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.