April 12

The Rule Against “Pyramiding”

A huge source of confusion among Veterans is how individual disability ratings are combined to produce their overall rating. When a Veteran has two or more service-connected disabilities, their overall disability percentage is determined by using a special table to combine the individual ratings, NOT by adding them together using simple addition. To do this, the VA calculates the total percentage by considering each disability in order of severity, beginning with the highest evaluation. These detailed calculation instructions are found here.

Here is an example: A Veteran is rated 30% for one service connected condition and 20% for another. Rather than adding these two numbers together, to get 50%, you use the combined rating table.

VA disabilities, including ones from a single disease or injury, must be rated separately. Then, all ratings are combined according to 38 C.F.R. § 4.25. There is one exception to this rule known as anti-pyramiding. This is basically a prohibition against compensating a Veteran more than once for the same disability or the same symptoms.

For example, in the CAVC case, Esteban v. Brown, the court had to determine the issue of whether the Veteran suffered from only one disability, which would result in a single rating, or, whether the Veteran suffered from multiple disabilities, resulting in separate ratings for each separate disability. The Veteran in this case suffered from three conditions as a result of a car accident during service: disfiguring scars, painful scars, and facial muscle damage that interfered with chewing. While the VA admitted that the Veteran could be rated as 10% disabled under any of the 3 codes, it did not issue separate disability ratings. Fortunately, in the end, the court determined that because the codes at issue addressed three different disabling conditions (cosmetic damage, pain, and limitation of function), the Veteran should get separate awards.

Additionally, in Amberman v. Shinseki, a Veteran suffered from two service-connected mental disorders: bipolar affective disorder and PTSD, which were rated together. The Veteran argued that the two service-connected disorders were not the “same disability” and should be rated separately. The court recognized that bipolar affective disorder and PTSD could have different symptoms, and therefore the VA, in some situations, has to treat these as separate disabilities. It is important to note that in this case bipolar affective disorder and PTSD shared no similar symptoms. This may often be challengting to argue however since often mental impairments have many overlapping symptoms.

If a Veteran wants to receive separate ratings as a result of a single disease or injury, they should:
1. Make an argument that they suffer from more than one disability – shown by a variety of symptoms, and
2. the diagnostic codes are not duplicative and do not involve overlapping symptoms

If a Veteran successfully argues these points, he or she would be entitled to separate ratings.

November 29

Social Security and Citizenship

Citizenship status and SSDI eligibility

You do not need US citizenship or permanent residency to qualify for Social Security Disability Insurance (“SSDI”). However, you must work in The United States legally. In addition, you must have a social security number and earn the necessary work credits to qualify for benefits (work credits are discussed in depth below.) Also, you are unlikely to receive SSDI if you are a non-citizen from Cuba, North Korea, or Vietnam. However, refugees, even if they are from these countries, may receive benefits. A refugee is a person forced to leave their home country in order to escape war, persecution, or a natural disaster.

General SSDI Eligibility

SSDI eligibility is based on numerous factors. First, you must be out of work for a minimum of twelve consecutive months, or have a life-threatening disability. Specifically, Social Security will determine your ability to work by examining your work history for a specific job over fifteen years. Additionally, Social Security will inspect your ability to work in other occupations.

Second, Social Security will examine your monthly income. Specifically, you cannot make over $1130 per month. Visually impaired individuals cannot make over $1820. These amounts, and the cost of living, rise annually. Further, SSDI does not factor in your spouse’s income in determining your benefits.

In conclusion, Social Security examines your medical problems and work experience in determining whether or not you qualify for benefits. Moreover, you must earn a specific amount of work credits to qualify. These requirements depend on your age and the amount of time you worked before your disability. For more details on specific requirements click here.

Citizenship status and SSI eligibility

Blind, disabled, or elderly (over 65) individuals may qualify for Supplemental Security Income (“SSI”). To qualify, your assets cannot exceed $2,000. In addition, your assets cannot exceed $3,000 if you are married. Typically, citizenship is a requirement for SSI eligibility. However, exceptions exist. First, you may qualify if you are disabled or blind, and lived in the United States on August 22, 1996. Second, you may qualify if you lawfully reside in the United States and received SSI on August 22, 1996. Third, you may be eligible for benefits if you have 40 work credits (your parent or spouse’s work credits count) and were lawfully admitted for permanent residency. Although this option is for Disability Insurance (SSDI) and not SSI. For more information, please click here.

How do I prove my legal status to work?

The documents needed to prove your legal status vary, and are dependent upon your immigration status. In order to prove your authorization to work, you must have a social security number, or an employment authorization document also known as an EAD. If you are a refugee, you must present a form I-94 stamped with work approval, as well as photo identification, to obtain a social security number. If you do not have a copy of your I-94, you may apply for or retrieve one here. You may only use this website to obtain an I-94 for yourself, for someone you hold legal guardianship over, or if you have permission from the person whose records you wish to obtain.

Non Immigrant Visas

Individuals with non-immigrant visas need a social security card to lawfully work in The United States. However, it is important that you have a thorough understanding of your visa, because not all non-immigrant visas permit working within the country. In addition, some professions are exempt from paying taxes into the social security system. For example, “teacher, student, researcher, scholar, physician, au pair, [or] camp worker,” positions may not impose social security taxes. Check with your employer if you don’t if know you are paying social security taxes, or refer to your check stubs.

Those that hold a permanent residency card, known also as a green card or I-551 Visa, are eligible to work legally. Most people apply for both a social security number and permanent residency card simultaneously. If you have not applied for a social security card, you can visit your local office in order to do so. You must bring your residency card as well as your birth certificate.

What else do I need to apply for Social Security?

In order to apply, you will need your recent immigration documents, your passport, your social security number, your work history, and your W-2. You should also bring a list of all doctors, clinics, hospitals, medications and dosages, and records from treatment facilities. This includes the names, addresses, and phone numbers of all sources of treatment.

November 17

How to get VA Records?

VA records

VA records

The success of your claim(s) is often dependent on how successful you are in locating records critical to proving these claims. This is especially true if you have more historic claims. Here the challenge is locating service treatment records that typically go the essence of you what you need to prove in your case. Below are some strategies and agencies to consult when you need to find the records to prove your case. VA cases are paper driven, so to prove your case you need to locate the relevant documents. It is true that the VA is required to help you find your records, however we have provided ideas on how to get these records yourself which may reduce the time needed to prove your case.

Will the VA help me to find my records?

Technically yes. Under the Veterans Claims Assistance Act the VA must “make reasonable efforts to obtain relevant records”. This is regardless if the records are help privately or by other federal sources. The claimant only needs to “adequately identify” the record and give VA permission to obtain those records. The VA has the duty to put forth an effort so strong that any further effort would be “futile”.

This is the black letter law on what the VA must do. The Veteran may rely on these rules and force the VA to obtain these records. Practically, it often makes sense to get these records yourself not only because it will save you a significant amount of time in terms of claim processing, but also often the VA effort to get these records may be less than a full effort. Not because the VA doesn’t care or isn’t required, but its simply an issue of staffing constraints. Still though this VA duty is a powerful rule since it can often be the basis for appeal since under the Veteran’s Claim Assistance Act since they are required to get these records and often do not. This duty is implicated under 38 U.S.C. 5103A.

The in person option for VA medical records

If you live in Utah go to the Salt Lake City VA hospital, and the VA’s release of information staff can assist you with obtaining medical records at the George E. Wahlen Department of Veterans Affairs Medical Center. It is located in building 14, basement room BB1B in Salt Lake City, Utah 500 Foothill Drive. You may also use the U.S. Department of Veteran’s locator located here.

Requesting VA Medical Records Online

You can register and verify your identity by going through authentication at the bottom of the website below. You may then view, print, or download VA Medical Records here.

Military and Service Treatment Records (STRs)

The service treatment records are often found in your C file (VA claims folder) but sometimes not due to the often cited reason of a fire at the St. Louis archival fire in the early 1970s. These records are stored at the National Personnel Records Center (NPRC) in St. Louis, Mo. This center generally houses service personnel and medical records. However, does not house the inpatient service records if those exist. Most of these records are not electronic but are instead paper records. The STR’s usually include outpatient but not inpatient records. It is very important to inquire whether inpatient records are relevant in your case. Any records relevant to in service incurrence of an injury are relevant as well as any discharge exam.

Online Requests to the NPRC

Records can be requested online.
A written signature is required when requesting your records online. You can mail, or fax the signature to the address you are given after requesting the records online. A next of kin may request records this way, but a living veteran must request records using the standard form 180. It is important to remember that inpatient records, combat records, or other records will likely not be sent if they are not specifically requested. If you need impatient records, then you need to specifically indicate at which hospital you were treated and the specific dates.

If the veteran has an attorney the request can be returned to either if the veteran signs section III.3. If after 3-6 weeks no response is given then another request marked as such should be sent. Or if an incomplete response is sent back the problem should be explained in a letter. Calling (314) 801-0800 you can check the status of the request.

Mailed Requests to the NPRC

You can request the records by mail using Standard Form 180 found here.
You will need access to a printer and Adobe Acrobat Reader software in order to print and fill out the three page request. Review the tables on page three to locate the address in which you need to send the request. The location is based on branch of service, dates of separation, and the type of record you are requesting.

Fax

You can fax the Standard Form 180 to 314-801-9195.

Is there a cost for my records?

Usually there is no cost for basic military personnel and medical records information. If there is a cost, the center will contact you. Requesting official military personnel files by mail or fax is $25 flat if the records are under five pages. For records that are six pages or more the cost is $70 flat. Most records are six or more pages. For veterans of exceptional prominence, war heroes, political leaders, cultural figures, celebrities, or entertainers, the cost is $.80 per page($20 minimum). Not all records are available to the public, and some are not available in digital format. The cost ranges from $20-$250.

It is important to request a fee waiver pursuant to the Privacy Act and the FOIA. 32 C.F.R 286.28(d) or 310.20(d). There is also a specific provision for homeless veterans so they can get expedited treatment of their DD 214. This request can be faxed to 314-801-9195.

Checking on Status of Request

After a minimum of ten days, you may check on the status of your request at or you may contact the NPRC Customer Service Line at 314-801-0800.

November 11

Evidence in Social Security Disability

Evidence in Social Security Disability

Much has been made of Social Security’s new rules that were put in place in the beginning of 2015. The rules were implemented after notice and comment procedures. The general goal of these rules were to provide clarity that was previously lacking in terms of what evidence a claimant and their representative/attorney must submit. Some attorneys were hesitant or not submitting evidence that was non supportive of disability. The new rules now clarify that all evidence (both supportive and non supportive) must be submitted. There are notable exceptions for attorney work product and attorney client privileged information.

Who is responsible for submitting evidence to Social Security?

The claimant or representative is responsible for obtaining and submitting all evidence to Social Security. This includes at all levels of the appeal process including appeals to the Appeals Council. If the evidence is in a foreign language, the Social Security Office can have it translated. If you have a representative, they will assist in the process of obtaining necessary evidence. The representative is primarily responsible for obtaining evidence at the hearing level, however the administration will primarily gather evidence at the application and reconsideration levels. This is after you have informed them which doctors you have seen so they know where to request them from.

What evidence do I need to submit and when?

In short, pretty much all evidence including evidence that would tend to show that you are not disabled. Attorneys are supposed to inform their clients that they must submit all evidence including evidence that is not supportive of disability. All medical and non-medical evidence that you receive after requesting it must be submitted as evidence. No factual information, medical, or non-medical evidence may be withheld. When you apply for disability, you must identify all medical and non-medical sources related to your disability on the form. The rule also states that you have a continuing duty to inform SSA about any new information that becomes available after you first informed them of sources of medical information/evidence. The records must include everything from the previous twelve months before the date you became disabled.

If your disability does not date back that far, or dates back further, you will be required to submit all relevant evidence dating back to the beginning of your disability. All evidence from these sources must then be submitted to Social Security. In addition, you also have the option of just informing Social Security about any evidence related to your claim. However, you will also be expected to respond to any and all requests for related information, or evidence.

What if I don’t submit evidence or disclose existence of evidence that relates to whether I am disabled?

One could be subject to civil penalty but would not include those persons who have cognitive impairments and do not understand these rules. It would also include instances in which a claimant withheld or concealed evidence from their representative.

Which type of evidence does this rule not encompass?

It does not include “attorney work product” that is commonly defined in state ethics rules such as the mental impressions and attorney theories as to what may happen in case. Such as whether an attorney believes their client is disabled. It also doesn’t include any communications that would be otherwise privileged as attorney client communications.

What happens to the evidence once you submit it? Is it kept confidential?

The evidence obtained by Social Security is kept confidential and is used for purposes of determining your eligibility. You must submit a written request, or visit the local office in order to obtain records from Social Security that you do not have. It may be released to the claimant, parent, or legal guardian with proper identification. It may also be released to an adult who holds legal guardianship over an individual if they have been declared legally incompetent.

Who has to pay to obtain the evidence?

The claimant is responsible for giving all relevant evidence to Social Security and this includes any reasonable cost. This question is not so clear since another rule states that social security will pay for records from non-federal sources. 20 C.F.R. 404.1514. If you reasonably make efforts to find and locate records but there is a problem receiving them it is possible to request that Social Security issue a subpoena.

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