We have previously written on how the VA has implemented new rules on Gulf War syndrome seemingly rewriting the rules in favor of veterans. However there are still many potential pitfalls for the complicated rules relating to gulf war syndrome. The rules apply to Gulf War veterans who have served in either the first Persian Gulf War, as well as the more recent Operations Enduring Freedom and Iraqi Freedom. There are two types of problems that allow gulf war veterans to be compensated the first is:
1. undiagnosed illnesses
2. “chronic multisymptom illnesses” (only medically unexplained illnesses)
3. diagnosed illnesses (presumptively service connected)
VA examiners are unfortunately quick to label or shoehorn vague symptoms into a diagnosed illness that can be related to a known cause and therefore the VA would not need to compensate the Veteran. There are some techniques that could be helpful for counteracting this VA strategy. The veteran could 1. state that the problem cannot be related to any particular diagnosis (usually by expert medical opinion) 2. Also with an expert medical opinion state that the claimed diagnosis is really a chronic multisymptom illness (the examples here were previously explained and would include fibromyalgia, chronic fatigue symdrome, or irritable bowel syndrome) 3. Lastly, there is the option to argue for direct service connection. This last option would likely be difficult since it would require fairly convincing evidence that it is as likely as not that the chemicals or toxins that one were exposed to caused any given illness.
Certain illnesses will not be regarded as medically unexplained and for a gastrointestinal problem has to be a “functional” as opposed to a “structural” problem. The difference is an issue like Crohn’s disease or acid reflux (GERD) are thought to be structural as opposed to functional. 76 Fed. Reg. 41,696 (July 15, 2011). There could be many other problems that are considered medically unexplained but the rule does specifically mention problems that would not be considered as such including diabetes.
What is TDIU?
Under Total Disability Individual Unemployability or TDIU, the VA pays 100% compensation to veterans who are unable to maintain substantially gainful employment either permanently or temporarily as a result of service-connected disabilities, even if their actual combined rating is less than 100%. Unlike the schedular ratings—which are based on the average effect a particular disability has on one’s earnings capacity in general—TDIU is based on the individual veteran’s particular situation and the extent to which their disability affects their capacity to work.
Eligibility
To be eligible, veterans must generally meet the following schedular requirements: 1) have at least one service-connected disability rated at least at 60% OR 2) have two or more service-connected disabilities with at least one disability ratable at least at 40% or a combined rating of at least 70%. However, veterans with lower ratings may be eligible for TDIU under exceptional circumstances such as, for example, those who require frequent hospitalizations that significantly interfere with their ability to maintain employment.
The VA defines substantial gainful employment as “that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.”1 In contrast, marginal employment, such as odd jobs in which the veteran with no dependents earns less than $12,119 per year, is not considered substantial gainful employment and would therefore not preclude a veteran from receiving TDIU.2 In other words, veterans with no dependents who make over $12,119 per year will generally be deemed to be engaged in substantial gainful employment, which will likely disqualify them from receiving TDIU.
The VA will closely examine each application for TDIU on a case-by-case basis, examining several factors such as the veteran’s employment history and the nature and income of the veteran’s current employment. Veterans should be sure to notify the VA whether they are receiving Social Security Disability benefits because, although not decisive, it is relevant to the VA’s determination whether the veteran can engage in substantial gainful employment.
How to Apply
To apply for TDIU, Veterans may apply online using eBenefits, at the VA regional office or through their accredited representative using the VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Veterans may also request TDIU by writing a letter to the VA. The effective date for benefits is generally the date of the claim or the date the entitlement arose, whichever is later. For more info., visit the VA’s website here.
Importantly, TDIU claims may also be inferred in the original claim for disability benefits or a claim for an increased rating if evidence exists of unemployability and the veteran meets the schedular requirements (see above). This means that the Veteran need not expressly request TDIU; instead, the VA is required to treat original claims or claims for increased compensation as including a TDIU claim where the evidence indicates unemployability. In such cases, the veteran may be eligible for an earlier effective date if they can demonstrate their unemployability began within one year of the filing of the claim for benefits or for an increased rating.3
Due to the complexity of VA laws and regulations and the importance of submitting evidence of unemployability, it is particularly important to seek help from an accredited attorney in order to ensure you receive TDIU benefits to which you may be entitled at the earliest possible effective date.
Please contact the Ban Law Office if you would like assistance with your TDIU application or appeal.
The Wall Street Journal reported at the end of 2013 that Social Security is expected to rewrite rules that would give disability judges (ALJs) less independence in their decisions. Although its unclear what exactly the nature of the new rules are the WSJ is reporting that the SSA will revise the job descriptions of disability judges so that judges that award benefits outside the perceived norm will be subject to some sort of agency oversight. The report states that disability judges were already notified of these changes. According to the report, instead of having complete judicial independence disability judges will be “subject to the supervision and management” by other agency officials. The changes are apparently in response to fraud within the program including in Puerto Rico and a former disability judge in West Virginia. The WSJ does note that there is a huge disparity between the number of cases that different disability judges approve. Some judges are approving close to 90% and others denying more than 80% of their cases. Other problems are the dwindling disability fund, the increased number of people applying for disability, and the perceived ease it is to receive disability benefits. However, the data shows that this isn’t the case at all as the approval rating has fell from 67% to 56% between 2010 and 2013. The allowance rate is at a 40 year low according to the article.
Chief ALJ Randall Frye fears that there could be governmental retribution and interference in terms of the outcome in any particular case. The rates of those on disability is in line with these reduced approval ratings as between 2011 and 2012 there was a drop of 38,000 in people approved for disability. A government study also confirms that what is really causing the increase in those applying for disability is based on other factors such as the aging of the baby boom generation, population growth, and the entry of women in the workforce in the 1970s and 80s.
This isn’t to say that the economy has not had an effect on the disability roles but certainly the data shows that there were entirely predictable factors that explain the increase in applicants. In terms of proposed rule changes with the disability judges there has already been consternation by many judges and will likely have a negative effect on the whole system. Neither the applicants, the attorneys or the disability judges will be happy with the changes, and will likely fill the appeals council and federal courts with disability appeals. The bigger problem is how to solve the problem of the huge disparity in how many cases are approved by different disability judges. The merit of a person’s appeal should not depend so heavily on which judge is assigned to the case.
 Military Justice The media and even Congress has recently criticized the military justice system when it comes to military sexual assault situations that has impacted many Veterans lives. Reported stories include how the senate has proposed that military commanders would no longer have the discretion to overrule a court martial judgment. The Obama administration has threatened further reforms if the military doesn’t act on its own to progress on military sexual assault. NPR also discusses the issue that is a part of a new defense bill. In our practice we seem to be getting quite a number of inquiries about psychological problems that arise secondary to military sexual assault. Military sexual assault seems to have been ongoing problem for quite a number of years. Often these claims are quite difficult to win since there is very little to no documentation about the assault itself.
Many would be surprised that the military justice system is quite different than the civilian criminal justice system that quite clearly seems to favor the defendant and not the victim. The jurors during the trials are fellow military officers who understandably would be much more sympathetic to the alleged perpetrator. New statistics indicate that there are 3,553 sexual assault complaints from October 2012 through June, a nearly 50 percent increase over the same period a year earlier. At issue is the military law article 120 where crimes concerning sexual assault are to be found. There is a huge disparity between the number of sexual assaults that actually occur and those that are reported. It is estimated by the Pentagon that as many of 26,000 service persons had experienced sexual assault and only 3,374 actually followed through and filed formal complaints in 2012. Most disturbing is that military prosecutors were only able to secure 238 convictions. Based on these facts its quite clear that there are flaws in the military justice system.
In one reported incident an off-military base alleged assault occurred between an Air Force officer pilot and a woman. This was reported in the Stars and Stripes. The officer and the woman were the only ones in the house which made her a little uneasy, and following the alleged assault the officer had problems explaining how the sex was consensual. The alleged victim, Phegley went through the article 32 process as if she were the on trial where the dug up seemingly irrelevant details of her past to make it seem like she was not a victim. Several members of Congress have openly wondered why there should be this pre-trial interrogation of victims that has no equivalent procedure outside of the military court system. In the end, the pilot was found not-guilty. Certainly the statistics indicate that is quite difficult to get a conviction in a sexual assault case. The situations that I’ve heard range from all different types of circumstances to on-base and off base assaults, commander on inferior officer assaults, homosexual and heterosexual assaults. Clearly, they are quite common and what can be done to reduce the number of assaults is not entirely clear.
 Burn Pit Incineration There was a recent briefing on November 201, 2013 that explained some of the key aspects for Gulf War Veterans and the Open Burn Pit Registry. At the beginning of this year, a new law was passed, P.L. 112-260 section 201 that requires the VA to build up a registry of contaminants from the Persian Gulf region by January 10, 2014. The purpose and goal of the open burn pit registry to help understand what the health effects of gulf war veterans might be from airborne contaminants, particulate matter, and other toxins that were present in the Gulf War region. Eligibility under this new law will be at first open to Veterans who served in the Persian Gulf region after September 11, 2001, but will later be expanded to all Veterans of the region who served on or after August 2, 1990. The VA has a centralized website to access the open burn pit registry and information here. There is a draft questionnaire on the website but it isn’t ready to be completed yet. The website also provides a link so that Veterans can add information to the open burn pit registry, but keep in mind that a DS login is required to add to this open burn pit registry. Unfortunately, this registry will not qualify veterans for presumed exposure to these contaminants and toxins for purposes of VA disability compensation.
The senator from New Mexico Tom Udall wrote the bill and is designed to help the VA monitor Veteran’s health and to release information on new scientific studies that will help the Gulf War veteran community understand risks of exposure. There is an indepth new story from the Verge that describes some gulf war veterans experiences here. The chronic multisystem illnesses associated with gulf war service are commonly found in Veterans of this region. Often respiratory, neurological and digestive problems develop and there is no real clear cause of the ailments. The army bases of the region unfortunately incinerate just about anything one could think of such as batteries, human body parts, waste, asbestos, jet fuel, etc. The kinds of things that were/are being incinerated in the region are far more toxic then things such as wood waste that still causes significant risks to human heath. Whats worse is that the Department of Defense has long known the risks to human health from open pit burning–reportedly this has been known since 1978. At some point the government ordered the closing of open burn pits and switched to closed incineration. As can be expected the incineration does not significantly reduce the risk to human health. It has been well known that incineration that occurs in the U.S. has caused risk to human health.
 past work Many disability claimants wonder what they ultimately need to prove in order to win their disability case. For many claimants, especially those that may have had simple type sedentary (primarily sitting) work they will need to show that they cannot continue to do this type work. On the other hand, if you are applying as a person that has done primarily heavier type work in the past such as construction, similar repair type work, or any other job that required some heavier lifting or being on your feet most of the day this will not be one of the things that you will have to worry about as much. Two important things that must be considered are whether the past work were done at the substantial gainful level within the previous 15 years. What this means is that under the Social Security rules the administration set a minimum monthly threshold in terms of earnings that would be considered the substantial gainful level. However, even if you met this monthly minimum threshold you would be able to argue that if you only did the job for 6 months or less that it was only trial work and therefore should not count as relevant past work. However, even if the work was only done part time they still may count it if substantial income was earned. Also, sometimes relevant, is the fact that if you can do a past job that no longer exists in the national economy than this will also defeat a successful disability claim.
Was Past Work Accurately Described?
Sometimes a claimant will have a past job that was performed in a way that is different than the official job description in the dictionary of occupational titles, and may have been more difficult to perform than the way it is ordinarily done. Unfortunately, Social Security will look at how the job is ordinarily done and not how it was actually done by the claimant in this situation. SSR 82-61. In addition, if you did the work based on special accommodations (and not based on how its ordinarily done) you still need to show that you cannot do the work even with these special accommodations.
If you have a hearing with an administrative law judge it is also very important that the vocational expert describe the job title that best describes the job that was actually done in the past. Even if a DOT job title appears similar to the one previously done it makes sense to have the expert to describe the duties of the job to determine if they closely match what you did in past work. If they do not match another more closely related job title should be found by the expert so that past work is properly characterized. This is important because some jobs like an office helper may be considered sedentary but if you performed office type work that often involved doing heavier type work then the expert would need to take that into account.
Normally, this step of the disability determination process (step four) can be a problem if the type of work done was relatively simple and didn’t involve great physical abilities, and so keep this in mind if you engaged in work that may be described as this sort. You will need to provide social security with the details of your past work they describe the process here.
 calculating multiple VA ratings Many Veterans become confused when they have different medical problems that the VA rated them for and may not understand how to calculate multiple VA ratings. Some veterans wrongly presume that the VA simply adds together the separate VA ratings to get an overall rating. If you have multiple VA ratings you want to consult the VA ratings table located here. So in the example they give a Veteran may have an 60% disability, a 20% disability, and may think the overall rating is not 80%. Instead, look at the ratings with the highest rating on the left side of the chart and lower rating on the top of the chart. The 60% rating will be located on the left side and the 20% on the top. Then you look at the number where the two numbers intersect–and in this case the number is 68. Ratings are always divisible by 10 and so you round to the nearest number that is divisible by 10, which in this case would be 70.
If you have more than two ratable disabilities you do the same thing and line up the disabilities from highest to lowest. For example if you have a three rated disabilities 60, 40, and 20. You first take the 60 on the left side of the column and the 40 on the top they meet at the number 76 which is then found on the left side of the column and the 20 at the top. These two numbers meet at 81 which is rounded to 80. 80 is the overall rating for this example. Even easier than doing this is utilizing a calculator developed by the Vietnam Veterans of America. This calculator can be found here.
If your curious as to how much each VA rating pays per month go to the charts here. The amount of compensation you can see varies depending on if your married or if you have dependent children. One thing that’s very important to do if you are the recipient of VA compensation is to tell the VA if your married status changes or if your dependent children status changes. The reason this is so important is because if your situation changes but you do not tell the VA then you will keep receiving an amount of money that you are not entitled to and this will create the dreaded overpayment situation where you owe the government money. Alternatively, if you get married or have children then you will be missing out on money that you are entitled to. Like virtually all VA situations there is a form to give VA notice of these change in status. Go to this form.
 Toxic chemicals and Camp Lejeune We previously wrote on the Camp Lejeune disability issue about a year ago, but some regulatory and congressional acts have occurred since then. Certain Marines that were stationed at Camp Lejeune between August 1953 to 1987 may have been exposed to toxic chemicals in the on base water supply. These chemicals include volatile organic compounds trichloroethylene (TCE), a metal degreaser, and perchloroethylene (PCE), a dry cleaning agent. Benzene, vinyl chloride, and other compounds were also found on the base. It appears that the VA is considering whether a certain disease could be related to exposure to these chemicals and will likely schedule and compensation and pension exam to determine whether there is a relationship. Camp Lejeune disability benefits will likely be harder to obtain than health benefits and so it is advisable to first apply for health benefits that will usually be available if one of the 15 conditions below are diagnosed.
- Esophageal cancer
- Breast cancer
- Kidney cancer
- Multiple myeloma
- Renal toxicity
- Female infertility
- Scleroderma
- Non-Hodgkin’s lymphoma
- Lung cancer
- Bladder cancer
- Leukemia
- Myelodysplastic syndromes
- Hepatic steatosis
- Miscarriage
- Neurobehavioral effects
It appears that the Camp Lejeune disability claims are being processed out of the Lousiville, KY VA Regional Office for all Camp Lejeune disability claims across the country. The health care should be available for the above conditions for the Veteran and for the Veteran’s dependents that were on base. However, for the above conditions there is no presumptive link such as for the diseases that are presumed linked to Agent Orange and Vietnam service. It appears that the above conditions may be more likely linked to the chemicals, but this will need to be proved and developed through medical evidence. There is no automatic presumption though. Its also important to know that the disease condition need not be on this list above so long as the problem can be reasonably related to the chemical exposures through medical evidence. Anecdotal evidence shows that the Louisville Regional Office is denying these cases at a high rate and although a Veterans Disability Attorney may improve likelihood of success it is by no means a guarantee. It is likely that a specialized medical expert will need to be consulted so that they can opine on the relationship between these chemicals and any given disease. An expert who understand the toxicological effects and human disease processes will probably be most useful. A good launching point is pubmed where one can search the scientific journals on the subject.
 Medical Insurance As we posted in a previous post having access to affordable insurance and a doctor is essential to your social security disability claim. A disability attorney can only take you so far, in the absence of a decent disability medical file. Fortunately under the Affordable Care Act more disability applicants will likely be able to get access to medical care than before. Using the power of the free market there will be much more competition for affordable insurance under Obamacare aka Affordable Care Act. In Utah there will be 96 different health plans and 28 dental plans. New companies such as Humana and Altius have lower prices for more affordable insurance in the individual plan market. This could help disability applicants that are applying for social security disability so that they will be able to better document the medical problems they have. Your disability attorney can then in turn use this evidence to show that you are unable to perform past work, other work, or that you meet one of the disability listings.
In order to purchase the insurance states could either set up their own exchanges or the federal government would establish the exchange–such as the case in Utah. There are exchanges for both small employers and individuals, however from the opening of the exchange program there have been problems and glitches on the websites. In Utah there appear to be two sites to enroll both here and on the Avenue H site for affordable insurance. Open enrollment continues until March 1, 2014. Also very helpful to those that aren’t sure how to navigate this new system are official “navigators” that can help the public. There are federally funded navigators from many different not for profit groups that include Take Care Utah and can also search for the nearest navigator here. The New York Times reported on the unfortunate scenario that many of the nation’s poor may fall into if they live in state that does not choose to expand Medicaid. In Utah Governor Gary Herbert has still not decided if Utah will expand medicaid to include many of the uninsured in the state. If you are applying for disability and lack insurance please work with your disability attorney and these exchanges/ navigators to get health insurance for your disability claim.
 Disability Hearing waiting The backlog for disability social security is not as long as it used to be and certainly does not involve some of the lengthy waiting periods our veterans have to endure, but is still present. Because disability applicants often ask their disability attorneys how long it will take for their case to get approved it is worthwhile to look at the average waiting times table on the Social Security website. Working with an SSI/SSDI attorney will certainly help your chances of success in a disability case, but still most will have to wait to see a disability judge for a disability hearing. After waiting 6 months to a year for the first two steps in the disability application process there will be more waiting for a disability hearing. In Fort Myers, Florida disability applicants will wait 17 months, but only 5 months in Reno, NV. Here in Salt Lake City the average period is 10 months for a disability hearing, which is not too bad relatively speaking.
What can I do while waiting for Disability Hearing?
During this period there are many things that can be accomplished to help improve the case that include building up the medical file to improve the evidence supporting the disability. In addition, your disability attorney can help you acquire the right type of evidence from your doctor who can provide essential information on what are the functional limitations presented by your disabilities and how severe they are. If your doctor is considered a treating provider then their opinion will be entitled to some deference by Social Security. Also work with your attorney to provide lay evidence in the form of letters from friends, family members, former co workers/supervisors, and anyone else who could provide information on the extent of the disability. These can all be gathered as information with your disability attorney before the hearing is scheduled. The table linked above can give you a good rough idea as to how long you may wait for your disability hearing.
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