|Natalia Jofre:||Hello and welcome to Hill & Ponton’s disability blog. I’m Natalia Jofre, our Social Security Section Director.|
|Shelly Mark:||I am Shelly Mark. I am our Senior Social Security Attorney.|
|Natalia Jofre:||The last blog we talked about the hearing level, and basically once you get to this level, this is what social security would call the third level of your case. In other words, you’ve been denied at the initial level, you were denied at the reconsideration level, you filed an appeal, you’re now at the hearing level, and basically they’ve sent you a letter that says that they’ve received your appeal. Your case is with the hearing office, and it’s going to take, on average, 24 months to get a hearing date. They’re going to send you a letter letting you know that they got it, and that they’re going to notify you within 65 days of your hearing date. We basically told you that doesn’t mean your hearing is going to be in 65 days. It means that they’re just going to give you 65 days notice once they are ready to schedule it, which will really mean about 24 months later.|
|Now that the case is pending, what’s important to do at the hearing level?|
|Shelly Mark:||Like we talked about, from the client’s standpoint, it’s really important to maintain their doctors appointments. Make sure they’re getting any kind of testing that they would need. If they have a back injury, but their MRIs are from 2010, and they have insurance, they might just want go ahead and ask their doctors to update some of their tests. They need to make sure their records are up to date and make sure that their personal information, their contact information, their address is up to date. That way when they are scheduled for a hearing, they’ll actually be ready for it.|
|Natalia Jofre:||Yeah. The other thing that social security is going to do, or the hearing office is going to do, is they’re going to send the claim and some forms to complete and to submit.|
|Natalia Jofre:||They range, I would say, the first one, well, they’re all important, but there’s one regarding medication. When you’re completing that form, I think that one of the important things that people tend to bypass is they don’t put all of their current medications or they include medications they’re no longer taking. Can’t that create problems then at the hearing?|
|Shelly Mark:||Yeah. It can. Any discrepancies on the forms can really create issues at hearing because even though it may be just a very honest mistake or just a misunderstanding, it can create a credibility issue. Meaning that if the person’s saying on their daily living activities form that they’re able to take the dog out and walk the dog, and take the trash out, and clean the house, and all of these things, and then we get to a hearing and the judge asks them in the hearing, “Do you do any cleaning?” And they say, “No. I’m unable to do any cleaning of any kind.” I have had judges say, “Well, that’s not what your form says that you submitted.”|
|You want to be really careful when you’re answering all of those forms that you do it very accurately and with knowledge of what’s supposed to be on the forms.|
|Natalia Jofre:||Yeah. What’s your reality. Don’t try to make it so severe where I never do anything. I never go to the store. I never cook. I mean, because then that’s going to open the door for, “If you never cook, how do you eat? What do you eat? Who prepares your meals? How often? How do you get fed?” Same thing with the store. I mean, “Where’s your stuff coming from, then? Does somebody go out? Do you have a personal shopper? Do you have a child or a sibling or someone that comes and does your shopping for you?”|
|You have to be mindful of when I say this, what is the consequence of that. Judges live in the real world too so they’re looking for realistic answers.|
|Shelly Mark:||Mm-hmm (affirmative). On the flip side of what Natalia’s saying, if you are able to clean your house and you’re filling your forms out, what I try to tell people is that when you answer the questions, answer them, but make sure that you include any accommodations that you make for yourself. “Yes, I clean my house,” is one answer. Another answer that may be the exact same, but more appropriate, would be, “Yes, I clean my house for an hour and then I have to rest for two hours.” Or, “Yes, I clean my house, but it takes me three days, where it used to take me four hours.”|
|Shelly Mark:||You want to make sure that you’re putting the accommodations that you’re having to make for yourself to be able to do those activities.|
|Natalia Jofre:||Yeah. There’s other forms, very specific forms, that get issued at the hearing level that you have to complete and submit, so we’ll talk about specifics on those forms in our next blog.|
|Natalia Jofre:||Alright. Thanks for being with us today. If you have any questions in the meantime, feel free to contact our office or visit our website.|
|Shelly Mark:||Thank you.|
VA Pension is different from VA Disability Compensation in many ways. Many veterans ask if they can apply for a pension in addition to their disability compensation but they are paid out for different reasons. The pension is limited by income levels and is reserved for specific veterans.
To be eligible for VA Pension, a veteran must meet the following criteria:
- Have been discharged from active duty with an other than dishonorable discharge; AND
- Have at least 90 days of active duty service with at least one (1) day during wartime period; AND
- Wartime period includes:
- Gulf War: August 2, 1990 – present date;
- Vietnam Era: February 28, 1961 – May 7, 1975 for veterans who served in the Republic of Vietnam or August 5, 1964 – May 7, 1975 for all others;
- Korean Conflict: June 27, 1950 – January 31, 1955;
- World War II: December 7, 1941 – December 31, 1946;
- World War I: April 6, 1917 – November 11, 1918; and
- Mexican Border Period: May 9, 1916 – April 5, 1917.
- Be aged 65 or older; OR
- Be totally and permanently disabled, OR
- Be a patient in a nursing home receiving skilled nursing care, OR
- Be receiving Social Security Disability Insurance or Social Security Income, AND
- Meet the income eligibility requirements.
- Wartime period includes:
The veteran does not have to have actually served in combat, only to be active duty at least one day during those time periods considered “wartime.”
Income based on the entire household’s income, including spouse and any dependent children. Income considered includes any income from wages, retirement income, interest and dividends, and some qualified disability payments. However, even if the income is over the limit, the VA also takes into consideration expenses such as unreimbursed medical expenses (if over 5% of maximum annual pension rate), certain educational expenses, and Social Security Income. When applying, always ensure that you are listing all income sources and expenses accurately.
Income level limits can be found at the VA Current Pension Rates page. The current limit as of December 1, 2016 for a veteran with no dependents is $12, 907.
If a veteran is aged 65 or over, they do not have to meet the disability requirement as long as they meet the active duty and income requirements. This is of special note to veterans who are over 65 and on limited incomes who are not service connected for a disability. Many are unaware that they meet the requirements for VA Pension.
To be eligible for a pension, a veteran does not have to have disabilities that are service-connected. This means that the disabilities do not have to have been incurred or caused by the veteran’s military service. These are called non-service connected disabilities. The VA conducts a C&P exam just as if it were a service-connected disability to verify diagnosis and level of rating. If the disability or disabilities combined meet the criteria for total and permanent, then the veteran would be eligible for non-service connected pension.
Not all total disabilities will be considered permanent. Many disabilities rated at 100% are considered temporary, as there is a possibility of improvement with treatment. To meet the requirements for total and permanent, the veteran would have to be rated at a level that is considered unemployable and the disability is one that there is no recovery from. An example would be the loss of or loss of use of both hands or feet, or one hand or foot, the sight of both eyes, or being permanently bedridden. Diseases or injuries that are considered totally incapacitating where the probability of permanent improvement is remote are also often considered total and permanent. Age can be considered a factor when considering total and permanent disability and the VA will look more closely and with more scrutiny at veterans who apply that are under the age of 40 years old.
The VA pays pension to supplement the income. The income rates found on the pension income limits page is the maximum income limit, so the pension paid will make up the difference between the income the veteran has and that maximum income level. For example, Tony has an income of only $8,000 a year and is over 65 years old. He applies for and is awarded pension benefits. His pension payment will be $4,907, the difference between the $12,907 maximum income for a single veteran with no dependents and the $8,000 income he already has. This is a pension check of $408 per month. For more information on how the VA calculates pension payments, go to their Pension Calculations page.
How to Apply for VA Pension
Applying for VA Pension is as easy as clicking on the VA Pension Application and filling out the VA 21-527EZ form. Veterans can submit their application electronically, print it and mail, or fax it in. Veterans should ensure that their application was received to ensure their effective date is preserved. Also, completing a fully developed claim may help speed up the process. The instructions are on the web site, or you can search our blog for more information on this, or any topic concerning VA benefits and law.
Tinnitus is, by far, the most claimed disability in the VA system. Veterans have filed almost 160,000 claims for tinnitus just in 2015 alone. What is this condition, what causes it, and why is it claimed so often?
What is Tinnitus?
Many people will tell you that tinnitus is “ringing in the ears,” which is partially correct. Tinnitus is actually defined as any perception of external noise that is not actually present. It can include ringing, but can also include whistling, hissing, buzzing, swooshing, clicking, or even, in some rare cases, the hearing of music. Tinnitus can be temporary (acute) or ongoing (chronic).
Tinnitus is not a disease, but a symptom of an underlying condition. Usually, the person experiencing tinnitus has a sensorineural reaction in the brain due to some type of damage in the ear or auditory system. There are several main factors that contribute to tinnitus:
- Hearing loss: whether age-related or noise induced; hearing loss is often associated with tinnitus. Often times the person notices the tinnitus but not the hearing loss itself. The brain receives less external stimuli and this process change around specific frequencies may be a way of the brain filling in the gap for sounds and frequencies that it has lost due to hearing loss.
- Obstructions of the ear: excessive wax, head congestion, loose hairs from the inner ear canals, and dirt or foreign objects. Often when the obstruction is removed, the tinnitus will be relieved. However, sometimes it can cause permanent damage.
- Head or neck trauma: trauma can cause nerve damage that can result in tinnitus.
- TMJ: the joint that connects the jaw to the skull is located directly in front of the ear canal. For this reason; the tightening of the jaw muscles due to conditions such as TMJ can cause tinnitus since the auditory system and the jaw share muscles.
- Sinus pressure and barometric pressure: any type of abnormal pressure on the middle ear can cause tinnitus symptoms; diving, flying, head colds; concussive explosions; and even just blowing your nose.
- TBI: Traumatic brain injuries can also lead to tinnitus again for similar reasons as head and neck trauma. The damage caused to the middle ear by concussive shock damages the auditory system. About 60% of all the tinnitus cases diagnosed by the VA system are due to mild-severe TBI.
- Ototoxic drugs: many prescription drugs have the side effect of tinnitus. In most cases it is a short-lived side effect, going away once the drug is no longer being used. However, in some cases it can be chronic. Drugs that are known to be more likely to cause chronic tinnitus include
- Non-steroidal Anti-inflammatories (NSAID)
- Certain antibiotics
- Certain cancer medications
- Water pills and diuretics
- Quinine based medications (these include Mefloquine; Chloroquine; and other medications ending with quine)
- Other medical conditions: tinnitus is actually a symptoms of the following medical conditions:
- Hypo and Hyperthyroidism
- Lyme Disease
- High Blood Pressure
- Meniere’s Disease
- Acoustic neuroma
How Do I Prove I Have Tinnitus?
How do you prove you hear something only you can hear? Audiologists have tests and protocols designed to diagnose and evaluate the severity of tinnitus. Because tinnitus is often linked with hearing loss, a hearing test is usually administered along with tinnitus testing. Most hearing/tinnitus testing includes:
- Speech recognition testing
- Pure tone audiogram
- Acoustic reflex test
- Otoacoustic emission test
The VA standards for disability for hearing loss are determined by the test results of speech recognition; pure tone threshold average; and/or combinations of both. Various levels of rating percentages can be issued based on the results of the testing. However, for tinnitus, there is specific ways to prove your case with the VA.
Having a nexus statement is very important. Were you exposed to loud noises such as working on a flight line, working with or near explosives; exposed to explosives or gunfire during combat, etc. These can all be used as a nexus statement to show that you had an exposure that probably caused tinnitus. As with most conditions, veterans need the statement “more likely than not caused by….” for their claim to be substantiated. If the tinnitus was not caused by one of those factors, there must be some link to what you are claiming caused it. For example, if you are claiming it was due to medications, you must be able to prove, either with documentation or through lay statements, that you took the medications you say caused the tinnitus. Same with exposure, if you are saying it was caused by exposure to noise or chemicals, you must have some type of statement or documentation backing that claim up.
One thing that is different here than many other medical conditions is that you can use only lay evidence to prove tinnitus. According to a ruling made by the United States Court of Appeals for Veteran Claims on February 9, 2015, in the case of Robert Fountain v. Robert McDonald, Secretary of Veteran’s Affairs; lay evidence may be used to prove the nexus, or link between the tinnitus and service. In the case of Robert Fountain, he had provided timelines of exposure to noises and symptoms to show how they had corresponded.
Also, and this is so important to the VA that they put it in their regulations, the ringing must only be heard by the claimant. Yes, that is true, the VA Schedule for Rating Disabilities (VASRD) actually states that the tinnitus cannot be rated if anyone else can hear the ringing. Hmmmmm.
How High Can I Get Rated?
Unlike most other conditions, there is a limit on how high tinnitus can be rated. Regular or recurrent tinnitus carries a maximum rating of 10%, regardless of how bad it is or whether it is present in one or both ears. It can be rated separately from the condition it is related to such as hearing loss, psychiatric conditions, TBI, or other conditions if it is linked to one, but whether linked to another conditions or not, the maximum rating will always be 10%.
How Many People Have Tinnitus?
Of the approximately 325 million people in the United States, it is estimated that over 45 million; or approximately 14% have tinnitus. Over 150,000 veterans were diagnosed with tinnitus in 2015 alone and over 1.5 million are currently receiving disability benefits for tinnitus. Almost twice as many claims for tinnitus were made last year than for hearing loss, which was the second most filed claim. Tinnitus accounts for almost 10% of all new VA claims and over 7% of total VA disabilities being compensated. Of all recipients of VA compensation; over 1.4 million veterans are receiving compensation for tinnitus; 50% more than the next highest disability, hearing loss.
What do I do if I Have Tinnitus?
If you think you have tinnitus, the first thing you need to do is get a hearing test done. There is no treatment for tinnitus, but you need to make sure it is not something more serious or it is a symptom of some other condition that can be treated. Then, if you have reason to believe it may be service connected, get with a representative or review our website for information on how to file a claim and get your claim started today.
Today, we’re going to talk about a few of the special situations in which the rules for effective dates are different from the norm. For many veterans, the claim process does not necessarily end after they are awarded service connection for their disability. This is because there is another aspect to claims which the VA often gets wrong – the effective date. The rules for effective dates of awards are one of the most confusing aspects of VA law, because there are so many exceptions and special scenarios that have different rules. The rule in general for effective dates is that the effective date of a claim is the date the claim was filed. But, there are many situations in which this general rule does not apply, entitling you to an earlier effective date.
The first special rule applies to claims alleging clear and unmistakable error (CUE). If the VA grants a claim challenging a previous final RO or BVA decision based on CUE, the effective date is the date that the VA received the previously denied claim. This means there is potential for many years of retroactive benefits for these types of claims, but it is important to note that these claims are very difficult to win.
If a veteran files a claim for disability compensation within one year from the date of discharge, another special effective date rule applies. In this situation, the effective date for the award would be the day after discharge, as long as the veteran had the disability on the day after discharge. Note that this special rule only applies if the claim is initially successful. If a claim is denied and becomes final, and the veteran reopens the claim at a later date, the effective date does not go back to the date of discharge. There is a similar rule for death and indemnity compensation (DIC) claims that are received within one year of a veteran’s death. If such a claim by a surviving family member is granted, the effective date is the first day of the month in which the veteran died.
Another situation with complicated special effective date rules occurs when a veteran files a claim for increase in disability rating within one year of the date that the disability got worse. In order for this special rule to apply, the disability must already be service connected. If a veteran has a service-connected disability that gets worse, and files a claim for increase within one year of the date that the evidence shows the disability got worse, the effective date should be the date that the evidence shows the disability got worse. In order to prove a veteran’s disability got worse within one year of the claim for an increased rating, the best evidence is going to be medical evidence, such as a statement from a doctor who can show when exactly the condition worsened and medical records that show the condition has worsened. A statement from the veteran can be helpful in this situation as well, but it is always helpful to have that statement be backed up by medical evidence. It is important to note that the VA rarely initially grants these earlier effective dates for increased ratings, so if you file for an increased rating and are not given the correct effective date, you should appeal that decision.
As you can see, the rules for effective dates are complicated, and often vary greatly depending on the particular aspects of a veteran’s claim. They are also something that the VA gets wrong often, so it is always important to check the effective date of an award for benefits in order to make sure you are getting all the compensation to which you are entitled.
In a previous post, we discussed how to write a convincing statement in support of your claim for service connection using VA Form 4138. Most veterans will also use that form for another purpose – buddy statements. A buddy statement is statement written by a friend, family member, fellow service member, or anyone else who has knowledge of your service connected conditions. Today we are going to discuss how to get the most out of buddy statements.
Before you begin asking friends or family members to write buddy statements for your claim, it is important for you to consider what your goal is for the statements. For example, if your claim is for an increased rating for PTSD, you will want your buddy statements to focus on what symptoms those individuals have noticed over the past few years. Specifically, your goal is to show that your symptoms have gotten worse and that those around you have noticed your worsening symptoms during the timeframe covered by your claim for an increased rating. Therefore, you will want to choose individuals to write statements who have firsthand knowledge of your increasing symptoms. In a claim for an increased rating for PTSD, you will want to ask your “buddies” to describe anything they noticed about your mental health functioning, such as increased irritability, anger, depression, hypervigilance, anxiety, nightmares, and so on. The more detail they can give, the better, especially if they can point to specific incidents that they remember.
If your claim is for service connection, the focus of your buddy statements will be different. For instance, if your claim is for a back condition due to a fall in service, the most persuasive buddy statement will be from someone who has firsthand knowledge of that fall. Most likely, that will be a fellow service member. Many veterans struggle to find fellow service members to corroborate incidents during service, especially if many years have passed since their service, but if you are able to find someone who is willing to give you a buddy statement to support your claim, again, the more detail the better. If you are unable to locate someone who remembers the incident during service, you may want to try talking to family members or friends who you made have told about the incident when it happened. For instance, if you sent a letter home to a friend about your fall during service, they can write a statement about the details of your letter.
If one of your goals is a total disability rating based on individual unemployability, a good potential source for buddy statements is former employers or coworkers. They may be able to speak to your level of functioning in the workplace, specifically any accommodations you were given or problems that your disability caused.
As you can tell, you will want to keep in mind when asking “buddies” for statements whether you are looking for service connection or an increased rating. For service connection claims, the incident in service will typically be the focus. For increased rating claims, you are typically focused on specific symptoms and what those around you have noticed. When you are asking “buddies” for statements, you should let them know what the focus of the statement is so they can write their statement accordingly. For a service connection claim, you may want to ask, “Can you write me a short statement about everything you remember, in as much detail as possible, about my fall during service which you witnessed?” For an increased rating claim, you may want to ask, “Can you write me a short statement about everything you have noticed about my mental health functioning the past 5 years – specifically if you have noticed increased irritability, anger, depression, hypervigilance, anxiety, nightmares, or other PTSD symptoms?” The more guidance you give your “buddies” on what exactly you are looking for in their statements – without actually writing the statement out for them – the better.
Buddy statements are a great tool to have at your disposal, especially when combined with your own statements. If you are able to write a convincing, detailed statement about your increasing PTSD symptoms and are also able to get a couple buddy statements that back up your own statement, that paints a much clearer picture of your functioning for the VA. The goal of these statements is to give the VA a complete picture of your disability, including the impact your disability has on your day-to-day life, social interactions, and employment.
In a previous blog post, we discussed the Court of Appeals for Veterans Claims (CAVC) in general—what it is, how it differs from the rest of the VA, how long the process takes, etc. This post is going to take you step by step through the first part of the actual appeal process at the Court.
Key Court Terms & Acronyms:
|Appellant||The veteran/claimant who filed the appeal|
|Appellee||The Secretary of the VA; otherwise, the Court attorney handling the case|
|Notice of Docket Activity||An email notification of any activity performed in relation to the Court case; for example: filing a brief, filing a motion, filing an order|
|Brief||Summary and presentation of the argument of that party|
|RBA||Record Before the Agency; this is the copy of all relevant documents that were in the veteran’s claims file on the date that the Board issued the decision from which the appeal was based.|
|ROP||Record of Proceedings; copy of the Board decision along with any documents in the RBA that were cited in the briefs or any other documents relevant to the appeal.|
|EAJA||Equal Access to Justice Act; attorney’s fees that are paid out to whichever party wins the case.|
|CLS||Central Legal Staff; the Office of General Counsel|
When the Board of Veterans Appeals makes a decision on a claim, the claimant has 120 days to appeal this decision to the Court of Appeals. If the claimant does not have a representative, and wishes to continue the appeal without representation or to engage representation at a later date, the claimant may file the appeal as a self-represented appellant.
Once the appeal is filed, the appellant has 14 days to file either a $50 filing fee, or a Declaration of Financial Hardship waiving the cost of the fee. If the appellant is being represented, the representative must file the Contract for Representation which allows the representative to collect attorney fees on the court case if the case is decided in the appellant’s favor.
Once the preliminary documents have been filed, the Appellee has 30 days to serve a copy of the BVA decision to the representative, and 60 days to serve the Record Before the Agency (RBA). The Appellant then has 14 days to dispute the RBA (if there are any missing pages, etc.).
The Appellant has 60 days after the deadline to dispute the RBA to file the opening brief. This is the appellant’s argument of the case. The Appellant, or the Appellant’s representative, may request a 30 day extension to file the brief. This is almost always granted. The Clerk of the Courts is the authority who grants requests for extensions.
A telephone conference between the Central Legal Staff (CLS) attorney—the counsel representing the Secretary—and the Appellant’s attorney is set for 30 days prior to the Appellant’s deadline to file the opening brief. The Appellant has 14 days before the scheduled conference date to file the Summary of Issues, which is outlines the argument.
The object of the telephone conference is to potentially come to a settlement between the two parties. Ideally, the attorney for the Appellee would agree with the Appellant’s argument and offer a Joint Motion for Remand (JMR), which would remand the case back to the Board for reconsideration. The Board would be required to perform certain actions as agreed upon by the Appellant and Appellee attorneys.
- JMR Agreed
If a JMR results from the CLS conference, no brief is due on the case. The Appellee attorney drafts and files the Joint Motion for Remand. Once the Clerk of the Courts approves the JMR, the judgment is issued. The Appellant has 30 days to file an EAJA application (only if the claimant had engaged legal representation). Once the application is approved, the case is closed. The file then returns to the Board for reevaluation.
Note: The Court never directly grants a claim. The Court will either remand or deny the case.
- JMR Not Agreed
If the attorneys do not come to an agreement, the case continues through the Court system, and is ultimately decided by a judge.
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