Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery”instead of ‘I have a question.
Knowledgeable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title.
I don’t read all posts every login and will gravitate towards those I have more info on.
Use paragraphs instead of one massive, rambling introduction or story.
Again – You want to make it easy for others to help. If your question is buried in a monster paragraph, there are fewer who will investigate to dig it out.
Leading too:
Post straightforward questions and then post background information.
Examples:
Question A. I was previously denied for apnea – Should I refile a claim?
Adding Background information in your post will help members understand what information you are looking for so they can assist you in finding it.
Rephrase the question: I was diagnosed with apnea in service and received a CPAP machine, but the claim was denied in 2008. Should I refile?
Question B. I may have PTSD- how can I be sure?
See how the details below give us a better understanding of what you’re claiming.
Rephrase the question: I was involved in a traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?
This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial of your claim?”
Note:
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Most Common VA Disabilities Claimed for Compensation:
You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons …Continue reading
Question
Railroader
Current Hearings
Hearing: The Rising Number of Disabled Veterans Deemed
Unemployable: Is the System Failing? A closer look at
VA’s individual unemployability benefit
STATEMENT OF
THE HONORABLE DANIEL L. COOPER
UNDER SECRETARY FOR BENEFITS
DEPARTMENT OF VETERANS AFFAIRS
BEFORE THE
SENATE COMMITTEE ON VETERANS’ AFFAIRS
OCTOBER 27, 2005
Mr. Chairman and members of the Committee: Thank you
for the opportunity to review with you the issue of
Individual Unemployability (IU). I will discuss what
IU is, its history, the criteria used to determine
eligibility, the number of veterans receiving IU
benefits, the May 2005 study by the Inspector General
(IG) of state variances in average annual
compensation, and other issues. I am pleased to be
accompanied by Ms. Renée Szybala, Director of VA’s
Compensation and Pension Service, and Ms. Judith
Caden, Director of VA’s Vocational Rehabilitation and
Employment Service.
What Is IU
Individual Unemployability or IU is the basis on which
the Department of Veterans Affairs pays
service-connected disability compensation at the rate
payable for a 100-percent evaluation to qualified
veterans with combined evaluations that are less than
100 percent. Regional office decision-makers assign
IU ratings when veterans meet minimum combined
evaluation criteria and, in the judgment of the rating
official(s), are unemployable due solely to their
service-connected conditions. In exceptional
circumstances, regional offices may refer cases that
fail to meet the minimum combined evaluation criteria
to the Director of the Compensation and Pension
Service for consideration of an IU rating.
Authority
Section 1155 of title 38, United States Code, charges
the Secretary with responsibility for developing and
applying a disability rating schedule that is based,
“as far as practicable,” upon the average impairments
of earning capacity resulting from service-connected
disabilities. Recognizing that the intent of the
rating schedule is to fairly compensate veterans for
their disabilities to the extent to which they impair
earning capacity of the average veteran, the schedule
none-the-less cannot always adequately compensate an
individual veteran in his or her particular
circumstance. To address the inevitable situations
where the schedule does not adequately address a
particular fact pattern, the schedule adopted by the
Secretary provides both IU and extra-schedular
provisions.
Brief History of IU
In 1925, the Schedule for Rating Disabilities provided
the first definition of total disability. Total
disability was defined as an impairment of mind or
body that is sufficient to render it impossible for
the average person to follow a substantially gainful
occupation.
In 1934, total disability was expanded to provide that
total disability ratings may be assigned without
regard to the specific provisions of the rating
schedule when the veteran is, in the judgment of the
rating agency, unable to follow a substantially
gainful occupation as a result of the veteran’s
disabilities. To be eligible for consideration for IU
benefits, the schedule required that a veteran have a
single 70 percent evaluation or, if the veteran had
multiple service-connected conditions, that the
minimum combined evaluation be 80 percent with at
least one disability considered 60 percent disabling.
In 1941, the minimum requirements for consideration
for IU entitlement were revised to today’s standard of
60 percent for a single disability or a combined 70
percent evaluation with at least one 40 percent
disability.
Throughout the rating schedule, a 60 percent
evaluation or higher reflects significant disability.
A 40 percent evaluation assigned to a condition
generally reflects a serious handicap. Therefore,
when multiple service-connected conditions are
involved, the higher 70 percent minimum combined
evaluation is reasonable to allow for the interplay of
multiple disabilities.
The 1945 rating schedule established that age was not
to be considered a factor in evaluating
service-connected disability, and that entitlement to
IU could not be based on advancing age or additional
non-service-connected disability.
Under VA regulations, if a veteran’s earned income
does not exceed the amount established by the U.S.
Department of Commerce, Bureau of the Census, as the
poverty threshold for one person, currently $9,570,
the veteran is only marginally employed, and marginal
employment does not qualify as substantially gainful
employment. Also, the U.S. Court of Appeals for
Veterans Claims held in Faust v. West that employment
that provides annual income exceeding the poverty
threshold for one person, irrespective of the number
of hours or days actually worked and without regard to
the veteran’s annual earned income prior to the award
of the IU rating, constitutes "actual employability."
Number of IU Beneficiaries
The number of veterans rated totally disabled based on
IU has more than doubled in the past six years from
97,275 veterans in 1999 to over 221,000 veterans
today.
There is no single clear explanation for the increase
in IU ratings over the last six years. However, the
rise has occurred concurrent with other significant
changes. Since September 30, 1999, the number of
veterans receiving compensation has increased from
2,252,980 to 2,636,979 at the end of fiscal year 2005.
This increase of 383,999 veterans represents a 17
percent rise in the number of veterans receiving
compensation. There has also been an increase in the
average combined disability evaluation over the same
period. At the end of 1999, 57 percent of all
veterans receiving compensation had combined
evaluations of 30 percent or less. Today it is 46
percent. The percent of veterans with combined
evaluations of 60 percent disability or more has
increased from 17 percent at the end of 1999 to the
current 29 percent. An interplay of advancing age,
diabetes, and various presumptions of service
connection for cancers associated with herbicide and
radiation, as well as a significant increase in the
number of veterans awarded service-connection for
PTSD, account for a substantial portion of the
increase.
Recent court decisions have also had an impact on IU
ratings. For example, in 1999, the U.S. Court of
Appeals for Veterans Claims in Norris v. West held
that VA must infer a claim for IU if the veteran files
a claim for increased disability, meets the schedular
minimum combined evaluation criteria, and there is
evidence of inability to engage in substantially
gainful employment due to service-connected
disability.
Interplay with Vocational Rehabilitation and
Employment (VR&E)
In its September 1987 report, “Improving the Integrity
of VA’s Unemployability Compensation Program,” the
then General Accounting Office (GAO) recommended that
VA revise its regulations to require that all veterans
applying for a total disability rating based on IU be
referred for a vocational rehabilitation evaluation.
VA does not currently require an employment assessment
by VR&E program staff as part of the IU entitlement
determination. If the Secretary decided to require an
employment assessment in connection with determining a
veteran’s entitlement to IU, VA would first promulgate
regulations defining the scope, purpose, and criteria
for conducting such an assessment, and the manner in
which VA would implement such assessments.
A veteran’s participation in a program of
rehabilitation, education, or training does not
preclude a total disability rating based on IU.
Veterans with compensable service-connected
disabilities, including those with IU ratings, may be
entitled to receive vocational rehabilitation benefits
under the VR&E program (chapter 31, title 38, United
States Code). VA also may not deny a veteran’s IU
claim on the basis that he or she is participating in
a Veterans Health Administration (VHA) program of
therapeutic and rehabilitative services, or consider
therapeutic and rehabilitative activities as evidence
of a veteran’s ability to secure or follow a
substantially gainful occupation. Our regulations
allow a veteran receiving IU benefits to work 12
consecutive months in substantially gainful employment
before any change is made in the IU determination.
Additional Benefits
A total disability rating based on IU can result in
eligibility for additional benefits for a veteran’s
dependents and survivors. Educational benefits for
the veteran’s spouse and eligible children are
available under the Survivors’ and Dependents’
Educational Assistance Program (title 38, United
States Code, Chapter 35). The Civilian Health and
Medical Program of the Department of Veterans Affairs
(CHAMPVA) provides reimbursement to eligible
dependents for most medical expenses, provided that
they are not also eligible for health care benefits
provided by the Department of Defense. To be eligible
for both of these benefits, the veteran’s IU
determination must be considered permanent.
Permanency for eligibility to Chapter 35 and CHAMPVA
requires that there not be a future examination
scheduled.
Application Process
In most cases, to be considered for IU benefits, a
veteran must apply. However, in the Norris case
mentioned earlier, the court held that a veteran need
not apply for IU for a claim for IU to be inferred.
Thus, VA is required to consider the issue in certain
circumstances, even if the veteran did not explicitly
apply for an IU rating. Recent guidance to the field
directed that, once an IU claim is inferred, an
application must be sent to the veteran for completion
in order to obtain the essential information requested
on the application form. The form asks the veteran to
furnish an employment history for the five-year period
preceding the date on which the veteran became
unemployable, as well as from that date to the date of
application.
As part of the development of IU claims, field
stations are also required to solicit information from
each employer during the 12-month period preceding the
date the veteran last worked. The employer is asked
to provide information concerning the veteran’s
employment history including the date of employment,
the type of work performed, and if the veteran is not
currently working, the reasons for termination of
employment.
Role of the Medical Examiner
If the rating official determines that a medical
examination is necessary to determine whether a
veteran is entitled to a total disability rating based
on IU, an appropriate examination or opinion request
is submitted to a VHA medical facility or our contract
examination provider.
Medical examiners follow the appropriate worksheets to
perform a complete and adequate examination for rating
purposes, answering all questions and providing
opinions as requested. A diagnosis is to be provided
for every condition listed on the examination request.
The medical examiner should describe the disability’s
effect on the veteran’s daily activities and ability
to work. For IU claims, the examiner should also
obtain the veteran’s occupational history (i.e., type
of occupation, employment dates, wages for last 12
months, and detail any time that was lost from work in
past 12-month period).
Continued IU Eligibility
Once a veteran is awarded IU benefits and until he or
she attains age 70, the veteran is required to submit
an annual employment certification. This procedure
was resumed in September after having been suspended
for approximately six years. The veteran must list
all employment for the preceding 12-month period. VA
uses the certification to verify continued entitlement
to IU benefits. Failure to return the form will cause
VA to send the veteran a contemporaneous notice of
reduction of the monthly benefit payment to the rate
justified by the underlying rating.
VA may schedule a reexamination for any veteran when
VA determines there is a need to verify the continued
existence or current severity of a disability.
Generally, VA requires reexamination if it is likely
that a disability has improved or if evidence
indicates that a disability has materially changed or
that the current rating may be incorrect. Periodic
future examinations are not requested if the
disability is unlikely to improve, if symptoms have
persisted without material improvement for a period of
five or more years, where the disability is permanent
in character, or in cases where the veteran is age 55
or older. After a veteran has received compensation
at any level of disability for 20 years, to include
total disability benefits based on IU, that
compensation rate is protected.
Veterans receiving IU benefits are subject to VA’s
annual income verification match (IVM). The IVM uses
Internal Revenue Service (IRS) and Social Security
Administration (SSA) income records to verify that IU
beneficiaries remain below the earnings threshold for
entitlement to IU benefits.
Reviews of VA Claims Processing Related to IU
Former Secretary Anthony J. Principi, in response to
media articles about state-to-state variance in
average compensation payments to veterans, requested
that the VA Inspector General (IG) study the payment
variance issue. The IG found that payment variance
was affected by several factors including demographic
factors and representation by veterans service
organizations, as well as the incidence of PTSD and
the subsequent award of IU benefits for that
condition.
The Government Accountability Office (GAO) also issued
a report in 2004 pointing to a need for increased
analysis of the consistency of decision-making across
regional offices. GAO is currently conducting a study
of IU benefit decision-making.
Based on the preliminary findings from these reviews,
as well as a significant increase in the number of IU
case referrals received in the latest IVM with IRS and
SSA, we have been analyzing our existing IU procedures
and regulations to determine if changes are needed.
As discussed earlier, we have reinstated the annual
employment certification for veterans receiving IU
benefits. We have also reinforced existing procedural
and evidentiary guidelines for IU determinations
through conference calls with our field stations and
at our recent Veterans Service Center Managers
Conference. We will continue to work to provide
additional training for our employees, and to identify
ways to strengthen and clarify our long-standing
procedural requirements and ensure the integrity of
this important benefit.
The IU benefit has a long history. It fills a
critical gap when the rating schedule fails to fully
address the impact of disability in a specific
veteran’s circumstance. We believe that during this
period of conflict and danger for our country, IU
continues to be an essential tool in serving America’s
veterans and fulfilling the country’s commitment to
them. We at VBA are fully cognizant of this as we
work to ensure those who have served this nation are
fully compensated for their injuries and assisted in
returning to participation in society to the maximum
extent possible permitted by their injuries.
Thank you for this opportunity to discuss this
important benefit. I would be pleased to address any
questions you may have.
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