|Matthew Hill:||Hello and welcome to another Hill and Ponton video blog. I’m Matthew Hill.|
|Carol Ponton:||I’m Carol Ponton.|
|Matthew Hill:||Today we want to talk to you about individual unemployability and a big mistake we see, and that is the timing of the filing of the paperwork for that. A lot of times what we’ll see is somebody is not working and they’re filing for service connected compensation for their back or their headaches or their allergies, and they’re not service connected yet.|
|Matthew Hill:||It’s those disabilities that are keeping them from working.|
|Matthew Hill:||Even though they’re not service connected, once they get service connected they’re really going for 100%. What do you see mistake-wise on this?|
|Carol Ponton:||Well, unfortunately, what happens is if you haven’t … First of all, it takes forever to get your claims evaluated and approved through the VA. Then if you wait until then to file a claim for unemployability, you have to start all over. Plus, the VA seems to think that you only became disabled the day you filed that form. You have a catch 22. You have to wait years more and then they will only go back to when you filed the form, and that’s not the law. We appeal all that, but that’s what you’re going to get from the VA. I feel whenever a veteran has what they think should be a service connected claim that keeps them from working, they should also file for unemployability.|
|Matthew Hill:||One of the catches here is that they’ll get flack from veteran service officers or people at the VA saying, “Well, you’re not even service connected. You can’t file this yet.” The whole point is you don’t want just to be service connected, you want to be compensated at the correct rate. This is part of that. You want to get all your paperwork in there, because unfortunately if you don’t and you get fighting, that’s where people need us. They come in and we see all this paperwork is all over the place, and they need us to come in and basically force the VA to recognize the law that even though the form for unemployability wasn’t filed till three years, four years after the actual claim, it should go all the way back.|
|This is big money.|
|Carol Ponton:||This is big money.|
|Matthew Hill:||I mean, we’re talking tens of thousands of dollars that they want you to leave on the table by not appealing. Our hope is that if you do it all at once, that goes away, that they finally service connect you and they say, “Oh, wow. This is 100% rating.”|
|Carol Ponton:||It’s really sad when I have a veteran who has been fighting for five or six years to get service connection. Now they get the service connection where they’re back in the radiculopathy and I hear from the decision review officer, but I can’t consider unemployability because the veteran didn’t file a claim, or he just filed it when he came to you and it’s still at the initial phase, it’s not an appeal.|
|Matthew Hill:||Right. This is, unfortunately, one of those tricks, I’d call, to make there be a longer delay, or as I was saying earlier, tricks for the veteran not to grab all the retroactive compensation they’re entitled to. Again, you will hear people tell you that you can’t do this or you’re just clogging up the system if you file the unemployability form, and that’s the 218940 is the name of the form, if you file that form they’ll say, “Well, you’re not even service connected yet. What are you doing?” If you are filing for the disabilities that are keeping you from working, that should be your end goal.|
|Carol Ponton:||That’s your answer. “My back keeps me from working and this form needs to be filed so that I can prove my case.”|
|Matthew Hill:||Thank you for joining us today on the Hill and Ponton Veteran’s video blog. We look forward to seeing you on this space again soon.|
Many veterans have illnesses or injuries that occurred while they were active duty but there are no records of the illness or injury. There can be many reasons; records get lost, the veteran was treated at civilian medical installation and the records have been destroyed; the veteran didn’t get treatment because they were worried they might get medically discharged due to the illness or injury. Whatever the reason, just because there are no records does not always mean that a disability cannot be service connected.
What is Service Connection?
When a veteran files for disability compensation, there are several types of claims the veteran can file; direct service-connected; service-connection through aggravation, presumptive service-connection, secondary service-connection, and service connection for injuries caused by the VA Health System. These different types of service connection are explained in detail in our blog What is VA Service Connection and Establishing Service Connection and the VA. Basically what service connection means is exactly what it says, the injury or illness was connected to the active duty military service. Now, that does not mean that the veteran is limited to being harmed in combat or training. It also included any injury or illness experienced during the time the veteran was Active Duty as long as the injury was not due to willful misconduct. They may also include diseases or injuries that occur after service but are secondary to an illness or injury that did occur in service.
Evidence: Proving an In Service Injury or Illness
Every claim filed with the VA must have some type of evidence to corroborate the claim. Evidence requirements vary based on the type of claim and the issue being claimed. For an average claim, one without presumption or an injury caused by combat or being a POW, there are usually specific types of evidence a veteran needs to show service connection.
- The onset of the illness or an injury documented during active duty service;
- Treatment records that are relatively consistent between the time of illness or injury and the date of the claim; and
- Records showing a current diagnosis of the illness or injury residual and how they cause disability, even if it is just pain or having to change something such as diet or lifestyle.
Sometimes, there are no records of treatment in service. There are many reasons why, but one of the main reasons is that active duty military members do not want to go to the doctor for fear of being medically discharged for something that is potentially going to limit them from doing their job. They will just put up with it until they retire or get out, then they will see a doctor. Several other reasons are that the records were destroyed, were not even kept (often this happens in the field such as deployed training exercises, survival training, or in combat situations, anywhere there is no official military medical installation).
The VA has a “duty to assist” by law. The law, the Veteran’s Claims Assistance Act (VCAA) defines the VA’s role and responsibilities in assisting veterans in developing their claims by attempting to obtain evidence from Federal agencies and providing a VA medical exam or a medical opinion if deemed necessary.
Again, what if they don’t exist? This is where another type of evidence comes into play. Lay evidence is evidence that does not come from professional sources. Getting people who knew the veteran while in service who can attest to the condition of their health (no medical diagnosis, but personal observations), or who can recollect and corroborate an injury or event that caused an injury can also serve as evidence. Lay evidence must meet certain criteria to be considered by the VA. It must be credible and competent. This means that it must be believable and fit with any other evidence that is provided such as current medical records. If a fellow troop makes a buddy statement saying a veteran he served with broke his leg on a hike during training. However, the current X-rays do not show evidence of an old fracture. Therefore, that would not be a credible statement because the current evidence disputes the lay statement. If a mother makes a statement that her veteran son, who was on a ship, had bronchitis. That would not be a competent statement as she is not a medical professional who can access the veteran to make a diagnosis. What they can provide is a statement that the first veteran hurt his leg when he fell and the second veteran was coughing a lot. Only professionally licensed personnel can make a diagnosis. Moreover, exaggerations of events will only serve to ruin the credibility of any other evidence that person submits on the veteran’s behalf, no matter how true it is.
Other Avenues of Research
Another way is to find other incidents that can show a probability that an injury or illness occurred. Deck logs, installation newspaper articles, veteran newsgroups, ship yearbooks, and various other researchable places exist where evidence can be sought out. Proving that someone was injured in a car accident when the records were destroyed is much easier if something like an accident report, car insurance claim, or article in the paper can be found. Having a representative to assist with the claim can also help provide veterans with researchers who can try to find that evidence to prove the claim. It does not always work, the road is not always smooth and straight, but if you do not try, the answer will always be no.
Many service members have gone through some very hard and traumatic experiences while in service. This can leave not only physical scars but also psychological scars. Substance abuse may be an attempt to self-medicate these scars. It is very common for veterans dealing with mental health illness to experience other health issues and symptoms that compound the mental illness, such as physical pain, relationship problems with family and/or friends, and problems functioning in everyday situations like keeping a job or staying in school. For veterans who are suffering from mental health illness, turning to drugs and/or alcohol often times becomes a coping mechanism.
The Link Between Mental Health and Substance Abuse
The National Institute of Drug Abuse states that untreated mental illness can lead to substance abuse. An example of this would be a veteran who has significant anxiety as a result of post traumatic stress disorder; however, that veteran is not treating for PTSD through a medical provider and instead chooses to use alcohol or marijuana to self-medicate the PTSD symptoms from the anxiety. In this example, the untreated mental illness has now led to substance abuse.
Worsening of Mental Health Symptoms due to Substance Abuse
Medical research indicates that the use of drugs/or alcohol can make health issues and symptoms worse. The following are some examples:
- Mental health conditions may create sleep problems like trouble falling asleep or waking up during the night. Substance abuse in this situation can alter the quality of sleep and disturb daily functioning.
- Symptoms that include feeling numb, angry and irritable, or depressed can be increased with substance abuse.
- Substance abuse can make it hard to concentrate and be productive, which further exacerbates mental illness.
Treatment for Veterans Dealing with Substance Abuse
Substance abuse is not something that will just go away. It is important to know that there are many resources for veterans dealing with this issue. One of which is the Veterans Alcohol and Drug Dependence Rehabilitation Program. This program is operated by the VA and offers a variety if therapies and support services to eligible veterans who have a substance abuse disorder. Treatment services are provided through the numerous VA medical centers and clinics around the country.
In order to qualify for veteran substance abuse treatment through the VA, the veteran must be enrolled in the VA health care system. To learn more about this program please click this link.
Almost every veteran who is eventually awarded service connection from the VA undergoes at least one Compensation and Pension (C&P) examination. Even after being awarded service connection, many veterans will participate in additional C&P examinations if they file a claim for an increased rating or when the VA requests a reexamination of a service connected condition.
Even if a veteran has not filed a claim for an increased rating, sometimes a veteran will have to undergo an additional C&P examination at the VA’s request in order for the VA to evaluate the veteran’s current level of disability. Typically, the VA will order a reexamination if evidence indicates that there has been a material change in the disability since the last examination or if the veteran’s disability is likely to improve. For example, if a veteran is service connected for depression and his VA medical records show that his condition is improving, the VA may order a reexamination. Or, if the veteran is service-connected for a back condition, the VA may order a reexamination every few years because such a disability is likely to improve over time.
When you receive a rating decision from the VA, it might indicate that the VA will schedule an examination at a future date. Generally, routine future examinations are scheduled every 5 years if the disability in question is not static (meaning the condition has the tendency to get better and worse over time). There are certain circumstances in which no future examinations will be scheduled. If a disability is static, symptoms have persisted without material improvement for 5 or more years, a disability from a disease is permanent and not likely to improve, a veteran is over 55 years old, the disability is rated at the minimal rating level, or a combined disability evaluation would not be affected even if a future examination resulted in the reduced evaluation of one or more conditions, a future examination will generally not be ordered.
Many veterans who file a claim for an increased rating assume that the VA will automatically schedule them for a C&P examination. This is not the case. In order for the VA to have a duty to schedule a C&P examination, there must be some evidence that there has been a material change in the veteran’s disability. For instance, if a veteran files a claim for an increased rating for his right knee condition, but there is no evidence in the veteran’s file, including VA medical records and private medical records, that the condition has worsened outside of the veteran’s own statement, the VA is not required to order a reexamination.
A C&P examination that is conducted for the purpose of reexamination of a condition that is already service connected will be conducted in the same manner as an initial C&P examination. It is important to remember that there is no “doctor/patient” relationship with the C&P examiner. The examiner is there only to detail your symptoms, not to provide treatment. It is important to be upfront and honest with the C&P examiner and describe all the symptoms you are experiencing. The goal of the C&P examination is to detail your current level of functioning, so it is important that you make sure the examiner has all the information necessary to accurately reflect your disability.
The most important thing to remember in regards to reexaminations is that if you get a notice that you have been scheduled for a C&P examination, you must attend the examination. A veteran who fails to report for a reexamination without good cause or without attempting to reschedule the examination may have his or her disability payments reduced or discontinued.
Whenever you see that the VA has denied your claim for a condition preexisting service, you should see a red flag. Often, this decision signals that the VA has made an error in deciding your claim by misapplying the law.
Sometimes, a veteran’s condition is preexisting, and as long as it was not aggravated by the veteran’s time in service, the VA is well within the letter of the law to deny that claim. However, the law is written in favor of granting the benefits and denying for preexisting conditions is not an easy case for the VA to make.
There are two different hurdles that the VA must overcome to deny benefits based upon a preexisting condition. Did you catch them? They are the Presumption of Soundness and the Presumption of Aggravation. So, what are these two presumptions and how do they help you?
The Presumption of Soundness
In the simplest terms, the presumption states that unless the veteran’s entrance examination specifically notes that he has a preexisting condition, then the VA must presume that the veteran did not have the condition prior to service. If the veteran subsequently develops a condition while in service, the VA must presume that the condition is service connected unless it can show evidence otherwise.
Of note, when there is no notation of the preexisting condition on the entrance exam, and subsequent development during service, the veteran is not obligated to provide the origins of the disability. Once the presumption of soundness has attached to the case, the veteran does not need to prove that he was in sound condition. The VA must prove that he was not sound. The law then takes this a step further by requiring that the VA provide “clear and unmistakable” evidence that the condition preexisted service. In other words, there must be no room for debate based on the evidence. If the VA provides evidence that the condition preexisted service, and the veteran can provide competent evidence that it did not, there is room for debate and the evidence is not clear and unmistakable.
As with all rules, there are exceptions, conditions which can be deemed to have preexisted service by their nature. If a veteran was diagnosed with a birth or developmental defect in service, the VA may bypass the presumption of soundness. One common example is personality disorders known to be lifelong conditions.
The Presumption of Aggravation
Your entrance exam does have a notation of a preexisting condition. Are you entirely out of luck? No.
The Presumption of Aggravation also applies to your claim. The VA must now consider whether the preexisting condition was aggravated in service. In service aggravation would mean that the condition, although preexisting, was worsened by the veteran’s military duty. It is presumed that the worsening condition was caused by the veteran’s military service unless there is evidence showing that the condition would have worsened to the same degree no matter the veteran’s circumstances. For example, a veteran who enters service with very mild depression or anxiety, but leaves with a diagnosis of anxiety disorder or major depressive disorder may still be entitled to service connection if there is a medical determination that service caused that either condition to worsen.
Often, the VA fails to apply the law correctly in terms of the presumption of soundness. When you see a denial of a preexisting condition, review the evidence and reasoning the VA used. Is the evidence “clear and unmistakable”? If not, you should appeal the decision. Oftentimes, the VA does not provide the evidence because it there is none to provide, and thus the presumption wins the day.
Thank you for your service and for taking the time to read this blog.
The VA is notoriously known for their long wait times and their immense backlog. This will often time leave veterans who are dealing with the VA frustrated and wanting to give up. I have heard it too many times before: “the VA is just waiting for me to die”. It saddens me every time I hear this. With the continuous backlog, it doesn’t seem to be getting any better.
I was in line waiting to pay for my groceries at my local grocery store when the woman in front of me turned around and stated: “hurry up and wait; that is the story of my life”. I didn’t realize that we must have been waiting in line for at least 15 minutes without moving. We ended up talking about her husband, a veteran, who also understands the struggle of the “hurry up and wait” business. She explained that her husband has been waiting several weeks for his hearing aids. She mentioned that her husband is nearly deaf without them.
The VA’s backlog is not only affecting veterans who are waiting for their hearing aids and other needed medical treatment, but also the veterans who are facing homelessness and extreme financial hardship. The good news is that there may be some light at the end of the tunnel. There are three circumstances that can qualify a veteran’s claim to be expedited or processed with priority:
- Veterans who are terminally ill
- Veterans who are facing extreme financial hardship and/or homelessness
- Veterans who have reached advanced age – there is uncertainty in the law as to whether the age for expedite begins at age 75 years of age or 85 years of age
Providing the VA with evidence of the above circumstances will help the VA determine if a request for an expedite can be granted. However, it is very important to keep in mind that the VA does not have to grant a veteran an expedite.
Some examples of evidence that can be provided to the VA to support a request for an expedite is as follows:
- Veterans who are terminally ill:
- A letter from the veteran’s doctor
- Veterans who are facing extreme financial hardship:
- Past due bills
- Bank statements
- Proof of bankruptcy
- VA Form 5655: Financial Status Report. This report will show the VA how your monthly expenses exceed the veteran’s income
- Veterans who are facing homelessness or who are homeless:
- An eviction notice
- Other proof of homelessness, living in a shelter, etc.
- Veterans who have reached advanced age:
- Proof of advanced age, such as a birth certificate or government ID card
Unfortunately, other than under the above circumstances, there are no other real ways to speed up the VA. The VA works on its own time schedule. For this reason, the “hurry up and wait” slogan will be attached to the VA for the foreseeable future.
Veterans who meet the criteria to request an expedite on their claim should do so. As previously stated, it is not guaranteed that the VA will grant the request. But, if all of the necessary evidence and circumstances are present, it is definitely worth a try.
|Matthew Hill:||Hello and welcome to the Hill & Ponton Video Blog. I’m Matthew Hill.|
|Carol Ponton:||I’m Carol Ponton.|
|Matthew Hill:||Today we want to talk to you about the mental health diagnostic code ratings, one of the tricky little areas in there involves suicidal and homicidal thoughts and, basically, plans is kind of the next step up. But, we see a lot of veterans get tricked up on this. By tricked up, I mean that even if they’re having these a lot of times they won’t admit that to the doctors, which in the end hurts their claim because the VA is going to underrate them.|
|Carol Ponton:||Right. If you have suicidal or homicidal thoughts, that is going to give you a much higher rating with the VA. It can often expedite your case. But, I find veteran after veteran will not admit that to the VA, because they have a fear. They have a fear that they will be Baker Acted and put in the hospital. I want to make sure that people understand, you will not be Baker Acted unless you have a present intention of going out and killing someone or killing yourself. If you just have thoughts and you have plans, but you don’t have a present plan to do those things, they’re not going to Baker Act you. They’re going to put that down and that shows the extent of your PTSD or your mental illness. When you don’t tell them, you get a much lower rating, and that’s not fair to you. But it’s this fear that keeps people from doing that. That, the fear of being Baker Acted and fear of having their guns taken away, neither one is going to happen. Okay?|
|Matthew Hill:||And I’d also say, one of the hardest things about a C and P Exam in a mental health setting. The care you’ve had previously, hopefully, is with a doctor or a licensed mental social worker, someone you’ve developed a relationship with and you’ve learned to talk with, learn to trust. The problem is you go in and see a C and P Examiner, never seen this person before, don’t know what their intentions are, don’t know where they’re coming from, and it’s hard just to open up and to just be real and let them know what’s going on. And that’s just something you got to realize going in there, and you got to still rise above that. Because that examiner, they’re not going to prod you, they’re not going to really look into you like somebody’s treating you, like somebody’s has invested-|
|Carol Ponton:||An interest.|
|Matthew Hill:||Yeah. An interest. They’ve got a bunch of exams to do all day, and they’re going to ask you questions, and if you don’t open up and volunteer information like this, they’re going to give you the rating that looks nice on their little sheet. You know, again, this is your claim, these are your benefits, you just need to … it’s going to be uncomfortable, but it’s something that you need to do and they need to know what you’re going through.|
|Carol Ponton:||And it’s not just the Compensation and Pension Exam, many don’t even tell their treating doctor because of these fears that they have. If don’t have a doctor you can tell that to, you need to get another doctor, but you need to tell them. And I’m telling you, they don’t want to Baker Act anybody, they just want to make sure that you’re not going to go out and shoot yourself or somebody else. There’s a big difference between that and just having thoughts, because of the depression. Please make sure they know the full extent of what’s going on with you.|
|Matthew Hill:||Thank you for listening today. Matthew Hill and Carol Ponton for the Hill and Ponton Video Blog. We look forward to seeing you on this space sometime soon.|
As we know, it can take years for the resolution of a VA claim and the VA appeal process can be complicated and confusing. The average wait time for a claim to be decided varies from each VA Regional Office (RO) but on average, it can take between two and five years. If an appeal is at the Board of Veteran Appeals (BVA), this can add on additional years before a decision in made. With that being said, one question that arises frequently is how to speed up the process. Unfortunately, there is little to be done and we mostly have to wait patiently on “VA time” until a decision is made. However, there are three occasions where the VA will expedite, or move more quickly, on a claim. These situations are addressed on a case by case basis and the RO or BVA will decide whether they qualify for an expedite.
One way to get moved up on the list for getting a decision is advanced age. The regulation at the BVA states that a veteran who is 75 years or older is considered advanced age and meets the condition to expedite their claim. However, this specific age criterion is only at the BVA. Some regional offices specify that due to the massive number of cases they have, the expedite is for veterans 80 years or older. In some extremely busy Regional Offices, these offices have regulated that the age expedite is only for veterans 85 or older. To clarify, if your claim is at the BVA and you are at least 75 years old, you can request for an expedite. However, if your claim is at a Regional Office, it would be best to contact the office to see what age they use to qualify for an expedite based on advanced age.
Another way to expedite your claim is if you are in severely poor health. Poor health includes terminal illnesses that are incurable and will eventually result in the death of a person. Examples of terminal illnesses include stage IV cancers, leukemia, heart failure, and kidney failure. Other instances of poor health can be argued and usually are granted on a case-by-case basis. If you are suffering from extremely poor health when filling for an expedite it is important to have credible evidence to back up your claim of poor health. If you can get a statement from one of your doctors stating the current state of your health or medical records which show recent hospitalizations or treatment, this strengthens your chance of receiving an expedite based on poor health.
Severe Financial Hardship
If a veteran is experiencing severe financial hardship, he or she may qualify for a financial expedite. Like the poor health expedite, this is usually granted on a case-by-case basis and providing additional evidence is important to prove that you are severely struggling with your finances. Examples of severe financial hardship include:
- Home Foreclosure
- Termination of utilities including electricity, water, and gas
- Inability to meet daily living expenses including food, clothing, and housing
- Notices of past-due rent or mortgage payments
One financial hardship that the VA takes seriously is when veterans are homeless. Homelessness is defined as lacking a fixed, regular nighttime residence or having a primary residence that is temporary or in a place not designated for regular housing. If you are living on the streets, in your car, or bouncing from one residence to another due to extreme financial hardship, you may qualify for an expedite. Evidence of severe financial hardship can include signed sworn statements of the veteran, friends, and family which can provide insight on the financial situation. It is also important to include evidence of hardship through supporting documentation such as foreclosure notices, bank statements, and notices of past due bills.
While these three situations may expedite your claim, it is important to remember that even if your expedite is granted, it can still take months for a decision to be made. However, any reduction of waiting time is helpful and it is important to include credible evidence with your expedite request in order to increase the likelihood of it being granted.
Of all the disabilities listed on the VA’s Schedule for Rating Disabilities, the ratings involving the knee are one of the most difficult for veterans to understand – and for the VA to get right. Much of the confusion stems from the fact that a veteran may be able to receive multiple ratings for the same knee, depending on the severity of his or her condition. In previous posts, we discussed ratings for limitation of flexion and extension, instability, and meniscus injuries. Today we are going to discuss the ratings available for knee replacements.
Why Multiple Ratings?
Before we get into knee replacements specifically, it is important to understand why exactly it is that multiple ratings are allowed for the knee. As explained in the previous posts in this series, the “Rule against Pyramiding” and the rule that the VA must maximize benefits for a veteran work together. This means that separate disability ratings may be assigned to different conditions where none of the symptomatology for the separately rated conditions is duplicative or overlapping. This is particularly important for the knee, where one injury may cause many different issues, and these separate manifestations of that injury may all be entitled to separate ratings.
Total knee replacements are rated under DC 5055. A veteran will receive a 100 percent rating for a service-connected total knee replacement for 1 year following the implantation of the prosthesis. A 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion should be rated by analogy under DCs 5256, 5261, or 5262. The minimum rating for a knee condition status post-knee replacement is 30 percent.
Convalescence ratings (also known as temporary 100% ratings) are an important part of the discussion of total knee replacements. Convalescence is defined as the act of regaining or returning to a normal or healthy state after a surgical operation or injury. The 1 year period for the 100 percent rating under DC 5055 begins after the expiration of any convalescence ratings. For example, a veteran enters the hospital on 5/20/17 for a total knee replacement and is released on 6/2/17. His convalescence rating will expire on 6/30/17 and his 100 percent rating under DC 5055 will begin on 7/1/17. It is important to note that a veteran may be eligible for a longer convalescence rating depending on his or her recovery from the surgery. There is no requirement that the veteran must be confined to his or her home, but there does need to be medical evidence that a longer convalescence is required. The best evidence for this is a note from the veteran’s doctor. In fact, a veteran undergoing any surgery for a knee condition should always ask his or her doctor for a note regarding the applicable period of convalescence and be sure to get notes regarding any extensions for that convalescence period. A veteran can receive extensions for his or her convalescent rating for a total duration of up to 6 months, in increments of 1, 2, or 3 months. After the initial 6 months, a veteran can receive additional extensions of 1 to 6 months for “severe postoperative residuals” or if he or she has a “major joint immobilized by a cast.” This means that a veteran can technically have up to 1 year of convalescence ratings.
Once the veteran’s convalescence period is up, and his 1-year 100 percent rating under DC 5055 is up, the VA will reevaluate the veteran’s knee and rate the veteran for any postoperative residuals. Typically, the veteran will be scheduled for a C&P examination for this purpose. If a veteran has chronic residuals consisting of severe painful motion or weakness in the affected extremity, he or she should be awarded a 60 percent rating. Unsurprisingly, the term “severe” is not defined in the regulation. Therefore, it is the best practice to always argue that residuals are severe. A veteran is competent to comment on his or her observable symptoms, so the veteran should submit a statement detailing the day-to-day residuals and how they affect functioning. As noted in past posts regarding rating knee conditions, a veteran should submit any lay statements he or she can from people who have witnessed these severe postoperative residuals. A veteran may also want to have an examination with a private doctor who can comment on the severity of his or her residuals, especially if the C&P examination is not favorable.
As noted above, the minimum rating for a knee condition status post knee replacement is 30 percent. If a veteran has intermediate degrees of residual weakness, pain, or limitation of motion, the condition should be rated analogously under DC 5256, 5261, or 5262. The symptoms do not need to be exact, just “closely analogous.” It is important to note that the VA cannot require additional criteria when determining the proper rating under DC 5055. For example, they cannot state that a certain limitation of motion or gait alteration is required.
One last important thing to remember is that as of July 16, 2015, DC 5055 applies only to total knee replacements. The previous version of the regulation also applied to partial knee replacements. If a veteran has a claim for a partial knee replacement that was filed prior to July 16, 2015, DC 5055 will still be applied. For veterans whose claims were filed after July 16, 2015, they should still argue that a partial knee replacement should be evaluated analogously under DC 5055.
When a veteran files a claim for PTSD, the VA must make reasonable efforts to verify the occurrence of the event which caused the mental disorder. Because not all stressors are the same, the VA has guidelines for different types of stressors. In a previous post, we discussed the circumstances under which the VA is and is not required to corroborate stressors. In this post, we will discuss another type of stressor: personal trauma.
How the VA Classifies Personal Trauma
Personal trauma for the purposes of VA disability claims refers to stressor events involving harm perpetrated by a person who is not considered part of an enemy force. This can include assault, battery, domestic violence, robbery, mugging, stalking, harassment, etc. Military sexual trauma (MST) is a subset of personal trauma and refers to sexual harassment, sexual assault, or rape that occurs in a military setting.
VA Requires Credible Evidence
In order for the VA to consider a claim for service-connection for PTSD due to personal trauma, there must be credible evidence to support the veteran’s assertion that the stressful event occurred. This, however, does not mean that the veteran must be able to supply actual proof that the incident occurred. This just means that there needs to be at least a proximate balance of positive and negative evidence that the event occurred.
Note: Personal trauma cases are a rare exception to the active/inactive duty rule. The VA has allowed that veterans whose stressor occurred during inactive duty for training are eligible to service connection in the same manner as those whose stressor occurred during active duty or active duty for training.
What qualifies as “credible evidence”?
In many cases of personal trauma, especially in MST cases, there are often coinciding factors which prevent the veteran from being able or willing to report a personal trauma incident. Therefore many incidents of personal trauma are not officially reported, and the victims of personal trauma may find it difficult to produce evidence to support the occurrence of the stressor.
The VA has recognized this reality and has determined that, in the absence of official reports, claim developers should look for alternative evidence that may demonstrate the presence of markers. These markers include signs, events, or circumstances indicating the possibility that the claimed stressor occurred. This would be considered secondary evidence.
According to the VA’s internal manual, secondary evidence may include the following:
- Lay statements
- Indicating increased use or abuse of leave without an apparent reason, such as family obligations or family illness, or
- Describing episodes of depression, panic attacks, or anxiety, but no identifiable reasons for the episodes, and
- Evidence of behavioral changes that occurred around the time of the incident, including
- Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment
- Use of pregnancy tests or tests for sexually-transmitted diseases around the time of the incident
- Sudden requests that the veteran’s military occupational series or duty assignment be changed without other justification
- Changes in performance and performance evaluations
- Increased or decreased use of prescription medications
- Increased use of over-the-counter medications
- Evidence of substance abuse, such as alcohol or drugs
- Increased disregard for military or civilian authority
- Obsessive behavior such as overeating or undereating
- Increased interest in tests for HIV or sexually transmitted diseases
- Unexplained economic or social behavior changes
- Treatment for physical injuries around the time of the claimed trauma, but not reported as a result of the trauma, and/or
- The breakup of a primary relationship.
This is why it is very important to have a family member, spouse or significant other, or close friend write a statement about any behavior changes that they might have noticed during or after the veteran’s period of service. These become valuable testimonials that can significantly help the veteran obtain compensation benefits his or her mental disorder.
Free Case Evaluation
Please call for an appointment before visiting:
Mail Processing Center: P.O. Box 449, Deland, FL 32721
Orlando, FL: 605 E. Robinson Street Suite 635, Orlando, FL 32801
Deland, FL: 1607 South State Road 15A Suite 12 Deland, FL 32720
Melbourne, FL: 100 Rialto Place, Suite 700 Melbourne, FL 32901
Washington, D.C.: 1776 I Street, NW, 9th Floor, Washington, D.C 20006
Atlanta, GA: 1201 Peachtree St., 400 Colony Square, Suite 200, Atlanta, GA 30361
Houston, TX: 3200 Southwest Freeway, Ste. 3300, Houston, TX 77027
Los Angeles, CA: 11601 Wilshire Blvd., 5th floor, Los Angeles, CA 90025
San Jose, CA: 2880 Zanker Road, Ste. 203, San Jose, CA 95134
Phoenix, AZ: 40 North Central Avenue, Suite 1400, Phoenix, AZ, 85004
Tucson, AZ: One South Church Avenue, 12th Floor, Tucson, AZ, 85701
Chicago, IL: 55 E. Monroe Street, Suite 3800, Chicago, IL, 60603
Brooklyn, NY: 300 Cadman Plaza West, One Pierrepont Plaza, 12th Floor, Brooklyn, NY, 11201
Cincinnati, OH: 300 E Business Way, Suite 200, Summit Woods Corporate Center, Cincinnati, OH, 45241
Cleveland, OH: 600 Superior Ave. East, Fifth Third Building, Suite 1300, Cleveland, OH, 44114
Columbus, OH: 100 E. Campus View Boulevard, Suite #250, Columbus, OH, 43235
Portland, OR: 650 N. E. Holladay Street, Suite 1600, Portland, OR, 97232
Philadelphia, PA: 1 International Plaza, Suite 550, Philadelphia, PA, 19113
Pittsburgh, PA: 201 Penn Center Boulevard, Suite 400, Pittsburgh, PA, 15235
Charleston, SC: 4000 S. Faber Place Drive, Suite 300, Charleston, SC, 29405
Richmond, VA: 7400 Beaufont Springs Drive, Suite 300, Richmond, VA, 23225
Seattle, WA: 801 Second Avenue Seattle, Suite 800, Seattle, WA, 98104
- Video Blog – Individual Unemployability – When to FileJuly 21, 2017 - 9:24 am
- Video Blog – VA Mental Health RatingsJuly 6, 2017 - 1:15 pm
- Video Blog – Getting Your Medical Evidence to the VAMay 25, 2017 - 4:00 pm
- Video Blog – What does being found incompetent by the VA mean?May 19, 2017 - 4:00 pm
- Video Blog – Will the VA take away my Guns?May 12, 2017 - 1:48 pm