Hill & Ponton, P.A.

Recently, the issue of Military Sexual Trauma (MST) has made a resurgence in our national discourse. Recent statistics from the Department of Veterans Affairs indicate that one in every five women who receive medical treatment at the VA have reported MST. In fact, military and VA leaders freely admit that MST is widely underreported.

To understand how MST is handled by the VA, one must first understand what MST is.  Many events can constitute MST, such as:

• sexual assault(s)
• sexual harassment
• unwanted sexual touching or grabbing
• threatening, offensive remarks about a person’s body or sexual activities, and/or
• threatening or unwelcome sexual advances

One of the most frequent misconceptions about MST is that only women are affected. This is simply not true. Men can also be victims. Oftentimes, I’ve found in my practice that men are more likely than women to suffer in silence.

The unfortunate reality of MST is that it is often very difficult for most survivors to deal with the trauma, let alone decide to then deal with the VA in order to be compensated. Recently, there has been much debate between the VA and PTSD advocacy groups regarding the approval rate for MST claims versus the approval rate of PTSD claims that do not involve MST. At the end of the day, the consensus is that MST claims have a lower approval rating than other non-MST PTSD claims. Despite this reality, it is important to note that MST claims are usually difficult; however, they are winnable.

Filing a claim is the first step. As with all disability claims, if the claim is never filed, then the veteran cannot be compensated. After the claim is filed, the VA will proceed to develop the claim, just as they do all other claims. Most frequently this entails the VA requesting medical records, scheduling a compensation and pension examination, and requesting statements from the veteran. After which, the VA will make a decision. Unfortunately, as stated above, MST claims have a lower approval rating than other PTSD claims; therefore, many claims are initially denied. Or, if the claim is approved, the percentage of disability that is granted is normally underrated, as compared to the severity of the impact of the trauma on the veteran’s life. In both situations, it is incumbent upon the veteran to file an appeal to pursue the benefits rightfully owed to them.

There are two common difficulties with MST claims that I see over and over again in my practice:

• Lack of a formal diagnosis of PTSD as a result of MST- As previously stated, there are many reasons for this. Many are afraid to come forward and have never disclosed the trauma to anyone, let alone a medical provider. Many have treated at the VA for years, carrying other mental health diagnoses, but have never been diagnosed with PTSD. The list of reasons could go on and on. The bottom line is that failure to have a valid diagnosis of PTSD as a result of MST is often fatal to the claim. For additional information regarding the criteria for a valid diagnosis of PTSD, please refer to a previous blog that I wrote on the subject.
• Many veterans give up because they assume that they have no claim if they have no objective proof of the event- Because MST is often underreported, there is usually no foolproof evidence that an event in service- the MST stressor- actually took place. The good news is that this is not fatal to the claim. Within recent years, the VA has acknowledged the special difficulties associated with MST claims, and as such, there is a separate VA regulation governing these types of claims. The VA will allow a veteran to submit various forms of evidence to help substantiate the MST, for example: statements from family members/fellow service members/clergy; documented tests for pregnancy or sexually transmitted diseases; episodes of depression, panic attacks, or anxiety without an identifiable cause; requests for transfer to another military duty assignment; and so forth.  Foolproof evidence of the MST event is not necessary to be successful.

The important take away is that despite the inherent difficulties with MST claims, these claims are winnable. At Hill & Ponton, we have handled many of these claims, and we would be honored to help you fight for the benefits you deserve.

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We often talk to veterans who have been misled about how much back pay (or retroactive benefits) they should receive once their disability has been service connected.  It can be very frustrating to think that the VA will acknowledge that a disability began during military service but that it will not pay benefits all the way back to discharge from service.

The amount of retroactive benefits a veteran will receive for his disability depends on the “effective date” of service connection.  As a general rule, the effective date of service connection is the date that a veteran first files a claim for compensation for that disability.  Thus, if a veteran is injured during service in 1969 but does not file his first claim for benefits until 2002, his effective date cannot be earlier than 2002.  One exception to the rule is where a veteran files a claim for compensation within one year of discharge.  In that case, the effective date for service connection will go back to the day after discharge from service.

Once you have filed a claim for compensation, it is important to take steps to protect the date that you filed your claim as your effective date.  A common mistake we find veterans making is to fail to file a timely appeal once the VA had denied their claims.  Once VA issues a rating decision, a veteran has only one year to appeal that decision.  If you fail to file a notice of disagreement with that decision, you may lose your rights to the date of that claim as your effective date.

I have been told by some of our clients that they were advised not to appeal a decision as they were told an appeal would delay their decision.  They were told, instead, to file a new claim.  This is a mistake!  If you file a new claim instead of appealing your old claim, you will probably be assigned an effective date as of the date of filing your new claim.  In order to protect the original filing date as your effective date for benefits, you must file an appeal.

Say, for example, you filed a claim for a back disability in 2002.  The VA considered your claim for around two years and then denied your claim in 2004.  If you appeal that decision and are able to get a medical opinion in 2006, while your appeal is pending, which proves that your back disability is related to service, you may win that case and be assigned an effective  date of 2002.  If, however, you fail to appeal the decision and then obtain that same medical opinion in 2006 and file a new claim, you will have lost the opportunity to receive four years of retroactive pay.

As with all things, there are, of course, exceptions to the rule.  For instance, your original claim may have been denied because your service records have been lost and there was no way to prove that you were injured during service.  If those service records are later found—which happens more often than you would think—the VA is obligated to reconsider your original claim and may be required to assign an effective date as of the date of your original claim.

Once you determine that you have a service-related disability, you should file your claim as soon as possible to allow yourself the earliest possible effective date.  When you have filed that claim, protect your effective date.  File your appeals on time.  Get help figuring out the rules of effective dates and retroactive benefits.  We can help make sure that you receive all of the benefits to which you are entitled.  Don’t lose out on your back pay due to a careless error or a mistake that could easily have been corrected if you had only known the rules.

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Traumatic Brain Injury and VA Disability Benefits

 During the Afghanistan and Iraq wars, thousands of soldiers suffered from traumatic brain injury (TBI), which, because of its commonality, has been labeled the “signature injury” of those wars.  Brain injuries are fierce and lasting; therefore, the United States Department of Veterans Affairs (VA) ensures that veterans are eligible for up to a 100% disability rating. 

 What is Traumatic Brain Injury?

 Traumatic Brain Injury (TBI) often occurs when soldiers fall off a vehicle or are hit by flying debris during an IED explosion – or – the soldiers themselves are thrown against a vehicle or building by an explosion. 

 TBI is a sudden injury to the brain caused by some kind of force.  In the case of soldiers, this force usually is an explosion and it’s estimated that anywhere from 115,000 to 400,000 soldiers suffered traumatic brain injury while serving in Afghanistan and Iraq.

 What are the Symptoms of Traumatic Brain Injury?

 If the force to the brain is severe, the injured person may not be able to function.  Even personalities and thinking can change and the soldier may come home a different person – not just because of the combat experience and exposure to horrific stress – but because of the serious brain injury as well.

 Even less serious brain injury has severe consequences; the resulting symptoms may be:  headaches, ringing in the ears, hearing problems, balance problems, dizziness, mood swings, lack of self control, insomnia, fatigue, lethargy, tired eyes, bad taste in the mouth, difficulty with concentration and attention, chronic pain, confusion, and memory loss.  All are common.

 The TBI symptoms are slow to heal, if they ever do, and they make day-to-day living and work, difficult or in many cases, impossible.  If you’re a veteran and suffer from the side effects of a traumatic brain injury caused by a service injury, you may be eligible for veterans disability benefits.

 What are Veterans Disability Benefits?

 If you have served in the United States military, you have earned benefits as compensation for your service and contribution to our country. 

 If you are disabled due to that service, you may qualify for more than $3,100 (tax free) each and every month for the length of your disability.

 In addition to your monthly disability income, you may qualify for added compensation if you lost the use of specific organs or extremities during service.  For example, if you lost a leg or your sight in the explosion that caused your traumatic brain injury, you would qualify for added compensation.

 Where to Get Help with Your Veterans Disability Application

 If you or a loved one has suffered a traumatic brain injury while serving in the military, we invite you to consult with one of our veterans benefits attorneys. 

 Our law offices are physically located in the Central Florida and Tampa Bay region.  However, we also represent disabled veterans, who have suffered traumatic brain injury or other service related disability, nationwide.  You can reach us toll free at 1-888-477-2363 or email our veterans benefits attorneys here.

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In August 2010, DePuy Orthopaedics, a unit of Johnson & Johnson, issued a voluntary recall of its ASR XL Acetabular Hip System and DePuy ASR Hip Resurfacing System after receiving new, then-unpublished data from the National Joint Registry (NJR) of England and Wales as part of the company’s ongoing surveillance of post-market data concerning the ASR Hip System.  After reviewing this data, DePuy decided it was in the best interests of patients to voluntarily recall the ASR Hip System.  [U.S. Department of Health and Human Services, U.S. Food and Drug Administration, (January 17, 2013). Metal Devices. Retrieved from this article published by the FDA.

This data showed a five-year revision rate of approximately 12% for the ASR Hip Resurfacing System and approximately 13% for the ASR XL Acetabular System, which was not in line with data previously reported to DePuy. These revision rates were across the entire size range.

DePuy’s previous analyses of collective post-market data from a variety of sources had shown lower revision rates.

The DePuy Orthopaedics ASR Hip System first became available in July 2003, but it first became commercially available in the U.S. in December 2005.  The artificial hip socket was sold to some 35,000 people in the U.S. and more than 90,000 people worldwide.  New Brunswick, N.J.-based Johnson & Johnson stopped making the product in 2009.

DePuy and Johnson & Johnson have not accepted responsibility for the alleged defects and failure of their artificial hip implants.  As a result, hip replacement patients who received DePuy metal hip implants continue to file lawsuits against DePuy for their injuries.

During a recent court case, Johnson & Johnson indicated that officials of the company were aware of problems with the device at least as far back as 2008.  Johnson & Johnson has put aside around $1 billion to deal with the costs of the recall and lawsuits.  [Associated Press, (January 28, 2013). Trial over metal hip replacements begins in LA. Retrieved from http://www.cbsnews.com/8301-204_162-57566123/trial-over-metal-hip-replacements-begins-in-la/]

Since the DePuy ASR hip recall, the entire class of metal-on-metal hip implants have come under close scrutiny.  The U.S. Food & Drug Administration (FDA) issued their first public safety communication about metal-on-metal hip devices in February 2011.  This is despite the fact that in November 2010 DePuy published the first ASR Recall Resource Packet in November 2010.  On May 6, 2011, the FDA issued a post-market surveillance study of total metal-on-metal hip replacement devices.  Most recently, on January 17, 2013, the FDA proposed an order requiring manufacturers of metal-on-metal total hip replacement systems to submit premarket approval applications.  This would make the devices ineligible for 501(K) clearance, which allowed such implants to come to market with no human testing.  The proposed rule would require manufacturers to submit data showing the devices are safe and effective before they could continue selling existing ones or obtain approval for new mental-on-metal designs. [DePuy Companies (2011).  DePuy ASR Recall Guide. Retrieved from http://asrrecall.depuy.com]

All artificial hip implant devices can have complications.  In metal-on-metal devices both the ball and socket components are made of metal.  Because of the metal’s durability, metal-on-metal devices were expected to last longer than other hip implants.  They were also widely used because they avoid the complication of debris wear from implants made of plastic.  However, as in the case of the ASR Hip System, metal surfaces give off small particles of debris.  Metal surfaces can corrode, giving off metal ions.  Despite all precautions by orthopedic surgeons before and during hip replacement to try to optimize the way in which the ball and socket rub against each other so that fewer particles are produced, these ions (e.g. cobalt and chromium) and particles can enter the space around the implant, as well as enter the bloodstream.   Over time, the metal particles around some implants can cause damage to bone and/or tissue surrounding the implant and joint.  Soft tissue damage may lead to pain, implant loosening, device failure, and the need for revision surgery.

There have been some case reports and articles in the medical literature that suggest patients with metal-on-metal hip implant may have certain symptoms or illnesses else in the body (systemic reactions), likely caused by high metal content in the bloodstream.  These include: general hypersensitivity reaction (skin rash), cardiomyopathy, neurological changes including sensory changes, psychological status change (including depression or cognitive impairment), renal function impairment, and thyroid dysfunction.

At the current time, the FDA is recommending that asymptomatic patients with metal-on-metal implants continue to follow-up with their orthopedic surgeon every 1 to 2 years to monitor for early signs of change in hip status.

While our disability law offices are physically located throughout Central Florida, we represent clients nationwide. We welcome you to contact us toll free at 1-888-477-2363 if you have any questions about the ASR hip recall.

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Does Your GAF Score Support Your Disability Application?

When the Social Security Administration (SSA) or the Department of Veterans Affairs(VA) considers your disability application, they try to understand how your illness or injury affects your day-to-day life and ability to work. In cases with a psychological component, a Global Assessment of Functioning (GAF) score is used to help the SSA or VA better understand the challenges you face.

What is My Global Assessment of Functioning (GAF) Score?

If you’ve consulted with a psychiatrist or psychologist, he or she will assess your ability to function in every day family, personal business, and work situations – as well as your ability to care for yourself. This assessment is your GAF score.

Possible scores range from 1 to 100 with 1 being the potential to harm yourself or someone else and 100 being normal.

Why is the GAF Score Used?

GAF scoring is used to standardize psychological assessment. Both the Social Security and Department of Veterans Affairs recognize that not all injuries and illnesses are solely physical.

Psychological problems such as anxiety and panic attacks, depression, post-traumatic stress syndrome, or other diagnoses are very real and very disabling.

Why Your GAF Score Matters

The SSA and the VA use your GAF score to help them determine whether you meet their definition of disability.

If your disability application has any psychological component (even if based on a physical cause), your GAF score will be considered. Your score identifies your level of disability.

Here is the Actual GAF Score Chart

This is the standard used to quantify your limitations so the SSA or the VA understands what you go through every day.

• 91 – 100 No symptoms. Superior functioning in a wide range of activities, life’s problems never seem to get out of hand, is sought out by others because of his or her many positive qualities.

• 81 – 90 Absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members).

• 71 – 80 If symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).

• 61 – 70 Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

• 51 – 60 Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).

• 41 – 50 Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

• 31 – 40 Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).

• 21 – 30 Behavior is considerably influenced by delusions or hallucinations OR serious impairment, in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends)

• 11 – 20 Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely incoherent or mute).

• 1 – 10 Persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.

• 0 Inadequate information

Where to Get Help with Your Disability Application

We are proud to help those who are too injured or too ill to work get the disability benefits they’ve earned – and – we invite you to contact us for a free case evaluation so you can find out whether a Global Assessment of Functioning (GAF) score is needed in your disability case. While our disability law offices are physically located throughout Central Florida, we represent clients nationwide. We welcome you to contact us toll free at 1-888-477-2363 or email our disability attorneys here.

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In the previous blog post, we looked at what Total Disability Due to Individual Unemployability (TDIU or IU) is and how to apply for it. In this post, we will review the factors considered in making a decision on IU, the best evidence for an IU claim and how to appeal the denial of an IU claim.

FACTORS THE VA CONSIDERS IN DETERMINING IU

The VA determines whether the individual veteran is prevented from securing or maintaining a substantially gainful occupation because of service-connected disabilities. There are three important caveats to understand about this determination.

First, the age of the veteran is not a factor when qualifying for individual unemployability. So the VA cannot say that because the veteran is a certain age he or she would not be able to work due to the veteran’s age alone.

Second, the VA cannot consider non service connected disabilities when making a determination on individual unemployability. For example, if a veteran has a 70% service connected rating for PTSD and a non service connected back disability the VA must review the veteran’s ability to work solely as it pertains to the service connected PTSD. Even if the veteran is receiving worker’s compensation or Social Security Disability for the back injury, which would indicate that another governmental organization recognized that the veteran could not work due to his back, the VA cannot use this information against the veteran. After all, the veteran may not be able to work for more than one reason.

Third, having a job does not automatically disqualify a veteran from individual unemployability. The Court has held that substantially gainful occupation means an occupation that provides the veteran with an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works. The poverty threshold established by U.S. Department of Commerce, Bureau of the Census, for 2011 was $11,484.00. Under the current poverty threshold established by the U.S. Department Health and Human Services, marginal income for the year 2012 is $11,170.00 (2012 Poverty Guidelines for the 48 Contiguous States and the District of Columbia). Therefore, a veteran who is working, but whose income does not exceed the poverty threshold, may still qualify for individual unemployability.

Furthermore, marginal and sheltered employment is not considered substantially gainful employment. A job with a salary below the poverty level is called marginal employment. Sheltered employment includes, but is not limited to, employment in a protected or sheltered environment, such as working for a family business. Working in a sheltered workshop is also not considered substantially gainful employment, even if the veteran’s annual earnings exceed the poverty threshold. Basically, if a veteran is working in an environment where the veteran is protected from job requirements that someone else in that position would be expected to satisfy, the VA will not necessarily consider that veteran to be gainfully employed.

BEST EVIDENCE TO PROVE INDIVIDUAL UNEMPLOYABILITY

When it comes to proving to the VA that the veteran is eligible for individual unemployability, that is if the veteran is found to have met the rating threshold and employment criteria mentioned above, the best evidence is a professional opinion from a vocational expert or competent medical doctor concerning the veteran’s ability to secure or follow a substantially gainful occupation. The VA often times schedules a veteran for a C&P exam to get an opinion on IU. This report should include a rationale as to whether it is as likely as not (50/50 chance) that the service-connected disability or combined disabilities render the veteran unable to secure and maintain substantially gainful employment. Additionally, the report should also include and describe the functional impairment caused by the veteran’s disabilities and how that impairment impacts on physical and sedentary employment. Other evidence to support unemployability may include employment history, employer records, and any medical evidence that indicates that the veteran is totally disabled and unemployable.

HOW TO APPEAL A DENIAL FOR INDIVIDUAL UNEMPLOYABILITY

Rating decisions granting or denying entitlement to IU must provide enough explanation so that the veteran can understand the reasons and bases for the decision. As with any decision, the rating must list the evidence considered, a clear explanation of the basis of the decision, and an explanation of the effective date of entitlement.

To appeal the rating decision, the veteran must file a Notice of Disagreement (NOD) within one year of the date on the letter that accompanied the rating decision. If the veteran fails to file a NOD within one year, that decision becomes final and can only be “reopened” by submitting “new and material evidence,” or by demonstrating that the decision was the product of “clear and unmistakable error.”

The Notice of Disagreement can be submitted to the regional office in any format – on a Statement in Support of Claim (VA Form 21-4138) or in a letter. The NOD must state that the veteran seeks appellate review and should identify the issues that are in dispute. It is best to keep the NOD short and simple.

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Many veterans suffer from service-connected disabilities which are severe enough to cause marked impairment to their ability to secure or follow a substantially gainful occupation. But these veterans might not have a combined service connected rating of 100%, after all a 100% combined rating is difficult to get from the VA. In these situations, the VA may consider the veteran 100% disabled even though the VA has not rated his or her disability or combined disabilities at 100%.

A veteran may be assigned a total rating when he or she is unable to secure substantially gainful occupation due to service-connected disabilities. This is known as a total disability rating based on individual unemployability (TDIU or IU). The veteran is granted the equivalent of a 100% rating even if his or her schedular rating is less than 100%.

There is a lot to consider in claims for individual unemployability. This blog post will review what IU is and how to apply for it.

For example, if a veteran is rated at 60% for a single service-connected disability and that disability prevents the veteran from performing substantial gainful employment, then the veteran may be entitled to individual unemployability and considered 100% disabled.

The VA regulation authorizing individual unemployability requires that the veteran’s service-connected disabilities satisfy certain percentage rating requirements. The disabilities must meet minimum rating thresholds:

• Schedular – The veteran must have at least one service-connected disability rated 60% or higher. If the veteran has two or more service-connected disabilities, at least one of those disabilities must be rated at 40% or higher, and, after factoring in the ratings for the other disabilities, the veteran’s combined disability rating must be 70% or higher.

• Extraschedular – Even when a veteran does not meet the schedular requirements, TDIU may be awarded on an extraschedular basis because of an unusual disability picture or due to marked interference with employment. The VA regional office and the Board of Veterans’ Appeals are not authorized to make these awards, but either may refer the claim to either the Director of the Compensation and Pension Service or the Under Secretary for Benefits for consideration of an extraschedular rating.

Hill & Ponton focuses on individual unemployability claims. The firm assists most of our veterans with reaching individual unemployability based on the schedular rating system. According to the U.S. Department of Commerce, Bureau of the Census, 3.5 million veterans have a service-connected disability rating. Of this number, 810,245 have a rating of 70% or higher.

HOW TO BEGIN A CLAIM FOR IU

Once a veteran meets the schedular requirements for individual unemployability and has submitted to the VA evidence of not being able to work, the VA must consider individual unemployability. However, for the VA to grant individual unemployability the veteran must submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the prescribed form for claiming individual unemployability (TDIU).

A veteran may initiate a claim for individual unemployability by submitting a Statement in Support of Claim (VA Form 21-4138) to the regional office indicating the benefit being sought. This is considered an informal claim. If the veteran files an informal claim, the regional office must send the veteran a VA Form 21-8940 with instructions to complete and return it within one year in order to preserve date of receipt of the earlier communication as the date of claim. A signed and dated letter, clearly indicate the benefits sought, can also be considered an informal claim.

Although claims for individual unemployability are generally submitted by the veteran, they may also be reasonably raised by the evidence of record, including statements or evidence submitted by the veteran indicating unemployability. For example, if a veteran submits information regarding an award for Social Security Disability Benefits the VA has a duty to assist by requesting both the SSA (Social Security Administration) decision granting benefits and any supporting medical records. Although VA is not obligated to follow a determination made by SSA, these records may be relevant to the issue of the level of impairment of the veteran’s service-connected disability. The veteran should keep in mind that individual unemployability can only be awarded for service-connected disabilities. Whereas the SSA award may be for any disability the veteran may have, service-connected or not.

Additionally, if a veteran files a claim for increased evaluation, even without a specific individual unemployability claim from the veteran, it may also give rise to a claim for individual unemployability when associated with evidence of a worsened service-connected condition. For example, if the veteran has a current service-connected disability rating of 40 percent but their condition has worsened to meet the threshold for 60 percent evaluation, and the veteran can show that he or she has stopped working or has marginal employment secondary to the service-connected disability, the VA has the duty to evaluate the claim for individual unemployability as well.

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The VA has a duty to assist veterans in developing their claims.  The VA benefits system was designed to be a non-adversarial, veteran-friendly system.  Ideally, this would mean that veterans would never even need a lawyer to fight for their disability benefits.  Too many times, however, we find that the VA has not satisfied its responsibility to help veterans with their cases.  It can be a mistake to rely solely on the VA’s assistance to develop your claim.

One part of the VA’s duty to assist includes helping veterans obtain records, including service personnel and medical records as well as current VA and private medical records.  The VA’s duty to assist in gathering records arises from the simple fact that the government is often in a much better position to obtain certain evidence than is the veteran.  For instance, the government has knowledge about the whereabouts of certain records and has access to records that many veterans may not know how to obtain on their own.  That is not to say that veterans should not make the attempt to get their own records—we often use private researchers to obtain such records with great success.  While the VA is required to help veterans in obtaining their personnel and service medical records, all too often we see claims files where the VA either did not even bother to request the complete records or did not put forth the best efforts in following up on those records.  Ultimately, it is the veteran, and not the VA, who is hurt if his or her records are not found.

It is also very important to make sure that the VA has all of the necessary information so that VA can make the appropriate requests.  The veteran should provide the VA with all of the information he has available about his time and place of service as well as the in-service circumstances leading to the veteran’s disability.  The VA may use a veteran’s failure to provide such information as an excuse for not assisting that veteran any further with his or her claim.

The VA’s duty to assist also makes the VA responsible for providing veterans with medical examinations when such examinations are necessary for a veteran to prove his or her case.  In order for the VA’s duty to be triggered, the veteran must first satisfy a minimum standard consisting of showing that some event did happen to the veteran in service, that the veteran now has a current disability, and that there is at least some indication that the event in service is related to the current disability.  If a veteran can meet that threshold requirement, the VA is required to assist the veteran by providing an examination.

Again, however, it is not always a good idea to rely solely on the VA to provide supportive medical evidence.  We find that veterans often obtain better results when they are able to provide the VA with medical opinions from private doctors rather than relying on the medical opinions that the VA provides.

We are able to have the Court of Appeals for Veterans Claims overturn many of the VA’s decisions based on the VA’s failure to properly assist veterans.  You can save yourself the time and aggravation of an appeal to the Court, however, by making sure that the proper evidence gets into your claims file in the first place—with or without the VA’s assistance.

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Veterans who are seeking an increased rating or service connection for a new disability often ask whether re-opening their file can cause the VA to reduce their existing rating. This is a valid concern. Disabled veterans must weigh their options and determine whether their disability has really worsened so as to deserve an increased rating or whether they are entitled to service connection for their new disability prior to filing a new claim. If the veteran has a valid claim, though, it is probably worth filing the new claim.

If the VA determines that a veteran’s disability has improved, it can, in fact, reduce the current disability rating. It may do this at any time that a medical exam indicates that the veteran’s condition has improved—whether or not the veteran has filed additional claims. While the VA may legally reduce a veteran’s rating, however, there are rules about when and how the VA can accomplish a reduction. Even for an “unprotected” rating—one which is less than 100% and has been in effect for less than 5 years, the VA must review all of the evidence and not reduce merely on the strength of an exam which is not thorough and supported by the evidence. In addition, the VA must notify the veteran of its intent to reduce the rating and allow the veteran to respond. At that point, it is important that the veteran take an active role in providing the VA with any evidence that shows the severity of the disability has not improved. The veteran should attend any medical examinations required by the VA to avoid being reduced merely for not showing up to the exam.

Once a veteran’s disability rating has been in effect for at least five years, the VA considers that disability “stabilized” or “protected.” Again, the VA should consider all medical evidence pertaining to the veteran’s disability and may not reduce the rating based on a single medical exam that indicates improvement where the remainder of the medical evidence indicates that the veteran’s disability is still at the same level. In addition, though, VA must show that the veteran’s condition has undergone a sustained improvement in order to reduce a stabilized rating. Certain disabilities become symptom-free after extended periods of bed rest, but that does not mean the disabilities have improved for VA rating purposes. The VA may not reduce a stabilized rating where the improvement is only due to the veteran’s having been on bed rest or if it is otherwise clear that the veteran’s improvement could not be maintained if the veteran returned to the ordinary conditions of life. If there is any doubt about whether a stabilized rating has improved, the VA should not reduce that rating.

After ten years, service connection of a disability gains an additional protection. Once a veteran’s disability has been service connected for ten years, the VA may not sever that service connection unless the original grant of service connection was based on fraud by the veteran or if the veteran clearly did not the required length of service or character of discharge. The actual disability rating may still be reduced, according to the requirements for a stabilized rating, but the VA may not sever service-connection for the disability.

In the case of a veteran whose disability has retained a certain level of disability rating for at least twenty years, VA may not reduce that rating for anything less than a showing that such rating was based on fraud by the veteran.

One other type of protected rating is a total or 100% disability rating. Where a veteran has been granted a total disability rating based on the severity of his condition (not including a 100% rating based on unemployability), that rating should not be reduced without an examination which clearly shows material improvement and, in addition, shows that such improvement happened while the veteran was working or actively seeking work or otherwise participating in the ordinary conditions of life such that the veteran could work and still maintain this improvement. This is true regardless of whether the veteran’s disability rating has been in effect for more or less than five years.

Different rules apply when the veteran’s 100% rating is an unemployability (IU or TDIU) rating. Here, if there is clear evidence that the veteran has had a marked improvement and can work or is working. Because of this, a veteran who has a total rating based on unemployability should pay close attention to the reporting requirements for this type of rating. It is crucial that a veteran submit the annual employment certification forms required by the VA indicating that he has not worked in the past year to avoid a reduction.

In short, VA is permitted to reduce disability ratings. VA is required, though, to follow the rules and regulations in making such a reduction. If VA proposes to reduce your disability rating or sever service connection for your disability, you should consider seeking help with your claim.

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A migraine is a painful headache that may be accompanied by intense throbbing or pulsing in one area of the head, nausea, vomiting, and/or extreme sensitivity to light or sound. The attacks can last for hours or days. The National Headache Foundation estimates that more than 29.5 million Americans suffer from migraines, with women being affected three times more often than men.

The medical literature indicates that migraines can be triggered by several factors, including sleep problems, medications, stress, and depression.  In addition to these factors, I’ve also seen disabled veterans with migraines that are due to spinal problems, traumatic brain injury, or eye injuries.

Many veterans complain of severe headaches; however, they fail to recognize that they may be suffering from migraines.  Unfortunately, migraines are often misdiagnosed as sinus headaches or tension headaches. Some doctors simply do not have the experience to properly diagnosis migraines.

The VA recognizes migraines as a service connected disability, so long as the veteran can prove a connection with military service. In other words, if the veteran can prove that the migraines began in service, were caused by an event that occurred during service, or are secondarily related to other service connected conditions, then he/she may obtain service connected disability for this condition.

Migraines are rated by the VA based on the frequency and severity of the headaches.  The lowest compensable rating for migraines is 10 percent. For a 10 percent rating, the veteran must experience “prostrating attacks averaging one in 2 months over the last several months.”  The highest schedular rating for migraines is 50 percent. For a 50 percent rating, a veteran must experience “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.”  Based on the rating schedule, if the migraines are infrequent or not prostrating, the veteran will only receive a 0% rating at best.

In order for a veteran to be properly rated for migraines, he or she must have documentation that the headaches are actually migraines. The best evidence is medical records that show a diagnosis of migraines from a qualified medical source. For example, a diagnosis from a neurologist, migraine specialist, ophthalmologist, optometrist, or even a primary care physician. The nuance, however, is that in order to be accurately rated, the veteran must have more than just a diagnosis; there must be evidence of the severity and frequency of the migraines. Helpful evidence of severity and frequency would be medical records, headache diaries kept by the veteran, statements from lay persons, employment records showing absenteeism, etc.

As stated above, the highest schedular rating for migraines is 50%. However, this does not necessarily mean the end of the road for a veteran who feels he/she is unemployable due to the migraines. Veterans who are unable to work at a substantially gainful level due to migraines may be eligible for Total Disability Based on Individual Unemployability (TDIU).  There are specific requirements for a veteran to qualify for TDIU benefits; however, the important point to take away is that even though the VA does not provide for a 100% schedular rating for migraines, a veteran may still be able to be compensated at the 100% rate nevertheless.

If you are a disabled veteran suffering from severe headaches that you suspect are connected to your military service or to another service connected condition, it is to your benefit to file a disability claim for migraines right away. You should also have a proper medical evaluation and start keeping track of the severity and frequency of the headaches.  A qualified representative can assist you with developing the evidence you will need to properly present your claim in the best light.

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