Obtaining a 100% VA Disability Rating – Video
CCK Law: Our Vital Role in Veterans Law
Video Transcription:
Courtney Ross: Good afternoon, and welcome to Facebook live with Chisholm, Chisholm & Kilpatrick. I’m Courtney Ross and joining me today is Michael Lostritto and Kayla D’Onofrio. Today we are going to be talking about different ways to get a 100% disability rating. If you have any comments or questions throughout the broadcast, please feel free to leave them in the comment section, and we will do our best to answer them. So before we dive into how to get a 100% disability rating, I want to just first emphasize the benefits of a 100% rating. So, first, the current monthly rate at which a veteran whose rated a 100% is paid is $3,221.85 a month. So that’s the monthly payment that a veteran would receive. Now you would think of a veteran who is rated at 90% is obviously also significantly disabled to have a rating that high. But what is notable, is that the difference between the payment at 90% and the payment at 100% is just over $1200 a month. So that’s a pretty significant difference in what a veteran is going to receive if they’re rated at 90 percent versus if they’re bumped up to 100%, they’ll get an additional 1200 dollars each month. In addition to the rate that you’re paid at, there are additional benefits a veteran can receive if they’re rated at 100%. There are medical benefits, additional insurance benefits, and other special VA grants that he or she might be entitled to. We’re not going to get into the details of those in this broadcast, but CCK did recently do a separate Facebook live on additional benefits for veterans who are rated at 100%. So if you’re interested in the more specifics of that information, you can check that video out on our website our YouTube channel, or our Facebook page. So the first step before we kind of dive in again to actually getting a 100% rating is to get service-connected. So Mike I’m going to turn to you if you can talk just generally about what I mean when I say getting service-connected and how a veteran would go about doing that for.
Michael Lostritto: Thanks Courtney. So yeah, like you said before VA can even take on the task of evaluating and assigning a rating for a disability or disabilities, VA needs to find or grant service connection for a condition. So there are typically three, what we call elements, that a veteran must show in order to warrant service connection for a particular disability. The first element is that the veteran has a current disability. That can be shown most often times through medical records, treatment records, and the like. The second element that a veteran needs to then show is that there was some in-service event, injury, disease, exposure. Something that happened in service, specific to that condition. Then the final element is the nexus, and that is just the connection between the current disability and that in-service event injury, disease, exposure, whatever it may be. That just shows that the current disability is related in some way or due to the in-service event. So if a veteran can, generally speaking, show those three things then that particular disability can be service-connected and VA can then move on to the next step in the process which is rating the condition.
Courtney: Great. So once a veteran is service-connected, as you said, the next hurdle becomes making sure that VA is assigning the appropriate rating about either one condition or multiple conditions combined. There are two primary types of ways that a veteran might be assigned a 100% rating. So we’re going to talk a little bit more in detail about both of those, starting with what we’ll call a schedular rating of 100%. So Kayla I’m going to turn to you now. Can you explain what I mean when I say, a schedular 100% disability rating?
Kayla D’Onofrio: Sure. So when VA is looking at assigning disability ratings, they’re working off of what they call a rating schedule. The schedule basically is the 0 to 100% rating that you can possibly get based on what your service-connected for and the ratings that are assigned to them. So when we talk about a schedular 100% rating, what we mean is that your combined disability rating, what VA is looking at is actually 100%. So there’s a couple of different ways that you can get there. One is that you may have just one service-connected disability that’s very severe and rated at 100%. Alternatively and probably more commonly, what we see is that you have more than one service-connected disability or several service-connected disabilities that by themselves maybe not quite as highly rated, but in combination, they get you to that schedular 100% rating. So that’s what we’re talking about when we’re talking about a rating schedule and schedular 100%.
Courtney: Yeah, and to Kayla’s point that the more common scenario is usually that a veteran has multiple conditions that are service-connected. It’s important to note that VA doesn’t just add the different ratings up as you would look normal math. So if you have a 20% rating for a condition and 10% for another condition, that doesn’t equal 30%. This is important to note because as I said in the beginning, the difference between a 90% rating and the 100% rating, is significant in terms of payment. But it’s actually very difficult because of how VA math works to get from 90% to 100%, based on multiple conditions. So, Kayla I’m gonna ask you to give just a quick overview of how VA calculates the disability ratings. But I also just want to plug again another resource that’s really helpful. I know CCK has also done Facebook live in more detail talking about VA Math and how VA really calculates and combines the different conditions. So we’re going to kind of just touch on the surface of it here, but if you want a little bit more information about that again, you can find those additional resources on our website, our Facebook page, and our YouTube channel. But for purposes of this broadcast Kayla, can you just generally explain how VA calculates the different disability ratings?
Kayla: Yeah, absolutely. So like you said, VA math is incredibly complicated. It’s not just as simple as saying, you have a 20% and 10% percent so you get a 30% rating. When VA is doing that math to get your combined disability rating, what they’re looking at is that you as a 100% whole person. As your service-connected for different disabilities, they’re taking percentages out of that combined total 100% of a person. So, for example, if you have a psychiatric condition and you’re rated at 70%, they’re taking 70% from that 100% of a person. You’re seventy percent disabled, which means you’re now 30% not disabled. As they add more conditions, they’re pulling from that not disabled portion of your whole person. So, you have that 70% for your psychiatric condition for example, and then maybe down the line you get service-connected at 10% for your right knee condition. What they’ll do is they’ll take from that 30% not disabled portion and they’ll pull 10% from that. So you’re really only getting 3% added to your combined rating. So the 70% plus now is 3% would give you a 73% combined rating. But with VA math, they’re never going to rate you on that sort of in-between scale. They do rate you in terms of 10. So they’ll round up or down depending on what that combined rating comes out to. If there’s anything, you know 1 through 4, they’ll round down; 5 through 9, they’ll round up. So in that example, they will round down to 70%. So even though you are adding disabilities, your combined rating may not necessarily change based on the way that VA math works. Another thing to note is that they’re always going to be working with the highest rating first. So if you have a service-connected disability at 70%, 50%, and 10 percent, they’re going to start at 70% and combined working their way down from that not disabled portion of your whole person. But that’s again very broadly talking about how it works. It does get a little bit tricky depending on how many different service connections conditions you have. As Courtney said, our website does have some really great resources including the calculator you can actually use in plugging in your ratings to help you come up with that combined rating, too.
Courtney: Yeah, and to complicate matters a little bit further, VA does some additional calculations when there are bilateral disabilities that are service-connected. So if a veteran has, say a right knee condition and left knee condition both service-connected, there’s an additional calculation that they do as well. Is that right Kayla?
Kayla: Yes, exactly. What they’re doing there is, they’re basically recognizing that if you have a disability that affects, for example, both of your knees, it’s inherently going to be a little bit more disabling than if you had a disability affecting only one of your knees. So the way that it works is what VA called the bilateral factor. So let’s say for example, you have one knee rated at 40%, and the other knee rated at 40%. What they’ll do is they’ll combine those ratings first, which would give you that sort of raw total of 64%. Then they’ll take 10% out of that 64% and add it back on. So it would be 64 percent plus 6.4% which would give you now 70.4%. Then they’ll round that to 70%. So in this example, that bilateral factor is literally a difference between a 60% and 70% rating, just by adding that little bump. That’s not going to be the case across the board depending on how many different disabilities you have service-connected or how highly they’re rated, but in some cases it can be a big jump up.
Courtney: So I feel like we’ve hinted at this so far based on your description. But generally speaking, why is it so hard to get a 100% rating? Why is it so difficult based on how VA does the math?
Kayla: Yeah. So it gets more complicated and more difficult as you are more highly rated because they’re looking at a smaller portion of you being not disabled and polling from a smaller number. So even though, let’s say your combined rating right now is 90%, if you add another 10% service-connected disability, you’re only getting one percent more added onto your combined rating. So, the higher you’re rated, the less they’re going to be adding on as you continue to be service-connected. So it does get a little bit more difficult to get higher on that rating schedule from there. That’s not to say you shouldn’t file for conditions. They should be service-connected. Every little bit helps. But it does get a little bit more complicated as you progress through the rating schedule.
Courtney: So one thing to keep in mind as a veteran or an advocate is that maybe the ratings don’t add up to 100% on the schedule. So maybe they don’t combine even using VA math, and things like bilateral factors Kayla described, to 100 percent but if the veteran is too disabled to work. So is there an alternative way based on that to get a veteran up to a 100% combined disability rating? I’m going to turn to Mike to talk a little bit about what’s called total disability based on individual unemployability or TDIU, which is this alternative way to that 100%. So Mike, can you start just by generally explaining what TDIU is?
Michael: Sure. So as you said TDIU stands for total disability based on individual unemployability. It’s kind of a mouthful. What it essentially means is that a veteran’s service-connected disabilities are the cause of their unemployability or they’re unable to seek and secure and maintain substantially gainful employment as it’s called, due to the veteran’s service-connected disabilities. This is important because, as Kayla very nicely just laid out, getting to a 100% combined rating is so difficult. So the way I like to think of TDIU benefits is that if a veteran is able to show that his or her service-connected disabilities preclude employment, this is essentially a shortcut to being paid the same exact 100% rate, despite the fact that their combined disabilities might not otherwise be combined to a 100% combined rating. In order to qualify for TDIU, I like to think of it in terms of two prongs, if you will. There’s an initial threshold that a veteran can cross in terms of the rating requirement, under section 4.16 of the regulation title 38. There, veterans would need to show a combination of ratings to cross that threshold in order to have the VA consider their claim. Well, as we’ll say, later on in the program, a claim for TDIU isn’t really a claim for TDIU, but consider their appeal maybe for TDIU, under what’s called a schedular basis. So just stepping back for a second. So for veterans, they can show that they qualify under 4.16A for TDIU. They will have a little bit of an easier path, I would think, for having TDIU granted. They have to go through fewer procedural barriers through the VA. If not, they’re nevertheless able to seek TDIU under the second part of the regulation 4.16B, which essentially just means that nevertheless, even if that veteran doesn’t meet those threshold requirements of the regulation, it’s still up to VA to determine whether the veteran’s service-connected disabilities preclude the veteran from obtaining and maintaining substantial gainful employment. So it’s really important for a veteran and for VA, to think about the veteran’s service-connected disabilities and only those disabilities and whether those disabilities impact the veteran’s ability to work. As Kayla said, it’s not intuitive at all when calculating a veteran’s combined rating. So, TDIU is important. If a veteran is unable to work, they should be thinking of TDIU because again, this is a shortcut, this is another avenue to achieve a 100% rate, despite the fact, that they may not otherwise be combined a 100% rating.
Courtney: Yeah, and I just want to remind people again, a lot of what we’re talking about today is surface level in terms of these specific benefits. I know we have a lot of resources and videos on our website, our Facebook page, and our YouTube channel, that dive even deeper into TDIU. Different ways that you can help to establish what Mike just outlined in terms of your eligibility for TDIU, what evidence might help to establish that to VA. So for even more detail, please feel free to check out those resources on our website. To include what we’re going to cover next, which is that veterans can work, right, and still receive these TDIU benefits in certain limited circumstances. Is that right Mike?
Michael: Yeah, that’s true. I guess the answer is it depends. So in certain situations, veterans may be working, they may be working full time even, but they nevertheless might qualify for TDIU benefits. That occurs when a veteran can show that their employment is what is considered marginal employment. There are a few ways to do that, but I think the most common way to do that is for a veteran to show that their annual income is below the federal poverty threshold, which varies year by year depending on the cost of living. It’s right around I think 12 or 13 thousand dollars for 2019. But if they can show that despite the fact that they’re working, they may be receiving income that’s less than the poverty threshold. That income is going to be what’s considered marginal income. The way the regulation is structured, marginal income is not considered a substantial gainful income, and VA really is concerned with the veteran’s ability to obtain and maintain substantially gainful income. So that’s one scenario where a veteran may be working, but they’re still able to nevertheless be entitled to TDIU benefits. A second situation involves a situation where a veteran is working. They may be making much more than the poverty threshold. They may be working full time, numerous hours. But if a veteran can show that their employment is in what’s considered a protected work environment, then despite those things, despite the fact that the veteran may be working full time, despite the fact that they may be making well above the poverty threshold, they may still be entitled to TDIU benefits. It’s a complicated analysis and the law is still evolving in this area. But I think the central inquiry really is to show that the veteran is receiving some type of accommodation. That’s not really to be expected in a normal, competitive work environment or it’s not a reasonable accommodation. So, maybe they are being kept on they’re given so many accommodations that that’s what’s allowing them to actually work, and they wouldn’t be afforded those accommodations in any other job. So like I said, it’s a very complicated area. We’re looking at this at a somewhat basic level. But I think it’s important to know that that exists, and veterans shouldn’t automatically think that they’re precluded from seeking TDIU benefits just because they may be working.
Courtney: Exactly. Thanks, Mike. That’s really helpful information. Now, I want to go back to something you hinted at before regarding how to actually apply for TDIU in terms of it’s not always a separate claim. So can you talk a little bit about the procedure and how it works? If a veteran is interested in filing for TDIU, how they should go about doing so?
Michael: Yeah. This is definitely kind of a convoluted area. I alluded to it a little bit earlier. TDIU is not technically a claim in and of itself. Meaning that a veteran doesn’t have to file, you know a 526 form, which is the form for filing a claim for TDIU. That being said, anyone that’s familiar with this area knows that we oftentimes require veterans to complete what’s known as a Form 8940, which is deemed an application for TDIU benefits. So it gets a little confusing. But the reasoning is that any time a veteran is seeking an increased rating for a condition, whether it be a claim for an increased rating or appealing an increased rating, under the law they’re presumed to be seeking the maximum benefit allowed under the law. That includes a rating of unemployability if the situation is such that it can be shown the veterans service-connected disabilities actually impact their ability to work. So what that means is that anytime a veteran is seeking an increased rating, they should be able to raise or note, through their correspondence to the VA, that they’re also seeking unemployability benefits, and VA should include that consideration or that assessment with their underlying rating. So that’s what we mean when we mean that TDIU is not a claim in and of itself. It’s still advisable to file a Form 8940 because the VA does require it in order to process a claim, as they would call it for TDIU. Form 8940 oftentimes asks important information about a veteran’s work history, about a veteran’s level of educational attainment, training, the dates that they stopped working. It asks for information regarding whether a veteran is treating for a condition. So there’s a lot of important information that can be obtained through the 8940, but it’s not technically a claim for TDIU in and of itself.
Courtney: Thanks Mike. As you can see there’s a lot of complicated topics we’re discussing here today. So hopefully you can find some more information and specific details on our other videos that we have discussing these topics on our website. The last thing I want to ask about TDIU, is whether if you are granted TDIU, is it permanent? So does that mean that at a 100 percent disability rating, you were going to be paid at to the brim of TDIU is going to be indefinite, permanent? You don’t have to worry about VA taking it away or reducing it?
Michael: So sometimes TDIU can be permanent, but it’s not automatically permanent. The question is whether VA deems your unemployability as being something that is going to last into the future. So, is it reasonably likely that a veteran is going to be able to obtain and maintain substantially gainful employment in the future? If the answer to that is “No there is no expectation that a veteran’s going to be able to do that”, then the VA may assign a permanent status to the grant of TDIU. That’s certainly not the case in a lot of cases, particularly with some of our younger veterans perhaps, or with veterans who have worked in the past. Maybe they’ve stopped, they’ve gone back to work, and they’ve stopped working again. Maybe their conditions are severe, but relatively speaking they may not be the most severe. So, there are a lot of different factors that can go into it. But basically, VA needs to make the determination that it’s reasonably likely that a veteran will be able to obtain employment in the future, and if that’s the case, then there will be, periodic check-ins perhaps to reassess the condition, and it won’t be deemed permanent.
Courtney: Yeah, and so I think what Mike is alluding to in how a veteran could tell if they’ve been assigned or they’ve been granted TDIU, but then maybe they’re unsure if VA has deemed it permanent, is you’d want to look for something called a permanent and total rating. This is a finding that will be made by VA, and it means exactly what Mike was just alluding to, which means that you have a total rating. So you’re rated at a 100% either through a grant of TDIU or a schedular grant that Kayla was talking about, just through a combination of the disabilities that you’re service-connected for adding up to 100%. So you have that total rating. In addition, VA has deemed that the disability or those disabilities are permanent, meaning, they have deemed that there’s no zero chance or very limited chance that there’s going to be an improvement in that condition for the rest of the veteran’s life. What that means is that you have additional protection against any future possible reduction in that benefit or in the rating that you’re granted or a severance of the benefit. So if VA has granted TDIU but they’ve found you permanent and total, the veteran doesn’t have to worry about in a few years. They’re reevaluating it and now things that matter is people back to work. So there’s a benefit to it and that you have that additional protection in the rating that you’ve been granted. It’s not always easy to tell if VA has granted or found you permanently and totally disabled. Different regional offices actually do it a little bit differently in terms of communicating that information and decisions. But just a couple of ways that you can tell if you’re reading a decision or a grant that you’ve received from VA, sometimes there’s a box that will be checked on the rating decision indicating permanent and total. Other times you might see language that a grant of eligibility for chapter 35 DEA benefits was also granted. If that’s the case, that’s a sign that VA has found you permanent and total. Obviously, if you’re not sure, you can always reach out to your local regional office to get confirmation. But those are a few things you can look for on the actual decision. Also, you can request VA to assign you a permanent and total rating. So maybe you’re granted a 100 percent for TDIU or for again, something like a psychiatric condition, and you want VA to also find that the 100% rating is permanent and total. You can send the letter to the VA regional office and ask for that finding. What I would suggest you do along with that letter is to include medical evidence from a treating doctor or someone from VA. A variety of medical evidence that shows your condition is unlikely to improve so that VA can make that permanent finding as well. So just a note, this is kind of an additional thing to keep an eye out for if you are assigned a 100% rating because it comes with some additional protection.
I want to turn now generally to talk about tips to get the VA rating at 100%. So Kayla, let’s start with you. What’s one thing that veterans should keep in mind if they are trying to get up to a 100 percent?
Kayla: Yeah. So, one thing that I would keep in mind is, even if a disability doesn’t change your combined rating, you always want to file for things and get as many conditions service-connected as you can that can reasonably be service-connected. One thing to consider is whether you can get a service connection on what’s called the secondary basis. So if you have one condition that is service-connected, like for example, a back condition which began in service, you injured your back and VA granted that disability rating. Now because of that condition you have radiculopathy in your lower extremities. Just because the radiculopathy didn’t necessarily start in service, because it was caused by the service-connected disability that can also be granted as a secondary condition and you can be compensated for that as well. This can be helpful for both the schedular 100% rating to bump up your combined rating but also for TDIU purposes. Because the more disability you have service-connected, the more symptoms you can consider as causing you to be unable to work, or in some way limiting your ability to work. So a secondary service connection can be helpful. Another thing to keep in mind is the secondary service connection is based on aggravation. So example, I just talked about the back condition that caused the radiculopathy. But VA can also grant on a secondary basis, based on what’s called aggravation, which means maybe one condition started before service, but it was aggravated beyond its natural progression by a service-connected disability. So for example, if you injured your right knee playing football in high school and it’s well established that it began before service. But in service, you then injured your left knee, and your left knee conditions have maybe worsened over the years, you’ve overcompensated on your right knee with a limp. Now, your right knee condition has gotten a whole lot worse, it’s deteriorated a lot more. What VA can do at that point is to grant your left knee condition, secondary to the right knee condition. So, when they’re looking at aggravation, the rating may be affected a little bit differently than those if it was just a simple causation condition A caused condition B. If they’re looking at aggravation, they are going to be looking at what’s called a baseline level of severity. So they’re going to try to determine how severe it was before that service-connected condition aggravated it. Then they’re going to look at how severe it is now and try to take the difference and grade you based on that. So just because it’s a very severe condition, it doesn’t mean you’re necessarily going to get rated as high as you thought. But in most cases I would say, it’s going to be hard to establish that baseline level of severity, and if that can’t be done, VA will just assume that it was rated at 0% rating or it wasn’t disabling beforehand, even if it existed. So, you may still be able to get that full disability rating. But like I said, this can be helpful for both the schedular rating and for TDIU purposes as far as getting you to that 100% rating.
Courtney: Okay. So I think the takeaway here is really just to make sure that veterans are considering all avenues, or different avenues to get condition service-connected and really thinking about conditions that they might be entitled to benefits for that maybe aren’t directly related to service, but they should still receive some kind of compensation for them. So we’ve talked obviously- Mike talked a little bit about service connection being the first hurdle at the beginning of the broadcast. I think Kayla’s making some really great points with other avenues of service connection. What does a veteran need to be successful with these appeals or these claims, if they’re trying to establish service connection or secondary service connection, or just to get the rating up for the conditions they’re already service-connected for? Mike, can you talk a little bit about what would be really helpful for veterans to submit to VA to establish these things.
Michael: Sure. So, really it’s going to come down to the evidence you can provide to either show service connection or show that the severity of a condition has increased or is of a level to warrant an increased rating. Some of the evidence that I think veterans should be thinking about obtaining and submitting… To start with medical evidence is always terrific. If it exists, medical evidence is very probative. VA’s going to view it as probative, and it’s great. So particularly for service connection issues, medical evidence can be very helpful to show a current diagnosis or a current condition. Then for the nexus element, that connection between the current disability and whatever may have happened in service, medical evidence is really going to be critical in most cases for establishing that connection at nexus. So medical evidence, that’s broad. It can mean a treating physician that a veteran has seen. Maybe they could write a letter on behalf of the veteran. Maybe you could obtain treatment records from a private physician, or from a VA Medical Center to submit. So that evidence is very helpful. But not just medical evidence. Lay evidence is also credible or can be credible, the person who is submitting it can be credible. It can be there for competent, and just as powerful in many cases as other types of evidence. So thinking about submitting affidavits from the veteran, and maybe the veteran’s spouse, maybe the veteran’s children, maybe an employer, all of those things can really help to establish the level of severity for a particular condition. Veterans are competent in most cases to provide testimony, written testimony as to things that they can observe. So, if a veteran is trying to detail an in-service event, say a particular stressor that may have happened, if veterans seeking service connection for PTSD, they should think about drafting an affidavit, or having somebody draft an affidavit for them. Getting buddy statements from people that were there with them. All that evidence, again, if the person is credible and competent can be very probative evidence to establishing these claims.
We often think of expert opinions. Maybe it’s a vocational opinion in a TDIU case, maybe it’s an expert psychiatric professional in a PTSD case. These are pieces of evidence that are very, very important for establishing service connection and for TDIU, in particular for TDIU. It’s at least my belief, certainly, that a vocational expert is the most probative piece of evidence you can have in a TDIU case. Simply because they have the training, the background, and the experience to be able to assess a veteran’s limitations from their service-connected disabilities and then translate that into what that means in terms of the veteran’s ability to obtain and maintain employment. So it’s not possible I suppose in every case, but where it is possible, I think veterans should think about it, trying to obtain that expert evidence.
Courtney: Yeah, and I think that’s a really good point because VA when they are adjudicating these claims or the appeals and they’re deciding whether to grant or deny TDIU, grant or deny an increased rating, or grant or deny service connection, they are usually relying on what’s called a compensation and pension exam or C&P examination. So it’s a medical exam that’s done to assess the condition that the veteran is claiming, or to assess the functional impact of that condition. So, VA is relying on medical evidence that’s being done either by a VA medical professional or a third-party contractor that VA is contracted with. So keeping that in mind as well and then the importance of C&P exams is also really important. So Kayla, can you talk a little bit about that and maybe some tips that veterans can keep in mind if they are attending a C&P exam?
Kayla: Yeah, so, like Courtney was saying, C&P exams are almost exclusively a lot of times would be where an adjudicator will rely on when they’re making decisions on claims. Getting examinations is part of VA’s duty to assist the veteran in developing their claim when it’s necessary to make a decision on the claim. So basically, what that means is that if VA thinks that they’re missing, maybe it’s that nexus opinion or the diagnosis depending on what you’re claiming, they’re going to go ahead and get that examination. So, that’s why it’s really important to attend these exams if they are scheduled. I know, based on current circumstances, there is a little bit more leniency related to COVID-19. But on a general basis, attending exams is, really, really important. If you don’t attend exams, VA is more likely to deny your claim whether it be for service connection, an increased rating, or TDIU. They’re going to say that they don’t have the evidence that they need to make that decision. When you do attend these exams, it’s really important that you’re honest with the examiner with what you’re currently experiencing. So you don’t ever want to over-exaggerate your symptoms. Be honest with how severe they are. But you also don’t want to under-report what’s going on either. If you don’t think an examiner is really touching on everything that you think they need to be touching on, its okay to speak up and explain in more detail the symptoms you’re experiencing, how they’re affecting you, how they have affected you in the past. You really want to be detailed and sufficient in the information that you’re providing them. Like Mike was saying, expert opinions can also come into play here as well. A lot of times when these examinations through VA do happen, we find that they are, not always, as adequate as they should be. They don’t include as much information or the opinions they provide aren’t necessarily quite as probative or rationalized as we think they need to be. That’s where those expert opinions can come into play. If you do have your own doctor, a vocational expert that can provide an opinion on your case, and make sure that they do provide, a really good rationale as to why they’re providing the opinion that they are. They can be really helpful to combat those compensation and pension exams that may not be quite as adequate as we would like them to be.
Courtney: Yeah. I think that’s a really great point and something that’s really important to keep in mind. CCK did a Facebook live last month that really went through a number of helpful tips for C&P exams if you do need to attend one. So you can also find some additional helpful information in that video, as well on our Facebook page, or the YouTube channel. So in addition to reviewing C&P exams and considering gathering your own evidence, it’s also really important to carefully review the decision that you’re getting from VA that denying you the benefit that you need to get that 100 percent rating. So Mike, can you talk a little bit more about the importance of that and maybe some common errors that we often see VA making in decisions?
Michael: Sure. So, yeah, as Courtney just said it’s really important when you receive a decision to go to what’s called the ‘reasons and basis’ section of the decision. It’s a section that’s supposed to list out the reasons of the rationale for the denial. So it’s important to take a look at the reasons that VA gives and make sure that they have assessed all the evidence that’s been submitted in the case. Often times, you know, I was talking a little bit earlier about how it may be a good idea for veterans to submit lay evidence or an affidavit. VA examiners are required to consider lay evidence, and in a decision, VA is required to address that lay evidence. Oftentimes, one of the errors that I see is that maybe an examiner or even in the decision itself, that lay evidence isn’t adequately considered. That lay evidence oftentimes can be the difference between establishing an increased severity for a condition or not. So it’s really important to take a look and see whether all the evidence that you submitted in support of your case is actually being listed in and considered as part of the decision to deny your claim. Another thing, specifically with TDIU that I see a lot, is that VA will oftentimes consider a non-service connected condition as part of their analysis for determining whether a veteran warrants entitlement to TDIU. This really is not a proper analysis for determining TDIU. So you can imagine a situation where a veteran has a very severe disabling back condition. Maybe the back condition isn’t service-connected. In VA’s decision, they may attribute the veterans unemployability to that non-service connected back condition. Essentially saying, “Yeah, you can’t work but it’s because you have a back condition, it’s very severe. It’s not service-connected. Therefore, we can’t grant you TDIU benefits.” So I think it’s important to pick up on that if that’s one of the reasons for denial in a TDIU case and know that VA’s analysis is really supposed to be limited to the veteran’s service-connected disabilities, and the service-connected disabilities alone. So if they’re looking to things like the veteran’s age, if they’re looking to things like the veteran’s reason for stopping work, or if they’re looking to things like non-service connected conditions, that’s a common error that we see, I see in TDIU denials. Just the last thing that I wanted to mention here, a common error that I see is that VA oftentimes, maybe will grant an increased rating for a particular condition, but they don’t consider separate ratings.. What I mean by that is that when VA assesses the severity of a condition, they have a duty to maximize a veterans benefits, and that means that if there are residual conditions that are linked to or caused by that underlying condition, VA has a duty to separately rate those conditions and assign a rating. The difference between VA assigning a separate rating and not assigning a separate rating could be the difference between going from a 90% combined rating to a 100% combined rating. A common situation is veteran is service-connected for diabetes, maybe the veteran appeals for an increased rating for diabetes. They also have peripheral neuropathy. Perhaps the VA grants an increased rating for diabetes, but they don’t at all consider the veteran’s underlying retinopathy or peripheral neuropathy, or other residual conditions as we call them that are linked to or caused by the underlying claim of diabetes. So picking up on that and making sure that VA’s analysis encompasses all of that, will go a long way to maximizing your benefits and making sure that you are being paid the highest rate allowed under the law.
Courtney: Thanks, Mike. Those are all great examples and really just only a few examples of ours that we see in VA decisions. I think one takeaway from today’s broadcast is that there are different avenues to get to that 100% rating, schedular, or through a grant of TDIU. But within both of those avenues, there are multiple different factors and considerations that you’re going to want to take into account to really prove to VA that you’re entitled to that 100% rating. So the last thing I would just say is that if you’re unsure of how to get there, but you feel strongly that you’re entitled to that 100% rating, consider seeking representation from a veteran’s service organization, an accredited representative, or attorney, whichever works best for you so that they can hopefully help you with your claim and appeal, and point you in the right direction given all of the different considerations. So with that said, Mike and Kayla, do you have any final thoughts before we end today’s broadcast?
Kayla: I would just reiterate like you said a few times throughout the broadcast, we’re really just scratching the surface of a lot of different things today. So I definitely recommend going through some of our prior broadcast and some of the blog posts that we have on our website to kind of dig a little bit deeper into all the different areas that we’ve talked about. Because there’s a lot to consider when going through these sorts of claims and it can be overwhelming and confusing and it gets a lot deeper than really the surface that we scratch today.
Michael: Yeah, and I would just add that because it’s so difficult for veterans to go from a 90% combined rating to a 100% combined rating, it really is important for them to at least consider seeking TDIU benefits if they feel that they’re unable to work because of their service-connected disabilities. It really is a way to maximize the rating, be paid at the 100% rate, despite the fact that they’re unable to achieve increased ratings incrementally through their individual conditions. So it’s something to keep in mind and if that situation applies to you, I think it’s something to keep in mind as you are seeking benefits, appealing benefits, and coming up with your evidence to submit.
Courtney: Absolutely. Thank you both. With that, that concludes today’s broadcast. This has been Facebook live with Chisholm Chisholm & Kilpatrick. Thank you all for tuning in.
