|Matthew Hill:||Hello I’m Matthew Hill from Hill and Ponton. This is our VA video blog. I’m here with Carol Ponton, and we’re doing a series on the big mistakes we see, or the misunderstandings that get in the way between a veteran and his benefits. Today we want to talk to you about unemployability versus 100%.|
|The overwhelming number of clients we represent are so disabled that they can’t work, and we are trying to get them total benefits, be it 100% or unemployability. We are asked all the time …|
|Carol Ponton:||What’s the difference? There’s a schedular 100%, that means you add up all of the ratings you have and they reach 100% …|
|Matthew Hill:||Well, you don’t add them.|
|Carol Ponton:||You combine them.|
|Matthew Hill:||The VA does this percentage math, right.|
|Carol Ponton:||Or you have 100% because you’re not working and you’re not working because of a service connected problem. They’re essentially the exact same thing except under unemployability, you can’t work. That’s the only difference, and you just have to, every year, say I’m not working, and the 100% continues.|
|Matthew Hill:||Well you can work, and we have more information on this on our blog. Check it out. You can work only a little bit, but you are able to work.|
|Carol Ponton:||Right. Basically, they are the same things, but our veterans are very confused about that. They are not sure why is one better than the other. If you want to work and be 100% disabled, then yes, you don’t want the unemployability. If you’re not working because of the service-connected problem, it makes no difference whatsoever if you’re getting unemployability or 100%.|
|Carol Ponton:||That’s the confusion that we have with the clients.|
|Matthew Hill:||If they are permanent and total, they get all the same other benefits: tax breaks …|
|Carol Ponton:||That’s permanent and total. That’s not unemployability and 100%.|
|Matthew Hill:||Right, but it applies to both.|
|Matthew Hill:||You don’t have to be 100% schedular to get that.|
|Matthew Hill:||As far as back to what we were saying as what schedular is and how you combine ratings, we have a VA disability calculator now that actually takes your ratings and combines them just to help. Because a lot of times, we’ll see veterans with ratings that add up to 210%, but they are getting paid 80% or …|
|Matthew Hill:||We’ll link to that in these notes. It’s just important to know to have all options on board.|
|Matthew Hill:||If you’re eligible, or you think you’re eligible for 100%, but you might be eligible for IU, we’ll put them out there.|
|Carol Ponton:||IU is unemployability.|
|Matthew Hill:||Unemployability. Don’t take them out just because you don’t think it’s going to be as good getting one benefit or the other because you’re basically tying one hand behind your back.|
|Matthew Hill:||Well, thank you for tuning in on our Hill and Ponton VA blog. We are, again, talking about big mistakes we see that interfere with veterans getting the benefits they deserve.|
|Matthew Hill:||Hello and welcome. I’m Matthew Hill with the Hill and Ponton Veteran’s VA Video Blog. I’m here with Carol Ponton, and today we’re continuing a series on big mistakes we see veterans make that really hurt their claim. The one I see a lot that’s kind of hard to understand sometimes is the veteran understanding what the goal is. With the VA benefits, to get VA compensation you got to show a bunch of different things. You got to show something happened in service, that there’s a current disability, that the two are connected, and then what the rating is and then what the effective date is.|
|We see, a lot of times, veterans coming to us with a denial, say PTSD. They bring us a rating decision they disagree with and they say, “I was denied. When I was in service I was in combat. I saw a lot of action. I had a good friend die.” They tell us just how horrible their experience was. My first response, and I think Carol will do this too, is, “Well, let’s focus on what’s going on here.” That, the VA finally admitted that this is related to service, but the issue now is compensation. They low-balled you on the rating.|
|Carol Ponton:||They gave you a 10% rating.
|Matthew Hill:||Right. The only thing the rating entails is what’s going on now, how is it affecting you now.|
|Matthew Hill:||In a way, it’s kind of moving the ball, in that I see it, the VA can get you to focus on what happened then versus what’s going on now, you’re not going to win the appropriate level of rating.|
|Carol Ponton:||Right, because the issue is what’s going on now. I think with some of my veterans I do like to say, “Show some of the stressors so it’s clear how awful it was, but then we need to focus on right now. What’s happening to you right now?” I want to know from your wife or your significant other, how is this affecting you. I want to know from you. Do you sleep at night? Do you have nightmares? That’s what you need to focus on. That’s one of the biggest problems with PTSD is, most of the time the veterans don’t know what the issue is.|
|Matthew Hill:||Right, and I guess, it’s kind of hard because if you’re fighting for service connection for this issue, whatever it is, you need to talk about what happened in service and you need to have records or buddy statements or statements of friends who knew you then to prove what was going on. Then you have to have a medical link between that and the current disability. Once you get that disability rated, once the VA finally admits, “Okay, this is related to service,” your whole focus needs to be on, “How do I show them how bad it is? My day to day life, how does this affect me?”|
|You just need to understand that when you’re filing that claim, most likely that’s a claim for an increase or an NOD off an original rating. You need to be thinking, “How is this affecting me and how can I show the VA how bad this is on my life?” We deal a lot with unemployability cases and 100% cases. A lot of times those veterans just, they have such a hard day to day life but they don’t realize it, they’re not focusing on it. They’re focusing on what happened in service, and when they do that they don’t give the VA the evidence they need to rate them at the VA.|
|Carol Ponton:||That’s why a buddy statement, a wife, a special person that’s with you, family members, they see it and they can give us a very good picture. Then that helps us draw out from the veteran, “Tell me what’s going on.” A lot of veterans don’t want to talk about it. I don’t blame them, but this is the one time they need to talk about it in order to get the rating they’re entitled to.|
|Another area I see this in is, for instance, backs. I will have veterans who are clearly injured, have back injuries in the service, and the VA denies the service connection. The veteran is saying, “Look at my service medical records. They show I was clearly injured. Look it, I just had a third back operation. What’s wrong?” What’s wrong is, remember there are three things you need. Something happened in the service. It’s caused a problem that you have right now, and there’s a nexus, that means there’s a medical opinion that says what happened in the service is causing this problem. You need to focus on what’s missing.|
|Matthew Hill:||Right. As Carol said is it, are they not saying it’s related to service? As she said, if that’s the case, is there evidence of something happening in service? Is there evidence of a current diagnosis? Where we see a lot of problems is, is there a medical opinion linking them? If you have that, and frankly the way to know if you have that if you’re filing a claim is, are they already paying you for it? If they’re already paying you for, we said PTSD 10% or back at 20%, well then the issue now is, how much does it affect you now? That’s where the focus needs to be.|
|Carol Ponton:||Right. I think it’s always worthwhile to have buddy statements, no matter what your problem is. It’s important to have medical evidence backing it up. A psychiatrist, an orthopedic surgeon, whoever is treating you.|
|Matthew Hill:||Well thank you for tuning in Hill and Ponton Video Blog. Again, this was a part of our series of big mistakes the vets make that hurt their claim.|
|Matthew Hill:||Hello and welcome to the Hill and Ponton VA Video Blog. I’m Matthew Hill here with …|
|Carol Ponton:||Carol Ponton.|
|Matthew Hill:||We are doing a series on the biggest mistakes we see that veterans make in their VA claim. We’ve talked about veterans just not filing a claim because someone tells them not to, veterans not filing all the claims that encompass their disability, talked about back disorder that caused leg pain and leg weakness, so if you don’t apply for both the VA’s probably not going to give you the full percentage they should be giving you on both so that you have the proper combined rating. Then we talked about an NOD versus reconsideration and we’ve also talked about appealing to the BVA. Today, we want to kind of take the last two, the appealing both at the regional office and then also to the BVA and talk about what your job is. Once you’ve appealed, you’re going to have a couple years on either one to do, but you need to not just sit back and just say, “Oh, it’s in the appeal process, it’s going.” What should people be doing?|
|Carol Ponton:||They should be getting evidence to prove their case. One of the things I see is when they’ve had, sometimes it’s service representatives, it’s other people, and they will do a memo for them that outlines their case. Instead of realizing that what the VA needs is proof, they talk about the benefit of the doubt and giving justice. That’s not going to get you anywhere. You need to figure out why did they deny me. Did they deny me because I don’t have a back condition? Did they deny me because my back condition is not related to service? A lot of veterans are confused about why they were really denied. I’ll have veterans, for instance, with PTSD. They will say, “I’m appealing it and I did have the stressor,” and they’re going on and on. I’ll say, “Well, you are service connected for PTSD. What you’re trying to get is a higher rate. You need to concentrate on how the PTSD affects you. Get buddy statements from people who are around you. Get a doctor statement about how the PTSD,” so you need to figure out, why have they denied you.|
|Matthew Hill:||I’d say the two most misconceived concepts in VA are benefit of the doubt and VA’s duty to assist. Like Carol said, we’ll see arguments all the time that the veteran has the benefit of the doubt, please grant him the benefits. The thing preceding that is the VA has a duty to assist the claim. When you file a claim, the VA has to help you prove your claim by going out, getting outside medical records, service records, and then most likely a medical exam by a C&P examiner showing, is something related to service or not, what should the rating be.|
|Once you have that first decision, their duty to assist is probably complete. They’ve probably gotten the exam and the exam, if you were denied, was probably negative. If that’s where you are in the evidence, and then what you’re arguing is the benefit of the doubt, if you don’t have any other evidence contradicting what the C&P examiner says, there is no doubt. The only evidence is the negative evidence against you. As Carol said, you need to know on what basis. Not only what was denied, but what was the basis for denial? That’s what you attack. Then and only then, once you’ve shown other evidence that’s positive for your claim, would the benefit of the doubt come into play.|
|If the only evidence, I guess this is my takeaway, if the only evidence is negative, there is no doubt, so you don’t get a benefit. Okay? It’s important to remember that. You know, ultimately, you are the master of your own claim. You know what happened. You know what’s going on now. Once you read the decision, hopefully, you know what they did wrong and what evidence you need to supplement there. You’re going to be waiting a long time for these claims, so the more you can do to actively buttress your claim or help it, the better you will be.|
|Carol Ponton:||Right. We just see a lot of veterans with really good claims, and they didn’t know what to do with them.|
|Matthew Hill:||Right. Well, thank you for tuning in to the VA Veteran’s Video Blog. We will be doing more on this series of big mistakes that veterans make. Thanks.|
It is well known that the VA has been plagued by scandal after scandal, when it comes to veterans’ health care issues. It is also well known that veterans are frustrated with the medical care they are receiving through the VA health care system. This is a topic that is always discussed during the election cycle, yet, it seems that year after year, nothing really gets done in order to actually solve the problems.
Some of the most common complaints that I hear on almost on a daily basis, include concerns about unreasonably long wait times to be scheduled for appointments with VA health care providers, concerns about VA medical providers being unresponsive to patient needs, and just overall concerns about inadequate health care in general.
What I’ve found, is that once a veteran is upset with the VA health care system, that frustration tends to impact the veteran in every other aspect of his/her life. Basically, there’s a trickle-down effect.
As an advocate, I always encourage my clients to make sure that they are receiving regular and ongoing medical treatment, for all impairments. The reason for that advice is simple. If a veteran is trying to prove service-connected disability, and/or trying to prove that his or her disabilities have worsened, the first thing that the VA is going to do, is look to see if the veteran has current and ongoing medical treatment. If there is no current treatment, then the VA’s default position is normally to assume that the veteran’s disabilities aren’t that severe. In other words, the VA’s thought is that, if the condition actually exists or if the condition is severe, then the veteran would be getting treatment.
The reality is that there are many different reasons why a veteran may not be receiving medical care. However, the unfortunate part is that when the VA Regional Office is evaluating the strength of a VA disability claim, the underlying reasons why a veteran is not receiving treatment don’t really seem to matter. To the VA, either the veteran is being treated or not, which then results in the VA believing that either the disabilities are serious, or, in the case of non-treatment, that they are not.
The good news is, for veterans who have stopped treating at the VA due to frustration with their health care, there are some options. I admit that these options aren’t the perfect solution, and, that there may be some red tape in order to get through the process. But, I do believe that these options are definitely worth a try.
The Patient Advocacy Program
If a veteran is having an issue with his or her VA health care, the Patient Advocacy Program may be a viable option. Each VA medical facility has a Patient Advocate, and that person’s job is solely to help veterans with concerns related to VA health care issues.
Of course, the VA always encourages veterans to attempt to resolve problems through their assigned treatment team first. In other words, if there is an issue with any members of the treatment team, the veteran is encouraged to discuss those issues with the treatment team first, or, within the chain of command for the treatment team.
However, if that doesn’t work, or, if the veteran doesn’t feel comfortable with the treatment team, I believe that veterans can, and should, reach out to the Patient Advocate. The Patient Advocate’s job is to act as a liaison between the veteran and the treatment team, in order to effectively resolve problems. Therefore, veterans should utilize this resource whenever necessary, in order to help effectuate change.
For more information about the Patient Advocacy Program, please click here.
The Veterans Choice Program
The Veterans Choice Program is a newer VA program, just developed within the last few years. The purpose of the Choice Program is to give veterans faster access to healthcare, but also, access to health care that is outside of the VA and in the private sector. Essentially, the goal is for the VA health care system to help alleviate their backlog by giving veterans access to the care that they need, through the private sector.
There are a few different ways for a veteran to be eligible for the Choice Program. Here are some of the ways:
- The veteran must be enrolled in VA health care, and also
- Meet at least one of the criteria below:
- The veteran is not able to be seen at his/her local VA facility within 30 days
- The veteran lives more than 40 miles away from a VA medical facility
- The Veteran faces an unusual or excessive burden in traveling to a VA medical facility based on geographic challenges, environmental factors, or a medical condition.
- The Veteran lives in a State or Territory without a full-service VA medical facility, for example, Alaska, Hawaii, New Hampshire (with some exceptions), and the U.S. Territories (excluding Puerto Rico).
Importantly, if a veteran is deemed eligible for the Choice Program, participation in that program should not otherwise affect the veteran’s eligibility to receive health care through the main VA system. Additionally, the veteran’s VA copayments should remain the same, whether or not the care is received through the VA or privately through the Choice Program.
For more information about the Veterans Choice Program, please go online to the VA’s website. The veteran can also contact his/her local VAMC facility in order to get more information.
As an advocate, I strongly encourage my clients to consider the Choice Program as a viable option.
|Matthew Hill:||Hello and welcome to another Hill and Ponton VA video blog. I’m Matthew Hill here with …|
|Carol Ponton:||Carol Ponton.|
|Matthew Hill:||And we are doing a series on what we see the biggest mistakes that veteran’s make when prosecuting their VA claim. We’ve talked about three already. The first one was not filing the claim because someone else tells you not to. Second one was not filing all the claims that encompass what’s going on with you. So again, if you have a back disability, not filing the legs that have numbness or radiculopathy second to that. The last one we talked about was why not to file reconsideration and instead filing an NOD and today we’re talking about the appeal process more and continuing the appeal.|
|Let’s say you filed that NOD and you are denied. The the regional office issues what’s called statement of the case and Carol what are your thoughts from there?|
|Carol Ponton:||The statement of the case, or we call it an SOC, says that if you disagree then you can file a VA Form 9 and go to the Board of Veterans Appeals in Washington. And I would say 75% of our clients don’t do that. They are afraid of that. They think they have to go to Washington. God, the Board of Appeals sounds scary to them and they drop their claim. That is a big mistake.|
|First of all, the rules that are applied at the regional office are not necessarily the rules that we think are the law. The Board of Veterans Appeals is a whole different area. They try to follow the court and the law that the court puts down.|
|Matthew Hill:||That’s the first time you actually have a lawyer or an actual judge who is bound by the regulations of the VA and bound by the Congress’s statutes in the court cases to actually apply those to your law. The regional office, they don’t … They look at their manual. It tells them how to do things, but that’s not necessarily the same sophistication as you find in the law.|
|Carol Ponton:||And I would say that we get wonderful decisions many times from the Board of Veterans Appeals. They will go give veterans benefits much farther back. They’ll give them much more benefits. It’s a wonderful place to be. The problem is a VA-9 is just a form. You just have to file it and you only have 60 days. That’s another problem. It’s not the year that you think that you are entitled to because the NODs give you a year.|
|Carol Ponton:||So you need to make sure you get it filed in time and you need to make sure you know where to send it. That’s another problem we have with our veterans. And on the form that you get, you will get a statement of the case and they will actually send you usually the form with it to file and tell you exactly where to send it. Okay?|
|That shouldn’t scare you. You don’t have to go to Washington. You can say that you want a hearing in a local VA office, they can do that. You want a hearing, say at the regional office or you don’t want a hearing at all. You just want the court to look at your case.|
|Matthew Hill:||The board.|
|Carol Ponton:||The board.|
|Matthew Hill:||And something that Carol and I have spoken about before is that it’s important to file that and you know, if you don’t want a hearing frankly that will be a faster avenue. But you need to think about why your case was denied. If you think it was denied just because the decision maker wasn’t paying attention, that’s one thing. But if they are telling you there’s a missing piece of evidence, meaning you had the back injury in service. You have a back diagnosis now but there’s no connection, there’s no nexus where a doctor said, “What you have now is related to then.” You are not going to win. So you need to think about what evidence you are going to put in the file to help win.|
|But what I’d say is the farther your case goes up the appeal chain, the more sophisticated of an adjudicator, of a decision maker you are going to encounter. So we always file for the DRO process in the regional office and …|
|Carol Ponton:||So when you are denied initially, you have a choice of the traditional or the Decision Review Officer.|
|Matthew Hill:||At the regional office.|
|Carol Ponton:||And you want to take the Decision Review Officer.|
|Matthew Hill:||And then if you are denied as we’re talking about here by that person, or someone else in the RO, going to the BVA entitles you to a review by a judge. And that’s the first review by a judge that you are going to get. And as we were saying, they know the law. They know the case law, the regulations and they are going to follow it. But you still have to give them the evidence that they need.|
|Carol Ponton:||Right, you have to figure out why are they denying me? Are they denying me because there’s no problem with my back? Or are they denying me because they say what’s wrong with my back is not related to the service? And then you need to go get that evidence.|
|Matthew Hill:||Right. Well that was our big mistake number four which is not appealing to the BVA. Please stay tuned to this channel for the other mistakes and all our other video blogs. Thanks so much.|
|Matthew Hill:||Hello, and welcome to another Hill & Ponton Veteran’s Video Blog. I’m Matthew Hill here with …|
|Carol Ponton:||Carol Ponton.|
|Matthew Hill:||Today we’re continuing our series on what we see are big mistakes that veterans make with their claims. This is the third mistake. The first one was not filing a claim, being told that the claim is just not valid, and, therefore, not filing it. The second one was not filing a complete number of claims, meaning you file a claim for your back, but forget to file it for the numbness in your legs, the radiculopathy.|
|Today, we’re gonna talk about the appeal itself. Once you get a decision, what you need to do after the decision. The two avenues we’ve seen are to appeal it, or to ask for a reconsideration. Carol, what are your thoughts on this?|
|Carol Ponton:||Don’t ask for a reconsideration. That’s my thought. You know, one of the saddest things is that we see people not continue their appeals. If you’re asking for a reconsideration, you’re not appealing. It’s sort of a new claim, a reopened claim, whatever you want to call it. You’ve got to say, “I disagree” and now there’s a form that you have to use.|
|The saddest thing I see is people are getting advice, wait a year, or a little over a year, and then file a new claim. That means that they’re losing all these past due benefits. The thing you need to do is you need to file a notice of disagreement, and you need to make it’s on the form that the VA requires. Now, so you filed a claim. You’re denied. What do you do then? You file that appeal, but then you need to get evidence. You need to figure out, why is the VA denying you?|
|Matthew Hill:||Right. Well, so with reconsideration, in particular, I talk to veterans about this all the time. They want to have their case reconsidered instead of filing an NOD, because they’re told that it’ll be reviewed faster. I think that’s probably true. I think they’ll get a decision faster than if they enroll in the appeal process and the DRO process like we do, but what’s important to remember is person most likely reviewing your case, if you ask for reconsideration, is the same person who just denied it.|
|Maybe you have great evidence you’re submitting, and there’s probably a reason to do it, but otherwise, that person’s going to deny it again. All that’s done is put you further back in the line, cause at that point, after your second denial, you’re going to want to appeal, and then you’re in the back of the line again.|
|Carol Ponton:||You may have missed your date, so you’re appealing this most recent decision, instead of the one way back.|
|Matthew Hill:||Yeah, I just don’t see much benefit. One exception that I actually tell veterans to go file a reconsideration is when I look at a decision, and the reason they were denied was failure to show up to an exam. So if I see the vet has a very strong PTSD case, he was actually diagnosed in service, or there’s current diagnosis with strong evidence, and he was denied because he didn’t go to the exam, at that point I’ll say “Look, you don’t need our services right now.”|
|What you need to do is file a reconsideration, and my hope would be that the C & P exam would be favorable and not only would he get a new decision quickly, but he’d actually start getting benefits.|
|Matthew Hill:||That’s one instance where I definitely recommend doing it, because it’s just not worth waiting all those years if you have an excuse, you have to tell them why you didn’t show up, but give them a valid excuse and then you should be able to get it there.|
|Matthew Hill:||In general, Carol and I adamantly feel that this is such a long process, getting your case won, once you have to appeal. You don’t want to make it longer than you need to.|
|Matthew Hill:||That’s what we see reconsideration doing. So thanks for joining us today. Again, this was our big mistake series, and this was number three, and that is filing reconsideration instead of an NOD.|
|Carol Ponton:||Or not appealing at all.|
|Matthew Hill:||Or not appealing at all.|
|Matthew Hill:||Hello, and welcome to the Hill and Ponton Video Blog. I’m Matthew Hill here with …|
|Carol Ponton:||Carol Ponton.|
|Matthew Hill:||We’re doing a series right now on what we call Big Mistakes with VA Claims, mistakes that we see over and over again and can be fatal to the claim, not just the claim, more importantly to the veteran getting the benefits they deserve. We spoke recently about veterans failing to even make a claim and what that does. Today, we want to talk about not making all the claims.|
|Carol Ponton:||This is what I will typically see. I have a veteran who has hurt his back, clearly related to service, and he continues to try to get the rating for his back higher. The highest rating that most veterans are going to get is 40%.|
|Matthew Hill:||That’s very difficult to get.|
|Carol Ponton:||That’s difficult to get, but what the veterans aren’t realizing is the way that the VA makes up for that is they also give you a rating for things related to the back. If you have radiculopathy, pain, numbness running down your leg into your foot for either leg because of the back, you should file that. The VA doesn’t know what you have unless you tell them. What happens with a lot of veterans, they’ll get 40% for their back, and they may get 40 or 60% for each leg. Say you have dropfoot. You can’t pick up the toe of your foot as you’re walking, and that’s related to your back. You need to claim that.|
|Incontinence can happen a lot of times with back problems. The other thing I see is depression. If you can’t sit, stand, walk without pain, if you can’t do your job, you’re depressed.|
|Matthew Hill:||Or your life, as you knew it, just doesn’t exist anymore because of that.|
|Carol Ponton:||Then you need to file because if you don’t file, then you can’t get any benefits. That’s how you get complete benefits for the problem that you’ve encountered. If you’re only getting 40% and you can’t work because of your back, that’s really depressing. You need to file for everything that’s related to that service connected problem.|
|Matthew Hill:||I’d say almost a cheat sheet on where to look for that, because what Carol’s talking about, radiculopathy for the legs, radiculopathy in the arms due to a cervical spine, some of that stuff is medical mumbo jumbo, but if you’re treating with the VA, you can ask for your latest records, and they will have a sheet on there that shows all of the problems you have and the medical diagnosis. Those are the ones that you should apply for if you feel like one’s related to the other or if your doc is telling you, “Hey, the pain in your leg is due to the problem you have in your lumbar spine,” but as she said, it’s important to make sure you’ve documented and you filed for all these claims because it’s all the claims together that’s going to get you the highest rating possible.|
|Carol Ponton:||In the past, you could file a 4138 form and just say, “My back is causing me to have problems with my legs, and I’m really depressed.” Now you have to actually file a 21-526 form. What will happen is people will send in a 4138, this form that outlines, it’s a story about what’s going on with the veteran. The veteran sends it, and then the VA, instead of processing a claim, they’ll send back, “Did you want to file a claim? If you did, you have to file it on this form.” If you’re not filing it on the form, you’re not filing a claim. Make sure you list every one of those problems.|
|Matthew Hill:||Back to listing those problems, you do not have to list the medical term. If your leg hurts, it’s going numb, you can put that. If you know the word radiculopathy, great, but if you don’t, you need just describe what you’re feeling, sensation. If you feel depressed, you don’t know the correct medical condition, mental health condition that is, you can say, “Have no motivation. I don’t want to be around people.” Just whatever it is, don’t be frightened by having to use the right words. Just put it down so that the burden then goes on the VA to develop the evidence to grant you the|
|Carol Ponton:||If you can’t work, make sure you put, “I can’t work because of this.”|
|Matthew Hill:||Thank you all for joining us this time. This is our small series on big mistakes we see, and this was mistake number two, not filing all your claims. Thanks.|
Due to the VA’s method of combining, rather than adding together, a veteran’s disability ratings, it is sometimes difficult for a veteran with multiple, service-connected disabilities to reach a 100% rating. The higher the combined rating is, the higher a new rating needs to be in order to add much of anything to the veteran’s combined rating. A total disability rating based on individual unemployability (TDIU or IU) is just an alternate means for a disabled veteran to qualify for a 100% rating. Under the TDIU regulations, a veteran is entitled to TDIU if a veteran’s service-connected disabilities prevent him from securing and following a “substantially gainful” employment.
What does substantially gainful mean?
The VA uses this term to mean employment for which the veteran is earning above the poverty level. The poverty guidelines for 2016 indicate that a person earning less than $11, 880 is earning below the poverty level. Of interest, VA regulations indicate that sheltered employment, such as self-employment or working for a family member in a position from which you cannot be fired, does not count as substantially gainful employment.
What does it mean to secure and follow a job?
Basically, these terms just clarify that a veteran is entitled to TDIU if his service-connected disabilities prevent him or her from getting a job and/or if those disabilities prevent him or her from keeping a job. While some physical disabilities such as knee or back problems would be obvious at an interview and might prevent a veteran from getting a job, other disabilities, such as PTSD, might not show up at an interview. A veteran with a service-connected mental disability might have no trouble getting jobs, but keeping a job, with symptoms such as impaired anger management, depression, or an inability to get along with others, is much easier said than done. Both the inability to get a job and the inability to keep a job would qualify a veteran for TDIU.
If the Social Security Administration (SSA) has found me totally disabled, why doesn’t the VA do the same?
This is an issue which frustrates many veterans. How can one government agency determine that a veteran cannot work while another says that he or she can? VA and SSA are operating under different standards here. For a veteran to qualify for TDIU from the VA, the issue is whether his service-connected conditions, alone, prevent the veteran from working. SSA does not separate out service-connected and non-service-connected conditions in its considerations. For example, a veteran who is service connected only for PTSD may also have other, non-service-connected conditions, such as a lumbar spine disability. SSA might find that the veteran is disabled due to the lumbar spine condition only or due to the combination of the disabilities. VA, however, cannot grant TDIU to a veteran whose inability to work is caused by non-service connected conditions.
A common mistake made by the VA, though, is that the VA sometimes recognizes that the SSA has determined total disability by considering non-service-connected conditions but forgets to complete the analysis and determine whether the veteran would still be totally disabled if he or she did not have the non-service-connected conditions. Just because a veteran is totally disabled by his non-service-connected lumbar condition does not mean that he is not equally disabled by his service-connected PTSD. The veteran could, and often does, have more than one condition which, on its own, would prevent the veteran from working.
How can VA expect an 85-year-old man to work?
Age is a factor which VA is not allowed to consider when determining if a veteran is entitled to TDIU. Again, the only consideration is whether the service-connected conditions prevent the veteran from working. So, if a 35-year-old man could work with a certain level of disability, VA assumes that an 85-year-old man could too.
I don’t meet the VA’s TDIU Percentages. Should I give up on qualifying for TDIU?
Definitely not. VA regulations provide that a veteran who has a single disability rated at 60% or more should be considered for TDIU. Similarly, a veteran who has a single disability rated at 40% or more, with a combination of disabilities totaling 70% or higher should also be considered for TDIU. These percentages just mean that VA should automatically consider a veteran who reaches that level of disability and look at whether the veteran is unemployable.
There is a second part to the VA’s TDIU regulation. If a veteran’s service-connected disabilities prevent the veteran from getting or keeping substantially gainful employment, even if those disabilities do not meet the 60% or 40/70% thresholds, that veteran can still be considered for TDIU and should request that consideration. Cases where the veteran does not meet the percentage requirements are more difficult to win, but that is no reason not to pursue them.
|Matthew Hill:||Hello, and welcome to another Hill & Ponton Veteran’s Video Blog. I’m Matthew Hill here with …|
|Carol Ponton:||I’m Carol Ponton.|
|Matthew Hill:||Today we want to talk to you about a common mistake we see veterans make when they’re pursuing or not pursuing their VA benefits claims. We have quite a few that we’ve seen over and over again, so we want to actually create a series on what we’ll call big mistakes. The first one we’re going to talk about today, Carol, is what?|
|Carol Ponton:||Not filing. I have so many veterans who have had a wonderful claim. They go to whoever, I don’t know where they go, but whoever advises them, I don’t know if it’s a VA, if it’s a VA help person, and they tell them, “You’ll never win that,” but if you think that your disability is related to the VA, file the claim. It’s just so sad when I have somebody come to me eight years later and they said, “Well, I tried to file it but they told me I wouldn’t win,” and so they didn’t file it.|
|Matthew Hill:||And they lose all those back benefits.|
|Carol Ponton:||All of those back benefits.|
|Matthew Hill:||The area that I see this very often is with Agent Orange benefits that unfortunately some of the veteran service officers could be misinformed in that if it’s not on the VA’s list of disability that is related to Agent Orange, then they’ll never get the benefits. Well, they don’t the presumption in that instance, meaning you still have to get a doctor’s letter showing how it’s related, but the other, to me, devastating thing is is that the VA is constantly adding new presumptions on there like they added Parkinson’s and heart disease a little while ago. Well, we’ve had plenty of vets who’ve had …|
|Carol Ponton:||Heart disease for 30 years.|
|Matthew Hill:||And they wanted to apply and they were told, “Oh, you’ll be denied.” Well …|
|Carol Ponton:||They would have been denied, but now under the new law they would go back to when … If they had filed a claim, the VA would go back and pay them all that time period. There are a lot of claims that are going to be awarded in the future. There are going to be presumptions they come up with. If you really think that’s what happened to you is related to the VA, file the claim.|
|Matthew Hill:||Get it out there. You know the VA has a duty to assist you with your claim. I will say on the downside, though, you need to think it’s related to service. You don’t just put something on there just because you have that problem, you have arthritis. You need to think that there was something that happened in service that’s causing that now or that you already have a service-connected disability that’s causing it like diabetes causes neuropathy. Don’t just throw something on there to throw it on there, but if you have a disability and you feel like there’s nothing other than service that would have caused that, then go ahead and put it on and if you win, then great. If you don’t, well then it’s a claim you can hopefully re-open one day.|
|Carol Ponton:||In the future.|
|Matthew Hill:||Thank you for listening and again tune in to this space for more information, specifically on the series of big mistakes we see.|
|Matthew Hill:||Hello and welcome to the Hill & Ponton VA video blog. I’m Matthew Hill.|
|Carol Ponton:||I’m Carol Ponton.|
|Matthew Hill:||Today we want to talk to you about individual unemployability. We want to talk to you about a set of cases that most people don’t know about, and end up being very hard cases. Those are the cases where the veterans do not meet the rating threshold to receive unemployability benefits. We get this question all the time. What do I do when my rating is not high enough to get …|
|Carol Ponton:||Let’s tell them, in order to get unemployability you have to show that you have one rating that’s 60% or a combination or ratings at 70% with at least one of them at 40%. Okay, so say you don’t meet that but you can’t work because of your service-connected problem. The thought comes to mind is migraines, headaches. The highest rating you can get for that is 50%. That’s the only rating you have.|
|Matthew Hill:||At that point you can’t work, and a lot of times we see veterans like this who actually already receiving social security disability because of the migraines. If you can’t work and you’ve maxed out on your ratings, there is what I call a back door to unemployability. Carol just laid out what is necessary in the majority of the cases, those ratings. If you have one of those ratings, the 70% like she said or the 60%, you can be granted unemployability by your regional office. They can grant it right there or if they deny it you can go up to the Board of Veteran’s Appeals and be granted there.|
|Carol Ponton:||They’re used to these cases. They work these cases. A lot of them are approved.|
|Matthew Hill:||The other case we’re talking about, you only have that 50%. At that point, you have to keep on pushing your case. To win your case it has to go to the VA central office. The director of compensation has to sign off on this. These cases are a lot harder because your first battle is to get the person in the regional office to acknowledge that you are unemployable because of this 50% rating. Once that, I’ll call it a line adjudicator, makes that decision they have to give it to their supervisor and that person has to agree. From my understanding, there’s actually a third person that has to agree in the regional office. Well, unfortunately, the easier thing to do here is just to deny.|
|Matthew Hill:||We see that all the time. We’ve handled quite a few of these cases, and I’ve never seen a regional office send it over.|
|Carol Ponton:||On their own.|
|Matthew Hill:||Then it goes to the Board of Veteran’s Appeals. The Board cannot grant this case. They too would have to send it to the director of compensation. By that time hopefully you have enough positive evidence; you’ve got your social security opinion, you’ve got your doctor’s opinion, whatever you have in there. Then really the only thing the Board can do is send it back to the regional office and tell them to send it to the central office. This takes an incredible amount of time. The shortest one of these cases I’ve seen is five years because there’s no direct person who’s going to grant this. Now, if it goes back to the director, it goes from the director of compensation and they deny it, then it can make it’s way back up to the Board of Veteran’s Appeals and they can grant the case.|
|You can see from that chain of events, you know, seven, nine years is not out of the question. The VA will not tell you about this way to get unemployability, unfortunately, the majority of veteran services officers don’t know it. It’s just important to understand that if your service connected disability keeps you from working, whether it’s a 70% rating, 50% rating or even 30% rating, then you are entitled to unemployability compensation. The question is, what’s the route to take to get it? Carol mentioned the migraines. The other one we see all the time is back. If I see a veteran with a back disability rated at 40% that to me is really serious because the VA underrates backs. If I see someone at 40% then that tells me that they probably are not working because of that alone.|
|Carol Ponton:||Right. I have a case right now that has done exactly what Matt said, it’s gone to the regional office, it’s gone up to the Board of Veteran’s Appeals, the Board of Veteran’s Appeals sent it back and said, “Even though he has a 40% rating for his back, so he doesn’t meet the regular IU, I am directing you to send it to the central office and have them decide whether or not this veteran could work because of his back.”|
|Matthew Hill:||Again, just remember if you can’t work because of it you need to keep on pushing the case, but you also need to realize it’s not going to be a short and easy win.|
|Matthew Hill:||Thank you for joining us today and we hope to see you back on this space soon.|
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- Video Blog – Common Mistakes – 100% vs UnemployabilityApril 20, 2017 - 2:02 pm
- Video Blog – Common Mistakes – Understand the Goal of Your ClaimMarch 30, 2017 - 1:04 pm
- Video Blog – Common Mistakes – Don’t Sit Back During Your AppealMarch 23, 2017 - 12:12 pm
- Frustrated with Your VA Health Care: What are Your Options?March 9, 2017 - 10:13 am
- Video Blog – Common Mistakes – Not Appealing at the BVAMarch 8, 2017 - 9:55 am