|Matthew Hill:||Hello I’m Matthew Hill from Hill and Ponton. This is our VA video blog. I’m here with Carol Ponton, and we’re doing a series on the big mistakes we see, or the misunderstandings that get in the way between a veteran and his benefits. Today we want to talk to you about unemployability versus 100%.|
|The overwhelming number of clients we represent are so disabled that they can’t work, and we are trying to get them total benefits, be it 100% or unemployability. We are asked all the time …|
|Carol Ponton:||What’s the difference? There’s a schedular 100%, that means you add up all of the ratings you have and they reach 100% …|
|Matthew Hill:||Well, you don’t add them.|
|Carol Ponton:||You combine them.|
|Matthew Hill:||The VA does this percentage math, right.|
|Carol Ponton:||Or you have 100% because you’re not working and you’re not working because of a service connected problem. They’re essentially the exact same thing except under unemployability, you can’t work. That’s the only difference, and you just have to, every year, say I’m not working, and the 100% continues.|
|Matthew Hill:||Well you can work, and we have more information on this on our blog. Check it out. You can work only a little bit, but you are able to work.|
|Carol Ponton:||Right. Basically, they are the same things, but our veterans are very confused about that. They are not sure why is one better than the other. If you want to work and be 100% disabled, then yes, you don’t want the unemployability. If you’re not working because of the service-connected problem, it makes no difference whatsoever if you’re getting unemployability or 100%.|
|Carol Ponton:||That’s the confusion that we have with the clients.|
|Matthew Hill:||If they are permanent and total, they get all the same other benefits: tax breaks …|
|Carol Ponton:||That’s permanent and total. That’s not unemployability and 100%.|
|Matthew Hill:||Right, but it applies to both.|
|Matthew Hill:||You don’t have to be 100% schedular to get that.|
|Matthew Hill:||As far as back to what we were saying as what schedular is and how you combine ratings, we have a VA disability calculator now that actually takes your ratings and combines them just to help. Because a lot of times, we’ll see veterans with ratings that add up to 210%, but they are getting paid 80% or …|
|Matthew Hill:||We’ll link to that in these notes. It’s just important to know to have all options on board.|
|Matthew Hill:||If you’re eligible, or you think you’re eligible for 100%, but you might be eligible for IU, we’ll put them out there.|
|Carol Ponton:||IU is unemployability.|
|Matthew Hill:||Unemployability. Don’t take them out just because you don’t think it’s going to be as good getting one benefit or the other because you’re basically tying one hand behind your back.|
|Matthew Hill:||Well, thank you for tuning in on our Hill and Ponton VA blog. We are, again, talking about big mistakes we see that interfere with veterans getting the benefits they deserve.|
Tinnitus is, by far, the most claimed disability in the VA system. Veterans have filed almost 160,000 claims for tinnitus just in 2015 alone. What is this condition, what causes it, and why is it claimed so often?
What is Tinnitus?
Many people will tell you that tinnitus is “ringing in the ears,” which is partially correct. Tinnitus is actually defined as any perception of external noise that is not actually present. It can include ringing, but can also include whistling, hissing, buzzing, swooshing, clicking, or even, in some rare cases, the hearing of music. Tinnitus can be temporary (acute) or ongoing (chronic).
Tinnitus is not a disease, but a symptom of an underlying condition. Usually, the person experiencing tinnitus has a sensorineural reaction in the brain due to some type of damage in the ear or auditory system. There are several main factors that contribute to tinnitus:
- Hearing loss: whether age-related or noise induced; hearing loss is often associated with tinnitus. Often times the person notices the tinnitus but not the hearing loss itself. The brain receives less external stimuli and this process change around specific frequencies may be a way of the brain filling in the gap for sounds and frequencies that it has lost due to hearing loss.
- Obstructions of the ear: excessive wax, head congestion, loose hairs from the inner ear canals, and dirt or foreign objects. Often when the obstruction is removed, the tinnitus will be relieved. However, sometimes it can cause permanent damage.
- Head or neck trauma: trauma can cause nerve damage that can result in tinnitus.
- TMJ: the joint that connects the jaw to the skull is located directly in front of the ear canal. For this reason; the tightening of the jaw muscles due to conditions such as TMJ can cause tinnitus since the auditory system and the jaw share muscles.
- Sinus pressure and barometric pressure: any type of abnormal pressure on the middle ear can cause tinnitus symptoms; diving, flying, head colds; concussive explosions; and even just blowing your nose.
- TBI: Traumatic brain injuries can also lead to tinnitus again for similar reasons as head and neck trauma. The damage caused to the middle ear by concussive shock damages the auditory system. About 60% of all the tinnitus cases diagnosed by the VA system are due to mild-severe TBI.
- Ototoxic drugs: many prescription drugs have the side effect of tinnitus. In most cases it is a short-lived side effect, going away once the drug is no longer being used. However, in some cases it can be chronic. Drugs that are known to be more likely to cause chronic tinnitus include
- Non-steroidal Anti-inflammatories (NSAID)
- Certain antibiotics
- Certain cancer medications
- Water pills and diuretics
- Quinine based medications (these include Mefloquine; Chloroquine; and other medications ending with quine)
- Other medical conditions: tinnitus is actually a symptoms of the following medical conditions:
- Hypo and Hyperthyroidism
- Lyme Disease
- High Blood Pressure
- Meniere’s Disease
- Acoustic neuroma
How Do I Prove I Have Tinnitus?
How do you prove you hear something only you can hear? Audiologists have tests and protocols designed to diagnose and evaluate the severity of tinnitus. Because tinnitus is often linked with hearing loss, a hearing test is usually administered along with tinnitus testing. Most hearing/tinnitus testing includes:
- Speech recognition testing
- Pure tone audiogram
- Acoustic reflex test
- Otoacoustic emission test
The VA standards for disability for hearing loss are determined by the test results of speech recognition; pure tone threshold average; and/or combinations of both. Various levels of rating percentages can be issued based on the results of the testing. However, for tinnitus, there is specific ways to prove your case with the VA.
Having a nexus statement is very important. Were you exposed to loud noises such as working on a flight line, working with or near explosives; exposed to explosives or gunfire during combat, etc. These can all be used as a nexus statement to show that you had an exposure that probably caused tinnitus. As with most conditions, veterans need the statement “more likely than not caused by….” for their claim to be substantiated. If the tinnitus was not caused by one of those factors, there must be some link to what you are claiming caused it. For example, if you are claiming it was due to medications, you must be able to prove, either with documentation or through lay statements, that you took the medications you say caused the tinnitus. Same with exposure, if you are saying it was caused by exposure to noise or chemicals, you must have some type of statement or documentation backing that claim up.
One thing that is different here than many other medical conditions is that you can use only lay evidence to prove tinnitus. According to a ruling made by the United States Court of Appeals for Veteran Claims on February 9, 2015, in the case of Robert Fountain v. Robert McDonald, Secretary of Veteran’s Affairs; lay evidence may be used to prove the nexus, or link between the tinnitus and service. In the case of Robert Fountain, he had provided timelines of exposure to noises and symptoms to show how they had corresponded.
Also, and this is so important to the VA that they put it in their regulations, the ringing must only be heard by the claimant. Yes, that is true, the VA Schedule for Rating Disabilities (VASRD) actually states that the tinnitus cannot be rated if anyone else can hear the ringing. Hmmmmm.
How High Can I Get Rated?
Unlike most other conditions, there is a limit on how high tinnitus can be rated. Regular or recurrent tinnitus carries a maximum rating of 10%, regardless of how bad it is or whether it is present in one or both ears. It can be rated separately from the condition it is related to such as hearing loss, psychiatric conditions, TBI, or other conditions if it is linked to one, but whether linked to another conditions or not, the maximum rating will always be 10%.
How Many People Have Tinnitus?
Of the approximately 325 million people in the United States, it is estimated that over 45 million; or approximately 14% have tinnitus. Over 150,000 veterans were diagnosed with tinnitus in 2015 alone and over 1.5 million are currently receiving disability benefits for tinnitus. Almost twice as many claims for tinnitus were made last year than for hearing loss, which was the second most filed claim. Tinnitus accounts for almost 10% of all new VA claims and over 7% of total VA disabilities being compensated. Of all recipients of VA compensation; over 1.4 million veterans are receiving compensation for tinnitus; 50% more than the next highest disability, hearing loss.
What do I do if I Have Tinnitus?
If you think you have tinnitus, the first thing you need to do is get a hearing test done. There is no treatment for tinnitus, but you need to make sure it is not something more serious or it is a symptom of some other condition that can be treated. Then, if you have reason to believe it may be service connected, get with a representative or review our website for information on how to file a claim and get your claim started today.
Firstly, what is peripheral neuropathy?
The name tells you quite a bit about the condition: Peripheral: Beyond your central nervous system (brain and spinal cord), Nero: Nerve related, -Pathy: Disease.
You likely went into your doctor’s office because you were having burning, tingling, or even stabbing pain in your foot. Peripheral neuropathy is caused by damage to your peripheral nerves and can result in weakness, numbness, and pain in your hands and feet. It can also affect other parts of your body and cause pain during activities that would otherwise be painless. While many veterans suffer from peripheral neuropathy, those same veterans have never formally been diagnosed with the condition.
The Merck Manual lists the following symptoms of neuropathy: sensory disturbances, muscle weakness and atrophy, diminished deep tendon reflexes, and vasomotor symptoms. Put in layman terms, that area numbness or tingling, burning pain, lack of sensation or difficulty in distinguishing between sharp and dull, or hot and cold, in the extremities. These symptoms can present alone or in any of various combinations.
So, what causes peripheral neuropathy?
The causes of peripheral neuropathy can be divided into three distinct categories: Acquired, hereditary, and Idiopathic neuropathies.
- Acquired neuropathies are caused by environmental factors (and are what a veteran would attempt to get service connected). Environmental factors which could cause neuropathy are toxins, trauma, illness, and infection. Know causes included:
- Poor nutrition or vitamin deficiency
- Certain cancers (or their related chemotherapy treatment)
- Overly aggressive immune system damage
- Certain medications
- Kidney or thyroid disease
- Infections such as Lyme disease, shingles, or AIDS
- Hereditary neuropathies are less common. As the name indicates, these neuropathies are passed from parent to child. The most common is the Charcot-Marie-Tooth disease.
- Idiopathic neuropathies cause is unknown. Almost one-third of neuropathies are classified this way.
Types of Neuropathy: Mononeuropathy and Polyneuropathy
Neuropathies are typically classified according to the problems caused or the root of the damage. This is where we get the terms of mononeuropathy and polyneuropathy.
- Mononeuropathy is damage to a single peripheral nerve. Physical injury or trauma is the most common cause. Mononeuropathy can also be caused by prolonged pressure on the nerve, extended sedentary periods or continuous repetitive motions. Carpal tunnel is a common type of mononeuropathy caused by overuse strain on the nerve that passes through an individual’s wrist. The damage can cause numbness, tingling, pain, and unusual sensations in the first three fingers on the thumb side of a person’s hand.
- Polyneuropathy is damage to multiple peripheral nerves throughout the body. It makes up the greatest number of peripheral neuropathy cases. Polyneuropathy has a wide variety of causes which include:
One of the most common types of chronic polyneuropathy is diabetic neuropathy. Neuropathy will be more severe in those individuals who have poorly controlled blood sugar levels. As with mononeuropathy, common symptoms include numbness, tingling, and loss of sensation in an individual’s arms and legs. (If you are service connected for diabetes, you need to see if you also have a rating for you diabetic neuropathy secondary to that condition.) Sometimes, nerves related to organ function can also be affected. This type of nerve damage can cause diarrhea, constipation, and/or loss of bowel or bladder control, and in some cases sexual dysfunction. Some of these may entitle you to special monthly compensation (or SMC).
Common Problems for Veterans with Peripheral Neuropathy
Common problems we see are that the condition is often misdiagnosed or undiagnosed. There are a number of different reasons this happens, but often veterans fail to report the symptoms because they are intermittent or because the veteran assumes that the problems are the result of aging. A more unfortunate reason that veterans fail to get a diagnosis is that they do not want to be seen as chronic complainers and therefore fail to go to the doctor when they need to.
Misdiagnosis of the condition often happens as a result of failure on the part of medical professionals, both VA and non-VA, to take the time to listen to the veteran’s complaints. At times, providers will fail to order the proper tests for determining whether or not the veteran has neuropathy. Other times, they fail to consider comorbid conditions. Whether the condition has not been diagnosed or has been misdiagnosed, the end result is the same. A veteran is not being granted the benefits that he or she deserves.
Often when rating disabilities, the VA will mistakenly overlook peripheral neuropathy, especially when it is secondary to a condition that is already service connected. Medical literature estimates that up to 50 percent of individuals suffering from diabetes also suffer from peripheral neuropathy. Even with an established relationship between the two conditions, it is not uncommon for a veteran to attend a compensation and pension examination for their diabetes, and the examiner to fail to evaluate the veteran for neuropathy.
Please remember that if a condition is related to service, even as a secondary condition, you should be compensated. Part two of this article will discuss how to get that secondary condition service connected and get you the compensation you deserve.
Thank you for your service.
Living in and near Air Force bases most of my life, my daughter’s favorite saying was “Jet Noise, the sound of Freedom.” We all had the bumper stickers on our cars and, especially during those times when certain politicians wanted to dismantle some of our larger bases, we let them all know that the sound of jet noise was music to the ears of every patriotic American in the world. We also knew that exposure to jet noise leads to hearing loss. All those troops, regardless of which branch they served in, who were exposed to jet noise either on flight lines, in combat, or just sitting in their offices under the path of the planes know all too well the results of the sound of freedom.
New studies have shown that it isn’t just the noise that has affected our troops hearing, it is also the fumes from the fuel. According to studies done by the Center for Disease Control (CDC); JP-5, JP-8, and Jet A fuels, those commonly used in commercial and military aircraft, are responsible for a myriad of health concerns, including hearing loss. While the fuel alone isn’t responsible for hearing loss, the combination of noise and fuel exposure increases the rate of hearing loss substantially over that of just noise exposure. The VA has also been conducting studies and is finding similar results. The problem is not that the fuel actually causes damage to your ears, but that it causes neurological problems in the brain that prevent the brain from deciphering what the ears hear into understandable language. When combined with noise exposure, the risk increases greatly. The study the VA has used worked mainly with JP-8 fuel and showed definitive links to auditory processing dysfunctions among those who had exposure to the fuel.
How the Brain Translates Sound
The sound we hear is captured by the ears and the ears then send electrical signals to the auditory nerve. These impulses are then transferred to the auditory center of the brain. When the auditory center of the brain is triggered, several groups of neurons receive the impulses and translate them into language that our brains understand. This translation allows us to consciously perceive the sounds that we hear. There are three main auditory pathways the impulses must travel through for complete translation. First is the brain stem. This is the area at the bottom and back of our brains that controls our basic functions of the body such as breathing, heart rate, consciousness, and links the rest of the body’s nerve system to the brain.
The next part of the translation occurs at the thalamus. The thalamus is a part of the brain that is responsible for sensory perception and movement. It regulates our body’s voluntary motor control, our sleep/wake cycles, and our senses of sight, sound, taste, touch, and where we are in our environment or our perception of the space around us. It tells us that the chair is right there and if we sit 3 inches to the left we will miss it and fall to the floor.
The final translator is the auditory cortex. At this point, the messages we have heard have already been mostly translated but the auditory cortex finalizes the process, stores what we have heard into our memory and formulates a response, be it language or action.
How Jet Fuel Disrupts Sound Translation
The study of JP-8 showed distinct brainstem dysfunctions after exposure, causing impulses from the ears to not be transmitted properly to the next step in the auditory pathway, therefor causing the brain to be unable to translate what the person hears. Unfortunately, when people affected by this issue take a hearing test, they pass, because they can hear. What they can’t do is translate the language. So they know something is wrong with their hearing but they are not able to explain correctly what exactly is wrong. It is similar to dyslexia, the eyes can see the letters but the brain translates the images in a different order. Someone with dyslexia may see:
which makes it very difficult to read properly. The effect that jet fuel has on the hearing is very similar in the effect of translation.
If you were exposed to jet fuel and are having problems understanding when someone speaks, inform the VA that you need to speak to someone about hearing loss and explain to them about your exposure. Understand that you may need to inform your audiologist about the study and ask them to research it and possibly refer you to someone who has done research on this issue and can evaluate your issue taking your exposure issues into account.
The impact of an injury or disability on a veteran’s life can be far-reaching and multifaceted. A veteran may find themselves having to depend on others to accomplish their basic activities of daily living (ADLs), and this reality that can be stressing to the family dynamic, not to mention the budget. However, there is a little-known benefit offered by the VA that can help veterans and their families offset the cost of additional daily help as part of an “improved pension” plan. Unfortunately, hundreds of thousands of eligible veterans are unaware of this benefit, although it has been an entitlement for more than 60 years.
What is the benefit?
The Aid and Attendance (A&A) veterans benefit from the VA provides additional funds for eligible veterans and surviving spouses who require the regular attendance of another person to assist in ADLs such as eating, bathing, dressing, and undressing, or taking care of the needs of nature. It also includes individuals who are blind or a patient in a nursing home because of mental or physical incapacity. These conditions do not have to be the result of a service-related injury, and care in-home, in an assisting living facility, private pay nursing home, or board and care setting also qualifies.
The A&A Pension can provide up to $1,788 per month to a veteran, $1,149 per month to a surviving spouse, or $2,120 per month to a couple. Additionally, a veteran who is still healthy and independent but has a spouse who is sick and needs daily assistance (and whose combined monthly income has been depleted) can also apply and may be eligible for up to $1,406 per month. Like Social Security, this pension is dependable and is paid directly to you by the Department of the Treasury.
Who is eligible?
To be eligible, a veteran must have served at least 90 days of active duty, with at least one day beginning or ending during a period of war (as designated by VA). A surviving spouse whose marriage ended due to death of a Wartime Veteran may also apply. The individual applying must qualify both medically (his or her physician must verify the need for assistance with ADLs) and financially (this pension is designed specifically to help veterans in financial need). You can take a quick two-minute online survey to determine if your family has VA funds waiting for you to claim.
How do I apply?
To apply for this benefit, the veteran or his or her family should gather the necessary documents, fill out the correct application forms to submit to the VA with the necessary documents, and then mail all of the documents to the correct processing center. Veteranaid.org, a site whose primary purpose is to assist veterans in learning about and accessing the A&A benefit, offers links to all of these documents and a list or all processing centers on its How to Apply page. All of the services and assistance VeteranAid.org offers is completely free.
While you are gathering documents, you can submit a one-page VA Form 21-0966 (INTENT TO FILE A CLAIM FOR COMPENSATION AND/OR PENSION, OR SURVIVORS PENSION AND/OR DIC) which will get the claim into the system. Applications can take anywhere from 6 weeks to a year to approve, although 6-9 months seems to be the average approval time. If an applicant is older than 90 years, families should include a letter requesting that the application be expedited, as the VA is to give priority to applicants in this age group.
The good news is that once the benefit is approved, it is applied retroactively to the date of the application, meaning that you will get back pay. Many care facilities will actually work with a family when they know that the application is submitted and is likely to be approved.
Caring for a sick, injured, or aging family member is difficult enough without a financial burden pressing down. With the benefits included in the A&A pension, veterans and their families can get the help they need to make their lives as healthy and comfortable as possible. For more general information on the A&A benefit, to check your eligibility, or download application forms, visit www.veteranaid.org.
Written by Megan Hammons
|Matthew Hill:||Hello, this is Matthew Hill for the Hill and Ponton VA video blog. I’m here with Carol Ponton and we’re doing a series on what we consider the big mistakes that veterans make that we see again and again that can end up hurting your claim. Today, we want to talk to you about unemployability. There’s always a question as far as when to file unemployability. Just real quick, unemployability is essentially a way to get 100% rating when your combined ratings don’t go up to 100%, but essentially when the VA knows that you can’t work because of your VA disabilities, then they give you unemployability and pay you 100%.|
|Carol Ponton:||You only need to have, you’re not working because of your service connected problem. You get exactly the same benefits as you would for the 100% if the VA, your ratings all added to 100%. It’s a really important benefit, but what we find is people don’t file that. They will file, say a veteran is trying to get a higher rating for PTSD and they can’t work because of the PTSD. As soon as they start filing for PTSD and they’re not working, they should file for unemployability. The unemployability, you file a form. It’s an 8940. You file that. It shows where you last worked and you’re not working now, and you’re not working because of what are the problems. Is it your back? Is it the PTSD?|
|Now, if you haven’t gotten service connected, say for the PTSD, then they’re going to deny you the unemployability, but when you win your case for PTSD, then that unemployability claim is before them and they have to make a decision. What we find is people wait until they’re service connected. Then they file unemployability and the VA, if they give them benefits, they start it when they file that claim.|
|Matthew Hill:||Right, they do a couple of things. One, they started all over again, but two, they put that claim almost in the back of the line. What Carol’s saying is that if your back’s not service connected right now but you’re filing for it, and that’s what’s keeping you out of work and you file the unemployability, you’ll probably have people say, “Well, what are you doing? You’re not even service connected yet.” Essentially what you’re doing is keeping those two issues together.|
|Unemployability, according to the Veterans Court, is part in parcel of a claim. It would be part of the back claim implicitly in that it’s just part of the rating, so you were to get service connected and then that’s part of the rating, but what they do is that if you haven’t filed it as its own claim, then even when you get service connected, you file it, they’re going to treat it as a new claim, separate claim, so you wait, but then on top of that they give you the wrong effective date. They say, “Oh, you handed this on January 1, 2017.” Well, you filed the back claim on January 1, 2015. It should go back then. It seems almost counter-intuitive that you would file those two together, but in the long run if you’re saying that this disability, which you will be at service connected, makes it to where you can’t work. You need to file both.|
|Carol Ponton:||You need to. So many times, a veteran will come to me and we’ll get them 70% for PTSD. That 70% automatically should trigger with the VA if the veteran isn’t working right to unemployability, but that’s not how they do it. Every veteran that comes to me and they’re not working, I file a claim for unemployability because it’s really sad to wait years to get 70% for PTSD and then they say, “Okay, now you can file the 8940 and we’ll get to that in a couple of years.” If you have the 8940, then they will handle both things at the same time and the veteran doesn’t have to wait all that time.|
|Matthew Hill:||Right, and you get your benefits and move on with your life. Well, thank you so much for joining us. Again, this was part of our Big Mistakes series. It’s making sure you file you unemployability form when you file your form. Whenever you file any claim, whether it’s for service connection or for increased rating when you believe that claim’s keeping you from working. Thanks.
We very much want to handle your claims as efficiently as possible and have the best information available to help your case progress more quickly through the VA. Here are some things you can do to assist us:
Check Your Email
If you gave us an email address, check it frequently for emails from us. It is the fastest, most efficient way we can get in touch with you. Keep us posted on ANY changes for addresses, phone numbers, and email addresses.
Return Documents Promptly
Please complete and sign documents we send to you and return them to us quickly. (We can send them to you the quickest via email.)
Keep up with your medical treatment in order to provide evidence for your case.It is important that your medical records accurately describe your condition. Be sure and tell your doctor details of how you are doing. (Don’t say “I’m fine” or “I’m doing okay” when you really are not.) Medical providers often put your statements in your records verbatim as you have described them so be careful what you say! Plus, your doctor needs to know how you are truly doing in order to provide you with the best medical care.
Request Updated Records
Every 6 months to a year, request updated medical records from your medical providers who are treating you for your VA disability-related conditions and send them to us so that your medical information in our files is up to date. If you have a new medical provider (for a disability-related condition or a condition that you have asked to be service connected), obtain those records and send to us, too. (Please note that we do not need your records for your medical conditions that are not related to your disability-related conditions and prefer that you do not send those to us.) We can also order your medical records for you if you cannot, but medical providers & the VA typically will release your records to you more quickly and at lesser cost than they will for an attorney’s office.
Keep Us Informed
Let us know when you receive something important from the VA. Especially important would be a Rating Decision, Statement of the Case or hearing notice. The VA does NOT always send us copies of documents even if the notice says we were copied. We must receive these filings in time in order to file the necessary documents to keep your appeal(s) alive.
Hold Your Calls
Please do not call us periodically just to check on the status of your case. As much as we would like to talk with you, this takes up our time on the phone that we could be better using to prepare your case. If you have something urgent or new to report, that is the time to call or send us an email.
Submit Info in Writing
As much as possible, submit your updated information to us in writing (via an email or written document you can fax or mail to us). Sending information in writing allows us to input it into your records much more quickly than handling a phone conversation and then transcribing it ourselves into the record. Plus the information will be the most accurate as it will be in your own words. If we do not understand what you have submitted to us, we will give you a call to clarify.
The VA gives a lot of credence to testimony from you and others. Get “Buddy Statements” from your family members, friends, co-workers, fellow military members with whom you served, etc. to help provide facts for your claim. (You can provide your own statement, too.) Statements can help to provide a neat, summarized version of details that might describe your medical symptoms (current and past), incidents that occurred while on Active Duty, prior locations where you served (if not in the military record), or other information that may or may not be in the records already or may not be very clear. Buddy Statements are a great way to provide more evidence for your claims. Please do not be concerned that the written testimony may not be in perfect format. If needed, we can put the testimony into a Form 21-4138 (Statement in Support of Claim:) for you and send it back to you (or others) for signature.
Attend Your C & P Exam
Attend any C&P Exam that the VA schedules for you. These are very important and are often a necessary step for the VA to decide your claim. The VA could deny your claim based simply on your not showing up for a scheduled exam. Here is some additional helpful information about what to expect from your C&P exam:
The VA has their own doctors who, either employed or contracted with them, will provide a Compensation and Pension exam, otherwise known as the C&P, for anyone who files a claim for disability compensation or pension benefits. This exam is done by very specific rules that govern the legality of the exam to ensure that the VA does not make any mistakes when they decide the evaluation of the disability. First, if you do not show up, you can be denied benefits, despite the prevalence of medical records in your file or at the VA. However, we also know that C&P Exams cause a lot of anxiety and are not always favorable to the veteran (see our blog on how to prepare for a C&P). So, what can we do about it? We can get an independent medical examination (IME) to either contradict or confirm what the VA finds in its C&P exam. While these exams are often quite expensive, they are well worth the cost when it comes to providing evidence that can turn the tables on a claim that could very well be denied.
Why would the C&P be different from the IME?
Neither the C&P nor the IME doctor makes the decisions about your claim. They are only providing evidence used by the VA to make a determination as to whether you are disabled and to what degree. They are also used to provide evidence as to whether the disability is service connected or not. So let’s look at a typical C&P Exam and then see how it differs from an IME.
First, a C&P is conducted by either the VA or a contracted medical facility. Hence, the C&P examiner is not providing an independent review of the veteran. They are paid by the VA, therefore there is a determined conflict of interest in the fact that they are supposed to be providing a medical opinion. I mean, if your boss asks your opinion, aren’t you going to be swayed just a little to side with his or her view rather than be opposed to it? Even in the most non-oppressive work environments, one can’t help but be swayed by who signs their paycheck. Although, the VA looks at the paperwork your doctor submits as bias as well, favoring a paying customer they want to keep coming in for treatment.
C&P Examiners do not have to always be doctors. With the exception of mental health and audiology exams, the VA regulation states, “VA Medical facilities are responsible for ensuring that examiners are adequately qualified.” So if you are getting a C&P Exam, it may be with a physician, a physician’s assistant, a nurse practitioner, or a clinician in residence.
Who Rates the Medical Opinions that are Provided?
After the C&P is completed, the exam results and all other medical evidence are reviewed by someone who is not a doctor. Yes, not a doctor. That person, usually at the RO, has the task of determining which medical opinion holds more weight than others. A report from a specialist will usually outrank any other opinions or diagnoses from general practitioners or non-specialists. Of course, an MD’s opinion always outweighs a PA’s opinion. At least in theory, but again, this person is paid by the VA, the same organization who pays the C&P Examiner. So, it is always a good idea to have that expert’s advice to outweigh, or at least compete with any potentially negative exam results there may be.
What Exactly is an IME?
An IME is conducted by a physician who has never treated you before. They have no personal interest in you or the VA. They are presented documented facts such as treatment records, service records, lay evidence and statements, and other evidence that supports the claim, with a letter outlining the progression of the claim from injury to claim/last rating decision, by the veteran’s representative. IME trained physicians are trained to use the correct VA language and understand or are guided by attorneys who know the laws and how the report must be written and executed in order to meet all the VA standards.
While this seems like a small point, the VA is hard-pressed to accomplish this task. Between fiscal years 2006 and 2008, the last statistics available from the Office of the Inspector General, an average of 17.2% of all C&P exams were incomplete. They either weren’t signed, credentials were missing, legal language was missing, etc. This average stayed steady across all three years. In 2009, the last year of those statistics, there were 901,436 C&P Exams requested by the VA. That means that over 150,000 exams were incomplete and had to be redone or possibly resulted in an unfavorable or delayed rating for the veteran.
What Benefits are there to Getting an IME?
An IME is completed by a physician, but not just any physician. The IME providers are a select group of doctors who have specializations in the topic they are evaluating, such as an orthopedic specialist for an exam concerning a spinal injury. Another plus they have over their C&P counterparts is that they are also usually physicians who have done their own extensive research studies and have been published and/or teach. One thing, though, that sets an IME physician apart from their C&P counterparts is their Curriculum Vitae (CV). This is basically their resume and provides the VA with a record of their extensive training, any military experience, their published works, qualifications, and educational background. When a Veteran’s representative sends in an IME to the VA, it should always include the CV of the physician who conducted the exam. This alone can weigh the rating towards the veteran’s favor because often times there are no other identifying credentials listed for the C&P examiner, just those listed on the C&P Exam itself which is usually limited to MD or ARNP. By VA regulation, the VA has to determine the probative value of the evidence and rate accordingly. Therefore, the IME should always have an advantage in these situations. For more information on IMEs, see our Blog series on how Hill & Ponton prepares IMEs.
Filing a disability claim is the very first step to being awarded compensation from the VA for your military service. Determining whether or not you are eligible to file a claim for VA benefits is the most important component. There are different qualifications for prior service members, and even non-service members, and multiple ways to be eligible for service-connected compensation.
Are you Eligible?
For more detailed information on dependent and survivor benefits visit our blog Eligibility for Dependent and Survivor VA Benefits.
Types of Service Connection and their Requirements
Direct Service Connection
- must be currently suffering from a disability that began in service
- Had symptoms, or was diagnosed, with a condition that developed into a current disability
- Must prove:
- Recent diagnosis of disability or disease
- Incident in service that could have caused disability or disease
- Connection showing it is at least 50% likely that the incident in service caused the current disability or disease
Service Connection through Aggravation
- Having a condition that existed before service but was made worse during service
- Must show that service caused the disability to get worse, rather than the disability’s natural progression
- Can only be proven by a medical opinion
Presumptive Service Connection
- 41 chronic diseases accepted by the VA as being automatically related to service
- Presumptive period range can vary by disease but, generally, the symptoms must begin within one year of discharge from service
- Must have served on active duty for 90 continuous days to be eligible
- Special types of presumptive claims:
- Agent Orange: may be eligible if you served in Vietnam, or it’s inland waters, between January 9, 1962- May 7, 1975
- Gulf War Syndrome: symptoms for an undiagnosed cause and illness developed during service from January 1, 2007 to present
- Further information, including presumptive symptoms, can be found through the VA’s article “Presumptive” Disability Benefits.
Secondary Service Connection
- Disability caused by an already service connected disability
- example: you injured your knee in service and are receiving compensation, you then develop a hip condition from walking with a limp due to your knee so now you may qualify for secondary connection compensation
- Paired organs: having a service-connected disability in one organ or extremity and a non-service connected disability in the other may result in service connected compensation for both
- example: having service-connected blindness in one eye and blindness developing in the other eye would qualify for service connected compensation for both eyes
- other paired organs: kidneys, lungs, ears, hands, feet
|Matthew Hill:||Hello and welcome. I’m Matthew Hill with the Hill and Ponton Veteran’s VA Video Blog. I’m here with Carol Ponton, and today we’re continuing a series on big mistakes we see veterans make that really hurt their claim. The one I see a lot that’s kind of hard to understand sometimes is the veteran understanding what the goal is. With the VA benefits, to get VA compensation you got to show a bunch of different things. You got to show something happened in service, that there’s a current disability, that the two are connected, and then what the rating is and then what the effective date is.|
|We see, a lot of times, veterans coming to us with a denial, say PTSD. They bring us a rating decision they disagree with and they say, “I was denied. When I was in service I was in combat. I saw a lot of action. I had a good friend die.” They tell us just how horrible their experience was. My first response, and I think Carol will do this too, is, “Well, let’s focus on what’s going on here.” That, the VA finally admitted that this is related to service, but the issue now is compensation. They low-balled you on the rating.|
|Carol Ponton:||They gave you a 10% rating.
|Matthew Hill:||Right. The only thing the rating entails is what’s going on now, how is it affecting you now.|
|Matthew Hill:||In a way, it’s kind of moving the ball, in that I see it, the VA can get you to focus on what happened then versus what’s going on now, you’re not going to win the appropriate level of rating.|
|Carol Ponton:||Right, because the issue is what’s going on now. I think with some of my veterans I do like to say, “Show some of the stressors so it’s clear how awful it was, but then we need to focus on right now. What’s happening to you right now?” I want to know from your wife or your significant other, how is this affecting you. I want to know from you. Do you sleep at night? Do you have nightmares? That’s what you need to focus on. That’s one of the biggest problems with PTSD is, most of the time the veterans don’t know what the issue is.|
|Matthew Hill:||Right, and I guess, it’s kind of hard because if you’re fighting for service connection for this issue, whatever it is, you need to talk about what happened in service and you need to have records or buddy statements or statements of friends who knew you then to prove what was going on. Then you have to have a medical link between that and the current disability. Once you get that disability rated, once the VA finally admits, “Okay, this is related to service,” your whole focus needs to be on, “How do I show them how bad it is? My day to day life, how does this affect me?”|
|You just need to understand that when you’re filing that claim, most likely that’s a claim for an increase or an NOD off an original rating. You need to be thinking, “How is this affecting me and how can I show the VA how bad this is on my life?” We deal a lot with unemployability cases and 100% cases. A lot of times those veterans just, they have such a hard day to day life but they don’t realize it, they’re not focusing on it. They’re focusing on what happened in service, and when they do that they don’t give the VA the evidence they need to rate them at the VA.|
|Carol Ponton:||That’s why a buddy statement, a wife, a special person that’s with you, family members, they see it and they can give us a very good picture. Then that helps us draw out from the veteran, “Tell me what’s going on.” A lot of veterans don’t want to talk about it. I don’t blame them, but this is the one time they need to talk about it in order to get the rating they’re entitled to.|
|Another area I see this in is, for instance, backs. I will have veterans who are clearly injured, have back injuries in the service, and the VA denies the service connection. The veteran is saying, “Look at my service medical records. They show I was clearly injured. Look it, I just had a third back operation. What’s wrong?” What’s wrong is, remember there are three things you need. Something happened in the service. It’s caused a problem that you have right now, and there’s a nexus, that means there’s a medical opinion that says what happened in the service is causing this problem. You need to focus on what’s missing.|
|Matthew Hill:||Right. As Carol said is it, are they not saying it’s related to service? As she said, if that’s the case, is there evidence of something happening in service? Is there evidence of a current diagnosis? Where we see a lot of problems is, is there a medical opinion linking them? If you have that, and frankly the way to know if you have that if you’re filing a claim is, are they already paying you for it? If they’re already paying you for, we said PTSD 10% or back at 20%, well then the issue now is, how much does it affect you now? That’s where the focus needs to be.|
|Carol Ponton:||Right. I think it’s always worthwhile to have buddy statements, no matter what your problem is. It’s important to have medical evidence backing it up. A psychiatrist, an orthopedic surgeon, whoever is treating you.|
|Matthew Hill:||Well thank you for tuning in Hill and Ponton Video Blog. Again, this was a part of our series of big mistakes the vets make that hurt their claim.|
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