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Cassandra Crosby, Claims Advocate

How Do I Prove Unemployability?

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A lot of veterans think that not being able to get or hold a job is enough for them to prove to the VA that they are unemployable. Unfortunately, this is just a myth. The reality is much more complicated. Another myth is that having a statement from a doctor, especially a VA doctor, saying that you cannot work, should be proof of unemployability. But again, this is not the reality. When it comes to proving unemployability, there is a certain level that the VA looks at to determine if a veteran is eligible for this benefit, regardless of their disability rating. This level of eligibility is functional impairment.

Functional Impairment

Functional impairment means that the veteran’s functional capacity is so impaired by his or her disabilities that he or she is unable to secure or maintain substantial employment. There are a few parts to this definition we need to explore to get the entire picture.

First is the functioning. Functioning is not based on what the veteran did before as a job. So if a veteran was a painter or a construction worker, having a back injury may not make him unemployable if he is found able to work at a sedentary job such as sitting at a desk. Unfortunately, for many veterans who have worked in a specific field for most of their lives, changing careers means new training if they are to transition from a physical to a sedentary position. While Vocational Rehab offers training programs and college education for those who qualify, it is often not a viable option for many veterans because they are not able to make that transition due to other factors that the VA does not take into account when looking at unemployability. Factors such as concentration, ability to retain and follow instructions, adaptability to change, dealing with people, dealing with pain, absenteeism due to sick days and medical appointments, etc. should all be taken into account when the VA is looking at a claim for unemployability.

Securing and Maintaining Employment

Second is being unable to secure or maintain employment. This means that the veteran may not only be able to get a job but may not be able to maintain employment either. Therefore, if a veteran gets hired but then loses his jobs often, this may make him eligible for unemployability if the reasons the veteran loses his jobs are related to his disability. Often employers have been known to shy away from hiring veterans due to the perception that they may be disabled. This, unfortunately, is not a case for unemployability. If a veteran is not hired simply because he has a disability, this is again, not a case for unemployability. If, however, a veteran is not hired or is terminated, because his disability keeps him from doing the job, then it becomes a case for unemployability. For example, Joe is rated as 70% disabled due to back and knee problems. He works as an engineer and is on his feet all day. His workplace allows him a redesigned space where he is able to sit and work. He is still able to do his job so he is employable. If his workplace did not make the accommodation, he would still be able to do his job just not in that environment,  and he is still considered employable. But what if Joe is unable to sit to do his job? After physical therapy and surgery, it is determined that Joe has to lay down several times a day and take strong painkillers that inhibit his concentration. Now Joe has possibly become unemployable.

Sustainable Employment

The last part is sustainable employment. Sustainable employment means that it pays above the poverty threshold for a single person with no dependents. This figure fluctuates each year, but for 2017 is $12,060. If a veteran is working but makes less than $12,060 in the year 2017 or less than the threshold for previous years, they may be eligible for unemployability.

Employment Rates for Disabled Veterans

According to the ADA Website that tracks employment data for the disabled, veterans are employed at a very low rate. Veterans with no service-connected disabilities are only employed at a rate of 72%; 68% for those with a 0-40% rating; 58% for those rated 50-60%; and only 25% of those with a 70% or higher rating are employed. Ensuring that these unemployed veterans have the income to sustain them is imperative and the least they deserve after giving so much to their country. While there are many programs out there designed to hire disabled veterans, there are not enough to employ every unemployed veteran who wants to work. Working with local employers to help make accommodations, educate them on how to work with disabled veterans, and designing work programs that work around disabilities is needed to ensure the vast growing number of disabled veterans will have a place in our workforce in the future.

Shannon Brewer, Senior Attorney

VA Disability Benefits – Back to Basics

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We often blog about the intricate details of specific issues in VA law, so I wanted to take a moment to take us back to the basics of VA disability benefits.  The Veterans Benefits Administration (VBA) provides a number of different types of benefits, including: pension benefits, vocational benefits, readjustment benefits, Section 1151 benefits (similar to medical malpractice benefits), dependency and indemnity benefits (DIC), and VA disability compensation benefits.  This blog will focus on the basics of VA disability compensation benefits.

A claim for VA disability compensation is sometimes called a claim for service connection or for service-connected benefits. It is important to note that to receive this type of benefit, a veteran must have been discharged under conditions other than dishonorable and must have served on active duty.  That active duty service must be related to the disability for which the veteran is seeking compensation.

There are three basic elements to establishing service connection for a disability.  First, the veteran must have a current disability.  Second, the veteran must be able to show that something happened during service (an injury, disease, trauma or exposure).  Finally, there must be a nexus or link between the current disability and the event in service.

  • Current disability—It is important to remember that even if a veteran was sick or injured during service, he may not be entitled to benefits if he recovered completely and has no residuals of that injury.
  • Incident during service—In order for a disability to be service connected, it must have some relation to something that happened during active duty. The condition need not necessarily have been caused by service.  It could have been a condition that began during service.  Alternatively, the veteran could have experienced a trauma that later resulted in post-traumatic stress disorder, or could have been exposed to chemicals/herbicides that later resulted in a disability.
  • Nexus—It seems obvious, but a current disability and an incident in service are not enough without some evidence that the two disabilities are one and the same. A grant of service connection requires evidence such as a medical opinon which demonstrates that the current disability is “as likely as not” related to the in-service incident/exposure.

These seem like basic concepts, but we often see veterans being advised to file a claim for every current disability they have, regardless of whether there was an incident in service.  Similarly, we see veteran filing claims for illnesses or injuries they had in service which completely resolved and for which there are no current residuals.  These kinds of claims will not be granted and can be a distraction from a veteran’s valid claims.  If a disability is not related to service, filing a claim for service connection is a waste of the veteran’s time.  If, however, an injury that occurred in service has no current residuals, a veteran should consider whether the injury or illness is of a type that may recur at a later time, in which case, it might be worth filing a claim.  On that same topic, sometimes a disability has symptoms that are at such a minimal level that they are not compensable.  Keep in mind that it can be a good idea to go ahead and file for service connection early, to establish the connection before too much time passes.  Then, if the symptoms worsen, it will be easier to request an increased rating than start at that point, possibly years later, to attempt to establish service connection.

 

Cassandra Crosby, Claims Advocate

Peripheral Neuropathy: Not always an Agent Orange issue….

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Peripheral neuropathy is an illness often linked to Agent Orange and herbicide exposure. It is associated with pain, burning, and numbness in the upper and lower extremities such as the hands and feet. It is presumptive for those veterans who served in Vietnam and were exposed to Agent Orange, however, only if it manifested within one year of exposure. However many Gulf War veterans have also been exposed to similar agents, also known as organophosphates, in forms of pesticides, that have links to peripheral neuropathy. There are also several other toxins and illnesses that can lead to peripheral neuropathy as a primary or secondary condition. Veterans need to be aware that if they have peripheral neuropathy, there may be more than one reason and there could be a claim for service connection or secondary connection.

Toxin Exposures

Toxins associated with peripheral neuropathy are often thought of as being those Agent Orange and affiliate herbicides from the Vietnam era, including those used in Thailand, Guam, and even some US bases such as Anniston Army Depot in AL and Camp Pendleton in CA. Both these bases have been listed as EPA Superfund Cleanup Sites and one of the toxins listed is herbicides. Dozens of other bases, US and abroad, used pesticides that contained organophosphates linked to peripheral neuropathy (PN). However, again, these are linked to a specific type of neuropathy, one that manifests within a year or less. In order to be eligible for presumptive, or to have a good claim based on toxin exposure, there would need to be evidence of symptoms within a year of exposure. However, there are other ways that a veteran can get PN.

Diabetes Mellitus II

Most people are aware of the link between diabetes and PN. Diabetes causes blood to not reach the outer capillaries of the circulatory system, causing nerve damage in the feet, toes, hands, and fingers. As the damage increases with uncontrolled diabetes, the damage moves inward up the legs and arms and increases in pain levels. The neuropathy can lead to a person being unaware of wounds, causing infection and even leading to amputation.

Lupus and Autoimmune Diseases/Rheumatoid Arthritis

Many autoimmune diseases lead to PN. These diseases cause the body to attack its own tissue, often causing inflammation. That inflammation can often inflame the nerve fibers causing neuropathy. Some of these neuropathies can become severe and life-threatening such as Chronic inflammatory demyelinating polyneuropathy (CIDP) which damages the sensory and motor nerves. Autoimmune diseases are often found among Gulf War Veterans and some, such as MS, are presumptive for all veterans within a certain time frame from discharge.

Hyperthyroidism and Metabolic or Endocrine disorders

Diabetes is also a presumptive disease associated with herbicide exposure during Vietnam service. However, any veteran who was diagnosed with diabetes in service or whose diabetes manifested while on active duty is eligible for service connection. Veterans whose diabetes manifested within one year of discharge or who feel they were exposed to environmental toxins that may have been responsible for their diabetes are also welcome to file a claim, although they must be able to show a link between their service and their condition.

Diabetes is an endocrine disorder, but there are others that can also lead to PN. Hypothyroidism is another issue that is often seen in Gulf War veterans. Some metabolic liver conditions and hormonal imbalances can also cause PN. With thyroid conditions, underproduction of thyroid hormones slows the metabolism which leads to fluid retention and swollen tissue, putting pressure on peripheral nerves causing pain.

Small Vessel Disease

Diseases such as vasculitis cause blood vessel walls to harden, thicken, and develop scar tissue. When this happens, the vessels decrease in diameter and subsequently decrease the flow of blood to the peripheral extremities, leading to neuropathy in a similar fashion as diabetes. The lack of blood flow increased the nerve damage and it increases with time.

Kidney Disorders

Kidney disorders lead to increased levels of toxins in the blood that damage nerve tissues. Most people on dialysis have a form of neuropathy. The toxins damage the nerve fibers and the nerves are then unable to process signals correctly, leading to tingling, burning, pain, and numbness.

Cancers and Neuromas

Tumors, benign or not, and cancer cells, can increase pressure on nerve fibers depending on where they are growing, and can cause widespread pain. Treatment for cancer can also lead to extensive nerve damage as the chemotherapy medications and radiation kill nerve cells just as easily as cancer cells; 30-40% of people under cancer treatments have peripheral neuropathy and it is one of the leading reasons people stop cancer treatment earlier than recommended. Unfortunately, often stopping treatment does not stop or reverse the PN symptoms.

Infections

Several infectious diseases can cause PN such as those that attack nerve tissues. These include shingles, Epstein-Barr, West Nile, cytomegalovirus, and herpes simplex. Also, bacterial infections such as Lyme disease, diphtheria, leprosy are known for severe peripheral neuropathy issues. While diphtheria and leprosy are rare in the US, with our veterans traveling all over the world and often exposed to cultures that carry unknown diseases, there are risks. Lyme disease, shingles, and the other viruses are common in the US and can severely damage sensory nerves, causing pain, numbness, and may sometimes be permanent.

Medications

Not only do the medications used to treat cancer cause nerve damage, others do as well. Medications such as antiretroviral agents for HIV, some anticonvulsant agents, and some heart and blood pressure medications can cause PN. Check the side effects with your physician because often just adjusting the dosage can prevent the onset of PN.

Trauma, Injury, or Repetitive Stress

Sports-related injuries, auto accidents, surgical procedures….sometimes any type of trauma can cause the nerves to be damaged, crushed, impinged, or have pressure put on them in such a way that it impedes their ability to process signals correctly, leading to PN. Cumulative damage from repetitive use can often cause tendons to become inflamed, leading to pressure on the nerve fibers such as in the case of carpal tunnel syndrome.

PTSD and TBI

Recent studies have started to link PTSD to PN. Scientists are trying to find out the ways that PTSD may cause PN but there are several theories. Some include the body’s chemical reaction to stress and how those chemicals change the pituitary and adrenal glands, resetting the hormonal balance of our body. This, in turn, causes such issues as explained in the section above on hormonal and endocrine conditions. Another theory concerns neurochemicals such as serotonin, amino acids, and peptides, which may deregulate the way that nerve signals are translated. When parts of the brain are damaged by TBI or PTSD, such as the cortex, these neurochemicals become unbalanced and they interpret nerve signals incorrectly, often leading to PN conditions. While this is still a new area of science, it is worth exploring if you are diagnosed with service-connected PTSD or TBI and are experiencing PN.

Alcoholism

Finally, alcoholism is a contributor to PN. Again, alcohol damages the peripheral nerves, reducing the blood flow and increases with extended use. However, many do not realize that often alcoholism is a secondary condition to a mental health problem that can be service connected. This is often worth filing a claim if there is a history of alcoholism that started in or after service.

PN as a Secondary Condition

If a veteran is service connected for any of the conditions above, or wants to file for service connection for one of the conditions, and has peripheral neuropathy, it may be a secondary condition and may be worth filing a claim. Secondary conditions are often overlooked and can lead to higher ratings and increased benefits for veterans.

Nicholas Simpson, Attorney

Your Gulf War Syndrome and How the VA Rates It

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“Gulf War Syndrome” is the name for the multi-symptom, undiagnosed illness that many Gulf War Era veterans (Persian Gulf War, Operation Enduring Freedom, and Operation Iraqi Freedom) suffer from.  Gulf War Syndrome is believed to be caused by exposure to biological and environmental hazards.  However, due to the nature of Gulf War Syndrome, it is one of the most difficult disabilities to get service-connected.  Because of this, Congress has enacted special rules relating to Gulf War Syndrome.

First, to be entitled to the presumption of service connection, a veteran must qualify as a Persian Gulf War veteran.  So what is the VA’s definition?  The VA views a Persian Gulf War veteran as someone who served in active air, military or naval service in Southwest Asia theater of operations during the Persian Gulf War after August 2, 1990.  This includes service in Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.

Secondly, the veteran must be suffering from a qualifying chronic disability.  Qualifying chronic disabilities are as follows:  a medically unexplained chronic multi-symptom illness (irritable bowel syndrome, fibromyalgia, or chronic fatigue syndrome) that is defined by a cluster of signs and symptoms; an undiagnosed illness, or any other illness the Secretary determines in the regulations warrants presumptive service connection.

Undiagnosed illnesses can be manifested in a number of ways, and one of the most obvious is the symptoms of such an illness.  Symptoms can range from fatigue to muscle and joint pain, headaches, respiratory problems, neurological symptoms, sleep disturbances, cardiovascular symptoms, gastrointestinal problems or abnormal weight loss or gain.  Veterans should note that he or she can rely on evidence other than medical records so long as their symptoms are able to be observed by non-medical professionals.   Also important to note, the symptoms must be chronic in nature.  Put another way, the symptoms must have existed for 5 or more months and the veteran must not have a diagnosis for the symptoms.  This is very different from the usual rule that a veteran “must have a current diagnosis.”

The second qualifying disability is a medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome, irritable bowel syndrome (or other functional gastrointestinal disorder, or fibromyalgia.  In order to qualify for disability for one of these illnesses, you must have a diagnosis.  In addition to these, there are an additional nine disease that fall within the special rules for Gulf War Veterans:

  • Brucellosis,
  • Campylobacter jejuni,
  • Coxiella Burnetti (Q fever),
  • Malaria,
  • Mycobacterium Tuberculosis,
  • Nontyphoid Salmonella,
  • Shigella,
  • Visceral Leishmaniasis, and
  • West Nile.

Additionally, when a veteran is service connected for one of the preceding nine diseases, VA regulations recognize certain long-term effects which may be entitled to secondary service connection.

The last element for service connection for Gulf War Syndrome is the disability must have manifested during active military service in Southwest Asia or to a degree of at least 10 percent since the veteran’s return from service.  For the nine diseases, the presumptive period varies.  Because chronic fatigue, fibromyalgia, and irritable bowel syndrome all have their own diagnostic codes, it is easy to determine if you meet the requirements.  However, the determination of whether or not an undiagnosed illness has manifested to at least 10 percent can be significantly more difficult.  It is more difficult because it must be rated under an analogous diagnostic code.  This, in turn, means that it is very important for you to look closely at the diagnostic code used, and to make sure that it is the right one.  If you feel that a different diagnostic code more closely resembles your symptoms, then make sure to file an NOD to the decision and continue seeking the benefits you deserve.

Mary Klements, Claims Advocate

The Difference between Federal Tort Claims and VA 1151 Claims

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“The VA is responsible for my low back injury – what options do I have?” If a veteran suffers injury or death as a result of VA health care, VA vocational rehabilitation, or participation in a VA compensated work therapy program (CWT), there are two types of relief available: Federal Tort claims and Section 1151 claims. The Federal Tort Claims Act (FTCA) allows a veteran, or his or her survivors or estate, to pursue a medical malpractice claim against the VA. Alternatively, 38 U.S.C.S. 1151 allows a veteran to apply for disability compensation from the VA for that injury. Federal Tort claims and Section 1151 claims have different scopes, and therefore the use of each is different.

Tort Claims

A Federal Tort claim is a lawsuit against the VA and applies to any situation in which a VA employee, acting on behalf of the VA, is negligent and causes injury. For example, if a negligent VA maintenance worker leaves a wrench on the stairs in a VA medical center, and a veteran trips on the wrench resulting in injury, compensatory relief is likely available under a Federal Tort. A Federal Tort can be filed by a veteran, or, in the event that the injury resulted in the death of the veteran, by his qualifying survivors or estate. If the Federal Tort is resolved favorably toward the veteran or claimant(s), the compensatory relief is paid out in a lump sum, which becomes property that can be passed on to others as part of the veteran’s estate. Because Federal Torts are lawsuits against the VA and are civil actions, they are more difficult to win. Torts require that there be a preponderance of evidence, which means that the evidence of negligence must outweigh the evidence of non-negligence that the VA will produce in its defense.

VA Section 1151 Claims

A Section 1151 claim has a much more narrow scope. The regulations define that in these cases, a veteran may apply to the VA for compensation due to injury or death proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” or by “an event not reasonably foreseeable” in VA’s furnishing of hospital care, medical treatment, surgical treatment, or examination. Section 1151 claims based on VA vocational rehabilitation participation or VA CWT do not require evidence of negligence, fault or accident. In short, Section 1151 claims only involve injury or death due to the administering of medical care, as opposed to incidents that might occur on a VA facility campus. In the example cited above, the injury incurred by tripping over the wrench would not qualify for Section 1151 because this injury was not caused by VA hospital care, medical or surgical treatment or examination.

If a Section 1151 claim is resolved in favor of the claimant, the injury or death is considered as if it were a service-connected disability. This means that the injury or condition will be rated according to the VA rating schedule, and will be compensated accordingly on a monthly basis. In the event that the Section 115 claim involved the death of the veteran, the claimant would receive Dependency and Indemnity Compensation (DIC) in a monthly benefit.

In some cases, a claimant may win a Federal Tort case and be granted Section 1151 benefits for the same disability. This would occur if the claimant filed a tort claim and a separate Section 1151 claim for the same condition. It is important to note that winning both cases would not result in a double payment. For example, if a claimant wins the Federal Tort case and then wins the Section 1151 case later, the claimant will not receive the lump sum from the government and then monthly compensation from the VA on top of that. Instead, the VA is required to withhold payments for Section 1151 benefits until the total amount of the Federal Tort judgment, settlement, or compromise, is offset. The total amount includes economic loss (loss of earning capacity), non-economic loss (for example, pain and suffering), as well as attorney fees, court costs, and other expenses incident to the claim. In other words, the VA essentially pays back the Federal Tort benefit with compensation benefits until the entirety of the tort benefit has been paid back.

There are a few exceptions to this rule. Firstly, an offset may be prohibited by a final court order, as long as that decision is not appealed by the VA. Secondly, the offset rule applies to “individuals”, as opposed to estates. Here, “individual” has been interpreted to mean that any money received by the Federal Tort claimant in an individual capacity or for personal loss (for example, for loss of companionship) must be offset under Section 1151. However, if the veteran’s surviving spouse pursues the Federal Tort suit in the capacity of administrator of the veteran’s estate, and not in an individual capacity, no offset is required or authorized.

It is important to keep in mind that Section 1151 and Federal Tort claims are not to be taken lightly. They are difficult claims to win. Your best chance of success is seeking the legal services of a representative experienced in this field.

Robin Rosenblad, Claims Advocate

The New RAMP Program

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As some of you may have heard, the VA is implementing a new program of new procedures with the goal of speeding up the handling and resolution of appeals.  The program has been dubbed the Rapid Appeals Modernization Program (RAMP) and has begun to be offered to veterans in select areas as of October 2017 to opt into the process.   It will be a voluntary option and totally up to the veteran as to whether he/she chooses to opt into the new program or remain with the existing appeals process.   To opt-in, the veteran must file a “RAMP Opt-In Election” Form that will be attached to a letter sent by the VA informing the veteran of this new process.

If a veteran opts into the new RAMP process, the veteran has to withdraw any pending appeals and then the VA will make several other choices available.  Once opting in, the veteran can choose from the following:

  1. Supplemental Claim Lane – If you have new and relevant information for your claim, the VA is recommending that you choose the Supplemental Claim Lane.  They will attempt to process your appeal then within an average of 125 days.  You must be ready to submit your additional new information very quickly for this option to work.
  2. Higher-Level Review Lane – With appeals for which you have no additional evidence to submit but you believe an error was made in the decision, you can choose the Higher-Level Review Lane.  Your claims will then be fully reviewed by a new claims adjudicator.  You should be aware that the new review will only consider evidence the VA already has at the time the veteran opts in so no new evidence can be submitted for consideration.)
  3. Once in the RAMP program, if a Higher-Level Review Lane appeal is denied, a Notice of Disagreement (NOD) should still be filed within one year to continue the appeal, but the NOD will send the appeal straight to the BVA.  This is supposed to save time by not having to wait for the issuance of the Regional Office’s Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) before filing a Form 9 to forward the appeal to the BVA as is done in the existing appeals process.

While in the Higher-Level Review Lane, a veteran can still request that an informal conference is held.  If the appeal has reached the BVA, the veteran may still request that a hearing by video conference or a hearing in Washington D.C. be held (but Travel Board hearings will no longer be an option).

If the process isn’t resolved after choosing the Supplemental Claim Lane above, then the veteran would still have the option to choose the Higher Level Review Lane.

The VA says that opting into the new process will NOT change the potential effective date of the claim (which is important to preserve as it could substantially affect the amount of retroactive pay a veteran receives if his/her claim or appeal is granted).  As always though, to preserve the effective date, the veteran must continue to appeal any claim denials without letting deadlines lapse.  This could include:

  1. Requesting a higher level review within one year of a decision.
  2. Submitting a supplemental claim within one year of a decision.
  3. Filing an NOD within one year of a decision.
  4. Submitting a supplemental claim within one year of a BVA decision.
  5. Submitting a supplemental claim within one year of a CAVC decision.

Still To Be Determined….

If this RAMP process truly speeds up the handling of cases as it is supposed to, what remains to be seen are if other measures will be taken to speed up other parts of the process of handling a VA appeal.   One of the issues that currently exists that slows down appeals, is the delay in receiving a veteran’s Claims File. (The Claims File contains all of the documents pertaining to the history of a veteran’s claims/appeals and includes all the documentation that the VA has obtained on a veteran’s behalf or that the veteran may have sent in.)   Our office always orders the Claims File as soon as we agree to accept a veteran’s case. However, we often have to wait for 6 months to a year (or more) to receive the Claims file.   Having the complete Claims File is essential for reviewing the specifics of an appeal and knowing what may still need to be done for the appeal.

Another question that arises is – if a huge number of veterans opt into the new process – will that bog down the intended outcome of handling the claims more efficiently?

Also – what will the VA consider to be “new and relevant” evidence?

Will these changes require the creation of numerous new positions at the VA, and if so, has the VA been adequately funded to pay for those positions? Or will the VA draw on its existing pool of employees and pull them away from the current appeal process and potentially slow it down further?

We all need to know answers to these and other questions as the letters from the VA informing veterans of their options are starting to be sent to veterans in certain areas already.  The VA plans to implement the plan in more areas by early 2018.

Cassandra Crosby, Claims Advocate

Understanding the Criteria and Rating of PTSD

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PTSD is caused by so many different events; personal trauma, sexual trauma, combat, reactions to training. It is the 6th highest rated disability among veterans, with over 63,000 new claims in 2015 and a total of over 800,000 veterans receiving compensation for symptoms of PTSD at some level. Many veterans are told they have PTSD and submit all the evidence required, but then when they apply for benefits they see this on their rating decision, “Does not meet the criteria for PTSD.” In this blog, we will explore various reasons why veterans get denied for this reason and what they can do about it.

Incorrect Rating Decisions:

Often the rating decision is just incorrect. Not that the veteran does not meet the PTSD criteria, but that they are denying a mental health disorder because the veteran filed for one disorder and actually has a different one.

Veterans, unless they have a doctorate in psychology, are not able to officially diagnose their own mental health disorders. Therefore, if a claim is filed for PTSD and it is denied because a veteran does not meet the criteria, the VA should have determined if the veteran had another diagnosis, which they often do not. Veterans can often avoid this process by filing a claim for a more generic issue such as “acquired psychiatric disorder” or “service connected mental health disorder.” By filing for benefits in this manner, it puts the responsibility on the VA to diagnose through a C&P exam and/or utilizing medical records where a diagnosis may already exist.

Understanding Criterion A of PTSD

 

This is one of the most puzzling aspects of diagnosing for lay people. Criteria A is what determines if a stressor can be used to support a diagnosis of PTSD. If there is no Criteria A, there is no diagnosis. However, many people, even doctors, often misunderstand the requirements for this diagnostic step. The criteria broken down are:

Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

  1. Directly experiencing the traumatic event(s);
  2. Witnessing, in person, the event(s) as it occurred to others;
  3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the events(s) must have been violent or accidental.
  4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g. first responders collecting human remains; police officers repeatedly exposed to details of child abuse.)

For many, the basic criteria listed above of 1 and 2 are easy to understand. Where we find mistakes most often are with criteria 3 and 4.

Criteria 3 states that the event must have happened to a family member or close friend. Often the VA will determine that members of a unit are not considered close friends if they have not served together for a certain period of time or were in a different geographical location. However, the culture of the military is one where even if unit members are on different continents, they are bound by a brotherhood and when members of a unit experience a trauma such as terrorism or a plane crash, the entire unit is affected; even support staff and support units, not just those who served directly together.

Criteria 4 is often mistaken for only being related to repeated events only such as those experienced by military security forces or convoy personnel. However, reading the criteria closer, it states, repeated or extreme. Extreme can mean a lot of things in the military world, terrorism, IEPDs, even having to write up the reports dealing with the death or losses of troops or civilians. And, extreme is about perception, what may be extreme may not be perceived as such by someone else, so discussing the events with a psychologist is important so that they can determine how the veteran perceived the event and if it meets Criteria A requirements for PTSD.

Understanding the General Rating Formula for Mental Health Conditions

Rating levels are determined by the General Rating Formula. This is where the VA takes the symptoms of any mental health condition and translates them into a rating of 10, 30, 50, 70, or 100%.  The VA often rates veterans by the average of their symptoms, so if a veteran has symptoms that fall in the 30, 50, and 70% ranges, they will often get a 50% rating. However, this is not the correct way to rate a mental health disorder. Ratings should be based on the highest level of symptoms, not an average. So, if a veteran has 6 symptoms at 30%, 3 at 50% and 2 at 70%, they should be rated at 70%. Also, the VA cannot downplay symptoms and give them a lower rating. For example, if a veteran has suicidal ideations, that is a 70% rating. However, if the doctor states that the veteran does not have intent, the ideations are fleeting, and intermittent, the VA will sometimes reduce the rating or ignore the symptom all together and not rate it. However, it is never less than a 70% rating if a veteran has suicidal ideations, regardless of intent, plan, past hospitalizations, or if they are fleeting or constant.

If you are a veteran with a mental health rating, make sure you are getting the correct rating and the highest benefits you are entitled to, you deserve it for the price you paid to defend your country.

Robert Rivera, Claims Advocate

Help Your Case with Better Details – Part II – Buddy Statement

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In the first part of this blog, we talked about you painting a vivid picture of the circumstances surrounding your claim with details. We talked about including the five “W’s”; what, where, when, why, and who. Well, the same holds true for the Buddy Statement.  A buddy statement is a written statement from an individual who has knowledge about the Veteran’s disease or injury. The person giving the statement can use the same VA Form 4138 for their statement in support of your claim. A buddy statement can be made by a fellow service member, relative, or friend. The key is to have someone that is familiar with your condition and how it affects your daily life. Someone that can move the reader with details that make your condition or the time of your injury clearly visible can be extremely influential. With regard to the buddy statement, the greater the separation of personal affiliation between you and the person writing the buddy statement the more value it will carry with the reader. This is because the reader places less bias in a statement when the writer has nothing to gain from making that statement. The factual undertones of a statement given by a fellow service member will carry more corroborating evidence than an emotional plea from a veteran’s spouse. In other words, it’s like having an eyewitness to the event versus someone who heard about what happened and saw the results of that event. Ideally, getting statements from more than one source gives the reader different perspectives and more evidence that leads to the same conclusion. .Buddy statements provide important information corroborating or backing up, the veteran’s claim. These statements can be extremely helpful in situations where records were lost, destroyed or never existed. As we did in part I of this blog, we will discuss the elements of a Buddy Statement required to produce a statement which supports a claim for direct service connection of a new claim. Statements meant to support an increased rating of a service-connected claim will be discussed in future blogs.

Buddy statements for service-connection claims should include content focused on the incident that happened in service causing the disability. Most of these statements will come from fellow servicemen. For example, for disabilities incurred or aggravated during combat, if service records do not show that the Veteran was involved in combat and the Veteran knows a fellow service member who witnessed his injury, a buddy statement can be written to corroborate the Veteran’s claim  Many veterans struggle to find fellow service members to corroborate incidents during service, especially if many years have passed since their service, but if you are able to find someone who is willing to give you a buddy statement to support your claim, again, the more detail the better. If you are unable to locate someone who remembers the incident during service, you may want to try talking to family members or friends who you made have told about the incident when it happened. For instance, if you sent a letter home to a relative or friend about your injury during service, they can write a statement about the details of your letter. Statements from fellow servicemen are also important in situations like corroborating a post-traumatic stress syndrome (PTSD) stressor or being stationed in an area the VA has recognized as exposed to Agent Orange. Moreover, in cases involving military sexual trauma (MST), where in most cases there is no witness, a buddy statement from someone you shared your ordeal with or has noticed a change in you following the crime, may be the one piece of evidence that sways a decision maker in your case. Ultimately, in spite of medical or service records, those of you who experienced life in service together are each other’s eyewitnesses.

Keep in mind when asking someone to write a buddy statement; it should always include the contact information for the “buddy” writing the statement including their full name, address, and phone number. The full name of the Veteran the statement is being written for should also be provided. The statement should contain the buddy’s perception of what they witnessed (the five “W’s”). The statement needs to be signed by the buddy. If it is not on the VA 4138 form, the statement must be notarized. This is because the VA wants the statement in a format where the person writing the statement is swearing that what they have written in their statement is the truth. Remember that in most cases, a buddy statement is corroborating your statement. Buddy Statements should be written in a style that is accurate, brief, and concise. So when you approach someone and ask, “Would you write me a short statement about everything you remember?” ask them to address the elements of who, what, when, where, and why, in as much detail as possible. Discuss your statement with your buddy and how you would like their statement to corroborate yours without actually writing it for them. A convincing buddy statement in support of your claim is a great tool to back your claim. It is important to go into as much detail as possible in order to make your buddy’s statement come to life for the reader.

Thank you for your service and taking the time to read this blog.

Shannon Brewer, Senior Attorney

How Can I Get VA Disability Benefits If My Discharge Is Not Honorable?

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To be eligible for VA disability benefits, a veteran’s discharge must be under conditions other than dishonorable.  This does not mean that an honorable discharge is required for receipt of VA benefits—a general discharge, or a discharge under honorable conditions, is acceptable as well.  But what happens if a veteran does not meet this criterion?  Is there a way that he or she can still receive benefits?  As with many VA questions, the answer is maybe.

One option for a veteran with an other than honorable discharge is to apply for a discharge upgrade through a Discharge Review Board.  This is a process outside the VA.  If a discharge is upgraded through this process, the VA will consider the upgrade in determining eligibility for benefits, but the discharge upgrade does not automatically remove the bar to VA benefits.

Under the law, benefits are not payable to a conscientious objector who refused to perform military duty, wear the uniform or comply with military authorities.  Nor are benefits payable to a veteran who was discharged by general court-martial, who resigned as an officer for the good of the service, or who deserted.  Benefits are not payable to a veteran who was absent without official leave (AWOL) for a period of at least 180 days.  This bar for an extended period of AWOL may be removed if there is a finding of compelling circumstances which could excuse the absence.   In  making its determination as to compelling circumstances, the VA is required by law to consider several factors, including the quality and length of the veteran’s service, exclusive of the period of absence; the reasons given by the veteran for going AWOL (taking into consideration the veteran’s age, cultural background, educational level and judgmental maturity as  well as hardship or suffering incurred during overseas service or as a result of combat wounds or other  service-incurred disability); and whether a valid legal defense exists for the absence which would have precluded a conviction for AWOL, i.e., if the absence would not lead to a conviction of an offense under the Uniform Code of Military Justice.

Another consideration in determining whether an other than honorable discharge is a bar to benefits if whether the person was insane at the time of committing the offense for which the veteran received the discharge.  For purposes of the VA, an insane person is one who, while not mentally defective or constitutionally psychopathic exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior, or who interferes with the peace of society.  Insanity would remove the bar to benefits.

One other important point to know with regard to the character of discharge is that VA can grant benefits for an injury or disability which occurred during a period of honorable service even if the veteran later has a period of dishonorable service.

Cassandra Crosby, Claims Advocate

Veterans, Don’t Let Sexual Trauma Steal Your Future

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Sexual trauma is still, in 2018, stigmatized. Often times, victims of sexual trauma suffer re-victimization if they report the trauma, they also experience victim blaming, and loss of career, dishonorable discharge, ineligibility for benefits, and loss of their core group of peers. There are the real consequences to reporting a sexual assault, and, neither the military nor society is helping to make it any easier for the victims.

MST, by definition, is different from sexual assault. MST, military sexual trauma, includes any sexual activity against one’s will and any repeated acts of sexual harassment. Against one’s will includes being pressured or coerced into sexual activity, unable to give consent (such as if they are under the influence), or if they are forced into sexual activity. Harassment includes unwanted touching or grabbing, threatening or offensive remarks about a person’s body or sexual activities, or unwelcome sexual advances.

A study done in 2015, by the University of Southern California and published by the American Psychological Association, identified that approximately 40% of the female veterans sampled (sample = 2,583 veterans in Southern California) experienced sexual trauma while they were active duty. Of the entire sample, 35% of the females met the clinical definition for PTSD. Within that 35%, 76% of those admitted to some form of sexual trauma during their active duty service.

PTSD due to MST

Eligible veterans who experienced sexual trauma and are diagnosed with PTSD are eligible for benefits through the VA. Being a victim of MST alone is not a compensable condition. Victims often believe that they will get better and that their PTSD is just temporary. This is a very misunderstood concept. PTSD is a permanent condition. Veterans with PTSD have many options to treat their PTSD and minimize its effects and learn how to cope with it, but PTSD does not go away, it is a chronic, lifelong condition that needs treatment or it will get worse. The longer it goes untreated, the worse the condition can become.

Unfortunately, veterans with PTSD who do not seek treatment, like their civilian counterparts, often end up self-medicating. Alcohol and substance use disorders are prevalent among those who have mental health disorders, even more so among those who have experienced trauma-related disorders. Victims self-medicate to relieve nightmares, anxiety, panic, and to help them relax or sleep.

Mental health conditions left untreated are precursors to activities that can lead veterans into involvement with the criminal justice system. Right now, about 8% of all people in jail or prison are veterans. Approximately 85% of incarcerated veterans are suffering from a mental health condition that was probably either untreated or undertreated.

Suicide is highest among veteran who have PTSD and are untreated. Approximately 21 veterans a day commit suicide because they are not being treated for their mental health conditions and cannot cope anymore. Treatment sometimes can be nothing more than helping a veteran find a sense of hope and belonging, feeling that they are not alone anymore. There are countless groups where veterans who have experienced a variety of traumas, including MST, gather to share their survival stories and encourage each other to push forward and not let the trauma win.

How does a veteran prove MST occurred?

The VA recently published a list of “markers” used to determine if a sexual trauma had occurred when there was no actual report or evidence. This list includes behavioral changes such as substance abuse, depression, panic attacks, sexual dysfunction, STDs, requests for transfer, worsening work performance, increased disciplinary actions, etc.

Veterans can use lay evidence, statements of others who observed their behaviors, to verify that a trauma occurred. Performance reports showing a decrease in work performance are markers, but also seeing a veteran who threw himself into his work and showed a major increase in work performance could be a marker as well. Becoming a work-a-holic could be a sign of trauma occurring at home or a need to prove that “nothing is wrong” or “they can’t beat me.”

Any other changes in behavior can be used as evidence of trauma, provided it coincides with the event. Unfortunately, trauma victims rarely get dates right but, fortunately, just about every person who deals with trauma cases is aware of that, so if the dates are off, that will be okay, as long as they are close.

The military response to reporting MST still not great…..

The military is trying to get better about responding to reports of MST. However, they are still in their infancy when it comes to dealing with victims of sexual trauma. After reporting, male and female MST victims are still reporting that they are being discharged due to personality disorder or misconduct. While this practice in the military declined sharply in 2010 when the rules regarding discharges were revised, it is still being practiced at an alarming rate; often enough that the Human Rights Watch has filed a report concerning the practice. A “personality disorder” or “due to misconduct” discharge is a serious barrier to future employment and VA benefits. Victims are often unaware of the consequences of these types of discharges and are just willing to do anything to get out of the environment they have been so victimized that they accept these discharges without question. While these discharges can be appealed, only about 1% ever gets reversed.

Veterans who experience MST need to protect themselves from the potential loss of benefits and loss of future entitlements by documenting as much as possible, going to a civilian facility for assistance, and getting counseling if they experience any mental health symptoms. Getting a mental health diagnosis prior to exiting the military is the safest way to ensure future service connection, but using any of the tips in this and our other blogs can help Veterans protect themselves from a bleak future that could possibly lead to homelessness, substance abuse, and even prison.