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May 2011 Newsletter
VA Individual Unemployability:
After the initial IU award has been made, the veteran must submit a VAF 21-4140, Employment Questionnaire, on a yearly basis to certify continuing unemployability. The VAF 21-4140 is required unless the veteran is 70 years of age or older, has been in receipt of IU for a period of 20 6
or more consecutive years (as provided at 38 CFR 3.951(b)), or has been granted a 100 percent schedular evaluation. The form is sent out annually to the veteran from the Hines Information Technology Center and must be returned to the regional office. It requests that the veteran report any employment for the past 12 months or certify that no employment has occurred during this period. The VAF 21-4140 includes a statement that it must be returned within 60 days or the veteran‘s benefits may be reduced. Completion of this form has a major impact on IU benefits in one of three ways, as described below. If VAF 21-4140 is returned in a timely manner and shows no employment, then IU benefits should continue uninterrupted.
If VAF 21-4140 is returned in a timely manner and shows that the veteran has engaged in employment, VA must determine if the employment is marginal or substantially gainful employment. If the employment is marginal, then IU benefits will continue uninterrupted. If the employment is substantially gainful, then VA must consider discontinuing the IU benefit. VA regulations at 38 CFR 3.343©(1) and (2) provide that actual employability must be shown by clear and convincing evidence before the benefit is discontinued. Neither vocational rehabilitation activities nor other therapeutic or rehabilitative pursuits will be considered evidence of renewed employability unless the veteran‘s medical condition shows marked improvement. Additionally, if the evidence shows that the veteran actually is engaged in a substantially gainful occupation, IU cannot be discontinued unless the veteran maintains the gainful occupation for a period of 12 consecutive months. Once this period of sustained employment has been maintained, the veteran must be provided with due process before the benefit is actually discontinued, as stated at 38 CFR 3.105(e) and 3.501(e)(2). This consists of providing the veteran with a rating which:
· Proposes to discontinue the IU benefit
· Explains the reason for the discontinuance
· States the effective date of the discontinuance, and
· States that the veteran has 60 days to respond with evidence showing why the discontinuance should not take place.
If the veteran responds with evidence, it must be evaluated. If the evidence is insufficient or the veteran does not respond, then the regional office will discontinue the IU benefit and provide the veteran with a final rating decision explaining the decision. The effective date of the discontinuance will be the last day of the month following an additional period of 60 days, which begins from the date the veteran is notified of the final rating decision.
If VAF 21-4140 is not returned within the 60 days specified on the form, then the regional office must initiate action to discontinue the IU benefit pursuant to 38 CFR 3.652(a). Due process must be provided with a rating decision that proposes to discontinue the IU benefit for failure to return the VAF 21-4140. If a response is not received within 60 days, then the IU benefit will be discontinued and a rating decision will be sent to the veteran providing notice of the discontinuance. The effective date of discontinuance will be the date specified in the rating decision which proposed discontinuance, as described above, or the day following the date of last payment of the IU benefit, as specified at Â§ 3.501(f), whichever is later. The veteran must also be notified that if the form is returned within one year and shows continued unemployabality, then the IU benefit may be restored from the date of discontinuance.
If you have not received a VAF 21-4140 form by the anniversary month of your initial IU award you might want to consider downloading the form and submitting it. The form can be completed online and downloaded at http://www.vba.va.gov/pubs/forms/VBA-21-4140-1-ARE.PDF. Always send everything to the VA by certified mail with a return receipt. Make sure you keep a copy of the completed form. [Source: VA Training Letter 07-01 March 07 ++]
VA Benefits Update 02:
The VA is bigger than most realize. As a result most veterans have a lot of misunderstanding with how the VA functions and thus are confused when dealing with the VA for both compensation claims and/or getting medical treatment. Hospitals, clinic, Vet Centers and such provide treatment. They work under their own guidelines, regulations, and budgets. The Benefits Administration or as most commonly called the Regional Office confers compensation/service connection for military related illnesses and injuries, and other commonly known benefits such as home loan guarantees and education. The Benefits Administration does not work under a budget. Both administrations have departments, divisions, subdivisions and contractors. There is a lot of room for communication to break down. So be pro-active and check carefully who will do what and when. As an example: Going to a Vets Center for PTSD does not automatically request service connection for PTSD, nor does it automatically guarantee service connection and compensation. Make the appropriate requests at the appropriate office.
Claims for compensation and service connection of a medical problem must be made to the regional office in your state. In order to have medical problem service connected and compensation paid; there must be evidence of a chronic medical issue being linked to a veteran‘s active military service. Evidence most frequently comes from military service records especially medical records. When these are missing evidence can come from other sources such as witnesses, photos, news stories, and old letters to home. The source of the evidence is important to the credibility of it. A statement from your wife, who stands to benefit financially with a favorable decision is not as credible as your former supervisor in the service whom you have not seen in years. Such was the case of a veteran whose wife signed a document attesting his tinnitus was so bad she could hear the ringing in his ears even across the house in the kitchen. In another case a disinterested third party who did not even know the veteran or anything about his claim, described the working conditions at the flight hanger where the vet worked so well that the VA was able to award service connection for a hearing loss.
The first time any claim is made during the life time of a veteran, a VA form 21-526 or VA form 21-526EZ must be filled out. After that a simple hand written letter is sufficient. In fact, a claimant does not even need to fill out a VA form 21-526 at first. Just write to the Regional Office and they will send you what they need for documentation. This is because years ago many vets filled out the claims form and forgot about it. Once the 526 is completed, it is for life. It starts the building of your claims file or in VA jargon, the C-file. A copy of every communication sent to the veteran or received from the veteran is supposed to be in that file forever. When writing to the VA, keep remarks short, sweet and to the point. Adding drama to any correspondence only lowers the credibility to the reader, a VA employee. If there are implausible aspects of your story explain them in simple terms and then get some sort of collaborative evidence to submit at the same time.
Generally, a claim for benefits or an increase in benefits specifically must be made by the veteran with his or her own signature. A visit to a medical facility should not be considered by a veteran to be a claim of any sort even if a staff member/employee states there is one. So get the appropriate paperwork done and then sign it. You don‘t make claims for service connection through a medical facility. However, again generally speaking, the exception to this is when a veteran spends 21 days or more in the hospital for an already service connected issue. The VA hospital is supposed to notify the Regional Office that the veteran was hospitalized for an excess of 20 days for treatment of a condition that is service connected. In this case a Rating Decision should be completed. In reality, write the Regional Office, regardless, and tell them you were in the hospital (civilian, military, or VA) and get the temporary increase in benefits. Try not to assume anything.
Medical treatment at a VA treatment facility does not confer the status of ―service connection‖ on a medical problem. ―Service connection‖ is the legal status conferred on a claim that is made only by a Regional Office and only after a rating decision has been completed. This brings us to one final and very important point; read and re-read all that the VA sends you. Determine what is appropriate for your case. The VA is a very large, complex 15
organization that often fails to communicate well within its own. Don‘t waste time getting angry and frustrated just get informed. [Source: Veterans‘ Voice | former VA Rating Specialist Thom Stoddert article Apr 2011 ++]
PTSD Update 64:
Veterans dealing with symptoms of Post Traumatic Stress Disorder (PTSD) can turn to their smart phones for help anytime with the PTSD Coach application created by the Department of Veterans Affairs (VA) and the Department of Defense. PTSD Coach lets users track their PTSD symptoms, links them with local sources of support, provides accurate information about PTSD, and teaches helpful individualized strategies for managing PTSD symptoms at any moment. The free PTSD Coach app is now available for download from the iTunes store and will be available for Android devices by the end of the spring. The PTSD Coach app can help users learn about and manage symptoms that commonly occur after trauma. Features include:
· Reliable information on PTSD and treatments that work
· Tools for screening and tracking your symptoms
· Convenient, easy-to-use skills to help you handle stress symptoms
· Direct links to support and help
· Always with you when you need it
· Free iTunes with PTSD Coach download.
Together with professional medical treatment, PTSD Coach provides dependable resources you can trust. If you have, or think you might have PTSD, this app is for you. Family and friends can also learn from this app. PTSD Coach was created by the VA's National Center for PTSD and the DoD's National Center for Telehealth and Technology http://t2health.org/apps
NOTE: PTSD is a serious mental health condition that often requires professional evaluation and treatment. PTSD Coach is not intended to replace needed professional care. The questionnaire used in PTSD Coach, the PTSD Checklist (PCL), is a reliable and valid self-report measure used across VA, DoD, and in the community, but it is 16
not intended to replace professional evaluation. [Source: http://www.ptsd.va.gov/public/pages/PTSDCoach.asp Apr 2011 ++]
PTSD Update 65:
A Vietnam veteran who received the Bronze Star and later was diagnosed with post-traumatic stress disorder filed a federal lawsuit 21 APR trying to get the Army to modify his other-than-honorable discharge so that his sacrifice will be recognized and he can get disability benefits. John Shepherd, 63, says he battled alcoholism and struggled to stay employed for 40 years, but was not diagnosed with PTSD until 2004. "My other-than-honorable discharge has made me feel deeply ashamed for many years," Shepherd said in a statement. "I hope this lawsuit can finally change that." In 1969, Shepherd served a combat tour in the Mekong Delta, participating in patrols and search-and-destroy missions. The Army awarded him with a Bronze Star after his unit came under intense fire and Shepherd rushed toward an enemy bunker, entered it and threw a grenade that killed several enemy soldiers, according to the lawsuit.
· Shepherd developed symptoms of PTSD after blowing up the enemy bunker and later witnessing the gruesome deaths of several comrades, according to his lawsuit. Shepherd also witnessed the killing of his commanding officer, who was reaching down to pull Shepherd out of a ditch when he was shot multiple times.
· Shepherd began to act strangely and at one point was found wandering around a base in a confused state. He eventually reached a breaking point and refused to go back out into the field. He was charged with failure to obey an order and discharged.
· Shepherd's other-than-honorable discharge has barred him from numerous veterans' compensation benefits programs for which he is otherwise eligible, impaired his employment opportunities, grossly devalued his military service and imposed upon him a lifetime of stigma and shame.
· At the time, medical authorities did not recognize PTSD as a psychological disorder and Shepherd's symptoms went untreated as a result.
· After the attacks of Sept. 11, 2001, Shepherd's mental state deteriorated further. He became more and more tortured by his Vietnam memories and he felt intense shame about his less-than-honorable discharge. He had trouble holding down a job and began living in his truck.
· Shepherd sought counseling in 2003 at the New Haven Veterans Center, leading to his PTSD diagnosis. A Veterans Affairs therapist concluded his refusal to obey an order stemmed from his PTSD, describing him as shell-shocked. The Army said Shepherd missed a deadline for filing such claims and cited earlier incidents of failing to report to duty. The lawsuit asks that a judge upgrade Shepherd's discharge status or overturn the Army's decision that his application came too late.
· The lawsuit acknowledged Shepherd was convicted of being absent without leave before he was deployed to Vietnam but says he was still deemed an outstanding soldier. The discharge was based on an incident related to PTSD and the Army only did a cursory review of the merits of the claim without considering Shepherd's 40 years of suffering, said Rebecca Kraus, a Yale Law School student representing him.
Other veterans suffering from PTSD are coming forward seeking discharge upgrades. "During the Vietnam era, people did not understand when service members like John Shepherd developed PTSD," said Dr. Thomas Berger, executive director of Vietnam Veterans of America's Veterans Health Council. "Honoring our commitment to veterans means making sure that all those with PTSD get the recognition and benefits they deserve, including an appropriate discharge upgrade." The Connecticut Bar Association and other groups announced this week they will train volunteer lawyers and other advocates to help veterans apply for discharge upgrades. The process is complicated and time-consuming for many veterans, the bar association said. "Decorated Vietnam-era combat veterans who are still suffering from PTSD have asked us for help because they received less than honorable discharges for impulsive acts that were likely the symptom of a mental health issue that wasn't well understood at 17.
Ever Wonder How VA Math Works?
Veterans frequently ask how VA math determines their compensation percentages. A quick way to understand this process is described below. A veteran begins at 100% or the equivalent of a “whole” healthy person equaling 100. Let’s say that the veteran receives 40% disability for service connected back problems and 30% for each knee. If you add 40% + 30% + 30% you will calculate that the veteran is at 100%; however, that does not take into account that each disability percentage affects the overall whole (100) at different stages. So, consider the following: The highest value disability is calculated first; therefore, the 40% disability is calculated first: 100 X .60 = 60 or 60% of the whole. The veteran has decreased from 100% to 60% of the whole healthy person. Now the 60% is used below. If the next largest disability is rated at 30%, multiply .60 (from the 60% above) by .30 (or 30%): 60 X .30 = 18 Then subtract 18 from 60 as follows: 60 – 18 = 42 or 42% of the whole. The veteran has decreased from 100% to 60% to 42 % of the whole healthy person. Now the 42% is used below. Next calculate the third largest disability. In this case let’s use 30% disability. 42 X .30 = 12.6 or 12.6% of the whole Then subtract 12.6 from 42 as follows: 42 – 12.6 = 29 or 29% of the whole. The veteran has decreased from 100% to 60% to 29% of the whole healthy person. Now the 29% is used below. We originally started at 100% of the whole and must subtract 29% as the remnant of the procedure above and that leaves 71%… 100 – 29 = 71% Since the VA calculates in whole amounts, the veteran is now considered to have a 70% service connected disability by rounding to the nearest percentage.
The House VA Committee cleared several VFW-supported
bills, which now move to the House floor for a
vote. They include: