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.
Filling out paperwork isn’t what you planned to do as a military member, and filling out paperwork after your discharge to obtain disability benefits can seem overwhelming sometimes. We get it, but if you want a favorable TDIU decision, some dreaded paperwork is necessary.
The VA is now requiring that veterans submit Form 21-8940 at some point prior to granting a positive TDIU decision. In many cases where TDIU is denied, the sole reason for denial was because the forms were not submitted. Just keep in mind that even though TDIU is a theory for getting to a 100% disability rating rather than a claim in and of itself, providing Form 21-8940 frames the theory for the VA’s consideration.
VA Form 21-8940 requires information about when the veteran last worked, dates where they worked, and which service-connected issues affect their ability to work. The VA will only consider the disabilit(ies) you list on the form, so make it easy for them to see what you are claiming and why. Although it may seem tempting, don’t put “all” or “etc.” in these boxes, they will simply prompt additional questions from the VA. If you don’t have the information requested, okay, but it needs to be filled out to the best of your ability.
Before making a decision on TDIU, the VA will contact prior employers and ask for the reasons why the veteran was terminated or let go. In a lot of cases the employers will not respond, and the VA will follow up with the veteran, asking the veteran to please ask the employer(s) to respond. The reality is that because of various reasons, especially related to psych issues, some employers don’t want to comply and don’t want to be involved in the process. Lack of response by an employer, however, cannot be used as a basis to deny TDIU. The VA is supposed to request this information, but failure to get it cannot be used to deny. Obviously, if the veteran has any control over the matter, it is useful to have an employer reply and explain the underlying situation (for example, due to anxiety attacks the veteran could not perform the job requirements and was terminated). When you get a letter from the VA requesting help with the employer, it is sometimes appropriate to respond back, advised that the veteran and employer did not part on good terms, and therefore it is not surprising if they do not want to be helpful and supportive or responsive. Remind the VA that this cannot be used to deny or hold up any longer.
Do you need an experienced ally on your side in fighting to get TDIU approved? Veterans Law Group is here to help you, just as they have helped thousands of other veterans and their families. 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.
As a military member, you get used to accomplishing what seems impossible every day and so it’s hard to acknowledge that you may meet the VA’s criteria for a TDIU rating of 100% unemployability. It may seem like you are giving up, but it isn’t. It’s just making sure you and your family are receiving benefits to which they are entitled. When did you become qualified to received TDIU? Determining the proper effective date can make a significant difference in benefit calculations.
The effective date of a TDIU rating is the date when the veteran became unemployable as a result of the service-connected disability. This is determined by two factors: (1) the date the current underlying claim(s) was filed, and (2) the date the veteran became unemployable due to the service-connected disability. The appropriate effective date for the TDIU award is the later of those two dates.
Here’s an example. A veteran was honorably discharged in August 2012 and immediately thereafter filed his disability claim for PTSD which was granted at 70%. Being a hard worker and wanting to do everything he could to support his family, he obtained a job and began working there. Four months into the job he was fired due to his PTSD. Not being a quitter, and not wanting to let PTSD ruin his life, he found a new job and managed to stay for six months until, again, he was terminated due to symptoms of PTSD which caused problems at work. He then managed to get another job, this time only lasting three months before, again, being dismissed as a result of PTSD. This time he was willing to go back to the VA and argue for a TDIU rating and it was granted.
In this scenario, he argued that the effective date was not the date he lost his most recent job, but actually was the earlier filing date of his underlying PTSD claim and supported that with medical records showing that the factors making him unemployable as a result of the PTSD were there all along. Getting the proper effective date for a TDIU claim can make a significant difference in back pay to which the veteran may be entitled.
The appropriate effective date will be fact-specific, based on a variety of factors. The effective date is not the date you file forms raising the TDIU theory; it will be an earlier date.
Do you need some expert assistance in helping you obtain your TDIU benefits? Veterans Law Group is here to help. We’ve handled thousands of claims for veterans 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.
Now that you or your spouse have completed your active military duty and returned to the civilian world, you may feel like you have merely exchanged one set of stresses for another, including navigating the VA’s application process for any disability benefits to which you might be entitled. You might have heard about TDIU – total disability individual unemployability – but can’t figure out how to file a claim. Let’s clarify what TDIU is and how you can be considered for it.
A claim is the request for service-connected benefits, for example, “I believe I am suffering from PTSD as a result of my service.” A claim may also be a request for an increased rating on a disability, for example, “I believe my PTSD has gotten worse.” The effective date will be the date you filed the claim and it is kept open for one year or with an appeal.
TDIU, on the other hand, is a theory to obtain a total disability rating for the underlying claim (i.e. PTSD). TDIU is not a claim in and of itself, it is a theory or means of arguing entitlement to a 100% disability rating. As such, the effective date is floating, tracking along with the underlying claim.
Because TDIU is a theory, not a claim, a veteran need not explicitly request entitlement to TDIU to raise this theory, whereas for a claim a veteran must explicitly request entitlement to benefits. If there is evidence, such as a medical record or report, indicating that the veteran cannot work as a result of his or her service-connect disabil(ities), that is sufficient to raise the TDIU issue and the VA is required to consider that issue on the underlying claim(s).
Do you need some help appealing a TDIU denial? Veterans Law Group only handles veteran disability claims and helps veterans and their families get the 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.
Post-traumatic stress disorder (PTSD) is one of the most common psychiatric disorders that military members suffer from during and after their service. Yet, it is also one of the most difficult conditions to prove for the purposes of establishing disability benefits for veterans. A knowledgeable disability benefits attorney in your area is your best chance to prove that you are suffering from PTSD and deserve compensation for your military service-related condition.
Elements of a PTSD Disability Benefits Claim
The first element of a PTSD disability benefits claim is that the veteran must have a present diagnosis of the condition by a psychiatrist, psychologist, licensed social worker, or other mental healthcare provider. The second element of a PTSD claim is proof that the condition was caused by an in-service stressor. Generally speaking, a stressor pertains to a traumatic event or incident that is likely to cause mental distress, and for military members this can include engaging in combat or a combat-related incident, witnessing fatal or near fatal incidents, and similar situations.
The level of proof required for the second element of a PTSD claim is dependent on whether the veteran is a combat veteran. If so, the statement about the stressor is usually accepted as enough proof for the claim. If the military member is not a combat veteran, the claim must contain independent evidence of the incident. This can be done through corroborating military records or a buddy statement of a person who went through the same experience.
The last element of a PTSD claim is the nexus requirement, which is the causal link between the traumatic incident that occurred during service and the present condition. The nexus can be proven by a healthcare professional or other expert that the traumatic experience caused the veteran’s current PTSD.
How a Lawyer can Help
In order to prove PTSD for a disability claim, a veteran must prove many elements with a considerable amount of evidence. An attorney can help you gather all of the evidence you need and ensure that your application for benefits contains everything you need to prove your claim. Lawyers have connections to the top healthcare professionals and experts to render opinions on your behalf to prove that you currently suffer from post-traumatic stress disorder as well as that a nexus exists between the trauma you suffered as an active military member and your current condition. An attorney can request the documents necessary or help draft statements to prove that the incidents you claim caused the PTSD took place, and if your initial claim is denied a lawyer is the best possible person to argue your appeal.
Talk to an Attorney Today
If you have additional questions about PTSD claims for disability benefits or why this particular claim is so difficult to prove, call or contact a local disability benefits attorney in your area today to schedule an appointment to discuss your legal needs.
TDIU is a benefit awarded to service members who can no longer work due to their military-related conditions. However, there are some specific situations in which a veteran can work and still collect benefits for TDIU. Known as the “marginal employment” exception, a former service member can work and collect TDIU so long as the veteran earns less than the federally designated poverty threshold. There is also a second exception to the rule that a veteran cannot work and collect TDIU benefits, known as the “protected work environment” exception, which can allow a veteran to work and earn above the federally designated poverty threshold while still collecting benefits for TDIU. To learn more about your legal options for the protected work environment exception, talk to a lawyer in your area today.
Also known as a “sheltered work environment,” a protected work environment for veterans is determined by a fact-sensitive set of questions. The inquiry focuses on whether the former service member is in a specialized or unique position in that specific work environment that allows his or her to earn money that he or she would otherwise not be able to by going out into the national economy. The most common example of a protected work environment is a family-owned business. Another common example of a sheltered work environment is if a company has a specialized program for veterans that allows them to collect full pay even if they cannot always do the same amount of work as other employees.
The critical aspect of establishing a protected work environment is showing that the veteran will make full pay even if his or her service-related disabilities make it impossible to perform at the same level as other employees in the business. For example, a veteran could be hired who has severe PTSD which prevents him from coming into work on some days. If that veteran still receives a full paycheck for the work he is able to accomplish on good days, it could be considered a protected work environment if the same veteran could not go out and get another job where that special relationship existed and still expect to receive full pay.
An attorney is your best option for help establishing that your current employment counts as a protected work environment. The VA looks very critically at sheltered work environment claims because in most cases if a veteran can work then they do not qualify for TDIU benefits. The most important thing to establish when proving a protected work environment is that the employer would not make these accommodations for everyone, and that the veteran is part of a special exception that specifically addresses the issues relevant to service-related disabilities.