Overcoming Limiting Beliefs in VA Disability Claims | South Portland, ME

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Overcoming Limiting Beliefs in VA Disability Claims

Atty. Kristian Terison: [00:00:00] Just on an individual basis, what are some of the common reasons that veterans get stuck in this, belief that their claim isn’t strong enough?

Atty. Francis Jackson: Well, I, think the number one cause is the slow process that these claims move in.

the VA had a major overhaul of its claims process in a statute sometimes referred to as the AMA, statute became effective in February of 2019 and moving forward in that,

whole process has been difficult for the VA.

Atty. Francis Jackson: [00:01:00] So, welcome to Victory Over VA, your guide to understanding your VA disability benefits.

So, today, we’re going to talk about The Limiting Beliefs That Certain Veterans Have About Their Claims And What The Response To That Needs To Be.

So, welcome, I’m Francis Jackson, this is Kristian Terison. And who are we?

Well, we’re lawyers at the firm of Jackson MacNichol. Our particular specialty is representing veterans who are seeking veterans disability and helping them get justice on their claims.

And so, who is this show for? Well, obviously it’s for veterans of the U. S. armed forces of various branches. [00:02:00] And more importantly, it’s for those who care about veterans, whether it’s family or friends or community support organizations. It’s for anybody who’s trying to help veterans, support veterans, VA disability process, which unfortunately can be both slow and emotionally painful for a lot of, veterans.

So, here we’re talking about veterans who are applying for disability benefits. We want you to subscribe to our podcast and every week we’ll give you some tips on what to do and how to do it.

And with that, let’s talk about this week.

Atty. Kristian Terison: All right. So, we’re focusing on the unfortunate, limiting belief that some veterans have that their claim isn’t strong enough to win, especially on an appeal you know, overcoming that, first denial to continue with the process can be tough.

How often do you come across veterans who are hesitant to [00:03:00] do another appeal because they doubt the strength of their claim or the seriousness of their disability?

Atty. Francis Jackson: Pretty often. I think many of our clients at some point in the process start down that mental road, and it’s understandable. One of the sad things about the VA process is that, the VA is badly understaffed in the adjudication area.

If you go on the internet and look, you’ll see that they are literally trying to hire thousands of people at this point because they have so many openings. So, they’re badly understaffed.

They are only now getting into the 20th century in terms of making their systems computer organized and computer directed. As recently as five to ten years ago, we would still get VA files that came in stacks of paper. [00:04:00] You know, they weren’t electronic at all, the VA has made great strides in the last five years, particularly in terms of getting their system computerized and computer directed.

But they still have a long way to go in terms of, being able to reach a point of quickly and efficiently processing claims.

So, that combined with the inherent uncertainty of making any claim that’s already been denied trying to move that forward on appeal, is just hard for people. And, lots of veterans get to the point where they’re struggling with whether they should continue.

Atty. Kristian Terison: Just on an individual basis, what are some of the common reasons that veterans get stuck in this, belief that their claim isn’t strong enough?

Atty. Francis Jackson: Well, I,

think the number one cause is the slow process that these claims move forward in.

You [00:05:00] know, the VA had a major overhaul of its claims process in a statute sometimes referred to as the AMA, the statute became effective in February of 2019 and moving forward in that whole process has been difficult for the VA.

You know, they had to really change all their forms, all their internal processes. But it’s also been made more difficult by changes in the legislation, the statutes, laws regulating how the process works, particularly the recent PACT Act that became effective. Not August of this year, but the previous year.

So, what the PACT Act did in particular was to substantially increase the kinds of claims that could be made and the kinds of claims that were subject to a legal presumption that if you showed fact A, then fact B was [00:06:00] presumed. And so, what that has done is to really create a logjam in VA case processing.

The Board of Veterans Appeals, which is sort of the central entity in the appeal process was already behind and now they’re further behind. We’re at a point where there are thousands of these appeals pending and appeals that were filed back in 2019 four and a half years ago, right after the law changed in February of 19, are still pending for disposition in many cases.

It’s a very disheartening process for a lot of veterans to have these things drag on so long. And probably equally disheartening is that the process moves in a, counterintuitive way.

When we appeal a case from the Regional Office where the case was denied up to the Board of Veterans Appeals, in many [00:07:00] instances, the Board agrees that the Regional Office was wrong in denying the claim, but they don’t grant the claim. Instead, they remand the claim, sending it back to the regional office and telling them to develop further information, to get more records, and take various other steps to clarify the nature of the claim.

And a lot of folks are very disheartened by that, they feel like they’ve already made the claim, they’ve waited a significant amount of time to have an appeal either on the records or after hearing, they’ve waited for a decision after that, and now they’re being told that they’re not getting a final decision, either thumbs up or thumbs down on their, case, instead it’s looping back for more development.

And the same thing happens at the Court of Appeals for Veterans Claims, where a decision by the Board of Veterans Appeals gets appealed to the [00:08:00] court. Many people have the belief that the court is going to decide their claim, up or down. But that’s not how it works, what the court is there to do is to ensure that their claim was fairly processed.

So essentially, the court is going to look at how the VA handled the claim and whether they treated the veteran fairly in the process, they are almost never going to decide that a veteran either gets benefits or doesn’t get benefits.

It’s all about the process and if you think about comparison to typical court processes in the civil system where our system of justice operates, whether it’s a lawsuit over a dog bite or a car accident or whatever it may be, it works pretty much that same way as a, in large part, the courts look at whether the process was fair.[00:09:00]

Not necessarily whether the result was right, but whether the process was fair. Most appeals are about errors in the process. And that’s the same thing at the Court of Appeals for Veterans Claims, the Court has only a very limited ability to actually outright reverse a denial in order of payment of benefits.

There are a few cases where they can do that, those are the exception and not the rule. I’ve been doing this since 1992, and in that time, I’ve had two cases where the court reversed and ordered benefits paid out of literally thousands of cases. It’s just the way the system is set up, it is very difficult.

I would say nearly impossible for the Court to make a final decision in favor of the claim. It’s, because of the way it works, it’s actually easier for them to make a final decision denying the claim. But to have a final positive [00:10:00] outcome at the court is extremely rare, very difficult for the court to make things align in a way that they can do that.

Atty. Kristian Terison: Can you share a story of a claim that at first blush seemed weak, but went through the appeal process and came out successful?

Atty. Francis Jackson: I can, we had a client let me call her Mrs. X for our purposes here. And here was the claim, she had a husband who died from a heart condition which she said was related to Agent Orange. She made the claim, and the VA said that the death was not service connected in the context of an application for burial benefits.

The VA provides burial benefits and they make a distinction between burial benefits for people whose deaths were service connected and those who died for other reasons.

And they make that [00:11:00] distinction because Congress has authorized them to pay a greater benefit for folks whose death was service connected.

So, they turned this lady down saying that on her application for burial benefits, the death was not service connected.

Go forward ten years, and the VA has been ordered now by the federal court to go back and look at certain Agent Orange related claims, including heart claims like this lady’s husband. And it looked like, she’d already been denied. She went back to the VA, she made the, claim.

They said, okay, you know, the rules have been changed. Now, heart disease is recognized as an Agent Orange related claim. We can pay you, and they started paying her. She said, wait a minute, I made this claim ten years ago, I’m entitled to ten years of back pay. The VA said no, go away.

So, we looked at that claim and I frankly [00:12:00] thought it was a challenge, a difficult claim. But we went forward with the claim, we made the argument that this case had been one where she’d applied for veterans benefits for a spouse of a deceased veteran and that they had turned her down for one of two types of benefits, but not both.

The VA can pay the spouse of a deceased veteran under one of two programs, either the veteran’s death was service connected, in which case, you’re eligible for what’s called DIC, which is an acronym for Dependency and Indemnity Compensation. And when the death is service connected, the widow or spouse can get a monthly benefit. That’s currently about $1,400 a month for that situation where they lost the spouse in a service connected way.

if the [00:13:00] person served in a time of war, but the death is not service connected, they can be paid a benefit, but it’s a lower benefit and it’s dependent on their level of income.

So, above a certain level of income, you no longer qualify. And in her case, she had filed the application for both kinds of benefits. They had turned her down for the benefits based on her husband’s service at a time of war, saying that she wasn’t eligible because her income was too high.

She had Social Security benefits and she was working and the combined income was too high. So, we argued that the VA had never actually decided whether she was entitled to DIC benefits. They had only decided the pension claim, and of course the VA said no. We told her this death wasn’t service connected back on this burial claim, that’s all we had to do. We said no, the law is that you have to [00:14:00] tell her that you’re denying her on the DIC benefits and explain why, and you didn’t do that.

So we took that up to the court, we lost. The VA argued that their burial benefits letter was sufficient. And then we appealed that all the way up to the Federal Circuit, which is the next to last court before the Supreme Court. And at the Federal Circuit, we were able to convince them that, in fact, the VA had not ever made a formal decision as required on her claim for DIC benefits, and that she was entitled to, worked out by then to about 12 years of past due benefits, and the court actually ordered not a remand, but actual reversal in payment, which is the second of only two of those I’ve ever gotten.

But that’s I think, a classic example of a difficult case that ultimately prevailed.


Atty. Kristian Terison: Are there particular conditions or injuries that you see veterans [00:15:00] underestimating as part of their claims?

Atty. Francis Jackson: Well, it happens with a lot. There’s too many to really list them all individually, but one place that happens quite frequently is with back claims.

Many veterans who have difficulties with their back also have related problems, particularly in what’s called radiculopathy, meaning nerves that are impaired by the back condition that caused symptoms down the legs, often from the hip down to the knee, sometimes all the way down to the toes.

And very frequently, we see veterans who think that their back claim is not really a claim that’s going to go anywhere and that even if they prevail, they’re going to get a relatively low rating because the VA has changed its back ratings around so that while it used to be that most back claims got rated at 40% in the VA system, now most back claims get rated at 20% in the VA system.

[00:16:00] But they overlook the fact that it is frequently possible to get the related leg claims also granted and that if pain into both legs at a significant level is granted, that will give them a 50 percent rating rather than a 20% rating. So, that’s one that gets frequently low rated.

Another that frequently gets low rated for, in a similar way, is diabetes claims. Diabetes claims generate of secondary conditions, the most serious ones usually is diabetic damage to the eyes. And again, lots of folks don’t, think of their diabetes as a particularly serious claim. When in fact it’s causing damage to other organs and may end up being a claim that gets them a total disability rating when you factor in all the secondary conditions.

Atty. Kristian Terison: [00:17:00] PMF. about the role of medical evidence, examinations, expert testimony, additional evaluations. What role can those things play in strengthening a claim that a veteran might feel is weak?

Atty. Francis Jackson: Medical evidence is huge. In many cases, it’s the VA itself will get a medical opinion. Unfortunately, because of the way they do this, it’s like many other government things. They try to get the lowest bidder, and what they do is they enter into contracts with companies that say they will provide medical opinions, and those companies in turn hire physicians who are not usually at the highest level of expertise in the area and in fact in some cases are not physicians at all, they’re physicians assistants or nurses.

And in some cases are not in a specialty that is even [00:18:00] related to the condition so that they might send a cardiology issue about someone’s heart to a family practice doctor for review.

So, the quality of the VA exams is uneven, some of them are excellent, don’t misunderstand, but some of them are not. And because the quality is quite uneven, it’s often very important for a veteran to get their own independent medical examination regarding the specific issue that’s involved.

Just to give you an example, a few years ago we had a case where the lady was trying to get DIC benefits for her husband’s death. He died of lung problems, he served a number of years on submarines. We were able to get a cancer doctor to look at his records and determine that what had contributed [00:19:00] to his lung problems was exposure to asbestos, which in turn causes or can cause serious lung problems.

And that’s what happened to this gentleman and that medical expert’s report persuaded the VA and ultimately resulted in the lady getting a number of years of back benefits.

So, the medical evidence is critical and what is most critical, in my opinion, is countering any bad evaluations that the VA gets.

And sadly, as I said earlier the VA evaluations are truly a mixed bag. Some good, some bad, some kind of in the middle. But, the bad ones will sink a case unless you get a good opinion from a true expert explaining, A, what is really going on, and B, what’s wrong with the other opinion and why.

So, critically important.

Atty. Kristian Terison: All right. Well, this has been another episode of Victory Over VA. Thank you for [00:20:00] tuning in. Please be sure to subscribe and come back next week for our next episode.

Atty. Francis Jackson: And we’ll see you then.

Welcome back, fellow veterans and supporters, to another empowering episode of The Victory Over VA Podcast! Today, we have a special episode lined up for you as we tackle the topic of overcoming limiting beliefs in VA disability claims. Join us as we delve into the common mindset barriers that veterans face and discover practical strategies to break free from these self-imposed limitations.

Understanding Limiting Beliefs:
Before we can conquer our limiting beliefs, it’s crucial to understand what they are and how they affect us. During this episode, we explore the common misconceptions and negative thought patterns that often hinder veterans from pursuing their rightful VA disability claims. By shedding light on these beliefs, we can begin to dismantle them and pave the way for a brighter future.

The Power of Mindset:
Our mindset plays a pivotal role in our ability to overcome challenges. In this episode, we dive deep into the power of mindset and how it can either propel us towards success or hold us back. Through inspiring stories and expert insights, we uncover the transformative potential of adopting a growth mindset when navigating the VA disability claims process.

Practical Strategies for Success:
Every journey is complete with a roadmap. In this episode, we provide practical strategies and actionable steps to help veterans overcome their limiting beliefs and achieve victory in their VA disability claims. From reframing negative thoughts to seeking support from fellow veterans, we leave no stone unturned in equipping you with the tools you need to triumph over the hurdles you may face.

Inspiring Success Stories:
What better way to motivate and inspire than through real-life success stories? Throughout the episode, we share powerful stories of veterans who have triumphed over their limiting beliefs and secured the VA disability benefits they deserved. These stories serve as a beacon of hope, reminding us that victory is possible, no matter how insurmountable the odds may seem.

As we wrap up this episode, I encourage you to take a moment to reflect on your journey. Are limiting beliefs holding you back from pursuing your VA disability claim? Remember, you are not alone, and there is a community of veterans and supporters ready to help you overcome these obstacles.

So, don’t miss out on this empowering episode of The Victory Over VA Podcast. Tune in now and unlock the keys to overcoming limiting beliefs in VA disability claims. Together, we can rewrite our narratives and achieve the victory we deserve.

Remember, victory over the VA is not just a dream; it’s a reality waiting to be claimed. Let’s embark on this transformative journey together!

AND MORE TOPICS COVERED IN THE FULL INTERVIEW!!! You can check that out and subscribe to YouTube.

If you want to know more about Attorneys Francis Jackson and Kristian Terison, you may reach out to them at:

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