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DISABILITY RATINGS FOR HEART DISEASE

With the recent addition of ischemic heart disease to the list of Agent-Orange related disabilities, many veterans have recently been granted service connection for this disability.  In an earlier post, I discussed establishing VA service connected compensation for Ischemic Heart Disease for those veterans exposed to Agent Orange.  In this post, I will focus on VA service connected compensation ratings for heart disabilities.  It is important to know what kinds of information the VA needs to have in order to assign the proper disability rating for your disease. 

As a threshold matter, if you are taking any type of continuous medication to treat your ischemic heart disease, the VA should provide at least the minimum rating of 10% for your heart disability.  Make sure, then, that the VA is aware of any heart medications you have been prescribed by your non-VA doctors.

The higher levels of disability ratings for the heart are based on your symptoms at various levels of exertion.  Every level of exercise is assigned a range of METs (or metabolic equivalents). ..the higher the level of exertion, the higher the METs number.  In assigning a rating for heart disease, the VA specifically looks at what range of METs causes you to have certain symptoms.

The symptoms that the VA is looking for are dyspnea (shortness of breath), fatigue, angina (chest pain), dizziness, or syncope (fainting).  You need not have all of these symptoms to qualify for a particular rating, but it is important to know what the possible symptoms are so that you can inform your doctors, and the VA, if you are having these symptoms.

Only a minimum rating of 10% is appropriate where the veteran experiences these symptoms after doing activities such as jogging , biking or climbing stairs quickly (a level of 7-10 METs).   A higher rating of 30% is warranted where the veteran experiences the symptoms at a level of 5-7 METs.  This level of activity would include heavy yard work such as digging or mowing with a pushmower and would also include recreational activities such as golfing without a cart.  The 30% rating would also be appropriate where the veteran has certain test results on an electrocardiogram, echocardiogram, or X–ray, so, again, it is important to make sure that the VA is aware of these tests if you have had them performed by a non-VA doctor.

A higher rating of 60% is assigned where the veteran experiences heart symptoms at a less stringent level of exercise such as brisk walking or light yard work including weeding or mowing the lawn with a power mower (a level of 3-5 METs).  A 60% rating would also be appropriate for a veteran who has had more than one episode of acute congestive heart failure in the past year.

Finally, a total rating of 100% would be the appropriate rating where the veteran experiences the symptoms of heart disease at a minimal level of exercise such as slow walking for one or two blocks, showering, dressing or eating (1-3 METs).  The 100% rating would also be assigned to a veteran who has chronic congestive heart failure.

Another factor the VA will consider, outside the symptoms the veteran is experiencing,  is whether the veteran has had any procedures performed on his heart which might qualify him or her for a higher rating, at least temporarily.  Procedures such as heart valve replacement, coronary bypass surgery, cardiac transplant surgery, or implantation of a pacemaker require the VA to assign a temporary 100% disability rating for a period of months or sometimes indefinitely.

Finally, as with rating most disabilities, the VA must also consider whether the veteran’s heart disease prevents the veteran from maintaining employment.  Knowing the symptoms of heart disease allows you to keep your doctors informed if you are having these symptoms.  In addition, if your doctor is aware of your symptoms and documents them in your medical records, this makes it easier for the VA to assign the proper rating for your disability.

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by Attorney Shannon Brewer
July 31, 2012

Elements of a VA service connected compensation claim: Nexus

Nexus is the element of VA service connected compensation linking the incident in service to the current disability. I see nexus as a bridge between what happened in service to the current condition the veteran has. Typically, nexus comes in the form of a medical opinion.

I consider nexus to be a bridge because it helps illustrate the problems that veterans run into when applying for compensation. If a veteran applies for service connected compensation three months after discharge from the service then the bridge is relatively short. But when the veteran applies for service connected compensation three decades after discharge it is a different story. When a veteran’s claim comes years after discharge the VA is going to probe for intercurrent reasons for the disability. For example, if the veteran files for VA service connected compensation for a back claim the VA is going to see what the veteran was doing between service and the current claim. Did the veteran have any serious accidents that could have caused the current disability or was the veteran working in a job, like construction, that could have caused the veteran’s current disability. I’m not saying that a veteran cannot win a service connected compensation claim when he files it years or decades after discharge. In fact, the majority of the claims that I handle involve veterans who have been trying to get service connected benefits since the 1960s and 1970s. But you need to be aware of the problems that you will run into with the VA in claims like filed years after discharge.

As I stated, a nexus is usually a medical opinion. The VA has a duty to assist the veteran develop his claim. If you have a documented in service incident and a current disability the VA will usually send you to a C&P exam for one of their doctors to determine if there is a nexus.

The standard of proof for any factual determination in a VA service connected compensation claim, including a nexus, is ‘as likely as not.’ So if the evidence is fifty percent against the veteran and fifty percent for the veteran—the evidence is in equipoise—then the veteran wins. In terms of a nexus, that means if the doctor finds that it is ‘as likely as not’ that the veteran’s disability is related to the event in service then the veteran wins.

If the VA C&P exam finds that there is no nexus between the veteran’s current disability and his in-service incident, i.e. the doctor says it is ‘less likely than not’ that the current disability is related to what happened in service then the veteran is going to have to produce his own medical evidence either from a treating doctor or from an outside doctor who provides independent medical exams. In the majority of my cases, we have to seek outside opinions because the VA opinion is either inaccurate or does not consider all the factors of the veteran’s claim.

Once you have established an service incident has as likely as not caused or aggravated a current disability you have laid out the foundation for service connected compensation. If the VA concedes these three elements in your case then you are entitled to service connected compensation from the VA.

Unfortunately, as I’ve discussed here, just winning this battle is not the end of your war with the VA. You must now fight to make sure that the VA gives you the proper rating and effective date. Put simply, winning service connection gives you nothing more than the VA’s acknowledgement that your disability is related to service. After years of fighting the VA this concession can be a great relief. But you didn’t start this fight for recognition; you started it to receive compensation, service connected compensation.

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by Matthew Hill
July 14, 2012

The elements of a VA service connected claim: in service incident and current disability

To win VA service connected benefits, you must first understand the elements of the claim that you must prove. There are five elements to a service connected compensation claim that a veteran must prove: incident in service, current diagnosis, nexus, rating and effective date.

The first element of a service connected compensation claim is to show that there was an incident in service that relates to a current disability. You have to show that something happened in service resulting in the veteran’s current disability. It is important to note that the in service event has to happen coincident with service but does not have to happen as a result of doing something pertaining to the veteran’s job in service. As the Federal Circuit court has stated for the purposes of service connected compensation claims a veteran’s day never ends. It does not matter if the veteran was on base or off base when the incident happened.

For example, let’s compare two veterans with a knee disability. The first one hurt his knee when he jumped out of a helicopter on a combat mission. He blew out his knee when he landed. The second veteran was stationed in Germany where he took leave one weekend to ski in the Alps. While skiing he blew his knee out. For the purposes of service connected compensation, both of these incidents happened during service. As a consequence, both incidents would qualify as an injury in service for service connected compensation purposes.

Let’s go over some other examples of an in-service incident for service connected compensation. If a veteran is diagnosed with a disease in service this would count. Even if a veteran was not diagnosed with a disease but he was treated for symptoms if these symptoms were later diagnosed as a disability then they would suffice for an in-service incident. Certain types of training are known to lead to specific problems, even when these problems do not show up in service. For example, airborne soldiers are likely to develop orthopedic problems after service from the numerous hard landings. Another type of incident that is common is exposure to chemicals. The most well known example of this is Agent Orange. Veterans exposed to Agent Orange have developed numerous diseases years—decades even—after service.

As far as evidence to provide the VA of an in-service incident for service connected compensation, the veteran typically needs to submit evidence that supports his story of what happened in service. There are various different things a veteran can submit. If a veteran is still in touch with other soldiers that he served with then they can write statements, commonly called buddy statements, to support the veteran’s claim. The veteran can also use his own service medical records or service records showing that something did happen in service. Other examples of evidence would be newspaper articles, after action reports or anything else that would support the veteran’s story of what took place in service.

Once you have established an incident in service the next element in your service connected compensation claim is to show that you have a current disability. This element is relatively straight forward. The key is that you suffer from a diagnosed disability. If you have back pain but no back disability then you do not have a current disability. Let’s go back to the knee examples in the in-service incident section. If a veteran blew his knee out in service but then afterward it completely healed the veteran would not be entitled to service connected compensation because even though the veteran had a diagnosed disability in service there is no current disability or residuals of the knee problem.

Another area where I see a problem with a current disability in service connected compensation cases arise is in exposure cases. I review a lot of claims where veterans were exposed to Agent Orange or Asbestos. I see cases where the veteran is claiming exposure to Asbestos or Agent Orange but not alleging a current disability. Even if a veteran was exposed to a chemical if there was no resulting disability then the veteran is not entitled to service connected compensation. Remember you must suffer from a current disability to be entitled to service connected compensation from the VA. Once you have a current disability and an in-service incident then you have to show an nexus—or a link— between the two.

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by Matthew Hill
July 14, 2012

The VA Claims file aka C file

Keys to winning your service connected benefits: the C file

Through helping thousands of veterans with their VA benefits we have found some common themes in what it takes to win benefits. One of those keys is obtaining and thoroughly reviewing the veteran’s Claims file, aka the C file. The C file is the folder that the VA benefits section, the Veterans’ Benefits Administration, keeps on the veteran. The C file contains any and all claims that the veteran has filed since he or she was discharged from service. The file also contains any service records or service medical records that the VA has obtained to review the veterans file. Additionally, the C file will contain all the decisions that have been made in the veteran’s claims and any internal VA memos about the veteran’s case.

A lot of veterans get confused between the C file and the veteran’s VA treating medical file. To understand the difference one must understand the different sections of the VA. The veteran’s claim for service connected benefits is handled by the Veterans’ Benefits Administration, which is completely separate from the VA that the veteran comes in contact through medical care. The VA medical care is provided by the Veterans’ Health Administration. The Veterans’ Health Administration keeps it own file on the veteran of all the medical records the veteran has. Some of these records will make their way into the Veterans’ Benefits Administration’s C file. But a lot of the medical records will not.
After I review a veteran’s decision and speak with the veteran, I then order the veteran’s C file. The C file is the key to finding out what the VA has done on behalf of the veteran’s claim and what it has not. The C file will contain any service records, service medical records, current medical records, C&P exams and other evidence submitted for the veteran’s claim. Since the C file contains all the information on the claims that the veteran has filed the C file is typically hundreds to thousands of pages.

The 57 different VA Regional Offices take various amounts of time to respond to a request for a C file. There are a few that take only a month or so. Other VA Regional Offices can take well over a year to send the file. Most VA Regional Offices take around three to six months. Once I have the C file I send a copy to the veteran. My veteran is the best historian of his claims. He will be able to help me know what records he submitted but did not make it in the file and what other records that the VA should have obtained to prove his case.

I review the C file page by page and then meet with the veteran to formulate a plan for each of the claims. After reviewing the C file, we might discovery that the evidence does not exists to prove a certain claim. With another claim we might discover that the VA failed to request critical records from the service department. In still another claim, we might determine that we need to obtain further medical evidence to prove the case.

The C file is the key to establishing your plan of attack for your claims. In theory, you would be able to understand what you are missing from your claim by reviewing your last VA decision. However, anyone who has read a Rating Decision or a Statement of the Case will know that these documents are not very clear. The C file allows you to look at your claims piece by piece to determine what the VA already has and what the VA still needs to grant you service connected compensation. Fighting the VA for service connected benefits is a long and hard process. The best way to ensure success is to start by getting the C file and finding out what the VA already has and what the VA does not have so that you can focus on what is needed to prove your claim.

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by Matthew Hill
July 14, 2012

PTSD and VA service connected benefits

PTSD is the only mental illness to have its own VA regulation. For a veteran to receive service connected compensation for PTSD he must show three things. First, he must have a current diagnosis of PTSD. Second, he must provide credible supporting evidence of a stressor while the veteran was in service. Third, he must have a medical nexus (link) between the PTSD and what happened in service.

The diagnosis of PTSD must have been provided by a qualified medical professional, which is either a medical doctor or a PhD in psychology. Even though the VA uses licensed mental health social workers treat veterans—not to mention that these medical professional are competent and well trained— the VA will not accept their opinions diagnosing PTSD.

Regarding the credible supporting evidence of a stressor, the veteran has to provide evidence in addition to his testimony of what happened in service. This evidence can be in the form of service records, buddy statements, newspaper reports, unit records— anything that supports the stressor that the veteran talks about.

As far as the nexus is concerned, it has to be provided by a doctor and the doctor must link the PTSD to the verified stressor. This link is a little more complicated than it seems because most veterans have multiple stressors. Let me give you an example, where a veteran had two stressors in service, one verified and one not. For the first stressor, the veteran was in a car accident in service in which his best friend was killed. There are service records and hospital records backing up this stressor. The second stressor was when the vet was in his bunk and some fellow soldiers came in the room and threw a grenade at him. The grenade was a dummy but the veteran did not know that and he still has nightmares about it. There is no independent verification of this stressor. For the veteran to receive service connected compensation for his PTSD, the doctor would have to relate his PTSD specifically to the car accident in service because that is the only stressor with independent verification.

There are certain situations where the VA does not make the veteran show independent verification of a stressor. If a veteran was diagnosed with PTSD in service then the VA will not ask for proof of a stressor. If the veteran can prove that he was in combat and that his PTSD is related to combat then he does not have to provide the VA independent verification of a stressor. Similarly, if the veteran was a POW then he does not have to provide verification of a stressor if the stressor is related to being a POW.

Recently, the VA added a new presumption where the veteran does not have to show verification of his stressor. If a VA doctor finds that the veteran’s PTSD relates to fear of hostile military or terrorist activity then the VA will not require independent verification of the stressor. Of course, there are a couple of catches here. It has to be a VA doctor to do this—if the veteran has a diagnosis of PTSD related to fear of hostile military or terrorist activity from a private doctor then the VA is still going to require the veteran to show proof of the stressor. Another problem with this rule is if the VA doctor finds that the veteran does not have PTSD but depression or anxiety or a mood disorder that is related to fear of hostile military or terrorist activity the VA will require the veteran to show proof of the stressor. This rule only works if the VA doctor relates PTSD to a fear of hostile military or terrorist activity.

Another situation where the VA has reduced the burden of proof on the veteran is where the stressor involves an in-service personal assault. The VA has admitted that instances of assault in service are both underreported and under recorded, in that most people are too embarrassed to report these attacks and then even where someone did report it the report is never officially filed by the authority responsible for doing so.

Most commonly an in-service personal assault is a rape or a sexual assault. This is commonly referred to as a military sexual trauma or a MST. But an in-service personal assault can take other forms—being physically assaulted or even verbally harassed.

In these situations, the VA will look for evidence outside the veteran’s service records such as records from law enforcement, rape crisis centers or pregnancy tests. The VA will also accept evidence of behavior changes such as statements from relatives as to how the veteran was before service compared to how he was after service.

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by Matthew Hill
July 11, 2012

What to do after a grant of service connection from the BVA

A claim for service connected benefits can be long and exhausting. Just to get to a BVA decision a veteran would have had to already appeal the claim twice through the VA Regional Office (RO). This process can take two to ten years. But going all the way to the BVA and getting service connected is not the end of the fight.

It is important to understand that getting ‘service connected’ is really only the beginning of the battle. Being service connected does not give the veteran anything other than the fact that the VA recognizes that the disability is related to service. Once service connection is granted then the veteran has to fight for the proper rating and the proper effective date. It is in deciding the issues of effective date and rating that the veteran actually gets compensation and prioritized access to VA healthcare.

Let me give you an example of how these issues can affect a veteran’s claim. Recently, I had a case where the BVA granted the veteran service connection for PTSD. When the BVA makes the original grant of service connection it returns the case to the Regional Office for it to give a rating and an effective date. This veteran filed his PTSD claim in 2002. He applied for Social Security Disability at the same time. The Social Security Administration found him 100% disabled due to his PTSD as of 2002.

With his VA claim, the veteran struggled through the VA benefits system until the BVA finally granted it in 2010. When it went back to the Regional Office the Regional Office issued a decision giving the veteran 30% for PTSD as of 2010—the date of his last C&P exam—even though the veteran filed in 2002 and could not work as of 2002 due to his PTSD. I see this scenario all the time— the BVA reverses the Regional Office’s denial of service connection and then sends the case back to the Regional Office to rate and when it does so the Regional Office shortchanges the veteran. Once the VA Regional Office makes this decision the veteran only has 365 days to appeal it.

Unfortunately, a lot of veterans are told that instead of appealing they should just file a new claim. A new claim can only be filed for the rating going forward. If the veteran in my example had filed new claim then he would have lost all the potential benefits back to 2002. If the veteran were to have reopened the claim instead of appealing it he would have lost hundreds of thousands of dollars.

I see this scenario again and again. Typically after a BVA grant of service connection, the case goes back to the VA Regional Office’s remand team. This team is most likely manned by less experienced VA raters. The sad fact is that it is always easier for a rater to deny or underrate a veteran in this situation than it is to get the rating correct. The result ends up being that the veteran who fought for years—decades even—to get the benefits that he deserved ends up getting completely underrated. In this situation it is very important to file the a NOD, stating that you disagree with the decision and want to appeal it. The case will then go to a decision review officer, the most experienced raters in the VA regional office, for them to decide the case. If they get it wrong then the veteran should file the VA form 9 to get his case back to the BVA. Typically, the case will go back to the same judge that granted the service connection in the first place.

It is important to remember that even though the battle for service connection can be long and hard the war is not over until the VA gets the rating and effective date right as well. The best way to ensure that you get all the money to which you are entitled is to appeal that decision on the first rating if it underrates your claim.

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by Matthew Hill
July 6, 2012

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