- Common VA mistakes: TDIU / VA Unemployability
- Common VA mistakes: Orthopedic Claims
- Common VA mistakes: VA Exams (C&P Exams)
- Common VA mistakes: Effective Dates
- Audience Question: multiple conditions rated 10%
- Audience Question: How do I get a copy of my C&P exam notes?
- Common VA mistakes: Mental Health Claims
- Solutions for VA considering age or non-service-connected-conditions, or NOT considering marginal employment
- Solutions for VA only considering objective range of motion in orthopedic claims
- Entitlement to separate ratings
- Solutions for VA exam (C&P exam) errors
- Does there have to be medical treatment in service to get service connection?
- Solutions for effective date errors on TDIU claims or increased rating claims
- Solutions for VA not giving a rationale in medical opinion
- Solutions for mental health errors or requiring a stressor for non-PTSD conditions
Robert Chisholm: Good afternoon. Welcome to CCK Live, Facebook Live. Today we’re talking about the top five VA errors. My name is Robert Chisholm, with me is Jenna Zellmer and Nick Briggs. We’re going to talk about the top five VA errors. If you have any questions during this presentation, please reach out to us on Facebook Live, we’ll try and answer them the best of our ability. By the way VA commits more than five errors, but we thought we would start with these top five.
Nick Briggs: These are broad categories themselves.
Jenna Zellmer: Yes, I think they’re definitely more than five. There are five categories of errors.
Robert: So let’s jump into the first category and the first one, and I think it would be my top one. We kind of debated what the top five but this would definitely be my top one, and it’s TDIU errors. So Jenna, do you want to sort of hit what TDIU is and talk to us a little bit about how VA makes mistakes in that area?
Jenna: Yes. Thanks Robert. So TDIU stands for Total Disability do the Individual Unemployability. VA awards TDIU to veterans who can demonstrate that their service-connected disabilities prevent them from obtaining or maintaining substantially gainful employment. Essentially, what we usually say is that if your service-connected disabilities prevent you from working, you can be entitled to TDIU. There are some nuances within that term substantially gainful employment which VA gets wrong a lot.
So, the first error that we see a lot of is VA considering factors that they are not supposed to consider when they make that determination. So for example, if VA considers a veteran’s age, say that the veteran is 65, and retired because they had reached the age of 65, the VA would say, “Oh, well, you retired because of your age, you’re no longer working because you’re 65. We’re not going to grant you as TDIU because it’s not due to your service-connected of disabilities.” But VA isn’t supposed to consider that in their determination. They’re supposed to ignore the age, ignore any reason why the veteran retired, and just focus on kind of in a vacuum. If those were– if the only thing was the service-connected disabilities with those prevents veteran from working.
Robert: So, can I just sort of ask a hypothetical? Let’s suppose I were a 90-year-old World War II Veteran, I retired say at age 68. But now my back condition that’s related to service prevents me from working. Would that veteran then be eligible to apply for TDIU even though he’s 90 years old?
Jenna: Yes. So if service-connected disability would prevent you from conducting the requirements of a job, so if the back prevented you from working and prevented you from going in on a route liable basis, bending, lifting, all sorts of things that are limitations of your service-connected disability, then yes, regardless of your age, regardless of when or why you were retired, you can be entitled to TDIU.
Nick: That’s a good example to give because that’s often how they obscure the fact that they’re considering age. They’ll say that the veteran retired 30 years ago and use that to imply that they can’t work for that reason, when in fact they’re considering something they shouldn’t be considering.
Robert: Are there other factors that VA will consider that they’re not supposed to consider in TDIU cases, Nick?
Nick: So one of the most common ones is non service-connected disabilities. So a veteran might be service-connected for PTSD but they have a non service-connected back condition. VA will turn around and say, “Well, no. You’re actually unable to work due to the back condition.” But this is another one of those things where the regulations say consider service-connected disabilities only, so they essentially commit error by considering these conditions that aren’t related to service.
Robert: So theoretically, someone could have a bad condition that’s not related to service that prevents them from working, and have a separate, let’s say in this example, you’re talking about a psychiatric condition that is related to service, and that prevents them from working then they’re entitled to TDIU.
Nick: Yes. In that specific case, they’re entirely different types of impairment. We’re talking the difference between exertional and not exertional limitations. Then even still there might be a situation where service-connected disability and a non service-connected disability have overlapping limitations. In that situation, the court has said basically, that you need to attribute all of those limitations to the service-connected condition. So it’s always something to be on the lookout for.
Robert: So that last one is tricky. So let’s get an example of a condition where the veteran has two conditions and they can’t sort it out. Can you give an example of that?
Nick: Sure, so a veteran might have service-connected back disability with bilateral lower extremity radiculopathy. They might also have non service-connected diabetes and lower extremity peripheral neuropathy. In that case, they have two separate sets of conditions that affect their lives in different ways, but ultimately they’re going to have the same type of impact affecting the veterans ability to walk, to stand, so on and so forth. But in that case, VA really isn’t going to be able to parse those impairments out. So they’re only supposed to attribute those impairments to the service-connected condition.
Robert: So, remembering a case I handled a number of years ago, where the veteran had a non service-connected dementia but was also service-connected for post-traumatic stress disorder, and VA attributed all his symptoms for the TDIU analysis to the dementia. The psychiatrist said, “I can’t split out what’s related to PTSD and what’s related to dementia.” After a couple of rounds in a court, we’re ultimately able to get that veteran the TDIU award. So those kinds of examples happen more frequently than one would imagine.
Robert: All right. So the next group of errors, Nick is– and by the way, we’re going to go back and go through some recommendations of how do we address each of these errors. But we’re going to go through the common ones first, the top five ones. So Nick, next stop is orthopedic errors. Do you want to talk a little bit about that?
Nick: Sure. So one of the most common things that we see when it comes to orthopedic disabilities is the fact that that rating criteria generally revolves specifically around a range of motion measurements. So if a veteran has a back disability or knee disability, they’re only going to be rating the disability according to whatever their range of motion is measured to be at the time of the VA exam. But other regulations tell them that they’re specifically supposed to consider not only the range of motion measurements but also all of the specific impairments that the disability causes, in terms of how it affects their ability to bend, push and pull items, things like that. So, yes.
Robert: Okay. Do you have anything to add on that, Jenna?
Jenna: No, I mean I think that Nick really covered it, in addition to the objective range of motion. The theory there is really that a veteran can bend to a certain degree, maybe in an objective clinical environment where the examiner is watching them or helping them bend. But in their everyday life, they might experience flare-ups, their pain might begin far earlier than where they can actually bend. So those are all types of things that VA needs to consider and they often don’t. They only kind of look at the objective numbers and not consider the whole disability picture and how this would translate to veterans everyday life.
Robert: Okay. Again, this is CCK, and we’re talking today about the top five VA errors. If you want to reach out to us with any questions, please feel free to do so on Facebook. All right, number three. I feel like for the last 30 years I’ve been dealing with number three. VA exam errors. There’s a lot of case law on this but Jenna wants to tell us in general terms, what we’re talking about when we’re talking about the VA examination errors.
Jenna: Yes, so this is actually a good transition from our previous group of errors, which is about how I mentioned the Board has to or the VA has to consider not just objective range of motion error– measurements. So one of the biggest errors is when a VA examiner is only conducting those objective range of motion measurements and not eliciting more information from the veteran about how his back disability for example, or really any orthopedic disability affects him in his everyday life. So in addition to just using I think it’s called a going to meter, it’s like a– it’s a tool that they use to measure a range of motion instead of just using that the examiners are actually supposed to get more information from the veteran, either in his life statements, or by repetitive motion testing, to make sure that there is a complete picture of the veterans true functional loss. So that’s a big one in orthopedic disability claims. The exams are often missing really important vital information that the VA needs in order to properly rate for a veteran.
Robert: Any other thoughts for you on that part, Nick?
Nick: She mentioned near the end the orthopedic examiner’s failure to consider lay evidence, regarding the orthopedic disability specifically, but that’s a pretty broad category. The VA examiner’s failure to consider lay evidence is something that you’ll see in almost every type of examination. Oftentimes, a veteran might treat for disability and service, but because they didn’t treat for many years thereafter. The VA examiner might say that because they didn’t receive medical treatment for the condition. It’s not related to service, it’s a relatively new disability. But the veteran might have said, “No, I’ve actually had back pain for 30 years, I just never sought treatment for it.” They need to consider that information and oftentimes they don’t.
Jenna: That happens a lot. I think a lot of veterans tend to stack it up if you will or just self treats, and so a lot of veterans are missing treatment records for a number of years, but that doesn’t mean that they weren’t experiencing that pain.
Robert: Okay. The next general topic is about effective date errors. We’re talking about effective dates, we’re talking about the date that the VA starts paying a veteran once they award benefits. The general rule is that the date of the application for benefits governs the date that the VA will start paying, but how– what kind of errors do we see when VA signs an effective date?
Jenna: Yes so, I think you mentioned the general rule about effective dates. I think we have an entire Facebook Live that kind of delves into all of the nuances about effective dates can be a little bit tricky but, the biggest error I think we see is going back to TDIU. So as I mentioned TDIU is awarded when a veteran can no longer work to his service due to his service-connected disability. So often what will happen is a veteran will file for TDIU in conjunction with an increased rating claim. But VA will make an error because it’ll treat that requests for TDIU as a new claim, rather than as a part of the original increase rating claim. So when they assign TDIU, they’ll assign it just on the date that the veteran request TDIU and VA often requires a form called the VA Form 21-8940, and so the day that VA receives that form is generally the day that VA is going to assign that date, and that’s not necessarily the right date.
Robert: All right, so let’s try an example here, and we do have a question from Lexa and we’ll get to that in one second but I’d like to give a hypothetical here. So let’s say that a veteran file the service connection claim for a back condition, and it took the VA long time to get service-connected awarded. Let’s say he files in 2014, and in 2016 the VA rates it, but they don’t award TDIU. In 2016 the veteran says, “Look, you gave me a 60% rating for my back condition but I can’t work and I haven’t been able to work since I first filed my claim.” What would VA typically do in that situation, if the 8940, the form you were just talking about was filed in 2016, but the claim data back to 2014?
Jenna: It was an ongoing claim, okay?
Robert: It was an ongoing claim.
Jenna: Okay. There are a lot of data in there, I just trying to keep an eye on it. So VA should theoretically look at all of the evidence, going back all the way to that initial claim for service connection, and determine when the veterans now service-connected back disability prevented him from working. So if he filed that back claim a—
Jenna: –2014, and he wasn’t working as of 2014, and he says it’s because of his back, there should get it all the way back to 2014.
Robert: But the problem is they generally awarding it only effective to date the application is filed, the 8940 form.
Robert: Okay, we have a question from Lexa, “Would it be a VA error if they looked at my rating for left ankle, left hip and left knee each being at 10%, but it’s labeled as one medical issue? How would you prove this as an error?”
Jenna: So it’s unclear– The first thing that comes to mind when I read this question is what is if he’s only getting one 10% for those three disabilities. There is a VA rule that if you have multiple disabilities that are not compensable, you can get a 10% just because VA recognizes that you have all these service-connected disabilities that otherwise wouldn’t meet the criteria to have a compensable rating. So that might be what’s going on. Do you have any thoughts?
Robert: So I wasn’t clear, and that was my initial thought was at three zeros that N equals ten. But if each one of those conditions is separately service-connected at 10%?
Jenna: Then I wonder if it’s all due to the same kind of incorrect occurrence and service. Maybe that’s what they would happen when VA said, it was all due to the same underlying medical issue. Do you have any thoughts?
Nick: Yes, I mean, it’s going to depend on the situation. I think if they really are each assigned a 0% rating and they’re combined to 10% because you have multiple non-compensable ratings. One thing would– one good idea would be to look into raising 4.59 assigning a 10% rating based off of pain and each one of those joints. That’s a way to demonstrate to the regional office that they might have committed an error if they really did just give you the 10% rating. They’re really not supposed to lump different joints, different areas of the body all into one place like that.
Jenna: I would encourage you to reach out to either a service organization or an attorney and have them kind of look at the rating decision and kind of figure out, and we need to have a little bit more facts before we know really whether or not the VA error in that case.
Robert: Before we go on to error number five, Phillip’s asking, “The hope of contesting of poor competent pain exam or C&P exam, what’s the most efficient method for obtaining the C&P exam notes that were performed by a government contractor?” So you are entitled to ask for a copy of the exam. That VA is required by law to give you a copy of that if you request it.
Jenna: If you request it.
Robert: Now, they don’t have to turn it over to you unless you ask for it. Now, when you say notes, I’m assuming you mean the report. But you may also mean what did the doctor literally write down. I don’t know whether or not you’re entitled to those notes or not, you can certainly ask for them and explain that during the exam, the doctor wrote notes down and you want not only the report, but the notes typically the doctor will say, “My notes are incorporated in the report.” Though, as a practical matter.
Nick: You also specifically mentioned the fact that it was an outside contractor examination. One thing to keep in mind there is that it often takes a longer period of time for the VA to get a copy of that exam back. Whereas they might have an in house one within a few weeks, it might take a few months to get a complete copy of that report. So if and when you do request your exam, make sure to keep following up so that they do send it to you.
Robert: That’s a really good point.
Robert: Okay, the last sort of general area of top five VA errors is psych condition errors. Who wants to tackle this one?
Jenna: So I’ll start and I think you can– Yes, this is a tough one. So VA’s rating schedule for assigning radiance for psychiatric disabilities is pretty broad. It’s very vague. It has a lot of different types of symptoms and each level of disability. So a big thing that we see when VA is assigning a rating for PTSD for example, or depression or anxiety, is that they either add qualifiers to some other symptoms that are in those codes. For example they’ll say, they’ll recognize that the veteran has suicidal ideation, which would potentially entitle a veteran to a 70% rating, assuming suicidal ideation comes with a certain level of impairment. But they’ll say, “Even though he has suicidal ideation, he only has it once every couple of weeks. Or even though he has suicidal ideation, he’s never expressed an intent to act on it.” Those sorts of qualifiers are in the reading schedule. The reading schedule just says, “Generally, if a veteran has X, Y and Z symptoms and one of them is suicidal ideation, and that results in occupational and social impairment raising to a certain level of deficiencies in most areas then, that’s going to be enough to get a 70% rating.” So if everything, if all else being equal and then the VA says, “Well, he doesn’t have active suicidal ideation, so we’re not going to grant him that 70%.” That’s an error. Do you want to take the kind of other side of the coin there?
Nick: Yes, so another common example we see is them ignoring qualifiers that the regulation does include. So the most common example is the idea of the ability to establish and maintain relationships. But the regulatory criteria specifically say maintain effective relationships. So VA will often say, “Well, the veterans been married for 30 years and has two children whom he speaks with.” But does that mean that the relationships are necessarily effective now? They might have problems, they might have stuck it out, regardless of any issues that they have at home, and VA needs to consider that information. It’s not enough that they have these stable long term relationships that they’ve just wouldn’t end necessarily.
Jenna: Yes. Especially familiar relationships. There hasn’t been a presidential decision on this but the court has, from time to time made it clear that family relationships aren’t necessarily evidence that the veteran is able to maintain a relationship. It’s more evidence that the family member is willing to support and stick by this veteran, regardless of their inability to kind of properly relate to people.
Robert: So one of the other things that seems to happen is the VA in awarding service connection, or I should say adjudicating service connection claims will raise the bar for claims that aren’t post-traumatic stress disorder. For post-traumatic stress disorder, you generally need to show evidence of a stressful event. Have under certain criteria, outside evidence, not just a veterans lay statement. Sometimes for service-connected psychiatric conditions, VA imposes that on other psychiatric conditions, for example depression. That’s another area that we seem to see all too frequently.
Nick: Part of the problem there is the ubiquity of PTSD. Oftentimes, it’s the one form of a mental health diagnosis that our veterans are familiar with. So they claim PTSD not knowing that they might have an anxiety disorder, depression or something else. Oftentimes, VA will deny a PTSD claim and ignore the fact that the veteran has a mental health disability that is related to service. That’s something that they’re not supposed to do either.
Robert: Okay, let’s go back through the five general areas and come up with some solutions to these common errors that we see. So first of all with respect to TDIU, if someone’s reading any rating decision that mentions age, what should they do?
Nick: At the end of the day, you’re going to want to point out the fact that they can’t consider age. Same thing.
Jenna: Yes, there’s a case called Pratt, I believe it’s the Derwinski, and that is one of the cases that kind of set out that these are irrelevant factors that the Board or VA is not supposed to consider. VA also has internal guidelines that direct VA employees not to consider these, but everybody makes mistakes, so that’s why we’re here.
Robert: Okay. Similarly a VA is considering non service-connected disabilities as the reason to deny a TDIU claim?
Nick: That’s Pratt as well, and it’s sort of a good catch-all for any extraneous factors that VA is not supposed to consider.
Robert: Generally speaking, if you’re awarded TDIU, you’re not working, but there are some circumstances under which you can work and still be awarded TDIU. An example of that is marginal employment less than the poverty threshold. If VA doesn’t consider the fact that you’re making say, $8,000 a year as opposed to $25,000 a year, what’s the remedy there?
Jenna: So yes, VA will often say that when I was mentioning it before I mentioned there is some nuance in the term substantial gain full employment. So just because a veteran is working doesn’t necessarily mean they can’t get TDIU, but VA will often stop the analysis right there and they’ll say, “Well, the veteran is working, so we’re just going to deny it out, right.” So if VA does that but you know that you’re making below the poverty line, you can obtain your earnings statements from the Social Security Administration. You can also submit tax information, anything that would demonstrate to VA that you’re actually not making above the poverty line.
Robert: Great. Okay. Next general topic of errors was orthopedic claim errors. We talked about only looking at objective range of motion. What is the solution here?
Nick: The easy answer here is lay statements, both from the veteran himself or herself and their family members. One, the veterans, the most competent person to testify to how their pain affects them on a day to day basis, and then their family members can also witness these things. That corroborating evidence can go a long way and showing VA that their disability is more severe than the range of motion that actually reflects.
Jenna: I think Philip actually anticipated this.
Robert: Because he did as well.
Jenna: Because another option in conjunction with somebody less immense to obtain a copy of your exam. That way you know exactly what the examiner said, and you can point out any complain errors that the examiner got a fact wrong, or the examiner accidentally transcribed and number wrong things like that. You remember, you told the examiner X and they actually wrote Y that’s a great way to make sure that anything you told the examiner is accurately portrayed.
Robert: What if I have a bad condition and I got pain running down my leg radiculopathy, and the VA only rates the bad condition but not the radiculopathy, what happens in that circumstance?
Nick: Sure, you’re entitled to a separate rating for that condition. If it’s related to your back. In that case, it’s important to point out to VA that you are experiencing all of these additional problems that you believe are related to your back. Ultimately, the VA examiner is going to need to address it. But then again, the veterans competent to report the pain that they experience and pain alone can be a disability if it has a functional impairment. So your best bet as always is to just over report the things that you experience, and then let VA figure out whether or not it’s related to the service-connected disability.
Robert: Yes, and it seems, I think you make a really good point that a doctor ultimately has to address these things. But a doctor is not going to address them unless the veteran reports them. So it’s really important to state what your symptoms are and let the doctor know that. Okay, for VA exam errors, we talked about flare-ups, active versus passive range of motion. The other thing is weight bearing versus non-weight bearing. Can you go through some of the things that one can do about those errors?
Jenna: So yes, so like I mentioned, the first thing to do is get an exam, a copy of your exam. Those type of measurement errors can really mostly be solved with another exam. So if a private examiner, you can have them, make those estimates and make those measurements if the VA examiner didn’t do it, you can also ask VA to order a new examination that actually goes through the required measurements. Then like Nick said before, exams that are maybe based on more lack of treatment, or a lack of adequate rationale, you can use lay statements to kind of bolster why you think the examiner was wrong on a certain factual premise or why the examiner didn’t really address your specific circumstances, your risk factors, things like that.
Robert: Sometimes a medical exam and Nick will say there was no treatment in service. Therefore, I can’t find the condition is related to service. What about that? There’s have to be treatment in service to win a claim?
Nick: No, there doesn’t. Again, the veteran knows what they experienced in service and their competence report, they experienced pain in service. Oftentimes, they wouldn’t necessarily treat seek treatment for it. One, because they were discouraged to by fellow service members, they felt that they could be subjected to ill-treatment if they sought treatment for their disability, so oftentimes it’s just not there. But VA still needs to consider their reports because unless there’s evidence to the contrary, their reports can be credible and supporting evidence enough on their own.
Robert: Okay, effective date errors. Let’s take the first one, where a claim has been pending for five years. In a year four the veteran files, he’s been rated but not rated high enough anyone’s TDIU files a new claim in year four, and the VA only granted from that date. What do you do in that situation?
Jenna: So I think the first thing a veteran can do is site to rise, which is a case that basically laid out what I had mentioned earlier that, claim for TDIU is a part of an initial claim for either service connection or an increased rating. So when a veteran during a claim that’s pending raises TDIU, VA needs to treat that TDIU request as a part of the original claim, and rise goes through that. So, if you direct VA’s attention to the case law, hopefully that will kind of set VA down the right path. Then another option is really just to, again, provide lay statements like or broken record, but explain even though you only requested TDIU on a particular date, explain everything that led up to that, and anything, any specific dates that you remember when you experienced worsening, need dates that you stopped working, anything like that. Not just your only statements, family members, former employers, and co-workers can be really helpful.
Nick: There’s often some overlap between veterans who are disabled for social security purposes and VA purposes. So it’s oftentimes a good idea to point them in the direction of your Social Security Records, which can often show one when you stopped working, and whether or not it was due to your service-connected disabilities.
Robert: Another effective date error that happens is the veteran will say, “My condition worse.” Then it’ll take them a year to get an exam, and then VA only awards the start of the higher rating, the date of the exam, but the veterans had the symptoms right along. What about in that situation?
Jenna: It’s a similar solution to the TDIU problem. So presumably, when you filed your increase reading claim, you thought that your condition had already worsened at that time that you filed a claim. So it’s really helpful if you’re continuing to seek treatment and have a dream position was documenting kind of the evolution of your disability so that when VA incorrectly award to date from the day of the exam, you can point to medical evidence before that that demonstrated a worsening. But again, you can also submit lay statements about when you observed a worsening. But I would just make that argument that your condition didn’t magically worse than the day that you went to a VA exam.
Robert: Okay. So the last category cases is psychiatric conditions and mental health conditions. One of the things I wanted to hit here is many times, especially with the service connection claims, the rationale is not adequate. Is there a particular case that you can think of where rationale, the court is talked about the rationale?
Jenna: Do you want to take it? Do you remember?
Nick: For ratings or for service connection?
Jenna: For anything.
Robert: For anything, really.
Nick: It’s Nieves Rodriguez, Stanfield versus Nicholson, they all speak to the basic idea that the examiner needs to provide rationale for their conclusion. They can’t just state something which often leaves them open to criticism, because if they don’t give an explanation, it’s easy for the veteran to turn around and say, “Well, this, this and this,” and if they don’t address it, the exam’s not adequate.
Robert: Right. We see that all too.
Jenna: We do. Yes.
Robert: So, what about the thing where we talking about where PTSD does require a stressor, but depression or anxiety do not require a stressor in an exam asks for it? What do we do in those situations?
Jenna: So I mean you kind of have to make a political argument that the two are different, that VA treats PTSD differently and hold it to a higher standard. A lot of times, we’ll see VA exams that are trying to provide an opinion on a nexus between depression, for example anxiety and service, and the examiners will even say, “Well, like there’s nothing to corroborate the veteran statements that these things happen him in service that he experienced anxiety and service or that he experienced something that later leads to anxiety.” So you really just have to make the argument that that’s the wrong standard for both the examiner and for VA. All the VA examiner needs to do in that instance, is determine whether it’s as likely as not that whatever he experienced in service is related to his current disability now. So yes, like that argument.
Nick: Lay statements come into play there as well. Again, the veterans competent to report that they had the symptoms in service and oftentimes their family members will recognize a complete shift in their personality when they come back. That’s good evidence alone of problems that may have developed in service. So it’s always good to get that in there whenever possible.
Robert: Okay. Before we sign off, are there any more questions? No more questions? All right, so a couple of things here, we’ve discussed a number of cases today. So we’ll provide the names and the citations of those cases on both our website and Facebook at the end of this, so you can use those cases and hopefully, you’ve learned that lay statements are very important. The more evidence you put in, in writing to the VA from you or family members or friends, the better for your claim, ultimately. Any final thoughts, Jenna?
Jenna: I think you covered it.
Robert: Okay. So, again, thank you for joining us today at cck-law.com on Facebook. We do these once a week so tune in again for the future and we have a new legal podcast as well. So you want to listen into that as well and you can find that on our website as well. Thank you.