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    Social Security Bootcamp

    Wednesday, August 28th, 2013

    Program Description

    Understand the Procedures and Strategies for Effective Disability Claimant Representation

    Get everything you’ll need to succeed in a disability claim with an insightful overview of the laws, definitions, procedures, and tactics involved in researching and proving impairments. Experienced attorney faculty will walk you through the major steps of the claim procedure and share their methods for selecting cases, presenting them with the SSA and coordinating SSDI with claimants’ other sources of income. Build a solid foundation for your practice – register today!

    • Get the foundational knowledge you’ll need to effectively pursue Social Security Disability claims.
    • Hear first-hand about Administrative Law Judges’ pet peeves and preferences – and improve your hearing tactics.
    • Verify all actions taken in the claim before it came to you to eliminate devastating surprises later.
    • Understand how disability is defined and measured in SSDI and workers’ compensation claims.
    • Find out what sources of proof work best in specific physical impairment claims.
    • Can someone fake a personality assessment test – for the good or for the bad? Find out what safeguards are built in and how you can best use the assessment results.
    • Understand the tangled relationship of SSDIB and Workers’ Compensation to properly coordinate benefits.
    • Know how to ethically address misconduct by clients and representatives.
    • Hear seasoned attorneys share their tips for establishing and collecting attorneys’ fees.
    • Recognize when the claim is worth taking to Federal District Court and what arguments carry the most weight there.

    Who Should Attend

    This basic-to-intermediate level seminar offers attorneys a fast-paced overview of Social Security Disability practice. It will also benefit:

    • Social Security Disability Representatives
    • Government Benefits Coordinators
    • Paralegals
    • Social Workers

    Course Content

    1. Overview of the Law, Operating Terms and Procedure
    2. First Steps and the Search for Claim-Supporting Evidence
    3. Mental Impairment Claims
    4. Effective Hearing Tactics – What Administrative Law Judges Want You to Know
    5. Strategies for the Appeals Council and Federal District Court
    6. Avoiding Ethical Pitfalls
    7. Handling Changes in Benefits
    8. Coordinating SSDI with Workers’ Comp and Other Benefits and Income Sources
    9. Attorneys’ Fees – Sources and Methods of Recovery

    Continuing Education Credits:

    Certification of Disability Management Specialists – CDMS: 6.50
    Certified Case Manager – CCMC: 6.50
    Certified Rehabilitation Counselor – CRCC: 6.50
    Continuing Legal Education – CLE: 6.50
    * denotes specialty credits

    Did You Serve at Camp LeJeune?

    Monday, July 29th, 2013

    Over the past several years, there has been considerable attention in the media to the past contamination of the water supply at Camp Lejeune. From 1953 to 1987, the water supply was contaminated with TCE, PCE, benzene, vinyl chloride and “other compounds.” For background information on the problem, see https://clnr.hqi.usmc.mil/clwater/Site/background_information.html

    Based on legislation passed in 2012, VA now recognizes the medical problems caused by this water contamination. There are two components to the VA response.

    First, VA health care benefits may be available. These are available for veterans and family members, who served on active duty or lived at Camp Lejeune for at least 30 days, from January 1, 1957 to December 31, 1987. The law noted 15 conditions which may be related to exposure to the contaminated water supply: esophageal cancer, breast cancer, kidney cancer, lung cancer, bladder cancer, multiple myeloma, renal toxicity, female infertility, miscarriage, sclerodoma, non-Hodgkins lymphoma, leukemia, myelodysplastic syndromes, hepatic steatosis, and neurobehavioral effects. If you or your family members lived at Camp Lejeune for 30 days during that period and currently suffers from any of these conditions, you may be eligible for health care benefits from VA. For VA’s fact sheet, see https://www.publichealth.va.gov/exposures/camp-lejeune/index.asp

    Second, for veterans who served on active duty at Camp Lejeune, disability benefits may be available. To file a claim for disability benefits, you must
    1. have been discharged under other than dishonorable conditions,
    2. served at Camp Lejeune between August 1953 and December 1987, and
    3. provide medical evidence that you have a current condition and a medical opinion that the condition is related to your exposure to the contaminated water.
    For more information from VA, see https://www.benefits.va.gov/COMPENSATION/claims-postservice-exposures-camp_leguene_water.asp

    VA is not specific as to what “current conditions,” it will consider – however, it is likely that any of the 15 conditions mentioned for health care benefits are good candidates. Unfortunately, VA takes the position that there is not sufficient evidence of a connection between any of these conditions and the exposure to the contaminants in the water supply to justify a presumption that they are related. Because of this, it will be important for you to obtain a medical opinion that states that your condition is related to the water contamination and fully explains the basis for the opinion.

    Even if you submit your own medical opinion, VA is very likely to obtain an opinion from a VA physician regarding the connection between your condition and the water contamination. Because of this, it is especially important that the opinion you submit be clear and well supported.

    VA beginning to make progress in reducing backlog, but new problems may be emerging…

    Friday, June 21st, 2013

    A recent Washington Post article shows signs of progress in VA’s efforts to reduce the more than 800,000 claim backlog. Director Thomas Murphy reports that “the number of pending cases has decreased by 74,000 over the past 45 days.” VA has pledged to complete all cases that have been pending for more than 125 days by the end of 2015. NBC News has reported that VA officials are indicating that St. Paul, Minnesota, Sioux Falls, South Dakota, and Providence, Rhode Island have already achieved this goal. This represents 3 of VA’s 56 Regional Offices. However, wait times at 12 VA Regional Offices still exceed 400 days on average.

    While these reports may provide some hope to the thousands of veteran’s still waiting for their claims to be processed, the elimination of the backlog at the VA Regional Office level may be creating delays at the appeals level. In 2012, the Board of Veterans Appeals handled 49, 600 claims. In the first 6 months of this year, the Board has already received 37,000 claims. This number could reach 100,000 within the next 4 years. Already veteran’s are experiencing wait times in excess of 1,000 days from the time an appeal is submitted to the Regional Office to the time a decision is issued by the Board of Veteran’s Appeals. Efforts to reduce VA’s backlog at the local level does not currently include efforts to reduce the wait time for veterans who appeal Regional Office decisions, which is likely to continue growing as VA issues decisions on the more than 800,000 pending claims.

    Board members hope that VA’s transition to electronic records will help to reduce this wait time. In the meantime, Laura Eskenazi, the principal deputy vice chairman of the Board of Veterans Appeals, reports that they have already begun hiring new attorneys to handle wave of new appeals expected as VA continues to process the backlogged claims.

    To see the complete articles discussed above, please follow the links below:

    https://www.washingtonpost.com/blogs/federal-eye/wp/2013/06/12/va-says-it-has-reached-tipping-point-in-backlog-struggle/?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost

    https://usnews.nbcnews.com/_news/2013/06/16/18955928-va-hits-backlog-goal-in-3-cities-hint-of-a-fix-or-mirage?lite

    https://www.federalnewsradio.com/108/3363126/As-VA-works-to-eliminate-one-backlog-one-more-might-emerge

    IF MY LAWYER GOT PAID FOR A WIN AT THE COURT, WHY DIDN’T I?

    Friday, May 31st, 2013

    In a previous blog posting, we explained why a “win” at the Court of Appeals for Veterans Claims (CAVC) most often does not result in immediate award of benefits by the VA, but instead in a remand, i.e. the case being sent back to VA to be redone, sometimes with further development. Clients sometimes wonder why it is, then, that their lawyer who prosecuted the appeal at the court gets paid.

    How is it that a lawyer would be paid for a “win” at the court but the client not see any money? Most lawyers who represent clients at the CAVC do so without charging a fee to the clients. This is possible because the lawyer – who is not a charity, after all, but must pay the rent and light bill like everyone else – will be paid, if successful on the appeal to the court, by the government under the Equal Access to Justice Act (EAJA). Note the emphasis: the lawyer gets paid only if successful, so she is still gambling, since she could spend a great deal of time and effort and still not get paid if she loses. That is why lawyers offer such representation only where they believe there are errors in the Board decision that the court will wish to correct. The money paid to lawyers under EAJA is not taken from the client in any way; indeed, if benefits are eventually awarded by VA and the veteran is represented by the lawyer under a contingent fee agreement, the lawyer must refund to the client a portion of the fee equal to the EAJA payment the lawyer received.

    Here is how that works. VA regulations permit lawyers to represent veteran claimants at VA under contingent fee arrangements. This means that whether and how much the lawyer gets paid depends (is “contingent”) upon the amount of benefits awarded, specifically the past-due benefits accrued from the date of the claim up to the date of the decision awarding benefits. So if a veteran is granted a new or increased rating, VA computes the monthly payments as changed by the award and then adds up all those payments that would have been made from the date of the claim had the award been in effect all that time. That amount is paid in lump sum to the veteran, but with a maximum of 20% (depending on the client-attorney agreement) deducted and paid directly to the lawyer. This is how the lawyer gets paid for her work in getting the award for the client from VA. But the court has ruled that the work at the court, which was paid for by the government under EAJA, and the work at the VA is in some sense the “same work,” so if the contingent fee is more than the amount paid under EAJA, the lawyer is required to refund to her client the amount of the EAJA.

    I WON AT THE COURT, HURRAH! – NOW, WHAT HAVE I WON?

    Tuesday, April 30th, 2013

    Many veterans whose claims are appealed successfully to the Court of Appeals for Veterans Claims (CAVC) are confused and even dismayed to realize that no money is coming to them from VA even though they have won their cases. This dismay sometimes becomes greater when they learn that their lawyer got paid for work at the court. If I don’t get any benefits, the veteran asks, what have I won?

    The short answer is that the veteran has won the ability to continue his or her claim at the agency with the same effective date for any benefits that are eventually awarded. If the appeal to the CAVC is lost, then the claims are dead and have to reopened, with a new possible effective date no earlier than the reopened claims.

    The CAVC does not grant benefits and, with very rare exceptions, its judgments do not immediately result in the VA granting benefits. This is because the Court is a court of appeals, a court of review. What it reviews is the VA claims process and whether it was properly carried out under the law in a given case – not whether the ultimate decision on benefits was correct. That is why a favorable decision from the court does not result in benefits being awarded but instead results in the case going back (being “remanded”) to the VA for further development and another decision. The court considers only whether where are ways in which VA did not follow the law in developing and deciding the claim, so when it concludes that VA did fail to follow the law, the remedy is to have the agency redo the process without making the same error. The hope is that VA will do everything correctly next time, but, alas, that is often not the case; another trip to the court is then required to get the new error straightened out.

    The nature of the court’s review is why arguments before the court are not about why benefits should be awarded but rather about how the Board was wrong in some aspect of its decision denying the benefits. The court’s role as assigned by Congress is to correct such errors and then let the agency (VA) take another crack at doing it right.

    So how is it that a lawyer would be paid for a “win” at the court but the client not see any money? Most lawyers who represent clients at the CAVC do so without charging a fee to the clients. This is possible because the lawyer – who is not a charity, after all, but must pay the rent and light bill like everyone else – will be paid, if successful on the appeal to the court, by the government under the Equal Access to Justice Act (EAJA). Note the emphasis: the lawyer gets paid only if successful, so she is still gambling, since she could spend a great deal of time and effort and still not get paid if she loses. That is why lawyers offer such representation only where they believe there are errors in the Board decision that the court will wish to correct. The money paid to lawyers under EAJA is not taken from the client in any way; indeed, if benefits are eventually awarded by VA and the veteran is represented by the lawyer under a contingent fee agreement, the lawyer must refund to the client a portion of the fee equal to the EAJA payment the lawyer received.

    GAF Veteran Benefits Group Six Year Battle For 100% Disability Rating For Veteran Pays Off

    Tuesday, April 9th, 2013

    In February 2013, Goodman Allen & Filetti obtained approximately $825,000 in retroactive benefits on behalf of a veteran from the Department of the Veterans Affairs Montgomery, Alabama Regional Office (VA).

    The attorneys and paralegals in our Veterans Benefit Practice Group worked tirelessly on this matter beginning with representation at the U.S. Court of Appeals for Veterans Claims in 2007 where they were able to secure a decision sending the case back to the Board of Veterans’ Appeals (Board) for further development and adjudication. The VA continued to reject the argument that the veteran’s claim for T12 myelopathy with bowel and bladder paralysis, the loss of use of lower extremities, and the loss of anal and bladder control, was due to a military connected intervertebral disc syndrome. Following years of submitting argument and evidence in support of the veteran’s claim for service connection and the case transferring back and forth between the Regional Office and the Board, the VA, in August 2011 finally granted service connection for what they “renamed” myelopathy with chronic pain of the right and left lower extremities, both rated at a 10% disability. Despite the good news of the VA’s recognition and acceptance of the service connection, a disability rating of 10% in light of the significant disabilities the veteran was experiencing was simply unacceptable. The decision was appealed and another two years of persistence and impatience transpired before the VA finally gave recognition to the true extent of the veteran’s condition and granted entitlement to 100% disability benefits for various medical disabilities dating back to May 2001, including, entitlement to special monthly compensation based on the need of aid and attendance, automobile and adaptive equipment, specially adapted housing, and dependents educational assistance.

    For additional information please contact David Lowenstein.

    2013 Disability Compensation Rates

    Tuesday, March 12th, 2013

    VA’s disability compensation rates for 2013 include a 1.7 cost of living increase. You can see the 2013 table here – https://benefits.va.gov/COMPENSATION/resources_comp01.asp

    One of the issues that is currently being discussed in the Senate Veterans’ Affairs Committee is the impact of the proposal for a “chained CPI” index to be used in calculating benefits. This is likely to result in a cut in benefits for those receiving VA disability, as well as for Social Security recipients. Veterans’ organizations have testified recently before joint sessions on the Senate and the House Veterans’s Affairs committees on the impact of this proposal, and Senate Committee Chairman Bernie Saunders has indicated concern about this proposal.

    Press releases about the testimony of veterans’ organizations can be found here:
    https://veterans.senate.gov/press-releases.cfm?action=release.display&release_id=817d03fa-56a3-4457-bd3f-1d7dac3ea72e

    https://veterans.senate.gov/press-releases.cfm?action=release.display&release_id=cb65dea1-e38d-4533-8088-dfd4f1a47b2f

    Agreement by VA and DOD for Integrated Electronic Health Record System

    Wednesday, February 6th, 2013

    Secretary Panetta of the Department of Defense and Secretary Shinseki of the Department of Veterans Affairs met on February 5, 2013, their 9th meeting in the last 18 months. They again discussed their commitment to have both departments’ partner in an integrated electronic health record system.

    Instead of merely expressing their mutual desire to create a shared electronic health record system, Secretary Shinseki confirmed the following:

    “Today’s meeting was about how to get there and, in the short term, we’ve agreed to improve data interoperability to that integrated electronic health record before the end of this year, by standardizing health care data no later than December 2013, creating health data authoritative source no later than September of 2013, accelerating the exchange of real-time data between V.A. and DOD no later than December of 2013, and allowing V.A. and DOD patients to download their medical records, what we call our Blue Button Initiative, no later than May of 2013, and, finally, upgrading the graphical user interface, this thing we call the GUI, to display the new standardized V.A. and DOD health care data no later than December of 2013, all of this focused on an initial operating capability in 2014.”

    Whether the target dates will be met is unknown, but the fact that they are taking increased steps toward the creation of a seamless, single integrated electronic health record should be applauded. Bringing together two large bureaucracies on such a large task is monumental. Both Secretary Panetta and Shinseki should be commended for their efforts, and service members and veterans should look forward to the day where medical professionals will have access to all of the patients’ medical records. This will in turn, hopefully, lead to better continued medical care and quicker access to important records.

    Additionally, an integrated electronic health record system will also assist with the processing of veterans benefits claims. Often, the adjudication of claims is slowed because VA needs to search for the service medical records. However, once the shared electronic system is up and running, VA will have access to all of the service medical records at the beginning of the claims process.

    Continued Delays at the VA

    Thursday, January 17th, 2013

    A recent story published in the Bay Citizen, a local San Francisco, California paper, indicates that an increasing number of veterans are dying before receiving their benefits. Data obtained by the Bay Citizen indicates that last year the Department of Veterans Affairs “paid $437 million in retroactive benefits to the survivors of nearly 19,500 veterans who died waiting.” This represents a dramatic increase from three years ago, when less than $8 million was paid to fewer than 6,400 survivors. The article reveals that long wait times are to blame for “tens of thousands of veterans being approved for disability benefits and pensions only after it is too late for the money to help them.”

    VA Officials cite a change in laws as a significant contributor to the increase in the number of posthumous benefits. In 2008, VA simplified the process for survivors to request compensation. Instead of filing a new claim, survivors may now request to be substituted for the veteran in the pending claim. The individual claiming entitlement to benefits following the veterans death, must submit a written request for substitution within one year of the veteran’s passing. Individuals entitled to benefits under this law include, the spouse of the veteran, unmarried children under the age of 18 or those who have been determined to be helpless children, or dependent parents of the veteran. An individual who bore the veteran’s last medical or burial expenses may also be substituted but is only entitled to the amount actually paid for last medical or burial expenses. 38 C.F.R. § 3.1000.

    VA officials also cite the addition of ischemic heart disease, Parkinson’s disease and two types of cancer to the list of diseases presumed to be caused by exposure to Agent Orange as “major catalyst for the rise in posthumous payments.”

    The Bay Citizen’s analysis of 18 reports published by the VA’s inspector general uncovered other reasons for the delays. The reports revealed that “auditors found mistakes in more than 1 in 3 high-profile claims they reviewed.” In addition, according to the Board of Veterans’ Appeals 2011 report, the Board found errors in 73 percent of the cases it decided.

    It is not just elderly World War II veterans who are passing away while awaiting a decision on their claims. The delays and erroneous denials prevent younger veterans from getting the treatment they need to survive. Whether long wait times are attributable to changes in laws or errors by the Department of Veterans Affairs, the effects of those wait times are unacceptable.

    To see the complete article, please follow the link below:

    https://www.baycitizen.org/veterans/story/number-veterans-who-die-waiting-benefits/

    WHY DO VA CLAIMS TAKE SO LONG?

    Monday, November 5th, 2012

    Virtually every veteran claimant has a similar frustration with the slow pace of the VA  claims process. The picture is of claims files stacked in the Winston-Salem, NC regional office, so many that the structural integrity of the building is in question, the weight thought to be too much for the floor structure to bear!

    Winston-Salem has so many claims (over one million) that the RO staff there has reportedly been instructed to stop working on anything except emergency appeals (dying veterans) and focus until October 1 solely on looking at new claims that have never been looked at.

    The story is the same all over the VA system. In Los Angeles, the backlog is so great that even if no new claims were filed beginning now, it would still take three years to clear the backlog. In Chicago 21,299 veterans awaited initial response to claims filed as of August 2012; average wait time for such response is 361 days; average time to initial decision is 1,528 days – that’s 4.2 years!

    Between accumulated backlog of Vietnam era veterans and the newer claims coming in from the Gulf War, Iraq and Afghanistan, the system is backing up much faster than it can discharge claims. Apart from the sheer numbers of claims, the VA is hobbled by a slow antiquated system of paper files. Because the paper claims file has to be used to do most anything on the claim, only one thing can be done at a time: if a VA examiner or the Court has the file for review, the RO will not be doing anything. VA is working on converting to an electronic system, but a quick look at the photo above suggests how enormous an undertaking such a conversion will be.

    What can be done? By the agency, not much, and what it could do, you probably don’t want it to do. In the past, when VA has started incentive programs to speed claims processing, what typically happened is that staffers trying to meet the incentives dealt with claims the quickest way – by denying them. This practice did nothing to improve the quality of claims evaluation. Only a major expenditure by Congress could begin to really address the problem, and it is no secret that the nation has enormous debt. Even if Congress were to appropriate the huge sum of money necessary to hire more staff and acquire additional space and equipment, it would take years to ramp up.

    What can a veteran do? Again, the answer is not much. But there are a few things. First, don’t add to the problem. This does not mean not to file a claim, but if you do file a claim, make sure it is legitimate – don’t keep VA from processing worthwhile claims by submitting bogus claims that it also has to deal with.

    Second, have your claim supported – the basics of claims are simple: to establish service connection there must be a (1) current disability that is (2) causally related to (3) some event in service; if you don’t have evidence proving all three, you’ll be denied. To get a higher rating you have to have evidence that your condition is worse than it is currently rated; you’ll likely need medical evidence to support that. VA is required to locate and obtain medical and service records, but you can request them yourself and get them more quickly.

    Third, respond promptly to requests from VA, but do not re-submit the same material over and over. This just bulks up the claims file, making it more time-consuming and difficult for VA to find anything.

    Fourth, don’t waste your time and VA’s time with rude or abusive phone calls or letters. While VA has weak links like any government bureaucracy, most VA employees are trying their best in extremely difficult circumstances. This doesn’t mean you have to put up quietly with foolishness, but when you call errors to VA’s attention, do it in crisp, clear language that is respectful, to the point, and helps VA see its error and rectify it.

    Finally, while there are not many tools for pushing a system like this to move faster, the law does provide a method for remedying the most outrageous delays. There is a procedure that tries to get the Court to step in and order the agency to do something; it will only do so in cases of extreme delay, e.g. no activity at all for a year. Consult your legal representative about this.

    UPDATE (11/5/2012, 15:19): In working with “The HERO Project” we found something our readers might be interested in.  It’s an interactive map tracking wait time for Veterans Disability Claims with some telling statistics.  Definitely worth the click:  Interactive Veterans Disability Claims Wait Time Map

    Do you have a Military Medical Malpractice claim? We can help. Click here!