Understanding 2016 California Ballot Propositions

Written by Maurice Abarr on . Posted in Veterans Disability, Workers Compensation

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The 2016 election is less than a week away. It’s absolutely in your interest to be well-informed about issues that affect you and your family. And, of course, each of you who are eligible to vote must do so.

For those with an on-going need for prescription drugs, there are issues of very real consequence. One of them is California Proposition 61. This is what the Los Angeles Times published in its “Election 2016: California Voters Guide” section from Sunday, 23 October 2016:

“Question [the proposition]: Should California mandate the state agencies contraction to buy prescription drugs pay no more than the lowest price paid for the drug by the Department of Veterans Affairs?

Money raised for “Yes” campaign: $14.6 million

Money raised for “No” campaign: $108.9 million

What you should know: This measure would require state agencies to pay no more for a prescription drug than the price the U.S. Department of Veterans Affairs pays. The VA typically pays the lowest price for prescription drugs of any public or private entity, because federal law ensures the agency gets a 24% discount off a drug’s list price right off the bat. Proponents argue it would eventually help lower soaring drug prices statewide. Opponents, including the pharmaceutical industry, warn it could lead to higher drug prices for veterans and seniors.”

I wouldn’t presume to tell you how to vote. But, it’s worth noting that “big pharma” has invested over $100 million dollars trying to influence you. You can draw your own conclusions as to whether they regard this as a threat to their profits. It’s very much in your interest to cast your vote on Proposition 61 wisely.

Contrarily, for a balanced consideration of Proposition, there are some organizations which say they are speaking on behalf of Veterans that assert that if Proposition 61 becomes law, it may cause an INCREASE in the cost of medications being prescribed to Veterans. Given the amount of money that is being spent by Big Pharma to defeat this Proposition, I frankly question the veracity of the argument that there will be any significant cost increases being passed on to Veterans. For those, such as myself, who take the Veterans’ interests to heart, I think this is a “smoke and mirrors” argument that was created by “big pharma” to fuel their challenge to Proposition 61.

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NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Filing A Workers Compensation Claim Without Fear Of Retaliation

Written by Maurice Abarr on . Posted in Workers Compensation

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This is an all too common problem:

“I got injured at work, but do not want to file a Workers Compensation claim because I’m afraid I will lose my job, or that my employer will treat me badly.”

There is always a risk of a work-related injury if you are employed. For that reason, employers in California are required by law to provide Workers Compensation insurance for their employees. Thus, if you get injured at work—or acquire an illness that can be attributed to your work—your employer is required to inform you of their Workers Compensation insurance carrier, provide you with a claim form, and pay for your medical treatment.

Workers Compensation ensures that an injured worker receives some form of wage replacement while receiving medical care for their work-related injury. In order to qualify for that benefit—called “Temporary Disability”—you must be continuously off work, declared “temporarily totally disabled,” and engaged in active treatment. Ordinarily, you are not entitled to this benefit for simple medical appointments.

The Workers Compensation system has developed a reputation—some of it good, some of it not so good. The “good” is that Workers Compensation is a specialized area of law that provides for injured workers only. It allows injured workers to seek the proper medical care to recover after an injury, without relying on their private insurance carrier. The “not so good,” is that frivolous claims do happen – which leads to negative impression by employers. Such claims (and the perception created by them) are the primary reason that Workers Compensation may be viewed negatively or met with skepticism by employers. This contributes to the hostility some employers may have towards an employee who files for such benefits.

Most employers, however, understand the risks involved in performing certain duties at work, whether it’s carrying heavy loads, excessive typing, or repetitive bending. There is always a possibility that, with a wrong move or repetitive motions over time, an injury will arise. If you continue to work, knowing you’ve sustained an injury and don’t seek the proper treatment, you may compound your injury until you are unable to work at all. Thus, injured workers should not refrain from filing a Workers Compensation claim out of fear. Though there have been situations where an employer has fired an employee for filing a Workers Compensation claim, or been treated a hostile manner by the employer, these situations can sometimes be corrected with prompt and appropriate action by the employee.

At-will Employment & Your Disability

Most workers have “at-will” employment. This means that an employer may fire an employee with or without just cause. In other words, no reason or warning is required to justify the termination of employment. However, an employer may not fire you because of your disability. Most employers must comply with the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), which prohibit them from discriminating against workers due to their disabilities.

You and your employer will become aware of any disabilities you may have after you receive diagnosis and treatment from a physician. Typically, an injured worker will be treated by a Primary Treating Physician (PTP) within the Workers Compensation system, known as the Medical Provider Network (MPN). Generally, the PTP will write a report that lists any physical limitations, known as “modified duties” or “restrictions,” you may have. Upon notification of these restrictions, your employer is required to make a good-faith effort to reasonably accommodate these modified duties.

However, not all employers may be able to accommodate such modified duties. Your only option will be to seek other work or cease working. In these situations, the employer would not be violating the law for “letting you go,” since they just can’t accommodate your restrictions.

Wrongful Termination & Your Disability

If it’s obvious that your employer fired you solely because of your work-related injury—or for filing a Workers Compensation claim—you should definitely consult an attorney. A different legal issue is at stake—wrongful termination. It is generally illegal for an employer to fire or punish you for exercising your rights to receive Workers Compensation for a work-related injury. If this occurs, the employee must prove* that he or she was fired as a form of retaliation for filing the claim. Thus, if you feel that you are facing a situation like this, you must inform your attorney as soon as possible. He or she may choose to take action on your behalf or refer you to a specialist in Employment Law.

*Note: Proving that the termination was substantially due to the exercise of your rights as an injured worker can be difficult. Each case must be assessed by a qualified attorney based on the facts accompanying it.

If your injury is indeed work-related and has been accepted by the insurance carrier, there should be no hostility between you and your employer—you are not suing your employer when you file for Workers Compensation. You are merely seeking the benefits afforded to you by law and from an insurance policy your employer pays for.

Thus, filing for Workers Compensation should not be feared—it should be exercised in order to help you return to work quickly. We at The Law Offices of Maurice L. Abarr are uniquely well qualified to advocate for you and protect your rights. Contact us today for a free consultation.

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NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Veterans Can Hire DVA-Certified Attorneys WITHOUT Upfront Money

Written by Maurice Abarr on . Posted in Veterans Disability

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A common fallacy Veterans have when contemplating acquiring an attorney to appeal a DVA decision is that there will be an upfront or “out of pocket” expense. Depending on the attorney, it’s possible for there to be NO such cost. Certain attorneys—including ourselves—are willing to work on a “contingency-fee basis.” This arrangement is similar to the way lawyers are paid in Workers’ Compensation and Personal Injury cases.

This means you must be awarded retroactive compensation benefits—AFTER the attorney is hired—BEFORE the attorney receives a fee. Conversely, if you receive no retroactive award of benefits, you owe the attorney nothing.

The changes in the law that Congress approved in 2007 provided, among other things, that:

  1. Attorneys who became certified with the DVA could appear at earlier stages of a Veteran’s appeal of a DVA decision.
  2. The VA would withhold as an attorney fee 20% of any retroactive benefits awarded after the Veteran hired an attorney who was authorized to appear before the Regional Office or Board of Veterans Appeals.

Of course, you are free to negotiate a different payment percentage. However, if you and your attorney agree on a percentage greater than 20%, your attorney is entitled to collect the fee from you at the time the retroactive benefits check is received. If the likely overall recovery is projected as modest, the attorney may request more than a 20% fee in order to justify the amount of time (and overhead expense) that will be incurred during the time the case is being worked on. The norm in such instances is one-third (33 1/3%) of the award.

This is a good arrangement for Veterans because you are not forced to dip into your own possibly limited funds in order to proceed with your appeal. The right attorney will share with you both the risks inherent in any litigation, as well as the benefits.

How To Proceed

If you would like a free consultation with our office, please contact Maria at Extension 5 and she will get you started in our intake process. We usually need the entire C File (claim file) from the VA before we can commit on a case. Our intake process begins with some questionnaires which we will need completed. We will also send you a FOIA (Freedom of Information Act) Letter for you to review, sign, and send by Certified Mail/Return Receipt Requested to your Regional VA Office.

We at the Law Offices of Maurice L. Abarr are authorized and uniquely qualified to address your Veterans Disability issues. We look forward to serving you.

Veterans Survivors’ Benefits & You

Written by Maurice Abarr on . Posted in Veterans Disability

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None of us can escape mortality. This is certainly true of veterans. While nothing will never make up for this loss, there are certain benefits that are available to survivors of veterans who have died.

Retroactive Disability Compensation Benefits

If a veteran passes away while a claim for disability compensation benefits is pending before the VA, the claim does not have to die with the veteran. While the surviving spouse or children would not be eligible for future disability benefits (if the claim is ultimately approved), the surviving they may apply to receive the past-due benefits. This could turn out to be a significant sum, depending upon how the VA ultimately rates the level of disability and how far back the VA determines the disability started (i.e., the “effective date” of the disability). These accrued benefits are not available to all survivors; survivors must meet certain eligibility requirements. The same is true for the next form of compensation.

Dependency and Indemnity Compensation

Another way surviving dependents may receive compensation is through Dependency and Indemnity Compensation (DIC). This is a monthly benefit paid to survivors of deceased veterans. There are requirements for eligibility for DIC benefits. The veteran must have died:

  • While on active duty OR
  • From a service related injury or disease OR
  • While receiving disability for a totally disabling condition for:
    • At least 10 years before death OR
    • Since the veteran’s discharge AND for at least five years prior to death OR
    • At least one year prior to death if the veteran was a former POW.

Additionally, there are requirements for the survivors. A surviving spouse must have:

  • Married the veteran at least one year before the veteran’s death OR
  • Married a veteran who died from a service-connected disability, if the marriage was within 15 years of discharge from the period of service that caused the disability OR
  • Married a veteran and had a child with the veteran, OR
  • Married a service member who died while on active duty.

Also, generally speaking, the surviving spouse must have lived with the veteran and must not have remarried after the veteran’s death. And a surviving child may be eligible for DIC if the child isn’t part of the surviving spouse’s DIC, is unmarried and is under 18 (there are exceptions to this).

The list of requirements is actually even more complicated and this blog just touches on the basics. These are complicated rules, conditions and, as usual, many potential exceptions which can work to your advantage OR work against you. It would be to your advantage to seek qualified help if you’re not sure if either of these benefits apply to you. And, if you apply for DIC or accrued benefits and receive a denial letter from the VA, as with other VA decisions, you have the right to appeal the denial.

We at The Law Offices of Maurice L. Abarr are uniquely qualified to assist you with all manner of veterans’ benefits issues. Contact us for a free consultation.

Dear Doctor: Submitting another Request For Authorization is NOT the Answer!

Written by Maurice Abarr on . Posted in Workers Compensation

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One of the most frustrating things that can happen during the course of medical treatment for a work-related injury is when a course of treatment your doctor recommends (surgery, prescription, etc.) gets denied by Utilization Review (UR). That’s the system used by compensation claims administrators to decide whether that recommendation is medically necessary.

Unfortunately, too many doctors (accustomed to the older system) think they can simply issue another Request For Authorization (RFA) for the same treatment when UR denies a request. The reality under the new law is somewhat bleak: Once a denial has been made, it remains in effect for twelve months. Resubmitting an RFA at that point is an exercise in futility. The only recourse after a UR denial is to request an Independent Medical Review (IMR) within thirty (30) days of the UR decision.

More bad news: The statistics coming out of IMR suggest that the UR decision is upheld by IMR about 90% of the time. Under these circumstances, it’s understandable to question even bothering with the whole process. The answer is in understanding how to increase the probability that the UR denial will be overturned by the IMR—i.e., how to increase the likelihood that the requested treatment will be authorized by IMR overturning the UR denial.

According to regulatory law, IMR is supposed to get copies from the claims administrator of all medical reports relevant to the injured worker’s current medical condition produced within six months prior to the date of the RFA. There are two parts of that long sentence that are important:

  • First, “from the claims administrator.” That means that the parties least motivated to get treatment approved are a primary source of information for the final decision makers. They’re not likely to provide any more information than they did to their own UR—which denied the treatment in the first place.
  • Second, the word “relevant.” There’s scant guidance on what is relevant—or at least that’s what the claims administrators will say.

With IMR having difficulty getting medical records on which to base their decisions—plus an increasing load of cases coupled with a commensurate increase in pressure to close cases—it’s small wonder that IMR ends up rubber stamping the UR denials more than 90% of the time.

So what’s the best way for your case to end up being one of the 10% that’s overturned?

  • The first step is not to rely on the carrier being the sole source of information for IMR. The law allows for the injured worker to submit medical records relevant to the situation. Certainly, the injured worker or injured worker’s attorney is going to be highly motivated to make sure that relevant information gets in front of IMR. From the time a case is assigned to IMR, an injured worker has 15 days to submit those records—so having them ready to go is always a good idea.
  • The second way to increase the injured worker’s “odds” of being in 10% of the decisions that are overturned—meaning the treatment is authorized—is to stay on top of all IMR paperwork. IMR has a huge backlog so they’re motivated to close cases. Towards that end, they will issue an IMR Confirmation Form. This requires the injured worker to return the form within 15 days, essentially saying, “Yes, I want to continue with the IMR process.” Otherwise, IMR assumes that the case has been dropped and simply upholds the UR denial. If you’re working with an attorney, don’t assume that because you’ve received an IMR Confirmation Form that your attorney did as well. Make sure you and your attorney are on the same page at all times and that you don’t miss critical short deadlines like this. When you receive any document from IMR, contact your attorney’s office at once and make sure they received a copy also.

So what’s the good news? In cases where the injured worker or attorney submits their own medical information and stays on top of the paperwork, the rate of UR decisions being overturned can double or even triple. While actual outcomes will always depend on the type of recommendation and the specific case facts, the best possible outcomes come from aggressively and affirmatively pursuing your case. We at the Law Offices of Maurice L. Abarr are uniquely qualified to guide you through this maze. Contact us for a free consultation.

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NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

The Stigma Of PTSD

Written by Maurice Abarr on . Posted in Veterans Disability

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One of the realities of combat experience is that veterans can suffer from a range of stress reactions—including post-traumatic stress disorder (PTSD). Fortunately, there is a system in place to help these veterans. Unfortunately, some veterans aren’t seeking the help that’s available to them. This may be due to a perception of stigma that’s attached to it. There are many misconceptions and myths about PTSD. We’re going to address some of the key ones here.

  • Some veterans move into civilian jobs that require a security background check and it’s a common perception that a diagnosis of PTSD will negatively impact them. While not all background checks are the same, generally speaking, a diagnosis of PTSD does not automatically threaten a veteran’s security clearance. Even the Department of Defense’s standards allow for service members with a PTSD diagnosis—who are in treatment for it—to maintain their clearance. In fact, security clearance refusal is more likely to happen because of the behaviors associated with UNTREATED PTSD—including not meeting financial obligations or self-medicating with alcohol or illicit drugs.
  • Other veterans fear they’ll never recover from PTSD. The truth is that with appropriate therapies and, in some cases, medications, the manifestations of PTSD can be greatly reduced or even eliminated. The tools provided through therapy can help veterans develop effective coping mechanisms that they would not otherwise have.
  • Perhaps the most pervasive misconception about PTSD that prevents veterans from seeking help is that it’s a sign of some sort of character flaw. All service members—especially those who have experienced combat—have it ingrained in them to just “suck it up.” While that may be appropriate on the battlefield, it’s not the best response in dealing with nightmares that follow you home. Stress reactions are not a sign of weakness; they’re a normal reaction to an abnormal situation. Knowing when to ask for help is actually a sign of strength and wisdom.

PTSD is treatable and reaching out early typically leads to the best outcomes. The bottom line is that if you’re a veteran in crisis who’s suffering from a delayed stress reaction resulting from your military experience, then you should seek the help you need. Platitudes common during military service such as “drive on” should be applied to how you approach your treatment—not to dealing with the problem on your own.

If you have filed a claim for PTSD (or other mental/emotional/behavioral impairments) and wish to challenge the VA’s assessment of the cause or percentage of your current disability, we at the Law Offices of Maurice L. Abarr are here to help you. It’s what we do. Contact us for a free case evaluation.

Death Or Injury Easier To Prove In Workers’ Compensation Cases

Written by Maurice Abarr on . Posted in Workers Compensation

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The Supreme Court of California recently decided South Coast Framing Inc. v WCAB—an important case in workers’ compensation law. The decision clarifies how evidence should be weighed in workers’ compensation cases.

A carpenter working for South Coast Framing suffered neck and back injuries and a concussion while on the job. He was prescribed medications by both his Workers’ Compensation doctor and his personal physician—and tragically died of an accidental overdose. His family sought death benefits through the Workers’ Compensation system and a Workers’ Compensation Judge granted those death benefits. The Court of Appeal reversed that decision. Ultimately, the Supreme Court of California reversed that decision and reinstated the death benefit award.

While the medical evidence found that it was primarily because of the drugs prescribed by his personal physician, the medical expert conceded that at least one of the medications from the Workers’ Compensation doctor contributed to the overdose. Additionally, the medications prescribed by the personal physician were to help with sleep problems the deceased worker had started suffering since the work accident. The Workers’ Compensation Judge ruled, therefore, that the fatal overdose was tied to the work accident.

The Court of Appeal, on the other hand, ruled that there was a lack of evidence to support this finding. The issue is in the language of the actual Labor Code and that there are different standards of causation in workers’ compensation than in tort (personal injury) law. The Court of Appeal was using a standard more applicable to a suit brought in civil court—in that the impact of the medications from the workers’ compensation doctor were not “significant” enough to prove causation.

In its overturn, the California Supreme Court correctly pointed out that, because of the way the state’s labor code is written, the Court of Appeal applied the wrong standard for a death case. In the Workers’ Compensation system, it is sufficient to prove that employment is a contributing cause to the death—not the amount of the contribution. Furthermore, the Supreme Court ruled that a Workers’ Compensation Judge’s findings of fact are not subject to appellate review at all if the findings are supported by the totality of the evidence and of the record; the Court of Appeal is “not free to reweigh the evidence or substitute an inapplicable standard of review.”

The end result of all of this is that it helps clarify what the standard of causation is in a workers’ compensation cases. Although the decision specifically dealt with a family seeking death benefits for an injured worker, the clarified standards should help any worker trying to establish that an injury or illness is work related.

If you have a Workers’ Compensation legal issue, we at The Law Offices Of Maurice L. Abarr are uniquely qualified to assist you. Contact us for a free consultation.

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NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

PTSD & You

Written by Maurice Abarr on . Posted in Veterans Disability

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PTSD—It’s a term that veterans hear quite often. As a psychological condition, it’s commonly associated with those who have experienced the realities of combat. But diagnoses of PTSD are not limited just to service members who’ve been in combat.

So what exactly is PTSD and what’s the best way to present your claim to the VA? Let’s start by defining it and the standard that the VA uses. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is a guidebook published by the American Psychiatric Association. It catalogues recognized mental illnesses—including the symptoms of those illnesses as well as the ways to diagnose them. The DSM is currently in its fifth major edition—which is called, not surprisingly, the DSM 5. The VA relies upon it for diagnosing and determining impairment levels for PTSD (and other mental health issues). It’s important to know against what yardstick the VA measured your claim—and to assess whether your claim measures up.

PTSD, as you may already know, is an acronym for Post Traumatic Stress Disorder. In very broad terms, it refers to a person’s generally negative response, after the fact, to an event (or series of events) that threatens his/her safety. The DSM 5 lists eight indicators to assess a diagnosis of PTSD.

  1. Stressor: Was there exposure (real or threatened) to death, serious injury or sexual violence?
  2. Intrusion: Is the traumatic event persistently re-experienced?
  3. Avoidance: Is there avoidance of things that are associated with the trauma?
  4. Negative Alterations: Are there negative alterations in thought processes, mood, or both since the trauma?
  5. Alterations In Arousal/Reactivity: Are there physiological responses to the trauma? These could include (but are not limited to) things like insomnia or hyper-vigilance?
  6. Duration: Have these symptoms lasted over 30 days?
  7. Functional Significance: Do these symptoms have a “clinically significant distress or impairment” into regular aspects of life?
  8. Exclusion: Is there anything else that can explain these symptoms?

These factors are in the context of the standard three elements for a successful disability claim with the VA—a current disability, an in-service injury/stressor, and the link between the disability and the in-service stressor. If the VA has denied your claim for PTSD, their Statement of the Case (SOC) should specify exactly which part they thought was lacking and why. Was it the diagnosis itself? Was it the perceived lack of an in-service stressor? Was it a problem with the link between the two? The SOC will be your guide to an effective appeal.

The Current Disability

It’s important that you have a doctor’s report that explains a diagnosis of PTSD. In that report, the doctor who diagnoses the PTSD should fully describe why he/she feels that it’s PTSD under the criteria of the DSM 5. This can be especially important in cases where another doctor suggests that the symptoms are caused by something else.

The In-service Injury/Stressor

PTSD can result from a single event or a series of events. It’s important to identify all of the stressors in your claim as specifically as possible. In broad terms, any traumatic event or series of events that satisfy the diagnostic criteria in DMS 5 are acceptable. You still need to be clear on what that event or those events are, such as:

Combat

If the trauma you suffered was a result of experiencing combat, you’ll need to provide evidence that you actually were in combat. A DD-214 is a good start since it should have records of medals and awards you may have received, your military occupation, the units with which you had served, and the dates of that service. You provide as much specific evidence as you can about dates of specific service, units to which you were attached, events, campaigns, missions, locations, and so forth.

Non-combat

Proving a non-combat stressor is a little more challenging. Examples of non-combat stressors can include things such as experiencing a traumatic accident or serving duty with a graves registration unit. You need to provide credible evidence that the claimed in-service stressor occurred. Again, the more corroborating evidence you can provide, the better your chances of a successful claim (and, if necessary, appeal) will be. It may help to have corroborating statements from others in service with you about specific events you experienced.

Rape, Domestic Violence, Harassment, Physical or Sexual Assault

It’s an unfortunate truth that horrible things that have nothing to do with military service can still happen to service members. Your military service record may not have a specific record of this kind of stressor but you can still find corroborating evidence to support your claim. This might be in the form of a police report or emergency medical services records. Statements from fellow veterans and witnesses can also help legitimize your claim.

The Link Between The Two

This is where a doctor’s findings are crucial. It’s important that the doctor who diagnosed you with PTSD specifically state that it is “at least as likely as not” that your PTSD is the result of the traumatic event or events that you experienced while in service.

Because of the complexities involved in a PTSD claim, successfully filing a PTSD claim with the VA can be a challenge. After suffering the trauma that led you to this point, you may be facing another fight to get what you deserve. If you’ve filed your claim and had it denied, it’s a good time to consider seeking qualified help. We at The Law Offices of Maurice L. Abarr are uniquely qualified to advocate for you. Contact us for a free consultation.

Buddy Letters

Written by Maurice Abarr on . Posted in Veterans Disability

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VA claims generally start with a statement from the veteran. The VA then examines all of the additional evidence to make a determination on that veteran’s claim. Typically, that evidence includes medical and service records. Unfortunately, those can be woefully incomplete.

That’s when additional evidence can fill in some very important blanks. The VA would call one type of additional evidence a “Statement in Support of Claim.” These are commonly referred to as “Buddy Letters” or “Buddy Statements.” There are various kinds of Buddy Letters. The best ones are those written by fellow service members who actually witnessed what you went through. The closer they were to you, the more compelling Buddy Letters will be to the VA.

For example, suppose you were an 11B Infantryman making a claim of PTSD today. An effective Buddy Letter might come from your platoon sergeant. That would be a person who saw you from the time you arrived in theater to the time you left. In the Buddy Letter, the service member could recount the actual missions or campaigns in which you were involved, provide first-hand observations of what you experienced and witnessed, and comment on any changes he observed in you over that time.

Though less effective, a Buddy Letter could be from another service member who served in the same theatre but didn’t actually serve alongside you. The service member might be able to recount general information about the circumstances of your service. Unfortunately, the specifics of what you experienced and how it might have affected you would be missing. A letter like this wouldn’t necessarily hurt your claim, but it might do little to support it.

Buddy Letters can be helpful in proving that you served in combat—especially if you didn’t have a combat MOS or if your official service record doesn’t specifically list it. Unfortunately, the VA applies a very limited definition of “combat” requiring “[e]vidence that the veteran participated in attacking or defending an attack of the enemy.” That means that service in a general “combat area” or “combat zone” is not enough to prove that a veteran served in combat. Buddy Letters, in conjunction with other evidence, can support your claim that you served in combat.

Another way Buddy Letters can have a positive impact is in cases where injuries during service aren’t always apparent. A series of small strains and sprains can lead to a much bigger problem later in life. If those smaller injuries didn’t warrant going on sick call or reporting to sick bay, there may not be a record of them. Buddy Letters from your co-workers can discuss how you hurt your back lifting equipment day in and day out. Or, how your job required typing all day leading to a current condition of carpal tunnel syndrome. Or, how you worked around toxic fumes all day leading to respiratory issues.

The best Buddy Letters will always come from those who were closest to you at the time of your injury—whether it was a single event or on-going trauma. The closer to you the letter writer was, the more impact the letter will have. So, it should come from someone in your company, rather than someone in your battalion. Better yet, it should come from someone in your platoon, rather than someone in your company. Better still, it should come from someone in your squad, rather than in your platoon. The key is that they can state what they directly witnessed of your service experience and the basis for your claim.

We at the Law Offices of Maurice L. Abarr are uniquely qualified to assist you with any issues related to disabilities caused by your military service. Contact us for a free case evaluation.

Veterans Administration’s Duty To Assist

Written by Maurice Abarr on . Posted in Veterans Disability

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Dealing with the VA to make a claim for your veteran’s disability benefits can often feel like an adversarial process from the moment you get started. After all, you feel you’re due a benefit and you have to go through a long and complicated process to get to it.

Though many don’t realize it, it’s actually the VA’s responsibility to assist you in filing disability claims. In 2000, Congress passed the Veterans Claims Assistant Act. This requires the VA to help veterans file their disability claims. This is a unique requirement among federal agencies that have application processes for benefits.

So what does this really mean and what does the VA have to do? The rules under which the VA operates cover a wide range of duties. They include:

  1. Notifying a veteran of what’s needed to complete an application.
  2. Considering all possible claims.
  3. Helping to gather evidence.

If you submit an incomplete application, the VA cannot use that as a reason to deny benefits to you. It’s the VA’s responsibility to tell you what’s needed. For instance, if your application is missing evidence of the in-service event that is the cause of the current disability, then it is the duty of the VA to inform you how to complete the application with evidence relating to that event.

In other bureaucratic agencies, something as simple as a forgotten signature can kill an entire application—forcing an applicant to start from scratch, if they’re allowed to re-apply at all. But for veterans, it’s the VA’s duty to make sure that you have been given a reasonable opportunity to complete your application.

It’s even the VA’s duty to consider disabilities that you may not have specifically claimed. For example, if a veteran doesn’t make a claim for hearing loss but a medical record suggests hearing problems and a service record suggest prolonged exposure to loud noises during service, then the VA is duty-bound to consider whether an additional claim for hearing loss should be considered.

If there’s something specific that the VA needs in order to approve your application for disability benefits—for example, medical evidence to prove a service connected disability (in addition to what you’ve already submitted)—then the VA is obligated to let you know what records are required. In addition, the VA is duty-bound to assist in gathering that evidence.

The requirements for assistance aren’t absolute, of course. For instance, while the VA’s responsibilities would include obtaining relevant records from any federal agency, you are still responsible for obtaining private medical records or records from state or local governments. Furthermore, you would need to provide enough information to help the VA facilitate getting such federal records.

Another example of how the requirement for assistance isn’t absolute concerns medical exams. Veterans are entitled to medical examinations provided by the VA to help substantiate a claim. But the VA cannot compel you to participate in such an exam—that’s your responsibility. It’s important to remember that not showing up for such medical examinations will count against your application.

If the VA fails to meet any of its duties in assisting you in filing your claim—and your claim is denied—you may have grounds for an appeal. Because the duties of the VA cover so many areas and because the requirements, as well as the limits of those duties can get complicated, it’s a good idea to consult with a qualified attorney to see if the VA missed any of its obligations in your claim. We at The Law Offices of Maurice L. Abarr are uniquely qualified to assist you. Contact us for a free and confidential consultation.

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