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Veterans are eligible to receive disability compensation for both physical and mental health conditions caused by their military service. However, the Department of Veterans’ Affairs rates mental health issues differently than physical ailments, and not all mental health-related illnesses qualify for disability compensation under the VA rules and guidelines. As a veteran, it is important to understand which mental health conditions qualify for disability benefits in addition to how they are rated for compensation purposes.

What Mental Health Conditions are Eligible?

In order to qualify for disability benefits, a veteran’s mental health condition must be directly attributable to their military service. Examples of mental health issues considered ratable by the VA include, but are not limited to, the following conditions:

However, on the other side of the spectrum, the VA also does not consider some mental health issues to be related to military service due to the nature of the disorder. Psychiatric and other mental health conditions that are not eligible for disability benefits include the following:

How Does the VA Rate Mental Health Conditions?

On the exception of eating disorders, the VA rates all mental health conditions in the same way and using the same diagnostic criteria. Mental health conditions are rated at 0%, 10%, 30%, 50%, 70%, or 100% using VA’s General Rating Formula for Mental Disorders. The rating a veteran receives for a mental health condition depends on the level of social and occupational impairment caused by the mental health condition. For example, a veteran experiencing only mild symptoms of a mental health condition might be rated at a 10% or 30%, whereas a veteran with mental health issues that make it difficult to perform tasks of daily living or cause the vet to have suicidal ideation may quality at 70% or 100%. Veterans are not required to meet all, or even any, of the criteria of a particular rating level to qualify for that rating.

For veterans that suffer from multiple mental health conditions, they will receive only one combined rating for all issues. This is because the mental health conditions are all rated on the same scale and with the same criteria. However, this also means that veterans do not need to submit more than one application for benefits for mental health conditions related to their military service.

If you have worked with the VA long enough, it probably comes as no surprise to learn that the VA often disagrees about claims of total disability individual unemployability (TDIU). Vocational experts can go a long way in proving that a veteran does in fact qualify for TDIU. In cases without vocational experts, the VA relies on VA doctors to make the determination of unemployability; however, in most cases only an experienced vocational expert has the knowledge to determine whether a veteran qualifies for TDIU. Talk to a local attorney with experience handling TDIU claims for help today.

The Benefits of Vocational Experts

In a typical TDIU claim, a veteran claims that he or she cannot return to his or her former employment because of a service-connected disability. The question then shifts to whether the veteran has the education, work experience, transferrable skill set, and adequate physical and mental capacity to secure and maintain another type of employment. Vocational experts have the industrial knowledge and expertise to evaluate the opportunities in the current marketplace compared to the veteran’s current circumstances. A vocational expert often is the only person qualified to render an expert opinion on a veteran’s ability to obtain another position and can critically alter the final decision in a TDIU claim.

A vocational expert creates a vocational assessment report for the TDIU claim, which can overcome unqualified opinions rendered by VA doctors and C&P examiners who lack the experience and expertise in the vocational field. This report will typically include a review of the veteran’s medical record, identification of the service-related conditions, a break down of the veteran’s prior work experience, an evaluation of transferable skills, and a vocational discussion about the potential for this veteran’s ability to return to work. This report helps to point out limitations connected to service-related disabilities and improve your chances of qualifying for a TDIU claim.

VA doctor evaluations typically only look at the individual disability and whether that disability prevents you from working. A vocational expert considers other aspects of how this disability might affect employment, such as the effects of pain and medication associated with disability and whether it affects the ability to concentrate, focus, complete instructions, and complete tasks in a timely manner. A vocational expert’s review also takes into consideration things like the veteran’s ability to communicate with managers and fellow employees, adaptability to stressful situations, and what accommodations would need to be necessary in order to employ this particular veteran. A VA doctor or C&P examiner takes none of this into consideration when making a determination about TDIU claims, which is why having a vocational expert report included in your application for benefits can be such a beneficial addition to your claims.

A federal court ruled earlier this year that the Department of Veterans Affairs is not allowed to deny disability benefits to thousands of Vietnam War veterans who claimed exposure to Agent Orange and other cancer-causing chemicals simply because they served on ships and not inland. Known as “Blue Water” Navy veterans, it is estimated that between 50,000 and 90,000 military members served aboard these ships on the open water off of the coast of Vietnam and who did not go ashore will now be eligible for the same benefits as veterans who served only a few miles away on land.

New Ruling on Disability Compensation

The United States Court of Appeals determined that the law surrounding the payment of disability benefits to Vietnam War veterans exposed to dangerous chemicals never intended to exclude Blue Water veterans. Under the old laws, Blue Water veterans were able to receive medical care for illness with the VA; however, in order to claim disability compensation, they were required to prove direct connection to toxic exposure while on duty. Inland veterans were only required to show that they contracted an illness associated with Agent Orange and other dangerous chemicals to collect the same benefits because of presumed contact with these elements during their service.

Eligibility for Blue Water Veterans

In order for Blue Water veterans to claim disability compensation under the new ruling, a veteran must be able to prove that he or she served between 1962 and 1975 offshore within 12 nautical miles of the landmass of Vietnam and are currently diagnosed with one of the medical conditions associated with Agent Orange and other dangerous chemical exposure. The list of presumptive conditions associated with these chemicals includes the following:

 

How to Apply for Disability Compensation

A Blue Water veteran can apply for disability benefits through the VA by going online or applying in person at a Veterans Service Organization. However, it is highly recommended that you use an experienced disability benefits attorney to help you through the process. A lawyer can streamline and expedite the process of receiving compensation, and it minimizes the chances of your application being denied. A lawyer can also help appeal a denied decision and explain your legal options through every step of the process.

If awarded, disability benefits for veterans range anywhere from $140 to a little over $3,050 per month for a single veteran with no dependents. However, special circumstances such as eligible dependents, a spouse, minor children, adult children in school, and dependent parents can increase the amount of disability compensation you receive.

How to Find an Independent Medical Examiner for My TDIU Claim

Total disability based on individual unemployability (TDIU) is a disability benefit that allows disabled veterans to be compensated at a 100% rate, even if the combined scheduler rating does not equal 100%. TDIU is only awarded in circumstances in which disabled veterans are unable to secure substantially gainful employment because of their service-related disabilities. Medical exams are critical to the determination of whether a veteran qualifies for TDIU, and if your physician gives you an incorrect decision, it can mean the difference of thousands of dollars of compensation per month. If you have received a decision for your TDIU claim that you believe is incorrect, you have options.

 

The Benefits of an Independent Medical Exam

The VA has its own set of doctors who perform medical exams for TDIU and other compensation and pension benefit applications. However, exams with these professionals often cause high anxiety for disabled veterans and their results are not always favorable. In addition, exams by the VA for TDIU claims do not have to be completed by a trained physician, further complicating the issue. A doctor, physician’s assistant, nurse practitioner, or medical resident all technically qualify to give the exam at the VA, which can easily lead to an incorrect diagnosis for your case. An independent medical exam can either contradict an incorrect decision by the VA or confirm the diagnosis of disability for your TDIU claims.

VA doctors are inherently biased toward their employer, which is why an independent medical exam helps when applying for TDIU benefits. An independent medical examiner is a physician who has never treated you before and has no ties to the VA. An independent examiner is simply presented the facts in your medical history, service records, lay evidence, and statements, and will then complete an examination and make a diagnosis of disability.

 

How to Find an Independent Medical Examiner

The easiest way to find an independent medical examiner to reevaluate your TDIU claims is through an experienced disability benefits attorney. Attorneys with expertise in this area routinely utilize independent medical examiners for their cases and will be able to quickly set up an appointment for your case. Another option is to search the Independent Medical Examiners Directory or the American Board of Independent Medical Examiners to find one near you. Ho9/wever, if you find an independent medical examiner on your own, you will not have the additional benefits of an attorney advocating for your interests and helping you navigate the system.

how-does-a-disability-lawyer-get-paid

Many disabled veterans are in need of Social Security disability benefits, but the process for receiving those benefits can be complex, stressful, and confusing if they try to do it alone. A social security disability lawyer can help make the process faster, easier, and will effectively represent a veteran’s best interests to the Social Security Administration. However, many veterans do not utilize an attorney because they feel that they do not have the money to pay for one or they do not understand how a social security disability attorney is paid.

 

How a Lawyer Gets Paid

Almost every social security disability attorney operates on a contingency fee basis. The lawyer’s fee is contingent on you winning your social security disability claim. If the lawyer can not secure your benefits, then he or she does not collect a penny. If the attorney does help you win your case, the Social Security Administration will facilitate the payment of the fee to the lawyer.

The only exception to the contingency fee is that some attorneys may request that you pay a nominal fee up front for the costs of the case. This typically is no more than a couple of hundred dollars, but it covers the cost of securing medical records, copying, postage, travel, and long distance phone calls. Your lawyer should walk you through the expense agreement prior to signing on to the case so you know exactly what costs are being covered and how much it will be.

 

What a Lawyer Gets Paid

If an attorney secures your application or wins your appeal in which you are owed backpay benefits or past due benefits from the Social Security Administration, the attorney receives the lesser of 25% or $6,000 of the backpay benefits. If the appeals process progresses to the Appeals Council or Federal Court before the case is won, the attorney is paid a flat 25% fee of the past due benefits. If no backpay is awarded, the attorney does not collect a fee for the services rendered.

In addition, you do not have to worry about making payments to your attorney from the backpay. The Social Security Administration will take the lawyer’s fee directly out of your backpay before it sends your check. Everything is handled for you, so you do not have to worry about paying your attorney for his or her services.

A lawyer may also submit a fee petition to the Social Security Administration that contains an itemized list of activities for the case if expenses were not requested up front for the costs of the case. The Administration must review and approve the list of items before the lawyer is reimbursed, and the costs must all be reasonable and related to the case. An experienced disability benefits attorney will be able to review all of the costs and payment terms with you before you decide to hire a lawyer.

simple-guide-to-va-retroactive-back-pay-benefits

 

1) What Are Retroactive/Back Benefits?

 

Back pay or what the VA calls retroactive benefits is the lump sum payment for benefits which have been accruing since the filing of a granted claim.  The retro benefits come in a lump sum – paid all at once — after the grant of benefits. All other benefits awarded in connection with the claim are referred to as future benefits, paid in monthly installments.

 

2) How Do You Determine The Amount Of Entitled Retroactive Benefits?

 

The amount of entitled back pay or retroactive benefits is determined by the so-called effective date, which is the later of two dates: 1) the date of the filing of the claim, or 2) the date when the disability manifests or increases.   The first date is fairly simple to understand, the second is more complicated.

 

For most claims, the date of the claim determines the effective date.  Take, for example, a claim to entitlement to service-connected back disability filed on January 1, 2010. The claim is denied by the regional office on February 1, 2012 and appealed, then later remanded by the Board of Veterans’ Appeals on March 1, 2015, and then ultimately granted by the regional office on April 1, 2017 at a disability level of 30%. The most likely effective date would be January 1, 2010, the date of the claim.  Therefore, the claimant would be entitled to back pay from January 1, 2010 to April 1, 2017 at a 30% disability rate, and then monthly installments thereafter at the same disability rate.

 

Now, as stated above, for most claims, the date of the claim determines the effective date.  But not always, and we see exceptions apply particularly for increased rating claims. Let me illustrate the point.  A claimant, who has a 30% rating for his service-connected back disability, files a claim for an increased rating on January 1, 2010.  On February 1, 2011, the claimant undergoes a VA medical examination, and the physician finds that the claimant’s back disability has not worsened.  The regional office denies the increased rating claim and the claim is appealed to the Board of Veterans’ Appeals. The Board remands the claim, instructing the regional office to obtain another VA examination.  On March 1, 2015, the claimant sees the second VA examiner, who determines that his back disability has increased to a 50% disability level, but only recently, at or near the time of the second examination. Here, the effective date would be determined by date of the increase of disability, March 1, 2015, not the date of the claim, January 1, 2010.  

 

3) What Are Unadjudicated Claims And How Do They Affect The Amount Of Retroactive/Back Pay Benefits?

 

An unadjudicated claim refers to a claim which remains open due to an oversight in VA system.  This can occur during different stages of a claim. In the past, (before the VA instituted mandatory application forms), claimants would often file a morass of written submissions.  Buried in these submissions might be statements requesting service-connected benefits, constituting informal claims. Overwhelmed by all the busy text, a VA adjudicator might overlook or even ignore these informal claims.  In theory, upon the claimant’s request, these claims can be activated at any time, with a potential effective date relating back to the filing of the claim.

 

Unadjudicated claims can also arise during the appellate stage.  For instance, a claim will remain unadjudicated if the VA fails to issue a Statement of the Case following the timely filing of a Notice of Disagreement.  Likewise, a claim will remain unadjudicated if the Board of Veterans’ Appeals fails to adjudicate a claim following the timely filing of a Substantive Appeal.

 

For effective dates, unadjudicated claims can be gold mines.  Recall that effective dates are usually determined by the date of the claim.  Therefore, if you find an unadjudicated claim in the file, which has remained dormant for years, maybe even decades, the entitled retroactive/back pay may reach as far back as the filing date of the unadjudicated claim.   

 

4) Is There A Way To Get An Effective Date Earlier Than The Date Of Claim?

 

Yes, in a few instances, claimants can be awarded benefits prior to the filing date of their claims.

 

 

 

 

5) Does A Claim have To Be Written To Start The Effective Date?

 

No matter what, a claim is only a claim for VA purposes if it is a written request for benefits.   There are countless stories of veterans telling VA adjudicators or veteran service officers of their desire to file a claim, but, for whatever reason, no written claim is filed.  And, the VA does a poor job of notifying veterans they have a potential claim. It is unfortunate because, except for the minor exceptions listed above, the effective date of an award can be no earlier than the date of the written claim.

 

6) What Are The Effective Dates for TDIU Awards

 

For the longest time, a request for a total disability award based upon individual unemployability (“TDIU”) was considered its own claim.  That meant the effective date of a TDIU award could be no earlier than the date of a written TDIU request. In an important case, Rice v. Shinseki, the Veterans Court redefined the status of a TDIU request as an issue tied to a claim, but not a claim in itself.  Rice said that the service-connected condition upon which the TDIU was based was the claim, and that the TDIU request was a theory or issue in support of the claim to achieve the highest possible rating.

 

Rice is good news for assigning earlier effective dates for TDIU awards.  Effective dates for TDIU awards can now go back to the date of the underlying claim; whereas before Rice, the effective date was limited to the filing date of the written request for a TDIU award. The effective date assigned will depend upon when the medical evidence shows the claimant’s service-connected disability(ies) prevented him/her from obtaining and maintaining substantial gainful employment.

how-to-prove-to-the-va-that-you-are-eligible-for-tdiu

 

The VA processes huge volumes of paperwork on veteran disability claims and because of that, sometimes information gets overlooked and inappropriate denials of benefits made. You can assist the Decision Review Officer determining your TDIU claim for 100% disability, by assembling a solid package of evidence for the VA for both the medical/disability factor, and for the unemployability factor.

 

If a veteran has been terminated from their former employment for reasons related to service-connected disabilities, the VA MUST consider that in its decision. You can help them do that by providing as much of the following types of evidence as you can –

 

  1.   Obtain letters or affidavits from former boss and/or former co-workers establishing the service-related reason for the veteran’s termination. Job termination notices often don’t notate the reason for termination. In fact, some employers may purposely be scant on details with an intention of protecting a veteran from being labeled as a difficult employee. However, it is helpful for your TDIU claim to provide detailed evidence of how your disability affected your employment and this can be through sworn affidavits of a former boss or co-workers. They can provide details of the day-to-day challenges your disability posed in the work setting.

 

  1.  Obtain Social Security earnings record and disability file (if any). The earnings record will to show the veteran’s actual income over the years post-discharge from the military and show if it is below the poverty level. If Social Security disability benefits have been granted, the full underlying file can be useful evidence for the VA (though the VA will not just accept the SSA findings by themselves). This is a free document that you are able to get from the SSA their website or walking in.

 

  1.  Testimony at hearings by veteran and their spouse (if married). Being able to describe in heartfelt detail how their disability affects their ability to work is a key piece of evidence in establishing TDIU. The veteran can explain the day-to-day challenges of their disabilit(ies), how often flare-ups occur, what they need to do to mitigate symptoms, and similar information. When it comes to PTSD or other psychological issues, the veteran may need some assistance in learning how to tell their story, explaining things such as occurrences of angry outbursts with the boss or coworkers, level of intolerance, inability to sleep well which affects concentration, inability to accept instructions, and similar challenges. If the spouse also testifies, they can give testimony as to their observations, providing additional details of the situation, sometimes even things about which the veteran is not fully aware.

 

  1.  Vocational expert opinions.  Vocational experts can help people find jobs, determine what jobs the veteran can qualify for, and whether or not they would qualify to work in certain areas. Vocational experts are not always local, but with providing adequate summaries of information, a copy of the underlying medical and/or employment files, and having a phone interview with the veteran, they can provide an expert opinion on whether the veteran can work, in what areas, and with what restrictions, or whether they are, in fact, not able to maintain substantially gainful employment.

 

Veterans Law Group specializes in helping veterans and their families get all of the veteran disability claims benefits to which they are entitled and can assemble the necessary information for appealing a TDIU denial.

 

Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.

i-was-denied-for-tdiu-is-there-something-i-can-do

One of the most challenging things for disabled veterans after their discharge from the military is getting accustomed to life with disabilities and another is handling the paper-intensive, bureaucratic process of getting the proper amount of disability benefits. Sometimes mistakes are made in paperwork, or necessary documentation is missing to support certain ratings, and a veteran and his or her family may end up not getting benefits which they are entitled to receive.

 

When dealing with the disability benefits process with the VA its helpful to treat a denial as an invitation to re-evaluate your application and get some expert assistance in moving past the denial with more information or a changed strategy. One example is a denial for TDIU because the veteran’s disability rating is too low.

 

As a refresher, TDIU (total disability individual unemployability) is an additional route to getting a 100% disability rating. If you have been denied TDIU, it’s worth re-evaluating several aspects of your claim to see if the denial can be overcome.

 

A good place to start is the underlying individual disability ratings. Under 38 CFR 4.16(a), one of the criteria for TDIU is the veteran having one service-connected disability with a 60% or more disability rating, or two or more service-connected disabilities with a combined rating of 70% or more. If the VA has concluded you are not eligible for TDIU because your disability ratings do not meet those thresholds, it’s worth re-evaluating those ratings to see if they can or should be increased. If you can get an increase in disability ratings such that they meet the threshold for TDIU, then you may be able to get a changed ruling.

 

The second criteria for TDIU is medical evidence of unemployability Sometimes medical records clearly reflect aspects of the disability that would reflect unemployability – for example, if the veteran’s doctor notes that because of a service-connected back injury, the veteran cannot stand stationary for more than 10 minutes at a time, or sit stationary for more than 30 minutes at a time with lying down to rest – the medical evidence of unemployability is not hard to decipher. However, sometimes medical records are not so clear in the connection between employment and the particular disabilit(ies) of the veteran. Mental health disabilities are often not documented in a way that makes it immediately apparent that the veteran is unemployable. Additional medical records can be obtained, or a vocational expert retained, to connect the dots between the medical records and the unemployability.

 

Finally, there is a fallback provision in 38 CFR 4.16(b) that allows for extra-schedular consideration of a TDIU claim, for claims that aren’t as obvious. Though extra-schedular consideration often also requires an appeal to the BVA, they are sometimes approved.

 

Has your TDIU claim been denied? You might need a second opinion. Veterans Law Group specializes in helping veterans and their families get all of the veteran disability claims benefits to which they are entitled. Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.

what-is-extra-schedular-consideration-38-cfr-4-16b-for-tdiu

Applying and getting approved for veteran disability benefits can sometimes seem more daunting than some of the missions you ran while still in the service. It’s frustrating, yes, but the bottom line for the Veterans Administration is to ensure that all veterans who are unable to hold substantially gainful employment because of service-connected disabilities be rated 100% disabled and obtain the benefits going along with that rating.

 

 

This is a catch-all provision that allows consideration of a veteran’s claim even when the usual requirements of subsection (a) are not met. To recap, the VA generally refers to a claim as a TDIU claim when the two conditions are met: 1) a veteran has one service-connected disability with a 60% or more disability rating or has two or more service-connected disabilities with a combined rating of 70% or more, and 2) there is medical evidence of unemployability.

 

If the veteran satisfies these two conditions, then he will be entitled to a 100% disability rating, even though he does not satisfy that 100% disability rating under the schedule. See 38 C.F.R. § 4.16(a). An extra-scheduler rating, on the other hand, applies to veterans who are unemployable due to their service-connected disability(ies), but whose disability(ies) does not meet the percentage requirements under § 4.16(a). See 38 C.F.R.  §4.16(b.) A veteran can be rated 100% disabled under both a TDIU or extra-schedular theory. See Bowling v. Principi, 15 Vet.App. 1, 5-9 (2001).

 

Truth is that the Director of Compensation and Service routinely rejects referrals for extra-scheduler consideration in terse, poorly-reasoned decisions and thus most of these cases often require an appeal to the Board of Veteran Appeals to be successful.

 

Have you been turned down for a TDIU rating of 100% disability and think the decision was wrong or perhaps requires an appeal to the BVA? Let the team at Veterans Law Group provide you with a free consultation to see if they can help. VLG specializes in veteran disability claims and brings that weight of expertise in assisting all of our clients. Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.

what-is-a-protected-environment-job

As a military member, you do whatever task is assigned to you with a sense of duty. Therefore, it’s not much of a surprise that after discharge, veterans take on whatever job opportunities they may have with that same sense of duty. What they don’t know is that even if they have managed to find a job that allows them to work in spite of disabilities, particularly dealing with PTSD, they may still qualify for TDIU, total disability individual unemployability. They may qualify for TDIU because they are working in a “protected environment” job.

 

Civilian jobs for veterans come in many different forms and sometimes a veteran may be earning income above the poverty threshold, but still be eligible for TDIU (total disability individual unemployability). That is because the veteran is working in a “protected environment” job.

 

What is a protected environment job? Simply put, it is a job where the veteran is receiving special accommodations that are not normally found in the general labor market. A common example is when the veteran works at a family business or for a friend, where his or her employer is fully aware of the veteran’s disabilities and makes accommodations around them, that would not generally be available in the workplace.

 

In the case of psychological issues, for example, they may have a relaxed policy on absences when the vet is having “bad days” or suffering from anxiety attacks or continue to maintain employment despite frequent angry outbursts or other behavior inconsistent with what an ordinary employer would allow from his/her employees. Perhaps a back injury limits the amount of time the veteran can stand or sit without lying down to rest, and the employer allows an accommodation by allowing the veteran to work from home for these needs, or provides extra break times.

 

The bottom line on protected environment jobs is that the veteran cannot get a similar job on the open market place and thus, may well be considered unable to hold substantially gainful employment, and thus may be TDIU rated by the VA.

 

Are you working in a protective environment job and want to know whether you qualify for a TDIU determination? Veterans Law Group specializes in working with disabled veterans to obtain the maximum disability benefits to which they and their families are entitled. Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.