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If you have been denied by an Administrative Law Judge, what are your rights?

If you had a disability hearing before an Administrative Law Judge and received an unfavorable decision, you may file a request for review with the Appeals Council within 60 days from the date of the decision. The Appeals Council reviews the case and decides if the hearing decision was correct or whether to review your case. If the Appeals Council decides to review your case, it will either decide your case or return it to the same Judge that heard your case. In situations where the Appeals Council decides not to review your case, you can pursue it further by filing a civil suit in federal district court.  This blog will focus on a recent ruling by Social Security eliminating the right to simultaneously file a request for review with the Appeals Council and file a new claim—Rule 11-1p.

Before this rule (11-1p) became effective, if you were denied by a Judge, you were able to file both a request for review with the Appeals Council and at the same time file a new claim (initial application). Sometimes, new claims were approved and claimants would receive their social security benefits while the prior case was pending review with the Appeals Council. Other times, if the Appeals Council remanded the case, this resulted in the new claim and the old claim being consolidated and heard before the Judge. However, this is no longer the case.

As a result of the economic downturn, social security has experienced an increase in the number of Social Security cases filed. According to the social security administration, in order to make efficient use of their limited resources in handling claims, they have eliminated the right to file a new application while an appeal on a prior claim is pending with the Appeals Council.

But this new regulations is troublesome because if you want to file a new disability claim under the same title and of the same type as a disability claim pending administrative review, you will have to choose between pursuing a review on the pending disability claim or declining to pursue further review and filing an entirely new application. You are no longer able to do both. They have carved out a few exceptions which include:

  • Allegation of a new critical or disabling condition with an onset after the hearing date;
  • There’s additional evidence of a new critical or disabling condition with an onset after the date of the hearing; and the claimant wants to file a new disability application based on this evidence; and
  • The Appeals Counsel agrees the claimant should file a new application before action on the request for review is complete.

Due to recent changes with Social Security, a person must now choose one or the other but no longer allowed to have two claims for the same type of benefits pending at the same time.

It is worth mentioning that this new ruling does not apply to cases pending in Federal Court.

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by Attorney Wendy Rivera
May 29, 2012

VA benefits and Migraines

Migraines and VA service connected benefits

In my practice, I have found repeated mistakes when it comes to rating migraines correctly for VA service connected benefits.  Migraines are difficult for the VA to assess because they are unseen.  The VA is much better at rating disabilities that are easy to see—orthopedic problems, eye problems, diabetes, etc.  But to properly assess the extent of the disabling effects that migraines have a person the VA must listen to the veteran.  Unfortunately, I rarely see this happen.

There are four possible ratings for migraines.  A zero percent rating is appropriate for migraines that are not prostrating or happen less frequently than every two months.  A 10 percent rating is appropriate for migraines that produce a prostrating attack at least once every two months.  A 30 percent rating is appropriate where a veteran has a prostrating attack occurring on an average once a month over the last several months.  The final rating is a 50% rating for frequent completely prostrating and prolonged attacks that are ‘productive of severe economic inadaptability.’

There are a couple important notes about the way migraines are rated.  First, is to understand the term prostrating.  The term means to lay down or to reduce a person to extreme physical weakness.  Essentially, the question is are the migraines severe enough to make the person lay down.  If this is the case it is extremely important that the veteran lets the doctors know not only how frequently she is having migraines but how often the migraines are prostrating.  In fact, the more descriptive you can be to your doctor the better.  Often, I will read a veteran’s medical records about migraines and it will note that the veteran has a couple migraines a month.  Then when I ask the veteran about it she will let me know that she might just have two a couple but whenever she has one she will have to lay down in a dark, silent room and that she will have to stay there for two days. 

It is important to be as descriptive as possible because the VA is going to rate you based on not what you tell them but what is in your medical records.  Of course, the description of your migraines in your medical records is what the doctor wrote down after asking you but the VA is more comfortable relying on what is printed in medical records than what a veteran tells the VA Benefits administration directly. 

The other important note to take away is that the maximum rating for migraines is 50%.  VA set up its rating schedule to match the severity of a disability with how much the disability impairs a veterans ability to work.  The higher the rating the more the disability interferes with the veteran’s ability to work.  By offering a 50% rating as the highest rating for migraines the VA implicitly is stating that migraines cannot completely impair one’s ability to work.  I disagree with this notion.

I have represented multiple veterans who have weekly prostrating migraines.  These veterans have to retreat to a dark room and cannot do any work for the whole day.  When I asked a vocational expert about what it means for a person to miss one to two days a week of work the expert told me that, effectively, this person is unemployable because no standard work setting would allow a person to miss that much work. 

So if you have migraines and, as a result, cannot work a 50% rating is not an adequate rating for you.  You must insist that the VA rate you totally disabled due to individual unemployability (IU).  Typically, IU ratings are reserved for individuals who are rated at least 70% and have demonstrated to the VA that they cannot work.  Once again, a 70% rating is not a possible rating for a someone battling migraines.  The VA’s own regulations state that the VA must consider an IU rating if the veteran has shown that she cannot work due to her VA service connected disability.  Rarely, will the VA actually grant IU where the veteran does not meet the 70% threshold. 

In these cases, I seek the opinion of vocational experts.  These experts can look at the time lost and the functional loss resulting from the migraines and then show how the migraines prevent the veteran from working.  With a vocational expert report I force the VA to consider the whether the migraines cause individual unemployability.  Remember if your service connected disability prevents you from working then the VA should compensate you at the maximum rating.

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by Matthew Hill
May 22, 2012

Ischemic Heart Disease and Agent Orange

For the past several years, the VA has acknowledged that veterans who served in the Republic of Vietnam between 1962 and 1975 were likely exposed to tactical herbicides such as Agent Orange.  The VA regulations mandate that any veteran who served in Vietnam (or, now, in some other areas where Agent Orange was stored or sprayed) during the relevant time period is presumed to have been exposed to Agent Orange.   The VA has identified a list of diseases which it accepts as having been caused by Agent Orange.  If a veteran who has been exposed is affected by one of these diseases, it is presumed to have been caused by his exposure to Agent Orange and will, then, be considered service connected.  In 2010, the VA expanded its list of twelve Agent Orange-related diseases to include Parkinson’s disease, chronic B-cell leukemia, and ischemic heart disease.  

What is ischemic heart disease?   It is a disease which causes lack of blood flow and oxygen to the heart muscle.  Not all heart disease qualifies for the presumption, but just because a veteran has not specifically been diagnosed with ischemic heart disease does not mean that he does not have the disease.  Ischemic heart disease includes diagnoses such as coronary artery disease, coronary heart disease, ischemic cardiomyopathy and myocardial ischemia.  The veteran may or may not have initial symptoms such as shortness of breath, unexplained fatigue, heart palpitations, a sensation of heartburn or indigestion, dizziness and/or lightheadedness.  Vietnam-era veterans with heart disease should ask their doctors if their particular diagnosis is a form of ischemic heart disease.

Importantly, so long as the veteran was exposed to Agent Orange (either directly or presumptively), he need not have been diagnosed with ischemic heart disease within any certain time frame.   In other words, if a veteran served in Vietnam in 1969 and develops ischemic heart disease forty years later in 2009, he is still entitled to service connection for his disease.  In addition, although there are other risk factors for ischemic heart disease, such as smoking, obesity, high cholesterol, hypertension, and diabetes mellitus, if the veteran has been exposed to Agent Orange, he is entitled to a presumption of service connection even if he has those other risk factors.

In addition to new claims for ischemic heart disease, the VA must also reopen and re-adjudicate the claims of Vietnam-era veterans who applied for compensation for heart disease prior to the change in the VA regulations.  The veteran could, then, be entitled to an effective date all the way back to his earlier claim. 

On that note, medical research is constantly identifying new links and relationships, and veterans should be aware that just because their particular illnesses or diseases have not yet been recognized as being related to Agent Orange does not mean that they will not be recognized at some point in the future.  If the veteran feels that there is a link, it is worth filing the claim.  The claim may initially be denied, but if the VA then later recognizes the veteran’s disability as connected to Agent Orange, he could be entitled to an effective date as of the date he filed his claim.

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by Attorney Shannon Brewer
May 15, 2012

Why Work History Is Important When Applying for Disability Benefits

When a claimant files for disability, whether filing for VA and/or Social Security Disability Benefits, his or her work history is always very important in the proceedings.  The relevancy somewhat differs in the VA context versus Social Security; however, the common thread is that a person’s past work, or lack thereof, will usually somehow play a role in the ultimate outcome of the claim.

The Social Security Administration (SSA) defines past relevant work as “work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it.” 20 C.F.R. § 404.1560. Past relevant work is extremely important in Social Security Disability cases. Basically, SSA will review any work performed within 15 years prior to deciding your case, in order to determine if you are capable of returning to any of your past relevant work. In order to determine if you are capable of returning to your past work, SSA will consider several factors, such as:

  • any job skills you may have acquired
  • tools or machines you may have used (i.e. computers,  special equipment, etc.)
  • the number of hours per week you worked and your rate of pay (i.e. full time v. part-time v. seasonal, etc.)
  • the physical aspects of your job (i.e. sitting, standing, walking, lifting, carrying, and postural requirements)
  • the mental aspects of your job (i.e. stress demands, multi-tasking, etc.).
  • any supervisory or lead worker responsibilities

If SSA determines that you are capable of returning to past work as you performed it, even with your disabilities, then they will find that you are not disabled, and your claim will be denied.  Even if you are not capable of returning to past work as you performed it, then SSA will go on to consider if you are capable of performing any of your past work as it is “generally performed” in the national economy, and if not, whether you are able to adjust to other work in the national economy considering your age, education and past work experience.  Again, if you are able to adjust to other work, then your claim will be denied.

As a practical matter, work history matters to the Administrative Law Judges (ALJ).  Most ALJ’s will look at a claimant’s work history to see if they have a strong work record. If a person has worked and paid into the Social Security system on a consistent basis, and then all of a sudden the earnings stop or are substantially reduced, that may be a favorable indication to the ALJ that the person is legitimately disabled. In my experiences, many ALJ’s believe that most people with strong work backgrounds would not stop working unless there was a good reason. However, if a claimant does not have a strong work record, some ALJ’s take that as an indication that a claimant is trying to obtain the benefit of Social Security Disability, without ever really contributing to the system in a meaningful way. 

In the VA context, the relevance of work history is viewed differently. The VA does not evaluate a veteran’s past work in order to determine as a threshold matter whether or not the veteran is eligible for service connected disability benefits.  So for example, a veteran can be working full time or be  capable of doing so and still be eligible for VA service connected benefits. This is because VA rates disabilities based on the average impairment in earning capacity resulting from the disability, in 10 percent increments. So, a veteran can be “partially” disabled with the VA, meaning it is not an all or nothing determination, unlike in the Social Security context.  In Social Security, either you are disabled or you’re not.

 However, it should be noted that past work history is still used by the VA in a number of other contexts, such as evaluating the origin or severity of impairments, determining eligibility for total disability based on individual unemployability (TDIU) benefits, and in determining eligibility for non-service connected pension. For example, when evaluating mental impairments, the VA treating providers and C&P examiners will often look to a veteran’s past work history to determine if the mental condition at issue has affected the veteran’s ability to obtain and/or sustain gainful employment.  For example, does the veteran have a history of getting fired from jobs (i.e. due to inability to deal with stress, temper flare ups), a history excessive absenteeism, a history of sheltered employment, etc.  If so, these factors may indicate a severe mental impairment that warrants a higher disability rating versus someone who has been able to successfully maintain employment over the years. Similarly, if a veteran is claiming service connection for a back condition; however, his or her post military work has been as a construction worker or heavy laborer, a claim for service connection will likely prove more difficult.

 In the TDIU context, the VA adjudicators will often look at the veteran’s Social Security earnings record to determine if the veteran is still working at a substantially gainful level, which would make the veteran ineligible for TDIU benefits.  The same concept applies to eligibility for non-service connected pension.

At the end of the day, the bottom line is that your work history matters.  It can affect your eligibility for disability benefits and also the determination as to how severe your disabilities are rated. Therefore, it is extremely important for Social Security claimants and veterans to think about how their disabilities have affected their work over the years, and to communicate those thoughts to their representatives in order to ensure that the claim is presented in the best manner before SSA or the VA. Knowing why your work history is important is a large part of the battle.

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by Attorney Leslie Gaines
May 15, 2012

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