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This is a very good question. After all, experienced VA disability
attorneys usually charge a 20% contingent fee whereas Veterans Service Officers
(VSOs) provide representation for free.

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.

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.

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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.

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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.

social-security-disability-ssdi-and-tdiu-for-veterans

What is the connection between Social Security disability (SSDI) and TDIU for veterans?

 

We know that veterans joined the military because they wanted to serve their country, not because they wanted to navigate bureaucratic mazes to claim benefits to which they are entitled. Trying to figure out both Social Security and VA benefits at the same time can be particularly daunting.

 

Let’s simplify things a bit. Yes, a veteran can receive both VA service-connected disability benefits and Social Security benefits. However, it is important to note that receipt of one does not guarantee receipt of the other and a veteran generally cannot receive both a VA pension (different from disability benefits) and Social Security at the same time. VA pension differs from VA service connected disability by whether the disability was caused or aggravated by military service. VA pension was designed to help veterans that have a non-service connected disability and are struggling financially because of the disability.

 

It’s important to understand that sometimes a veteran may have received a Social Security disability award that lists multiple grounds, for example, PTSD and a back injury. When Social Security makes those awards, they are not factoring any service-connected factors that the VA would look at to determine TDIU. In this situation, sometimes the VA will deny TDIU to a veteran in this example because the VA shows that only the PTSD is service-connected, but the back injury is not. That doesn’t necessarily end the issue, however. If you can present evidence to the VA that the veteran is unemployable solely because of service-connected reasons (for example, maybe the veteran was having violent outbursts at work as a result of their PTSD, but could have worked through the back injury issue), the VA may then approve TDIU.

 

If you have been denied TDIU because of an apparent conflict between a Social Security award and a VA TDIU claim, you owe it to yourself to get another opinion on whether you may be eligible.

 

How to get Social Security Earnings records for a TDIU Claim

 

After veterans are discharged from active duty it sometimes takes awhile to reintegrate into civilian life and a suitable civilian job. Bumps in the road are expected, of course, but sometimes it seems impossible to maintain steady work, sometimes because of symptoms from service-connected disabilities interfering with expected work responsibilities. One example are individuals that suffer from PTSD, who miss too many days of work because of anxiety attacks or depression.

 

At a certain point, it may be necessary to look into whether a veteran is eligible for TDIU (total disability individual unemployability) benefits. This is not to say that the veteran will give up trying to work, but acknowledging that perhaps he or she isn’t able to maintain substantially gainful employment through no fault of their own, and needs to look into accessing disability benefits that were part of the deal when they signed up for the military.

 

One of the eligibility requirements for TDIU is a showing that the veteran cannot sustain substantially gainful employment. One of the most direct means of showing this to the VA is by producing income records for the past several years showing the veteran’s income during relevant years.

 

Getting a printout of Social Security earnings records is a straightforward process. The form that you need to file with the Social Security Administration office is the SS-3288 Consent to Release Information form. This can be accessed at www.ssa.gov or by visiting a Social Security office.  Request and review these records to see the real picture of the veteran’s income over the years since discharge (you might be surprised) and then compare them against the annual poverty level numbers (available from the U.S. Department of the Census).

 

Get this earning record before you complete the VA Form 21-8940 which is the TDIU application.

 

Do you need help determining whether you or your veteran spouse might be eligible for TDIU benefits? Veterans Law Group is ready to help you, just as it has for thousands of other veteran 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.

the-va-appeals-process-a-step-by-step-explanation

The process for appealing a denied veteran’s disability claim is lengthy and can be confusing for many people. However, this article will provide step by step explanation to the appeals process.
The first step after receiving a denial of benefits is to make a formal application to VA Form 9. The second step, detailed in the next article, explains how to navigate the Board of Veterans’ Appeals. Hiring an experienced disability claims attorney to help you through the process is your best chance of reversing the decision and getting the benefits you deserve.

 

Step 1: Form 9 Appeal

Some estimate that there are over 400,000 VA disability claims currently awaiting a decision. After you have applied for benefits with a formal claim, established an effective date for your claim, and your claim is denied, the first step in appealing the decision is to file a Notice of Disagreement with the Rating Decision given to you by the government. Once the VA receives your Notice of Disagreement, the regional office in your area will review the case and create a Statement of the Case for your claim.

The first draft of the Statement of the Case then goes to a higher level of review, known as the DRO. The DRO reviews all of the evidence in the file and then publishes a final Statement of the Case with their decision. The Statement of the Case will either grant or deny your benefits If granted, you still need to make sure that the effective date is correct and that the VA gives you the proper rating. If your claim is still denied, the next step is filing another Notice of Disagreement with the VA to keep your case alive. Within 60 days of receiving your denial of benefits through the Statement of the Case, you must file a Form 9 application with the VA. If the 60 days pass without the filing, your claim is dead.

 

What is a Form 9?

A Form 9 is also known as a Substantive Appeal Form, and it serves as the formal appeal to the Board of Veterans’ Appeals for disability benefits claims. This form escalates the claim denial from the regional level to the national level of appeal. The statute of limitations for filing is 60 days with the single exception for simultaneously contested claims.

Where two people are fighting over the same disability benefit, where one person will benefit from the decision and the other will lose, the statute of limitations is reduced to only 30 days to file a Form 9. An experienced disability claims attorney understands the deadlines and exceptions to the appeals process and can ensure that all of the proper paperwork is filed in time.

 

Step 2: The Board of Veterans’ Appeals

At this point in the appeals process, your claim has been denied at the regional level and you have filed the Form 9 within 60 days of that decision. The next step in the appeals process is taking your case to the Board of Veterans’ Appeals. You have two options at this time, either to request a hearing with a judge or waive the hearing for a Board of Veterans’ Appeals review. If you request a hearing, you will go before a judge to hear your case. The judge will listen to the evidence and render a decision. If you choose to waive the hearing, the Board of Veterans’ Appeals will review the evidence as presented in the case file and Form 9 application.

Once you have made a decision and submitted all relevant evidence for the case to the Board, an administrative law judge is assigned to review the claim. The judge has three options for rendering a decision on your claim. The first is to grant your claim, giving you the benefits requested in the appeal. The second option is to deny your claim, siding with the VA in denying benefits. The third option is to remand your claim to the lower level for continued review.

 

Step 3: Appeal to the US Court of Appeals for Veterans’ Claims

If the administrative law judge denies the claim, you have options. The first is to ask the judge to vacate the decision. The next is to file a motion to reconsider, and the last option is to further appeal the decision to the U.S. Court of Appeals for Veterans’ Claims (CVAC). If you choose to continue to appeal, the motion must be filed with the CVAC within 120 days of the Board of Veterans’ Appeals decision.

It is important to note that the CVAC is a judicial review court, which means that no new evidence can be submitted to this hearing. The CVAC’s job is to review the judicial findings of the administrative law judge and determine whether there was an error in law made at the lower levels of your case. The CVAC will then either affirm the Board’s decision, vacate the decision, remand the case back to the administrative law judge, or reverse the denial of claims.

 

Contact a Disability Claims Attorney

If you have questions about a VA benefits claim, one of our experienced attorneys will be able to help. Don’t hesitate to contact us today.

You applied for disability benefits through the U.S. Department of Veterans’ Affairs and, after a long wait, you have finally received a favorable decision, granting you veterans’ disability benefits. This decision should include a Notification Letter and a Narrative, explaining the reasoning used to determine your benefits.

Disability Ratings Calculations

For any service-connected impairments, the VA should include a disability “rating” and explanation for each of the impairments listed in your decision, but what does it mean? How much compensation will you receive each month? Here are some answers.

Schedule for Rating Disabilities

The Rating assigned to your impairments is often the most confusing part of the decision.

The VA created the Schedule for Rating Disabilities to identify what % should be applied to each impairment. This schedule is intended to reflect the loss in earnings that you may experience because of your impairments. Ratings range from 0% to 100%.

The Schedule for Rating Disabilities lists impairments by body parts affected and conditions/issues. Each diagnosis within the group of issues has a list of symptoms that the VA Rater will compare to your symptoms and the evidence in your medical record, including your C&P exam. Your symptoms are then rated according to the requirements listed in the Schedule. The more severe your impairment is, the higher the disability rating will be.

For example, if you were experiencing symptoms of post-traumatic stress disorder (PTSD) as a result of your time in the service, you would find the section titled “Mental Disorders,” which includes PTSD, Depression, Anxiety, and MST. The table for PTSD indicates that if you have occupational and social impairment in most areas resulting from symptoms such as spatial disorientation and suicidal ideation, you would receive a 70% rating for this impairment. If you have reduced reliability and productivity as a result of occupational and social impairment, you would receive a 50% disability rating, and occasional decreases in work efficiency would equal a 30% disability rating.

 

Multiple Impairments

If you have multiple impairments, the VA will assign a separate disability rating to each one. Unfortunately, the VA does not add all of the ratings together when determining your overall disability rating. Instead, once all of the ratings have been assigned, the VA will use the Combined Ratings Table to determine the final rating.

The table has numbers on the left side and along the top. In order to calculate your combined rating (two impairments), you would take the first rating and find it on the left column of the table. Next, you would find your second rating in the top row of the table. The number that appears where the column and the row intersect will represent your combined rating.

If you have more than two disabilities, you would follow the steps, as stated above, for the first two impairment ratings. Once that number is determined, find the new number in the left column of the table and then find the third rating in the top row. The number that appears where this column and row intersect will represent the combined rating. This process would continue for the remaining disabilities. This combined rating is then rounded up or down to the nearest whole number. The highest overall disability rating is 100%.

If your disability is not listed in the Schedule, the VA will find a disability that is similar to your impairment and evaluate your disability based on the code for the related disability.

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Monthly Compensation Rates

Monthly disability compensation amounts vary depending on your disability rating and the size of your family. Your family size is determined by your marital status, whether you have any children in the home, and whether you have any other dependents or family members.

How Are VA Disability Compensation Pay Rates Determined?

Increases in VA Service Connected Disability Rates are tied to Cost of Living Adjustments (COLA) determined by the Social Security Administration. The government uses these rates to determine the cost of living increases for Social Security recipients, retired military veterans, and federal civilian retirees.

You can review your compensation based on your disability rating and family size here. As an example, a veteran without dependents and with a 30% disability rating would receive $408.97 per month. A veteran with a 100% disability rating who has a spouse and child would receive $3,197.16 per month. This amount increases based on Cost of Living Adjustments.

What is a Service Connected Disability?

VA Disability Compensation is a tax-free benefit paid to a veteran who is suffering from injuries or diseases sustained as a result of active duty or was made worse because of active military service.

If you have a service-connected disability, then you may be able to receive compensation payments. Having a service-connected rating of  30% or higher, having dependents, if you have missing limbs, or if you have a disabled spouse increases your chances increases your chances of receiving additional compensation.

 

A Change in Your Family Status Can Change Your VA Disability Payment

You may be eligible to receive a higher VA disability payment if you have a disability rating of 30% or higher and you are also supporting qualified dependents such as a spouse, child, or parent. If you have a rating of 20% or lower, then a change in family status will not affect your VA disability payments.

You will need to inform the VA to any changes in your family status, e.g., a birth, wedding, divorce, a parent moving in with you, a child coming of age, or the death of a qualified dependent.

Sometimes the VA will backdate payments to make up for any shortfalls, or in the case of the loss of an eligible dependent, decrease your payments.

What If You Disagree With The Rating?

Impairment ratings are an important part of the decision because they ultimately control how much you will receive in benefits each month. For this reason, you should take your decision to your Veterans’ Service Officer (VSO) for review. At this time you can also seek the advice of an attorney. The VSO or attorney can review the decision, answer your questions about your benefits or the decision, and then help you determine if the Rating in your decision is an accurate representation of your impairments. If you do not agree with the VA’s determination, you have one year from the date on your decision to submit more evidence or file an appeal (Notice of Disagreement), if necessary.

Finding answers to your disability claims questions doesn’t have to be difficult. Take our free quiz today to determine what resources are available for your specific needs.