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Initial VA rating

Once the VA has acknowledged that your disability is related to service—i.e. you have shown that there is was an incident in service and that you have a current disability and that you have shown a nexus between the two— then you must make sure that VA gets the rating and effective date correct.

The VA rating is supposed to reflect the level of severity of the disabilty in terms of how much it interferes with the veteran’s ability to work. Shannon Brewer has laid out the elements of the rating schedule in this post.

What I want to focus on is what the veteran should be thinking about when he is initially rated. As any veteran who has been through the VA service connected disability process would know, it is a long slow road. Just to get service connected can take years—sometimes even decades. Once you are initially service connected the VA gives you a rating. It is important to understand that this rating is often times wrong. The VA gets this rating wrong for several reasons.

First, in any claim where the first issue is whether the disability should be service connected or not the VA adjudicator is going to focus on the evidence related to service connection—i.e. they are looking for an incident in service, a current disaiblity and a nexus. Even when there is information regarding the serverity of the disability this often gets overlooked.

Second, these claims of intial service connection can go on for years and, as a result, build up quite a bit of retroactive benefits. Unfotunately, it is easier for a rater to underrate a veteran in this circumstance because the more money that the VA pays the veteran the more supervisors have to sign off on the award. For example, if the retro award is over $25,000 then the adjudicator has to have two superisors sign off on the award. But if the award is under $25,000 then the adjudicator can sign off on the award himself.

For these reasons, it is important to review that initial decision granting service connected benefits to make sure that the VA got the rating correct. If the decision is a rating decision granted by the VA Regional Office then you have one year to appeal this decision. If you miss the appeal deadline you can always file a claim for increased rating but the problem with this stragegy is that you will only get an increase in benefits from that date going forward—the VA will not go back to the original claim unless you appeal that decision.

The fight for service connected compensation from the VA can be a long and difficult struggle. It is important not to give up on a valid claim. It is equally important to make sure that once the VA grants you service connected benefits that you review the percentage to make sure that it accurately reflects the level of your disability.

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by Matthew Hill
September 24, 2012

VA Service Connected Rating for PTSD and C&P exams

Recently I wrote about the elements necessary in proving a PTSD claim for VA service connected benefits.  But getting the VA to acknowledge that a disability is related to service is just the first battle in the war to get service connected benefits.  The reason that you applied for service connected compensation is get paid for your disability, not to get recognized for the disability.

The way that the VA has structured the rating criteria is to compensate veterans for the loss of productivity in the work place due to the veteran’s service connected disability.  The more the VA service connected disability interferes with the veteran’s ability to work the higher the rating should be.

Chances are that if you have PTSD, it affects fundamental aspects of your working ability.  In the many cases that we have handled regarding PTSD, we have seen how PTSD has severely affected veterans’ home life and working situation.  The problem is that the ways that PTSD affects veterans are more subtle than other disabilities.

The main evidence that the VA uses to rate PTSD is a PTSD C&P exam.  For more information on the C&P exams please read this post

The VA has had a long history of wrongfully denying and underrating PTSD service connected claims.  The VA has difficult with cases involving illnesses that they cannot see or where they cannot measure it in ‘objective’ tests.  As a result, even when the VA acknowledges that a veteran has PTSD related to service they still manage to underrate the veteran.  The problem starts with the C&P exam.

The main symptom that I see the VA ignore in PTSD service connected cases is anger, also known as impulse control.  PTSD affects individuals ability to deal with stress in a normal manner and typically results in veterans lashing out, yelling or becoming violent.

For some reason the VA does not do a good job of discussing these symptoms in the C&P exams for PTSD.  I have found that these symptoms are both underreported by the veteran to the VA and under recorded by the VA doctors.  What I mean by underreported is that the veterans do not want to volunteer information about when they have lost control.  So if a doctor does not specifically ask if the veteran has had problems with anger or violence the veteran is not going to just tell them about it.  A lot of times even where I see that a doctor did ask a general question about impulse control the veteran will deny the problem.  But when I follow up with the veteran and ask if they lose their temper and yell or even hit walls they will tell me that does happen.  When I ask why they did not tell the doctor they typically tell me that the doctor did not specifically ask that question.

As to the under recorded symptoms, when I review C&P exams with veterans on service connected PTSD I will tell them that the doctor noted that the veteran did not have any problems with anger.  The veteran will then tell me all the anger problems that he told the doctor but that did not make it into the doctor’s report.  I don’t know why that this happens.  The VA has been using new forms that do not allow the doctor to just put in notes and the VA has made their C&P examiners perform a lot more exams so maybe they do not have time.  Whatever the reason may be, it is important that the veteran order and review a copy of his Claims file so that he can review the exam.

So what can you do to be prepared for a VA C&P exam for a rating of service connected PTSD? It is important that you spend time before the exam considering the effects that PTSD has on you.  I would encourage the you to discuss you PTSD with your loved ones and ask them how they see PTSD affecting you.  This will be a difficult conversation but an important one because you need to make sure that the examiner gets all the information that he needs to produce an accurate picture of your claim.  I also encourage you to bring along a witness that knows your PTSD.  I would ask the doctor to speak to this person to get a more full picture of the disability as well.

For more information on VA compensation for PTSD, please download our free e-book on PTSD and VA compensation

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by Matthew Hill
September 24, 2012

Social Security Disability benefits: Are my benefits affected by Workers’ Compensation?

If your Social Security claim is awarded, the amount you receive may be reduced if you received Workers’ Compensation benefits–whether or not the receipt of the Workers’ Compensation benefits was in a lump sum. Under the Social Security Act, Social Security Disability benefits may be offset if the disabled individual received workers’ compensation benefits.  This is because Congress’ intent is to avoid duplicate benefits. As such, the statute places a ceiling on the disabled person’s combined Social Security disability insurance benefits and State workers’ compensation benefits.  See 42 U.S.C. § 424a.

When a person receives both Workers’ Compensation benefits and Social Security disability benefits, the law is clear that their Social Security disability benefits “shall be reduced” to ensure that the sum of these benefits does not exceed 80 percent of your average earnings. See 42 U.S.C. § 424 a.  The Supreme Court explained that by limiting total state and federal benefits to 80% of the employee’s average earnings, “it reduces the duplication inherent in the program and at the same time allows a supplement to worker’s compensation where their payments are inadequate.” Richardson v. Belcher, 404 U.S. 78, 83 (1971)

If you have a Social Security Disability claim and had a claim for Workers’ Compensation where you entered into a stipulation for Workers’ Compensation settlement, and was awarded a lump-sum amount, it may be possible that if the Social Security claim is subsequently approved, your receipt of the Workers’ Compensation lump sum payments may reduce the amount you get form Social Security disability benefits.

We review the language in the WC lump-sum settlement as it may prorate the lump sum settlement over the individual’s life expectancy thereby helping us determine whether or not Social Security benefits are reduced and by how much.  The lump-sum is prorated to reflect the monthly rate that would have been paid had the lump-sum award not been made.  Because there may be an offset with certain Social Security cases, it is imperative that you provide us with the necessary documents for us to review your case. We will ask about this information during our intake, case management reviews, and/or pre hearing conferences. We will ask if you received Workers’ Compensation benefits, approximate dates of receipt, and contact information for your Workers’ Compensation attorney as well as copies of the Workers’ Compensation Settlement documents. After we receive the documents requested form you, we will review the formula used by Social Security to determine the offset. While going over the offset formula is above the scope of this blog, it is worth mentioning that social security will use your highest years of earnings for their computations in determining the amount of reduction. Every case is different and not all cases will have an offset. However, since social security places a ceiling on the disabled person’s combined benefits, some cases will end up with an offset if the combined Social Security disability benefit and workers’ compensation benefit exceed 80 percent of the individual’s average monthly earnings.

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by Attorney Wendy Rivera
September 10, 2012

Medical Expert Testimony at Social Security Disability Hearings

A Medical Expert (ME) may testify at your Social Security disability hearing in order to explain whether your impairments medically “equal” or are the functional equivalent of a medical listing contained in the Listing of Impairments (see Regulations No. 4, Subpart P, Appendix 1).  The Listing of Impairments contains over 100 medical conditions which would ordinarily prevent an individual from engaging in any gainful activity.  An ME is a neutral party and can either be a physician or mental health professional that can provide expert opinion based upon the medical evidence on record. The Administrative Law Judge assigned to your case may request the testimony of an ME to help simplify complex medical conditions and to help determine if your impairment(s) meets the requirement to render you disabled by reason of the medical impairment alone.  An ME is also helpful in providing clarity regarding a particular disease and how it affects your ability to work.

At the beginning of the hearing, the Judge administers the oath to witnesses who will testify. The Judge will then qualify the expert by asking them about his or her impartiality, expertise, professional qualifications and whether they had the opportunity to review the medical evidence and the Social Security Rules. If additional records were submitted to the Judge, it is imperative to ensure that the ME also received and reviewed the same.

The attorney will have an opportunity to cross examine the ME regarding the severity of the impairment and how you are affected by it. If the hearing is a supplemental hearing, meaning that a full hearing was previously held where the claimant previously testified, it is possible for the Judge to immediately begin direct examination of the ME without requiring you to testify once more. In either case, the attorney has the opportunity for cross-examination.

During direct examination, the Judge may ask the ME to identify the medical conditions that were present during your alleged period of disability, whether or not they meet the Social Security Listing of Impairments, and/or to identify limitations that interfere with your ability to perform basic work activities. The latter is very important, because it helps determine if you are able to sustain mental activities needed to perform work over a normal workday and workweek, on an ongoing basis.  Limitations may include: dealing with co-workers or supervisors, dealing with changes in a routine work setting, dealing with normal work stress, maintaining concentration for extended periods of time, maintaining regular attendance, or even completing a normal workweek.

It is worth mentioning that physical ailments can also affect someone’s mental health condition and it is helpful to elicit testimony from the ME regarding the same. During one of my recent hearings, the medical expert was a licensed psychologist who testified that in addition to my client’s long history of depression, the claimant had a serious physical condition requiring hospitalization that aggravated the mental health condition.  While the ME was only providing testimony for the mental component of the claim, the expert was able to testify not only to the existence of a mental impairment but also how it was exacerbated by the physical ailment.

If you have a hearing scheduled and received notice that a Vocational and/or Medical Expert will testify at your hearing, feel free to contact us for a free consultation.

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by Attorney Wendy Rivera
September 7, 2012

Social Security Disability Claims & Drug and Alcohol Abuse

When filing a claim for disability benefits, claimants should be aware that drug addiction and/or alcoholism may be a factor in Social Security’s determination.  If the claimant has drug or alcohol use that has caused or aggravated a current disability, his claim may be denied by Social Security. 

The test used by Social Security is whether the drug addiction or alcoholism is a “contributing factor material to the determination of disability.”  Meaning, if Social Security finds the drug addiction or alcoholism materially contributes to the claimant’s inability to work, the claim will be denied. 

First, Social Security determines whether drugs or alcohol play a factor in the claimant’s case.  This should be established by medical evidence in claimant’s file.  Second, Social Security must determine whether the individual would be able to work if they stopped using drugs or alcohol. 

To determine whether one would be able to work if not using drugs or alcohol, Social Security evaluates current physical and mental limitations, which the claimant’s case is based on, and then determines which limitations would remain if the claimant stopped using drugs or alcohol.  Finally, a determination of disability is made based only on the conditions that remain after the claimant stopped using drugs or alcohol. 

The cause of claimant’s disabilities is irrelevant, even if drug addiction or alcoholism played a role in creating the condition.  The test is whether the claimant would be disabled if he quit using drugs or alcohol and not whether the use caused his conditions. 

The burden of proof is on the claimant to show they would remain unable to work if they stopped using drugs or alcohol.  The Eleventh Circuit held that the claimant bears the burden of proving that his alcoholism or drug addiction is not a contributing factor material to his or her disability determination. Doughty v. Apfel, 245 F.3d 1274, 1275 (11th Cir. 2001)    

The most difficult claims for social security to make determinations on may involve claims for mental impairments combined with substance abuse disorders.  Social security will be required to determine which mental health impairments would remain if the claimant discontinued use of drugs and/or alcohol. 

Although drug addiction and alcoholism should not automatically have a negative effect on the applicant’s disability claim, it can be very problematic to overcome the prejudice of such findings.  If you have filed a claim for disability benefits or plan to file a claim in the future, you should stop drinking or using drugs.  You should also consider stopping for a significant period of time to show continued inability to work after drug and alcohol use has stopped.    

In Davis v. Apfel, a Florida district court noted that the Commissioner’s instructions regarding handling the “materiality” determination of drug and alcohol addiction state that the “[m]ost useful evidence that might be obtained in such cases is that relating to a period when the individual was not using drugs/alcohol.”  Davis v. Apfel, 93 F. Supp.2d 1313, 1318 (M.D. Fla. 2000).  In that case, the court found that since medical records showed mental stability during periods of sobriety, the claimant’s drug addiction was material to a determination of disability.

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by Attorney Shelly Campbell
September 4, 2012

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