Hill & Ponton, P.A.

There are many different conditions that are recognized as mental health disorders in the Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition, also known as the DSM-IV. Examples of common mental health conditions include post-traumatic stress disorder (PTSD), depression, generalized anxiety disorder, bipolar disorder, and schizophrenia.  The VA utilizes the DSM-IV when rating mental disabilities.

We receive many calls from veterans who have multiple mental health conditions, and they are unhappy because they feel the VA has not taken all of their conditions into account when assigning a disability rating.  For example, a veteran may suffer from PTSD and depression based on the DSM IV criteria; however, the VA has only assigned a total rating of 30% for both conditions. 

Although assigning only one rating may seem odd because the veteran is suffering from two distinctly separate conditions, the VA regulations pertaining to mental health generally mandate that the veteran be assigned only one disability rating for all mental conditions, even if there is more than one. So in the above example, even though the veteran has PTSD and depression, only one rating will be assigned. Of course, it may logically follow that a veteran with more conditions may be more seriously impaired than a veteran with only one condition; however, that is not necessarily always the case.

The VA uses the General Rating Formula for Mental Disorders to rate mental disabilities. This is found in 38 C.F.R. § 4.130. The Rating Formula assigns ratings ranging from 0% all the way to 100%. A 0% rating means that “a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.” A 100% rating is warranted when there is “total occupational and social impairment” due to certain symptoms. Most veterans fall somewhere in the middle. Their mental conditions warrant more than a 0% rating; however, they are not ratable at the 100% level. 

The real issue when rating claims involving mental disabilities is determining the appropriate rating to be assigned, which really has nothing to do with the total number of conditions because the VA is using only one rating scale.  When determining the appropriate rating, the VA considers the effect of the mental conditions on occupational and social impairment. Symptoms that are considered include but are not limited to: impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; suicidal ideation; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); memory loss; panic or depression affecting the ability to function; impaired impulse control; chronic sleep impairment; and decreased work efficiency.

Since the VA is rating these claims based on subjective symptoms there is often room for error in the ratings. Oftentimes, veterans will attend compensation and pension examinations at the VA, and the result is a rating decision that underrates the severity of the mental condition(s). This happens despite the VA regulations which state that the VA is to assign a rating based on all evidence of record,  and not just “solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a).

The VA has stated that its goal on rating veterans is to determine how much the service connected disability affects the veteran’s ability to work.  The first question I ask a veteran when discussing a claim is whether or not they are working. If the veteran is not working I then ask whether the mental illness is contributing to the unemployment.  If the answer is yes it is then the veteran should be receiving a rating of 100% or Total Disability due to Individual Unemployability (commonly called TDIU or IU).  If the veteran is working then we discuss how much the disability affects the veteran’s employment.

If the degree of disability has been underrated, it is important that the veteran file a timely appeal of the rating decision contesting the rating assigned. An experienced veterans’ law attorney can assist you with filing any necessary appeals and developing the record to properly document the severity of the mental conditions.

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The basis of any Social Security disability claim is a claimant’s residual functional capacity.  In other words, the extent of their functional ability despite their medically documented impairments.  To make a determination about a claimant’s residual functional capacity, Social Security obtains his or her medical records.  Then a doctor (one who will never actually meet the claimant) reviews these records and decides what the claimant would be able to do in various work related areas, such as how long they can sit, stand, walk or lift.  In the area of mental impairment, limitations are considered such as social functioning, concentration, persistence, pace, and ability to perform activities of daily life.  

            Although medical records are the most significant element in a disability claim, they often do not contain the type of information needed to prove disability.  This may happen for a number of reasons.  For example, a patient who has been treated for the same condition for years may not report a full list of the same symptoms on every visit to their doctor.  In other cases, a doctor may have handwritten notes that are difficult or impossible to read.  Similarly, a doctor may use an electronic records system which automatically fills areas of an exam report, even though they may not accurately reflect the patient’s current condition.

            Claimants can address these pitfalls in a number of ways.  First, claimants should continually report symptoms to their doctors at each visit.  This may include functional issues such as the following: how long a claimant can sit, stand, and walk at one time; whether and why they need to elevate their feet during the day and if so, how often and for how long; whether they experience significant side effects from their medications; whether they must sleep or rest during a typical day; and how frequently they must take bathroom breaks.  Regarding mental impairments, several examples of functional issues includes how often they experience panic attacks and how long they last; whether they have trouble being in public; whether they are able to concentrate on simple tasks; whether they have memory impairment; and whether they can handle normal levels of stress.

            Secondly, a claimant should be aware of the substance and content of their medical records.  They should know, for example, whether their doctors’ records are legible, or whether their electronic records contain accurate information.  With electronic medical records, information is often entered at the time of the initial visit and the information may or not be updated after that point.  Some examples of when this is an issue are references to smoking when a claimant previously quit, or references to working when the claimant has been unable to work.  Such references are misleading and can be relied upon by a decision maker.

            A third way to document limitations in a disability claim is through functional capacity forms.  This is a form with questions intended to document a treating physician’s opinion of his or her patient’s impairments such as those mentioned above.  These forms can be the most critical piece of evidence in a claim, but a claimant must be proactive in obtaining such a form.  Whether or not Social Security gives credit to these forms depends on whether they are consistent with the same doctor’s medical records.

            When a claimant’s medical records thoroughly document their limitations, odds of a favorable outcome are greatly increased.

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When someone considers filing for social security, I am often asked whether a divorced person is eligible to receive benefits from their former spouse’s social security record as well as from their own social security record. This is a common question and I wanted share the different types of benefits available as well as their requirements to obtain them.

In the case of a Divorced Spouse, the benefit comes from the ex-spouse’s social security record provided certain conditions are met. The former spouse must have been eligible to receive their own benefit for retirement or disability. To receive these benefits, your marriage must have lasted at least ten (10) years, you must have been divorced for at least two years, you must remain unmarried, and the age requirement is that you must be at least 62 years old. Additionally, the amount you would otherwise receive from your ex-spouse’s social security benefits would be higher than the amount of benefits you would receive from your own social security benefit.  The caveat here is that if you remarry, then you are no longer entitled to divorced spouse benefits. There’s an exception however, where the subsequent marriage ends in divorce, death or annulment then you can become eligible for benefits again.

What happens if the divorced spouse who has worked and paid Social Security dies? Where the divorced spouse dies, the Surviving Divorced Spouse, could get benefits provided the marriage lasted at least ten (10) years and the deceased ex-spouse was fully insured upon death (having contributed to Social Security). Social Security has carved out an exception to the ten year marriage rule. According to Social Security, if you are Surviving Divorced Spouse taking care of a child under the age of 16 or disabled who is getting benefits on the former spouse’s social security record, then you do not have to satisfy the ten (10) year marriage rule.

Notice the age requirement for the Surviving Divorced Spouse. You must be at least 60 years of age to qualify or between the ages of 50 to 59 and disabled. If you are between the ages of 50 to 59, you have the additional component of proving that a disability exists that limits your ability to work. Lastly, you have to make sure or social security can verify for you that your own social security benefit would not be higher than the amount of benefit you would receive from your deceased divorced spouse’s benefit.

Unlike in Divorced Spouse benefits where remarrying (someone other than the former spouse) terminates the benefit,  someone eligible for Surviving Divorced Spouse benefits can remarry and not run the risk of terminating the benefits.  

How much will be paid out? The amount depends on the earnings of the deceased. At age 60, the surviving divorced spouse can receive 71.5% to 99% of the deceased spouse’s amount; at ages 50-59 the disabled surviving divorced spouse can receive 71 ½ %. And, a Divorced Spouse can receive up to 50%. For additional details see SSA.gov/pubs/10084.html

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