GAF scores over actual objective medical and lay evidence of PTSD symptomatology.

In current claims, the GAF score is no longer used – however, many VA Raters still wrongly use the GAF score and in some claims, the appeal is based on the law at the time of the denial, which may have involved use of the GAF Score.

This is CRITICAL: if you have a claim or appeal filed after August 14, 2014, and the VA or BVA is using GAF scores, they are very likely rating your claim wrong.

#2: Don’t let the VA rate you based on the ABSENCE of factors for a particular level.

I really think that if the VA would get away from using “negative evidence”, 80% of the backlog would be cleared out.

Seriously – I think I see this error in nearly every case I look at. The VA cannot usually consider the absence of evidence as proof of anything.

If your VA PTSD rating talks about how you DON’T have certain symptoms or problems, you need to get in touch with a lawyer ASAP. The way to fix this is a legal argument, coupled with a long-term appeal strategy.

Find out how to choose the best attorney for your VA appeal in this free eBook.

#1: Did you downplay your symptomatology at the C&P Exam?

Many Veterans get dressed up in their “Sunday best” for their Comp & Pen exam, believing that they are more persuasive when they “present” well.

Other Veterans refuse to shower, shave, or wear clean clothes, based on the suggestion of some random Veteran in a facebook group.

BOTH approaches are wrong.

Remember, doctors can assess the symptoms in your records – AND the symptoms they observe. When it comes to your appearance at the C&P exam, BE your symptoms.

More importantly, don’t downplay your situation.

Let the doctor see, and hear, how bad your PTSD is affecting you.

Vietnam Veterans out there tend to be serious hard-asses, and refuse to tell people when they are hurting.

I’m not judging at all – I am saying that the time to downplay your symptomatology is NOT during your PTSD C&P exam. (By contrast, you don’t want to exaggerate your symptoms either).

The Veterans I see with PTSD ratings that are too low (or that later face ratings reduction problems because they were over-rated) all have one thing in common – they failed to follow the Golden Rule of PTSD C&P Exams: Just be yourself.

Here are some more tips for getting through a VA PTSD C&P exam – or any C&P exam for that matter.

Conclusion.

These tips for evaluating your VA PTSD Rating are worthless unless you have your C-File.

Without your C-File, you can’t know how much weight the VA is wrongly putting on arbitrary GAF scores from 10 years ago, whether all of your medical records made it into the VA’s hands, or whether there is something really damaging in your file (like some VA C&P examiner down in Florida who finds every Veteran is malingering, over-reporting, or under-reporting symptoms without explaining what those terms mean, medically).

Here’s where I show you my Firm gets C-Files from the VA.

I hope these tips helped – let me know if you have any thoughts or questions.

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