Posts Tagged ‘VA Disability Claim’

Supreme Court Denies Veterans Disability Offset Compensation To Ex-Spouses

Written by Maurice Abarr on . Posted in Veterans Disability

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On 15th May 2017, the U.S. Supreme Court ruled unanimously in Howell v. Howell that a state court cannot force veterans to offset the loss of a divorced spouse’s portion of a veteran’s retirement benefits when that veteran waives retirement pay in favor of disability pay. The issues have been hotly debated for years. The ruling overturned an Arizona Supreme Court decision and is now settled law. The case details are probably more relevant to those who specialize in divorce or dissolution law. So, you need not immerse yourself in the minutiae—rest assured we understand the decision and its implications for our Veterans Disability clients. If you are contending with similar circumstances with an ex-spouse, contact a domestic-law specialist. If that attorney happens to be unfamiliar with this Supreme Court decision, tell them to call us.

The Bottom Line: If you have waived your veterans retirement pay (or a portion of it) in order to receive service-related disability benefits, courts can’t order you to indemnify a former spouse for the lost amount in her/his portion of your now reduced veteran’s retirement pay.

Multiple Impairments Figure Into Disability Rates & Payments

Written by Maurice Abarr on . Posted in Veterans Disability

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Your service-related disability may not be just one condition. Consequently, the Veterans Administration makes provision for a range of conditions—multiple conditions, in this instance—in its disability percentages and its compensation tables. Each valid condition will be assigned a percentage. These can be ‘totaled’ to arrive at a final number. Actually, getting to the final percentage where multiple impairments are involved is more than simple addition. It’s actually a formalized combination. For example, if you have 70% for PTSD, plus 20% for your knee, and an additional 20% for your back, the final rating will be 80%. But, at 80%, you would need another 30% in a different body part to get to 90%, plus another 60% in some other body part to get to 100%. As you can see, it’s rather complicated.

The Bottom Line: Each veteran’s case is unique. Navigating these waters is what my staff and I do. We have the skills and resources to see your case through, while protecting your rights. You need not worry about complexities such as these. That’s our job. Contact us for a free case evaluation. We’re here to help you.

Locating The VA’s Benefits Rate Tables

Written by Maurice Abarr on . Posted in Veterans Disability

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If you’re reading this, it probably because you have a need to do so. Fortunately, information about the dollar value of benefits available to veterans with disabilities and/or their survivors is relatively easy to access. The U.S. Department of Veterans Affairs’ website has it all—and more. Here’s the path:

Enter www.va.gov in your web browser
Click on “Disability Compensation”
Click on “Benefit Rates”

You will see the VA’s range of current Benefit Rate categories. Simply click on those of interest and the applicable tables will appear. You will see that the rate tables are organized according the percentage of disability—which was explained in my previous blog, entitled “Disability Levels ~ How The Veterans Administration Evaluates Cases.” You can view this blog by scrolling down.

Of course, you can simply use this LINK and be immediately transported to this part of the VA website.
Either way, you’ll want to bookmark the page in your web browser for easy access in the future.

The Bottom Line: This is the valuation the VA places on a broad range of veterans disabilities and circumstances. Pursuing them can be daunting. And, you certainly deserve a fair shake from the system if you are denied or wrongly classified. We understand the process and how to protect your rights. Contact us for a free case evaluation.

Disability Levels ~ How The Veterans Administration Evaluates Cases

Written by Maurice Abarr on . Posted in Veterans Disability

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The VA has awarded you a service connection for PTSD. Now, it will review the most current clinical evidence available to it so as to assess how the severity of your symptoms impairs you—including your ability to work and your degree of social function. A schedule is used with definitions and percentages that have been set by VA regulations. They have established Diagnostic Codes (DC) for a range of psychiatric (and medical) disorders. Provision is made for the degree of severity of related symptoms. From this, a corresponding disability percentage is assigned. Typically, the VA evaluates the level of psychiatric disability under common criteria, irrespective of your specific diagnosis. This includes PTSD. You can share this information with your psychiatrist and request a report or opinion letter describing your disability or impairment that you can submit to the VA.

It’s worth noting that even though the severity of your symptoms do not satisfy the diagnostic criteria for a 100% rating level, you may qualify under a different VA regulation that permits them to compensate you at the 100% level—insofar as the medical evidence demonstrates that you are unable to obtain or maintain gainful employment and that this is a consequence of your service-connected PTSD. This is called, a TDIU or IU. It stands for “total rating on the basis of individual un-employability due to service-connected disability.”

In ascending order, these are the definitions and percentages (rating levels) the VA uses for mental disorders:

0%: A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.

10%: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

30%: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

50%: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

70%: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.

100%: Total occupational and social impairment, due to such symptoms as: gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

The Bottom Line: If all of this sounds a bit daunting, please don’t worry. My staff and I understand it. We’re uniquely qualified to guide you to a fair and equitable outcome that’s based on your unique circumstances. Feel free to contact us for a free case evaluation.

A Winning Medical Report In A VA Appeal ~ What’s Needed

Written by Maurice Abarr on . Posted in Veterans Disability

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As a Veteran appealing an unfavorable disability claim decision from the VA, you have several impediments to overcome. After you have established that you have a CURRENT disability, you next have to prove that it is service-connected. In most instances, you are going to need medical evidence to accomplish this.

If you are using a private doctor (as I often recommend), the physician will need to write a report that the VA or the Veteran Law Judge at the Board of Veteran Appeals finds CREDIBLE. And, to be credible, the report must (at minimum) contain the following:

A statement that says that the doctor finds that it is “as likely as not” that the specific disability is service-connected. This “as likely as not” standard is your MINIMUM burden of proof in the claim. If your doctor says “more likely than not” or “reasonably, medically probable,” these are fine. Actually, they are stronger, though not absolutely required. Some doctors may prefer to say “at least as likely as not” (slightly stronger than the minimum threshold) which is also fine.

A statement that says the doctor has “reviewed your entire C-File.”

The report must contain the doctor’s explanation for the conclusions that have been reached in the report. In other words, the doctor must justify his/her opinions. This tells the VA the “how” and the “why” of the physician’s opinions in your case. If you also have Lay Witness or Buddy Statements which attest to a pattern of continuous symptoms since the time in service, these boost the doctor’s opinion that the condition is indeed service-connected.

The report must REBUT contrary opinions in the C-File. The doctor reporting on your behalf must review the C & P Exam reports and tell the VA and/or the Veteran Law Judge how and why they disagree with those opinions. Your doctor must show why his/her reasoning is better than that provided by the C & P examiners. Sometimes one medical opinion is deemed superior to another because of the expert’s superior qualifications, background, special training, or clinical experience. Other times, the C & P doctor may have made a diagnosis that is unsupported by the facts in your case or in currently-accepted medical literature.

The doctor’s CV (curriculum vitae/resume) should be attached to the report. Frequently, the C & P examiner will not attach his/her CV to the report disputing your condition as being a Service-Connected Current Disability. Or that, while it is service-connected, there is little or no measureable percentage of disability.

The Bottom Line: This is but one of the reasons why you need the guidance of an Accredited Attorney who specializes in Veterans Disability claim cases. There is much more to it. And, your case is. . .yours. It’s unique. My staff and I are at your disposal. Contact us for a free case evaluation.

Scheduled For Your Veterans Administration C & P Exam ~ What You Need To Know First

Written by Maurice Abarr on . Posted in Veterans Disability

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You’d probably expect me to recommend consulting with an Accredited Attorney BEFORE going to a Compensation & Pension Exam. But, there are IMPORTANT considerations for this. The best way for me to demonstrate this is by way of an actual client example:

“Jane Veteran” was discharged from the military in 2010. She saw combat and was directly engaged on multiple occasions. At the time of discharge, she “just wanted to get home.” Making a claim for a mental injury or disability was not a priority at that time. As time went by, she struggled with nightmares, insomnia, flashbacks, physical and mental fatigue. “Jane” wanted to put the trauma she experienced in service behind her. But she couldn’t. It was, as she put it, “eating [her] alive.” She had trouble keeping a job. She had trouble in her relationships. She began to socially withdraw and isolate herself.

Then, “Jane” encountered a fellow veteran from her time in the service. He shared that he too was having a hard time back in civilian life but that he’d been helped by the treatment he had received from the VA–and that he was now receiving monthly benefits from the VA as compensation for his disability. He urged her to make a claim.

So, five years after her discharge, “Jane” does so for several specific disabilities and begins treatment at her local Veterans medical facility for (among other things) PTSD. She is evaluated by a doctor the VA scheduled her to see. The exam was brief. To her surprise, the VA eventually decided that her claim for PTSD should be denied because there had been no “clinical diagnosis” of her PTSD. (This is the reason frequently given by the VA for denying a claim for such a disability.) “Jane” does the right thing by taking the first step in her appeal–filing a Notice of Disagreement (NOD) with the VA’s denial of her PTSD claim. She hires an Accredited Attorney (us) to represent her in her appeal.

Soon thereafter, “Jane” receives notice from the VA that it has again scheduled her to be seen by an ‘independent’ doctor. The appointment letter is similar to the one for the first doctor—the one that the VA relied upon to deny her claim. But she knows she has to go or her appeal ends if she doesn’t show up.

We carefully review with “Jane” the areas that the VA doctor should cover in order for the evaluation to be fair and unbiased. This time the VA sees it her way and she is awarded 50% in disability following this evaluation.

We believe that “Jane’s” preparation—both mentally and informationally—helped in achieving that outcome. (Of course, it’s possible that the VA recognizes she has competent counsel and they need to get real on the merits of the claim.) We are still appealing “Jane’s” claim because the Effective Date they gave her (for when her compensation STARTED) was the date of the LAST evaluation, not the date she made her claim.

If you see your situation reflected here, contact us for a free case evaluation. My staff and I are here to serve you.

Service Connection By Legal Presumptions

Written by Maurice Abarr on . Posted in Veterans Disability

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As we’ve mentioned before, there are 3 keys to a successful claim with the VA. These are:

  1. Proving your current disability.
  2. Proving your in-service injury or illness.
  3. Making the connection between the two.

Unfortunately, proving that connection can be a challenge. It can be extremely difficult to prove any kind of causality with certain conditions—much less making the connection to something that happened while you were in the service.

Fortunately, Congress has written into law certain legal presumptions—that is, under certain specific circumstances, your disability would be presumed to be service connected. In broad terms, that means if you have a particular disability and you served under certain circumstances, then you don’t have to prove any connection between the two.

The GOOD news is that the list of potentially presumed disabilities is extensive. The BAD news is that certain presumptions apply only to a few limited circumstances of service. In general and with just a few exceptions, the presumptions only apply if you served during a time of war. And, certain disabilities apply to certain circumstances of your service. For example, certain disabilities are presumed to be service connected if you have been a POW. A different list of disabilities is presumed to be service connected for veterans who had been exposed to radiation. On top of that, for many of the included disabilities, symptoms needed to start showing to a specified degree within in a certain time after separation from the military.

To further complicate matters—even with the legal presumptions in place—the VA can deny a claim. They have the option to rebut a presumption. The GOOD news is that the presumption means that the burden of proof has shifted. The VA would need to provide affirmative evidence that your condition was caused by something else—something not service connected.

As you can see, it can be a complicated matter to match up a disability to a condition of service to determine whether your case falls under a legal presumption. Or, to fend off a rebuttal from the VA. It’s in your interest to seek qualified legal assistance. Many lawyers are not certified to appear at all levels of the administrative appeal process of a Veterans’ claim for disability. Contact us at The Law Offices Of Maurice L. Abarr for a free consultation about your Veterans Disability case.

Service Connection (continued)

Written by Maurice Abarr on . Posted in Veterans Disability

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We’ve already discussed the obvious cases of service connected disability—where a current disability is caused by a service-related illness or injury. But not every VA disability claim has to involve something quite that direct. There are a few other ways that you can make the connection to your time in service.

There is something called ”service connection by aggravation.” If you had a medical condition when you entered the military, then there should be a record of that from your entrance physical examination (which should, of course, be in your all important C-File). If that condition got worse while you were in the service, you have a potential service connection by aggravation.

As an example, let’s say at the time you entered the military, your physical showed you had some minor hearing loss. Let’s say it was not bad enough to keep you from joining the military, but it was sufficient to be recorded in your entrance examination files. As veteran, you’ve been suffering from an even higher degree of hearing loss. That could be a case for service connection by aggravation.

Of course, as with other situations, the VA could rebut the presumption of aggravation. Continuing our example, the VA might argue that your hearing loss is worse because that’s just what happens as one ages–that it’s not aggravation but rather due to natural processes.

There is good news. Generally speaking, the rule is that, “Clear and unmistakable evidence…is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.” What that means is that it’s the VA’s responsibility to prove that it WASN’T because of your service. The bad news is that the VA isn’t perfect; they can make mistakes regarding the presumptions of aggravation.

The key point here is that you shouldn’t think that just because you had a medical problem BEFORE joining the military that it will derail your claim. The specifics of your case do matter. Since we’re talking about the VA and complicated rules and regulations, the reality is that for every rule there are all kinds of exceptions. Those exceptions could work for you or against you. The best thing you can do if you think your denied claim might be a case of service connection by aggravation is to contact a qualified attorney. We at the Law Offices of Maurice L. Abarr have the necessary skills to help you. Feel free to contact us for a free consultation.

Notice of Disagreement Update

Written by Maurice Abarr on . Posted in Veterans Disability

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Everything we said in previous blogs about your Notice of Disagreement (NOD) was true—when we said it. But the Department of Veterans Affairs recently announced a significant rule change that has a big impact on how veterans can file an appeal. The currently optional VA Form 21-0958 Notice of Disagreement will become mandatory in March of 2015. This means that the “I disagree with the VA’s ratings decision & I plan to appeal” letter or even the VA Form 21-4138 Statement in Support of Claim will NOT start your appeal.

So what does this mean to you? There’s still a ONE-YEAR deadline from the date of any VA decision you wish to appeal within which to start your appeal. Because of the inherent detail involved in the new NOD form, it means that it’s even MORE important to start your appeal process as soon as possible. As soon as you get your determination from the VA on your claim, request a copy of your Claim File (C-File)—more about that will be coming soon—and start work on the new NOD form.

The rule change notwithstanding, everything else we said before is still true. Form 21-0958 can be tricky and it may be a good idea to get qualified legal assistance to fill it out. You still need to keep a copy of it. And, it still needs to be sent to the VA office that sent you the decision letter from which you are appealing. Of course, you still need to send it in a way that proves that you sent it…and so on.

This VA rules change highlights a critical and overriding concept that you’ll need to keep in mind during the process of your appeal: the governing law and the rules that come from that law are NOT set in stone. It’s the responsibility of anyone that helps you during this process—whether you hire an attorney or go to a Veteran’s Service Organization—to keep abreast of those changes and make sure that they’re followed to ensure a fair hearing of your case. We, at The Law Offices of Maurice L. Abarr, are fully-equipped to help you. Contact us for a free consultation.

Deadlines Matter

Written by Maurice Abarr on . Posted in Veterans Disability

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We’ve mentioned a few times how important deadlines are when you’re going through the appeals process on your VA disability claim. After all, you could do everything right, have all the necessary evidence assembled, and have all the forms filled out properly. But, if you miss a deadline, all that work is for naught. So we can’t emphasize enough the importance of keeping an eye on all the important deadlines in your appeals process.

An issue that’s come up recently is when the countdown actually starts. You probably know that you have one year to file your Notice of Disagreement (NOD) but when does that year actually begin? It used to be a fairly simple date to find:

NOD1a

The VA formerly delivered a very clear response to a veteran’s initial claim with a cover letter that said “Ratings Decision” along with a date. That date (or the date of the cover letter accompanying the Rating Decision) was the starting bell for the one-year deadline.

The VA, however, has changed the format of their “decision” letter. It now looks like this:

NOD2

As you can see, there is no longer a clear heading that reads, “Rating Decision.” Unfortunately, this has led to some confusion as to whether the clock has started on the deadline.

Make no mistake, the clock is most definitely running. Even though that nice “Ratings Decision” heading (along with a date right underneath that heading) is no longer a part of the VA’s decision letter, this is their legal response to your claim for service-connected disability and the deadline for your NOD is counting down. Unfortunately, to find the start date and to figure out the corresponding deadline, you have to scrutinize this new decision letter more closely. There is usually a date stamped some place on the letter. You count from this date. If there is none, we suggest that you save the envelope the decision came in–assuming that it is clearly postmarked. If you have lost the envelope (or the postmark is not legible), we recommend that you write a letter to the Regional Office issuing the decision letter–enclose a copy of the undated decision letter–and request the VA to tell you the date they have in their records as the date it was sent to you.

If you’re at all unclear as to whether you’ve received your actual Ratings Decision or whether the countdown for the deadline for your NOD has started, then please seek qualified legal assistance. This is too important to lose your right to appeal because of a missed deadline. If you need help with your case, feel free to call upon us at The Law Offices of Maurice L. Abarr for a no-cost initial consultation.

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