|Matthew Hill:||Hello I’m Matthew Hill from Hill and Ponton. This is our VA video blog. I’m here with Carol Ponton, and we’re doing a series on the big mistakes we see, or the misunderstandings that get in the way between a veteran and his benefits. Today we want to talk to you about unemployability versus 100%.|
|The overwhelming number of clients we represent are so disabled that they can’t work, and we are trying to get them total benefits, be it 100% or unemployability. We are asked all the time …|
|Carol Ponton:||What’s the difference? There’s a schedular 100%, that means you add up all of the ratings you have and they reach 100% …|
|Matthew Hill:||Well, you don’t add them.|
|Carol Ponton:||You combine them.|
|Matthew Hill:||The VA does this percentage math, right.|
|Carol Ponton:||Or you have 100% because you’re not working and you’re not working because of a service connected problem. They’re essentially the exact same thing except under unemployability, you can’t work. That’s the only difference, and you just have to, every year, say I’m not working, and the 100% continues.|
|Matthew Hill:||Well you can work, and we have more information on this on our blog. Check it out. You can work only a little bit, but you are able to work.|
|Carol Ponton:||Right. Basically, they are the same things, but our veterans are very confused about that. They are not sure why is one better than the other. If you want to work and be 100% disabled, then yes, you don’t want the unemployability. If you’re not working because of the service-connected problem, it makes no difference whatsoever if you’re getting unemployability or 100%.|
|Carol Ponton:||That’s the confusion that we have with the clients.|
|Matthew Hill:||If they are permanent and total, they get all the same other benefits: tax breaks …|
|Carol Ponton:||That’s permanent and total. That’s not unemployability and 100%.|
|Matthew Hill:||Right, but it applies to both.|
|Matthew Hill:||You don’t have to be 100% schedular to get that.|
|Matthew Hill:||As far as back to what we were saying as what schedular is and how you combine ratings, we have a VA disability calculator now that actually takes your ratings and combines them just to help. Because a lot of times, we’ll see veterans with ratings that add up to 210%, but they are getting paid 80% or …|
|Matthew Hill:||We’ll link to that in these notes. It’s just important to know to have all options on board.|
|Matthew Hill:||If you’re eligible, or you think you’re eligible for 100%, but you might be eligible for IU, we’ll put them out there.|
|Carol Ponton:||IU is unemployability.|
|Matthew Hill:||Unemployability. Don’t take them out just because you don’t think it’s going to be as good getting one benefit or the other because you’re basically tying one hand behind your back.|
|Matthew Hill:||Well, thank you for tuning in on our Hill and Ponton VA blog. We are, again, talking about big mistakes we see that interfere with veterans getting the benefits they deserve.|
Once we begin representing a new client, we immediately request for a copy of their Claims File (C-File) from the VA. This seems like a simple process which should take minimal time, though a C-File is requested from the local regional office which corresponds with the veteran. Each regional office takes varying amounts of time to comply with giving a veteran their C-File. Some regional offices can take a few months whereas others can take up to a year to fulfill the request for a C-File. Even if you are unrepresented, you have every right to request your C-File from your regional office. All you have to do is correspond with your regional office and ask for a copy of your C-File. Though it may take a while to receive your C-File, it is worth the wait because the C File contains vital information on your claim(s).
Your C File is so important because it shows the history and road map for your claim(s). Your C File has every piece of correspondence between you and the VA about your claim(s) for benefits and compensation. The VA keeps on file every claim you have filed since being discharged from service and all of the related evidence that goes with each claim. Examples of documents which may be contained in your Claims File include:
- Service Records, including a veteran’s DD 214
- Service Treatment Records
- Non-government medical records (i.e. private medical records)
- Government medical records (i.e. VAMC records)
- Compensation and Pension Examinations
- Buddy Statements
- Employment Records
Additionally, every claim, appeal, and decision is included in your C-File. Once we have received your C File, we go through every page and analyze each document, regardless of if your C-File is 300 pages or 3,000 pages. The length of your C-File is irrelevant, though it helps us understand what information is gathered, needed, or missing.
By going through the C File, we can detect whether important information is missing and request that the VA gather or provide such information. For example, many times a veteran’s service records are missing from the C File or the provided records are incomplete. Without going through the C File, a veteran would not know to request for the VA to obtain the missing service records. These missing service records could prove “boots on ground” in Vietnam for Agent Orange exposure or provide corroboration for a PTSD stressor. By having complete service records it may be easier to provide evidence of MOS, performance of duties, and designated unit. The same goes for service treatment records which can often times show treatment of a condition during service.
It is important to make sure the VA has all of this important information because the VA uses the C File to base its decision on your claim(s). The evidence the VA uses in deciding your claim is often based on what included in your C-File. Though the VA has a duty to assist the veteran with obtaining all of the necessary evidence, sometimes all of the evidence is not gathered and by reviewing the C File, an attorney can plan what steps are necessary for handling your claim.
Although it often takes time to receive your C-File, I hope this explains to you how important having your C-File can be in the success of your claim(s). It is important for you or your attorney to review your C-File before deciding your plan of attack because the C File provides the road map for proving your claim. Whether your C-File provides insight on errors made by the VA or additional evidence needed, reviewing the C File provides the guidance needed to develop the best possible claim.
We have been looking at claims for PTSD and what it takes to get service-connected. A claim for PTSD has three requirements: 1) a diagnosis of PTSD 2) an in-service stressor 3) a link between the diagnosis and in-service stressor. In our first post, we looked at what PTSD is and the first requirement. In the second post, we took a closer look at proving the in-service stressor. In this post, we will be looking at our third requirement, the link between the diagnosis of PTSD and the in-service stressor.
Nexus Link Between PTSD Diagnosis and In-Service Stressor
The third requirement for service connection of PTSD is a nexus link established by medical evidence between the current symptoms and the in-service stressor. This link has to be provided by a medical expert, it cannot be a lay opinion by an individual.
Establishing the link between the diagnosis of PTSD and the stressor is easier than the other two requirements for PTSD. Once you meet the first requirement showing you have a current diagnosis, it’s not hard to meet the third. The medical report containing the diagnosis of PTSD will usually also have information about the traumatic event that caused it and link the diagnosis to the event.
Examination reports should also always:
- Sufficiently describe symptomatology
- Identify or adequately describe the stressor
- Acknowledge and reconcile prior reports that don’t support a diagnosis of PTSD
- Conform to the Diagnostic Statistics Manual
It’s important that any private medical report also includes this information.
The standard for the medical nexus is the same as for the rest of the VA, the medical evidence in the record only needs to be in equipoise, or roughly even, on whether the veteran’s current symptoms are connected to the in-service stressor. This is the standard of “at least as likely as not.”
If after reviewing the evidence, the VA doubts whether the veteran’s stressor contributed to the PTSD symptoms, the medical reports must be returned for clarification. If the VA denies a claim for PTSD because it does not find the veteran’s nexus medical evidence convincing, it must say so in its decision and include an adequate statement of its reasons, along with identify the medical evidence in the record showing that the medical link was not proven.
As long as there is a clear relationship between an in-service stressor and a current diagnosis of PTSD, a veteran whose service records show no evidence of a mental disorder prior to service, can be entitled to service connection for PTSD. Even if PTSD develops many years after service, the VA has recognized that PTSD can develop hours, months, or even years after a stressor.
Once the veteran has submitted a medical diagnosis of PTSD, the VA is now limited in its ability to deny a claim for not showing a current disability. The record would have to contain medical evidence directly contradicting the diagnosis of PTSD for the VA to find the veteran doesn’t have a current disability. Then the VA must accept that the stressor described by the veteran to the examiner was medically sufficient to support a diagnosis of PTSD, and that the veteran’s symptoms were adequate for the examiner to diagnose PTSD. If the VA doubts whether the described stressors were sufficient to cause PTSD, or the adequacy of the symptomatology described in the diagnostic report, the VA must do one of two things: 1) put aside the doubts and accept the medical report as sufficient for rating purposes, or 2) return the medical report for clarification (not necessarily to the same examiner). If clarification isn’t provided when the report is sent back, then the VA must either return the examination report again or obtain independent medical evidence concerning the issue. Ultimately, the VA cannot reject a competent diagnosis of PTSD without an adequate statement of reasons or bases for its decision, and unless it can point to other medical evidence in the record to support its conclusion that the veteran does not have PTSD.
There are some cases where there are conflicting diagnoses in the record, where one expert opinion might conclude that the veteran has PTSD, and another expert concludes that the veteran either a) does not have PTSD, but does have another mental disorder, or b) does not have PTSD or any other mental disorder. When the evidence conflicts like this, the VA must analyze and weight the conflicting evidence in the record and making a finding one way or the other as to whether the veteran has PTSD. If the VA finds that the negative evidence outweighs the positive evidence of PTSD, the veteran can appeal. But if the BVA finds that the veteran also does not have PTSD, that decision will be upheld by a reviewing court as long as the decision is supported by medical evidence, has a plausible basis in the record, and is supported by an adequate statement of reasons and bases. The key to winning cases where there are conflicting diagnoses is to have the stronger evidence on your side.
A claim for PTSD has three requirements: 1) a diagnosis of PTSD 2) an in-service stressor 3) a link between the diagnosis and in-service stressor. In our first post, we looked at what PTSD is and the first requirement of the medical diagnosis. Today we will be looking at the in-service stressor.
You’ve already established that you have PTSD with a medical diagnosis. Now the second requirement for getting service-connected for PTSD is establishing that your stressor (the traumatic event that caused PTSD) occurred in service. The general rule is that you need credible evidence to support that the stressor actually happened and that it happened in-service.
A stressor does not have to be associated to combat. Combat experience may provide the stressor that leads to PTSD, but the stressor does not necessarily have to have occurred while in combat. PTSD could be caused by experiencing or witnessing any of the following: rape, physical attack, torture, automobile accident, plane crash, ship sinking, explosion, or natural disasters. These are only a few examples to show that stressors could be any traumatic experience. It could also occur from being a prisoner-of-war, working in a grave registration unit or a burn care unit, or witnessing a dead body or body parts. It could also be from something that threatens to cause death or serious injury, and not just to yourself but witnessing it happen to someone else. A stressor could be experienced by you alone or by a group of people. It does not have to be just one specific traumatic event, it could be a group of experiences that causes PTSD. Any extreme traumatic event that satisfies the diagnostic criteria of DSM-V may be accepted as a stressor.
The first thing you will want to do is submit a statement to the VA explaining the circumstances surrounding the traumatic incident that you experienced in service. You can use VA Form 21-0781. Your statement is not enough to prove that your stressor happened. The VA is not going to take your word for it that what you are saying is true. There needs to be additional evidence to prove that the stressor actually occurred and that it occurred in service. This is called corroborating the stressor. The VA is supposed to help you in obtaining evidence to prove your stressor, triggered by the stressor statement you submit.
The VA has recognized that PTSD may appear many years after service or PTSD symptoms may appear immediately but not be diagnosed until much later. This can get tricky because the more time goes by, the more difficult it becomes to corroborate a stressor. Service records may be lost or destroyed, the incident could not have been documented at all, or other veterans who could serve as witnesses may die or become difficult to find. So the VA has created 4 exceptions that make it easier for veterans to prove their claims:
- When PTSD was diagnosed in service
- When the veteran was in combat
- When the stressor was related to fear of hostile military or terrorist activity
- When the veteran was a prisoner of war
- When the stressor was an in-service personal assault
PTSD was diagnosed in service
The VA added a regulation to the law on PTSD to help make it a little easier for veterans to prove their claim. The veteran’s statement about his in-service stressor will be taken to be true if the veteran:
- was diagnosed with PTSD during service,
- the claimed stressor is related to the service,
- the stressor is consistent with the circumstances of the veteran’s service,
- and there is no other evidence showing otherwise.
One of the reasons the VA changed this law is because now more veterans are being diagnosed with PTSD in service while before the diagnosis didn’t come until much later. This rule, however, only applies to claims pending on or filed after October 29, 2008 (the date the law went into effect). This rule does not apply to other mental disorders diagnosed in service, or if the initial PTSD diagnosis occurred after service. It only applies when there was an in-service diagnosis of PTSD and the stressor relates to that service.
As previously mentioned, you might start showing symptoms of PTSD right after the traumatic event happens. This could lead to you being diagnosed with PTSD in-service and would facilitate the process of getting service-connected. However, PTSD symptoms could also show up years after the traumatic incident in service, so the diagnosis comes later. You can still get service-connected when PTSD is diagnosed later. But if you are released from service because of a mental disorder that developed as a result of a stressful event in service, you should be awarded a 50% rating and be scheduled for reevaluation within 6 months.
We will look at the remaining exceptions in blog posts to come.
Hundreds of thousands of people were exposed to toxic chemicals in the water at Camp Lejeune from the 1950s to the late 1980s. Two water treatment facilities were polluted by chemicals such as trichloroethylene (TCE), benzene, perchloroethylene (PCE), and vinyl chloride. The VA has been providing health care and reimbursement for medical costs to veterans and their family members stationed at Camp Lejeune with 15 illnesses related to the toxic water exposure, but they had not awarded presumptive status to any condition…. until now. The VA has officially recognized that certain diseases are associated with the contaminated drinking water at Camp Lejeune. The following conditions are now entitled to presumptive service connection for veterans exposed to contaminated water at Camp Lejeune:
- Adult leukemia
- Aplastic anemia and other myelodysplastic syndromes
- Bladder cancer
- Kidney cancer
- Liver cancer
- Multiple myeloma
- Non-Hodgkin’s lymphoma
- Parkinson’s disease
The first thing to understand is what presumptive service connection means. Presumptive service connection means the VA will assume a condition is related to military service. Typically, the VA will require evidence of a link between a veteran’s condition and their military service. This is not the case with presumptive service connection. So, if a veteran that was exposed to the contaminated water at Camp Lejeune is diagnosed with one of the above listed presumptive conditions, they will not have to prove any link between their condition and service. In effect, with presumptive service connection, the link is already established.
Once service connection is established, it is important to understand how the VA rates the condition in order to ensure you receive the correct rating. The rating assigned to a service connected condition is supposed to reflect the level of severity of the disability in terms of how much the condition interferes with the veteran’s ability to work. Each condition has a four digit number assigned to it called a diagnostic code (DC). Once you look up the relevant DC for your condition, you will be able to see the specific rating criteria that the VA looks at when assigning a rating percentage for that condition. For example, let’s look at a veteran with leukemia. If the veteran’s leukemia is active, it is rated according to the criteria set forth in DC 7703. DC 7703 states:
There are many different types of leukemia, but all are rated the same. If it is active and undergoing treatment, then it is rated at 100%. This 100% rating continues for 6 months after the last treatment. Then the condition will be reevaluated and re-rated. If the leukemia is not active or being treated, then it is rated as anemia or aplastic anemia, whichever gives the higher rating.
In our example, let’s say the veteran’s leukemia was active for 1 year. He will receive a 100% rating for that year, plus 6 months after his last treatment. The rating criteria for leukemia then says the veteran’s condition must be reevaluated and re-rated under the criteria for anemia (DC 7700) or aplastic anemia (DC 7716). If the rating criteria for anemia would give the veteran a higher rating, he would then receive a rating according to the criteria set forth in DC 7700 which is based on the amount of hemoglobin in the blood and symptoms directly related to it. This is a great example of the need to look out for secondary conditions that you may be entitled to additional compensation for. If a service-connected disability causes a new condition, that new condition is entitled to service connection as well. So, going back to our example, the veteran with anemia, post active leukemia, developed neuropathy as a result of his anemia. He is entitled to service connection for the neuropathy, which will be rated separately from his anemia.
As you can see, ratings for service-connected conditions can be very complex, but they are also very important. The VA often makes errors when they assign ratings to conditions, and these errors may mean the difference between hundreds or even thousands of dollars in benefits. Now that the VA has officially recognized conditions entitled to presumptive service connection for Camp Lejeune veterans, those veterans can shift their focus from proving service connection, to ensuring they get the right rating for their conditions.
For most veterans, having to deal with hearing loss and tinnitus is quite common. As of the year 2014, the VA noted that 933,000 veterans were being compensated for hearing loss and almost 1.3 million veterans were compensated for tinnitus. That statistic is alarmingly high. A veteran with either of these two conditions may be wondering what is needed to establish service connection for hearing loss and/or tinnitus.
Tinnitus is a noise that you hear in your ears, such as a buzzing or ringing that happens again and again, or consistently. The only rating available for tinnitus is 10%. A 10% rating will be assigned whether you have ringing in one ear or in both ears, you cannot receive a 20% rating due to tinnitus in both ears. However, there can be a higher percentage available for those whose condition is so severe that it is debilitating or prevents you from working. You may be able to seek an extra schedular rating for your tinnitus in excess of the 10 percent limit in the Schedule of Impairment Ratings.
Hearing loss is defined as any degree of impairment of the ability to comprehend sound. If you are diagnosed with both hearing loss and tinnitus, you may be entitled to one separate rating for hearing loss and another separate rating for tinnitus.
The following is needed to establish service connection:
- A current diagnosis of a hearing condition,
- Evidence of an event that caused the condition, and
- A medical opinion linking the current hearing condition to the event in service or nexus.
Along with the list above, two types of tests are needed to prove a claim for hearing loss. These tests will include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. The Maryland CNC test is a particular word list that is used to test your ability to hear spoken words. A pure tone audiometry test is different tones that must be detected at varying frequencies (low frequencies to high frequencies). Even if you only claim hearing loss in one ear, both ears should be tested. Examinations will be conducted without the use of hearing aids. This will prevent any biased results. These tests should be performed by a state licensed audiologist.
The VA will take the auditory test results and, use a numerical formula, to determine the actual rating that will be assigned. This formula can be found in Section 4.85 of the Code of Federal Regulations. Typical ratings for hearing loss are 0% or 10%, but severe or profound hearing loss can qualify for a higher rating.
Tinnitus is one of the most claimed disabilities when it comes to applying for compensation. Hearing loss comes in at a close second. This statistic comes from the 2015 Annual Benefits Report. The report shows that 9.6 percent of veterans claimed tinnitus and about 5.2 percent of veterans claimed hearing loss. Yet, these two disabilities will be denied time and time again.
The bottom line is that it is very important to have the three components mentioned earlier to establish service connection for hearing loss and/or tinnitus: a current diagnosis, evidence of an event that caused the condition, and a medical opinion linking the current hearing condition to the event in service or nexus. Any veteran struggling with tinnitus and/or hearing loss, should not give up or become discouraged if they are denied the first time or even the second time around. This is a real issue for many veterans. Hopefully, this information will help in the initial process when trying to establish service connection for tinnitus and/or hearing loss.
|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.|
We’ve covered how to rate nerve conditions in general, information on the peripheral nerves of the lower back and legs, and in this blog post, we now look at the peripheral nerves of the upper back and arms.
The peripheral nerves in the upper back and neck go into the shoulders and arms. The following is a list of the peripheral nerves in the upper back/neck that can be rated for VA disability purposes:
- Radial nerve: This is one of the most significant nerves in the shoulder, arm, and hand. The radial nerve controls movements such as bending the elbow, turning the forearm up or down, lifting the hand upward at the wrist, turning the hand from side to side, and moving the thumb straight away from the palm.
- Median nerve: This nerve is in the forearm and hand, and passes through the carpal tunnel in the wrist. It is the nerve affected by carpal tunnel syndrome and controls movements such as turning the forearm up or down, curling the fingers, and bending the hand down at the wrist.
- Ulnar nerve: One of the biggest nerves in the arm, passing behind the elbow, through the wrist, and to the little finger and ring fingers. The ulnar nerve controls movements such as curling the fingers, bending the hand down at the wrist, opening and closing the fingers, and lifting the hand upward.
- Musculocutaneous nerve: The musculocutaneous nerve is found in the arm, and assists other nerves control movements in the elbow and forearm
- Axillary nerve: This nerve controls the deltoid and teres minor muscles that are found in the upper arm.
- Long thoracic nerve: This nerve is responsible for controlling the muscles in the rib cage underneath the arm. It is necessary for movements such as lifting overhead, throwing, punching, and/or other movements involving the scapula bone. The long thoracic nerve also plays a role in expanding the ribs when breathing.
As with all nerve conditions, the VA looks at which specific nerve is affected in order to rate the condition. However, when rating conditions involving the peripheral nerves of the upper back/neck and the arms, the VA also considers whether an entire group of nerves is affected. The following nerve groups (called radicular groups) are involved with rating the peripheral nerves of the upper back/neck and arms:
- Upper radicular group: The upper radicular group includes the long thoracic nerve, median nerve, radial nerve, musculocutaneous nerve, axillary nerve, and all nerves that offshoot from these. The nerves of the upper radicular group are associated with movements such as raising and lowering the arm to the side, bending the elbow, turning the forearm up or down, and rotating the arm away from the body.
- Middle radicular group: This group includes the long thoracic nerve, musculocutaneous nerve, median nerve, and radial nerve and controls movements such as raising the arm to the side, lifting the hand up at the wrist, bending the elbow, and turning the forearm up or down.
- Lower radicular group: The radial nerve, median nerve, and ulnar nerve make up the lower radicular group. The lower radicular group nerves control the ability to bend the hand up at the wrist, turn the hand from side to side at the wrist, curl the fingers, bend the hand down at the wrist, open and close the fingers, and move the thumb straight away from the palm of the hand.
Each peripheral nerve of the upper back/neck and the arms contains their own diagnostic codes for rating purposes. If all or most of the nerves in a particular radicular group are affected, then the VA will rate the condition according to the radicular group affected (upper, middle, or lower). Each radicular group has its own diagnostic codes. There are also diagnostic codes that apply if all three radicular groups (upper, middle, and lower) are affected.
The following table lists the diagnostic codes associated with each nerve, along with the diagnostic codes for each radicular group:
|Nerve/Group Affected||Diagnostic Code for Paralysis of the Nerve||Diagnostic Code for Neuritis of the Nerve||Diagnostic Code for Neuralgia of the Nerve|
|Upper radicular group||8510||8610||8710|
|Middle radicular group||8511||8611||8711|
|Lower radicular group||8512||8612||8712|
|All three groups affected||8513||8613||8713|
For each nerve or each radicular group affected, be sure to check and see if you would be able to receive a higher rating based on the limitation of motion. The peripheral nerves of the upper back/neck and arms are associated with limited motion in the shoulder elbow, forearm, wrist, and fingers. Additionally, when dealing with the upper peripheral nerves, the VA rating criteria will consider whether the side of the body affected is the veteran’s dominant arm/hand. Lastly, when deciding whether to rate a nerve condition according to a specific nerve versus a radicular group, look at whether the majority of movements associated with a certain group are affected. If only a couple nerves in one of the radicular groups are affected, the condition should be rated according to the specific nerve affected. A good rule of thumb is to make sure that the nerve or radicular group the VA uses for rating best approximates the overall function of the arm that has been affected.
Many veterans who served in the Persian Gulf War, Operation Enduring Freedom, and Operation Iraqi Freedom are suffering from multi-symptom, undiagnosed illnesses. This is commonly referred to as “Gulf War Syndrome,” and thought to be the result of exposure to biological or environmental hazards. Unfortunately, because of the nature of Gulf War Syndrome, it is one of the most difficult disabilities to get service connected. However, it is possible, and today we are going to discuss the specific rules in place for this condition and what the VA is looking for when it is evaluating these claims.
Congress has enacted special rules for service connection for Gulf War Syndrome. First, in order to be entitled to the presumption of service connection, the veteran must qualify as a Persian Gulf War veteran. The VA defines a Persian Gulf War veteran as someone who served in active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War after August 2, 1990, including service in Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.
Second, the veteran must suffer from a qualifying chronic disability. A qualifying chronic disability can be any of the following: an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; or any undiagnosed illness that the Secretary determines in regulations warrants a presumption of service connection.
An undiagnosed illness may be manifested by signs or symptoms such as fatigue, unexplained rashes, headaches, muscle pain, joint pain, neurological symptoms, respiratory symptoms, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss, or menstrual disorders. It is important to note that the veteran can rely on evidence other than medical evidence that he or she has such symptoms, as long as the symptoms the veteran is experiencing are able to be observed by a non-medical professional. The symptoms also have to be chronic, meaning they have existed for 6 months or more, and the veteran must not have a diagnosis for his or her symptoms. This is very different from the typical rules for service connection, where a diagnosis of a current condition is required.
The second type of qualifying chronic disability is a medically unexplained chronic multi-symptom illness such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome (or another functional gastrointestinal disorder). It is important to note that for this second type of qualifying chronic disability, you will need to show a diagnosis for one of these conditions. There are also nine infectious diseases that fall under the special rules for Gulf War veterans: brucellosis; campylobacter jejuni; coxiella burnetti (Q fever); malaria; mycobacterium tuberculosis; nontyphoid salmonella; shigella; visceral leishmaniasis; and West Nile virus. In addition, if a veteran is service connected for one of these nine infectious diseases, VA regulations recognize certain long-term health effects associated with those diseases, so the veteran may be entitled to secondary service connection for that condition as well.
Finally, the third element of service connection for a Gulf War illness is that the qualifying chronic disability must have become manifest during active military service in the Southwest Asia theater of operations or to a degree of 10 percent at any time since the veteran’s return from Southwest Asia (note that the presumptive period for the nine infectious diseases varies). Chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome do have their own diagnostic codes, so it is simple to determine whether your condition meets that requirement. However, determining whether an undiagnosed illness has become manifest to a degree of 10 percent or more can be especially difficult, because the illness must be evaluated under the rating schedule for a similar condition. Therefore, it is important to analyze which code the VA used to evaluate an undiagnosed illness and whether a different code would have been more appropriate. If that is the case, be sure to file an NOD so you can continue your appeal and get the benefits you deserve.
Epilepsy is a condition involving recurrent, unprovoked seizures. Seizures are defined as a period of abnormal electrical brain activity in the brain which causes the body to act uncontrollably and oftentimes unconsciously. Also, seizures may cause the brain the sense things that aren’t there (hallucinations). A lot of people with epilepsy have more than one type of seizure and might also have other neurological symptoms as well. Common symptoms associated with seizures include, but aren’t limited to the following:
- Severe shaking of the body
- Falling down
- Inappropriate behavior
Someone suffering from seizures may suffer from a single symptom or multiple symptoms during a seizure. It may even appear that the person isn’t suffering a seizure at all because the symptoms aren’t obvious, but the person experiencing the seizure may act unusually, and they won’t remember anything during the seizure.
In order to receive VA disability compensation for a seizure disorder, a doctor must have witnessed the veteran experience a seizure and also must have performed neurological testing. It is also extremely important for the doctor to document the severity and frequency of the seizures. All epileptic/seizure disorders are rated according to the following criteria:
|Major Seizures||Minor Seizures||Rating Percentage|
|12 or more in the past year||N/A||100%|
|4-11 in the past year||11 or more per week||80%|
|3 in the past year||9-10 per week||60%|
|2 in the past year||5-8 per week||40%|
|1 in the past 2 years||2 in the past 6 months||20%|
|Requires constant medication to control seizures or there is a definite diagnosis of epilepsy with history of seizures||Requires constant medication to control seizures or there is a definite diagnosis of epilepsy with history of seizures||10%|
A major seizure is a seizure that affects the entire brain. Usually, major seizures involve loss of consciousness and uncontrollable shaking. Minor seizures affect a portion of the brain, and usually involve brief interruptions of consciousness with symptoms such as mumbling, rocking, slight twitching of the muscles, and/or falling down. If you have a seizure disorder that involves both major and minor seizures, you should use the rating criteria that would give the highest rating. For example, if you suffered 3 major seizures in the past year and had 2 minor seizures in the past 6 months then you would be entitled to a 60% rating. Even though the minor seizures only meet the rating criteria for 20%, the major seizures meet the criteria for a 60% rating, and the veteran is entitled to the higher of the ratings.
It is important to note that oftentimes a mental disorder is present with epilepsy. Mental health symptoms such as hallucinations, depression, etc. that are present only during a seizure cannot be rated separately. However, if mental health symptoms are present in between seizures they can receive a separate rating. Also, while personality disorders are not usually a ratable condition for VA disability benefits, if you have a personality disorder that is present along with your epilepsy, it can be rated. Personality disorders present with epilepsy are rated as dementia.
The following is a list of epileptic/seizure disorders and their corresponding diagnostic codes which are rated according to the criteria in the above table:
- Grand mal epilepsy (8910): features a loss of consciousness and violent muscle contractions. This type of seizure is most often caused by epilepsy, but can also result from other health problems such as low blood sugar, high fever, or a stroke.
- Petit mal epilepsy, also known as absence seizures (8911): These seizures involve brief and sudden lapses of consciousness. Absence seizures can usually be controlled with anti-seizure medication.
- Focal motor epilepsy (8912): Focal motor seizures are seizures that appear to be the result of abnormal activity in just one area of your brain. There are 2 categories of focal motor seizures: focal seizures without loss of consciousness, and focal dyscognitive seizures.
- Jacksonian epilepsy (8912): These seizures involve a brief alteration in movement, sensation or nerve These seizures typically no change in awareness or alertness.
- Sensory epilepsy (8912): These seizures originate in the part of the brain that is involved with the senses. The resulting symptoms usually involve unusual sensations that affect touch, taste, vision, hearing, and smell.
- Diencephalic epilepsy, also known as automatic epilepsy or vasomotor epilepsy (8913): Diencephalic seizures are a more rare form of seizures, and affect the part of the brain that controls autonomic functions (vomiting, flushing, sweating, etc.).
- Psychomotor epilepsy (8914): A psychomotor seizure typically occurs in the temporal lobe of the brain, and results in the impairment of responsiveness and awareness to ones surrounds.
- Narcolepsy (8108): Narcolepsy is a chronic neurological disorder affecting someone’s ability to control sleep and wakefulness. People with narcolepsy will experience excessive daytime sleepiness with intermittent, uncontrollable episodes of falling asleep during the day.
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