When you are injured and seeking financial compensation, there is a lot to learn.

Browse through our blog for answers to your questions.

Reasons My VA PTSD Claim Was Denied

The Veterans Benefits Affairs (VBA) claims process is a lengthy and daunting process that often raises uncomfortable emotions related to a person’s service, injury, or resulting illness. Although the VBA touts its benefits, the reality is that many service members are ultimately left with little to no recourse for the damaging effects of their service. Some physical injuries can be traced directly to a military event. But some of the most catastrophic service injuries relate to the psychological aftermath of a traumatic experience. Many of these experiences result in post-traumatic stress disorder (PTSD), which can drastically inhibit a service member’s quality of life and everyday activities. Generally, under the VA standard, those who serve in the armed forces and who receive a discharge “under conditions other than dishonorable” are eligible for VA benefits. You may be wondering, Are there reasons my VA PTSD claim was denied? The answer is yes — the VA denies meritorious PTSD claims for many reasons. Why Are PTSD Claims Denied? Under 38 CFR § 3.304(f), service connection for PTSD requires medical evidence diagnosing the condition under 38 CFR § 4.125(a). You must provide medical evidence that there is a link between their current symptoms and an in-service stressor. You must also present credible supporting evidence that the claimed in-service stressor actually occurred. Although the standard appears straightforward, the inherently bureaucratic nature of the system along with complex evidentiary requirements makes this an exceedingly challenging process. Even though 38 USC § 5107(b) provides that the VA must give you the “benefit of the doubt,” the VA continues to deny PTSD claims because of errors and evidentiary issues. So if you are wondering why your PTSD claim was denied you are not alone. Denials are relatively common with PTSD claims. Let’s take a look at a few common reasons why the VA has denied PTSD claims. Insufficient evidence One of the most common reasons the VA gives for denying PTSD claims is lack of evidence. Obtaining the evidence the VA wants to see to approve a claim can be a challenge; however, it is possible. A knowledgeable PTSD appeals attorney can help veterans present a compelling application while saving them time and stress. Missing Records To qualify for VA benefits with a PTSD diagnosis, you must include the necessary service records. The VA will often deny a PTSD claim if it does not have a record of your service. If the VA denied your PTSD claim for missing records, you can appeal the decision. Eligibility Requirements Often the VA will deny a claim based on some perceived ineligibility. However, the VA is not always correct in its initial assessment and can be convinced to reconsider an initial decision. Steps for Submitting Your Claim Many service members rely on the assistance of non-attorney representatives or fellow service members when submitting their claim and appealing a PTSD claim denial. But these cases require the experience of an experienced PTSD appeal attorney. An attorney can ensure that service members properly complete each step of properly submitting a PTSD claim, and they can appeal denials. Every step is an opportunity for service members to present compelling evidence to support their claim for service-connected benefits. First Step The first step in a PTSD claim involves providing medical evidence of a current disability. Veterans can get denied if they do not have a current PTSD diagnosis from a medical professional. While many seek treatment from licensed counselors, the VA generally requires the diagnosis to come from a physician, registered nurse, or nurse practitioner. A service member’s diagnosis must be based on the Diagnostic and Statistical Manual of Mental Disorders (DSM). In some cases, the VA will deny a “hostile enemy zone” claim if the diagnosis did not come from a VA psychologist or psychiatrist. Medical providers must indicate the level of disability per the VA’s rating schedule. The VA may deny a claim if there is an issue with the diagnosis or if the service member fails to attend a “Compensation & Pension” exam with a VA medical provider. Second Step Those who succeed on the first step must then prove the link between the in-service stressor and PTSD. There are generally three types of in-service stressors in PTSD cases: Combat or hostile enemy zone claims; Military sexual trauma (MST) claims; and Non-combat-related PTSD cases occurring during peacetime. Proving this link can be exceedingly difficult. PTSD often occurs after a stressful event, and not every event is documented. Although the VA maintains the duty to investigate the stressful event, its investigations are often less than diligent. An attorney can help you gather the necessary letters of support from mental health providers and others who may have witnessed or can verify the in-service stressor. Verifying In-Service Stressors In cases where the veteran was diagnosed with PTSD while still in the military, the in-service injury is generally established. However, because the VA and Department of Defense have different characterizations of discharge standards, the veteran’s discharge may pose an obstacle to obtaining benefits.   Typically, in hostile enemy zone cases, the in-service stressor related to the veteran’s fear of hostile military or terrorist activity does not need corroboration. However, non-combat and in-service personal assault claims require credible supporting evidence that the stressor occurred. Evidence of these stressors may be found in military personnel records, service medical records, “buddy statements,” or statements of family members. However, in many cases, service members understandably downplay the effect of their stressful experiences, so the evidence may not exist in these records. In other situations, if the evidence does exist, it may be encompassed within hundreds of pages of documents. Many service members receive denials because they cannot obtain the primary evidence to corroborate the stressor. In other cases, the VA claims processor may not find the evidence credible or probative. An attorney can help by gathering evidence through the following means: Service personnel records, Pay and hazard pay records, Military occupation evidence, Military performance reports, Unit and organizational histories, War diaries, […]

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How to Win a VA Disability Claim Appeal

When you receive the letter with the VA’s decision to deny your disability compensation claim or underrate your disability rating, you do not have to simply accept it. Maybe when you filed your original claim, you didn’t have evidence that your injury was service-related. Maybe you didn’t provide descriptions of the disability from friends or family. Read on to learn about your options and how to win a VA disability claim appeal.  What Are the Options for Decision Review and What Are the Deadlines? The VA offers three ways to appeal the denial of a claim made after February 19, 2019: a Supplemental Claim, Higher-Level Review, and Board Appeal. The deadlines and evidence required for these appeals vary depending on the method you choose. If you have new evidence, you should choose an option that allows you to submit it. Claim denials dated before February 19, 2019, go through a legacy appeals process, or you can choose to appeal using the modernized decision review options. Supplemental Claim If you want to submit new evidence for the VA to review, you can file a Supplemental Claim. The evidence in your Supplemental Claim must be new (the VA didn’t have the information before it made its original decision) and relevant (the information could prove or disprove something) to your claim. The VA’s duty to assist applies to Supplemental Claims. You can file a Supplemental Claim by mail or in person. There is no time limit to file a Supplemental Claim. If you file within one year of the original decision and the VA grants your Supplemental Claim, the effective date of your payments will relate back to the original claim, and you may receive retroactive payments. The VA should return a decision on your Supplemental Claim in 4-5 months.  Higher-Level Review If you don’t have new evidence to submit but want an additional review of your claim, you can request a Higher-Level Review of your initial claim or Supplemental Claim decision. A new, senior reviewer will determine whether they can change the decision because of a difference of opinion or an error.  You must request a Higher-Level Review within one year of the date of your VA decision notification letter. You can request a Higher-Level Review online for disability compensation claims, but you must request a review of all other types of claims by mail or in person. During the review, you can speak with the reviewer on the phone to explain why you think they should change the decision, such as an error in your decision notification letter. You can expect a decision from the Higher-Level Review in 4-5 months. Board Appeal A Veterans Law Judge on the Board of Veterans’ Appeals will review your claim in a Board Appeal. You will submit a Notice of Disagreement for an initial claim, Supplemental Claim, or Higher-Level Review decision by mail, in person, or by fax. You must submit your request for Board Appeal within one year of the date of the VA’s decision notification letter. If you are appealing a contested decision (when multiple people claim a benefit that only one can receive), you must request Board Appeal within 60 days. If you do not have new evidence to submit, you can request a direct review of your claim. On direct review, the Veterans Law Judge will review your claim using the evidence in your original claim. You can expect a decision on direct review within one year. If you want to submit more evidence, you may do so within 90 days of your request for Board Appeal. In addition, you can request a hearing with the Veterans Law Judge in a virtual hearing, video conference hearing, or in-person hearing in Washington, D.C. You have the option to submit new evidence during the hearing or for 90 days after the hearing. If you submit new evidence or request a hearing, the Board may take more than one year to decide. How to Win a VA Claim and How to Win a VA Appeal The best way to appeal a VA disability claim is to give the VA new evidence and have an experienced, accredited VA attorney help you during your decision review.  What Evidence Do I Need to Win a VA Claim? To win your VA claim, you must prove that your disability is service-connected. You must show that your disability directly resulted from your military service or was made worse by your service. You will want to start collecting evidence as soon as you start seeing the disability, even if it’s during service. Your evidence should come from a medical professional and laypeople (friends, family, or co-workers) who have witnessed your disability. Do I Need to Hire an Attorney to Win My VA Appeal? While it’s not required to have representation for a decision review, it is a good idea to have an accredited VA disability attorney to help with your appeal. An accredited VA attorney cannot charge you legal fees until you win your claim. Even then, you will pay legal fees directly from the benefit payment you receive, not out of pocket. VA appeals can be complex. A VA attorney can help gather evidence, file paperwork, find medical experts, and research the law. Only a VA disability attorney is qualified to perform these services effectively. Winning a VA appeal isn’t guaranteed, but knowing that you have experienced VA attorneys dedicated to your appeal is the best way to get the benefits you deserve. At Gerling Law, we recognize that those who served this country are not always treated fairly during VA disability claims. We have recovered over $500 million for our injured and disabled clients since 1963. You fought for your country; now let Gerling Law fight for you. You only pay if you win. Get a free consultation from an experienced member of our team today. 

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What to Expect From Your C&P Exam for Veterans with PTSD

What Is PTSD? The U.S. Department of Veterans Affairs (VA) describes posttraumatic stress disorder (PTSD) as a mental health problem sometimes developed after experiencing or witnessing a life-threatening event, such as: Military combat, A natural disaster, A car accident, or Sexual assault. When a veteran files a VA claim to receive disability benefits for PTSD, the VA requires you to complete a Compensation and Pension (C&P) Exam.  The VA disability attorneys at Gerling Law are committed to getting you the compensation you deserve. You fought for our country, now let Gerling Law fight for you.  What Does the C&P Exam Do? The C&P exam, sometimes called the VA’s PTSD test, verifies that the veteran has PTSD, even if he or she has already received a PTSD diagnosis from a qualified medical professional. Additionally, the C&P determines whether the PTSD is service-related and the severity of the condition. Service-related means that the veteran’s PTSD was either: Directly caused by military service; Occurred while in the military; Aggravated by military service; or  Caused by conditions that are service-related.  In order to receive disability benefits for PTSD, the VA requires that the condition be service-related. Additionally, the VA requires veterans to prove the following: The stressor(s) occurred during your military service; You cannot function as well as you once could due to your PTSD symptoms; and You have been diagnosed with PTSD by a qualified medical professional. Many veterans face difficulty proving when and where their stressor occurred. This is especially difficult when veterans have multiple stressors. Some events, like the death of a fellow soldier, could be well documented through medical reports and obituaries. But other stressors present proof challenges due to the lack of documentation of the incident. In some cases, the VA needs an independent verification that the stressor occurred, outside of the veteran’s statements.  Who Administers C&P Exams? In most cases, the VA provides psychologists, psychiatrists, and other mental health professionals to administer the exam. The administrator has access to the veteran’s medical records, recorded statements, treatment notes, and any other information relevant to the veteran’s disability claim. A failure to thoroughly review a veteran’s claims file could warrant challenging the results of the C&P exam, if necessary.  How Does the C&P Exam Determine Whether a Veteran has PTSD? The VA assigns veterans with a disability rating based on the severity of his or her disability in order to compensate the veteran for the loss of productivity in the workplace. The more a disability interferes with the veteran’s ability to work, the higher the disability rating assigned to the veteran. Higher disability ratings translate to larger disability payments. Disability Rating The VA rating formula ranges from zero percent to 100 percent in increments of 10. The VA assigns disability ratings based on the results of your C&P exam. The VA examiners use statutes that outline the disability levels to determine the level applicable to you. 0% Disability Rating A zero percent disability rating means that the veteran has been formally diagnosed with PTSD, but the symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. The VA does not offer disability compensation to veterans with a 0% disability rating.  30% Disability Rating A 30% disability rating occurs most commonly with VA disability claims. At this level, the veteran displays occupational and social impairment with an occasional decrease in efficiency and intermittent periods of inability to perform job tasks. Symptoms associated with this rating include: Intermittent depression; Panic attacks; Chronic sleep issues; Mild memory loss; Feelings of suspiciousness; and Anxiety.  The symptoms described for a 30% PTSD rating aim to indicate veterans with mild cases of PTSD.  50% Disability Rating With a 50% disability rating, the veteran displays occupational and social impairment with reduced reliability and productivity. Symptoms associated with this rating include: Circumstantial, circumlocutory, or stereotyped speech; Regular panic attacks; Short and long term memory loss; Inability to understand complex commands; Impaired judgment; Issues with motivation and mood; Flattened affect; and Inability to form and maintain effective work and social relationships.  Compared to the symptoms described for a 30% PTSD rating, 50% rating symptoms occur more frequently and last longer. 70% Disability Rating Veterans assigned a 70% disability rating experience PTSD that causes significant levels of impairment in multiple facets of life, both occupationally and socially. The 70% disability rating appears one step below the highest disability rating for PTSD. Symptoms associated with this rating include: Suicidal ideations; Obsessive rituals that interfere with routine activities; Illogical, obscure, or irrelevant speech; Near-continuous panic or depression; Lack of impulse control; Spatial disorientation; Neglecting personal appearance and hygiene; Inability to work in stressful situations; and Inability to form or maintain effective relationships. The 70% disability rating criteria represent the widest array of symptoms and reflects a progression of the symptoms described by earlier disability ratings.  100% Disability Rating A 100% disability rating requires the veteran’s PTSD symptoms to be so severe that he or she is unable to function in everyday life. The symptoms associated with a 100% disability rating include: Gross impairment in thought processes or communications; Persistent delusions or hallucinations; Grossly inappropriate behavior; Persistent danger of harming self or others; Intermittent inability to perform tasks of daily living; Disorientation to time or place; and Inability to remember the name of self or close relatives. This disability rating represents a total impairment when it comes to your work and personal life. Veterans assigned a 100% disability rating to receive the maximum amount of disability compensation available.  What Should I Do Before a C&P Exam? First of all, do not skip your C&P exam as that could result in the denial of your disability claim. Before your exam, you should document the most persistent, severe symptoms associated with your PTSD. You should note any symptoms you believe are associated with your PTSD, even embarrassing ones.  Many people get nervous before taking a test or are unsure of what to say at a PTSD exam, causing […]

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