Friday, January 20, 2017

CUE: When The VA Violates Their Own Laws


  CUE means the VA did something in your claim which is a clear violation of their own laws. One example can be when a veteran files a claim, the claim remains open until they adjudicate it.
  Many times, the claim will sit in a file for years before someone gets around to deciding the issues. Once in a great while, a veteran will submit a claim, and nothing will ever be done about it. Years later, the veteran may submit a new claim for the same disability. If the VA grants the claim, the effective date of the award should be the date of the old claim, not the new one.
  This applies only to claims that were never adjudicated. If the VA did anything in the way of rejecting the claim, then it has been adjudicated. I often suggest to every veteran to save every letter or piece of paper they receive from the VA. That way, if you do file for the same disability years after you haven’t heard about an original claim, you have the proof in hand. If you don’t save your paper work, the VA may say you never filed, and you wont be able to prove that you did.
  This situation is really not a mistake in the law, but a mistake in applying the law because they didn’t adjudicate your claim. In another case, a veteran was rated at 70% for PTSD and filed for unemployability based on the fact that he couldn’t work. Voc Rehab had turned him down for training, and he was on medication. The VA denied him the 100% rating because they said his isolation from society (typical among vets with PTSD) was self-imposed.
  The Code of Federal Regulations doesn’t say anything about self-imposed isolation, as far as I know. The only way you couldn’t have self-imposed isolation is if you were in prison in solitary confinement. The VA never mentioned anything about his inability to work or anything about his work history. The total isolation and withdrawal from society due to PTSD rates 100%.
  Not only did the VA violate the law by not examining him for his ability to work, they made up some fiction about his isolation. This is really grabbing at straws on their part, and is a clear violation of their own laws. This claim went to the Veterans Court of Appeals, and was remanded back to the Regional Office to be fixed. It had been going on since 1989. In the end, the veteran was granted 100% going back to 1989. He ended up getting somewhere around 60,000 in back pay.
  CUE can be hard to prove, but your service organization will probably be able to spot clear violations in the law, and follow up with you. If the service organization offers to take the case to the Veterans Court of Appeals, you probably have a good chance because they wont take a case they don’t think they can win.
  Any veteran rated at 70% for PTSD should file for unemployability when they can’t work.
   If you’re not sure about CUE in your claim, ask someone who knows the law. And never give up!

Dennis Latham Books

Tuesday, December 20, 2016

PTSD Claims & Combined Ratings

BLT 1/3 Vietnam 1967

PTSD Claims & Combined Ratings

  When you file a claim for PTSD, you believe combat stressors have altered your life. Combat stressors are the key to the original rating. The VA admits you experienced events that changed your life forever. When you apply for an percentage increase, the increase is not based on additional stressors. You don't need additional stressors when you apply for an increase.

  Some veterans believe the more stressors they submit during the course of the claim, the higher their percentage. After the initial service connection, your percentage is based on your ability to function and support yourself in the work force. 

  Most combat veterans mistrust authority, which can make life difficult when you job search or try to hold a job. Many veterans who had a position of authority in the service suffer from extreme survivor guilt over troops they lost. They often do not want to be put in a position of responsibility for others again. When you add drinking, drug addiction, paranoia, startle response, lack of sleep, and inability to feel emotions, it results in a bad case of PTSD.

  Some veterans can mask it for awhile, but others fall apart sooner. A severe employment handicap covers any increase beyond initial service connection. So if you put in for a increase, you must stress the problems you have at work if you are working or with a past employer if you no longer work. Don't bring up additional stressors unless they directly relate to your job. Many PTSD combat veterans prefer to work isolated so they don't have to deal with other people. This can result in job problems or self-employment, sometimes in a family business. The VA cannot penalize veterans for being self-employed

Combined Ratings
  When a veteran has more than one disability the VA combines them, based on the principle that a veteran can never receive more than 100% disability. I’ve met veterans with up to five distinct 100% disabilities, but there is no way to go past 100% for compensation without receiving an additional letter award for loss of use or missing limbs.

  The VA and service organizations use a rather complicated numerical formula involving fractions to combine percentages, but there is a simple way to do it that will be accurate 99% of the time, if not all the time. I call it the Disabled-Wellness Formula.

  I will use a veteran with three disabilities received in this order: 30% for back  injury, 10% for hearing  loss, and then 30% for PTSD.
  Added up they total  70%, but they will actually combine out to 60%. The veteran will lose 10% in the process. This is how it works:
  The 30% back injury service connection makes the veteran 30% disabled but leaves the veteran 70% wellness (functional).

  When the veteran receives an additional 10% for hearing loss, you multiply 70 x 10 (you multiply the new percentage by the amount of wellness and drop the zeroes on the end.)
  This leaves a total of 7. Any result below 5 means no increase. A result of 5 or above means going to the next higher percentage.
  In this case, a 7 means going up to a 10% disability. The veteran loses nothing and will now have a 30% back injury rating plus a 10% hearing loss rating for a total of 40%.
  The veteran has a 40% disabled and 60% wellness. But the veteran now receives a PTSD service connection rated at 30%. When you add them all together, it equals 70%, but due to the combined formula, it doesn’t turn out that way.

   You multiply the  new 30% by the wellness 60% and drop the zeroes for a total of 18.
   Since the 8 is above a 5, you go up to the next higher percentage. In this case, the 18 goes up to a 20. The veteran receives and additional 20% disability rating, even though he was granted 30%.
  The veteran now combines out at 60% even though he is 70% disabled and only 30% well.
  We can take it even further. Say the veteran gets another 50% for a brain tumor. Multiply the 60% by the 30% wellness and drop the zeroes. In this case, it’s a total of 18.
  Since it’s 5 or above, the 18 goes up to 20%. The veteran would get a combined rating of 80%, even though he is now 120% disabled.
 This combined 80% rating would leave the veteran a 20% wellness, meaning he would have to obtain another 50% disability to get another 10% on the combined percentage.
  To obtain enough percentage to actually reach 100% combined, the veteran would need two more 50% disabilities, leaving him actually 220% disabled to receive 100%.
  This probably wouldn’t be necessary by then because the veteran would probably be rated unemployable and get the 100% for unemployability.

  I imagine there are one or two instances where this formula could be wrong, but for most circumstances, it will work when a veterans want to figure their own combined rating.

Friday, November 25, 2016

PTSD Claims: VA Unemployability

Over the years my advice has probably helped over 2000 Vietnam veterans get service connections, most for PTSD. I wrote the original instructions for PTSD claims while I worked for the VA. There were no instructions up to that point (1987). I developed the format for the stressor letter and what to include and not include, and hints on how to act at a comp exam. I also became an expert on how to get increases in PTSD Compensation when warranted. The VA approved my instructions and they have been used in some form ever since. I could not represent veterans but I could give them advice to use along with their service organization rep. The small article below is on unemployability.

Paragraph (a) below is the CFR requirement for unemployability. The VA and even some service organizations will tell you that you must meet those percentage requirements to be considered for unemployability. The VA will probably turn you down if you don’t meet those percentage criteria.

(a)Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.

In paragraph (b) of the same section, the CFR does a complete turn around, stating you don’t have to meet the percentage requirements for unemployability if you can’t work. So if you can’t work because of service-connected disabilities and the VA turns you down because you don’t meet the percentage criteria, they violate their own law, unless they examine you again to bring your percentage up to fit the criteria in (a) if you are unable to maintain employment. They just can’t tell you that you don’t meet the requirement and you should go away.
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Rating boards should submit to the Director, Compensation and Pension Service, for extra schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section
. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.For example: If you are 50% for PTSD, but you can’t work because of the PTSD, then the VA must re-examine you and kick your percentage up to 70%, if the actual cause of your unemployment is PTSD.

It is up to you to file for the unemployability. It can be a drawn out process if there are other disabilities or factors involved such as alcohol, drug addiction, or physical disability. You will also probably have to be rejected by Voc Rehab for retraining. Considering the age of most Vietnam veterans with PTSD or other disabilities and a spotty employment record, Voc Rehab isn’t likely to qualify such veterans for retraining. If you have years of treatment for PTSD, the Regional Office may not turn you down on your claim for an increase. There is no sure way to tell. I went from 50% to 70% to unemployable within six weeks, after fifteen years of treatment.

Now, what may happen is the Regional Office may turn you down if you file for an increase for unemployability. Then, you appeal to the BVA. The BVA will more than likely send it back to the Regional Office for additional work. You will then be called in for an additional Comp Exam and then you are likely to get the increase. (This is the best case scenario if nothing gets screwed up with your claim along the way.) The main thing is to never give up on the claim.