Receiving a remand from the Board of Veterans Appeals (BVA) can seem like a mixed blessing. On the one hand, the Board has not denied your claim(s), allowing you to continue to prosecute your case. Yet, on the other, the battle to get your entitled benefits continues without any apparent end in sight.
One thing is for sure: DO NOT APPEAL THE BOARD REMAND ORDER TO THE COURT OF APPEALS FOR VETERANS CLAIMS (CAVC)! This will only delay your case for as much as a year or more without any benefit. The CAVC only has jurisdiction over final Board decisions; the Board remand orders are not considered final decisions. Only Board decisions denying one or more claims are considered final.
Instead, you and your representative should carefully review the instructions of the Board remand order. The law is clear that the VA (i.e., the BVA or the regional office) must comply with the terms of Board remand instructions. These instructions run the gamut but frequently require the regional office: 1) to schedule a VA examination, 2) to obtain VA or private medical treatment records, 3) to secure the claimant’s military personnel file, 4) to obtain the claimant’s employment records and/or 5) to provide some kind of notice to the claimant. Make sure the VA completes every remand instruction.
After the VA performs all remand instructions, then you must decide whether additional favorable evidence is needed to support your claim. Be sure to review all VA examination reports because VA adjudicators tend to weigh those the most. If there is a recent negative VA examination report, then you will likely need to obtain a private examination report to rebut it.
There are two ways to establish service-connection for service-related disability(ies). The first, causal service-connection, is the most common and familiar. If some in-service incident (e.g. physical accident/injury, toxic exposure or psychological trauma) results in a permanent disability, the disability is deemed service-connected/service-related. It is important to keep in mind that the in-service incident need not immediately cause the disability; the disability can have a delayed onset many years, even decades, after the incident. Therefore, the disability itself need not show up during the period of service so long as the in-service incident is the cause of the disability. For example, many sailors were exposed to asbestos from the 1930s until the 1970s, but they did not manifest asbestosis or related respiratory disabilities until decades after exposure.
The other way to establish service-connection is called temporal service-connection. As its name suggests, temporal service-connection focuses on the timing of the disability, not its cause. If a disability first manifests or appears during the veteran’s period of service – though the cause is not service-related – the disability will nonetheless be considered service-connected. Temporal service-connection is often seen with hereditary diseases or with diseases having no known etiology/cause. For instance, an in-service heart attack or other cardiac disability due to a congenital heart disease will be considered service-connected. Certain psychiatric illnesses such as schizophrenia and bipolar disorder have no known causes. Psychiatrists speculate that they may have a genetic component, but this is uncertain. At any rate, if a veteran first manifests symptoms of schizophrenia or bipolar disorder during service, the condition will be deemed service-connected.
1) What is Sleep Apnea? Sleep apnea is a serious sleep disorder that occurs when a person’s breathing is interrupted during sleep. People with untreated sleep apnea stop breathing repeatedly during their sleep, sometimes hundreds of times. This means the brain — and the rest of the body — may not get enough oxygen. There are two types of sleep apnea: · Obstructive sleep apnea (OSA): The more common of the two forms of apnea, it is caused by a blockage of the airway, usually when the soft tissue in the back of the throat collapses during sleep. · Central sleep apnea: Unlike OSA, the airway is not blocked, but the brain fails to signal the muscles to breathe, due to instability in the respiratory control center.
2) What are the Signs and Symptoms of Sleep Apnea?
The signs and symptoms of obstructive and central sleep apneas overlap, sometimes making it difficult to determine which type you have. The most common signs and symptoms of obstructive and central sleep apneas include:
· Loud snoring
· Episodes in which you stop breathing during sleep — which would be reported by another person
· Gasping for air during sleep
· Awakening with a dry mouth
· Morning headache
· Difficulty staying asleep (insomnia)
· Excessive daytime sleepiness (hypersomnia)
· Difficulty paying attention while awake
3) What is the Difference Between Simple Snoring and Sleep Apnea?
Snoring generally occurs when you breathe, and the soft tissues of your neck narrow the passage way of the air. When the breathing passage gets narrowed and then you try to draw in air, as you draw in air, it makes the tissue vibrate and then gives you kind of a vibratory noise and that noise is the snoring.
Anything that narrows your breathing passages can cause snoring, including:
· Large tonsils
· An enlarged uvula (the tissue that hangs from the middle of the back of your throat)
· A deviated septum (when the thin wall between your nostrils is misaligned)
· Nasal congestion
· Excess weight
· Drinking alcohol
Snoring is the key symptom of Sleep Apnea. However, the difference between sleep apnea and simple snoring is that, with sleep apnea, the snoring is accompanied by pauses where you literally stop breathing because your airway collapses or is blocked, (obstructive sleep apnea) or when your brain fails to signal the muscles to breath, (central sleep apnea). These pauses, which can last from a few seconds to minutes, are followed by choking, snorting or gasping.
4) For VA purposes, What is Required for a Diagnosis of Sleep Apnea?
A diagnosis of sleep apnea requires a sleep study. There are two types:
· Polysomnogram (PSG). This is the most common. It records brain activity, eye movements, heart rate, blood pressure, oxygen levels in your blood, air movement through your nose, snoring and chest movements. (The chest movements show whether your body is making an effort to breathe.)
· Home-based portable monitor. Your doctor may recommend a home-based sleep test with a portable monitor, which records some of the same information as a polysomnogram. A sleep specialist may use the results to consider whether you need a full study in a sleep center.
5) How Does the VA Rate Disability Levels for Sleep Apnea?
The VA rates disability levels of respiratory illness, including sleep apnea, according to fixed criteria: They are:
· 100 percent: chronic respiratory failure with carbon dioxide retention or cor pulmonale; or requires tracheostomy
· 50 percent: requires use of breathing assistance device such as continuous airway pressure (CPAP) machine
· 30 percent: persistent daytime hypersomnolence
· 0 percent: asymptomatic, but with documented sleep disorder breathing
For most veterans with sleep apnea, the 50 percent disability rating is the primary target. A 50% VA sleep apnea rating “Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine.” The phrase such as means that a CPAP machine is one (but not the only) example warranting a 50% disability rating. Other breathing assistance devices are used to relieve the effects of sleep apnea, because they are less obstructive than CPAP machines. One alternative treatment are dental appliances, which re-position the tongue or jaw while you sleep to improve airflow. Other forms of breathing assistance devices include: a nasal expiratory positive airway pressure which involves a disposable valve covering the nostrils, and a hypoglossal nerve stimulation which stimulates a patient’s chest leading to the hypoglossal nerve, which controls tongue movement as well as to a breathing sensor.
Any breathing assistance device used to treat sleep apnea warrants a 50% disability rating.
6) What are the More Serious and Long-Term Complications of Sleep Apnea?
More serious and long-term complications of sleep apnea can include:
· Daytime fatigue. The repeated awakenings associated with sleep apnea make normal, restorative sleep impossible, making severe daytime drowsiness, fatigue and irritability likely.
You might have difficulty concentrating and find yourself falling asleep at work, while watching TV or even when driving. People with sleep apnea have an increased risk of motor vehicle and workplace accidents.
You might also feel quick-tempered, moody or depressed. Children and adolescents with sleep apnea might perform poorly in school or have behavior problems.
· High blood pressure or heart problems. Sudden drops in blood oxygen levels that occur during sleep apnea increase blood pressure and strain the
cardiovascular system. Having obstructive sleep apnea increases your risk of high blood pressure (hypertension).
Obstructive sleep apnea might also increase your risk of recurrent heart attack, stroke and abnormal heartbeats, such as atrial fibrillation. If you have heart disease, multiple episodes of low blood oxygen (hypoxia or hypoxemia) can lead to sudden death from an irregular heartbeat.
· Type 2 diabetes. Having sleep apnea increases your risk of developing insulin resistance and type 2 diabetes.
· Metabolic syndrome. This disorder, which includes high blood pressure, abnormal cholesterol levels, high blood sugar and an increased waist circumference, is linked to a higher risk of heart disease.
· Complications with medications and surgery. Obstructive sleep apnea is also a concern with certain medications and general anesthesia. People with sleep apnea might be more likely to have complications after major surgery because they’re prone to breathing problems, especially when sedated and lying on their backs.
· Liver problems. People with sleep apnea are more likely to have abnormal results on liver function tests, and their livers are more likely to show signs of scarring (nonalcoholic fatty liver disease).
The only constant in life is change. Military members are trained to be prepared for the unexpected, and to adapt to changing circumstances on a moment’s notice. But when you have returned to civilian life, you are hoping for more predictability, especially when it comes to disability payments and the ability (or inability) to work.
If a veteran meets the criteria to be rated at a 100% disability TDIU (total disability individual unemployability), is that a lifetime decision? Can that rating be revoked if the veteran gets a job?
This is an important concern for both the veteran struggling to deal with their disability and also wanting to work, if possible, and do whatever is necessary to support their family.
Here’s how it works. TDIU rating can be taken away, but only if the VA determines that the veteran is able to maintain sustained gainful employment. Just having a part-time, low income, job doesn’t meet that threshold. Under the old process every year a veteran was receiving TDIU they had to submit an Employment Questionnaire (21-4140). The form inquired whether the veteran was working and, if so, where, when, and how much income is being earned. Failure to provide these yearly updates would cause cancellation of TDIU. However, the VA has implemented a new process for employment verification as of February 2019. With the new process the VA uses a data wage match with the Social Security Administration to identify Veterans in receipt of TDIU who have also been working and paying into social security. They will then send out the VA form 21-4140 Employment Questionnaire, and due process letter that must be responded to. The earned wages do not automatically exclude the Veteran from TDIU eligibility because the VA must review all facts and circumstances prior to rendering a decision on the TDIU eligibility.
If you can work, keep in mind that you need to balance TDIU benefits only versus a job. Look at the dollar amount difference between the current benefit level and 100% and see if that would be more than how much the veteran could make at work.
Do you need assistance in appealing a veteran disability decision or seeking increased rating percentages? Contact Veterans Law Group, a law firm dedicated to helping veterans and their families, just like you. 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.
How important are independent medical examination reports to TDIU claims?
The VA Disability Benefits System describes itself as non-adversarial, even claimant-friendly. While this may be the case in theory, in practicality, disabled veterans need to be proactive in protecting their interests and in advocating for their rights.
As a general rule, veterans should not rely upon the VA to protect their interests. This means that, instead of waiting for the VA to obtain valuable evidence, veterans should obtain this evidence on their own. It also means that veterans should always try to obtain a favorable medical report from their private physicians rather than rely upon the VA to obtain a medical report from one of its physicians.
One of the most important strategies for winning your claim at the VA is to be sure to obtain additional medical opinion evidence to support your claim. This is particularly true with respect to a TDIU request.
The VA has a battery of physicians at its disposal to evaluate a veteran’s physical and mental condition, but in the opinion of many who routinely review these reports, VA physicians tend to favor the government and not be supportive of a veteran’s claims.
A veteran needs an evaluation from someone who doesn’t have this divided loyalty, and may need a medical opinion that more carefully details matters needed for supporting the veterans claim. For example, a veteran might need a letter from his or her doctor providing an opinion on employability distinguishing between service-connected disability and a non-service-connected disability. Perhaps the veteran has a back injury (not service-connected) and also PTSD (service-connected). If the doctor concludes that the veteran is unemployable as a result of the PTSD issue, irrespective of any problems that could be caused by the back injury, that would be useful for the TDIU determination. Such careful determinations and supporting documentation are unlikely to emanate from a VA physician.
While the VA has unlimited resources to obtain negative medical evidence, most veterans, on the other hand, are barely lucky enough just to pay for basic living expenses, let alone pay for costly medical examination opinions. It is no wonder that many veterans end up losing their claims because of negative VA medical opinion evidence and think there is nothing left to do. That is why the Veterans Law Group can be of great assistance to veterans.
In most claims, VLG will obtain independent medical examination reports for its clients to combat the VA’s arsenal of VA doctors. VLG has achieved remarkable success with private medical opinions largely due to the quality of these medical reports. VLG ensures the quality of these examination reports by following a careful procedure: namely, identifying the appropriate medical specialist to evaluate the veteran’s disability, sending a complete, but easily understood, written outline of the veteran’s case for the physician’s review, and securing and forwarding to the physician all relevant medical and non-medical information. VLG pays for these opinions not the veteran.
Contact Veterans Law Group now and get on a level playing field in seeking your disabled veteran benefits. 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.
This, in my opinion, is the most important, and yet most difficult, challenge for disabled veterans. In the vast majority of cases, VA disability claims are won or lost on the medical evidence. The medical evidence process usually starts with the VA obtaining a one-time medical examination as part of its duty-to-assist, which includes a written opinion based upon the examination and a review of the veteran’s medical records. More times than not, the opinion is unfavorable.
To have any chance of succeeding, the veteran must then rebut this medical opinion with his/her own medical opinion, contradicting the VA examiner’s findings. One possibility is for the veteran to turn to his/her treating VA physician to obtain a rebuttal medical opinion. But a treating VA physician will almost always refuse such a request. The VA medical staff tell their physicians not to assist veterans in their disability claims.
This leaves only one alternative — to pay a private physician to conduct an examination and to prepare a written report at a cost ranging from $800 to $2,000. This is a lot to ask the average claimant. Few claimants have the money or the legal experience necessary to obtain a persuasive rebuttal medical opinion.
At this point, the claimant should seek the assistance of a law firm experienced and knowledgeable in VA disability law. Our law firm, The Veterans Law Group (VLG), has decades of experience in VA law, with a 93% success rate. This outstanding track record owes a great deal to our experienced medical consultants. At our expense, the VLG hires experienced medical consultants, including psychologists, orthopedists, neurologists, cardiac surgeons to name just a few, to ensure a successful result for our clients.
It does not matter whether a sexually assaulted claimant has tried once or several times to service-connect his/her PTSD or related psychiatric disability claim. In either case, military sexual trauma (MST) claims are difficult to prove. Rarely will the victim have reported the incident at or near the time of the in-service assault, and rarely will there be any other documentation in the claims file verifying its occurrence.
The absence of such evidence is a significant obstacle to an MST claim because, as you may recall, PTSD claims require independent corroboration of the alleged in-service stressor: A significant obstacle, but not an insurmountable one.
The VA recognizes that, for many reasons, sexual assault victims are reluctant to report these traumas. Consequently, the VA has relaxed the independent corroboration requirement and allowed MST claimants to prove the occurrence of their alleged assaults through indirect, circumstantial evidence. This type of circumstantial evidence can take the form of documentation of the veteran’s marked decline in behavior or job performance soon after the time of the alleged assault. This type of circumstantial evidence can often be found in the claimant’s military personnel file. (A claimant or his/her representative will need to request the VA to obtain this file. The personnel file is usually not contained in the claims file). Look carefully for negative job performance evaluations or for any negative disciplinary comments or disciplinary punishments soon after the occurrence of the alleged sexual assault. If there is a noticeable decline in behavior or performance soon after the assault, this evidence should be enough to satisfy the independent corroboration requirement.
It is never too late to file a VA disability claim. Claimants are not limited in the number of disability claims they may file. But there are important distinctions to keep in mind. For claims seeking service-connection, the VA calls them original claims, and once they are denied and become final, all other claims are called claims to reopen. As for claims seeking an increased rating for a service-connected disability, these type of claims are called increased rating claims.
These distinctions are important in assigning effective dates for disability awards. Remember, effective dates cannot reach any further back than the date of the claim. So while any number of claims may be filed for a service-connected disability, an original claim will have a potential effective date earlier than a claim to reopen.
Let’s start at the beginning. A veteran or claimant begins the adjudication process by filing a claim(s) for entitlement to a service-connected disability at one of the many local VA regional offices or with a local DAV or VFW. A VA employee called a Rating Specialist develops the claim(s) by gathering evidence and then decides the claim and sends it to the veteran in a Rating Decision. If the veteran/claimant disagrees with any determination made in the rating decision, he/she appeals by filing a Notice of Disagreement or NOD at the local regional office.
After the filing of an NOD, the claim moves to the regional office’s appeals section, and will now be handled by a Decision Review Officer or DRO. The VA statistics say that the wait time from the filing of an NOD to getting a DRO decision is 9 months. This statistic understates the wait time for many claims.
If we are talking about poorly-represented claims, which DROs routinely deny, then yes, 9 months is a good estimate of the wait time. But claims — which are properly developed and prosecuted and have a much better chance of success — will take much longer. By properly developed and prosecuted, I mean:
– Obtaining the claimant’s VAMC treatment medical records, private treatment medical records, and in-service medical records
– Obtaining the claimant’s military personnel file (often necessary to prove psychiatric disability claims)
– Obtaining private one-time medical examination opinions to prove service-connection or to obtain a higher level of disability
– Submitting written legal memoranda in cases involving complicated legal issues
– Requesting a formal hearing with the DRO or an informal teleconference with him to go over the important factual and legal issues
An effective veteran’s representative will make sure that all of these procedures are completed. In a word, the proper development and prosecution of a claim(s) takes time, more than a year and sometimes two or three years. And, of course, it goes without saying, the VA’s growing backlog of cases adds to the delay.
Disability Benefits Questionnaires or DBQs are the standard VA templates for VA and private examination reports. DBQs set forth an exhaustive list of questions to be addressed by physicians and these responses are the used to evaluate a veteran’s disability claim. If your treating physician or a consulting physician is going to write an opinion in support of your claim, have him/her use a DBQ. There are DBQs for every type of disability and this list can be found at: https://www.benefits.va.gov/compensation/dbq_ListByDBQFormName.asp.
Let’s take, for example, the DBQ for a lumbar-spinal/back disability. This DBQ form can be found at: https://www.vba.va.gov/pubs/forms/VBA-21-0960M-14-ARE.pdf. You will notice that most of the sections are fairly detailed; however, not all sections are of equal importance. This means that a physician must concentrate on the most important sections.
For the back DBQ, the diagnosis of the back disability is fundamental, found in section 1A & 1B. For claims to entitlement to service-connection (i.e., back claims which need to prove service-connection), section 2A is the least noticeable and yet the most important. This is the only place in the DBQ where a physician can give his/her reasons for finding the claimant’s back disability is service-connected/service-related. (A claimant may want to ask the physician to attach an addendum if more room is needed to explain his/her findings on service-connection).
Section 2B is another important section, dealing with flare-ups. In most cases, a claimant will not experience a flare-up at the exact time of an examination. Therefore, the claimant must inform the physician what the pain level is and what the physical limitations are during a flare-up. Flare-ups are when your disability is at its worst and most noticeable to you. It is even recommended that if you know in advance you will be seeing a physician for your DBQ exam, to pay attention to your disabilities and document the days it is noticeable and what issues/limitations you have.
Sections 3-7 cover a lot of ground, but only one measurement is truly important: Forward Flexion. Assuming the back claim is already service-connected, the disability level will most likely be determined by the limitation of forward flexion. The VA will award a 40% disability rating for forward flexion limited to 30 degrees or less, a 20% disability rating for forward flexion greater than 30 degrees but less than 60 degrees, and a 10% disability rating for forward flexion between 60 and 85 degrees. In the long run, it would be advantageous to become more familiar with the DBQs that will affect your claim and ultimately the benefits you receive from it.
That is a very good question. There is no doubt that the vast majority of VSOs try their level best to help disabled veterans, and many do a very fine job at it. However, in recent years, the VA disability system has become more complex and adversarial. Due to incompetency, needless formality and basic insensitivity, many VA regional offices have become bureaucratic nightmares. Disabled veterans are asked to submit more and more favorable evidence just to obtain their entitled benefits. And, VA offices require ever greater understanding of the complexity of VA statutes, regulations and court cases.
Yes, it’s true, experienced VA disability attorneys usually charge a 20% contingent fee whereas Veterans Service Officers (VSOs) provide representation for free. However, in general, attorneys have more legal sophistication than VSOs, as attorneys, by definition, have a legal education. Beyond this, attorneys who practice exclusively Veterans Disability law (like the attorneys of the Veterans Law Group (VLG)) have a greater understanding of the workings of the VA system. Moreover, attorneys are generally selective on the type of cases they take. VSOs, on the other hand, must accept any and all cases which come their way. This means that an attorney will give more time and attention to each individual case.
And finally – and this is very important – law firms have more resources than VSOs in terms of staff support and funds to prosecute VA claims. In most cases, medical evidence will decide the fate of claims. Typically, the VA obtains their own medical examinations, and typically they are unfavorable to disabled veterans. Law firms, such as the VLG, have the budget to pay for their own private examinations (ranging from $800-$1,500) to rebut adverse VA examinations.