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Robin Rosenblad, Claims Advocate

VA ASSISTANCE FOR VEHICLE PURCHASE OR MODIFICATION IN CERTAIN INSTANCES

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In limited circumstances, the VA will authorize up to $20,235.20 for a veteran to purchase a vehicle.  The types of vehicles authorized vary and can include a car, van, pickup, jeep, etc.  It may also authorize payment for certain adaptive equipment to be added to an existing vehicle such as power steering, power brakes, power windows, power seats, and special equipment necessary to assist a person into and out of a vehicle.

Please note that this authorization cannot be applied retroactively to a vehicle or equipment already purchased.   You must first submit the appropriate application as outlined below and be approved before any vehicle or equipment is purchased.

To be eligible for a vehicle purchase, an active duty service member or veteran must meet certain qualifications. (A veteran who is “treated as if service-connected” by qualifying under 38 U.S.C 1151 – which means an injury was sustained due to medical treatment at a VA sponsored medical facility or during vocational rehabilitation or compensated work therapy — may also be eligible.)  The applicant must be service-connected for one of the conditions listed below or, if still on active duty, then have one of the conditions listed below that results from disease, injury or aggravation of injury incurred during active duty:

  • Loss, or permanent loss of use, of one or both feet, OR
  • Loss, or permanent loss of use, of one or both hands, OR
  • Permanent impairment of vision in both eyes to a certain degree, OR
  • Severe burn injury, OR
  • Amyotrophic Lateral Sclerosis (ALS).

To qualify for adaptive equipment, you must meet the same requirements listed above.   Another condition, ankylosis (or immobility of the joint) of one or both knees or hips which is service-connected or “treated as if service-connected” can also qualify a veteran for adaptive equipment.

To begin the qualification process, a veteran or service member should complete VA Form 21-4502, “Application for Automobile or Other Conveyance and Adaptive Equipment” and submit it to the VA.   Be prepared to submit evidence along with the Application to prove that you have one of the conditions listed above.

If qualifying under the vision impairment condition, the evidence must show:

  1. Central Visual acuity of 20/200 or less in the better eye with glasses, OR
  2. Central Visual acuity that is greater than 20/200, if there is a visual field defect in which your peripheral field has contracted to such an extent that the widest diameter of visual fields subtends an angular distance no greater than 20 degrees in the better eye.

If qualifying under the severe burn injury condition, the evidence must show:

The deep partial thickness or full thickness burns resulting in scar formation that cause contractures and limit motion of one or more extremities or the trunk and preclude the effective operation of an automobile.

If your application is approved, you will receive a letter from the VA with the authorized amount to be spent and a copy of the authorized Form 21-4502 that will have the “Certificate of Eligibility” portion completed by the VA.   There is a Section III on that same form that will have to be completed by the Seller (or the Veteran) with specific information.  The Seller must also attach a copy of a vehicle window sticker or an invoice listing the adaptive equipment to be purchased.  The Seller should also provide a list of any adaptive equipment that was provided as standard equipment on the vehicle.   The seller then has to send the completed form and attachments to the address listed in the authorization letter in order for payment to be sent.

Robert Rivera, Claims Advocate

Help Your Case with Better Details – Part I – Statement

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When putting together a statement in support of your claimed condition, are you looking to tell the story about your injury for the first time and seeking to get service connected? Are you already service connected and seeking a rating increase? Each has their own distinct approaches. For the purposes of this blog, we will talk about some of the important elements required in producing a statement which supports a claim for direct service connection of a new claim. Methods for writing statements which support rating increases will be discussed in part II of this blog.

Needless to say, the most convincing method in substantiating an argument is cold, hard proof. Within the legal system, it’s known as corroborating evidence, evidence that is submitted to make a statement more likely to be true. Documents, pictures, testimony are all examples of corroborative evidence. They can appear in the form of service records, medical records, x-rays, MRIs, and articles and testimonies from credible sources. When both sides “The claimant (you) vs. The VA” have submitted all their hard evidence and the adjudicator is uncertain about a decision,

Writing a persuasive and stirring statement in support of your claim is in the details. No one can tell your story better than you. You’re the one that experienced the circumstances that lead to you having to file a claim. If a Decision Review Officer (DRO) or a Board of Veterans’ Appeals (BVA) judge is “On the fence” deciding your case, a convincing Statement In Support Of Claim (VA Form 4138) can be instrumental in swaying the mediator in your favor. It’s no different than trying to persuade a relative, friend, or acquaintance to choose your side. With that in mind; remember that the level of familiarity between you and that given relationship will affect the extent of coaxing you’ll need to render in order to achieve that person’s partiality. For example, let’s say you’ve encountered an unexpected financial expense that extends you beyond your structured budget and you need help now. Would you ask a relative who might help you no questions asked because they know and trust you? How about a friend who knows your background but may require a little more explanation of the circumstances in order to help him decide to help you, An acquaintance will certainly urge you to provide more detailed information and how you plan to repay the assistance afforded you, perhaps even requiring an incentive of some kind to motivate your potential rescuer. The point being; when writing a statement meant to support and justify the assistance you know you are entitled to; you are asking a complete stranger that has the authority to decide your case, to understand your plight and choose on your behalf.

That stranger doesn’t know you or anything about your case except what he reads in your file, you have to place him in your boots. Put him in the moment of when your injury occurred. Paint a vivid picture of how you sustained your injury. Show, don’t tell; how you’ve endured the everyday anguish, distresses, and complications stemming from the injuries you incurred as a result of your service to your country during active military duty. How do you paint that picture? You paint with words; more specifically, with details. Remember the five “W”s; what, where, when, why, and who. Detail each of them specifically.

What: What is the issue you’re raising? Is there more than one?

If so, you may want to talk about each claim separately in different statements. This will help you and the reader stay focused on the issue at hand. Since your claim is for direct service connection, you are going to want to focus on the circumstances during service which resulted in your injury. We will use the same issue for the purposes of this discussion. For example, if you are claiming bilateral hearing loss based on exposure to loud noises during service, describe what it was that damaged your hearing while in service.

Where: Where were you when the injury occurred? Were you in combat? Were you involved in exercises?

Describe the environment that exposed you to the loud noise. Did you work in a closed room with loud machinery? Perhaps in the engine room of a Naval ship? Be very specific about the surroundings. Were there metal bulkheads, or overheads? Were there windows in the room or did the noise just bounce around in the room? Was it an engine room? What kind of engines? Was it hot? Starting to see the picture?

When: When did your injury happen?

Be as specific as possible about when in service your injury occurred. Provide dates and if possible the time of day. If you don’t remember the exact date or time, give a time frame. Was it a repetitive action or duty? For instance, if claiming hearing loss and you were part of a gun crew, how often were you exposed to the explosive discharge of the gun? How frequently was it fired? Was it daily, monthly, weekly, as required, or constantly?

Why: Why were you exposed to loud noises?

In most cases it’s directly tied to your MOS; it’s what your job or duties required you to do. Include your MOS and its description. Talk about how it applied to your duties. Sometimes it may not have anything to do with your job during military service. For instance, if you were off duty and exposed to a loud noise that caused acute hearing damage, write about the details involving the incident and mention witnesses or get reports from local law enforcement or a business if that’s where you were. Witnesses are a very credible source of evidence because in most cases they are impartial to your case.

Who: Who was present when your injury or exposure occurred?

Who can speak to what happened or can corroborate your explanation of the circumstances. For example; if you were an assistant on a gun crew, who else was on the crew that can verify your role in that crew.  A statement from a fellow service member can be an invaluable support to your case. In many cases, their statement might be in the form of a Buddy Statement very similar to your VA Form 4138 statement which we will talk about further in part II of this blog.

It may be difficult to remember the details many years later, but if you stop and reflect, you may remember details that occurred right before or after your injury occurred. It could be that each detail you remember and talk about will lead you to remember another and so on. Writing a convincing statement in support of a claim is a great tool to have at your disposal. Provide as much detail as possible in order to make your statement come to life for the VA. Also, make sure that you are giving the VA a complete picture of your disability, including the impact your disability has on your day-to-day life, social interactions, and employability. The better and clearer a picture you paint, the easier your reader will see your side.

 

Amanda Dejesus

VA Disability for Skin Conditions

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There are many veterans who experienced exposure to chemical hazards or environmental hazards while on active duty. These exposures may have lead to skin disorders that arose while serving active duty or came about after military service. It is also possible for some veterans to experience effects of their skin conditions even after their time in the military has ended.

Establishing Direct Service Connection

To prove that a veteran’s skin condition was directly caused by military service and service-connected, the veteran would need to show:

  • a current diagnosis of a skin condition
  • evidence of an incident in service that caused the skin condition
  • medical evidence (a doctor’s opinion) connecting the current skin condition to the incident in service.

Presumptive Service Connection

Veterans who served in Vietnam and were exposed to Agent Orange and developed chloracne within one year of exposure to Agent Orange or herbicides may be eligible for disability benefits for their skin condition through presumptive service connection.

Types of Skin Diseases:

Eczema and Inflammatory Skin Diseases

The term eczema actually applies to a broad range of chronic skin disorders that involves inflammation of the epidermis. Eczema sufferers often experience scaly and itchy rashes, characterized by itching, cracking, oozing or bleeding. Veterans who suffer from eczema are often treated with drugs, like high-strength steroids and drugs acting on the immune system, which may have certain side effects.

Psoriasis

Psoriasis is a long-term skin problem that causes skin cells to grow too quickly. Instead of taking weeks to reach the surface of the skin, new cells take only days, which results in thick, white, silver or red patches of skin. Experts believe that psoriasis is caused by an overreaction of the immune system, causing inflammation and flaking skin.

Scars

Many veterans are eligible for service-connected compensation for scars related to injuries or illnesses sustained during military service such as scars from burns, surgery, and gunshot wounds. The percentage rating relates to the placement and size of the scar.

Disability Ratings for Skin Conditions

Skin conditions are rated with the use of the VA Rating Schedule. This is what the VA uses to break down each disability. The disabilities are broken down into different categories based on the part of the body that has been impacted. The VA rating schedule lists out all of the different types of skin conditions and their rating based on the severity of the condition.

Scars on the head, face, or neck are rated on skin loss and how many facial features have been disfigured. Ratings for scars on areas of the body other than the head, face, or neck are usually based on the size of the scar. A good example would be if a veteran had a scar on his or her nose, only a 10% rating would be assigned due to the small area of the face being affected.

Ratings for dermatitis or eczema are rated based on how frequently medication is needed to control outbreaks, the type of medication that is needed, and what percent of the body is affected. For instance, if at least 5% of the body is affected, a 10% rating will be assigned. If 40% or more of your skin is affected, then a 60% rating is warranted.

Chloracne is rated based on how much of the face and neck it affects and whether it is superficial or deep acne. Deep acne has more inflammation and visible infection, whereas superficial acne is less inflamed. Compensatory ratings are only assigned for deep acne. Ratings of 30% are available for deep acne only when it is on 40% or more of the veteran’s face and neck.

Cassandra Crosby, Claims Advocate

MST, PT, and the VA: Changes in the Evidence Requirement

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In the past, if a Veteran made a claim for disability compensation for a condition caused by a military sexual assault (MST) or personal trauma (PT), the victim had to prove the event occurred with police reports, medical records, or some other type of evidence that could show that the crime occurred. For most claims, this is standard evidence requirement. However, for those who suffered a sexual assault or personal trauma, Veterans often did not report the incident or seek medical treatment.

The stigma that surrounds sexual assault in the military can often lead to the loss of a career. Military victims, male and female, are often ridiculed, shunned, and subjected to further abuses when they reveal an assault. The mental health reactions can often be mistaken as adjustment or personality disorders that lead to discharges and the loss of career, purpose, family, income, and self-worth. After years of civilian doctors, advocates, and therapists pushing for changes, the VA finally recognized that in this type of crime, victims more often than not, do not report the event. Sometimes, going forward with their daily routine is how they cope with the incredibly horrific event that has just occurred to them.

The VA Response

The VA responded in 2002, by lowering the level of evidentiary proof for cases of MST and PT than other claims. For these claims, the VA requires only that there are “markers” to the event to show that it is “more likely than not” that the event occurred in order for a Veteran to receive an award for benefits if they are suffering from a mental or physical condition as a result of one of these crimes. Markers are anything that can indicate that something happened. This can include changes in behavior, increased visits to their doctor, requests for changes in duty station or assignment, routine changes, increased or new alcohol or substance use, and increased risky behaviors such as volunteering for extra deployments or starting to skydive. There can also be emotional changes such as becoming angry, irritable, or withdrawn and isolative. Sometimes people can even become more outgoing or social as a way to hide pain, but any changes can be markers. Statements from family, friends, or coworkers indicating their observations of changes in behaviors are also valid evidence in MST and PT cases.

Why Should a Veteran File a Claim?

Veterans who are experiencing any type of mental or physical effects of an MST or PT should file a claim for disability compensation for two reasons. First, is to obtain healthcare benefits. Whenever a condition becomes service-connected, the condition also is now treatable by the VA medical system at no cost to the Veteran. While mental health issues are now often available at no cost to most veterans, having a condition service connected affords a Veteran increased options for innovative types of therapy that may not be available otherwise.

The second reason is for compensation. If a Veteran is experiencing mental health conditions that are just minor, they may receive a low rating or even a 0% rating. However, getting that initial rating makes it easier to get increased benefits later if their symptoms get worse. Unfortunately with mental health conditions associated with trauma, sometimes even years later, an event can trigger an increase in symptoms. If the Veteran is already service connected, they can file for an increase in benefits or even Individual Unemployability much easier than trying to get service connected at that point. The process is long and frustrating, so filing the initial claim while symptoms are not as severe is less emotionally challenging as well.

The third reason, and this is not the most important to the Veteran but could be to their brother and sister Veterans, is to show how severe the problem is. In 2014, it is estimated that almost 20,000 military members were victims of unwanted sexual contact. Just over 4% of active duty females and almost 1% of active duty males were victims and of those, only 43% of females and 10% of males reported the assaults.

Has this Change been Effective in Awarding Claims for Victims?

The change has been very effective in increasing the number of Veterans whose claims for PTSD related to MST were awarded. Since FY 2011, there has been an increase from 35.6% to 53.4% by FY (to date) 2017. That is a very dramatic change in only six years and shows that sometimes the VA does something that ends up being very beneficial for Veterans.

Filing a claim for a mental health condition related to MST is something to be done with care to ensure that the Veteran is not re-traumatized. Work with a therapist or sexual assault advocate to provide support and encouragement for a Veteran going through this very difficult process.

 

Anne Linscott, Attorney

VA Claims Involving Shell Fragment Wounds – Muscle Disabilities

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When filing a claim for residuals of a shell fragment wound, it is important to pay close attention to how the VA ultimately rates your condition.  This is because, ratings for residuals of shell fragment wounds can be difficult since these injuries cause damage to muscles, but can also damage bones, joints, and nerves.

Cardinal signs that a shell fragment wound resulted in a muscle disability include:

  • Loss of power
  • Weakness
  • Lowered threshold of fatigue
  • Fatigue-pain
  • Impairment of coordination
  • Uncertainty of movement

The skeletal muscles are divided into 23 different groups in 5 anatomical regions. The 5 regions are:

  • Shoulder girdle and arm
  • Forearm and hand
  • Foot and leg
  • Pelvic girdle and thigh
  • Torso and neck

Evaluating Muscle Disabilities

When evaluating muscle disabilities, the VA looks to diagnostic codes 5301 through 5323. The following classifications apply when rating a muscle injury:

  • Slight – A slight muscle disability involves a simple would without infection or debris (for example, bits of bone or shrapnel); the wound was easily treated and had good healing and function; there are no cardinal signs or symptoms, and there is small scar with no resulting impairment of function.
  • Moderate – A moderate muscle disability involves a through-and-through (the bullet or projectile went in one side and straight out the other) or a deep penetrating wound (the bullet or projectile entered the body in one side and penetrated deep into the body, but did not come out the other side of the body) without serious infection; there is a regular presence of one or more of the cardinal signs or symptoms of a muscle injury; and there are small scars present with some loss of muscle tone or substance.
  • Moderately severe – A moderately severe muscle disability involves a through-and-through or deep penetrating wound with debris, prolonged infection, and development of limiting scar tissue in the muscles; the wound would have needed hospitalization for treatment, have constant presence of cardinal signs and symptoms, and would significantly interfere with the ability to work; there are significant scars that go across one or more of the muscle groups resulting in loss of muscle substance and ton, and a definite decrease in function and use.
  • Severe – A severe muscle disability involves a through-and-through or deep penetrating wound with shattered bones and a lot of debris; prolonged infection; seriously limited scarring in the muscles; the wound would have required lengthy hospitalization for treatment; constant and serious presence of cardinal signs and symptoms; definitely inability of the muscle to work; large, jagged scars going across a large area; serious loss of muscle substance and tone causing significantly abnormal muscle function.

Separate Ratings Involving Muscle Injuries

Because residuals of shell fragment wounds can involve different parts of the body the principle of pyramiding often comes into play. Generally, all disabilities, including those that result from a single disease or injury are rated separately. However, the rule against pyramiding states that a veteran cannot receive compensation more than once for the same disability or the same manifestation of symptoms.  In other words, if a veteran has two disabilities that result in the same symptoms, the veteran cannot receive separate ratings for each disability and in turn, can only be compensated for one of those disabilities.

If there are muscle injuries in different anatomical regions they can be rated separately. There are also instances where a separate rating can be given for a joint disability and a muscle disability in the same anatomical area. For example, if there is a joint disability that causes traumatic arthritis and there is a muscle injury in the same anatomical area that doesn’t act on the joint there can be a separate rating for both the joint disability and the muscle disability. Also, if the scar is superficial and painful on examination, but does not have underlying soft tissue damage, then the scar can be rated separately under diagnostic code 7804.

The key to separate ratings when dealing with muscle injuries is to look at the specific manifestations of the disabilities. If there is impairment not accounted for by the muscle injury rating, then you may be entitled to a separate rating for that impairment.

Nicholas Simpson, Attorney

New VA Appeal Process Unveiled

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On August 23, 2017, President Trump signed a bill that is meant to overhaul the VA appeals process.  This bill is known by the short title, Veterans Appeals Improvement and Modernization Act.  The obvious questions for the new VA appeal process are:

  1. What does this bill do?
  2. When does it go into effect?
  3. How is it going to affect the appeal process?

What is the new process?

The first answer is simple.  The bill is meant to speed up the appeals process which currently takes years for veterans to get their much deserved, and oftentimes needed, benefits.  Currently, the VA offers two appeal processes when a veteran receives a decision that they disagree with:

  • Appeal, with new information, to the same adjudicator (reconsideration), or
  • Requesting a higher-level adjudicator (Decision Review Officer or DRO).

Both choices require the filing of a Notice of Disagreement, and following either choice, another rating decision will be issued (positive result) or a Statement of the Case (continued denial) will be issued.  To continue the appeal, the veteran must file a VA Form 9, called a substantive appeal, to the Board of Veterans Appeals.

The new law adds another option to the appeal process.  Under the new law, a claimant can choose to file what is known as a “fully developed appeal.”  To do this the claimant must file with the VA:

  • Their notice of disagreement, with written election to have the appeal determined under the program,
  • All evidence that the claimant believes is needed for the appeal as of the date of the filing, and
  • A statement of the argument in support of the claim, if any.

This new VA appeal process eliminates the Statement of the Case mentioned above and the need to file a VA Form 9.  The claim is then sent directly to the Board of Veteran’s Appeals.

The “fully developed appeal” does come with strict restrictions though.  Once filed, a claimant may not submit or identify any new evidence relating to the claim unless they revert to the standard appeals process.  If the claimant submits or identifies any such new evidence, the submission is deemed to be an election to use the standard process.

To clarify, this does not mean that there will be no additional development once at the Board.  When one chooses to use this path for their appeal, the Board is not prohibited from acquiring or requesting additional evidence.  The new law does, however, prohibit the Board from returning the case to the regional office for this development.

When does the new process begin?

The VA officials have stated it will take approximately 18 months to implement the new system meaning we are unlikely to see it go into effect until spring of 2019.  The delay is due to a number of reasons including needing to move staff, hire additional workers, acquire new space, and provide training for the new system.

How will it affect the appeals process?

In theory, the new system will allow to cut down on the backlog of cases that the VA is currently experiencing.  By allowing cases to move up the appeal process faster and limiting the submission of additional evidence to the initial appeal, the overall appeal process should be sped up.  The process also aims to eliminate some of the “hamster wheel” processes that currently plague the VA appeal process.

Thank you for reading and for your service.

Robert Rivera, Claims Advocate

Diabetes Mellitus Type II due to Agent Orange Exposure

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Diabetes Mellitus Type II (DMII) is one of the 41 diseases that the VA has included on its list of presumptive illnesses due to Agent Orange and other types of herbicide exposure. To see more on qualifying conditions click here.  In other words, if you developed DMII and were exposed to Agent Orange or other herbicides during military service in Vietnam during the period January 9, 1962, through May 7, 1975, or you served in a unit in or near the Korean demilitarized zone (DMZ) anytime between April 1, 1968, and August 31, 1971, you do not have to prove a connection between the disease and your military service to be eligible to receive VA disability compensation. VA presumes a service-connected relationship exists, based on certain eligibility criteria that DMII or adult-onset diabetes is associated with exposure to Agent Orange.  That being said and as if diabetes weren’t enough, there are diseases that are secondary to DMII. In other words, there are diseases that could develop due to having DMII.  Some common complications that can develop from DMII are:

  1. Heart disease and stroke-Cardiovascular disease is the leading causing of death for people who have diabetes. That’s because high blood sugar can cause a gradual buildup of fatty deposits that clog and harden the walls of blood vessels. And when blood vessels are partially blocked or narrowed, it can lead to a stroke or heart attack.
  2. Kidney disease- Diabetes is a leading cause of kidney failure. At least half of all people with diabetes may have signs of early kidney problems. High blood pressure, or a family history of it, can raise your risk of chronic kidney disease. Raised blood pressure also seems to speed up the development of the disease. Unfortunately, as kidney problems worsen, they themselves can be a cause of hypertension, creating a vicious cycle.
  3. Nerve damage-Diabetes can often lead to nerve disorders called neuropathies. If your blood vessels have narrowed from fatty deposits, then your nerves may become damaged because they’re not getting the oxygen and nourishment they need. Nerve damage may also be caused by other factors, like inflammation. Diabetic neuropathy can give you symptoms of pain, numbness or tingling in your legs and toes, arms and fingers. Or you might have digestive complaints like nausea, indigestion or constipation. The nerve damage can even cause sexual dysfunction.
  4. Amputations-There are two reasons why diabetes can lead to amputations of your feet or legs. Because of narrowed blood vessels, circulation to your lower body parts may not be top-notch. That means cuts or sores on your feet or legs will have a tough time healing and can get worse instead of better. Second, if you have nerve damage from diabetes, you might not feel the pain of a foot problem. Sores that you don’t notice can become infected and fester, leading to the need for amputation.
  5. Vision Loss-Diabetes can cause blockages or abnormal growth of blood vessels in the retina, the part of the eye that reads images. Blood vessel changes in the retina can lead to vision problems and even blindness. People with diabetes are also more likely to develop cataracts or glaucoma, two other serious eye diseases.

You are your own best advocate. No one will look out for you the way that only you can. You know how you feel and what health issues you may be experiencing.  You certainly don’t want to wait for the VA to suggest you may be suffering from one of these Secondary Conditions! Keep in mind; these are merely some of the common secondary conditions that result from DMII. The VA does not have an official list of secondary conditions. Discuss your symptoms with your doctor and ask if your symptoms or diagnosis is related to your diabetes mellitus.  If your doctor thinks that what you are experiencing is related to your diabetic condition, ask him/her to provide you with a medical opinion stating so. It is not required for your doctor to prove that the secondary condition is related to your military service, only that the condition is related to your service connected diabetes mellitus. If your doctor shy’s away from wanting to make that opinion, you may need to seek a doctor that is willing and able to provide you with an independent medical evaluation (IME) and/or an independent medical opinion (IMO).  An opinion given by a non-biased provider could be very strong evidence in your favor. The more qualified the provider is; the more solid the evidence is considered. In other words, the opinion given by a specialist will carry much more persuasive power than perhaps that of a Physician’s Assistant at the VA.  IME trained physicians are taught to use the correct VA verbiage and understand or are guided by attorneys who know the laws and how the report must be written in order to meet the multitude of VA standards.

Cassandra Crosby, Claims Advocate

Why You Should NEVER File a Request for Reconsideration

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The VA is an expert at complicating things to the point that the average person has difficulty understanding the processes without the help of a VSO or, after a decision, an attorney. VSOs can assist during the filing of a claim, but it takes an attorney who is accredited in VA law to understand the intricacies of the VA legal system. Requests for Reconsideration are a perfect example of how the VA has created a legal system that is unique. See our Video Blog on Appeal v. Reconsideration.

What is a Request for Reconsideration?

First, lets’ describe and define a Request for Reconsideration. This is a request by a claimant for the VA to reconsider a decision that has not yet become final (before the one-year appeal period is over). If the appeal period has lapsed, then it would be a request to reopen, which is another topic. Officially, a Motion for Reconsideration is a motion that is made after a decision at the Board of Veterans Appeals or Court of Appeals for Veteran’s Claims levels of a case and is used when the claimant feels that an error of fact or last has been made that has affected the decision.  This is the only officially sanctioned use of the Request for Reconsideration by the VA. There is no legal request for reconsideration at the RO level but somehow, someone decided that they would try it and it started being used by veterans and VSOs as a way to decrease appeal time. But it doesn’t work.

Why Does a Request for Reconsideration Not Work?

When a claim is denied or not given the rating that a veteran thinks it should have, the veteran has one (1) year to appeal the claim or the claim is finalized. The purpose of appealing has several reasons but the main one is to keep the effective date. The effective date of a claim is the date that the veteran files the claim for the issue. However, many things can change the effective date. Missing the appeal period is one of them. So, if a veteran files a claim on January 1, 2000, and the decision comes out on June 1, 2001, the veteran has until May 31, 2002, to file an appeal to that decision. If the veteran wins the appeal, even if it takes several appeals, the eventual claim will start at the original filing date of January 1, 2000. So, if that veteran doesn’t win the claim until January 1, 2010, there are 10 years of back pay the VA owes that vet. Right?  Yes….unless the veteran filed a request for reconsideration.

The wait is long in the VA system, everyone knows that. Some advocates have informed veterans to file a request for reconsideration rather than an appeal to try to cut that wait time. Makes sense, ask the RO to reconsider that decision rather than filing an appeal, hoping maybe they will just grant it rather than having to take the time to process that much more paperwork. Wrong. Say that in the scenario above, the veteran filed the request for reconsideration after a decision on June 1, 2006. The veteran was tired of waiting and appealing, and just hoped that someone would grant the claim. He got another denial, appealed, and then finally won an approval in January 1, 2010. The veteran then received his back pay to June 1, 2006, not January 1, 2000.  Why not?  Two reasons….first, the veteran did not appeal the decision made in 2006 and the appeal period lapsed; second, the veteran filed a request for reconsideration which, since there was no appeal, was treated as a new claim, starting the process all over from the beginning.

When Can a Request for Reconsideration Work?

A request for reconsideration can work, theoretically, when new and material evidence is submitted with the request. However, that is based on the VA’s determination of what constitutes new and material evidence. What a veteran may think is new and material, something not presented before and relevant to the claim, may not be new and material to the VA. If the VA does not feel it add any different information to the claim than they already had, they will deem that it is not new and material. Unfortunately, the veteran may not find that out until after the appeal time has lapsed and the original effective date of their claim has been lost.

When in Doubt…

Regardless of how a veteran decides to handle the claims, getting legal advice is paramount in making sure it is successful when trying to navigate the VA’s tricky, self-created, unique legal system. There is a reason why even attorneys have to be certified in VA law. If it is that difficult for attorneys to grasp, why do we think so many veterans have such a hard time navigating the process?

 

Robin Rosenblad, Claims Advocate

Mental Incompetency Proceedings

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The VA defines a mentally incompetent person as one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation.  Such a determination can be made by the raters in your VA Regional Office but requires corroboration by a medical authority.

To make this determination, the raters would typically rely on medical evidence in a veteran’s medical files.  The process is often begun after a VA physician has indicated that he/she does not believe a veteran is competent to manage his/her own funds.  A finding of mental incompetency would require that there be clear and convincing medical evidence that leaves no doubt as to the beneficiary’s incompetency.  (Incompetency should not be assigned due to a temporary 100% evaluation assigned during a hospitalization for a mental disorder.)

To begin the incompetency process, the VA must first send the veteran a notice informing him/her of its proposed finding of incompetency.  The veteran then has a right to request a hearing on the matter.

Fortunately, there is a presumption of competency in place unless there is clear and convincing evidence that a veteran is not competent.  You do have some avenues to pursue to oppose the finding.

Should the VA send you a notice that it is proposing or investigating a finding of mental incompetency on your behalf and you clearly should not be considered incompetent, then here are some options:

  • Provide the VA with evidence of how you have been paying your bills (perhaps copies of checks you have written, copies of bills showing they are NOT past due, bank statements in your name, etc.)
  • You might also obtain statements of friends, co-workers, neighbors, etc. that would illustrate how you are continuing to manage your daily affairs.
  • If you have a doctor who believes you are still competent to manage your funds, he/she could write a letter to the VA on your behalf.

Knowing that this is a possibility may help you to be wiser about what you tell your doctors.   Be careful about comments you make to your doctors as they may get entered in your records and misinterpreted.  Comments such as “I always rely on my wife (or my son/daughter/brother or sister, etc.) to handle my bills” is not going to be helpful.

Of course, in some instances, it might be for the best for a veteran to be declared incompetent and have a trustworthy person manage his/her funds.

What will a finding of mental incompetency affect?   It will mean that all payments made to you by the VA will be channeled through an appointed fiduciary.  (Since the passage of the Brady Bill, it also would prevent a veteran from purchasing a firearm.)

The fiduciary appointment process might involve a visit from a VA representative who will meet with the veteran’s proposed fiduciary to determine that person’s capability and willingness to act as fiduciary.  If a proposed fiduciary is a spouse who has already been paying the family’s bills, then he/she could provide records to the VA reflecting those past bill payments.

Perhaps it would be helpful to keep in mind that the VA is not simply trying to take control of a veteran’s life.  In reality, the VA has a responsibility to make sure that disability payments that a veteran is receiving are being used for that veteran’s benefit and so are simply trying to protect the veteran’s well-being.

Robert Rivera, Claims Advocate

Five Most Prevalent Primary Service-Connected Disabilities for Women Veterans: 2015

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Women have served in the military from the American Revolution to the present. Unfortunately, women have been historically underrepresented in utilizing the benefits provided for them, and have often been quieter in claiming their veteran status. Women now make up 15% of active duty and 18% of Guard/Reserves service members. Based on the upward trend of women in all branches of service, the number of women Veterans and female VA users is expected to double again in the next decade. While the number of women VA users continues to grow, women comprise only six percent of VA’s total patient population. Women Veterans underutilize VA care and benefits, largely due to a lack of knowledge about VA benefits and available services. That being said, as women leave active service and convert to veteran status, certain common issues afflicting their mental and physical health are emerging.  The following are the top five most prevalent service-connected disability conditions claimed by female Veterans and accounted for 33 percent of all service-connected disabilities for women Veterans. Additionally, we will touch on Total Disability due to Individual Unemployability (TDIU or simply IU), a claim for total disability when a Veteran is not able to maintain substantially gainful employment as a result of their service-connected disabilities.

Post-Traumatic Stress Disorder

PTSD is a mental health problem that some people develop after experiencing or witnessing a life-threatening, traumatic, or terrifying event. Events such as combat, a natural disaster, a car accident, or sexual assault. It’s normal to have upsetting memories, feel on edge, or have trouble sleeping after this type of event. At first, it may be hard to do normal daily activities, like go to work, go to school, or spend time with people you care about. But most people start to feel better after a few weeks or months. If it’s been longer than a few months and you’re still having symptoms, you may have PTSD. In 2015, nearly 48,000 women Veterans received compensation for PTSD. PTSD accounted for roughly 12 percent of all service-connected disabilities for women Veterans. Symptoms of PTSD are tricky to characterize because the amount of time it takes for them to manifest varies widely.

Major Depressive Disorder

In 2015, roughly 26,500 women Veterans received compensation for major depressive disorder. Major Depressive Disorder is a common but serious mood disorder. It is often accompanied by low self-esteem, loss of interest in normally enjoyable activities, low energy, and pain without a clear cause. People may also occasionally have false beliefs or see or hear things that others cannot. Some people have periods of depression separated by years in which they are normal while others nearly always have symptoms that are continuously present. Major depressive disorder can negatively affect a person’s personal, work, or school life; as well as sleeping, eating habits, and general health. To be diagnosed with depression, the symptoms must be present for at least two weeks.

Migraine

In 2015, over 24,000 women Veterans received compensation for migraines as a disabling condition. Symptoms of a migraine can include nausea and/or vomiting, sensitivity to light and sound, and changes in vision. According to the Mayo Clinic, migraines often begin in childhood, adolescence or early adulthood. Migraines may progress through four stages: prodromal (subtle changes that warn of an upcoming migraine); aura (usually visual disturbances that may occur before or during migraines), headache (usually lasts from 4 to 72 hours); and post-drome (some may feel drained while others may feel elated after a migraine attack), though you may not experience all stages. People with a chronic migraine are more likely to be unable to perform the functions required of them at their job, and less likely to be employed full time than people who have migraines less frequently. Over a three month period, people with chronic migraines miss an average of 63 days of work, school, and time with family.

Chronic Back Pain (Lumbosacral or cervical strain)

Chronic back pain (CBP) changes everything. Things like driving a car, sitting at a desk, or even tying a shoelace become difficult tasks. The condition can be debilitating and, unfortunately, for as many as 40 percent of Veterans over 65 years old, it is a way of life. Untreated, CBP can contribute to depression, disability, and a poor quality of life. Unfortunately, the treatment options can seem only marginally better: Long-term opioid use or invasive procedures such as surgery are often the norm for those with CBP. In 2015, roughly 22,200 women veterans received compensation for lower back pain. According to the Cleveland Clinic, Center for Continuing Education, low back pain can best be described in terms of specific accompanying features. Low back pain is acute if it has a duration of about 1 month or less. Chronic low back pain is usually defined by symptoms of two months or more. Both acute and chronic low back pain can be further defined by the presence or absence of neurologic symptoms (a disorder of the nervous system) and signs.

Uterus and Ovaries, Removal of, Complete

In 2015, roughly 12,700 women Veterans had the complete removal of their uterus and ovaries. Roughly an additional 10,500 female Veterans had the removal of their uterus that included their corpus. (The main part or body of a bodily structure or organ). According to the U.S. Department of Health and Human Service, Office of Women’s Health, a hysterectomy is a surgery to remove a woman’s uterus (also known as the womb). The uterus is where a baby grows when a woman is pregnant. In most cases, the entire uterus is removed. The doctor may also remove the ovaries and the fallopian tubes during the procedure. The ovaries are the organs that produce estrogen and other hormones. The fallopian tubes are the structures that transport the egg from the ovary to the uterus. The surgery can be used to treat a number of chronic pain conditions as well as certain types of cancer and infections.

Individual Unemployability (IU) is a component of VA’s disability compensation benefits program which allows Veterans to receive financial compensation at the 100-percent level even though their combined service-connected disability rating is below 100 percent under the schedule for rating disabilities. In order to qualify, a Veteran must be unable to maintain substantially gainful employment as a result of her service-connected disabilities. In addition, the Veteran must have one service-connected disability rated at 60 percent or higher or two or more service-connected disabilities (at least one of which is rated at 40 percent) with a combined rating of 70 percent or higher. Veterans who receive IU compensation are allowed to work as long as that employment is not considered substantially gainful. In other words, their employment must be considered marginal employment. In 2015, about 6 percent of women Veterans who received compensation for a service-connected disability were receiving IU compensation.

As a nation we need to fully recognize the contributions and sacrifices that women in the military are making—we owe them this respect and opportunity to heal and successfully transition home. Our nation must address and change the culture that ignores or minimizes women’s’ service and their contribution to our military mission, so that they too can fully benefit from the array of services that have been established for veterans, including for those who served in combat theaters and other hardship deployments. Given the sudden increase in female Veterans and lagging adjustments within DOD and VA entities, women Veterans are often opposed and often denied entitlement to service-connected disability claims. Sometimes, an event that occurred in service may take many years to cause a disability.  In these cases, the veteran is entitled to bring a claim no matter how long it has been since he or she got out of the service. Just as important, a veteran has the right to reopen a claim that has already been denied by the Department of Veterans’ Affairs. In order to get another chance at proving her claim, all the veteran needs to do is produce New and Material evidence showing that her claim should be granted.