Hill & Ponton, P.A.

The VA benefits claims process can be long and confusing.  The VA disability process has many more layers than Social Security Disability Benefits where the only questions are—are you insured through the system and do your disabilities keep you from working..  First, you have to show that you are a veteran who is eligible for disability benefits.  Next, you must show that you have a current disability that is related to your active duty service.  Then, you have to show the severity of that current disability.  Finally, you must show what the correct effective date for the benefits is. 

So, after fighting for your benefits for several years, suppose you get a decision granting you some benefits.  For example, say that the VA finally acknowledges that your PTSD is related to service.  Getting a disability service connected is just the beginning.  You must still make sure that the VA got both the rating and the effective date correct. 

A story that I see all too often is a case where a veteran gets service connected after several years of fighting but the VA low balls him on both his rating and effective date.  The VA will service connect the veteran’s PTSD at 30% with an effective date of two months prior, which happened to be the date of the veteran’s C&P exam.  The VA then, overlooked the facts that the veteran filed this claim five years ago and that because of his PTSD the veteran is not working.

When a veteran receives a rating decision like the one above, he is at an important crossroads.  He has one year from the date of the decision to appeal it.  If he does not appeal within that one year then the rating decision becomes final.  Unfortunately, a lot of veterans are told that it is easier to ‘reopen’ a claim at this point versus appealing the decision.  After the one year appeal period, the veteran can submit new and material evidence to reopen the claim but only as it pertains to the rating.  At that point, however,  the decision regarding the effective date is final and the veteran cannot reopen that issue with new and material evidence.

I do not know why advocates advise veterans to reopen instead of appealing.  I’ve heard veterans tell me that they are told that it is faster to reopen or that they have a better chance to get the benefits.  I have found that neither of these reasons are necessarily true.

Most likely, if you choose to reopen your case, it will go back to the same individual that rated it the first time.  Even with new evidence, it is not likely that that rater will change his first decision.  If you appeal, though, you can select having your case reviewed by a decision review officer (DRO).  The DROs are the best rating officers in the VA.  They have been in the VA the longest and can spot simple errors made by more junior rating officers.  Even if the process does take longer, it would be worth it if you have a better chance of getting the correct outcome.

VA appeals can be long and exhausting.  But at the end of the day, when the VA finally acknowledges that a disability is related to service, it is important to make sure that the VA also rates the disability correctly and that it assigns the proper effective date.  After all, the purpose of a VA disability compensation claim is to receive compensation, not acknowledgement that a disability is related to service.

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The family members of a disabled veteran are often dependent on the disability benefits that the veteran receives from the Department of Veterans Affairs.  It can be a shock and a financial hardship to the family when those benefits stop upon the death of the veteran.  Sometimes, however, there are benefits available to those family members if they know what to ask for.

The first concern, however,  is whether a family member even qualifies as a veteran’s survivor.  This issue is not always as simple as it would seem.  The list of family members whom the VA will consider as survivors for purposes of VA benefits is a small list.  The surviving spouse or qualifying children of the veteran may be entitled to benefits.  In addition, if the veteran’s parents were dependents of the veteran, they may also be entitled to benefits.  It is unclear, however, who the preferred survivor is in a circumstance where more than one survivor is claiming those benefits.

In order to be recognized as the surviving spouse of a veteran, the spouse must be a person of the opposite sex, married to the veteran for one year prior to the veteran’s death.  The one-year requirement does not apply if the marriage occurred prior to or during the veteran’s military service.  The one-year requirement is also waived if the couple had a child at any time.

In limited circumstances, a person may qualify as a surviving spouse even if no valid marriage occurred.  For example, the VA may recognize a common law marriage in a state which does not recognize common law marriage if there is evidence that the veteran and spouse believed they had a valid marriage.  Common law marriages are difficult to prove to the VA, however, requiring evidence that the couple held themselves out to their community as a married couple.  It is important to note that the VA will only recognize one surviving spouse, so this issue can become very complicated where the veteran has had multiple marriages.

The children of disabled veterans may also be entitled to survivor’s benefits, but only if they meet certain requirements.  To qualify as the surviving child of a veteran, the child must be unmarried and under the age of eighteen. The VA recognizes biological and adopted children equally as survivors.  In addition, the VA will recognize step-children if those children lived with the veteran at the time of the veteran’s death.  Of course, as with all things VA, there are exceptions to this rule.  For instance, if a child is pursuing a course of education, that age limit may be raised to twenty-three.   Another exception is in the case of a child who is incapable of supporting him or herself due to physical or mental disability.  The VA will consider such a child a “helpless child” if he or she became permanently disabled prior to the age of eighteen. 

Any of these survivors may be entitled to survivor benefits, including death pension, accrued benefits which were owed to the veteran at his or her time of death, or dependency and indemnity compensation benefits (commonly called DIC benefits).  Sometimes the issues involved in who qualifies as a veteran’s survivor can be complicated.  If you think you may qualify, contact a professional who can help you determine whether you are entitled to benefits and what evidence is needed to establish your qualifications.

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According to the Merck Manual, peripheral neuropathy is “dysfunction of one or more peripheral nerves.” In lay terms, neuropathy is commonly referred to as ‘nerve damage’ in the extremities. Many veterans who are service connected for other disabilities also suffer from peripheral neuropathy; however, they have never been formally diagnosed with this condition. 

The Merck Manual lists the following symptoms of neuropathy: sensory disturbances, pain, muscle weakness and atrophy, diminished deep tendon reflexes, and vasomotor symptoms. Again, in lay terms the symptoms could simply be numbness and/or tingling, burning pain, lack of sensation, or difficulty distinguishing sharp vs. dull or hot vs. cold in the extremities. It is important to note that the symptoms may be alone or in any combination. 

There are different types of peripheral neuropathy. Mononeuropathy is when only a single nerve is affected. Multiple mononeuropathy is when two or more nerves in separate areas are affected. Polyneuropathy is when many nerves are simultaneously affected, bilaterally symmetrical.

Peripheral neuropathy can be caused by many different conditions, such as diabetes mellitus, alcoholism, trauma, immune disorders, chronic renal insufficiency, thyroid disease, toxic exposure, certain kinds of cancer, etc.

This condition is often undiagnosed or misdiagnosed.  There are many different reasons for this. Common reasons seen in our practice for veterans being undiagnosed include veterans failing to report symptoms because they are intermittent or veterans assuming that symptoms are the result of aging. A more unfortunate reason is that many veterans do not want to be perceived as chronic complainers; hence, they just do not go to the doctor even when they should.  A very common reason for misdiagnosis is failure of the medical professionals, VA and non-VA providers alike, to take the time to properly listen to the veteran’s complaints. Some providers fail to order the necessary tests to determine if their patient has neuropathy, or they fail to consider comorbid conditions. This lack of attention may be due to budget and/or time constraints. Nevertheless, whether neuropathy is undiagnosed or misdiagnosed, the effect is the same in that deserving veterans are missing out on benefits they may be entitled to.

It is essential that veterans seek medical treatment for neuropathy, including undergoing the necessary tests to properly diagnose and rate its severity.  Tests that are frequently used for this purpose include neurological examinations during routine visits, electromyography (EMG) tests, nerve conduction velocity (NCV) tests, and biopsies.

When rating disabilities, the VA often overlooks peripheral neuropathy, especially as secondary to an already service connected condition. A common scenario is the link between diabetes mellitus and peripheral neuropathy. It is estimated in the medical literature that up to 50 percent of individuals with diabetes suffer from neuropathy. Despite the known relationship between diabetes and neuropathy, it is very common for a veteran to undergo a compensation and pension examination for diabetes at the VA, however, the examiner does not evaluate the veteran for neuropathy. In turn, the VA fails to give the veteran a disability rating for this condition.

The important point to take away is that if you suffer from peripheral neuropathy or symptoms of neuropathy, you must be properly diagnosed. If your condition is directly related to military service or can be secondarily connected to another service connected condition, you deserve to be compensated.

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Most claims for Social Security Disability benefits are denied at first level, and end up traveling through the various steps of the disability process. At the first, or “Initial” level, a claim is assigned to an examiner at Social Security. Their job is to collect sufficient information about the claim so that a determination may be made. The examiner does this by requesting medical records, asking the claimant and a third party to fill out forms about the claimant’s impairments, and sometimes sending the claimant to a consultative evaluation.

These evaluations are performed at Social Security’s cost by a doctor of their choosing. Unfortunately, claimants often tell me that the exams are very brief and cursory, and the reports are frequently detrimental to the claim. It is very important for a claimant to know that if possible, Social Security must get the information they need from the claimant’s treating physician (for example, range of motion findings). If Social Security’s need for information can be fulfilled by the treating doctor, a consultative evaluation may be avoided.

Once the examiner has sufficient information for a decision to be made, the file is transferred to a “medical consultant” or a “single decision maker.” A medical consultant is a medical doctor of any number of specialties. (The specialty of the medical consultant who analyzes a particular claim can be found at the bottom of their “Medical Evaluation/Case Analysis” form in the claim file, with the corresponding codes found here: https://secure.ssa.gov/poms.nsf/lnx/0426510090.) The medical consultant will review the claimant’s medical records and make a determination regarding his or her medically documented physical and/or mental limitations. This information will be evaluated in terms of whether an individual with the determined limitations would still have the capacity to do any work.

A “single decision maker” may be an individual with no more than a bachelor’s degree. They are supposed to consult with medical doctors in coming to their conclusions regarding a claimant’s limitations; however, even ALJs often afford much less weight to their findings.

Very frequently, claims are denied at the initial level. At that point, a claimant has sixty days to file an appeal. If the claimant misses the appeal deadline and does not show good cause for doing so, the file will be closed and they will have to begin again with a new application if they still wish to pursue disability benefits. Some examples of good cause for late filing include serious illness preventing the claimant from contacting SSA; death or serious illness in the claimant’s immediate family; incorrect, incomplete, or misleading information from SSA which caused the missed deadline; lack of understanding regarding the requirement to file in a timely manner; or belief that a representative had filed an appeal when the representative did not. More examples can be found here: https://secure.ssa.gov/poms.nsf/lnx/0203101020.

If a claim is denied at the initial level (as most are) and appealed, the claim is then at the “reconsideration” level. The examiner again obtains updated records and forms from the claimant, and forwards the file to the medical consultant or single decision maker for a determination. Far fewer claims are awarded at the reconsideration level than are awarded at the initial level.

If a claim is denied at the reconsideration level, the same sixty day deadline applies for filing an appeal. This second appeal is a “request for hearing.” When SSA receives this appeal, it sends the claim from the lower determinations level to the hearing office, known as the Office of Disability Adjudication and Review, or “ODAR.” At this point, SSA will stop requesting updated records and the claim will wait in line for a hearing. The wait is approximately twelve to eighteen months, and it is important that a claimant or the claimant’s representative continue to provide updated medical records during this time.

At the hearing, an ALJ will hear the claimant’s testimony and will sometimes also take testimony from vocational or medical experts. The ALJs task is to review the medical records in the claimant’s file, take hearing testimony, and make a determination by using SSA’s five step process (discussed in another blog on this site). Oftentimes the judge will not provide a decision at the hearing, but will instead mail out their decision in writing.

This describes the path that a claim takes from the application through to the hearing level. There are additional appeal options if a claim is denied by an ALJ, including review by judges on the Appeals Council, and beyond that, a complaint filed against the Commissioner of the Social Security Administration in federal court.

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Many people suffer back pain but at what point is the back pain severe enough to qualify for Disability Benefits?

Pain in your spine can be the symptom of various conditions. My discussion however, will focus on a specific disorder of the spine, namely Herniated Nucleus Pulposus or commonly referred as herniated disc, slipped disc, or ruptured disc. Disorders of the spine generally produce neck and/or back pain which then affects your mobility, your activities of daily living, and your quality of life. Specifically, a herniated disc is a common disorder of the spine that can occur in any part of the spine. The pain it produces varies greatly based on the size of the herniated disc and in the position.

When someone suffers from a herniated disc or other type of spine disorder, Social Security is more concerned with the damage to the spinal cord itself—neurological impairment. What’s really important about herniated discs is that it can press on the nerve root causing pain that can limit your ability to function.

According to the American Association of Neurological Surgeons:

 Lumbar spine (lower back): Sciatica frequently results from a herniated disc in the lower back. Pressure on one or several nerves that contribute to the sciatic nerve can cause pain, burning, tingling, and numbness that radiates from the buttock into the leg and sometimes into the foot. Usually one side (left or right) is affected. This pain often is described as sharp and electric shock-like. It may be more severe with standing, walking or sitting. Along with leg pain, you may experience low back pain.

 Cervical spine (neck): Symptoms may include dull or sharp pain in the neck or between the shoulder blades, pain that radiates down the arm to the hand or fingers, or numbness or tingling in the shoulder or arm. The pain may increase with certain positions or movements of the neck.

If you suffer from neck or back pain, chances are you also have muscle spasms, stiffness, and loss of mobility to your spine as a result of a herniated disc or other spine problems. It is imperative that you address with your doctor (preferably a specialist) the pain level that you experience, as well as the frequency, intensity and precipitating factors. Make sure to provide as much detail as you possible and whether the pain is exacerbated by sitting, standing, walking, bending, stooping, lifting–even coughing, sneezing, etc. Documenting these symptoms during every visit with your doctor is important because this will help the State Agency or the Judge ascertain the severity of your functional limitations. Particular attention is given to the physical examinations conducted while in the examining room. The exams reveal whether abnormal pressure exist on the nerve root, whether you have significant muscle weakness, whether there’s changes in sensation and reflexes, etc. Some people get better with surgery while others don’t. For others, surgery is not even an option. If you have a spine disorder that has affected your quality of life and your ability to return to work, we will be happy to review your claim.

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