April 1

How to Complete the Disability Work History Report

eeSome people who apply for disability may feel that the disability work history report is a straight forward task.  Unfortunately, there are a variety of traps that need to be explained.  I will attempt to do so in this article so that Social Security understands your work history.

Why is my work history report important?

Social Security must understand your past jobs and work history so that it can determine whether you are disabled.  It is a part of the five step disability process.  At step four ability to perform past work is the issue.

What materials should I have to help complete Work History Report?

Any details you have in terms of dates worked, earnings, and particularly a copy of the detailed earnings query from SSA would assist greatly.  You can go to your local SSA office and request this statement.

Which jobs does SSA count as past jobs?

SSA uses the work history report to determine if the jobs are relevant.  The past jobs must have been performed above income levels considered substantial aka SGA.  SGA varies depending on year you can check rates here.

How is job relevance specifically defined?

SSA will look at how long the job was done, how recently the job was performed, and the income earned.  The length of time is important because depending on the skill level of the job you may not have performed the job long enough to be proficient in it.  Jobs you had more than 15 years before you stopped working will not be considered relevant.  Lastly, if the job wasn’t performed at the SGA level it won’t be considered relevant.

How will SSA determine if I can do these jobs?

SSA will use the work history report to compare what you are capable of doing (physically or mentally) and how you performed your job or how job is generally performed.  It is important to describe the jobs as fully and accurately as you can.  You can use the remarks section of the form to include other detail about the jobs.  How the job is generally performed is based on the description in the Dictionary of Occupational Titles.

How to fill out work history report generally.

The report has a remarks section which is critical because the checked boxes do not allow for a full description.  It is critical to provide as much detail as possible.  Use the “remarks” section to include detail such as mental demands of past work.  There is no space for this information within the main part of the form.  In the remarks you could describe how much memory and concentration is required, how much interaction with people was required, and how well you responded to supervisors, other workers, and the public.  There are many circumstances that you would use the remarks section such as when you did tasks that were different than your normal job.  You could detail that in a trucking job you also had to do significant unloading or loading in addition to driving the truck.

What about job dates?

Many applicants don’t remember all the dates for the jobs they have had in the past 15 years.  Use the earnings report to give an accurate time frame for those jobs.  This is important particularly for jobs that only lasted a few months.  Make sure you specify which jobs were part time since these ones will not count.

March 10

New VA Appeals System

Problems with the new VA appeals system are multi faceted, but many have complained about slow processing. A new system, expected to start in February 2019 could address these concerns. It is called the Veterans Appeals Improvement and Modernization Act. Obviously, the VA is attempting to improve the system. We attempt to address some of its main features.

When will the new appeal system begin?

The date is now set for Feb 14, 2019 or 30 days after the VA indicates to congress that the system is ready.  This means that the set date may not necessarily be the exact date it starts.

What options exist after an initial decision?

The veteran has several options:

1.  request a higher level review “HLR”. 2.  file a supplemental claim with new and relevant evidence. 3. file an NOD to the BVA.  Interestingly, the NOD used to be for initial appeals and form 9s were for BVA appeals, but the new system does not have form 9s.

What is the deadline?

The deadline remains one year from the date of the decisions, which is the same as under the prior system.

What are the pros/cons of HLR?

You do get a new fresh look (aka de novo review) by a higher review officer, but the veteran cannot submit new evidence.  If on HLR the claim is still denied the Veteran can file a supplemental claim or appeal to BVA within one year.

What are the pros/cons of filing a supplemental claim?

The VA will decide claim again if there is “new and evidence” received in the case.  If the supplemental claim is denied it can be appealed within a year through various lanes including requesting HLR described above, filing a new supplemental claim, or appealing to the BVA.  All options maintain original filing date for effective date.

Is there a BVA Option?

Yes you can appeal to the BVA still by filing an NOD, which was previously used to appeal after an initial denial, but now the NOD will replace the form 9.  The specific determination that is disagreed with must be included in the NOD.  There are 3 options under the new BVA appeal options:

1.BVA hearing at BVA in Washington DC or on videoconference, but no more traveling judges.

2. Submit new evidence without a BVA hearing

3. Can request no hearing with no new evidence.

If doing a hearing you can submit evidence at hearing or even after hearing.  If submitting new evidence without a hearing must do so with NOD or within 90 days of VA receiving the NOD.

What are BVA appeal options?

1.  BVA appeal to Court of Appeals for Veterans Claims (CAVC) within 120 days is preserved in new appeal system.

2.  There is also new option to file a supplemental claim within one year.  Both options preserves the same effective date.

This is a brief overview of the new system and although it is expected to go into effect next February 2019 this is not set in stone.  We will keep you informed of any updates as they occur.

December 7

Win your VA case with “Lay Evidence”!

What is Lay Evidence?
Lay evidence is any evidence written from a non-expert or non-medical professional that offers observational or a layperson’s perspective on any necessary fact that can substantiate a claim for VA compensation. More simply stated, any written or oral statement that describes one’s symptoms or what a veteran experienced during service that may have caused a disability to be service connected.

Why do I need lay evidence to support my case?
Lay evidence is extremely powerful evidence because the VA is prohibited from disregarding it. So long as the evidence relates to factual issues that can be observed either by a third party or the veteran themselves–the evidence must be considered and factored into the ultimate decision. The only problems veterans sometimes have is that they use this opportunity to try to give an opinion on whether a condition is service connected by giving an opinion that only a medical or some other kind of expert can give. An example of this type of opinion would be that if the veteran said, “I believe that my service connected shoulder problem caused the problem in my wrist.”. This would be dismissed by the VA since it gives an opinion that only a professional medical expert could give, and not a layperson. However, if the veteran’s letter or affidavit indicates for example: “Since my service in the military I have experienced a sharp pain from my wrist to my shoulder approximately once every three days. The pain is of the shooting variety that flares up to occasionally severe pain. When I have it I can barely use my arm, but it depends on the day”. The more detail that is given the better.

The example above is extremely useful because it doesn’t give any particular opinion, but only gives the VA an idea as to the facts of a particular condition. Its also credible and believable since it does not tend to exaggerate or embellish the problem. The facts give an idea that the problem is not an every day problem, but is occasionally severe depending on the day.

In what format should my lay statement be in?
There is an official VA form to provide such a statement. If you are so inclined you can use the VA form. However, writing your letter on a separate piece of paper is just as effective. The important thing is the content should be factual and not opinion oriented as described above. It should also be dated, include your name or the Veteran’s name and C file number, and be signed by the person making the statement. Some people put the statements in a more formal affidavit format that could could be subscribed and signed by an official notary with indication that the statement is given “under the penalty of perjury”. This is certainly not required, but could enhance the validity of the statement.

Who should write a lay statement?
The veteran and any other person who was able to observe the veteran’s condition. This could be a buddy from the military who observed the veteran’s disability or a family member. Any person that can provide a factual basis as to when a disability stated or how severe a disability is.

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