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Top 5 VA Errors on Veterans’ Disability Decisions

Top 5 VA Errors on Veterans’ Disability Decisions

It is not uncommon for VA to make mistakes when adjudicating veterans’ claims for disability benefits.  Some of VA’s errors occur more frequently than others, including those related to (1) total disability based on individual unemployability (TDIU); (2) orthopedic claims; (3) Compensation and Pension examinations; (4) effective dates; and (5) psychiatric conditions.  Learn more about VA’s top five errors and what to do if you encounter one during the disability claims and appeals process.

1. TDIU Errors

Total disability based on individual unemployability (TDIU) is a benefit that allows for veterans to be compensated at VA’s 100 percent level, even if their combined schedular rating does not equal 100 percent.  In this way, it is an alternative path to receiving maximum schedular benefits from VA.  TDIU is awarded in circumstances in which veterans are unable to secure and follow substantially gainful employment as a result of their service-connected conditions.  Here, substantially gainful employment refers to whether a veteran’s annual income meets or exceeds the federal poverty threshold for a single person.

VA Wrongly Considers a Veteran’s Age

A common mistake VA makes when adjudicating veterans’ claims for TDIU is considering a veteran’s age to deny benefits.  Specifically, VA will often state that a veteran retired or is no longer working because of his or her age rather than considering the impact of his or her service-connected conditions.  However, VA is not allowed to consider age when making decisions on claims for TDIU, as outlined in 38 CFR § 4.19.  Even if a veteran has retired long ago, the operative question remains: does the veteran’s service-connected conditions prevent him or her from working? If VA bases its denial of TDIU on this reasoning, veterans can dispute it by pointing to the above-mentioned regulation.

VA Incorrectly Considers a Veteran’s Non-Service-Connected Conditions

In addition to age, VA cannot take non-service-connected conditions into consideration when evaluating a veteran for TDIU.  Although veterans may have non-service-connected conditions that prevent them from working, VA should only be evaluating the effect that their service-connected conditions have on their ability to work.  Furthermore, if there are overlapping limitations of a veteran’s service-connected and non-service-connected conditions, VA must attribute all of the limitations to the service-connected conditions.  For example, a veteran has a service-connected back condition that causes neuropathy in his legs.  The veteran also has non-service-connected diabetes that causes neuropathy in his legs.  Both conditions cause limitations to the veteran’s lower extremities affecting his ability to work.  Here, VA should attribute the limitations caused by neuropathy to the veteran’s service-connected back condition.

In this case, veterans can point to Pratt v. Derwinski – a Court of Appeals for Veterans Claims (CAVC) case that held if VA is unable to determine whether a veteran’s unemployability is caused by his non-service-connected conditions or by his service-connected conditions, the veteran is entitled to the benefit of the doubt.

VA Denies TDIU Because the Veteran is Working

In some cases, VA errs in denying TDIU on the grounds that the veteran is working.  Here, VA fails to take into account marginal employment and protected work environments – two situations in which veterans may be able to continue working while receiving TDIU benefits.  Marginal employment involves when a veteran is working, but their income does not exceed the federal poverty threshold for one person, and therefore is not considered substantially gainful for TDIU purposes.  On the other hand, veterans who are working and earning an income above the set federal poverty level may still be entitled to TDIU if they are working in a protected work environment.  Generally, a protected work environment is one in which the employer makes special and significant accommodations for the veteran without reducing his or her earnings or benefits.

If VA denies TDIU without taking these circumstances into consideration, veterans can submit evidence including earnings statements showing they do not earn above the poverty level, or lay statements from employers highlighting the accommodations provided.

2. Orthopedic Claims

Typically, VA will rate orthopedic conditions based on diagnostic testing of a veteran’s range of motion.  This type of diagnostic testing is typically performed during a Compensation and Pension (C&P) examination.  However, VA examiners should also consider functional loss, flare-ups, and how the veteran’s disability impacts his or her daily life overall when rating orthopedic conditions.

VA Fails to Consider Functional Loss and Flare-Ups

VA examiners should take into account the functional loss caused by the veteran’s orthopedic condition, as evidenced by pain during motion.  For example, a veteran might be able to bend forward 85 degrees, but starts to experience pain at 55 degrees.  In this case, the veteran should receive a disability rating that is consistent with both the range of motion measurements and the functional limitations caused by his or her orthopedic condition.  In addition to range of motion measurements and functional loss, VA examiners should also address the presence of flare-ups.  If veterans experience flare-ups of their orthopedic condition, they may be eligible for a higher disability rating.  Ultimately, if VA does not consider these factors when adjudicating veterans’ claims for orthopedic conditions, veterans should respond accordingly.

It may be beneficial for veterans to request a copy of the C&P examination in order to thoroughly review the examiner’s findings and ensure he or she answered all questions adequately.  If the examination does not include information about functional loss and flare-ups, veterans can argue that it is inadequate for rating purposes.  Additionally, veterans should make sure that the examiner’s report accurately reflects what they reported in terms of symptomatology and severity.  If it does not, veterans can submit argument and evidence to the contrary.

3. Compensation and Pension (C&P) Examinations

VA also commits several errors in regards to C&P examinations when adjudicating veterans’ disability claims.  As mentioned above, VA examiners often overlook factors such as functional loss and flare-ups.  In doing so, they fail to take into account the whole disability picture and how a veteran’s limitations translate to his or her everyday life.  However, there are also circumstances in which VA examiners are not qualified to examine a veteran’s disability or the VA examiners ignore favorable medical evidence.

Unqualified VA Examiners

Unfortunately, it is not uncommon that C&P examinations are performed by non-physicians.  Veterans may be evaluated by a nurse, a nurse practitioner, or a physician’s assistant, rather than a licensed medical doctor.  If this is the case, veterans can make a strong argument that the examination results should not be considered adequate.  To support this argument, veterans can point to Nohr v. McDonald (2014), which determined that veterans can challenge the qualifications of a VA-selected expert and, in turn, the adequacy of the opinion through questions involving clarification of the expert’s statements and even through requests for the expert’s resume or C.V.

VA Examiners Ignore Favorable Evidence

VA examiners must include rationale for any medical opinions they provide, along with the evidence they used to reach their conclusions.  If examiners only list medical treatment records or medical research that does not support the veteran’s claim, an argument can be made that they ignored more favorable information.  Here, veterans can reference Nieves-Rodriguez v. Peake (2008), holding that examinations must be thorough, and contemporaneous, which includes taking into account all relevant medical history.

Furthermore, VA examiners cannot only look to an absence of treatment records to deny a veteran’s claims.  According to the CAVC case Bucyzynski v. Shinseki (2011), the absence of evidence is not necessarily negative evidence.  Here, it may be beneficial for veterans to submit lay statements detailing their conditions in order to fill this gap.

4. Effective Dates

An effective date is the date that a benefit became effective and it is used by VA as a start date for the payment of disability compensation.  Importantly, the effective date of a claim impacts the amount of retroactive benefits, or back pay, a veteran will receive.  VA typically grants effective dates based on either the date it received the veteran’s claim, or the date that entitlement arose.  However, there are many times in which VA assigns the wrong effective date.

VA Assigns Effective Date for TDIU Based on Submission of VA Form 21-8940

Veterans can apply for TDIU by submitting VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability.  VA often makes a mistake when granting entitlement to TDIU based on the date the veteran submits this application.  TDIU can be included as part of an underlying claim for benefits, meaning that a veteran’s TDIU effective date can go back to the date of their claim for service connection or an increased rating if that claim is open.  If this error occurs, veterans can appeal for an earlier effective date and cite Rice v. Shinseki (2009), noting that a request for TDIU, however raised, is not a separate claim but is included in the increased rating claim.

VA Assigns Effective Date as the Date of C&P Examination

There are also certain situations in which VA will assign an effective date consistent with the date a veteran attended a C&P examination establishing entitlement to benefits, rather than the date entitlement actually arose.  Veterans can argue against this effective date by referencing the CAVC case McGrath v. Gober (2000), which determined that it is the information provided in a medical opinion, and not the date that the medical opinion was rendered, that is relevant when assigning an effective date.

5. Mental Health Conditions

VA’s rating schedule for mental health conditions is rather broad and wide-ranging as it encompasses many symptoms and levels of impairment.  While this can be beneficial as it is all-inclusive, it often leaves room for error when it comes to adjudicating veterans’ disability claims.

VA Adds Nonexistent Qualifiers to Rating Criteria

In many cases, VA will add qualifiers to some of the symptoms outlined in the rating criteria for mental health conditions.  For example, a veteran has suicidal ideation, which is consistent with a 70 percent rating assuming it comes with a certain level of occupational and social impairment.  However, VA will say that even though the veteran has suicidal ideation, he or she has never expressed an intent to act on it, or only experiences it once in a while.  Those additional qualifiers are not in the rating criteria and by imposing them, VA is holding the veteran to a higher standard than required in the regulations.  Similarly, sometimes VA ignores qualifiers that the regulation does include.  For example, when referencing the ability to establish and maintain effective relationships, VA might say the veteran is married with children as evidence of that.  However, since the qualifier references effective relationships, VA must also consider whether the veteran experiences problems in his marriage or family relations.

VA Denies for Lack of Stressor

Aside from eating disorders, VA rates all mental health conditions using the same diagnostic criteria.  Mental health conditions are rated at 0, 10, 30, 50, 70, or 100 percent using VA’s General Rating Formula for Mental Disorders based on the veteran’s overall level of social and occupational impairment.  Sometimes VA will ask that veterans provide a stressor, or a traumatic event that occurred during service, that caused their mental health condition.  If veterans are unable to provide this stressor, they are denied benefits.  However, it is important to note that stressor verification is only required in claims for post-traumatic stress disorder (PTSD).  Therefore, if a veteran is claiming service connection for an acquired psychiatric condition or depression, it is incorrect for VA to deny benefits based on a lack of stressor.

Category: Veterans Law

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