I am an attorney specializing in disability and veterans’ disability law and also a board certified surgeon (transplant surgery) still licensed to practice medicine. I am also most proud of being a combat veteran. In 1973 I was a young Captain serving in the Israeli Seventh Brigade (armored). My brigade, with only 80 tanks, held the Golan Heights against an assault by more than 600 Syrian tanks and artillery pieces, and led the counter attack that won the Yom Kippur War. I am passionate about defending veterans’ rights and firmly believe that my medical career gives me a great advantage in understanding and challenging faulty medical rating decisions. As an attorney admitted to practice before the U.S. Court of Appeals for Veterans Claims, I am committed to understanding the very complex legal rules and decisions involved.
Do I really need an attorney to represent me before the Veterans Administration (VA)?
For many decades prior to 2007, the VA policy was to discourage attorneys from representing veteran claimants by making it a federal crime for an attorney to charge more than $10 for representation. Reforms in the way the VA handles claims have improved the general application process, but many claimants are still extremely dissatisfied and confused by the regulations and the case law. Recent statistics show that only 17% to 28% of cases are approved at the Board of Veterans’ Appeals (BVA). Fortunately the US Court of Appeals for Veterans’ Claims (CAVC) reverses the majority of the adverse BVA decisions.
Between 1995-2006, the CAVC heard 18,000 cases in which the claimants had been denied benefits at the BVA level. In almost 80% of the cases, the CAVC either reversed the BVA decision or remanded it for re-adjudication, finding at least 1 legal error in the BVA decisions. It is thus essential that the veteran consider from the outset whether his claim can be heard by the CAVC. Only members of the CAVC bar can represent Claimants. The CAVC will not accept new information not previously provided to the Regional Office (RO) or to the BVA, so hiring an attorney early can ensure that all relevant evidence is properly presented and that all legal arguments are raised before an appeal is submitted.
Volunteer Layperson advocates have diligently and compassionately represented veterans for decades. The lack of legal education and large caseload significantly limit their otherwise commendable and dedicated service.
In June 2007, Congress, in response to demands from veterans who were frustrated with the prospect of navigating the complex bureaucracy without an attorney, approved attorney involvement in representing claimants before the VA, The law now allows attorneys to represent claimants before the VA and to charge a reasonable fee. The law defines a reasonable fee to be 20% of the past-due benefits which the VA pays directly to the attorney.
Who is eligible for benefits?
Benefits are given to veterans and to their dependents or survivors. A veteran is someone who was discharged under conditions other than dishonorable. For members of the National Guard and Reserves, disabilities are considered service-connected if the injuries occurred or were aggravated in the line of duty. Members of the National Guard are eligible only if they were called to service by the President, not by a state governor. Only veterans with war-time service are eligible for non-service connected disability pension benefits. This does not require the veteran to have served in a combat zone, only that he/she was in service during the designated periods. If the veteran served at least 90 consecutive days, and if only one of those days fell in a period designated as war time, then all of his/her service is considered war-time. There are no benefits if the injury was due to willful misconduct.
War-time dates include: Korean Conflict: from June 1950 to January 1955; Vietnam (Southeast Asian) Conflict from August 5, 1964 (but from February 28, 1961, for those who actually served in Southeast Asia) to May 7, 1975; and the Persian Gulf Conflict: from August 2, 1990 to February 28, 1991.
What is the difference between compensation and pension?
Compensation is for a veteran who was injured or who contracted a disease during service. Pension is for a veteran whose medical condition is not solely the result of an injury or disease contracted during the military service, but who served during a time that is defined as war time. Pension is income-dependent and is reduced by other income. Compensation is paid in full regardless of other income. Survivors of veterans who died on active duty, as well as survivors of veterans who died as a result of service-connected disability, are eligible for Dependency and Indemnity Compensation.
How do I file for veterans’ disability?
A claim for veterans’ benefits originates at the agency of original jurisdiction, or Regional Office (RO). If the RO denies the benefit, the claimant files a Notice of Disagreement (NOD) at the RO. After the NOD is filed, the RO may ask the claimant whether or not he desires a de novo review (i.e., a complete review at the RO without giving weight to the previous denial). If the claimant does not request a review by a Decision Review Officer (DRO) , then the RO must mail the Statement of Case (SOC), which must explain the reason for the denial. If the claimant is dissatisfied with the decision of the RO, he/she can appeal the decision to the Board of Veterans’ Appeals (BVA), which makes the final agency decision.
How do I appeal the RO decision?
After the RO mails the SOC to the claimant, the claimant submits the appeal by filing VA Form 9, either 60 days from the date of receipt of the SOC or during the remainder of the 1-year period from the date of the RO notice of its initial decision, whichever is later.
Is the process of filing for veteran’s disability similar to Social Security Administration (SSA) disability?
No. First, the SSA focuses on a claimant’s ability to do any work in the national economy, even if he/she cannot perform his/her previous job. The VA may establish service-connected disability even if the veteran can still work. Second, the SSA follows the doctrine of res judicata, under which a decision by the SSA at any level is considered final if it is was not appealed within 60 days. Res judicata cannot generally be challenged. VA disability permits re-opening of the claim many times, and res judicata operates only when a claim has been appealed to the US Courts of Appeals for Veterans’ Claims (CAVC).
What is the VA disability rating system?
Unlike the SSA which grants benefits for persons who are unable to work in any job in the national economy, the VA grants benefits for the potential of an impairment to decrease one’s ability to earn a living. The rating system provides degrees of impairment from 0-100% in increments of 10. The lowest compensable rating is 10% which pays a claimant $115/month (as of December of 2006). A 100% rating provides for monthly benefits of $2,471.
A detailed rating grid is broken down by sections pertaining to various organs or classes of diseases. Each body system contains a series of diagnoses, each with a numerical diagnostic code. Each diagnosis is then broken down in ratings from 0-100%. The degree of disability increases as the severity of symptomatology becomes greater. For example, a rating of 30% for ulcerative colitis connotes moderately severe colitis with frequent exacerbations, whereas a rating of 100% for ulcerative colitis requires a show of pronounced colitis with marked malnutrition, anemia, and general debility. Obtaining a rating of even 0% for a condition is important, in that it sets the ground for increasing the rating if the condition gets worse, without the need to prove service connection. Where there are two or more service-connected disabilities, the overall percentage is computed by “combining” the individual ratings, not by adding them together. For example, a 30% service-connected rating for one condition, plus a 20% service-connected rating for another condition, will result in a 40% combined rating, not 50%.Analogous ratings are for disabilities that are not listed in a rating schedule, but that could be rated under a closely related disease or injury
READ MORE The Veteran rating system
Total Disability Ratings Based on Individual Unemployability
Individual unemployability,” or IU, is a way for the Department of Veterans Affairs (VA) to compensate veterans who are unable to work because of their service-connected disability at the one hundred percent rate, even though their veterans’ disability rating, according to VA’s Schedule for Rating Disabilities (Rating Schedule), does not actually reach one hundred percent. A veteran receiving IU receives the disability compensation equivalent to a 100% rating. According to the Code of Federal Regulations (C.F.R.): “Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.” 38 CFR § 4.16a
To establish IU, the veteran must submit to a comprehensive evaluation that takes both occupational and medical factors into account. The IU evaluation considers the individual veteran’s capacity to engage in a substantially gainful occupation, defined as the ability to earn more than the federal poverty level (about $10,000 a year). This is in contrast to the regular schedular evaluation, which considers how the veteran’s disability impairs potential earnings. Age is expressly prohibited as a consideration when evaluating a veteran for IU, so veterans beyond the normal age of retirement may secure benefits under the provisions of IU without worrying that age will be considered non-service connected contributing factor. The effects of non-service connected disabilities also are prohibited as a consideration.
IU is a fast-growing part of the VA’s expanding disability compensation program. The total number of veterans receiving any form of disability compensation increased by about 16 percent from 2000 to 2006, while the number of IU recipients more than doubled during the same time period. At the end of FY 2006, 8.5 percent of veterans receiving compensation were rated IU, compared with only 4.9 percent at the end of FY 2000 [i]. Current Veterans Benefits Administration (VBA) statistics show that 35 percent of IU beneficiaries have mental health conditions as their major diagnosis, with more than two-thirds having a diagnosis of post-traumatic stress disorder [PTSD]. Mental health conditions are followed by musculoskeletal conditions (29 percent) and cardiovascular conditions (13 percent) as the major diagnosis (READ MORE)
Winning your claim for PTSD Disability Benefits
There are three main reasons which used to cause claims for PTSD to be denied:
1) The rating officer provides a lower rating than is justified by the clinical presentation.
2) The VA concludes that the stressor the veteran experienced was not “an event that is outside the range of usual human experience and would have been markedly distressing to almost anyone.”
3) There is no evidence that the veteran was actually in combat.
These conclusions by the VA are no longer acceptable reasons for denial of benefitsRecent VA rulings, Court rulings, and the replacement of the DSM-III-R with the DSM-IV as the basis for determination of disability, have dramatically changed the way the VA rates, or should rate, veterans applying for disability benefits. The Department of Veterans’ Affairs has recently published a new manual, “Best Practice Manual for Posttraumatic Stress Disorder (PTSD) Compensation and Pension Examinations.” With the publication of this manual, the VA has declared: “The Veterans’ Benefits Administration (VBA) and Veterans’ Health Administration (VHA) are committed to improving these services to veterans, and improving the quality of compensation and pension examinations for PTSD.” The manual changes many of the assumptions that led to denial of PTSD claims in the past. Review of this manual is thus critical to claimants and their attorneys
What is the Effect of a Favorable Social Security Disability Decision on veteran disability?
The SSA found that you are unable to secure any job in the national economy. Is that decision binding on the VA? It is clear that a favorable rating decision by the VA is entitled to evidentiary weight in a Social Security hearing
In Thomas E. McCartey v. Massanari, 298 F.3d 1072 9th Circ 2002, the Court agreed that a VA disability rating is entitled to evidentiary weight in a Social Security hearing. See Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir.2001) (per curiam) (VA disability rating is generally entitled to “great weight” and “must be considered by the ALJ”
Understanding the new rating for back and neck spinal disability
Degenerative joint disease of the spine is one of the most common claims made by Veterans for service-connected disability.That is because back injury is so common during military service.Contrast this with other conditions, such as cardiac conditions, which rarely affect young soldiers.
This severe condition causes many Veterans to be unable to work.
How can we help?
89% Approval Rate in Tucson
According to data from the SSA only 30% of claimants are approved by the SSA. Of those denied at the initial level only 40% obtain benefits after a hearing when representing themselves and 63% obtain benefits when assisted by a lawyer. By 11-01-2007 I represented 240 claimants before the SSA in Tucson. The approval rate of the entire group was 89%. ( see table) Appeals were taken on behalf of 20 of the 27 claimants denied. The results of the appeals are still pending. I expect at least 60% success in this group resulting in further improvement in the approval rate of the entire group.
|Back injury and disc disease||66||7||7||74||89|
|Fibromyalgia and chronic fatigue||23||1||1||24||96|
|Neurological conditions including seizures sight and hearing||19||4||2||23||83|
|Mental, Depression Bipolar cancer||35||6||3||42||83|
|Heart diabetes asthma Crohn bladder cancer obesity||44||6||4||53||83|
|Foot hand hip knee neck & shoulder||22||3||3||24||92|
|Total as of 11-1-2007||213||27||20||240||89|
LONG TERM DISABILITY (LTD) ,ERISA TUCSON ARIZONA
In addition to being a lawyer I am a surgeon with almost thirty years of medical experience. I served as Clinical Associate Professor in Surgery, Assistant Editor, Transplantation Proceedings and President of the New York Transplantation Society. As a associate professor of surgery I have authored 3 book chapters three patents and 106 research papers published in peer reviewed medical journals. Because of my medical and research background, I believe I am in the best position to study and present your disability case in the best light. I obtain all the medical records in your case and perform an independent medical research. I analyze your case. I often meet with your doctors to have the best information available. I then present an analysis of your case to the judge arguing not only the legal merits of your case but also present your medical file in its best light. Over the last 15 year I successfully represented clients who were denied Long Term Disabiliy ( LTD ) benefits by Cigna, Metropolitan Life Insurance (MetLife) ,The Hartford, The Life Insurance Company of North America (LINA) Unum, Aetna Lincoln National Life Insurance Company Sedgwick CMS and the Arizona State Retirement System (ASRS)
WHY DO I NEED A LAWYER WHO SPECIALIZES IN LONG TERM DISABILITY (LTD) ERISA LAW
Long Term Disability ( LTD) Disability insurance policies are very specific as to the provisions that need to be satisfied in order to obligate the insurer to pay you benefits. Group policies are designed to limit coverage and the amount of benefits payable. This is done in many ways, including limited definitions of disability, offsets against benefits, as well as significant limitations and exclusions in the policy. Generally, group policies are subject to the ERISA regulations. The Employee Retirement Income Security Act of 1974 (ERISA) is the federal law that regulates the establishment, operation, and funding of most non-governmental employee benefit plans, including long-term disability plans. ERISA was adopted to protect the benefits of plan participants and beneficiaries. Unfortunately, due to unartful drafting by Congress, the courts have often defeated the purpose of the act and have provided protections to insurance companies at the expense of participants and beneficiaries. ERISA is now used by insurance companies as a sword in an attempt to deprive participants and beneficiaries of meaningful judicial review.
WHAT IF I APPEAL THE DENIAL OF THE LONG TERM DISABILITY DECISION ON MY OWN
The Long Term Disability ( LTD) plan must provide you with 180 days to appeal their denial. If you fail to successfully appeal the decision you have the right to take your case to the Federal Court. Under ERISA, the Court will not allow you to introduce new evidence. The Court will not hear testimonies. You have the burden to prove that the determination by the LTD plan was the result of “abuse of discretion” and it is “arbitrary and capricious.” This is a difficult standard to meet. It is crucial that an attorney experienced in Long Term Disability ( LTD), ERISA law will file the administrative appeal. This way even if the LTD plan denies your claim you have certainty that all the evidence needed to support your claim was provided and thus the Court can fully asses your arguments. Remember that your long-term disability claim case manager is not your friend, your advocate, or your confidant. Don’t be fooled. No matter how empathetic, friendly, or helpful your case manager appears to be, your case manager is your adversary. What you say, can and will be used against you, not only in your claim, but also in any legal proceeding in the future.
YOUR LONG TERM DISABILITY DENIAL ,WHAT WE DO :
1. Demand Documents from the Insurance Company. We write the insurer demanding a copy of: the plan; the policy; the SPD; the claim file; all documents relied on by the insurer in denying the claim; any internal guidelines used by the insurer; the reports of all medical and vocational reviewers; audio or videotapes of the claimant; and notes of any telephone conversations.
READ how we appeal your Long Term Disability ( LTD) case
MY DOCTOR SAID I AM DISABLED
The “treating physician rule” was originally borrowed from Social Security law, as used in Social Security disability cases. The rule is based on the premise that the “treating physician” is in a better and more informed position to render opinions and thus the Court must give these opinions controlling weight. Unfortunately, the US Supreme Court on May 27, 2003, in Black & Decker Disability Plan v. Nord, held that “ERISA does not require plan administrators to accord special deference to the opinions of treating physicians,” thereby effectively ending the use of the treating physician rule in ERISA-governed claims. ( See also Social Security and Long Term Disability ( LTD) ERISA)
I WAS DENIED LTD BUT DETERMINED DISABLED BY THE SOCIAL SECURITY ADMINISTRATION
Prior to the Supreme Court’s decision Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003), the Ninth Circuit applied the treating physician rule in ERISA disability cases. See Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130 (9th Cir.2001), vacated, 539 U.S. 901, 123 S.Ct. 2267, 156 L.Ed.2d 109 (2003). Under this rule, the opinions of a claimant’s treating physician are given special deference and may be disregarded only for clear and convincing reasons based on substantial evidence in the record. (SeeRegula, 266 F.3d at 1140). In Nord, the Supreme Court rejected this rule, holding that ERISA and the Secretary of Labor’s regulations implementing the statute do not command plan administrators to credit the opinions of treating physicians over other evidence relevant to the claimant’s medical condition. Nord 538 U.S. at 825, Following the rejection of the treating physician rule in ERISA cases, plan administrators almost uniformly ignore the favorable decision by the SSA when denying applications for disability benefits under ERISA. social security and long term disability( read full article )
I SUFFER FROM FIBROMYALGIA OR CHRONIC FATIGUE SYNDROME BUT DENIED LTD BENEFITS
Fibromyalgia syndrome (FMS) is a common and distressful condition with multiple facets. FMS patients can be subclassified into five groups based on their clinical presentations: • Predominant pain and fatigue; • Predominant anxiety, stress, and depression; • Predominant multiple sites of pain complaints and tender points (TP); • Predominant numbness and swollen feeling; • Associated features, that is, irritable bowel syndrome and headaches Fatigue is the hallmark of the chronic fatigue syndrome (CFS); fatigue must be new, persistent, or relapsing and associated with a 50% reduction in a patient’s premorbid activity for at least 6 months. In the mid-1980s, reports erroneously linked CFS to Epstein-Barr virus (EBV), and CFS continues to be controversial. Fibromyalgia is a similar disorder of widespread musculoskeletal pain and fatigue with other symptoms, such as poor sleep. CFS and fibromyalgia are overlapping disorders; about 75% of patients with CFS also meet the criteria for fibromyalgia, and vice versa. The onset of CFS is often acute after an infectious illness, typically viral, whereas the onset is often gradual with fibromyalgia. ( READ MORE) FIBROMYALGIA and Long Term Disability ( LTD)
Typical reasons for denial of Long Term Disability ( LTD)
The clients I most often see are clients who were approved for benefits by the insurance company but shortly thereafter the plan terminates their benefits. The most common arguments raised by the plan are: • * The Claimant’s medical condition has improved • * The Claimant is not receiving adequate medical care • * Surveillance by a private investigator found that Claimant is not disabled The Claimant’s Medical Condition Has improved READ MORE Typical reasons for denial of Long Term Disability ( LTD)
Representation, Arizona Retirement System Long Term Disability Income Plan
There are three primary reasons why your claim may be denied:
1. You misunderstand the policy language.
2. You are unable to overcome the “hired gun” experts hired by the insurance company to defeat your claim.