|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.|
|Matthew Hill:||Hello there. I am Matthew Hill and this is Carol Ponton on the Hill and Ponton VA video blog. Today, we want to talk to you about a question we get all the time. What is my claims file or what is my C-file?|
|And simply put, your C-file is the folder that the VA benefits section keeps on you that has any and all information about every claim you’ve ever file.|
|Carol Ponton:||It should have your service medical records, should have every claim you file, the compensation and pension exams, all of the records they collected and the decisions that they made.|
|Matthew Hill:||The key distinction here though is the records they have versus the records you think they should have.|
|Matthew Hill:||Whenever we take a claim, the first thing we do is we get a copy of our veterans file because that, in essence, it’s the foundation of our representation and that’s what we look to figure out our plan of attack and how were you going to get your benefits because we don’t know what we don’t know. We talked to our veterans and they tell us all of this medical evidence they file, service records they file, and then we look in the file and somehow that’s not there.|
|In essence, that can be a pretty easy case because that’s just making sure the records get in the file, but also, they’ll be negative CMP exams that we will need to counter with positive ones. Going in and filing a claim and having to file an appeal and not having your records, it’s kind of like fighting with your hand behind your back. They have all the information and you don’t.|
|Carol Ponton:||I find that a lot of my veterans think the issue is, what I have to prove is one thing when it’s really something totally different. When we get the claim file, then we know exactly what you need to win and we can tell you that. Getting the claims file takes a long time. We basically ask for the claim file, we wait three months, then we have to file a FOIA, which is Freedom of Information and Privacy Act appeal. We have to wait three more months and then usually we have to sue them and then they provide the file. So it’s taking a while.|
|The other reason you need the file is we get independent medical opinions most of the time and the VA will not give them credence. They won’t listen to them unless we can show that the person getting this opinion has read your claim file, the pertinent parts of the claim file related to what they’re giving you an opinion on.|
|That’s one of the things that hurts our veterans. They will send in an opinion from their doctor, but the doctor hasn’t read the claim file. That claim file is key to winning your case.|
|Matthew Hill:||Then if you’re not getting it again, you’re handicapping yourself on being able to win your claim.|
|Thanks for joining us today and we look forward to seeing you again on the space soon.|
|Matthew Hill:||Hello, and welcome to the Hill and Ponton Video blog. I’m Matthew Hill.|
|Carol Ponton:||I’m Carol Ponton.|
|Matthew Hill:||Today we want to talk to you about a specific group of soldiers, paratroopers, and the resulting injuries, the resulting disabilities they end up having from that MOS. Typically what we see are orthopedic disabilities.|
|Matthew Hill:||What a lot of these veterans don’t appreciate is even if they didn’t have a disability in service, they didn’t treat for their back. They didn’t treat for their knee. They didn’t treat for their neck. If they develop a disability later in life, that is enough showing their MOS there that it should be related.|
|Carol Ponton:||Right. The VA has actually done studies to show that people who did a lot of paratrooping in the future are going to end up with these problems. Some of these people will automatically, when you file a claim, be accepted, but more likely than not they’re going to send you to a C&P exam, and the doctor will say, “It’s not related. I don’t see anything in service.” You can get medical opinions that show that the VA has studied this, and that it is very likely for people who had a lot of jumps to end up with back problems, knee problems, lots of problems. If you are one of these people, you have a right to these benefits, but you need to get in there and file for them, and then be willing to get an independent medical opinion. We have veterans that had no problem in the service but ended up with horrible knees and backs and are 100% disabled because of those.|
|Matthew Hill:||Something Carol said is that we see common in both C&P examiners and frankly adjudicators to the VA. They say, “well, in service you didn’t treat with us.” The law states that you have to have an incident in service that caused a current disability. You don’t have to have a disability. You don’t have to have been diagnosed with something. You have to have an incident that caused it. The incident in this case is hard landings, repetitive landings with a heavy pack. Even though there is no disability that appeared at that time, that is what caused the current disability now.|
|Matthew Hill:||Unfortunately, we’re not doctors, but we see this so often and it just looks obvious to us. Yet, for some reason both the VA, the people making decisions and the doctors are just so focused on, “I don’t see an injury noted in service.” If this is you, continue to appear and as Carol said, find either your doc outside or a private doc who will look at this and talk about whether it’s related or not. Thanks for joining us. We look forward to seeing you in this space soon.|
|Matthew Hill:||Hello and welcome to the Hill & Ponton,VA video blog. I’m Matthew Hill.|
|Carol Ponton:||Carol Ponton.|
|Matthew Hill:||Today we want to talk to you about decisions from the Board of Veteran’s Appeals, and just to put the Board of Veteran’s Appeals where they are in the VA, first you file a claim at the local regional office. They make a decision, you file an appeal. They make another decision and then you appeal again. At that point it goes to Washington to the Board of Veteran’s Appeals, also known as the BVA. When the BVA makes a decision, one of three things happens. It’s either a grant, denial, or a remand. What we want to talk about today is the difference between a grant and a denial.|
|Carol Ponton:||A grant means they’re going to give you some benefit. Say, you had not been service connected for PTSD. They will say, “I find the veteran service connected for PTSD.” It goes back to the regional office for them to effectuate that. What does that mean? Well, you’re granted service connection, but what’s your rating? What’s the start date? The regional office has to make additional decisions and then send out a rating decision.|
|Matthew Hill:||That’s key, because if you fought for three years, five years, seven years to get PTSD we’ll say service connected, and the BVA says, “We service connect this,” well then the real money if you will is back when it goes to the regional office and they get to give you a rating. They give you a rating of 30% going back seven years, that’s a huge difference between 30 or 70 or 100. The same thing is the effective date, as Carol said. If you’ve been fighting for seven years but somehow they only give you a two year retro, that’s …|
|Carol Ponton:||Which we find a lot, or a one year retro. I had a veteran who had had a stroke and they gave him 10% back one year. He was entitled to 100% back 20 years. You really need to watch. Just because the regional office makes a decision on the remand that doesn’t mean they do it correctly. You need to …|
|Matthew Hill:||Or the grant.|
|Carol Ponton:||The grant, right.|
|Matthew Hill:||It’s winning the battle and losing the war. You win the battle of service connection, yet it’s sent back to the regional office which had denied you twice, and they low ball you on the rating, or they short change you on the effective date. That’s what to watch out for in a grant.|
|Carol Ponton:||You have to appeal that. Okay?|
|Matthew Hill:||Yeah, you appeal it all the way back up. Now, you will see in the BVA decision it should specifically say, “A grant of service connection for PTSD.” If you’re already awarded PTSD then it would say, “A grant of 70% for PTSD.” If you see that it’s a specific rating, you know you’re going to get that rating when you go back. What would you watch out for there?|
|Carol Ponton:||I’d watch out for the effective date.|
|Carol Ponton:||Unless the VA says, “Effective this date,” the BVA says that, then the regional office has the opportunity to decide what date they think is correct. We find that they under-provide rather than over-provide benefits. You need to be really careful. A lot of people think, “Well this is what the BVA said so I can’t appeal it.” That’s not true. The BVA only said probably, you’re service connected. It was up to the regional office to make those other two decisions.|
|Matthew Hill:||The BVA specifically says, “We can’t in the first instance,” meaning after it’s service connected, “We can’t in the first instance make the determination on rating or effective date.”|
|Matthew Hill:||Let’s transition now to remands. How do you see, what’s the difference between a remand and a grant?|
|Carol Ponton:||First of all, the vast majority of what the BVA does is remand. You’re more likely to see a remand than anything else. Remand is saying, “We need something more done. We need you to get more evidence, we need you to send the veteran out for a compensation of pension exam, we need you to obtain service medical records.” They direct the regional office to do a number of things. If you have a grant, usually that grant is effectuated, in other words you get a rating decision within two or three months.|
|If you have a remand you could be looking at two or three years. You have to be really careful because these get lost. Say that the BVA said, “I’m going to remand you on four issues.” You may end up in three years getting a decision on one issue. You need to make sure that, you’re going to have to write in and get them to move. This happens quite frequently on a number of the BVA remands. VA is overwhelmed with paperwork. It’s really easy to lose things. It is your claim; you’ve got to pay attention to what they’re not doing.|
|Matthew Hill:||What she’s saying there is, you don’t want them to get lost in that crease or gap between what the BVA’s doing and what the regional office is doing. Unfortunately a lot of claims do get lost in there. Regional office will say, “Oh, we never got the paperwork,” or they’ll say as Carol said, working on all this other stuff. Remand is, you know it’s not a loss, but you still need to be on your toes. They’re sending it back for certain evidence. You want to get a copy of that evidence and respond to it so that it goes back up to the BVA with the most favorable light as possible.|
|Carol Ponton:||This is wonderful because it gives you a chance to, somehow you didn’t get the benefits you want. This gives you a chance to do that. Remember, the BVA is saying, “I want to see all this evidence.” You can’t rely on the VA to collect that evidence for you, even though they’re directed to do that. Let me give you an instance. Say you have a private orthopedic doctor who’s been treating you. They want, the BVA wants to see those records. The VA will write a letter to the private doctor and say, “Send me those records, but I’m not going to pay for them.” Most private doctors want to be paid.|
|Those records will never end up in the file and the VA will just show two letters to the doctor and nobody responded. You need to go out and get all the evidence that’s favorable and put it in. Send it in to the VA and make sure they have it. When you see the decision that the VA makes, make sure that evidence shows up there. This is also a chance maybe to go out to your doctor and get the additional evidence which the BVA feels is missing, like what was the range of motion, or do you have a problem with instability for your knee. This is a chance to get that proof for your case.|
|Matthew Hill:||Thank you for joining us. We hope to see you soon again on this space.|
If there is one topic that I am asked about on an almost daily basis, it is whether there is anything I can do to make the VA speed up the appeals process. And, if I am being completely honest, I have to respond that, while there are a few exceptions, there is not much anyone can do to speed things up under the VA’s current appeals system.
The most recent information I have seen indicates that a veteran who files a notice of disagreement at the St. Petersburg VA Regional Office can expect to wait more than 500 days for a decision on that appeal. Veterans who file their appeal in the Cleveland VA Regional Office can expect to wait twice that amount of time for a decision. The wait time varies between the different regional offices, but almost every veteran can anticipate that the wait will be long. Similarly, if a veteran needs to appeal the decision of a regional office to the Board of Veterans’ Appeals, the wait time is currently in the range of three years.
The VA does have some avenues for expediting a case. The regional offices and the Board have identified certain circumstances under which they will move a case up in the line:
- Advanced Age. There is some dispute among the regional offices and the Board about at what age a veteran qualifies for expedite. Board regulations specify that a veteran over the age of 75 is entitled to expedite. Some regional offices have told us that because they have so many cases with veterans in that age group, they are considering only veterans of 80 or 85 for an expedite.
- Seriously Ill. This standard is somewhat subjective as all of the veterans filing appeals in the VA system are disabled in some way. Arguing that a veteran is in poor health needs to be backed up with evidence in the form of medical records. VA does act more quickly in the case of a veteran who has been diagnosed with a terminal illness.
- Severe Financial Hardship. Again, this standard is subjective. Many disabled veterans are suffering from financial problems, and this claim would have to be backed up by evidence of financial hardship. The documents we have found to be most successful in proving financial hardship severe enough to qualify for expedite includes evidence of filing for bankruptcy and/or evidence of foreclosure or eviction.
I should qualify the above information with an acknowledgment that even cases which are expedited are not going to receive immediate decisions. In a backlogged, overwhelmed VA system, there are so many veterans of advanced age, poor health, and in financial distress that even veterans whose cases have been expedited must continue to stand in a line.
Veterans often ask if involving their Congressman or contacting the media can help their case. Occasionally, if the veteran is lucky enough to have a Congressman take a personal interest in the case, this could be helpful. More often, however, this type of request involves a staffer sending a form letter to the VA asking for the status of the case and a brief reply from the VA explaining the status of the case. It does not usually speed things up at all.
So, what happens if the VA takes longer than these average wait times to decide an appeal? Is there anything we can do then? In that case, there are avenues to ask the Court of Veterans Appeals to force the VA to take action in a case. We can file a Petition for Writ of Mandamus with the Court, requesting that the Court order the VA to act. This kind of petition is not a magic wand—it does not guarantee a favorable decision—but, if it gets to a point where the VA’s delay is outside the norm and essentially amounts to a refusal to take action in a case, the Court can require that the VA take some kind of action in order to move the case forward and at least allow the veteran to appeal his case to the next level.
There are always proposals for ways to speed up the VA, some good, some not-so-good. A slow “yes” is obviously better than a quick “no” from the VA, so we have to balance the idea of speeding things up with the need for a quality decision which grants the veteran every benefit to which he or she is entitled. Until we have a better system in place, we have to be prepared for long waits. We can keep pushing at the VA to make the right decision, but we cannot make them do it in a timely manner.
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