Veterans Archives - Hill & Ponton, P.A.

Weeds not worth killing with RoundUp?

September 25, 2018/in Veterans /by Cassandra Crosby, Claims Advocate

Glyphosate, the main ingredient in RoundUp was developed by a scientist at Monsanto in 1970. By 1974, Monsanto had started marketing RoundUp as a broad-spectrum herbicide. It was purchased not only commercially but also by individual consumers and has become Monsanto’s highest producing seller. Nothing works better to keep those pesky weeds out of the cracks of your driveway….one squirt and three hours and they were dead. Americans across our lawnscaped land use glyphosate to keep weeds out of their gardens, keep their lawns pristine, make sure gold courses are green and lush, and even to make sure their children’s play areas and sand pits are free of any prickly weeds. We use glyphosate at home, commercial buildings, parks, community gathering areas, golf courses, theme parks, highways and roadways, schools, churches, government buildings, and everywhere else there is greenery we want looking nice and weed free. We love killing weeds so much, that in 2014, Monsanto sold enough glyphosate to have applied nearly a half pound of the weed killer on to every acre of cropland worldwide (0.47 pounds/1 acre).

Glyphosate-based products are the best selling weed killer in the United States, let alone globally; glyphosate treated and/or resistant crops that are used to make foods such as processed bread, soups, cereals, cooking oils, beers, etc., are sold worldwide and make up almost 80% of agricultural crops in the US and Canada. So, is glyphosate really safe for human consumption? Fourteen industrialized nations are or have already banned it from use within their borders, why?

What Does Glyphosate Cause?

Glyphosate does not cause any harm to humans or animals according to Monsanto. Even the EPA states that glyphosate is safe when used carefully (although no exact definition of the word carefully is offered). Agent Orange was deemed safe to spray within certain parameters as well, and we all see how that has turned out.

Glyphosates have specific directions to follow when the average consumer uses them to kill common weeds in our average yards. To be deemed “safe” these directions are to be followed:

Chose a day that is not rainy or windy;
Wear long pants, long sleeved shirt, gloves, goggles, and a mask;
Cover any other plants you want to keep safe

I don’t know about any of the rest of you, but I have never followed any of those directions. I make sure my pets stay away, but if I needed to spay a dandelion in my driveway, I grabbed the bottle, sprayed the weed, put the bottle back. There are warnings of course, keep pets and people away until completely dry, but it never exactly tells you why you should use these precautions.

Here is why: On August 11, 2018, Monsanto was ordered to pay a record $289 million to Mr. Dewayne Johnson, a groundskeeper, among 5000 other claimants, due to failing to warn consumers that glyphosate in its weedkilling products was a known carcinogenic. The jury found that Monsanto knew the chemical was dangerous and failed to warn consumers properly. Mr. Johnson was diagnosed with non-Hodgkin’s lymphoma. Monsanto, recently purchased by Bayer AG, now faces increasing class action torts against its products due to exposures and subsequent illnesses.

In 2015, the International Agency for Research on Cancer (a division of the World Health Organization) concluded that glyphosate was “probably carcinogenic to humans.” A recent study published by Oxford University states that not only are there serious effects due to the use of glyphosate such as changes in the metabolism, cancer risk, and systemic inflammatory conditions, previous forms of evaluating the risks are also obsolete based on the different ways that glyphosate are utilized. In other words, creating genetically altered food with glyphosate leads us to measure the risks differently then the way it was measured when food were just sprayed with chemicals.

Now granted, Mr. Johnson sprayed glyphosate much more often than most average consumers and in amounts much greater than I would ever use on my measly 2/3 acre of yard. However, with chemicals, what affects one person one way, can affect another in a completely different way. We know this because not everyone who was exposed to Agent Orange got cancer and diabetes, but enough more did that it showed the link scientifically.

Glyphosate and Gluten Allergies/Celiac Disease

In 1990, approximately 27,000 people were known to have had a celiac incidence. The rate of use of glyphosate was less than 500 per 1000 lbs. of wheat treated. By 2009, the USDA and the CDC show that the rates of Celiac incidences increased to 77,000 compared to an increase of glyphosate to almost 16,000 x 1,000 lbs. per wheat.

A recent study by Samsel & Seneff, 2013, argued that glyphosate may be a key contributor to obesity as well as Alzheimer’s disease, Parkinson’s disease, infertility, depression, and cancer. Their reasoning is that glyphosate suppresses specific amino acids and bacteria, up to 35% of those in a human’s system, and prevent them from managing the essential nutrients our bodies need to function properly, leading to an overgrowth of pathogens. What most people consider to be celiac disease or a gluten allergy are quite possibly the digestion of glyphosates and the negative effects the chemical is having on the body’s internal flora and fauna. The American Cancer Society has itself shown an 80% increase in non-Hodgkin’s lymphoma since the early 70s, when glyphosate was introduced to the market.

And even worse, the weeds that were being killed by the glyphosate are now becoming resistant.

What Does This Mean for You?

Hopefully, nothing. However, if you are suffering from cancers such as non-Hodgkin’s lymphoma; systemic inflammatory conditions such as sarcoidosis (which can lead to organ failure and the need for transplant), systemic lupus erythematosus, or scleroderma; Parkinson’s disease, celiac or gluten problems, or even metabolic issues that are otherwise unexplained; and you have been in contact with glyphosate, it may be worth checking to see if exposure may be a link to your conditions. Here is the important link: chronic inflammatory conditions can cause DNA damage, which can lead to cancers. For example, ulcerative colitis and Crohn disease have increased risks of colon cancer. According to the National Center for Biotechnology Information (NCBI), some of the many (too many to list here) side effects of glyphosate found are:

Disruption of gut bacteria leads to:

Kidney failure
Inflammation
Autoimmune thyroid disease

Transition metal chelation leads to:

Neurodegenerative disease
Heart disease
DNA damage/cancer
Anemia

CYP enzyme inhibition leads to:

Osteoporosis, cancer
Teratogenesis
Gallbladder disease, pancreatitis
Liver disease, macrocytic anemia, kidney failure
Venous thrombosis

Tryptophan deficiency leads to:

depression, nausea, diarrhea

How Roundup has Altered Our Agriculture

Monsanto has not just developed the herbicide for removing unwanted vegetation, it has used glyphosate to engineer crops that are resistant to herbicides, allowing farmers to spray fields with RoundUp and not kill the vegetation being grown for human consumption. RoundUp Ready© soybeans and canola were introduced in the 1990s, with crops of corn and sugarbeets following. Monsanto also has a program called “preharvesting,” where farmers are taught how and when to spray entire crops of consumable food in order to kill it while still in the ground, drying it out to cause haresting machines less damage and to yield the highest crops. This process basically kills the food on the stalk, in effect drying it out so that when it is harvested, there is less moisture allowing for less wear and tear on harvesting equipment. Preharvesting, per Monsanto’s guidebook, is used on wheat, barley, oats, canola, flax seed, peas, lentils, soybeans, and dry beans.

Monsanto continues to claim that over 800 scientific studies have shown that glyphosate is safe for humans, but we have to wonder, did those studies use tests that would accurately depict this chemical’s effects on humans or did they use outdated methods developed for past chemicals that are now dinosaurs in the new-world chemical game.

Did the Anthrax Vaccine Make Troops Ill?

September 19, 2018/in Veterans /by Cassandra Crosby, Claims Advocate

Anthrax is a bacterial disease that has been around for a long time, as far back as ancient Egypt. In fact, it was thought to have caused the fifth plague during the time of Moses, killing horses, cattle, sheep, and oxen. Scholars even think that Homer described anthrax in his telling of the Iliad around 700 BC and that the deadly pathogen may have contributed to the fall of Rome.

Anthrax was researched as a biological weapon by Iraq in the early 80s, and it was assumed that Saddam Hussein had created bombs and missiles loaded with the Anthrax bacteria by 1991 in preparation for war. The United States Department of Defense, in preparation, utilized a vaccine that had been created, but not yet tested for inhaled anthrax, to protect military forces deploying to the middle east. Vaccinations were required by all forces, not just US troops. BioPort, now Emergent Biosolutions, was the exclusive manufacturer of BioThrax at the time, and it had proven to be an effective vaccine against the bacterium when acquired through the skin, but not when inhaled, so there was no FDA licensing for use against inhaled Anthrax. Therefore, all vaccines given to military personnel were considered an “off-label” or experimental use of the vaccine.

Was The Anthrax Vaccine Safe?

Despite concerns about its safety, the Department of Defense mandated that all military personnel be vaccinated with BioThrax if being deployed to Iraq or Afghanistan. They then expanded the program to all US Military forces and DOD civilian contractors. With the expansion, BioPort Corp requested FDA approval for to include aerosol exposure approval, switching to intramuscular injections, and reducing the number of doses. In 1997, all military personnel, 2.5 million of them, were now required to receive the Anthrax vaccines. By 1998, it was mandated for all civilian DOD personnel as well.

After the 9/11 attacks on the World Trade Center and the Pentagon, two US Senator’s offices and news agencies along the east coast of the United States were sent letters that contained Anthrax spores. The power form allowed the spores to float in the air and for it to be breathed in by unsuspecting bystanders as well as its intended targets. There were a total of 43 cases of inhalation of Anthrax from this attack, seven of whom were postal workers who processed the letters. Ultimately, 5 people died and it was estimated that more than 10,000 were at risk of possible exposure.

Vaccine Mandate

Due to questions about the contents and safety of the vaccine; in October 2004, US District Court Judge Emmet G. Sullivan ruled that it was illegal for the federal government to mandate anthrax vaccinations. Judge Sullivan banned the Pentagon from forcing military personnel serving in Iraq, Afghanistan, South Korea, and part of Asia and Africa from being required to get the anthrax shots without their prior consent. The military could not require the vaccine until the FDA approved it for the specific use of inhaled anthrax. However, those who refused quickly found themselves, for various other reasons, no longer in the service of Uncle Sam.

One of the ingredients found in BioThrax was squalene, a banned additive found in about 95% of veterans studies by Tulane University suffering from Gulf War Syndrome. Squalene is a tool used to boost the body’s immune system against certain diseases and was not approved for internal human use other than in highly controlled experiments.

Adverse Reactions

In 2002, the General Accounting Office (GAO) conducted a study on adverse reactions of those who received anthrax vaccines in response to a large number of pilots leaving ranks. The most common reactions reported that lasted longer than 7 days were limited motion/pain in the arm, extreme fatigue, joint pain, and memory loss. Some debilitating issues that have been reported to Walter Reed Hospital have included muscle and joint weakness, chronic fatigue, intense migraines, cognitive problems, and even some severe diseases such as multiple sclerosis and vision loss.

There are reports on the internet of military troops who have experienced slurred speech, brain damage, neurological problems tremors, memory lapses, seizures, weight loss, renal failure, and other conditions that affect the nervous, cardiovascular, musculoskeletal, skin, digestive, and respiratory systems. However, there are no peer-reviewed studies supporting long-lasting, debilitating effects of Anthrax. Makes you wonder…..

There is currently an Army memo being circulated, also being claimed as authentic although the validity of the contents is unclear, stating that the soldiers at Ft. Campbell and Ft. Drum were given “bad” batches of the vaccine between 2001 and 2007 when deploying to OIF and OIE.

Claiming a condition is service related due to anthrax, or any in-service vaccine, one must be able to rule out all other possibilities. One former military member was able to get genetic testing to show her brain disorder was not genetic and therefore more likely than not due to the anthrax vaccine. However, the proof is difficult and expensive. Being able to show reactivity within a short period of time after vaccination and having a strong timeline is helpful. Legal and medical experts can assist in working your claim if you feel that a vaccine has caused a disabling condition.

Understanding Decisions from RAMP

September 17, 2018/in Veterans /by Anne Linscott, Attorney

Background

RAMP (Rapid Appeals Modernization Program) is the VA’s pilot program for the new appeals system created by the VA Appeals Improvement and Modernization Act of 2017. RAMP is an optional program, available to veterans with claims that are currently on appeal. If a veteran does not want to opt into the RAMP program, they do not have to submit anything to the VA; their appeals will continue to be processed in the current appeals system now referred to as the Legacy Appeals System.

Information on RAMP Rating Decisions

Now that the RAMP program has been in effect for several months, veterans who opted in are receiving rating decisions. It is important to understand the information included in these decisions, and also what your options are if you are not happy with the decision.

The appearance of rating decisions hasn’t changed much with the RAMP program. However, the information that must be included in the rating decision has changed slightly. RAMP rating decisions must list all favorable findings that the VA identified when reviewing the case, including listing what evidence was considered as favorable. The VA must also identify the evidence they considered to be unfavorable. In the narrative part of the rating decision, the VA must explain how the favorable and unfavorable evidence was weighed in coming to their ultimate finding. In addition to listing the evidence, the VA also has to include a list of all regulations and laws that were applied in making their decision.

Forms Included in RAMP Rating Decisions

In addition to the explanation and the list of evidence and regulations, RAMP decisions will have two forms attached. These two forms are the RAMP Review Rights form and the RAMP Selection form.

The RAMP Review Rights form gives information about how to appeal the decision. The different ways to appeal a decision from RAMP are based on the different lanes that make up the RAMP program. The appeal options include:

Supplemental Claim: If you are unhappy with the rating decision and would like to submit new evidence, this is the appeal option to select. Once the new evidence (must be new and relevant) is submitted, a different rater will review the case.
Higher Level Review: This appeal option can only be selected if the decision being appealed was issued out of the supplemental claim lane, and you do not have any additional evidence to submit. (Note: if opting into RAMP, the only requirement is that no additional evidence can be submitted.) A higher-level VA employee will review the decision that is being appealed based on the evidence of record.
Board of Veterans’ Appeals (BVA): If you are unhappy with the rating decision and want to take your appeal straight to the BVA, use this appeal option (Note: the BVA will not begin deciding RAMP appeals until October 2018). If you choose to appeal to the Board of Veterans’ Appeals, you will have to select one of three options. These options are:
Direct Docket: Select this if you have no additional evidence to submit, and you do not want a hearing. The BVA will issue their decision based on the evidence of record.
Evidence Only Docket: Select this if you would like to submit additional evidence, but do not want a hearing. After submitting your appeal, you will have 90 days to submit additional evidence.
Hearing Docket: Select this if you would like to have a hearing with a Veterans Law Judge. You will also be able to submit additional evidence up to 90 days after submitting your appeal.

The second form that will be attached to a RAMP rating decision is the RAMP Selection form. After deciding which appeal option is best for you, fill out the RAMP Selection form. This form requires you to specify which issues you are appealing, and which appeal option you are choosing.

Do You Really NEED that C&P exam?

September 12, 2018/in C&P exams, Veterans /by Cassandra Crosby, Claims Advocate

Every veteran who is not rated as permanent and totally disabled is subject to C&P re-examinations in the future. Many are prescheduled, but some can be triggered by changes in symptoms noted in medical records. However, the VA has specific protocols in place to determine if those exams are needed. Unless already scheduled as a standard review (such as a 5 year review which is required to be identified on a rating decision code sheet), VA policy requires that a pre-exam review must be conducted before a C&P is ordered to determine if the veteran meets criteria for a new exam.

The purpose of the pre-exam is to justify the cost of the C&P exam. A review of the veteran’s records can show if the veteran is still experiencing similar symptoms, obtaining consistent treatment, and justifying the current rating that they are awarded. It is only when the records show that the rating is no longer justified that an exam should be ordered. And this works both ways, for reducing or increasing a rating.

For example, a veteran rated at 30% for PTSD but records show the veteran has been hospitalized several times in the last few years for suicidal thoughts; that warrants and exam for an increased rating. Another example is when a veteran has been rated at 100% for a malignant cancer. The 100% will be granted for up to six months after successful treatment, and then the rating may be decreased if the cancer is no longer malignant and the residuals do not warrant a 100% rating.

However, as everyone knows, the VA rarely orders a C&P exam for increased rating, and often orders them to decrease ratings when there is no justifiable reason in the veteran’s files to do so. Wonder why?

Found Unwarranted Expenses

In a recent Oversight Report written by the Veterans Affairs Office of Inspector General, it was found that the VA spent over $10 million dollars between March and August 2017 )a five month period) on unwarranted C&P reexaminations of veterans. The OIG’s office estimate that over $100 million would be wasted on unnecessary exams over the next five years if VBA staff continues to requested review exams without using proper discretion (my math comes out to $127 million dollars in the next five years with a 3% adjustment for inflation). It was reported in the audit that almost 20,000 unwarranted exams (78%) were conducted without a pre-exam review that serves as an internal control justifying whether the exam is needed to verify the existence or severity of a disability.

Of these almost 20,000 exams that bypassed internal controls, almost 15,000 saw no changes to their ratings after the exam and only 4,000 saw reductions in their rating levels. In budget language, only 2% of the $100 million spent was warranted in showing a reduction of symptoms and actually saved the VA any money.

Of the 4000 exams that resulted in a reduction of benefits for a veteran, many of those get appealed and are re-awarded back to the reduction date when the veteran or their representative is able to prove the veteran’s symptoms have not gotten better.

C&P exams can often result in a reduction of benefits because of many factors. The main reason is the exam is not done thoroughly. If the examiner is not provided the full picture, including private records if the veteran is seeing an outside treatment provider, the examiner may not have all the information he or she needs to make a complete assessment. Because of the stigma attached to C&P exams, veterans are often reluctant to provide complete answers and sometimes even exaggerate answers because the veteran feels that they will be dismissed or not taken seriously.

Can Veteran’s Prevent Unnecessary C&P Exams?

There are some things a veteran can do to prevent unneeded exams that not only waste money but also put their benefits at risk, often times erroneously.

If you get a notice of a review C&P exam being scheduled, ask your representative if they can find out why the C&P review is required. If you have representation through a VSO or an experienced VA attorney, they will be able to contact the VA and determine why the C&P is being ordered and, if necessary, gather evidence you may need to ensure that their rating is not reduced (unless it is truly warranted).
Make sure treatment is consistent for the level of severity of the service connected condition. For example, if you have a 70% rating for a mental health condition and are not seeing anyone for medication management or therapy, the VA is going to question if you are really disabled at that high of level. You can reduce the likelihood of this by attending treatment, even if you don’t participate, and having it noted in the records why you are refusing treatment and making sure your symptoms are being recorded on a regular basis.
Provide the VA with private treatment records when necessary. If you are seeing a private provider, the VA is not automatically going to request those records unless it is through Veteran’s Choice. You can request those be shared with the VA so the VA has a complete understanding of your condition and are is less likely to request an unnecessary C&P exam.
Ensure the VA has records of any emergency issues that arise related to your service connected conditions. For example, if you are on vacation or out of the area and present at an emergency room, make sure to ask the VA to obtain those records for your file so they are aware of the condition and have complete records.

Working with the VA as much as possible to ensure that your records contain the information needed to continue to support your rating level is the best way for a veteran to reduce their chance of having a review C&P called as well as having their benefits reduced without warrant. This saves thousands of dollars per veteran and helps veterans retain their benefits at their current levels rather than risking reductions than having to fight to have their benefits reinstated. And…..the more money saved, the more veterans can be served.

Video Blog – Buddy Statements For Increased Rating

August 31, 2018/in PTSD, Veterans, Veterans Videos /by Matthew Hill

Matthew Hill: Hello and welcome to the Hill and Ponton VA Video Blog. I’m Matthew Hill here with Carol Ponton and today we are talking about buddy statements. This is the fourth part in our four-part series on buddy statements. The first one we discussed was how important they are.

Carol Ponton: Yes.

Matthew Hill: And then the second one was how to actually craft a buddy statement. The last one we just talked about was on service connection and how you can show through buddy statements your disability’s related service and this is going to be on rating so essentially, you’re already rated for a disability and now you’re trying to get an increased rating. You’re trying to get the VA to understand what the correct rating should be. And we were talking about this and we think one of the disabilities that lends itself to understanding this the best is actually PTSD.

Carol Ponton: Right.

Matthew Hill: A lot of times you have PTSD, it’s just the perfect storm when it comes to veterans who aren’t really self-aware, they don’t know how bad it is. On top of that, they don’t want to talk about it, they don’t want to think about it. When they go see their doctors, they don’t want their doctors to do something to them, put them on medication, lock them up and so they don’t tell their doctors how it’s going. And so a lot of times you’ll get a veteran to where you see exams, you even see discontinuing treatment records showing … guy seems pretty okay, he’s coping with it but once you talk to those around him, family, friends, bosses, you realize that’s not the case at all.

Carol Ponton: Right. We recommend buddy statements for, first of all, the veteran. When we talk to the veteran I pull out DBQs, or disability questionnaires that … benefit questionnaires that the VA has online and there’s a really good one for PTSD and it goes down all of the criteria they think you need in order to be service connected for PTSD and what they’re looking for as the problems that come with that. And so I like to ask the veteran about each one of those criteria and then I go through all the symptoms that people have. And I want to make sure they’re telling me the truth because, as you said, most people … It’s horrible to have to talk about it and think about it but I tell them this is the one time we really need to let the VA know what’s going on with you.

Carol Ponton: I go through all of that and then I ask who’s the person that knows you the best. Are you married? Do you have family members? And then we talk to them and we tell the veterans, don’t get upset with these people. These are the people that are helping us paint a picture of how this disease has really harmed your life and when you go to them and you need to know what issues to talk about and that’s why this form is so helpful because you start saying is he paranoid? Is he unable to be around people? Does he have trust issues? Anger issues? Give me examples of those.

Carol Ponton: This buddy statement really gives you an opportunity to create a wonderful picture of how PTSD has totally affected this veteran.

Matthew Hill: I like to think about it as a total … I don’t know if it’s necessarily wonderful but it’s a way to get information that the veteran just doesn’t see. One of the biggest things any veteran, any person with PTSD will tell you is, the most horrible are the nightmares, the night terrors, the flashbacks and as bad as those are, the VA caps the rating on those at 30%. So, unfortunately, a lot of times what I see on the DBQs from doctors is that that’s what they check. Oh, this person has really bad nightmares, that’s capped but on top of that, this person might have really bad anger issues. Yells and screams just gets in fights for no reason, isolates himself, nobody wants to be around him. That’s a significant problem. And that’s a problem that would get the veteran a much higher rating. And unfortunately, it’s also one that they might not be that self-aware of.

Carol Ponton: Right. They may feel they get angry because there’s a reason that they get angry and the people that look at him say, that was way out of line for what happened.

Matthew Hill: Right, right. The response is worse. I typically start, like Carol says, with the veteran to ask them how many anger issues they have and a typical response I’ll get is, I get irritated but I don’t get angry. And so I go to well, what happens when a guy cuts you off in traffic and then you get a list of expletives, a list of curse words, and some pretty interesting stories but they still might not be aware of how overreacting that is and that’s why working with the wife, working with children, working with friends, coworkers, you can get a really good statement. And again, it goes back to getting a competent statement. You just want them to list stories that happened, facts, observations. You don’t need them to say this guy deserves benefits, you need them to lay out what exactly happened or what they see or the children being on pins and needles all the time around their dad, and why.

Carol Ponton: And what to put in is just as important as what you leave out. And that’s really right, please don’t put this person deserves benefits, he’s a really nice guy. He may be all that and he may deserve that but when you put that in there, all of a sudden the VA says, is this subjective? Are you really trying to plead his case or are you … What are doing here? So don’t distract the VA. You can win his case by telling the truth. It’s like seeing a movie, you want to paint a picture of what you see with this veteran.

Matthew Hill: Right. There’s a time and place for the argument, the persuasion and that’s your VSO or your attorney actually writing a letter but the point of a buddy statement, the power of the buddy statement, is the reflection of the facts and of the stories because the VA can’t make that go away. What gets the veteran a proper rating is just showing the VA a day in the life and in a service connection case they might be able to hide the service records, they might be able to not get something but this is what’s really going on day-to-day and that’s the power of the buddy statement.

Carol Ponton: Well, the other power that I see is, think about the person, the decision review officer, he reads case after case after case. You want to make this personal, you want to make this so that the person knows what you’re living with and all of a sudden they can see, oh my gosh, this is really awful. This is your chance to tell your story so make sure it’s complete.

Matthew Hill: Well, thank you for tuning in. Again, this was the fourth part of the four-part series of buddy statements and the power they have on a veteran’s claim. Thank you.

What You Need to Know About Expediting a Claim

August 28, 2018/in Veterans /by Cassandra Crosby, Claims Advocate

There are very certain circumstances that the VA will consider expediting a claim, and they are often confusing as each regional office can sometimes offer expedition for a claim that may fall outside of the parameters based on special circumstances. However, the basic rules for expediting a claim are laid out in the VA regulations below. We will also discuss some ways to help make sure your expedite is reviewed with the minimal possibility for errors.

Reasons the VA expedite a claim when:

Regulations require the following to be expedited:

Any claimant who is
- diagnosed with Amyotrophic Lateral Sclerosis (ALS) or Lou Gehrig’s Disease
- a participant in the Fully Developed Claim (FDC) Program
- experiencing extreme financial hardship, or
- a survivor of a former Prisoner of War (FPOW).
Any current or former member of the Armed Forces who
- was very seriously injured/seriously injured (VSI/SI) in service and is not already receiving Department of Veterans Affairs (VA) disability benefits
- is an FPOW
- is homeless
- is terminally ill
- is more than 85 years old, or
- received the Medal of Honor.

However, there are some guidelines and exceptions, as well as some confusion and irregularities in the regulations that veterans need to pay close attention to.

Homelessness

Under 38 CFR § 61.1; the VA will consider a veteran homeless if they meet the criteria set forth under the legal definition of homelessness per 42 U.S. Code § 11302:

an individual or family who lacks a fixed, regular, and adequate nighttime residence;
an individual or family with a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings;
an individual or family living in a supervised publicly or privately operated shelter designated to provide temporary living arrangements;
an individual who resided in a shelter or place not meant for human habitation and who is exiting an institution where he or she temporarily resided;
an individual or family who—
- will imminently lose their housing, including housing they own, rent, or live in without paying rent, are sharing with others, and rooms in hotels or motels not paid for by Federal, State, or local government programs for low-income individuals or by charitable organizations, as evidenced by—
  - a court order resulting from an eviction action that notifies the individual or family that they must leave within 14 days;
  - the individual or family having a primary nighttime residence that is a room in a hotel or motel and where they lack the resources necessary to reside there for more than 14 days; or
  - credible evidence indicating that the owner or renter of the housing will not allow the individual or family to stay for more than 14 days, and any oral statement from an individual or family seeking homeless assistance that is found to be credible shall be considered credible evidence for purposes of this clause;
- has no subsequent residence identified; and
- lacks the resources or support networks needed to obtain other permanent housing

Any individual who is fleeing domestic violence or other life-threatening situations and no other housing options are available is also considered homeless

Age: Here is where irregularities sets in. The VA regulation M21-1, Part III, Subpart ii, Chapter 1, Section D states that the eligible age for expediting a claim is 85. However, 38 CFR § 20.900, which is the Federal regulation set forth by legislation states that the age of 75 years or older is eligible for expedition. Many regional offices use the age requirement of 85 years of age to reduce the number of claims they are backlogged. However, the federal regulation clearly states 75 years of age so if an RO is stating a veteran does not qualify because they are under 85, please refer to this regulation.
Extreme Financial Hardship: Financial hardship is granted on a case-by-case basis and a veteran must have documentation to prove their case. There are specific situations where the VA will consider a financial hardship and these include home foreclosure, bankruptcy, inability meet daily living expenses such as food and electric, or having utilities being turned off; past due mortgage or rent payments. Preventing homelessness is often a priority in financial hardship cases.
Poor Health: 38 CFR 7107 states that a case may be advanced based on poor health. This is usually defined as terminal illnesses or injuries that will lead to a person’s eventual death. These types of illnesses or injuries include terminal cancers, heart failure, or injuries that are deemed by a physician to lead to death.

To file an expedite request, a veteran will have to ensure they have documentation to support any claim they are making. For example; shut off notices for utilities, diagnosis and treatment records for illness/injuries; a statement from a social worker or other official identifying the veteran as homeless (medical professional, DFCS, non-profit organization provider, etc.).

Is Getting a Claim Expedited Worth it?

Filing an expedite request on a claim will speed up the clock and will help your representative or attorney push to get a decision made on your case. Most of the time it does speed up the process, but there are never any guarantees that it will get a decision in time to prevent the loss from happening. The VA’s new program is attempting to work faster and more efficiently, in all cases, to prevent more veterans from becoming homeless or passing away before their benefits are awarded, but in any case, your representative knows exactly which forms you need to get the expedite approved and moving.

MULTIPLE SCLEROSIS AND VA SERVICE CONNECTION ISSUES

August 23, 2018/in Veterans /by Robin Rosenblad, Claims Advocate

If you are a veteran who has developed Multiple Sclerosis (MS) while still in service, you may not face difficulty with getting the disease service-connected for disability compensation purposes. However, for many veterans, Multiple Sclerosis develops a number of years after their release from the military. Also complicating the situation is that Multiple Sclerosis is an insidious disease that can mimic numerous other conditions for years prior to proper diagnosis further delaying a veteran’s ability to get the condition service-connected.

In this situation, it becomes important to show what symptoms a veteran may have been experiencing as related to MS in a specific time period after release from active duty. For most chronic diseases, there is a one-year presumptive period from date of discharge for considering the condition to be service-connected. However, for MS, the VA allows a seven-year presumptive period within which the disease might develop. Be aware that the VA starts that seven-year clock running based on the veteran’s last period of at least 90 days of continuous active duty.

If you are a veteran with MS who has been diagnosed within that presumptive period OR even later than that seven-year period, you can still take steps to prove your case to the VA. Try to track back to those first seven years after you were discharged from a period of active duty military service (lasting at least 90 continuous days) and provide proof to the VA of what conditions developed during that time and to what extent. Some of the conditions that can be early signs of MS include headaches, fatigue, hypersomnolence (daytime sleepiness), sleep apnea, eye conditions, intermittent blurring of vision, numbness or tingling in parts of your body, muscle weakness, tremors, hoarseness, swallowing difficulty, difficulty with speech, bladder or bowel voiding difficulties and leakage, and many other symptoms.

To help provide proof to the VA of the earlier manifestations of some of these conditions, you can send the VA copies of specific medical records showing medical visits where you were obtaining treatment for these symptoms and conditions that developed or were complained about within that seven-year time period. You can also provide a statement made by you describing and listing the development of the various symptoms you experienced over the years creating a sort of timeline of the symptoms to make it easier for the VA to see the whole picture. Include vivid descriptions of how the symptoms affected your normal functioning in your daily life, activities with family, your employment, etc. You can also ask family members, friends, and past employers to provide “buddy statements” describing the various medical symptoms that you were experiencing that they can recall. These are all ways that you can use to enhance your chances of having MS be granted as a service-connected condition.

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.