Veterans’ Disability Lawyer Arizona PTSD TDIU

I am an attorney specializing in disability and veterans’ disability law and also a board certified surgeon (transplant surgery) still licensed to practice medicine. I am also most proud of being a combat veteran. In 1973 I was  a young Captain serving  in the Israeli Seventh Brigade (armored).  My brigade, with only 80 tanks, held the Golan Heights against an assault by more than 600 Syrian tanks and artillery pieces, and led the counter attack that won the Yom Kippur War. I am passionate about defending veterans’ rights and firmly believe that my medical career gives me a great advantage in understanding and challenging faulty medical rating decisions. As an attorney admitted to practice before the U.S. Court of Appeals for Veterans Claims, I am committed to understanding the very complex legal rules and decisions involved.

 

Do I really need an attorney to represent me before the Veterans Administration (VA)?

For many decades prior to 2007, the VA policy was to discourage attorneys from representing veteran claimants by making it a federal crime for an attorney to charge more than $10 for representation. Reforms in the way the VA handles claims have improved the general application process, but many claimants are still extremely dissatisfied and confused by the regulations and the case law. Recent statistics show that only 17% to 28% of cases are approved at the Board of Veterans’ Appeals (BVA). Fortunately the US Court of Appeals for Veterans’ Claims (CAVC) reverses the majority of the adverse BVA decisions.

Between 1995-2006, the CAVC heard 18,000 cases in which the claimants had been denied benefits at the BVA level. In almost 80% of the cases, the CAVC either reversed the BVA decision or remanded it for re-adjudication, finding at least 1 legal error in the BVA decisions. It is thus essential that the veteran consider from the outset whether his claim can be heard by the CAVC. Only members of the CAVC bar can represent Claimants. The CAVC will not accept new information not previously provided to the Regional Office (RO) or to the BVA, so hiring an attorney early can ensure that all relevant evidence is properly presented and that all legal arguments are raised before an appeal is submitted.

Volunteer Layperson advocates have diligently and compassionately represented veterans for decades. The lack of legal education and large caseload significantly limit their otherwise commendable and dedicated service.

In June 2007, Congress, in response to demands from veterans who were frustrated with the prospect of navigating the complex bureaucracy without an attorney, approved attorney involvement in representing claimants before the VA, The law now allows attorneys to represent claimants before the VA and to charge a reasonable fee. The law defines a reasonable fee to be 20% of the past-due benefits which the VA pays directly to the attorney.

Who is eligible for benefits?

Benefits are given to veterans and to their dependents or survivors. A veteran is someone who was discharged under conditions other than dishonorable. For members of the National Guard and Reserves, disabilities are considered service-connected if the injuries occurred or were aggravated in the line of duty. Members of the National Guard are eligible only if they were called to service by the President, not by a state governor. Only veterans with war-time service are eligible for non-service connected disability pension benefits. This does not require the veteran to have served in a combat zone, only that he/she was in service during the designated periods. If the veteran served at least 90 consecutive days, and if only one of those days fell in a period designated as war time, then all of his/her service is considered war-time. There are no benefits if the injury was due to willful misconduct.

War-time dates include: Korean Conflict: from June 1950 to January 1955; Vietnam (Southeast Asian) Conflict from August 5, 1964 (but from February 28, 1961, for those who actually served in Southeast Asia) to May 7, 1975; and the Persian Gulf Conflict: from August 2, 1990 to February 28, 1991.

What is the difference between compensation and pension?

Compensation is for a veteran who was injured or who contracted a disease during service. Pension is for a veteran whose medical condition is not solely the result of an injury or disease contracted during the military service, but who served during a time that is defined as war time. Pension is income-dependent and is reduced by other income. Compensation is paid in full regardless of other income. Survivors of veterans who died on active duty, as well as survivors of veterans who died as a result of service-connected disability, are eligible for Dependency and Indemnity Compensation.

How do I file for veterans’ disability?

A claim for veterans’ benefits originates at the agency of original jurisdiction, or Regional Office (RO). If the RO denies the benefit, the claimant files a Notice of Disagreement (NOD) at the RO. After the NOD is filed, the RO may ask the claimant whether or not he desires a de novo review (i.e., a complete review at the RO without giving weight to the previous denial). If the claimant does not request a review by a Decision Review Officer (DRO) , then the RO must mail the Statement of Case (SOC), which must explain the reason for the denial. If the claimant is dissatisfied with the decision of the RO, he/she can appeal the decision to the Board of Veterans’ Appeals (BVA), which makes the final agency decision.

How do I appeal the RO decision?

After the RO mails the SOC to the claimant, the claimant submits the appeal by filing VA Form 9, either 60 days from the date of receipt of the SOC or during the remainder of the 1-year period from the date of the RO notice of its initial decision, whichever is later.

Is the process of filing for veteran’s disability similar to Social Security Administration (SSA) disability?

No. First, the SSA focuses on a claimant’s ability to do any work in the national economy, even if he/she cannot perform his/her previous job. The VA may establish service-connected disability even if the veteran can still work. Second, the SSA follows the doctrine of res judicata, under which a decision by the SSA at any level is considered final if it is was not appealed within 60 days. Res judicata cannot generally be challenged. VA disability permits re-opening of the claim many times, and res judicata operates only when a claim has been appealed to the US Courts of Appeals for Veterans’ Claims (CAVC).

What is the VA disability rating system?

Unlike the SSA which grants benefits for persons who are unable to work in any job in the national economy, the VA grants benefits for the potential of an impairment to decrease one’s ability to earn a living. The rating system provides degrees of impairment from 0-100% in increments of 10. The lowest compensable rating is 10% which pays a claimant $115/month (as of December of 2006). A 100% rating provides for monthly benefits of $2,471.

A detailed rating grid is broken down by sections pertaining to various organs or classes of diseases. Each body system contains a series of diagnoses, each with a numerical diagnostic code. Each diagnosis is then broken down in ratings from 0-100%. The degree of disability increases as the severity of symptomatology becomes greater. For example, a rating of 30% for ulcerative colitis connotes moderately severe colitis with frequent exacerbations, whereas a rating of 100% for ulcerative colitis requires a show of pronounced colitis with marked malnutrition, anemia, and general debility. Obtaining a rating of even 0% for a condition is important, in that it sets the ground for increasing the rating if the condition gets worse, without the need to prove service connection. Where there are two or more service-connected disabilities, the overall percentage is computed by “combining” the individual ratings, not by adding them together. For example, a 30% service-connected rating for one condition, plus a 20% service-connected rating for another condition, will result in a 40% combined rating, not 50%.Analogous ratings are for disabilities that are not listed in a rating schedule, but that could be rated under a closely related disease or injury

READ MORE    The Veteran rating system

Total Disability Ratings Based on Individual Unemployability

Individual unemployability,” or IU, is a way for the Department of Veterans Affairs (VA) to compensate veterans who are unable to work because of their service-connected disability at the one hundred percent rate, even though their veterans’ disability rating, according to VA’s Schedule for Rating Disabilities (Rating Schedule), does not actually reach one hundred percent. A veteran receiving IU receives the disability compensation equivalent to a 100% rating. According to the Code of Federal Regulations (C.F.R.): “Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.” 38 CFR § 4.16a

To establish IU, the veteran must submit to a comprehensive evaluation that takes both occupational and medical factors into account. The IU evaluation considers the individual veteran’s capacity to engage in a substantially gainful occupation, defined as the ability to earn more than the federal poverty level (about $10,000 a year). This is in contrast to the regular schedular evaluation, which considers how the veteran’s disability impairs potential earnings. Age is expressly prohibited as a consideration when evaluating a veteran for IU, so veterans beyond the normal age of retirement may secure benefits under the provisions of IU without worrying that age will be considered non-service connected contributing factor. The effects of non-service connected disabilities also are prohibited as a consideration.

IU is a fast-growing part of the VA’s expanding disability compensation program. The total number of veterans receiving any form of disability compensation increased by about 16 percent from 2000 to 2006, while the number of IU recipients more than doubled during the same time period. At the end of FY 2006, 8.5 percent of veterans receiving compensation were rated IU, compared with only 4.9 percent at the end of FY 2000 [i]. Current Veterans Benefits Administration (VBA) statistics show that 35 percent of IU beneficiaries have mental health conditions as their major diagnosis, with more than two-thirds having a diagnosis of post-traumatic stress disorder [PTSD]. Mental health conditions are followed by musculoskeletal conditions (29 percent) and cardiovascular conditions (13 percent) as the major diagnosis (READ MORE)

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Winning your claim for PTSD Disability Benefits

There are three main reasons which used to cause claims for PTSD to be denied:

1) The rating officer provides a lower rating than is justified by the clinical presentation.

2) The VA concludes that the stressor the veteran experienced was not “an event that is outside the range of usual human experience and would have been markedly distressing to almost anyone.”

3) There is no evidence that the veteran was actually in combat.

These conclusions by the VA are no longer acceptable reasons for denial of benefitsRecent VA rulings, Court rulings, and the replacement of the DSM-III-R with the DSM-IV as the basis for determination of disability, have dramatically changed the way the VA rates, or should rate, veterans applying for disability benefits. The Department of Veterans’ Affairs has recently published a new manual, “Best Practice Manual for Posttraumatic Stress Disorder (PTSD) Compensation and Pension Examinations.” With the publication of this manual, the VA has declared: “The Veterans’ Benefits Administration (VBA) and Veterans’ Health Administration (VHA) are committed to improving these services to veterans, and improving the quality of compensation and pension examinations for PTSD.” The manual changes many of the assumptions that led to denial of PTSD claims in the past. Review of this manual is thus critical to claimants and their attorneys

READ MORE Winning Your Claim For PTSD Disability Benefits

 

What is the Effect of a Favorable Social Security Disability Decision on veteran disability?

The SSA found that you are unable to secure any job in the national economy. Is that decision binding on the VA? It is clear that a favorable rating decision by the VA is entitled to evidentiary weight in a Social Security hearing

In Thomas E. McCartey v. Massanari, 298 F.3d 1072 9th Circ 2002, the Court agreed that a VA disability rating is entitled to evidentiary weight in a Social Security hearing. See Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir.2001) (per curiam) (VA disability rating is generally entitled to “great weight” and “must be considered by the ALJ”

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effect of favorable SSA disability on VA disability

Understanding the new rating for back and neck spinal disability

Degenerative joint disease of the spine is one of the most common claims made by Veterans for service-connected disability.That is because back injury is so common during military service.Contrast this with other conditions, such as cardiac conditions, which rarely affect young soldiers.

This severe condition causes many Veterans to be unable to work.

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Understanding the new rating for back and neck spinal disability

 

How can we help?

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Disability Decision in Social Security and the effects on veteran disability

The SSA found that you are unable to secure any job in the national economy.  Is that disability decision binding on the VA?  It is clear that a favorable rating decision by the VA is entitled to evidentiary weight in a Social Security hearing.

In Thomas E. McCartey v. Massanari, 298 F.3d 1072 9th Circ 2002, the Court agreed that a VA disability rating is entitled to evidentiary weight in a Social Security hearing.  See Chambliss v.Massanari, 269 F.3d 520, 522 (5th Cir.2001) (per curiam) (VA disability rating is generally entitled to “great weight” and “must be considered by the ALJ”).

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Non-Service Connected disability aggravated by Service connected disability

If you suffer from a non –service condition for example a stroke that is worsened by your service condition for example PTSD can you get increased benefits for the stroke as aggravation of your service connected disability?

The relevant regulation 38 C.F.R. § 3.310 was amended effective October 10, 2006. The new regulation provide that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b) (2012).

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Veterans’ claims: HH v. Shinseki 11-1612

            (more…)

Veterans’ Claims: EW v. Shinseki 12-2155

BRIEFING CONFERENCE MEMORANDUM

TO:                 Elizabeth M. Hessman-Talbot, Esq., Central Legal Staff, U.S. Court of

                        Appeals for Veterans Claims

                        Shanti L. Hageman, Esq., Office of the General Counsel, Department of

                        Veterans Affairs

FROM:           David Anaise, MD, JD

DATE:           October ____, 2012

SUBJECT:    EW v. Eric K. Shinseki, Secretary of Veterans Affairs,

                        Vet. App. No.12-2155

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Veterans’ Claims MU v. Shinseki 09-3570

United States Court of Appeals for Veterans Claims (more…)

Veterans’ Claims: RK v. Shinseki 13-2908

United States Court of Appeals for Veterans Claims

Vet. App. No. 13-2908

RK, Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, Appellee.

BRIEF FOR APPELLANT

David Anaise, MD, JD Benham & Anaise, LLC 1001 W. San Martin Dr. Tucson AZ 85704 (520) 219-7321

TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES Cases   Brief Page: (more…)

Bone and Joints Disability Rating Table

Below, I’ve used a bone and joints disability rating table to illustrate how these selected issues and symptoms rate on the veterans disability rating system.

Bone and Joints Disability Ratings Table

§ 4.71a   Schedule of ratings—musculoskeletal system. (more…)

Rating Table for Heart and Lung Disability Symptoms

Below, I’ve used a heart and lung disability rating table to illustrate how these selected issues and symptoms rate on the veterans disability rating system.

Heart and Lung Disability Rating Table

§ 4.71a   Schedule of ratings—musculoskeletal system. -Heart and Lung Disability (more…)

Rating Table for Digestive Issues – Veterans Disability

Below, I’ve used a digestive disability ratings table to illustrate how selected issues and symptoms rate on the veterans disability rating system.

Digestive Disability Rating Table

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