Here’s another interesting case from the U.S. Court of Appeals for Veterans Claims.
On August 5, 2014, the Court issued a decision in Boyd v. McDonald which explores whether the Board of Veterans Appeals may separately adjudicate claims that the Court viewed as inextricably intertwined.
What does inextricably intertwined mean and are my claims inextricably intertwined? The answer is actually simple: you have claims that are inextricably intertwined if you have two or more claims that the decision of one claim depends on the decision of another claim.
For example, suppose you are making a claim for service connection for an asbestos-related condition that was incurred in service and you are also making a claim for TDIU because you cannot work. If the VA denies your claim for service connection of the asbestos-related condition, your claim for TDIU is going to be denied too if you have no other basis for making that claim. So, your claims for service-connection and TDIU are “inextricably intertwined.”
In its decision, the Court says that the Board may decide your claims separately.
The Court also decided that the Board has the authority to issue separate decisions on your claims without providing advance notice that it would do so.
The take-away from this case is that a veteran and veterans advocates need to be aware of which claims are being decided by the Board and to monitor the implications those decision have with respect to other pending claims. In certain cases, separate decisions will have impact on your appeal deadlines so you’ll want to pay special attention if you disagree with the Board’s decisions.
Has the VA denied your claim citing “willful misconduct?” What does that mean and why won’t they pay your claim?
When the VA says that your injury was caused by your willful misconduct, they are saying that it involved an act of conscious wrongdoing or a known prohibited act. Fortunately, there is a presumption that any in-service injury or illness is not the result of willful misconduct. This means that if the VA is going to try to deny your claim, they must prove that it was, in fact, willful misconduct.
We often hear C&P thrown around by the Department of Veterans Affairs but what does it mean? C&P stands for compensation and pension.
VA Compensation is financial assistance for service-related disabilities. If you are seeking compensation benefits you do not need to be totally disabled or be poor. Generally speaking, the only thing you need to prove is that you incurred some sort of disability as a result of your military service.
VA Pension, however, is a need-based program. To be eligible for a VA pension, you must show that: (1) you had wartime service; (2) your wartime service concluded with an other than dishonorable discharge; (3) you are permanently and totally disabled; (4) you have a demonstrated financial need; (5) you have either 24 months of active duty service or the “full period for which [you were] called or ordered to active duty; and (6) you have active service that includes a total of ninety days during one or more periods of war or at least one day of wartime service that results in a discharge for a service-connected disability.
It’s been a few days since we’ve heard what VA executives have done to get a bonus, right?
The Augusta Chronicle is now reporting that between 2006 and 2008, Dr. Thomas Kiernan was awarded $10,000 in bonuses for service at the Charlie Norwood Veterans Affairs Medical Center. What did Dr. Kiernan do to merit such a lavish bonus? Perhaps it was finding a cure for a disease? No? Perhaps, improving services to you, our veterans? No. According to the Chronicle, Dr. Kiernan, VA chief of staff, was at the helm when the VA notified more than 10,000 veterans that they might have been exposed to improperly sterilized equipment.
No doubt that was just an off year, right? Well, in 2010, Dr. Luke Stapleton, Dr. Kiernan’s successor, was awarded a $5,000 bonus. For what? We’re not sure either but, again according to the Chronicle, Dr. Stapleton was at the helm when delays in endoscopy referrals was beginning to accumulate and three cancer-related deaths occurred the following year.
My friends, why are we, the American people, paying lavish bonuses to physicians who abdicate their responsibility? Why do we pay bonuses that most people don’t make over months and months of hard work to people who let you, our veterans, die?
If I’ve said it once, I’ve said it a million time: it’s time for a special prosecutor. We need to fulfill our promise to care for him who has borne the battle.
Today we are going to look at an introduction to making claims for service-connected Post Traumatic Stress Disorder. The regulations make it clear that there are three basic requirements. These requirements are:
- You must have a medical diagnosis of PTSD using the criteria set forth in the DSM-IV, which is a reference book that physicians and psychologists use to help them diagnose mental illnesses.
- You must prove a link between your current symptoms and an in-service stressor. A stressor event must be significant and is generally occurrences like witnessing death, threatened death, serious injury, or sexual violence.
- There must be credible evidence that the in-service stressor actually occurred.
If your PTSD was diagnosed while you were still in the service, your claim for compensation will be much stronger. Specifically, your lay testimony alone may establish that the stressor-event (either a general significant stressor, combat, prisoner of war, or exposure to certain terrorist activity) actually occurred if you were diagnosed in-service and the stressor is related to the service unless the VA can prove by “clear and convincing evidence” that the stressor-event did not occur.
I think it’s pretty safe to say that proving PTSD claims is very difficult given these requirements. Often times, the two major barriers are going to be proving the link between the stressor and your current symptoms and that the stressor actually occurred. Good luck!
Special Monthly Compensation (SMC) is available to compensate you for your loss of use of an anatomical part. The basic level SMC compensates you for such losses as:
- Creative organs
- Loss of a foot
- Loss of a hand
- Loss of both of your buttocks
- Blindness of an eye
- Organic aphonia with constant inability to communicate by speech
- 25% or more anatomical loss of tissue from a single breast or has received radiation treatment of breast tissue
SMC is on top of your regular disability payment. As of July 2014, the VA awards an additional $99 per month of each condition listed above but you are limited to $4,667 per month. There are also higher SMC levels which compensate you for:
- You can obtain monthly compensation of $3,327 for loss of or loss of use of: (1) both feet; (2) one hand and one foot; (3) blindness in both eyes, with 5/200 visual acuity or less; (4) permanently bedridden and in need of regular aid and attendance
- You can obtain monthly compensation of $3,671 for loss of or loss of use of: (1) both hands; (2) both legs with factors preventing natural knee action with a protheses; (3) one arm and one leg with factors preventing natural elbow and knee action with a protheses; (4) blindness in both eyes having only light perception; or (5) blindness in both eyes, rendering the veteran in need of regular aid and attendance.
- You can obtain monthly compensation of $4,176 for loss of or loss of use of: (1) both arms with factors preventing natural elbow action with prosthesis in place; (2) both legs with factors that prevent the use of prosthetic appliances; (3) loss of one arm and one leg with factors that prevent the use of prosthetic appliances; (4) loss of both eyes or blindness without light perception.
Today we are going to continue our discussion about TDIU and multiple disabilities.
You’ll remember that we talked about the fact that the VA will not take into account your non-service-connected disabilities when it is evaluating your TDIU claim. This, in fact, is specifically stated in the VA regulations:
It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.
In order for the VA to properly make a decision on your claim, the VA must provide a clear explanation as to what is believes your unemployability status is relative to the service and non-service-connected disabilities. This means that the VA has to explain why your service-connected disability does or does not disable you from substantial employment independent of your non-service-connected disabilities. This can often be very difficult to explain “clearly,” which is required. Many times, the VA will refer you to an VA doctor for a medical opinion. The purpose of the examination or review will be for the doctor to offer some opinion as to the degree of disability that is related to your service-connected disability.
Therefore, if you have a TDIU claim that has been denied, you should take a careful look at all of the reasons and bases for the denial. Specifically, look at the VA examiner’s opinion to see why the VA is taking its position. If it doesn’t make any sense, that type of denial may not stand up on appeal.
A Total Disability Based on Unemployability of the Individual (TDIU) claim is a claim that you submit when you are not 100% disabled under the VA rating schedule but you are unable to maintain substantial gainful employment.
There are two major requirements for making a successful TDIU claim. The first requirement is a threshold service-connected disability rating. The second requirement is that you are unable to “secure or follow substantial gainful occupation.”
Under the first requirement, you must show either that:
- If you have only one service-connected disability, your disability can be rated at 60% or more; OR
- If you have multiple service-connected disabilities, at least one of your disabilities can be rated at 40% or more and the remainder of your disabilities brings the combined disability rating to 70% or more.
The examination of the second requirement of whether you are capable of “substantial gainful occupation” boils down the VA investigating whether you are capable of working an occupation that provides you with an income that exceeds the poverty threshold irrespective of the number of hours or days that you actually work.
The easy part of bringing a TDIU claim really seems to be calculating the minimum thresholds for the disability ratings. The second half of presenting this type of claim is where things get downright unfair. If you are unable to work, the VA can try to avoid granting you TDIU by stating that you are capable of performing some other “type” of work even if that work is not available in your community. Of course, this is really convenient since the VA has no obligation to consider the availability of work in your community. On the other hand, if you do find some marginal employment, the VA can use that as proof that you are capable of working.
Needless to say, TDIU claims are tricky. Proceed carefully!
Mulder v. Gibson (No. 12-1222)
Welcome back after our weeklong holiday! Today we will begin looking at recent decisions from the U.S. Court of Appeals for Veterans Claims (CAVC). The CAVC is the federal appeals court that decides cases that are appealed from the Board of Veterans Appeals (BVA). Our summaries of court decisions are meant to give you the essential information about the decision. If you’d like to read the entire decision, here is the link.
In this case, Mr. Mulder had been issued a 50% disability rating in April 1998. In May 2006, he pled “no contest” to a felony charge and was placed into the custody of the Milwaukee County Sheriff’s Department. In June 2006, he was then sentenced; interestingly, he was sentenced various times after those sentences were vacated for various reasons. The VA then reduced Mr. Mulder’s benefit payments in July 2006, which was 60 days after the date of his incarceration.
The Veterans regulations state that “[a]ny person … who is incarcerated in a Federal State, or local penal institution in excess of 60 days for conviction of a felony will not be paid compensation … beginning on the 61st day of incarceration.” 38 C.F.R. 3.665(a). The dispute in the case pertained to the issue of when a person is actually “incarcerated … for [a] conviction of a felony.” The veteran argued that this regulation did not apply until his sentencing was complete because under Wisconsin state law, the state did not consider him convicted of a felony until he was properly sentenced.
The Court provided a lengthy legal analysis which can be summed up into four basic elements that must be met prior to the VA stopping benefits under this provision: (1) the veteran must be jailed; (2) for a period over 60 days; (3) the veteran must actually be convicted; and (4) and the conviction must be for a felony.
Here is the take away from this case: if you get convicted of a felony and you’re in jail for longer than 60 days, your benefits are going to stop.
The Regional Office has denied your claim and either you decided to forego a Decision Review Officer review or the DRO denied your claim also. In response to your claim being denied, you filed your Notice of Disagreement and the VA mailed you a Statement of the Case. You have read the VA’s Statement of the Case and you still disagree with their decision. Now what?
You need to file your VA Form 9, which can be located here.
You need to first know that there is a limit on how much time that you will have to submit your appeal. The law changes frequently so be sure to check in with your representative as quickly as possible so that you don’t miss that deadline. Right now though, there are three ways to figure out how much time you have to submit your appeal. You get to pick the way that provides you with the most time. They are:
- One year from the day the VA office mailed you the notice of the decision that you are appealing.
- Sixty days from the day that the VA mailed you its Statement of the Case.
- Sixty days after receiving a Supplemental Statement of the Case when that SSOC was provided to you after you submitted additional evidence within the one-year period described above.
It’s important to note that the time does not begin to run from when you receive the notice; it begins to run from when the VA mailed you the decision.
The Form 9 will ask you to answer some important questions. You will be asked to identify the issues that you want to appeal and the reason for your disagreement. This is important and often requires the help of an accredited attorney or claim agent. Given how long it has taken to get to this point, there’s no reason not to involve a professional to help.