Veterans Archives - Hill & Ponton, P.A.

RAMP: Supplemental Claim Lane; New and Relevant Evidence

August 16, 2018/in Veterans /by Cassandra Crosby, Claims Advocate

In the summer of 2017, President Trump signed into law the Appeals Modernization Act establishing a new process for the VA in the way they handle benefit processing. The Act is designed to improve timeliness, provide more transparency, and be fairer in an effort to improve benefits for veterans. The Act is expected to go into effect in February 2019.

RAMP, the Rapid Appeals Modernization Act, is an invitation for veterans to enter into the program earlier than the February 2019 date and gives two options for veterans to participate, either the Supplemental Claim or a Higher-Level Review Claim. As of April 1, 2018, all veterans who have a claim on appeal are eligible to participate in RAMP. However, the question is, should you?

Supplemental Claim Lane

The Supplemental Claim Lane is designed specifically to allow veterans to submit new evidence to support their claim. The VA is under obligation to provide “Duty to Assist” by law with these appeals. In order to be eligible, a veteran must have an active appeal for a disability claim at one of the following levels:

Have filed a Notice of Disagreement (NOD);
Have filed a VA Form 9 (Appeal to the Board of Veteran’s Appeals – BVA)
Have been certified to the BVA; or
Have a remand from the BVA.

Veteran’s can “opt-in” by sending in a signed opt-in form which allows them to transfer their claim to the RAMP program and submit new and relevant evidence in support of the claim. The longer it takes for the new evidence to be submitted, the longer it will take for a decision to be made. The VA is stating they expect to complete supplemental claims within 125 days.

New and Relevant Evidence

One of the big questions is what exactly “new and relevant” evidence is. The terminology is different than what the VA required previously; new and material evidence, and no ruling has yet to be made on what makes “material” different from “relevant.”

Material evidence was defined previously as “relevant and related to an unestablished fact necessary to prove the claim. It must have a legitimate influence or bearing on the decision, and cannot be cumulative or redundant.” In the legal world, material evidence is offered to prove an issue is true.

Relevant evidence seems like it should be the same as material. However, in the legal world, relevant evidence must be material or have probative value, which means it must show the issue is more or less likely true, it does not necessarily have to prove anything. This seems like a lesser degree of weight required for evidence, but again, there is no official ruling by the VA as of yet. This is actually more in line with the VA’s policy of siding towards the veteran, but is still something we will be watching closely as decisions are rendered.

Once a claim has been denied due to evidence not being new and relevant, an appeal will come forth to request a definition from the VA. However, we are still waiting on definitions for and clarification on so many other legal terms used by the VA, it may be years before a clearer understanding of the difference in required evidence is made.

One of the most important things to remember is to gather all your evidence PRIOR to opting into the RAMP Supplemental Claim Lane. The VA still has to develop evidence at their end, and waiting to submit evidence after you have opted in will only slow things down.

What Can Be Submitted as New and Relevant Evidence?

First, the evidence must be new, something the VA has not seen before that is not redundant or a repeat of records already reviewed. For example, new records from treatment provider showing the same diagnosis will not be considered new, but records showing an increased level of severity or a new diagnosis concerning the same issue will be considered new. An independent medical evaluation is considered new evidence. Relevant means, for the sake of this article, that it has to do with the issue(s) on appeal. Filing evidence of a psychiatric diagnosis is not relevant to a back condition, unless there is a diagnosis of pain syndrome that is causing the mental health condition. In other words, the evidence submitted must be linked to the condition on appeal, even if it is a secondary condition due to the original issue claimed.

Evidence can come in many forms:

Lay evidence: a statement from a non-professional that attests to the veteran’s behaviors or physical conditions that has not been previously submitted and the VA has no previous knowledge of. For example, on a PTSD claim, submitting a statement from a parent stating how the veteran’s behaviors have changed from prior to service compared to after service.
Medical treatment records: from a treatment provider, private or the VA, that includes new information such as a new diagnosis, an increased level of severity, or a secondary diagnosis related to the issue on appeal.
Independent medical opinion: an opinion from an objective provider who has nothing to gain from or investment in either the veteran or the VA. The provider is presented with documented evidence of the claim, the same evidence the VA has reviewed, and provides their unbiased opinion of the facts.
Service Records/Service Medical Records: Any service records the VA has not already reviewed that have new evidence of the issue such as treatment records showing the veteran received treatment for the condition in service where no records had been reviewed prior or of an event that is related to the condition. This can also include the service records of other service members who served with the veteran. For example, if a veteran is appealing a denial of PTSD and another service member in their unit received a purple heart for being injured while they were stationed together due to an IED, that would be new and relevant evidence.

As with any new program, there are always bugs to work out. The VA’s claims of decisions in 52 days are not coming to light as of yet for most veterans, and many are not meeting the 125 day deadlines either. Ask your representative or attorney to review everything before you submit it because as the laws are written to make things faster and simpler, they seem to always make them more complicated.

Servicewomen Long-Term Mental Health

August 13, 2018/in Veterans /by Brenda Duplantis, Accredited Claims Agent

As of September 2017, there were approximately 19 million women veterans in the United States, Puerto Rico, and foreign U.S territories. Is the women’s long-term mental health impact of service the same as their male counterparts? Overwhelming studies have shown that it is not and despite the research VA mental health care providers are lagging behind in serving the women veteran population.

Servicewomen continue to deal with a culture of bias, harassment and sometimes assault while serving their country. In addition, active duty women must endure and figure out a way to manage long family separations and combat deployments. These issues are hardly addressed while on active duty. Some women are concerned about seeking care because of a perceived potential impact on their security clearance. After the transition from active duty to veterans, women veterans are significantly more likely to face mental health challenges than veteran men. Veteran Affairs data shows that women veterans are 250% more likely than civilian women to commit suicide.

There is also the issue of women being categorized as “housing insecure” instead of homeless. Housing insecurity is defined as high housing costs in proportion to income, poor housing quality, unstable neighborhoods, overcrowding, or homelessness. The number of women among homeless veterans increased from 7.5% in 2009 to 10% in 2011, while they were just 7% of the total veteran population.

Why does this happen? Many young people join the military before ever having stable permanent housing. The military takes care of all housing needs but it is transitional. After discharge, many of move home, to their parents’ house, or to “couch surfing.” They return oftentimes with no credit, no rental history, and find themselves in increasingly unstable and unsafe places. If they find themselves without a place to live, they use the GI Bill to pay rent and bills rather than to graduate. They become conditioned to housing instability.

This situation is further compounded by the statistic that Iraq and Afghanistan Veterans are more likely to have experienced than other cohorts multiple deployments, have service-related disabilities, higher rates of PTSD, and military sexual trauma. In addition, studies have shown that women service members experience isolation, alienation and sometimes threat in larger scales than their male cohorts.

The VA is undergoing a major reorganization to transform the way it provides services for its veterans nationally. This includes addressing chronic homelessness for returning veterans, but there is still a lot of room for improvement. Veterans have expressed the need to improve transition services for men as well as women whether it be reintegration when they are leaving military service or demobilization after a combat tour. Recommendations for gender-specific transition and demobilization assessments and services have been made by many groups. Although some effort has been made by the Department of Defense (DOD) to address this gap it appears to be inadequate because mental wellness is not improving. Servicewomen have a very different experience of deployment and transition and programs must be tailored to meet women’s specific needs. The VA and DOD must come together and jointly reach a solution that provides a continuum of care that is gender specific with proven lasting improvement in the mental wellness of the women who serve this nation.

If you find yourself struggling with housing insecurity or would like more information about VA services for the homeless, call to 1-877-4AID-VET to connect with VA.

How Does VA Determine A Psychiatric Disability Rating?

August 6, 2018/in PTSD, Veterans /by Shannon Brewer, Senior Attorney

For all service-connected disabilities, the VA references its own rating schedule, and the criteria listed therein, in determining the appropriate rating. Most common disabilities are listed on the rating schedule, and for those that are not listed, the VA assigns an analogous rating by choosing a similar disability on the rating schedule which has the same types of symptoms as the unlisted disability. For psychiatric, or mental, disabilities, the VA uses a General Rating Formula For Mental Disorders. So whether your disability is PTSD, Bipolar Disorder, Anxiety, or Depression, the VA rates all of these disabilities on the same rating schedule, looking at the same range of symptoms.

This general formula can actually be beneficial to a veteran because psychiatric diagnoses can be fluid. I have seen files where a veteran has been treated by multiple doctors, and each doctor assigned a different diagnosis, from schizophrenia to adjustment disorder to PTSD. While it is important that your psychiatrist or other mental health professional knows all of the details of your condition so as to provide proper care, as far as the VA disability benefits system is concerned, the diagnosis is less important than the range of symptoms exhibited by the veteran.

0% Rating

Let’s discuss how the rating schedule for mental disorders works. I don’t see a noncompensable rating assigned very often for mental disorders, but sometimes the VA will determine that a veteran, while diagnosed with a mental condition, does not have any symptoms that interfere with occupational and social functioning or require continuous medication. In that case, the VA will assign a 0% rating.

10% Rating

A slightly higher rating of 10% is assigned where a veteran’s psychiatric symptoms are completely controlled by medications. A 10% rating might also be assigned if the VA psychiatrist determines that the veteran has only mild symptoms or symptom that come and go which only impair the veteran very rarely, for instance under periods of high stress.

30% Rating

When a veteran’s psychiatric symptoms begin to impair the veteran’s work efficiency more often or more intensely, a 30% rating would be assigned. For this rating, VA is looking at symptoms such as depression, anxiety, panic attacks which happen weekly or less often, chronic sleep impairment, or mild problems with memory. This rating is assigned when the veteran is generally functioning well but does have occasional problems socially and occupationally.

50% Rating

The more often a veteran is experiencing psychiatric symptoms, or the more serious those symptoms are, the higher the rating. A 50% rating is assigned in cases where the veteran is experiencing more consistent problems with work and socially. Here, the VA would be looking for symptoms such as panic attacks more than once per week, impaired judgment or thinking or speech, disturbances of mood and motivation, or difficulty with effective work and social relationships.

70% Rating

A higher rating of 70% is assigned where the veteran has occupational and social difficulties in most areas, such as with work and school, family relationships, judgment, thinking or mood. To assign a 70% rating, the VA must find symptoms such as suicidal ideation, ritualistic behaviors, illogical speech, nearly continuous panic or depression, impaired impulse control, difficulty adapting to stress, neglect of personal appearance or an inability to maintain relationships (work or social).

100% Rating

Finally, a total disability rating is assigned in only the most severe cases. To be rated 100% for a mental disorder, the veteran must demonstrate gross impairments in thought or behavior, persistent delusions or hallucinations, an intermittent inability to maintain hygiene and/or perform personal functions, disorientation to time or place, or present a persistent danger of hurting self or others. Of note, we find that many veterans who are at the 70% level of impairment still find themselves unable to work and 100% occupationally impaired even though they don’t meet the criteria for the 100% schedular rating. For those veterans, it can be helpful to apply for individual unemployability as an alternate route to a total rating.

It’s important to know that for each of these categories, a veteran need not suffer from every symptom listed. The VA is supposed to look at all of the veteran’s symptoms and determine into which category he or she most closely fits. A veteran should make sure to report all of the symptoms he or she is experiencing, whether they are on the list or not, so that VA can appropriately consider the veteran’s entire disability picture when assigning a rating.

Fire Fighting Foam…Deadly in the End

August 2, 2018/in Veterans /by Cassandra Crosby, Claims Advocate

Perfluorooctane sulfonate or perfluorooctanoic acid, also known as PFOS and PFOA, are man-made chemicals used to make items heat or water resistant and found in a range of everyday items such as take-out food wrappers, no-stick cookware, and clothing. The military also uses the chemicals in highly concentrated foam to put out petroleum-based fires.

In the 1970s, the Department of Defense started using aqueous film forming foam (AFFF), which contained high concentrations of PFOS to extinguish specific types of fires such as aircraft/jet fuel fires. The problem with PFOS and PFOA is that, unlike other chemicals, they do not degrade over time in the environment. Most are found to accumulate in groundwater and find their way into local drinking water supplies.

In 2000, the only US manufacturer, 3M started phasing out the use of PFOS and PFOAs due to the tendency of the chemicals to build up in human tissue. DuPont was using the compound under the name of C8 and marketing it as Teflon. When 3M stopped production, DuPont built a factory to start producing the chemicals.

Due to several lawsuits against DuPont, several studies were conducted over the years on the impact of PFOS and PFOAs on humans. A study in 2004 by Dr. James Dahlgren, a nationally known toxicologist, identified increased risks of prostate cancer, Hodgkin’s lymphoma, leukemia, and multiple myelomas. In 2012, scientists at Emory University identified similar conditions between individuals who were exposed at the DuPont factories that manufactured C8. Workers showed a three-fold increased risk of mesothelioma or chronic kidney disease and a two-fold increased risk of developing diabetes mellitus Type 2, kidney cancer, and non-cancer kidney diseases. The EPA has also linked the chemicals to low birth weight, accelerated puberty, skeletal variations, liver effects (tissue damage), immune effects (antibody production and immunity), thyroid effects and cholesterol changes.

DuPont itself conducted medical studies on the chemicals as far back as the 1960s that showed liver damage in animals. One study showed the compound bound to the blood’s plasma proteins. In 1981, 3M found the chemicals caused birth defects in rats and informed DuPont. DuPont reviewed births of their employees and found two birth defects of seven recent births and did not inform the EPA of the information or the 3M study. By the 90s, DuPont was aware that C8 caused testicular, pancreatic, and liver tumors in lab animals but again, failed to inform the EPA. In 2006, eight major global manufacturers agreed to stop production of the chemicals.

The EPA studies are specific that exposure is through drinking water and not food ingestion or skin exposure. 3M originally informed DuPont when they began purchasing the chemicals that PFOS and PFOA were never to be disposed into the water, only incinerated. Several lawsuits show that DuPont dumped tons of the chemicals into groundwater sites at their manufacturing facilities.

Most people who come in contact with PFOS and PFOA are exposed to such low levels that there is no expectation of harm. However, because of the high concentrations used in the AFFF, those who lived and worked on particular military installations may be at risk of developing certain conditions. In addition to kidney conditions, the Pentagon has found that PFOS and PFOA are linked to developmental delays in fetuses and infants. In March 2018 report to the House Armed Services Committee, the Pentagon publically listed the full scope of the known contaminant, a first in their history.

The list included over 90 military sites that reported either on-base or off-base drinking water or groundwater contamination where the levels tested above the EPA’s acceptable levels of PFOS or PFOAs. Here is a complete listing of all bases and BRAC bases affected, including those overseas.

Records from a law firm in Philadelphia show that the federal government was aware of the groundwater contamination near several bases caused by PFOS and PFOAs. Despite this knowledge, the military continues to use the firefighting foam AFFF. While the military is replacing the older version of its foam, the new version still contains PFAS, a shorter chemical chain of the PFOS compound, which exits the body faster but still accumulates in the blood and other tissues. It also does not break down in the environment just as the older chemicals.

But there is a viable alternative…..

3M developed a fluorine-free foam that tested equally as well as the AFFF for putting out jet fuel fires set by the International Civil Aviation Organization. However, after a first failed test (by 9 seconds), the Navy refused to pursue modifications to meet their standards and never adopted the foam. DuPont has lobbied heavily against this product with the Department of Defense.

If you are a military veteran who has experienced one of the conditions below and feel you were exposed to contaminated groundwater at one of the bases listed on the Pentagon’s report, you may be eligible for compensation from the VA or a class action lawsuit.

PTSD: Basic Criteria

July 31, 2018/in PTSD, Veterans /by Rachel Cheek, Attorney

Post traumatic stress disorder (PTSD) is a recognized psychiatric disorder that a person may develop after exposure to a traumatic event. For many years, PTSD went widely undiagnosed or was not recognized as the serious condition it is. Thanks to advancements in research and the breakdown of social stigmas, we have more information about the condition than ever before. We know that the majority of people who are exposed to traumatic events do not develop PTSD, and we know that veterans of the U.S. military are disproportionately affected by PTSD when compared to American civilians.

This blog post is intended to serve as a brief breakdown of the required criteria for a diagnosis of PTSD as defined by the fifth edition of the Diagnostic and Statistics Manual of Mental Disorders (DSM V), published by the American Psychiatric Association.

Criterion A: Stressor

In the context of PTSD, the stressor is the traumatic event that leads to the development of PTSD. The precise definition of “traumatic event” is contested, but the DSM V requires exposure to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence. This exposure must have occurred in one of the following ways: direct exposure; witnessing the trauma; learning that a relative or close friend was exposed to the trauma; or indirect exposure to details of the trauma, often in the course of professional duties (for example, a paramedic treating victims of a serious motor vehicle accident would be indirectly exposed to the traumatic event of the motor vehicle accident even if she did not witness the accident herself).

Criterion B: Intrusive symptoms

Not everyone who is exposed to a traumatic event will develop PTSD. In order for a person to receive a diagnosis of PTSD, the DSM-V requires the person to show at least one intrusive symptom. Intrusive symptoms can manifest in sudden upsetting memories; nightmares or bad dreams; flashbacks to the traumatic event; emotional distress after reminders of the traumatic event; or physical reactivity following reminders of the traumatic event (for example, an increased heart rate after exposure to reminders of the traumatic event).

Criterion C: Avoidance symptoms

The third criterion for a PTSD diagnosis is avoidance of reminders of the trauma. This could be an avoidance of thoughts or feelings about the event or avoidance of trauma-related reminders altogether. A person who suffered sexual assault may display avoidance of thoughts and feelings of the assault and do their best to never think about the event. Someone who witnessed a person drowning may avoid trauma-related reminders and stay away from pools or bodies of water. For a diagnosis of PTSD, the presence of at least one of these symptoms is required.

Criterion D: Negative alterations in cognition and mood

A person who receives a diagnosis of PTSD must display at least two of the following symptoms following the stressor: inability to recall key features of the stressor; overly negative thoughts or assumptions about oneself or the world; exaggerated blaming of self or of others for causing the trauma; negative affect (having a flat or depressed mood); decreased interest in regular activities; feelings of isolation; or difficulty experiencing a positive effect (having a hard time feeling happy).

Criterion E: Alterations in arousal and reactivity

For a diagnosis of PTSD, at least two of the following symptoms that began or worsened after the stressor must be present: Irritability or aggression; risky or destructive behavior (for example, driving recklessly); hypervigilance (for example, not being able to relax for fear that something bad will happen); increased startle reaction; difficulty concentrating; or difficulty sleeping. These alterations in arousal and reactivity are a defense mechanism for preventing further trauma.

Criterion F: Duration of symptoms

Even if a person fulfills all the required criteria, a diagnosis of PTSD requires persistence of the symptoms for more than one month. A person may fulfill all criteria immediately following a traumatic event but two weeks after the event may display fewer or none of the required symptoms. Although the criteria were present for a time, the person would not meet the duration requirement.

Criterion G: Functional significance

The PTSD symptoms experienced by the person with the diagnosis must create distress or functional impairment in a person’s life. For example, a veteran who suffers from PTSD and currently works in an office setting may find that his job performance is impacted by difficulty concentrating or increased irritability with his coworkers. A college student who experienced sexual assault at a party may find that their friendships are affected by their negative affect, hypervigilance, and their avoidance of other social events.

Criterion H: Exclusion

In order to meet the criteria for a PTSD diagnosis, the symptoms must not be caused by medication, substance abuse, or any other illness.

This is an extremely simplified discussion of PTSD intended to provide clarity to a frequently-discussed condition. Follow-up blogs will address specifications of the diagnosis as well as the issue of PTSD as it relates specifically to veterans seeking service connection.

Video Blog – Buddy Statements for Service Connection

July 27, 2018/in Featured, Veterans, Veterans Videos /by Matthew Hill

Matthew Hill:	Hello, I’m Matthew Hill here with Carol Ponton, on the Hill & Ponton VA Video Blog. It’s a day we’re talking to you about buddy statements.
Carol Ponton:	Buddy statements.
Matthew Hill:	It’s a third in a four-part series on buddy statements and their importance in your claim. The first one was just the overall importance of buddy statements, and then we talked about how to create one.
	Now we want to jump into specifics. Here we’re going to talk about service connection claims, proving that your disability is related to service and using buddy statements to do it. We see this right now where we seem to see this a bunch is with Thailand and veterans trying to prove they’re exposed to agent orange, herbicides, while they were in Thailand and using other veterans to help for that.
	Carol, what do you see?
Carol Ponton:	It’s crucial to proving these cases. Unfortunately, the VA seems to take the position that nobody worked on the perimeter, although the perimeters are so close to everybody. What we have-
Matthew Hill:	It’s like since everybody worked on the perimeter, nobody worked on the perimeter.
Carol Ponton:	Right, and so we found that we’re able to get benefits for veterans with buddy statements. We try to get someone that we can show that was in his unit, someone replaced him in his unit, someone worked with him on the flight line, and says, “I saw them spraying,” or one of the things we have is Thailand’s a jungle.
	There was no jungle around our base. You could see the jungle off in the distance, but all you saw coming up close was dead foliage. Periodically, somebody would come around and spray it. There was never a lawnmower there. There was always spraying. For that reason, I know that this was herbicide that was used there, and it killed all of the foliage. These are ways to get people benefits.
Matthew Hill:	Right, and so going back to what she was saying, having somebody there, and again, laying out the predicate, laying out the foundation of, “My name’s Jimmy Smith. I served in this unit in the Army. We were stationed at this base in Thailand,” and just going down the ladder of all those things and then saying, “While I was there, I was in a hooch, and we were 15 meters from the actual perimeter. I worked on the flight line, which might have been 50 meters from the perimeter. Bob Jones was in my unit, and we worked together. We were there for 10 months,” so just laying out what the person knows, how they are connected to either the veteran or the place and time. Then that just gives further evidence of what was going on with the veteran.
	With Thailand, it’s just the VA stance is just nonsensical. They’re making each and every veteran fight this as if they grant benefits for one of our veterans saying, “Okay, you were close to the flight line. Therefore, you were close to the perimeter, and we’ll give you benefits.” But when it comes to the next veteran-
Carol Ponton:	You’ve got to start all over again.
Matthew Hill:	It’s like they have amnesia.
Carol Ponton:	One of the things that we use for a buddy statement is maps, photos. It’s really important to take a photo of the base and show where were you living, where were you working. When you went off base, did you go across the perimeter? Then I have veterans that have the hooches that maybe they lived in that had no windows. They would talk about the fact that there would be storms blowing dust through there, or that they would have … one of them had a garden and said the people who went around spraying for herbicides and killed their entire garden.
	What you want to do is draw a picture. The clearer you can make it for the VA, the better chance you have of winning. The more people that can verify this is what was going on, the better chance.
Matthew Hill:	Right. It’s your story, and you’ve got to tell your story. The VA doesn’t believe your story, so you need to have supporting characters. You need to have others verify what they can of your story. Again, this is one of the most important pieces of evidence you get, because you can create this. You are in control of this to the extent that you know people who are there with you. You know people who served where you served, and you can get their statements to help you win your case.
Carol Ponton:	Exactly. If you’re not in touch with someone, you don’t know how to get a hold of them, go online. There are a lot of people now that are going online searching for other people or people that have put statements online, because they’ve been so frustrated about what happened to them. There are pictures of Udorn or all the other bases in Thailand. You can bring that picture, make a map yourself of what happened, and then give it to your friend for them to identify.
Matthew Hill:	Just, yeah, say where they were.
	Thank you again for tuning in. This is a third part in a four part series on buddy statements. Again, we talked today about service connection and how you can get your case connected to service through the help of buddy statements. The next one we’re going to do is going to be on increased rating and buddy statements. Thanks.

Understanding Individual Unemployability Benefits

July 26, 2018/in Unemployability, Veterans /by Amanda Dejesus

Often times, when a veteran is applying for VA disability benefits, they are unable to sustain a substantial gainful employment. This can be very frustrating combined with the fact the VA appeals process can be quite challenging. Individual Unemployability (IU) benefits or Total Disability based on Individual Unemployability (TDIU), is a benefit offered through the VA that allows them to pay select veterans at the 100% disability rate even through their service-connected disabilities are not rated as 100% disabling.

Eligibility and Required Evidence

It is important to note that there is a certain eligibility criterion that needs to be met before a veteran can be considered for IU. The eligibility criterion is as follows:

You must be a veteran
You must have at least one service-connected disability rated at 60% or higher
Or have two or more service-connected disabilities with one being at least one disability rated at 40% or more with a combines rating of 70% or more
You must be unable to maintain substantially gainful employment as a result of service-connected disabilities

Evidence:

A veteran must not only meet the eligibility requirements for IU to receive this benefit but they must also show certain evidence. The veteran must show evidence of at least one service-connected disability and the service-connected disability or disabilities have to prevent the veteran from performing any mental and/or physical tasks that are required to obtain or maintain substantially gainful employment. It is very important to note that marginal employment such as odd or side jobs are not considered gainful employment for VA purposes.

Substantially Gainful Employment and Sheltered Work

What is substantially gainful employment? It is employment that proves a wage greater than the poverty level. For a single person, as of 2016, the poverty threshold is close to $12,500. This comes from the U.S. Census Bureau. Simply put, if the veteran’s earnings are less then the threshold, then they are not considered to be gainfully employed.

It is possible to work and obtain IU benefits. The VA does recognize that some jobs are considered to be “sheltered work”. This is a protected employment or a “sheltered” work environment that would provide special accommodations to the veteran that would not be provided to any other employee. If you are a veteran wondering if you work in a sheltered environment, you can ask yourself if you were to leave your current position, would your employer replace your current position? Is your current position created just for you and your disabilities?

For veterans who are still working and do not work in a sheltered work environment, but still need to work for financial purposes, or for those veterans who do not want their employer to know about their disabilities, it may still be a good idea to apply for IU. Once the veteran is no longer able to work due to their service-connected disabilities, and they meet the other eligibility requirements, then that veteran would be covered so to speak and continue in the VA appeals process.

Something to keep in mind would be that this benefit is not for veterans who are going to temporarily out of work.

Applying for Individual Unemployability Benefits

The first step is to complete the VA Form 21-8940: Application for Increased Compensation Based on Unemployability. This form can be found here. Along with this form, evidence to help prove this claim should be submitted. This can be a letter or an opinion from the veteran’s doctor or an expert stating that the veteran is unable to maintain substantially gainful employment because of their service-connected disabilities.

Service Connection by Aggravation

July 24, 2018/in Veterans /by Nicholas Wright, Attorney

There are many different ways to get service connection for your disability from the VA. While direct service connection is the more traditional route: a veteran receives a disability while in service and the VA awards service connection. There is also a secondary service connection, which provides compensation for conditions due to service-connected disabilities. But what happens if the condition you want compensation for existed prior to your service? The answer is service connection by aggravation.

38 U.S.C. § 1153 provides that “A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” A veteran claiming his or her disability was aggravated in service usually is granted service through the Presumption of Aggravation.

There are a few requirements to trigger the Presumption of Aggravation:

First, the condition must have existed prior to military service.

This is usually shown through a veteran’s entrance examination that will make note of a specific disability. If a veteran’s disability is not noted on an entrance examination, the veteran is entitled to the Presumption of Soundness and does not have to prove aggravation unless the VA rebuts this presumption by clear and convincing evidence. Click to read more on the Presumption of Soundness.

Second, the disability must have worsened during service.

The burden of proof here is on the veteran to show—usually through medical records or expert opinions—that the condition worsened in service. Documentation of treatment for a disability during service is one way to show worsening. Another way is to have a medical expert compare the veteran’s disability before service to its state just after service.

Third, the worsening of the disability must be above and beyond the natural progression of the disability.

Certain disabilities naturally get worse over time. The VA will only compensate veterans if the disability was worsened past the extent it would have worsened had there been no service at all. Again, a medical expert is usually required to give his or her opinion on whether the worsening in the veteran’s condition was above and beyond the natural progression of the disability.

Finally, the worsening must be permanent.

A temporary worsening in the veteran’s condition, only for it to improve back to the level it was before service is not compensable. This can be shown through records of continued treatment of the condition, or by a medical expert’s opinion that the condition has remained permanently aggravated.

A few final thoughts on the Presumption of Aggravation—one, the condition must have been worsened during active duty service. Two, the veteran does not have to prove a specific in-service event aggravated the condition—it is only required to show that the disability worsened during service. And three, the worsening in the veteran’s condition does not have to be dramatic enough to warrant a higher rating under the VA’s disability rating schedule.

5 Things You Should Know in Supporting an Addicted Loved One

July 23, 2018/in Veterans /by Hill & Ponton P.A.

Watching a person you love struggle with addiction is challenging, frustrating and often painful. It may leave you feeling underappreciated, taken for granted and helpless. You might also be unsure about how to help your loved one or support her in a healthy way.

The hard truth is, unfortunately, you can’t force someone to get help. And until your loved one is ready to admit she has a problem, it may be very difficult to watch.

A person struggling with addiction may not be ready to seek help and is often in denial about her substance abuse. While you can’t make the decision for her, you can still be supportive as she reaches for recovery.

Here’s what you should know in supporting an addicted loved one:

Educate Yourself About Addiction

One of the best things you can do is to learn about addiction. Many people think of addiction as a moral failing, but it’s actually a disease of the brain. Once someone becomes dependent, the chemical makeup in the brain changes and addiction takes over.

Addiction is often a co-occurring disorder, too. That means your loved one may also be struggling with mental health issues, such as anxiety, depression or obsessive-compulsive disorder. Understanding the nature of the beast can help you realize your loved one is not necessarily choosing his addiction.

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Just remember, it’s important to support your loved one without enabling his addiction. Refrain from enabling behaviors, like helping your loved one get drugs, loaning him money or paying his bills.

Know How to Speak With Someone in Active Addiction

Knowing the right conversations to have — including what to say and what not to say — can be pivotal. Obviously, addiction is a hard thing to talk about. Here are few pointers on how to dialogue with your loved one:

Remain calm and collected.
Honestly express your love, concern, and care for her life.
Be authentic and open, while also conveying that you’re serious about getting her help.
Share your desire to be supportive, and demonstrate you’ve educated yourself.
Don’t be forceful or shame/guilt your loved one about her habits.
Be prepared for denial or negative responses.
Avoid threatening or demoralizing your loved one.

Understand That Addiction Is a Family Affair

Living or interacting with someone who’s dealing with an addiction is no easy feat. Everyone around an addicted loved one suffers in their own way. Educating yourself and being patient, compassionate and as loving as possible can go a long way in helping you navigate tough moments.

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When your loved one is ready for help, knowing what treatment options are available, how insurance works and what detox or withdrawal symptoms are like will come in handy. Keep in mind that intervention is always a viable option if the circumstances become life-threatening.

Maintain Boundaries and Have Your Own Support System

Dealing with someone who’s addicted to drugs or alcohol can be emotionally and mentally taxing. That’s why it’s important for you to have people you can lean on, too, and know what healthy boundaries you can put in place to stay grounded.

Joining a support group such as Al-Anon or a 12-Step program for family members affected by addiction is a great way to help you feel supported on your own path.

Learn How to Support Your Loved One After Treatment

Ideally, the goal in supporting an addicted loved one is to get him into treatment. However, addiction recovery goes way beyond detox or treatment.

Helping your loved one integrate back into his life after treatment is crucial to sustaining his recovery. Be willing to attend meetings with him, and provide a supportive environment free of triggers, stress or substances as he learns how to return to his life.

If someone you love is struggling with addiction, help is available. Contact us today to learn more about how to help your loved one get on the road to recovery.

Carly Benson, a writer for Skywood Recovery
As an avid traveler, yogi & confessed self-help junkie, Carly writes about her adventures in life & sobriety on www.MiraclesAreBrewing.com where she offers inspirational concepts & coaching for recovery, faith & living an intentional life.

What if the VA Sends Me a Notice Proposing to Reduce My Disability Rating?

July 16, 2018/in Veterans /by Robin Rosenblad, Claims Advocate

There are times when the VA might review a disability rating you have had in order to determine if your condition has improved. If the VA is considering lowering your rating in this situation, try not to panic as there are some procedures the VA must follow and things you can do to assist your case.

First of all, you must realize that simply receiving the letter proposing the reduction does not mean that your benefits have been taken away. You will continue to receive your benefits until such time as the VA makes a decision about the proposed reduction. The VA is required to provide a claimant with written notice prior to enacting the reduction so it should not occur without notice to you. The VA must also allow a period of at least sixty (60) days to allow the claimant to provide additional evidence of how the service-connected condition has not improved.

Request a Hearing

First and foremost, it would be wise to request a hearing with the VA regarding the proposed reduction. You must request the hearing within thirty (30) days of the date of the VA letter proposing the reduction. The VA then cannot reduce your rating without having the hearing (which typically takes some time) and will allow you more time to provide that additional evidence.

After requesting a hearing, there are other things you can do.

To assess your current condition, the VA might require that you undergo another disability C&P exam. If one is set for you, DO attend it! Be forthright and let the examiner know all the symptoms you are still having and how often they occur. (If you do not attend the exam, the VA will have the right to reduce your rating.)

Obtain “buddy statements” from family, friends, co-workers, etc. regarding how your condition still affects you. They can describe details of instances they recall where you were unable to participate in certain activities or events due to your medical condition or how they and others have had to assist you in order for you to manage your home life or work life because of your disability. If someone has known you quite a while, they can possibly attest to how your condition has actually worsened over the past year(s), months, etc.

You can obtain copies of your medical records where you have told your doctors about your ongoing symptoms and you have continued to receive treatment for them. Then, you can prepare a statement yourself talking about the conditions you still have and point out entries in your medical records that confirm this and attach those pages to your statement.

The VA is not supposed to reduce your rating simply because you may have had a short period of improvement. It is only supposed to reduce a rating if a veteran’s condition shows “sustained, continual improvement.”

If the VA reduces your rating anyway, you can still appeal it so long as you do so within one year of the rating decision.