Hill & Ponton, P.A.

Finally, the issue of Military Sexual Trauma is getting traction in Congress as this issue pertains to both the military and the Department of Veterans Affairs.  Through my experience, I have seen VA error significantly with PTSD claims.  It seems VA has difficulty with cases where the injury is unseen.  The cases that VA errors on the most are the MST PTSD cases.  This is a tragdey.  These service members are unwitting victims in service and then become victims again through VA’s compensation process.

I was given the opportunity to offer testimony on this issue to the Veterans Compensation Subcommittee of the U.S. House of Representatives.  The VA opposed reducing the standard of proof for these veterans in their claims.  But I will keep fighting to make sure that these victims are given the benefits that they deserve.  Below is my testimony

NATIONAL ORGANIZATION OF VETERANS’ ADVOCATES

Prepared Statement

Matthew D. Hill, Treasurer of NOVA

Before the

Committee on Veterans’ Affairs

U. S. House of Representatives

Subcommittee on Disability Assistance and Memorial Affairs

Legislative Hearing on H.R. 569, H.R. 570, H.R. 602, H.R. 671, H.R. 679,

H. R. 733, H.R. 894, H.R. 1405

April 16, 2013

Contact Information:

National Organization of Veterans’ Advocates, Inc.

1425 K Street, NW, Suite 350

Washington, DC  20005

(202) 587-5708

www.VetAdvocates.org

The National Organization of Veterans' Advocates, Inc. (NOVA) thanks Committee Chairman Runyan and Ranking Member Titus for the opportunity to testify on H.R. 671, to amend title 38, United States Code, to improve the disability compensation evaluation procedure of the Secretary of Veterans Affairs for veterans with mental health conditions related to military sexual trauma (MST), and for other purposes.  NOVA is honored to share our views on H.R. 671, cited as the Ruth Moore Act of 2013, for this hearing.

NOVA is a not for profit 501(c)(6) educational membership organization incorporated in the District of Columbia in 1993.  NOVA represents nearly 500 attorneys and agents assisting tens of thousands of our nation’s military Veterans, their widows, and their families obtain benefits from VA.  NOVA members represent Veterans before all levels of VA’s disability claim process.  This includes the Veterans Benefits Administration (VBA), the Board of Veterans’ Appeals (BVA or Board), the U.S. Court of Appeals for Veterans Claims (Veterans Court or CAVC), and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).  In 2000, the CAVC recognized NOVA’s work on behalf of Veterans when the CAVC awarded the Hart T. Mankin Distinguished Service Award.

1.         Necessity of the legislation

Post-traumatic stress disorder (PTSD) cases have posed significant problems for the Department of Veterans Affairs (VA) because this disability, by its nature, often has a delayed onset.  Consequently, the precipitating events are often unrecorded in a service member’s medical records or in-service department records.  This is particularly true for incidents of sexual assault while on active duty.  In 2011, the Pentagon estimated that about 19,000 male and female service members were sexually assaulted, yet less than 14 percent of these crimes were reported.

As with any assault case, the victims of in-service personal assaults are afraid to report the crime.  This fear is especially likely when the assailant is a superior: the person to whom the victim is instructed to report in these situations.  Reporting an assault while on active duty, however, is problematic for many reasons, even when the assailant is not the victim’s superior.  The nature of military service discourages reporting both implicitly as well as explicitly.  Even when the service member does make a report of the assault, these reports are rarely documented or associated with the veteran’s service records.

The number of veterans who have experienced an in-service personal assault is high.  Among the veterans who use VA health care, over 20 percent of female veterans report being sexually assaulted while in service. See http://www.ptsd.va.gov/public/pages/how-common-is-ptsd.asp.  Additionally, over 50 percent of female veterans and over 35 percent of male veterans report experiencing sexual harassment in the military.  Id.

Effectiveness of Current Regulation

The current PTSD regulation, as it pertains to in-service personal assault cases, is not effective. 38 C.F.R. 3.303(f) (5) purports to reduce the burden for these veterans to prove their claims.  In practice, this has not happened.  From 2008 to 2010, VA approved over 50 percent of PTSD claims related to combat, but approved barely 35 percent of PTSD claims related to in-service personal assault.  Ironically, VA concluded that it had made it too difficult for combat veterans to prove that their PTSD was related to service and, as a result, reduced the burden on them to show that their PTSD should be service connected.  Unfortunately, VA has not attempted to help in-service personal assault victims in a similar manner, even though the approvals for in-service personal assault are significantly lower than those for combat veterans.

Recently, two significant changes have occurred:  first, the acceptance of a resulting psychiatric disability from trauma; second, the adoption of VA regulations which impose an often insurmountable burden on the victims of sexual assault.  The taboo and misgivings that accompanied PTSD and other mental disabilities that result from trauma have disappeared.  Turning to the burden created by VA regulation, the proposed amendment to 38 U.S.C. § 1154 removes that impediment.  Victims of sexual assault should not have the burden of corroborating their in-service sexual assaults.  Proving that these events occurred is not merely painful, it is often impossible.  The proposed amendment correctly makes the determination of entitlement to service-connected compensation for the resulting disability from the in-service trauma a medical question, not a factual one.  This legislation further makes the appropriate public policy determination that victims of sexual assault should be entitled to compensation when a competent mental health professional confirms the existence of a current disability from PTSD. The legislation also confirms the relationship of that disability to the reported in-service sexual assault.  Importantly, this legislation relieves the victims of sexual assault from being victimized further by an adjudication process which implicitly questions the veracity of the reported in-service assault.

2.         Alleviating the VA’s backlog

Processing in-service personal assault claims is a slow and time-consuming process.  These claims require VA to make extra efforts to contact the veteran and fulfill the VA’s duty to assist.  Before one of these claims can be decided, VA has to contact the veteran multiple times to make sure that the veteran understands the special rules that apply to these claims and the different types of evidence that the veteran can supply.  Furthermore, the adjudicator must request and attempt to obtain not just the veteran’s service medical records, but also the veteran’s full service record jacket.  This can require multiple requests to the National Personnel Records Center.  Still, 65 percent of these claims are denied.

Ruth Moore’s case is the quintessence of how these claims drag on and slow down the system.  Moore had to fight VA for 23 years over her benefits –23 years of claims that did not go anywhere.  All the while, she was suffering from depression and a sexually transmitted disease that she contracted from her attacker.  Moore even had the benefit of the relaxed requirements of 38 C.F.R. 3.304(f) (5), yet it was not until 2009 that VA finally awarded her claim.

With the proposed legislation, these cases would be streamlined.  The fulcrum would shift from wasting time and effort to navigate a paper chase to obtaining a medical opinion to determine whether the veteran’s disabilities are related to military sexual trauma (MST).  At a time when the VA’s resources are scarce, this legislation would alleviate some of the backlog.

Conclusion

The vast majority of sexual assaults in the military are not reported, and even those that are reported are often not prosecuted.  As a result, many survivors of MST have found it hard to prove that an assault—the stressor—occurred.  Furthermore, current VA policy allows so-called “secondary markers” to be considered as evidence of an assault, although VA has been very inconsistent in applying that policy.  Secondary markers can include evidence from rape kits, statements from family members citing a change in behavior since military service, and drug and alcohol abuse.  In 2010, VA policy for combat veterans applying for disability payments was changed in a similar fashion, allowing lay testimony as evidence that a trauma such as exposure to a roadside bomb or mortar attack had occurred.

H.R. 671 would allow as sufficient proof of service-connection a diagnosis of a mental health condition by a mental health professional together with satisfactory lay or other evidence of MST and an opinion by the mental health professional that the covered mental health condition and the MST are indeed related.  By allowing the veteran's lay testimony alone to establish the occurrence of the claimed MST, this Act brings affected veterans one step closer to receiving the benefits they deserve for a covered mental health condition incurred or aggravated by military sexual assault. By further resolving every reasonable doubt in favor of the Veteran, H.R. 671 effectively serves to eliminate further victimization of those who have already suffered enough.

As always, NOVA stands ready to assist the Committee or VA in whatever way possible to further eliminate the systemic issues that negatively affect the lives of our Veterans and their families.

We thank you for this opportunity to provide our testimony.

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When reviewing claim files for compensation for psychiatric disorders, I often find that a veteran may have received multiple diagnoses over a period of years.  Five different mental health professionals may have diagnosed the same veteran with five different psychiatric disorders.  This discrepancy can indicate more than one disorder, but more often it seems that the veteran is receiving competing diagnoses for the same set of symptoms.  Psychiatric disorders can sometimes be difficult to differentiate as many disorders have overlapping symptoms.  For instance, a veteran who suffers from post-traumatic stress disorder (PTSD) will often suffer from symptoms of anxiety and depression.  Sometimes we even find that a veteran who is being treated at the VA for PTSD may report to a Compensation and Pension examination just to be told that he does not meet the criteria for PTSD and is, instead, suffering from an anxiety disorder.

While establishing the correct diagnosis is certainly important in so far as treatment is concerned, the important consideration for establishing entitlement to VA benefits isn’t whether the veteran has been diagnosed with PTSD or with anxiety (or with some other psychiatric disorder) but whether that psychiatric disorder is related to service.  In other words, if the veteran’s depression disorder or anxiety disorder is caused by what happened to the veteran in service, he need not meet the criteria for PTSD in order to receive VA disability benefits.  Even if the veteran’s condition was not caused by service, if it began during service, the veteran may also be able to receive benefits for that disability.  So, for purposes of VA benefits, the diagnosis is not nearly as important as the symptoms for which the veteran is requesting compensation.

One instance where the diagnosis does matter is where a veteran has been diagnosed with a personality disorder.  A true personality disorder is generally not compensable under the VA disability rating system, but it is important to note that other acquired psychiatric disorders are sometimes mistaken for a personality disorder.  I often find that a veteran who began struggling with psychiatric symptoms during service was misdiagnosed with a personality disorder and discharged as unfit.  A personality disorder, however, is not a condition which just disappears.  If that same veteran, after service, is never again diagnosed with a personality disorder, but is consistently diagnosed with another psychiatric disorder such as PTSD or schizophrenia, that change in diagnosis must be considered by the VA.

A claim for benefits for a psychiatric disorder should focus, then, on the symptoms from which the veteran is suffering and how they are connected to service.  A diagnosis of PTSD secondary to combat is neither more nor less likely to be compensated than is a diagnosis of depression that began during service.  If your psychiatric disorder was caused by or began during service, you are entitled to compensation for that disability, no matter how it is labeled.

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There is Favorable Medical Evidence in my File; So Why is the VA Not Approving My Claim? This is a question that I am asked, almost on a weekly basis. Unfortunately, when it comes to dealing with the VA, sometimes it is hard to answer this question with complete certainty.  In the next two blogs, I will attempt to shed some light on this topic, and highlight some of the common problems I see in my practice when reviewing veterans’ claims.

The first, and arguably the most important step when dealing with the disability process, is to obtain a copy of the complete Claims File. The Claims file is also known as the C-File. The C-File should contain all of the records, medical and non-medical, that the VA has collected during the course of the claim.  Once the file is received, a thorough review is conducted to assess all of the evidence, both positive and negative.

When a veteran files an initial claim, oftentimes the VA will order compensation and pension examinations as a part of its duty to assist (i.e. duty to fully develop the claims).  The C&P examiner will then write opinions about the medical merits of the veteran’s claims. Once the VA receives the opinions and finishes developing the claims, then it will issue a Rating Decision.  If the veteran is unsatisfied with the decision and decides to appeal, if there are new developments or if it has been a long time since the initial exams, then the VA may order another round of examinations.  After the additional development, the VA will then issue a new decision.

Unfortunately, the C&P exams ordered by the VA are often lacking at best, and oftentimes, downright negative. However, far too often, veterans tell me that they thought the exams went well, until they are blindsided by what the report actually says or doesn’t say.

Another common situation is where veterans believe that their treating physicians are supportive of their claims; however, the complete opposite is actually the case. Meaning, the records paint a different picture from what the veteran believes to be true.  For example, I recently worked on a case where the veteran filed a claim for fibromyalgia. Her only medical treatment was at the VA. The VA doctor wrote in the records that he believed the veteran was exaggerating her symptoms, and even more damaging, the doctor did not diagnose her with fibromyalgia. The veteran had no idea what was documented in her records. Needless to say, this was not good for our case.

The take away lesson is that the veteran, nor counsel, knows what kind of case they have until the complete C-file is received and thoroughly reviewed. Once the file is reviewed, all parties can have a better grasp of the evidence. The records that were once thought to be ‘favorable,’ can suddenly turn the case into a different ballgame once the evidence is reviewed for what it really is, whether good or bad.

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Once the Department of Veterans Affairs determines that a veteran does have a disability which is connected to service, the VA considers the severity of that disability and assigns a disability rating.  If the veteran is not satisfied with that rating, he or she can appeal the rating by filing a notice of disagreement within one year of the rating decision.  But what happens if the veteran decides that the rating is fair and does not appeal and then the disability worsens?  Is it ever too late to ask for a higher disability rating?

The answer to that question is “no.”  At any time after a disability rating is assigned, a veteran may file a claim for an increased rating.  Filing that claim is easy.  All that is required to initiate an increased rating claim is the veteran’s good-faith belief that his or her disability has worsened. No special form is required—a veteran can simply send a letter to the VA indicating that the disability is worse and that the veteran would like the VA to consider a higher rating.

To support a claim for increased rating, the veteran needs to submit medical records which demonstrate that the condition is worse.  Those records can be private medical records or VA medical records.  Even though VA has access to VA electronic medical records, it is important that the veteran also submits the relevant records separately.  This is the veteran’s opportunity to make sure that VA is looking at the evidence we want them to see.

It is common for the VA to send the veteran out for a new compensation and pension (C&P) examination once a claim for increased rating has been filed.  The veteran must attend this examination, if scheduled, so that VA can evaluate for itself whether the veteran’s medical condition has worsened.  The veteran may also, at this point, get a private medical examination to demonstrate that the disability has worsened.

Claims for increased rating can be tricky.  It is important, for instance, to know what the requirements are for a higher rating under the applicable VA diagnostic codes.  For example, many orthopedic disabilities, such as disabilities of the spine or knee, are rated on how much the disability limits the veteran’s range of motion.  While pain is one of the symptoms which affects the veteran’s quality of life the most dramatically, VA does not consider whether the veteran’s pain is worse when determining whether the veteran is entitled to a higher disability rating for a spinal disability.  Because of that, if a veteran bases his claim for increased rating solely on the fact that his pain has increased, he will probably not receive a higher rating.  It is important, then, to know how to ask for an increased rating.

Considering the circumstances I have described above, where a veteran’s low back pain or knee pain has worsened dramatically but he is still able to bend just as much as he was before the pain increased, there may still be a way to ask for an increased rating.  Under those facts, we might ask for an increased rating based on the fact that the veteran’s knee is now unstable and causes him to fall so that he is entitled to a separate rating for instability of the knee.  Alternatively, we might ask for an increased rating for the veteran’s low back disability where the pain now causes him to miss so much work that he is now unemployable and entitled to a total rating based on his back disability.  Veterans should familiarize themselves with the VA diagnostic codes governing their specific service-connected disabilities so that they know whether they are even entitled to an increased rating as well as how to ask for one.  If you need help navigating the diagnostic codes, we can help.

One final note regarding claims for increased ratings–the VA regulations only allow VA to assign an effective date for the increase as far back as one year prior to filing the claim.  In other words, once the veteran files the claim for increase, VA can look back at the evidence for the year prior to the claim to determine when the disability worsened and pay the veteran for that time.  Don’t wait to file your claim, as you could be losing valuable benefits to which you are entitled.

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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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