Archive for March, 2017
Thursday, March 30th, 2017
The proper interpretation of “suicidal ideation,” a symptom listed in the 70% rating criteria for a psychiatric disorder.
On March 27, 2017, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Bankhead v. Shulkin, vacating and remanding the Board of Veterans’ Appeals (Board) decision denying entitlement to a rating greater than 50% for major depressive disorder.
The Court examined the term “suicidal ideation” located in 38 C.F.R. § 4.130’s criteria for a 70% disability evaluation for a service-connected psychiatric disorder.
Mr. Bankhead, the veteran, argued that the Board “mischaracterized his suicidal ideation as wholly ‘passive,’ conflated suicidal ideation with risk of self-harm, and failed to adequately explain why fluctuations in suicidal ideation and impaired impulse control did not, at a minimum, warrant the assignment of staged evaluations.”
The Court initially addressed the list of symptoms contained in the 50%, 70%, and 100% evaluations and reaffirmed the well-established idea that the list is non-exhaustive, indicating that VA does not need to find the presence of all of the symptoms to assign a particular evaluation. The Court also restated the concept that “although the veteran’s symptoms are the ‘primary consideration’ in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a particular evaluation ‘also requires an ultimate factual conclusion as to the veteran’’ level of [occupational and social] impairment. . . .’”
The Court then discussed the concept of “suicidal ideation,” a symptom listed under the 70% rating criteria for a psychiatric disorder. It found, after explaining various definitions, studies and VA practice guidelines, that “both passive and active suicidal ideation are comprised of thoughts. . . .” And it further commented that the language of the VA regulation indicates the presence of suicidal ideation alone is sufficient without “descriptors, modifiers, or indicators.”
The evidence specific to Mr. Bankhead’s case demonstrated numerous suicidal thoughts and behaviors of varying severity, frequency, and duration. The Board recognized this, but it determined that the veteran’s “passive” suicidal ideation did not rise to the level contemplated in a 70% rating because he (1) was at a low risk of self-harm, (2) had been treated on an outpatient basis, (3) retained social and occupational functioning, and (4) assured treating sources that he would refrain from self-harm.
Based on the particular facts in the case, the Court found that the Board “erroneously grafted risk of self-harm onto the symptom of suicidal ideation listed in the criteria for a 70% evaluation.” The Court also found that the Board erred by imposing a higher standard than in the rating criteria by requiring that the veteran had to be hospitalized or treated on an inpatient basis. Significantly, the Court stated that “although the mental disorders rating schedule provides leeway for VA adjudicators to consider symptoms a veteran experiences that are not listed in the schedule, VA is not at liberty to create evaluation criteria out of thin air in an individual case and then use the absence of those criteria in the veteran’s records to deny a particular mental disorder evaluation.”
Read a full Court decision.
Tuesday, March 28th, 2017
Does the VA schedular rating criteria for hearing loss contemplate functional effects of hearing impairment?
On March 6, 2017, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Doucette v. Shulkin, affirming the Board of Veterans’ Appeals (Board) decision denying entitlement to an initial compensable rating for his service-connected hearing loss. Judge Lance, with whom Chief Judge Davis joined, wrote the majority opinion and Judge Schoelen issued a dissenting opinion.
Mr. Doucette argued that the Board misapplied 38 C.F.R. § 3.321(b)(1) and failed to provide an adequate statement of reasons or bases for its decision that he was not entitled to referral for extraschedular consideration. The Secretary responded that the service-connected hearing loss did not present such an exceptional disability picture that evaluation under the rating schedule was not adequate.
The Court initially addressed whether the schedular rating criteria for hearing loss contemplates specific functional effects of hearing impairment. It explained that the rating criteria for hearing loss do not list any particular symptoms or functional effects; rather, review is done through the mechanical application of the audiometric testing results to a rating table. After explaining the history of the current rating criteria, the Court held “that the rating criteria for hearing loss contemplate[s] the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure.”
The Court then explained that the rating criteria does not account for, other functional effects, such as dizziness, vertigo, or ear pain. The Court made clear that, contrary to Mr. Doucette’s argument, the Board was not required to engage in an extraschedular analysis in all hearing loss claims because the purpose of extraschedular ratings is to recognize exceptional or unusual circumstances. The Court stated that “a hearing loss claimant could provide evidence of numerous symptoms, including—for purposes of example only—ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects.”
Based on the particular facts in Mr. Doucette’s case, the Court found that the reported effects of his hearing loss, for example difficulty distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone, are each a manifestation of his difficulty hearing or understanding speech and already contemplated by the schedular rating criteria. As a result, the Court held that the Board had no obligation to address extraschedular referral. Notwithstanding that finding, it noted that the Board did provide an extraschedular analysis, and determined that the Board properly determined that the reported symptoms were not exceptional or unusual.
In her dissenting opinion, Judge Schoelen wrote that she “believe[d] the rating criteria are inadequate to contemplate a veteran’s functional effects and entire disability picture.” Judge Schoelen commented that “the rating schedule for hearing loss does not explain what the effects of the match of puretone threshold with speech discrimination should be.” She noted it was impossible for the Court to interpret the severity or functional effects of a veteran’s hearing loss based on the tables provided by VA in its regulations, and she stated that “[t]he majority fails to explain how the Board could review the functional effects of hearing loss and match those functional effects with nonexistent criteria.”
Read more on the Court’s decision.
Friday, March 24th, 2017
The Importance of Communication throughout a Case
Veteran benefits cases are often lengthy processes—that’s why our team of attorneys, paralegals, and administrative professionals works together to communicate with all parties to ensure smooth, timely case progression and prevent errors due to miscommunications.
Communicating with Clients
At the Veterans Benefit Group of Goodman Allen Donnelly, we keep our clients up to date on their case by staying in contact about every ninety days. Of course, if a client has questions sooner than that—about a letter they received, a call from the VA, or their case in general—we are available as needed. If a client has a question, they can call us or write a letter, which is how we often communicate with veterans who are incarcerated.
Communicating with Medical Professionals
One of the most important ways our team helps a client understand his or her case is through a written plan on how to win the case. This plan often requires that we gather evidence such as copies of medical records or a medical opinion. To collect medical records, the client must sign a release form so that we can work on their behalf to obtain the necessary documents. We coordinate directly with doctor’s offices, sending the release form to obtain the medical records, and then work with the client on any type of payment that might be due afterward.
To get a medical opinion, we must submit medical records and a questionnaire for the doctor to complete. We work with the doctors to make sure everything is sent back in a timely manner. If the client does not have a doctor, we will help them find a doctor in their price range and geographic area.
Communicating with the VA
It can take a long time for the VA to make a decision—that’s why we have a system in place to keep the VA up to speed up and on track in a case. We make sure that the VA is taking the necessary steps in a timely manner by contacting the appeals team, either by email, letter, or phone, for status updates.
If we’re not receiving a response, we may contact the director or other higher ups for the status update. If these efforts still do not receive a response, we oftentimes write a warning letter that says, “if you do not respond to us, or if you are not going to take the necessary action, we may contact the under secretary and, if necessary, file a writ at the court.”
By keeping channels of communication open and establishing systems to keep all parties on track, cases are resolved as efficiently as possible.
Author: Kristine Arvey, Paralegal Case Manager
Friday, March 17th, 2017
Securing veterans benefits from the Department of Veterans Affairs (VA) can be a long, intimidating battle. Don’t go it alone—partner with an attorney to guide you through the process and secure the benefits you deserve.
- Attorneys are trained in interpreting regulations and understanding case law.
The Veteran Benefit Group of Goodman Allen Donnelly is made up of attorneys that have dedicated their entire legal career to helping veterans. We know how regulations and case laws impact your individual case.
- Attorneys keep abreast of any changes in the laws.
If there is a change in law that will affect your case, we can analyze how that change affects your case and discuss any implications to your case with you.
- Attorneys are trained in identifying the issues that have prevented you from winning your case.
Many times we seen veterans submit the same evidence over and over, and are frustrated because they don’t understand why the evidence is not good enough. We can help you identify what information is missing.
- Attorneys can help collect missing evidence.
Evidence such as service records, medical opinions, and statements from family and friends are critical to a case. Attorneys can outline a timeline for gathering all of the necessary evidence and help remove obstacles to getting the benefits you are entitled to.
- Our attorneys have access to VA’s computer system.
With access to the VA’s computer system, we can see the current status of a case. This access allows our attorneys to be more up to date with milestones such as whether you received a decision or letter.
- Our attorneys can represent you at all stages of an appeal.
We can appeal to the VA Regional Office, Board of Veterans Appeals, and, if necessary, appeal the case to the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. Whether your case has been recently denied by the Regional Office or the Board of Veterans Appeals, or even if your case is already at the Court, our attorneys can step in at any point.
- Our law firm dedicates an attorney and case manager to each case.
Having team members dedicated to your case ensures continuity, and allows our firm to become very familiar with your case throughout the various stages of the legal process. By staying by your side from start to finish, we can continue building on the evidence without any fear of something getting lost or making you feel as if you are starting from scratch at every new stage.
- Our attorneys will not stop until we have secured all available benefits to you.
Because we are so familiar with the benefits and regulations offered by VA, we can determine whether you qualify for additional benefits which the VA has not offered you.
- Our attorneys work on a contingent fee basis.
Contingent fee basis means that we don’t get paid unless we secure retroactive benefits for you. This fee structure also means that you do not have any out-of-pocket expenses for legal fees or any up-front costs.
Whether you are thinking about filing a claim, or have received a denial from the VA, give us a call for a free consultation. We look forward to hearing from you.
Thursday, March 9th, 2017
On March 6, 2017, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Miller v. Shulkin. Mr. Miller, the veteran, had appealed VA’s denial of a disability rating greater than 10 percent for peripheral neuropathy of the left foot. The argument on appeal focused on the interpretation of the statement: “When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” See 38 C.F.R. § 4.124a (2016).
Mr. Miller believed he was entitled to a rating greater than 10 percent because when a peripheral nerve disorder is more than “wholly sensory” (that is, manifested by both sensory and non-sensory-based symptoms) it must be rated as at least moderately severe and assigned a 40 percent disability rating. The VA, on the other hand, argued that the “wholly sensory” language of the regulation establishes a maximum disability rating for wholly sensory conditions rather than a minimum disability rating for conditions that are more than just “wholly sensory.”
The Court affirmed the Board of Veterans’ Appeals decision that denied a higher rating “[b]ecause the language at issue establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.” In interpreting the plain language of section 4.124a, the Court found that the language “provides only a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve.” Contrary to the veteran’s argument, the Court determined that it did “not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.”
Read the full Court decision here.