VA Benefits – How the VA Rates Disabilities

Posted on by admin

When a veteran applies for disability compensation benefits, the VA has to decide if the veteran is eligible and entitled to those benefits and how much they can receive. The VA’s initial decision is called a Rating Decision, where the veteran is assigned a percentage for their service-connected disability that determines how much monthly compensation they will receive.

In order to determine how much compensation the veteran is entitled to, the veteran is assigned a rating. The rating is a percentage, ranging from 0% to 100% and increasing in increments of 10%. The VA rates mental and physical conditions based on the average decrease in earning capacity due to that condition. The VA rating system is meant to be a way to compensate veterans for a loss they suffered in service that decreases their ability to earn a living for themselves and their families. The higher the degree of disability, the greater the compensation because the more severe the condition, the greater the impact it has on the veteran’s ability to earn a living.

The goal for most veterans is a 100% disability rating, also known as total disability rating. This rating entitles the veteran to the most amount of money (currently $2,906.83 per month) because they are considered totally disabled. If the disability would make the average person incapable of work, a total rating is assigned, even if the veteran is working. The other way to get total disability rating, without reaching 100%, is through individual unemployability.

On the other side of the spectrum, the VA can assign a 0% rating, or a noncompensable rating. 0% does not qualify the veteran for monthly compensation, but it does have its advantages.  A noncompensable rating establishes service-connection, preserves the right to seek higher compensation if the condition gets worse, and entitles the veteran to other benefits such as preference in federal/state jobs.  If the veteran has two or more separate noncompensable service-connected disabilities, the VA can grant a 10% disability rating.

The rating schedule, which can be found here, lists all types of diseases and conditions that tend to result from military service. The ratings are categorized by body system, with each system containing a series of diagnoses and each having its own numerical code. This numerical code is called a diagnostic code, which is then assigned a percentage, and each percentage has a designated compensation amount. For each degree of disability, there is a description of the symptoms the veteran must have in order to qualify for that evaluation. The degree of disability increases with the severity of the symptoms.  The rating board will determine the severity of the symptoms and the appropriate rating for the veteran based on the evidence provided, such as service records, medical statements, buddy statements, and VA examinations. This is why it is so important to get the right evidence into the VA so they can make the right decision and assign the highest rating possible. The goal is to prove the highest level of severity in order to get the highest rating and receive the most compensation.

The VA is supposed to choose the diagnostic code with the highest evaluation under which the veteran qualifies, and avoid evaluating the same disability under different diagnostic codes. When there are two different evaluations to apply, the VA will assign the higher rating of the two if the disability meets the criteria for the higher rating (if not, the lower rating will be applied).  Not all disabilities are listed in the rating schedule, so when the condition is not included, it will be rated under a closely related disease or injury. This is known as an analogous rating. The analogous condition should affect similar functions in the same part of the body and have similar symptoms.

When there are two separate disabilities, the overall percentage is determined by combining the individual ratings, not adding them together. The VA does this by considering each disability in order of severity, beginning with the highest evaluation, and subtracting that from 100%. The number that remains is what the VA considers the remaining healthy part of the veteran, so the next disability is subtracted from that remaining number. The result is then rounded to the nearest tenth. For example, if there are two disabilities rated at 50%, the first 50% is subtracted from 100%. The second disability of 50% is taken from the remaining 50%, resulting in 75%, which is then rounded to 80%. For a more detailed explanation with examples, click here and here. There is also an app that can help you calculate combined ratings called VetCalc that can be downloaded in the App Store.

If you do not agree with what the VA has decided and you think you are entitled to a higher rating, you can appeal your decision. Find out how to do so by clicking here.

Author Melanie Franco, Hill & Ponton, P.A. Attorney

Veteran Benefits: Veteran’s Application for Increased Compensation Based on Unemployability – Submitting VA Form 21-8940

Posted on by admin

 

Individual Unemployability (IU), also known as Total Disability based on Individual Unemployability (TDIU), is a total disability rating based on a veteran not being able to secure substantially gainful employment. Substantially gainful employment is an occupation where an individual can earn a living wage above poverty level. Poverty level is defined by the U.S. Census Bureau as the poverty threshold for one person, and is currently $11,770.  When a veteran cannot gain or keep a job where they earn a living wage because of their service-connected disability, they can apply for IU. For information on how to qualify for IU, click here and here.

To apply for IU, a veteran must fill out and submit the VA form 21-8940. Although filling out this form can be confusing, it is what your claim will be based on so it needs to be filled out accurately. Below is an explanation of a few of the trickier sections of the form and how to avoid having your claim denied based on these. To view the form and follow along as we walk through the sections, click here.

Section I asks about the veteran’s disability and medical treatment. Block 6 should state what service-connected disability prevents the veteran from working. If the veteran has only one service-connected disability, it is presumed that disability causes the veteran’s unemployability. If the veteran has multiple service-connected disabilities, it should be indicated which disability causes the unemployability. Not specifying which service-connected disability causes the unemployability could risk having the application denied.

Blocks 7-11 refer to whether the veteran is under a doctor’s care and/or has been hospitalized within the last 12 months.  Block 8 should state the frequency with which the veteran visits the doctor (once a week, twice a month, etc.), as well as the start date of treatment if it is known. Block 9 asks for the name and address of the doctor. If it is a VA clinic, the name, city, and state of the clinic will suffice. If it is a private doctor, indicate the name of the doctor as well as the address. Remember this information refers only to treatment for the service-connected disability listed in Block 6.

Section II requires employment information. Block 12 asks for the date the veteran’s disability affected their full-time employment. An example of this would be if the veteran had to switch from full-time to part-time work because of their disability, indicate the date this occurred. Block 13 asks for the date the veteran last worked full time, which would be the date the veteran’s full-time employment ended. Block 14 asks for the date the veteran became too disabled to work at all and had to stop working completely because of their disability, referring to part-time or self-employment and not just full-time. These dates may all be the same, or may vary depending on each case and disability.

Block 16 should list the employment information for the last 5 years that the veteran worked. This does not mean the last 5 calendar years, but the last 5 years in which the veteran was working. It is very important to include accurate information and addresses because the VA will send requests of employment records to some or all of the employers listed. If there is an employer that moved or is no longer in business, it should be indicated on the form. This list should also include self-employment that meets the minimum amount required by the IRS to report. Block E asks for time lost from illness, which refers to any time the veteran had to miss work because of doctor appointments or absences for being too sick to work.

Section III and the rest of the form are self-explanatory, but for more help click here. It is important to note that the form must be signed by the veteran; it cannot be signed by a third party source, such as a power of attorney. Remember, it is essential to include accurate information because the VA will be using this form to decide the veteran’s qualifications for IU.

Author Melanie Franco, Hill & Ponton, P.A. Attorney

How does the VA rate Diabetic Peripheral Neuropathy?

Posted on by admin

In 2012, 29.1 million Americans had been diagnosed with diabetes.  That number undoubtedly has gone up, because at that time there were 86 million Americans age 20 and older who were pre-diabetic.   Veteran’s receiving service connected compensation for diabetes mellitus are also eligible to receive compensation for any and all conditions secondary to diabetes.  The complications and co-morbid conditions associated with diabetes are grouped into two categories: macrovascular and microvascular.

Macrovascular disease is a disease of any large blood vessel in the body, including, the coronary arteries, the aorta, and the large arteries in the brain and in the limbs.  Diseases include, but are not limited to, coronary artery disease (CAD), cerebrovascular accident or stroke (CVA), congestive heart failure (CHF), peripheral arterial disease (PAD), hypertension, and myocardial infarction (MI).

Microvascular is the system of tiny blood vessels, including the capillaries, venules, and arterioles that perfuse the body’s tissues.  Microvascular diseases include, but are not limited to, retinopathy, nephropathy, neuropathy, gastroparesis, Alzheimer’s disease, skin conditions, and erectile dysfunction.

Diabetic retinopathy may be the most common microvascular complication of diabetes.  According to the Mayo Clinic diabetic retinopathy affects the eyes.  It is caused by damage to the retinal blood vessels of the “light-sensitive tissue at the back of the eye” or retina.  In patients with type 2 diabetes, retinopathy may begin to develop as early as 7 years before the diagnosis of diabetes.  However, anyone who has type 1 or type 2 diabetes can develop this condition.  At early onset, diabetic retinopathy manifests by mild vision problems.  Eventually, it can cause blindness.

Another microvascular complication caused by nerve damage is diabetic neuropathy.  This is another condition that develops slowly and may begin years before a person is finally diagnosed with diabetes.  About half the people with diabetes develop diabetic neuropathy.  High glucose levels causes chemical changes in nerves, if glucose levels remain high over a long period of time, there is permanent damage to the blood vessels that carry oxygen and nutrients to the nerves, causing neuropathy.  Most often, the damage of diabetic neuropathy involves the hands, legs and feet.  Initial symptoms include tingling or burning sensation, or a deep aching pain.  Because of this, a person may not notice when they stop on something sharp, or not know that they have a blister or small cut, or have touched something that is too cold or too hot.  This, coupled with a macrovascular complication of peripheral arterial disease, a condition that restricts the flow of blood to the extremities, can cause person with diabetic neuropathy to develop ulcers in the feet or hands that do not heal easily.  Diabetic ulcers can become infected and develop into gangrenous ulcers that lead to amputation.

VA evaluates diabetic peripheral neuropathy based on the nerve(s) involved.  For example, nerve damage can involve the peroneal nerve, sciatic nerve, or femoral nerve.  The common peroneal nerve is derived from the lumbar and sacral spine regions as a part of the sciatic nerve.  It then branches off down the extremities into the foot.  If the common peroneal nerve is damaged and the veteran has:

  • foot drop and,
  • slight droop of first phalanges (See diagram) of all toes, and,
  • not able to raise the foot from the ankle, and,
  • lost some movement of the toes, and,
  • decreased feeling over the top of the foot and toes

Then, the veteran may be entitled to the maximum rating of 40% for that category for each extremity that is affected.  If the damage is not as complete for a 40% rating, the veteran has to show that there is incomplete paralysis at three levels of severity:  severe, moderate or mild.  These terms have not been defined by the VA.  As such, the veteran needs to inform their treating physician of all symptoms associated with the neuropathy so that the physician can render an accurate determination of the severity of the condition.  As my colleague pointed out in her blog regarding peripheral neuropathy, the most import thing is for the veteran to be properly diagnosed for any condition associated with diabetes mellitus in order to receive the compensation they deserve.

Author Brenda Duplantis, Hill & Ponton, P.A. Disability Advocate

Gulf War Veterans and Chronic Fatigue Syndrome

Posted on by admin

About Chronic Fatigue Syndrome

Chronic Fatigue Syndrome (CFS) is a debilitating and complex disorder characterized by overwhelming fatigue that is not improved by bed rest and that may be worsened by physical or mental activity.  CFS may have both physical and psychiatric manifestations. For VA purposes, a diagnosis of CFS must meet both of the following criteria:

  1. New onset of debilitating fatigue that is severe enough to reduce or impair average daily activity below 50% of the patient’s pre-illness activity level for a period of 6 months, and;
  1. Other clinical conditions that may produce similar symptoms must be excluded by thorough evaluation, based on history, physical examination, and appropriate laboratory tests.

In addition to the above two criteria, a diagnosis of CFS must meet and describe six or more of the following ten criteria in detail:

  1. Acute onset of the condition
  2. Low grade fever
  3. Nonexudative pharyngitis
  4. Palpable or tender cervical or axillary lymph nodes
  5. Generalized muscle aches or weakness
  6. Fatigue lasting 24 hours or longer after exercise
  7. Headaches (of a type, severity, or patter that is different from headaches in the premorbid state).
  8. Migratory joint pains
  9. Neuropsychologic symptoms
  10. Sleep disturbance

As you can see, symptoms of CFS affect several body systems and veterans with CFS often function at a substantially lower level of activity than they were capable of before they became ill. There is no identifiable cause of CFS, and there are no tests to diagnose CFS. Additionally, CFS closely resembles neurasthenia, neurocirculatory asthenia, fibrositis, or fibromyalgia. Because of the complexity of the disease and its symptoms, veterans should make sure their doctors take the time to rule out other conditions.

Making a CFS Claim

All veterans who have served in Southwest Asia since August 2, 1990 are entitled to presumptive service connection for certain medically unexplained chronic multi-symptom illnesses such as CFS. The VA regulation on presumptive service connection for CFS can be found here. The regulation provides that if a veteran qualifies as a Persian Gulf War veteran and develops CFS (or another medically unexplained chronic illness), the veteran will be entitled to compensation benefits, so long as the condition first became manifest during the veteran’s active service in the Southwest Asia theater of operations, or became manifest to a degree of 10% or more since the veteran’s return from active duty in Southwest Asia.

The most challenging part of a CFS claim is usually proving that you have CFS. When submitting a claim for CFS, be sure to submit medical evidence stating that you have complained of your symptoms to a medical professional, sought treatment for it, and have a diagnosis of CFS. Special efforts and inquiries may be necessary when obtaining medical evidence in these types of claims because of the difficulties involved with determining whether or not a diagnosis has been established.

Lay evidence, such as buddy statements, take on great importance in claims for a medically unexplained chronic multi-symptom illness such as CFS. These statements should describe the veteran’s disability pattern and also describe the changes in the veteran’s appearance, physical abilities, and mental or emotional status. Additionally, it is important to gather evidence such as any time lost from work and any attempts to seek medical treatment for the disability pattern.

There is a relatively low threshold for requesting a VA medical exam for a CFS claim. For example, even if there is no medical evidence that the veteran has previously been treated for their disability pattern and the only significant evidence is the veteran’s own statement describing his problems, a VA examination is still warranted.

Evaluation of a CFS Claim

CFS is rated under diagnostic code 6354. The VA’s rating schedule for CFS describes the condition as “debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms which:

  • Wax and wane but result in period of incapacitation of at least one but less than two weeks total duration per year, or: symptoms controlled by continuous medication. – 10% rating assigned
  • Are nearly constant and restrict daily activities by less than 25% of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least two weeks but less than four weeks total duration per year. – 20% rating assigned
  • Are nearly constant and restrict daily activities to 50-75% of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least four weeks but less than six weeks total duration per year. – 40% rating assigned
  • Are nearly constant and restrict daily activities to less than 50% of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. – 60% rating assigned
  • Are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. – 100% rating assigned

If you have established service connection for your CFS claim and received a rating for it, don’t stop there. The VA often makes mistakes when assigning a rating to a service-connected condition so it is important to carefully review your rating decisions and rating code sheets to determine if the evaluation of your CFS was done correctly.

Author Anne Thorn, Hill & Ponton, P.A. Attorney

Evidence Blue Water Veterans Need to Prove a Current Disability for VA Benefits

Posted on by admin

If you are a Blue Water veteran who is hoping to be awarded service connection for a condition caused by Agent Orange exposure due to the expected changes to VA law, you need to be aware of some of the particularities of VA law which may have an effect on your claim.  The very first step in proving a claim for VA benefits may seem like an obvious one, but it is very important, and like many aspects of VA law, can often be complicated due to the nature of VA regulations. Today we are going to discuss the first element of service connection – existence of a current disability – and what evidence is needed to best support your claim.

The first distinction that is important to make is the VA compensation benefits are only available to veterans who have current disabilities, and a veteran is not eligible for benefits simply because he or she contracted a disease or was injured in service. Along those same lines, proving exposure to Agent Orange in the Vietnam War or to environmental hazards in the Persian Gulf War alone is not sufficient to receive benefits. The veteran must be able to prove that he or she has a current disability, or current disabling residuals, in order to be eligible for VA benefits.

One issue many veterans struggle with is that the VA will not typically pay benefits to veterans who have pain that is not attributable to any particular diagnosis (with the exception of veterans who are suffering from “Gulf War Syndrome”). For that reason, it is important to try and get a diagnosis from a doctor which encompasses all symptoms you are experiencing, including pain. But note, if a veteran is able to show competent evidence of persistent or recurrent pain, that may trigger that VA’s duty to assist by scheduling a C&P examination to determine whether a current disability exists. Therefore, even if you are unable to find a doctor who can offer a diagnosis, it is still important to provide the VA with evidence that you have been suffering from persistent and recurrent pain through medical records (VA or private) or even statements from friends or family members who have witnessed your pain.

It is important to remember that the VA requires “competent” evidence of the existence of a current disability. VA regulations define competent medical evidence as: “evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.” What this means is that the diagnosis of a current disability must almost always be made by a medical professional or some other person with specialized knowledge, education, experience, or training that would qualify them to give such diagnosis.

On their own, statements from friends or family members will almost never be considered medical evidence of a current disability, but as noted above, they may trigger the VA’s duty to assist by scheduling the veteran for a C&P examination. However, there are some situations in which a lay person (meaning a non-medical professional in this situation) is competent to diagnose a condition, for instance, varicose veins or a broken leg. In order for lay evidence of a medical diagnosis to be given any weight by the VA, the lay person must be competent to identify the medical condition (such as the appearance of varicose veins or a broken leg), the lay person must be reporting a contemporaneous medical diagnosis, and the lay statement must support a later diagnosis by a medical professional.

As you can see, although there are other ways to prove existence of a current disability, the best evidence is always going to be a medical diagnosis, but other evidence such as private or VA medical records of recent treatment or examinations, letters or written statements from physicians, or service medical records may be helpful in establishing existence of a current disability as well, and will certainly be necessary for establishing the other elements of service connection and later, arguing for the highest rating possible based on your symptoms.

Author Heather Staskiel, Hill & Ponton Attorney

Diabetes Mellitus II – How It Made It’s Way into the List of Presumptives

Posted on by admin

One of the most common manifestations of Agent Orange in Vietnam veterans is Type 2 diabetes, also referred to as Diabetes Mellitus. In fact, over 270,000 Vietnam veterans receive disability pay for Type 2 diabetes. This does not even include Vietnam veterans who are not receiving disability benefits for this condition. According to the VA, there are approximately 7.2 million Vietnam veterans in the US today. That means that barely 3.8% of the Vietnam veteran population today is receiving benefits for Type 2 Diabetes!

Type 2 Diabetes is the most common form of diabetes and used to be referred to as “adult-onset” diabetes because it is often diagnosed later in life. This condition is caused by the body’s inability to process sugar properly. When we eat, our metabolism converts the food into energy. The pancreas produces a hormone called insulin, which aids in the food conversion process. Insulin triggers the cells in the liver and in the muscle tissue to absorb sugar from the blood. If the body does not respond to insulin properly, the sugar cannot be used in the right way, causing the blood sugar levels to rise. The pancreas can compensate for this temporarily by producing more insulin. But before long the pancreas will not be able to keep up, and blood sugar levels will start to rise.

What makes Type 2 Diabetes different from Type 1 Diabetes is that, with Diabetes II, the pancreas produces a sufficient amount of insulin but the body has stopped responding to that particular hormone. This is what doctors refer to as “insulin resistance”. To treat this condition, doctors prescribe insulin tablets or injections, or other medications.

Type 2 Diabetes is prevalent not only just among veterans, but among a large portion of the US population. Research has identified many factors that contribute to diabetes, including:

  • Being overweight and not getting enough physical exercise
  • Smoking
  • A low-fiber, high-fat and sugary diet
  • Some medications that affect the body’s sugar metabolism
  • Genetic factors

Because Diabetes Mellitus II is a widespread issue among Americans, particularly in the older populations (65 and up), and because there are so many risk factors, the VA dragged their feet for years before finally adding Diabetes Mellitus II to the list of conditions that are presumed to be related to service. Having added Type 2 diabetes to the original list of conditions being considered in 1991, it was not until 1999 that the Institute of Medicine deemed it probable that veterans who were exposed to Agent Orange in Vietnam may have a higher risk of developing diabetes than if they had not been exposed to the herbicide in the first place.

The Institute of Medicine actually had a few good reasons for taking so long to make this determination. While present-day statistics make it blatantly obvious that Agent Orange was the cause of diabetes in Vietnam veterans today, this was not quite so obvious to the researchers in 1991 or even in 2000. In fact, the statistics then nowhere near supported this link. Consider the US population back in 1991. The Vietnam generation was still young. In 1991, an average Vietnam veteran who enlisted in 1970 (the middle of the Vietnam War) at the age of 20 would be 40 years old. On average, Type 2 diabetes is diagnosed at age 65 and older. So in 1991, there was no reference point to use as a study because very few Vietnam veterans at the time were old enough to be diagnosed with this condition in the first place. In 2000, the average Vietnam veteran would have been 50, which is still well below the typical age of diagnosis. In the 2000 report, the Institute of Medicine stated that “the Vietnam veteran cohort ha[d] only recently entered the age range with sufficient incidence for accurate study. Therefore, past studies of association between dioxin (Agent Orange) and diabetes have been hampered by the relatively low prevalence of diabetes and the even lower death rate attributed to it.”

Without an appropriate population to work with, the Institute of Medicine (IOM) had to go off of reports of herbicide-related diabetes in farming and herbicide manufacturing situations. The IOM also referenced an Air Force Health Study (Operation Ranch Hand) in 2000, a study of US chemical workers by the National Institute for Occupational Safety and Health, and a study of Australian veterans who served in Vietnam. With all of these studies considered together, the IOM stated that the “accumulation of positive evidence was suggestive” of an association between exposure to Agent Orange and a diagnosis of Type 2 diabetes.  This standard of limited/suggestive evidence of an association was sufficient for the VA to add Diabetes Mellitus to the list of presumptive conditions.

Today, the large number of Vietnam veterans who have Type 2 diabetes continues to reaffirm the VA’s decision to add this condition to the list. There may not be a cure for this disease, but the least that can be done is recompense the afflicted veterans for the service that caused the condition in the first place.

Author Mary Klements, Hill & Ponton, P.A. Claims Advocate

Veterans Health Administration’s Access to Care Initiative

Posted on by admin

In May 2014, former VA Secretary Shinseki directed the Veterans Health Administration (VHA) to complete a nation-wide Access Audit to ensure a full understanding of VA’s policy among scheduling staff, identify any inappropriate scheduling practices used by employees regarding Veteran preferences for appointment dates, and review waiting list management. The purpose of the initiative was to strengthen access to care in the VA system, while also ensuring flexibility to use private sector care when needed in accordance with VA guidelines.

As directed by the White House, the VHA identified Veterans across the VA who experience wait times that do not meet Veterans expectations for timeliness. The VA has begun contacting and scheduling these Veterans for care in VA clinics or arranging for care in the community, while simultaneously addressing the underlying issues that impede Veterans’ access to the VHA system.

In addition to the Access Audit process, the VA also gathered additional data from each VA medical facility. This data includes: number of appointments scheduled at each facility; number of requested appointments that are on each facility’s Electronic Wait List (EWL); number of newly enrolled patients who have not yet been scheduled to see a doctor at a VA facility; and Average Wait Times for Mental Health, Primary Care, and Specialty Care appointments at each facility, for both new and established patients. Continue reading “Veterans Health Administration’s Access to Care Initiative” →

Vaccinations and Gulf War Veterans

Posted on by admin

As standard protocol, the military routinely issued a series of inoculations against infectious diseases to all military traveling to the Middle East (to include yellow fever, typhoid, cholera, hepatitis B, meningitis, whooping cough, polio, and tetanus.)

Anthrax: About 150,000 troops were vaccinated with the Anthrax vaccine, which was a series of six shots administered to protect against the infectious bacterial used in biological warfare. Once inside the body, the spores replicate and produce three different proteins; it is the combination of these proteins that doctors believe cause tissue damage, shock, and death.

Botulinum toxoid (BT): About 8,000 troops were vaccinated with the BT vaccine to protect against exposure to extremely poisonous botulinum toxins. Most individuals experience only local side effects often associated with many types of vaccinations. These effects, primarily at the injection site, include local pain, tenderness, swelling, redness, and itching. Systemic reactions such as temporary fever, tiredness, headache, or muscle pain also can occur as well as development of a lump at the injection site that generally resolves within several weeks. Continue reading “Vaccinations and Gulf War Veterans” →