Nearly every veteran representative is familiar with total disability ratings based upon individual unemployability (TDIU). They are the most common way for obtaining a 100% disability rating, given the difficulty of securing a total disability rating under the stringent criteria of the VA Schedule.
Two subsections of 38 C.F.R. § 4.16 provide for TDIU ratings: 38 C.F.R. § 4.16(a) & 4.16(b). Both require a showing of an inability to obtain and maintain substantial gainful employment due to one or more service-connected disabilities. Under 38 C.F.R. § 4.16(a), a veteran must also establish either a 60% disability rating for a single disability, or a 40% disability rating for a single disability and an overall combined disability rating of 70%.
Its counterpart, 38 C.F.R. § 4.16(b), does not have this percentage disability requirement. But, for this reason, there is an institutional resistance to awarding TDIU ratings under § 4.16(b), and only the Director of the Compensation & Pension Service may do so. As such, veteran representatives should think largely in terms of meeting the percentage disability ratings of 38 C.F.R. § 4.16(a).
If the veteran’s disability(ies) satisfies the percentage requirements of 38 C.F.R. § 4.16(a), the issue of unemployability must be addressed, and this inquiry is a subjective one. Thus, the unemployability issue is not whether the average veteran would be able to obtain and maintain substantial gainful employment, but whether the veteran’s unique disability and background are compatible with employment. To this end, the VA adjudicator must take “into account the individual veteran’s education, training, and work history,” along with the veteran’s service-connected impairment(s). Pederson v. McDonald, 27 Vet.App. 276, 286 (2016).
As for educational achievement, a high school diploma alone does not prepare a veteran for substantial gainful employment. Compare Dobson v. Brown, 4 Vet.App. 443, 446 (1993) (“Graduation from high school, however, does not by itself prove an ability to support oneself.”). In addition, the VA must be sensitive to the veteran’s past work experience. For example, a veteran may have limited work experience, say, having worked only in heavy manual labor. If so, VA adjudicators may not conclude that the veteran is capable of sedentary employment without some explanation of how his or her past work experience can be applied to sedentary employment. Beaty v. Brown, 6 Vet.App. 532, 537-38 (1997) (finding clearly erroneous that TDIU applicant could perform sedentary work when he had an eighth grade education and had been exclusively employed as a farmer his entire life).
Above all, a VA adjudicator must be realistic in assessing a veteran’s potential employability. In an ideal world, jobs would be available for all who wanted to work. But in today’s real-world, competitive labor market, employers will not hire or keep individuals who cannot perform their duties at a level profitable to the business. Moore v. Derwinski, 1 Vet.App. 356, 359 (1991) (holding that substantial gainful employment means that a veteran is practically and realistically employable given his physical and mental limitations).
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The date of a claim is the earliest effective date allowed for a service-connected disability award. In general, when an RO renders a decision on a claim, the decision becomes final, unless a Notice of Disagreement has been filed within one year. A final decision means that the earliest effective date for any new claim for the same benefit is the filing date of the new claim, not the date of the original or preceding claim. (more…)
In Saunders v. Wilkie, ___F.3d___ (filed on April 3, 2018), the Federal Circuit held that pain alone, absent a specific diagnosis or identifiable disease or injury, may be a basis for a disability award, so long as the pain is related to military service. On this score, Saunders overruled longstanding Veterans Court cases.
In so holding, the Federal Circuit focused on the meaning of disability, which refers to a functional impairment, rather than the underlying cause of the impairment. According to the court, pain by itself is a form of impairment, thus fitting the VA definition of disability:
“We conclude that pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.”
However, the Federal Circuit pointed out that “[t]o establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity.”
For years, the VA has denied service-connected claims of impairment caused by pain alone, if the pain was not a symptom of a diagnosed condition or disease. Under Saunders, veterans are now entitled to service-connected benefits for impairment caused by pain, even though the cause of the pain cannot be identified. However, veterans must establish a causal link between military service (or any incidents therein) and the current pain, and impairment caused by the pain.
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“In Golden v. Shulkin, ____Vet.App._______ (filed February 23, 2018), the Veterans Court decided that the Board of Veterans’ Appeals (“the Board”) may not use Global Assessment of Functioning (GAF) scores in assigning a disability rating for psychiatric claims where the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, (2013) (“DSM-5”) applies.”
GAF scores have been a fixture of VA medical records and examination reports for some time, a kind of scorecard of the severity of a person’s mental illness. These scores follow a numerical range from 1 to 100 in an inverted order (the lower the score, the more severe the psychiatric disability), with each increment of ten (10) points corresponding to a listed criteria of symptoms. (showing GAF scale).
In 2013, the GAF scale was dropped from DSM-5 as an unreliable index of psychiatric disability. In August 2014, the VA amended its Schedule for Rating Disabilities to remove outdated references to the DMS-IV and to replace them with updated references to DMS-V. As a result, the VA Schedule removed GAF scores as a basis to rate the level of psychiatric disabilities.
The Veterans Court in Golden was emphatic on the inapplicability of GAF scores: Under no circumstances may the Board rely upon GAF scores to determine a veteran’s psychiatric disability level.
While Golden spoke to the inapplicability of the GAF scale to Board adjudications, its holding undoubtedly prohibits the use of GAF scores by regional office adjudicators, both rating specialists and decisions review officers. As such, veterans service officers and other veterans representatives should carefully review the medical records and examination reports in the claims file to make sure the GAF scores correspond to the veteran’s true disability level. If the GAF scores are too high, i.e., unreflective of the severity of the veteran’s psychiatric disability, then representatives should argue the inapplicability of the GAF scores, citing the Golden case.l
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Under 38 C.F.R. § 3.310 a veteran is entitled to service-connection for a disability or illness proximately caused by an existing service-connected disease or injury. In VA terminology, the causative disability is called the primary disability and the resulting disability is referred to as the secondary disability.
For some time, the VA interpreted § 3.310 as requiring a primary disability to be service-connected, or at least diagnosed, at the time of the incurrence of the secondary condition before a finding of secondary service-connection could be made. For instance, the resulting injuries of a slip-and-fall caused by an unstable knee could not be service-connected unless the unstable knee was already service-connected at the time of the fall.
“In Frost v. Shulkin, __Vet.App.___ (filed on November 30, 2017), the Veterans Court disagreed with this interpretation of § 3.310, holding that so long as the primary condition is found service-connected by the time of the decision (rating decision or Board decision), a veteran could be eligible for service-connection for his or her secondary condition.”
Take, for example, a case where a veteran has suffered for years with an untreated and undiagnosed PTSD condition caused by war time traumas. Due to anger outbursts and violent behavior – symptoms of his PTSD – the veteran gets into a fight and incurs an immediately diagnosed serious traumatic brain injury (TBI). A year or two after this incident, the veteran is diagnosed with PTSD. The veteran files two claims, one for service-connected PTSD and the other for TBI, secondary to the PTSD. Under the Frost case, the veteran would be eligible for secondary service-connection for TBI, even though his PTSD was neither service-connected nor diagnosed prior to his/her TBI condition.
Keep on the look-out for potential causative relationships between primary and secondary disabilities. In the example above, it would be easy to overlook the connection between the veteran’s PTSD condition and his TBI. If you see a potential relationship between a primary and secondary condition, veterans’ representatives should request the VA to provide a medical examination or opinion under its duty to assist. Keep in mind that secondary service-connection can be found so long as the primary condition is service-connected by the time of the rating decision.
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As some of you may already know, the VA is permitted to review existing total disability awards based upon individual unemployability (TDIU) to determine if new evidence has come to light establishing the veteran’s capacity to obtain and maintain substantial gainful employment.
However, before reducing a TDIU award, the VA must comply with specific procedural and evidentiary requirements under 38 C.F.R. § 3.343(c). For example, the VA must meet the clear and convincing evidence standard (not the preponderance-of-the-evidence standard) in establishing that the veteran is now capable of actual employability. This means that the evidence of record must overwhelmingly support a finding of the veteran’s capacity to engage in steady employment. By actual employability, § 3.343(c) requires the VA to prove the veteran’s clear and present ability to obtain and perform work. In other words, the VA cannot base a reduction upon the veteran’s hypothetical or speculative ability to obtain and hold employment. The medical evidence – usually the VA medical reports and opinions – must demonstrate that the veteran has the functional capacity, notwithstanding his/her service-connected disability(ies), to perform steadily, reliably and competently in a real-world work environment.
In addition, the VA is not permitted to consider a veteran’s participation in a VA rehabilitation or retraining program as evidence of employability. Rather, to reduce a TDIU rating, the VA must independently establish by clear and convincing evidence that the veteran’s service-connected condition has so improved that he/she can presently perform the vocation for which he/she is being trained.
Finally, § 3.343(c) prohibits the VA from basing a reduction solely upon a veteran having secured substantial gainful employment, unless the veteran has had the same employment for a 12-month consecutive period.
While in theory subject to a reduction, TDIU ratings should, in the vast majority of cases, be permanent ratings in fact. The standard for reducing TDIU awards is very high, and veterans service representatives should carefully evaluate the medical evidence upon which the VA bases its proposed reduction. Ninety percent of the time, the VA’s medical evidence falls short of meeting the high burden of proof. On the rare occasion the evidence of record does meet this standard, veteran representatives should encourage their clients to obtain rebuttal medical evidence from their treating physicians.
One of the most frequent errors seen in VA adjudication is the flawed development of VA examinations addressing the functional effects of flare-ups of a service-connected disability. In many cases, a VA examiner states that he/she cannot offer an opinion on the effects of flare-ups because the claimant was not experiencing a flare-up at the time of the examination.
In Sharp v. Shulkin, 29 Vet.App. 26 (2017), the Veterans Court made clear that a flare-up need not occur during a VA examination in order to evaluate its functional effects:
[N]either the law nor VA practice requires that an examination be conducted during a flare for the functional impairment caused by flares to be taken into account. Instead, DeLuca and its progeny clearly, albeit implicitly, anticipated that examiners would need to estimate the functional loss that would occur during flares…” Id. at 34.
Instead, Sharp requires VA examiners to ask claimants to describe the severity, frequency, duration, precipitating and alleviating factors of flare-ups, and to show their overall functional impairment. Id. at 34; see id. at 35 (“the Court’s case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”).
While neither the examiner nor the VA is required to accept a claimant’s lay statements, both must consider them, along with all the other evidence of record, in evaluating the extent of the functional effect of flare-ups.
Practice Pointer: Always carefully review VA orthopedic or neurological examinations of the spine and upper and lower extremities. If the disability goes through flare-ups, loss of movement, including loss of flexion or extension, is almost always in issue. Be sure that the examiner has asked for and considered the veteran’s lay statements about the effects of flare-ups. If not, the veteran’s representative should ask the VA to return the VA examination report to the same examiner for a proper opinion on the flare-up issue.
Practice Pointer: Section § 3.304(f)(5) provides numerous ways to establish/corroborate the occurrence of an alleged MST. VSOs should carefully read this regulation and determine which source(s) is most likely to corroborate the MST for the particular claim. Military personnel files are frequently helpful in establishing “behavior changes” resulting from a MST. Look to see if there has been a decline in performance evaluations or cited misconduct soon after the alleged MST. Military service records may sometimes be a valuable source, even if the veteran did not specifically seek treatment for the trauma. For example, notations of rapid weight loss or gain or disturbance of mood may be evidence of psychological trauma, thus serving to corroborate the MST.
A veteran is presumed to have been in good health prior to service if her/his entrance examination does not note the existence of the specific condition or disability:
[E]very veteran shall be taken to have been in sound condition when examined, accepted,and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment . . . .
38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b)
All service members must undergo an induction/entrance/enlistment examination just prior to their service. The resulting examination report may later be important in VA disability claims when there is a question as to whether the veteran’s disability existed prior to service. If the entrance examination report does not note the disability or condition in question, then it is presumed that it did not exist prior to service. The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service preexisted service.
Keep in mind that the presumption of soundness applies even if the induction examination notes a history of the condition or its symptoms. A “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R.§ 3.304(b)(1). The presumption will apply unless the disability existed and was noted at the time of the examination.
Example: The case of Crowe v. Brown, 7 Vet.App. 238 (1994) illustrates this principle. The veteran underwent two entrance examinations for two distinct periods of service. Neither examination report noted a condition of asthma at the time of the examination. However, both examination reports noted a history of asthma in early childhood, but no recurrence of the condition. The Veterans Court held that the veteran’s asthma was not noted within the meaning of § 1111 and § 3.304(b). Therefore, the presumption of soundness applied.
If the presumption applies, the government can only rebut it by clear and unmistakable evidence that an injury or disease manifested in service preexisted service. This is a very stringent standard.
Example: The case of Kinnaman v. Principi, 4 Vet.App. 20 (1993) well illustrates the high level of proof required to rebut the presumption of soundness. The veteran sought service-connection for keratoconus of his eyes, claiming this illness first manifested during his Coast Guard service. No eye disability was noted in the induction examination. In service, Dr. Harmon, a military physician, tentatively diagnosed appellant with keratoconus. Later, Dr. Harmon wrote that “history and ocular signs indicate that the condition was present prior to Coast Guard induction.” Id. at 27. After making a final diagnosis of early keratoconus, Dr. Harmon wrote in his report that “whether or not the condition existed prior to entry into the Coast Guard cannot be stated with absolute certainty, although it is probable that the process began earlier.” Id.
Based upon Dr. Harmon’s opinion, the Board denied service-connection, finding the presumption of soundness had been rebutted.
Reversing the Board’s finding and remanding for an award of service-connection, the Veterans Court explained:
[T]he question becomes whether a doctor’s statement that there are signs which indicate or suggest that the condition was present prior to induction and his opinion that it is probable, but not absolutely certain, that the condition began prior to service constitute clear and unmistakable evidence sufficient to rebut the presumption of sound condition. We hold that in this case this evidence, even when considered with the evidence that was noted by the BVA, does not constitute clear and unmistakable evidence.
4 Vet.App. at 27.
Practice Tip: A copy of the entrance examination can typically be found in the veteran’s claims filed. If not found there, you will find a copy in the veteran’s personnel file. Upon request, a copy of the personnel file can be obtained from the National Archives (www.archives.gov).
If you are a Veteran or Veteran Service Officer/Representative and submitted documents to the Veterans Administration supporting a claim between August 1, 2015 through December 21, 2015 your documents may be among those lost.
Documents submitted between the above dates to the eBenefits and SEP Claim “Status Document” portals are permanently lost with no hope of recovery, even if you received a “successful” upload message at the time.
If you are affected by this VA error, contact your Congressman and let him or her know that the Veteran’s Administration failed you.
If you need help resolving this problem you can find an accredited Attorney, Claims Agent, or Veterans Service Organizations (VSO) Representative here.
Contact us if you are a Veterans Law Group client or have a VA disability claim on appeal.
Contact the Secretary of Veterans Affairs, Robert Mac Donald at firstname.lastname@example.org and let him know the Veterans Administration failed you again.
(article originally published by Amanda Mineer on LinkedIn)