FAQ

How to Reopen a VA Disability Claim

If you are a veteran who has suffered an injury while serving in the military, a VA disability claim is probably the right way to go. However, in some instances, you may not get the outcome you’re seeking, and you may find yourself needing help along the way. The VA disability claims process can be challenging and confusing. Fortunately, Gerling Law is ready to help get you the disability benefits you need. The VA disability attorneys at Gerling Law are well-versed in filing a VA disability claim, appealing a denial of benefits, and reopening a VA disability claim. What Is a VA Disability Claim? First and foremost, it is important to understand what a VA disability claim is. Veterans may be able to file a Veterans Affairs disability claim if they become sick or injured while serving in the military or if their service worsened a condition that already existed. VA disability claims can cover those with physical or mental health conditions that developed or worsened before, during, or after their military service. The VA Disability Appeals Process If your VA disability claim is denied, you can appeal the decision. Fortunately, as of 2019, the VA has a brand new process for appealing a denial of benefits. Previously, a veteran who wished to appeal their decision had one year to file a “Notice of Disagreement.” The VA would once again review the claim. If the claim was still denied, the VA would send the veteran a “Statement of the Case” giving thorough details regarding the denial. The veteran subsequently had 60 days to file a “Substantive Appeal.” The VA did away with this old process and created a new and much more streamlined process. Instead of various deadlines, veterans now have one year from the date of their decision to appeal a denied claim. In place of the previous “Statement of the Case,” the VA will simply provide a decision, and the veteran will have one year to appeal. While this new process is streamlined, it is still complicated, so you are likely to need some help with it. The VA disability benefits attorneys at Gerling Law have the experience to navigate the appeals process to help you get the disability payments you deserve. When Can You Reopen Your VA Disability Claim? It is imperative to understand that to reopen a VA disability claim, you must have been denied benefits and received a final decision. Reopening a VA disability claim is distinct from appealing a decision, so a different process applies. A decision from the VA becomes final when: You’ve missed the deadline to appeal the decision or You have fully exhausted the appeals process for your original decision. Furthermore, to reopen your VA disability claim, the claim must be one of the following: Service-connected VA disability compensation, Dependency indemnity compensation (DIC), or Burial benefits. Finally, to be able to reopen a VA disability claim, you must have “new and material” evidence.  It is helpful to note that there is no limit to the amount of time you have to reopen your VA disability claim. You are allowed to reopen your VA claim no matter how much time has passed.  What Is “New and Material Evidence”? The words “new” and “material” are used purposely. They describe the type of evidence required to reopen a VA disability claim. As you can probably assume, “new” evidence is evidence that has not previously been introduced to the VA. For evidence to be new, the very first time you’re submitting it for the VA’s review is with your reopened VA disability claim. In other words, new evidence means facts related to your claim that the VA is not already aware of or familiar with. “Material” evidence must be evidence that is directly related to the reason your claim was denied in the first place. Material evidence proves or disproves an issue related to your claim.  Perhaps the VA did not have enough substantial evidence to verify your claim the first time around. Providing material evidence could help the VA more thoroughly understand the basis of your original claim. It is helpful to use the letter the VA sent you detailing the specific reasons for your denial, as this can help guide you in providing material evidence. An experienced VA disability benefits attorney can help you sort through your claim to see if there is new and material evidence to support reopening your claim. VA Reopen Claim Form — VA Form 20-0095 Once you’ve decided you would like to proceed with reopening your VA disability claim, you must submit a form to reopen your VA claim, VA Form 20-0995.  Once you have properly completed the form and included the new and material evidence, the VA will once again review your original claim and decision. After the VA has a chance to review your original claim, your request form, and all new and material evidence, a new decision will be issued. You Can Appeal a Reopened VA Disability Claim Decision Unfortunately, just reopening your VA disability claim does not mean you are any more likely to get an approval or a more favorable outcome. Even reopened claims can be denied. Luckily, this is not the end. If you are denied benefits after reopening your VA disability claim, you still have a right to appeal the decision. A seasoned VA disability appeals attorney is best suited to help you with the appeal process.  If You Receive a Denial, It Is Best to Seek Help Right Away While you can reopen your VA disability claim at any time after the final decision, it is wise to start the process as soon as you can. What happens when you reopen a VA claim? When you decide to reopen your VA disability claim, you are giving your claim a new effective date. The new effective date will be the date you file all required documents to have your claim reopened. Therefore, any pay will go back to the date you […]

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FAQ

How Long Does a VA Reconsideration Take?

After you file a VA disability claim, the VA will send you a notice of its decision. The notice will tell you your disability rating. The rating is a measure of the severity of your disability and determines the amount of compensation you can receive. If you feel the VA has undervalued your claim, you may want to request a VA disability reconsideration. There is no official process for a VA reconsideration of value. Instead, if you’ve been discharged from service and want the VA to reconsider a decision, you’ll first need to request a decision review. If you’re still on active duty, your military physician will refer you to the Integrated Disability Evaluation System (IDES), which has its own process. This page will walk you through the appeals process and the VA reconsideration timeline. Read on to learn how long a VA reconsideration takes. During Your Service: The Integrated Disability Evaluation System (IDES) Your first chance for a VA request for reconsideration is during your service through IDES. IDES is a collaboration between the Department of Defense (DoD) and the VA. With IDES, the two departments can share information on your claim and you won’t need multiple physicals. If you’re injured or fall ill during active duty, IDES will determine if you can continue service or if you’re eligible for disability. You’ll be assigned a military Physical Evaluation Board Liaison Officer (PEBLO) and a VA Military Services Coordinator (MSC) to help you during the process. What Is the IDES Process? Your military physician must refer you to IDES. Then your MSC will send you to the VA for a Compensation and Pension (C&P) Exam. The Medical Evaluation Board (MEB) will review your exam results and your service treatment record to determine if you have a disability claim or if you must return to duty. The MEB phase usually lasts 72 days, including 31 days for the VA physical. If you disagree with the MEB’s recommendation, you can file a rebuttal. The MEB will take 7 days to review your rebuttal. Keep in mind that these timelines are goals for the DoD and VA, and your claim may be subject to delays. Next, the MEB will issue a report to the Physical Evaluation Board (PEB). The PEB will determine a proposed disability rating. The PEB should take 35 days to return a rating. If you disagree with the proposed rating, you can appeal the decision to the Formal PEB (FPEB). The FPED should issue a decision within 24 days. You have the option to appeal the FPEB decision, which will take 10 days. If you disagree with the rating after the appeal, you can request a VA rating reconsideration (VARR). A VARR takes two days once the PEB sends your claim to the  VA Disability Rating Activity Site (D-RAS).  How long does a VA reconsideration of value take?  Once you accept the decision, you should expect to receive a final disposition within 5 days. Next, IDES aims to complete the administrative part of your transition to separation or retirement within 26 days. From the date of referral to IDES to the date of your separation (or return to duty), the DoD and the VA aim to complete 80 percent of IDES cases in no more than 180 days. After Discharge: VA Claim Decision Review If you have left the service and want to dispute your VA disability rating, you’ll request a decision review. For a VA decision on February 19, 2019, or after, you’ll choose from three review options: a Higher-level Review, Supplemental Claim, or Board Appeal. If your decision is dated earlier, you’ll use the legacy appeals process.  Higher-Level Review If you request a Higher-level Review, you’ll be assigned a reviewer from the original agency that issued the rating. The reviewer will review the record from your initial claim. You can’t submit new evidence. The reviewer determines if they can change the decision because of an error or a different view of the facts. The review should take four to five months. If you still disagree after the higher-level review, you can request a Board Appeal of that decision. Supplemental Claim If you have new, relevant information to support your claim, you can file a Supplemental Claim. When you submit a Supplemental Claim, a reviewer will determine whether the new evidence changes the decision. The VA can take four to five months to review your Supplemental Claim. If you disagree with the decision on your Supplemental Claim, you can submit the claim for Higher-level Review or Board Review. Board Review When you request a Board Review, a Veterans Law Judge on the Board of Veterans’ Appeals will review your case. If you don’t have new evidence, you can request a direct review. You can expect a result from a direct review within one year. If you have new evidence, you can submit it within 90 days of your request for Board Review. Or you can request a hearing with the Veterans Law Judge, and you’ll have 90 days from the hearing date to submit evidence. Reviews with new evidence can take over a year. If you disagree with the judge’s opinion, you can appeal your claim to the U.S. Court of Appeals for Veterans Claims (CAVC). You have only 120 days to submit an appeal to the CAVC. At any time after the Board’s decision, if you think the judge made a clear and unmistakable error (CUE), you can send a VA reconsideration letter to the Board. VA Claim Reconsideration for Clear and Unmistakable Error Because there is no VA disability reconsideration form, you’ll need to write a letter or memo to convince the Chairman of the Board to review the decision. The letter will need to point out the error, explain how it is clear and unmistakable, and identify what you think the VA should do to remedy it. Because the Chairman isn’t required by law to hear a claim for reconsideration of value, it is a good […]

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FAQ

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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FAQ

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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FAQ

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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FAQ

MST PTSD: Everything Veterans Need to Know

Many people are familiar with the term “sexual trauma.” However, there is a specific type of trauma referred to as military sexual trauma that is less known but nevertheless affects countless individuals each year.  Unfortunately, military sexual trauma (MST) occurs with devastating regularity within the armed forces. MST refers to sexual assault, sexual harassment, and threats of such acts that veterans experience in the course of their military service. In some cases, MST can even trigger posttraumatic stress disorder (PTSD). If you are experiencing MST PTSD, know that you are not alone. While nothing can undo the pain and trauma that you have experienced, there are things you can do to help on the pathway toward recovery.  While not offered for MST alone, veterans suffering from PTSD caused by MST may be eligible for disability compensation. The disability attorneys at Gerling Law are zealous advocates for veterans and their rights. Give our team a call today to discuss your rights and see how we can help you get the VA disability pay you deserve.  What Is MST? So, exactly what is MST(military sexual trauma)? The U.S. Department of Veterans Affairs (VA) defines MST as any sexual activity that occurs during military service where a veteran was involved in sexual activity against their will. Common examples of MST include: Being pressured into sexual activities through threats or implied or overt promises of better treatment; Situations in which the veteran was unable to provide consent due to intoxication or unconsciousness; Sexual activities accomplished through physical force; Hazing experiences involving unwanted sexual touching, grabbing, or other unwelcome acts; Offensive sexual remarks that the target perceives as threatening; and Unwelcome sexual advances that the MST victim perceives as threatening.  Importantly, to constitute military sexual trauma, the target of the sexual activity has to be a veteran. However, the individual inflicting the sexual act, attempting the sexual act, or making the sexual remark does not have to be a veteran. Furthermore, whether the harassment or assault occurred on or off base, or while the victim was on or off duty, is not relevant. There are many other ways in which military sexual trauma may present itself. If you have questions about whether you might be a victim of MST, please don’t hesitate to reach out to Gerling Law to discuss your situation and see how we may be able to help.  How Often Is MST Reported?  Unfortunately, when MST occurs, it is not always reported.  The VA implements a national screening program for any veteran receiving medical care to obtain data on the experiences of veterans as a whole. Data from the national screening program indicated that 1 in 3 women reported experiencing MST, while 1 in 50 men reported experiencing MST. The number of veterans who actually report the MST is much lower.  Additionally, while women report an overwhelming majority of MST cases, men can and do experience MST PTSD arising out of their military service as well. MST-Related PTSD Understandably, MST often results in PTSD for victims. However, the existence of MST does not automatically result in the victim suffering from PTSD.  The VA does not provide benefits to MST victims, specifically. Rather, the VA does offer benefits for veterans with PTSD, which can be caused by MST. Symptoms associated with PTSD that can occur after an MST include: Disturbing nightmares or memories about the event; Chronic anxiety; A desire to avoid people; Inability to feel safe; Feelings of depression; Feelings of isolation; Sleeping problems; A sudden fear of individuals of the same gender as the assailant; or  Physical health problems. MST-related PTSD claims require two main elements. The first element requires credible evidence establishing that a trauma-inducing event, such as MST, occurred during your military service. The second element requires a connection between the event and the resulting symptoms of trauma.  If you suffer from PTSD and believe it was caused by military sexual trauma, you may have a potential claim to receive disability benefits. Give Gerling Law a call today to discuss the particular circumstances surrounding your case. Credible Evidence and Connection Requirements Despite the requirement of credible evidence that the MST occurred, the VA understands that many instances of MST are not reported at the time the trauma occurred. Thus, victims can provide “markers” or circumstantial evidence of the veteran’s emotional reaction to the MST. Common markers used to demonstrate the existence of MST include: Law enforcement reports; Reports from mental health counselors or rape crisis centers; Medical records at or near the time of the MST; Statements from individuals familiar with the victim with knowledge of the MST; Journals or personal diaries of the victim; Military personnel records demonstrating a decline in behavior or performance after the MST occurred; and Medical records showing irregularities or signs of mental health issues. After establishing the occurrence of the MST, you will also need documentary evidence from a medical or mental health professional indicating that your PTSD was caused or aggravated by the MST. Gathering this documentation and information on your own can feel stressful and overwhelming. An experienced disability attorney can help you find and collect the materials you need to make the best case possible for your disability claim.  MST-Related PTSD C&P Exam After you establish the credible evidence and connection requirements, the VA will likely order a Compensation and Pension examination (C&P exam). The C&P exam determines whether you meet the criteria for a PTSD diagnosis and whether your MST actually caused your PTSD. How Can I Prepare for a C&P Exam? One important thing to remember is that you should not skip your scheduled C&P exam. Doing so could result in a denial of your disability claim entirely.  Many professionals recommend taking a comprehensive list of the PTSD symptoms you regularly experience with you to your C&P exam. This is because many times, veterans forget the primary issues inflicted by their PTSD during the exam. However, having a list of your most debilitating symptoms can help avoid this […]

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FAQ

Are TDIU Ratings Permanent?

Total Disability based on Individually Unemployable (TDIU) benefits is essential for service members injured while on duty or who suffer from a service-connected disability. Your status as an injured veteran entitles you to these benefits if you cannot work. However, the Veterans Affairs (VA) might not be on your side and may fight against you.  You’ve served heroically and you should receive your TDIU benefits for your service-connected disability permanently. At Gerling Law, our nationwide veterans’ disability lawyers are ready to help you get the disability pay you deserve—for the rest of your life. We vow to be with you and your family every step of the way. Why? Because you fought for us, so now we are honored to fight for you. What Is TDIU? The VA will compensate you for your service-connected disability if you can no longer work. The VA refers to this benefit as TDIU. This is an important program for many veterans with service-connected disabilities that fall short of a 100% total permanent disability rating by the VA.  A rating of 100% disability means that the veteran has one or more total and permanent disabilities related to their military service. However, it is important to note that a veteran who qualifies for TDIU can receive 100% disability benefits even though they do not have a 100% disability rating. Also, TDIU benefits are permanent unless the VA rules that there is a chance your condition may improve. You will know if the VA believes you are permanently disabled if they indicate that they do not plan to ask you to submit to a status exam. However, if the benefits you receive from the VA contain language that they will schedule future exams, then the VA has ruled you are not totally and permanently disabled. Of course, the VA can choose to bring you in at any time for an exam when you are on TDIU benefits. Making Your TDIU Benefits Permanent  You have the right to ask the VA to make your TDIU benefits permanent. First, you should submit an updated VA Employment Questionnaire annually. You should do this even if the VA does not send you a reminder each year. Failing to do so could cause the VA to reduce your disability rating.  Secondly, writing a letter to your regional VA office requesting a permanent disability rating is appropriate. Your TDIU lawyer from Gerling Law will write this for you. They will assemble the necessary medical records and doctors’ opinions about your permanent disability and advocate for you. What Benefits Are Available Under TDIU? Under the TDIU program, you will receive health care and financial compensation. As a veteran, you receive all of your healthcare through the VA. However, your spouse and children are eligible for ChampVA healthcare benefits. You and your family might also be eligible for additional benefits such as schooling and housing. Who Is Eligible for TDIU? Under the VA’s TDIU benefits program, you may be eligible for disability benefits if: You have one service-connected disability rated by the VA of at least 60% disability, or You have two or more service-connected disabilities and one of those is at least 40% disabling and your total disability is at least 70%. However, the VA will not give you TDIU benefits unless you show that you cannot keep a job the VA calls “substantially gainful employment.”  What Is Substantially Gainful Employment According to the VA? The VA considers substantially gainful employment as work that a non-disabled person would take to earn a livelihood. That means the employment provides earnings that are commonplace in the community where the veteran lives. Since the standard of living changes regionally, the meaning of substantially gainful employment is not uniform across the country. Notwithstanding, the VA could use the federal poverty level as the basis for defining substantially gainful employment. In 2021, the federal poverty threshold is $12,880 for someone living alone. That’s not a lot of money at all.  The VA might not take your word that you are unemployable—meaning that the job that you have or any job you could get meets the definition of substantially gainful employment.  The VA will examine several factors to determine if you are unemployable. Those factors are: Inability to perform household duties without substantial help; Evidence of progression of disabling conditions, coupled with age;  Reaching mandatory or optional retirement age and whether attaining that age might prevent the veteran from finding other work; and Cognitive, character, or behavioral disorders that render the veteran unemployable. You should note that losing a job because you were sent to jail for a crime caused by a mental or emotional disorder does not qualify you as unemployable. Working and Getting TDIU If you work but make less than the federal poverty threshold, then the VA might consider you to have “marginal employment.” The VA will allow you to keep a job they classify as marginal employment and give you full benefits. Also, if you work in a protected environment, then you can keep your benefits. Working in a protected environment means working at a family business or having employment with special accommodations. Essentially, a protected environment means you work at a job you cannot get fired from. The VA will give you your TDIU benefits even if your income is greater than the federal poverty threshold if you work in a protected environment. Applying for TDIU Benefits The VA allows you to file for TDIU through their online portal, in person, or by mail. You have one year to complete your application once you start it. The VA will deny your application if you started it online but do not file it within 365 days. Although the VA says you do not need to file supporting documents, they recommend that you file as much evidence as you can to support your claim. This will decrease processing time.  There is another reason why you should present as much evidence as possible with your application. Without supporting […]

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FAQ

How to Hire the Right Veterans Claims Attorney Near You

When it comes to hiring the right veterans claims attorney near you, you might have to make a choice—hire the right VA claims lawyer or hire the lawyer nearest you. Since legal work can be done online, when you need to make a choice, hire the best, not the nearest.  VA disability law is federal law, which means that VA disability lawyers do not have to be qualified in any particular state. All your lawyer needs is for the VA to accredit them to represent veterans. Once you have narrowed the field down to a shortlist of qualified VA lawyers, then consider distance. Remember that a lot goes into making an effective VA disability lawyer. When You Need a VA Disability Lawyer There are several scenarios when you are likely to need a VA disability lawyer. Your Claim Was Denied Talk to a lawyer if the VA has already sent you a claim denial letter and you don’t like your chances on appeal. This might seem like the end of the world to you, but it need not be the end of the story. Although the appeal process is complex, we have navigated it many times before, and we can navigate it for you. Your chances of ultimate success are much, much better if you retain a lawyer. Your Veteran Service Organization Couldn’t Give You the Help You Needed If you tried working with a veteran service organization (VSO) and you were not satisfied, you may find that an experienced VA disability lawyer could help you. Although many VSOs are dedicated and competent, some of them are not. Even those that are often struggle with more complex claims. Many of our clients come to us seeking representation for an appeal because a VSO error resulted in the initial denial of their claim. You’re Frustrated by Handling the Claim on Your Own If you’ve been trying to handle your claim on your own, you may have reached your wit’s end. Rest assured, you are not alone—frustration is the norm for a disabled veteran dealing with the VA alone. We know how to navigate the VA system, and we will take care of everything for you so that you can focus on safeguarding your health. Your Claim Is Complex  VSOs are often ideal for simple claims. The  more complex they get, however, the more you are going to need the professional experience of a licensed attorney to help you navigate the VA legal minefield. Individual unemployability benefits claims, for example, are notoriously complicated. Complex claims require a lot of evidence that must be prepared in a particular manner. When Do You Not Need a VA Disability Lawyer? You may not need a VA disability lawyer if you are merely applying for benefits for the first time. In that case, you could be better off seeking the free-of-charge assistance of a VSO. How the VA Qualifies Attorneys to Represent VA Disability Claimants An aspiring VA claims lawyer must apply for VA training to help veterans navigate the VA benefits system. This training teaches lawyers about the VA compensation system as well as some of the legal nuances involved in pursuing VA disability claims. The VA will then accredit the lawyer to represent claimants before the VA. An accredited VA claims lawyer must meet certain standards of professional conduct and continuing education to remain accredited. What to Look for in a VA Disability Lawyer The best veteran disability attorneys combine many of the same skills that make any lawyer outstanding, with a specific skill set dedicated to handling VA disability claims. The first qualification to look out for, of course, is VA accreditation. Without this qualification, the lawyer is not even qualified to represent you. The lawyer should also be part of a generally successful practice to demonstrate their skills as a lawyer. In addition to the foregoing qualifications, the following personal qualities are important: Caring: If the lawyer doesn’t care about your claim, nothing else matters. If they do care about your claim, every other positive quality possessed by your lawyer is magnified. There is no mathematical formula for determining how much your lawyer cares. It’s a gut feeling you get from talking to them. The ability to listen: Your lawyer cannot understand your claim or your concerns unless they listen. When you speak with your lawyer, note how many and what kinds of questions they ask. Observe how much attention they are paying to what you are saying. Patience: Dealing with VA disability claims can be tedious, and it often involves dealing, directly or indirectly, with tiresome VA representatives. Patience also applies to how thoroughly your lawyer explains the claims procedure to you. Judgment: Ultimately, you are the decision-maker in your own case. When it comes to tactics, however, your lawyer will likely be making a lot of small decisions that could determine the outcome of your claim. Sound judgment is a must. Integrity: Your lawyer represents you and only you. Any lawyer who allows their loyalties to be compromised, or who sacrifices your interests in favor of theirs, doesn’t belong in practice. Knowledge: Your lawyer must be familiar not only with the broad strokes of VA disability law, but also with the little nuances that have been defined by case law. They must be able to apply facts to the law to come up with plausible and persuasive inferences. Persistence: Some claims require the lawyer to stick to them like a bulldog. A good VA claims lawyer will have successfully resolved claims, through sheer persistence, that initially appeared hopeless. If you are unsure whether your lawyer possesses any of the above-described attributes, try looking on the Internet for comments from former clients. Your lawyer’s most obvious personal qualities will come through again and again, for better or for worse. We Will Help You Fight Back! Start Today A VA claim denial, or an unsatisfactory result, doesn’t have to be the end of the road for you. Thousands of disabled veterans have […]

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FAQ

Should I Get a VA Disability Lawyer?

Millions of American veterans suffer from service-connected disabilities. If you are one of them, you are likely to be eligible for monthly disability benefits. Nevertheless, past experience indicates that your claim is likely to be denied, at least at first. The VA denies more than 80% of Gulf War-related disability claims, for example. Veterans who retain VA disability lawyers to handle their appeals fare better than other veterans.  What Does the Department of Veterans Affairs Do? The Department of Veterans Affairs (DVA), with over 250,000 employees, provides vital government services to our nation’s veterans, including the provision of disability benefits. VA disability lawyers who handle VA disability claims work frequently with the DVA. Although the relationship is frequently adversarial, the DVA does certify VA disability lawyers so that they can represent VA disability claimants. What Is the Best VSO for Disability Claims? You probably do not need a lawyer to file an initial claim for VA disability benefits. If that is what you are contemplating doing right now, then it would be a good idea for you to enlist the services of a veterans service organization (VSO) instead. VSOs are experienced in filing initial claims, and they offer their services free of charge. The Veterans Administration maintains a website that can help you find a qualified VSO in your area. When Should I Get a Lawyer? You are probably going to need a VA disability lawyer if your VA disability claim is denied or if it is underrated. Although some veterans handle their own claims or work with VSOs, this is generally not a good idea under these circumstances. You should give strong consideration to hiring a VA claims attorney if your claim is complex. Total disability individual unemployability (TDIU) claims tend to be complex, as do claims involving multiple issues. The good news about hiring a lawyer is that VA disability lawyers cannot charge you legal fees unless you win your claim, regardless of whether you receive your VA disability back pay in lump sum or in periodic payments. Even then, it comes out of your award—you don’t need a dime in your pocket to hire a VA disability lawyer. Indeed, in some cases you may be awarded attorney’s fees, meaning that your legal fees will not even be deducted from your claim award. How a VA Claims Lawyer Can Help You Win Your Claim A VA disability lawyer can perform claim-related services that you would find difficult to  perform on your own, including: Gathering evidence: Nothing happens in a VA claim without evidence, and the VA accepts only certain kinds of evidence. Once we review your claim, we will know exactly what evidence you need and how to obtain it. Filing paperwork: Filing paperwork is a pain, and a lot of paperwork is required for a VA claim. We will handle it for you, and we will get it right the first time. Medical experts: Medical experts can be critical to your claim. We know how to generate medical evidence from the experts we work with. Our medical experts are knowledgeable about VA law. Filing appeals and briefs: Any paperwork submitted to a court must be prepared in a specific format, with little room for error. We are familiar with all the requirements, and we will take care of your appeals and briefs for you. Researching the law: VA law is particularly dependent on court precedent, and there is a lot of it to master. We are familiar with all the nuances of veterans disability law, and we will employ our knowledge to advance your claim. We offer numerous services, in addition to the foregoing, that only a VA disability lawyer is qualified to perform effectively. How Long Does It Take to Get Disability with a Lawyer? Ultimately, there is only so much a VA disability lawyer can do to expedite your claim. What your lawyer should not do, and will not do if you have selected carefully, is to try to speed up your claim during the preparatory phase by cutting corners. The best way your lawyer can speed up processing of your claim is to prepare a good claim the first time around so that there won’t be a legal mess to clean up later. So how long does it take to get disability with a lawyer? The VA itself estimates that it takes an average of 94 days to review a VA disability claim. This is only an average, however. Some claims are resolved more quickly, while others take considerably longer. Following are some of the most important factors (other than the identity of your lawyer): The type of claim you are filing—appealing a denial of benefits tends to take longer than most other types of claims; The number and complexity of disabilities you claim; How much evidence your claim requires—omitting required evidence could slow processing of your claim to a glacial pace; and Which field office you use—some field offices suffer from large backlogs. Under certain circumstances, such as terminal illness or financial hardship, you can ask the VA to expedite your claim. Contact the VA Claim Pros at Gerling Law At Gerling Law, we take your VA disability claim seriously, and we will not rest until you obtain the best possible resolution. Let us handle your claim so that you can focus on what matters the most—your health.  VA disability law is federal law. A VA disability lawyer doesn’t need to be qualified to practice law in any particular state to handle VA claims. Accordingly, the VA claim pros at Gerling Law operate nationwide.  Call us at 866-311-2894 or contact us online for a free claim evaluation.

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Veterans of Armed Forces Day

May 15, 2021 – While we are always honoring all Veterans and their families for their sacrifice and dedication to our Nation, today we honor veterans who are currently serving in our Armed Forces.  Armed Forces Day is celebrated every year on the 3rd Saturday in the month of May. In 1961, John F. Kennedy declared this day a national holiday.  This day honors members serving in all of our six branches of the US Military including Air Force, Navy, Army, Coast Guard, Marine Corps, and Space Force.  Veterans currently serving in the National Guard or the Reserves are also honored on Armed Forces Day. There are many other countries that also honor this day!   Reference: Armed Forces Day 2021, https://militarybenefits.info/armed-forces-day/#:~:text=Armed%20Forces%20Day%20USA%20will,Saturday%2C%20May%2015%2C%202021.

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