Solutions to Common VA Errors when Rendering Disability ...

Presented By: Amanda L. Mineer

Solutions to Common VA Errors when Rendering Disability Compensation

Decisions

TODAY’S COVERAGE

1. 7 Common errors VLG sees in VA decisions2. Real life scenarios we have dealt with3. Applicable law4. How we handle them5. Q&A

INFORMATION:

Q&A:

Ask questions during class OR afterto [email protected]

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Error #1

VA Rejects Notice of Disagreement because it was received a few

days late.

Error #1 - VA Rejects Notice of Disagreement because it was received a few days late.

Scenario:

1. Rating Decision dated November 18, 20092. Veteran sent NOD which was dated November 17,

2010 and stamped received by the VA on November 22, 2010.

3. December 2010, VA sent letter to the veteran saying NOD was not timely filed and they were considering the NOD new claim

4. The new claim increased PTSD 30% to 70% + TDIU


Applicable Law: § 20.305(b) Computation of time limit for filing.

In computing the time limit for filing a written document,

• the first day of the specified period will be excluded and the last day included.

• Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation.


Applicable Law: 38 CFR § 20.305(b). Computation of time limit for filing.

In our Scenario: NOD must be filed/postmarked by: November 19, 2010, unless that falls on a weekend. This was a Friday so let’s look at 20.305(a)


Applicable Law: § 20.305(a) Computation of time limit for filing.

Acceptance of postmark date. When these Rules require that any written document be filed within a specified period of time:• a response postmarked prior to expiration of the applicable

time limit will be accepted as having been timely filed.• In the event that the postmark is not of record, the postmark

date will be presumed to be five days prior to the date of receipt of the document by the VA.

• In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded.


In our Scenario: There was no postmark of record; therefore NOD must be presumed to have been 5 days prior to November 22, 2010, excluding weekends and holidays.

November 22, 2010 was a Monday, so presumption = mailed on November 15, 2010.


Result: Discovered this issue while preparing for a Board hearing.

Board determined NOD was timely filed and therefore SOC was never issued; case remanded to RO to consider severity of his PTSD back an additional 2.5 years (30% to 70% + PTSD).

Error #2 VA denies Service Connection

for Lack of Diagnosis

Error #2 - VA denies Service Connection for Lack of Diagnosis

Scenario:

1. Veterans filed a claim for s/c for PTSD

2. C&P examiner says no diagnosis of PTSD, but diagnoses Bipolar disorder

3. VA denies s/c for PTSD for lack of PTSD diagnosis


Applicable Law:

“For purposes of the claim and its adjudication, it matters little that the appellant believes his symptoms should be diagnosed as PTSD if the medical evidence establishes that his symptoms are actually something different. And, the fact that the appellant may be wrong about the nature of his condition does not relieve the Secretary of his duty to properly adjudicate the claim.”

Clemons v. Shinseki, 23 Vet.App. 1, 8 (2009)


What SHOULD the VA done?

• Rater should have requested a medical opinion of the C&P examiner as to the etiology of the Bipolar Disorder

• Did the veteran have symptoms of Bipolar while in service or within one year of service?


Result:

• VA requested a new exam (remember new DBQ for bipolar v. PTSD).

• Examiner opined “more likely than not, his symptoms in service were early onset of bipolar”.

• Examiner’s will not always volunteer opinions not asked for, especially QTC etc.

Error #3VA NOT complying with Remand

Instructions (Stegall Violation)

Error #3 – VA NOT complying with Remand Instructions (Stegall Violation)

Scenario:1. Veteran was denied a claim for service connection

for TDIU based upon PTSD.

2. Board remanded the claim for an exam with a vocational expert

3. VA arranged for an examination with a psychiatrist.

4. VA denied TDIU claim


Applicable Law:

CAVC made clear that a claimant has a fundamental right to compliance with a prior court or Board remand order.

Stegall v. West, 11 Vet.App. 268 (1998)


Result:

• Stegall Violation was brought up to the VA after issuance of an SSOC:

• We provided a vocational expert opinion

• VA Granted TDIU claim


What would have likely happened had the Stegall violation argument not been made

to the RO?

Error #4VA’s failure to consider cumulative

effects of all service connected disabilities in denying TDIU

Error #4 – VA’s failure to consider cumulative effects of all s/c disabilities in denying TDIU

Scenario:

1. Veteran is service connected for low back, both knees

2. VA denies TDIU indicating his low back doesn’t effect his ability to work, he could work sedentary job where he didn’t have to stand for too long


Applicable Law:

It is not enough for the Board to acknowledge each of the service-connected disabilities and their effect on employment.

The Board must consider, separately, the cumulative functional effect of the disabilities.

Floore v. Shinseki, 26 Vet.App. 376 (2013)


Result: This case was argued at the Board

• Board had to consider that due to his back the veteran could not stand or walk for more than 10 minutes at a time

• Veteran gave testimony that sitting for long periods without elevating legs made his knees swell and sitting while elevating made his back worse.

• If veteran can’t sit for very long or stand for very long, sedentary employment not feasible.

• TDIU granted

Error #5VA’s failure to consider TDIU because veteran didn’t “meet

requirements”

Error #5 – VA’s failure to consider TDIU because veteran didn’t “meet requirements”

Scenario:

1. Veteran is service connected at 50% overall for migraines only.

2. Veteran applied for TDIU but was denied as he didn’t meet the qualifications


Applicable Law: 38 CFR 3.16(a)

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:


Applicable Law: 38 CFR 3.16(a)

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.


Applicable Law: 38 CFR 3.16(b)

It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.


Applicable Law: 38 CFR 3.16(b)

Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section.

• The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

https://www.law.cornell.edu/cfr/text/38/4.16#a


Result: Before a DRO

• Veteran had kept a log of his migraines on frequency as well as severity over a period of 3 months at the direction of his doctor.

• Doctor wrote a letter indicating he had been unable to maintain a job due to his frequency and severity of migraines

• We submitted argument that he should be considered for extraschedular TDIU


Result: Before a DRO

• DRO submitted it to the Director of Comp & Pen arguing veteran should not be granted extra-schedular TDIU

• Director of Comp & Pen agreed rendering a negative decision

• Case appealed up to the Board. Board granted TDIU extra-schedular


Yes, sometimes you just have to take the case up on appeal

Error #6 Inaccurate effective dates for an

increased rating

Error #6 – Inaccurate effective dates of increase

Scenario:

1. Veteran was granted 50% for PTSD and filed an appeal

2. New examination (Independent Medical Exam) supported 70% opinion and indicated that level of severity was there back to date of original claim.

3. DRO granted 70%, but only effective as of the date of the new exam.


Applicable Law: McGrath v. Gober, 14 Vet.App. 28 (2000)

Effective dates are determined by the later date of two events:

1. the filing date of the claim, and 2. the date when the disability manifested or arose, and

(for claims for increased ratings, like the present claim), the date when the disability increased.

On the second, a VA adjudicator must base his/her finding on the medical evidence.


Applicable Law: McGrath v. Gober, 14 Vet.App. 28 (2000)

• McGrath court made clear that, in assigning an effective, the date of the submission or preparation of the medical evidence is irrelevant.

• Rather, the relevant date is the date the physician or other medical health practitioner opines in the report or record when the disability arose or increased.


Result:

1. McGrath was brought to the attention of the DRO

2. PTSD at 70% plus TDIU (we’ll get to that next) effective as of the date of claim

3. IMPORTANT: The evidence supported the severity of symptoms back to date of claim because the doctor indicated that.

Error #7Inaccurate effective dates of TDIU

Error #7 – Inaccurate effective dates of TDIU

Scenario:

1. Veteran is service connected at overall of 70% for PTSD due to MST

2. Veteran then files for TDIU

3. TDIU is granted effective as of the date of TDIU application.


Applicable Law: Rice v. Shinseki, 22 Vet.App. 447 (2009)

• Court made explicitly clear that TDIU requests should be considered theories or issues in support of a 100% disability award for the underlying disability claims

• This means that “a veteran may, at any time, independently assert entitlement to TDIU based on an existing service-connected disability.”


Applicable Law: Rice v. Shinseki, 22 Vet.App. 447 (2009)

• TDIU is NOT a separate claim, but a theory to support 100% when evidence doesn’t meet statutory requirement for that disability

• Because TDIU is not a separate claim, the date in which the veteran submits a 8940 is irrelevant (unless no other claims pending)


Result:

1. TDIU was granted as of the date of the 70% for PTSD

2. Note, the PTSD claim has to be still open or within the appeals period.

3. If PTSD at 70% was granted 5 years ago and never appealed, the effective date of the TDIU will be the date of application.


Practice Pointer:

1. If veteran is going to file for TDIU, keep open the case for his/her underlying issued (i.e. PTSD, back etc.) even if you don’t think they meet requirements for higher rating.

2. That will hold the effective date for TDIU to date of underlying claim.

3. If you let underlying claim close, can’t go back to that effective date.

Q&A

FURTHER QUESTIONS:Case Specific Questions (for VSO):

Mark R. Lippman ([email protected])Amanda L. Mineer ([email protected])

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