Attig Law Firm P.L.L.C

An increasing number of cases before the Board seem to involve the issue of constructive suspension. What is a constructive suspension?

A constructive suspension occurs when, through no fault of her own, an employee is absent from work for more than fourteen (14) days, with a loss in pay. A constructive suspension can only occur when the Agency - not the employee- initiated the absence. If the employee voluntarily initiates an absence, then there is no constructive suspension.

At hearing before the MSPB, the employee-appellant has the burden of proof in a constructive suspension case. That burden is to show, by a preponderance of the evidence, that the absence was involuntary.

A common example of a constructive suspension occurs when a federal employee is found to be fit to return to work by OWCP. When an employee requests work within his medical restrictions, the Agency is bound by policy, regulation, or contractual provision to offer available work to the employee. If the Agency fails to make such an offer, the employee’s continued absence for over 14 days constitutes an appealable constructive suspension.

Once the absent employee makes a non-frivolous allegation that he was able to work within certain restrictions, that he communicated his willingness to work, and that he agency prevented him from returning to work, the burden of production shifts to the Agency. (A burden of production differs from a burden of proof. Under a burden of production, the Agency need only show evidence of a certain point, not prove it to a legal certainty). The Agency’s burden is to produce evidence to show that there was no work available within the employee’s restrictions, or that it offered such work to the employee and he declined it.

If the agency meets its burden of production, then the appellant must present sufficient rebuttal evidence to meet his overall burden of proof.

Another example of a constructive suspension occurs when an employee is suspended, without pay, for more than 14 days while the Agency conducts an investigation of misconduct. Most Agencies have figured that the suspension during an investigation creates an appeal right, and now suspend employees with pay while they are being investigated.

If you are a federal employee, and believe that your employing Agency has constructively suspended you, you should contact a law firm such as the Attig Law Firm, PLLC, that has experience representing Federal employees before the Merit Systems Protection Board (MSPB)

Over the next few days, a series of blog entries will cover the “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. Click on the underlined text below for more information on each topic. This post - and no post on this website - is legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

The five ways are:

1) Direct Service Connection. While a direct service connection can be established in any number of ways, this means of establishing service connection usually means that there is clear evidence of a disability, an incident that occurred while the veteran was in service, and evidence of “linkage” between the two.

2) Pre-existing injury aggravated by time in service. In this type of claim, the veteran usually has some evidence that a condition existed before the veteran’s time in service (usually an entrance examination), accompanied by evidence of an incident occurring in-service and again, evidence of linkage between the two.

3) Service Connection by Legal Presumption. Certain conditions or diseases are presumed to be service connected. There are lists of these conditions and their presumptive periods. Most of these conditions must manifest to a degree of 10 percent of more within one year from the date of separation.

4) Secondary Service Connection. This type of service connection will occur when one disability is the result of another service-connected disability. One of the most famous cases is of a WW II veteran who was treated for tuberculosis with a medication known to cause hearing loss. In the Court of Appeals decision, the hearing loss was a disability with a secondary service connection.

5) Connection due to injury caused by treatment in the VA healthcare system. 38 U.S.C. 1151 states that if a veteran is injured because of VA hospitalization, treatment, rehab or therapy that is not the fault of the veteran, the injury is treated as service-connected.

These topics will be discussed more fully in the entries that follow. In the meantime, if you have any questions about whether or not your injury is service connected, you should consult with a VA Benefits Attorney or a Veteran’s Service Organization. The Attig Law Firm, PLLC, offers free 1/2 hour consultations to veterans seeking representation for their claim for disability benefits to the VA.

This is the fourth installment in our series titled: “VA Benefits: How to Prove your Claim for Veterans Disability due to Service-Connected PTSD”. You can read the first installment, which generally discusses the elements of a PTSD claim to the VA, by clicking here. The second installment, determining what medical evidence is necessary to secure disability benefits for PTSD can be read by clicking here. The third installment, discussing how to prove the existence of an “in-service stressor”, can be read by clicking here.

This installment will discuss how to prove the final element of a PTSD claim to the VA: medical evidence of a link between the current PTSD and the In-Service Stressor.

Generally speaking, if you can prove the first element - a current diagnosis of PTSD - you can prove this element. Why? Because your psychiatrist or treating physician’s report to the VA should include not only a discussion of the diagnosis of PTSD as discussed earlier, but also should include some information about the event which caused the PTSD. While this evidence will not be helpful to prove that the in-service stressor occurred, it will help establish the link between that stressor and the PTSD.

How much evidence of a link do you need? The legal standard is that the evidence must be in “equipoise”. Evidence is in equipoise if there is an equal amount of evidence on either side of a particular argument. All you need to provide is enough evidence to show that the in-service event that caused your PTSD was a “contributing factor” to the PTSD. As long as your medical report properly describes the symptomatology of your PTSD, adequately describes the stressor event, conforms to the DSM-IV, and acknowledges and reconciles reports that support a mental disorder other than PTSD, then you probably have enough evidence to show the third element of your claim.

A special note - if you have been treated (or diagnosed) for an anxiety disorder or PTSD while in the service, you should include these records in your claim for disability to the VA - the VA has a duty to assist you in finding these records or any records that can help prove your claim. Why should you include them? If you were treated for PTSD while in-service, then it is hard to imagine circumstances where the treatment wasn’t for the in-service stressor event, or an in-service event which aggravated or contributed to a prior or current diagnosis of PTSD>

If you have any questions about whether your medical evidence adequately proves a linkage between your current diagnosis of PTSD and in-service stressor, you should consult with a VA Benefits Attorney or a Veteran’s Service Organization. The Attig Law Firm, PLLC, offers free 1/2 hour consultations to veterans seeking representation for their claim for disability benefits to the VA.

This is the third installment in our series titled: “VA Benefits: How to Prove your Claim for Veterans Disability due to Service-Connected PTSD”. You can read the first installment by clicking here. The second installment, determining what medical evidence is necessary to secure disability benefits for PTSD can be read by clicking here.

The topic covered in this installment is the second element of a VA Disability claim for PTSD: The veteran must provide credible evidence of an “in-service stressor”. In regular English, this means you have to show credible evidence that the stressful event or events that caused the PTSD occurred in-service.

There are, generally speaking, two categories of “in-service stressors”: a) Combat Stressors when the Veteran served in combat, and b) Stressors when the Veteran did not engage in combat or experienced a non-combat stressor. The standards are quite different, and will be discussed below. In either case, the veteran must be able to show that it is “at least as likely as not” that the claimed in-service stressor occurred”. You can show this by showing corroborating evidence of the stressing event and a stressor event that is capable of being documented.

Does the stressor need to be life-threatening? Not always. The Court of Appeals for Veterans’ Claims has found that while a life-threatening stressor supports a PTSD diagnosis, it is not a required element for a PTSD claim. (If you have been denied benefits for a PTSD claim because the VA concluded that the in-service stressor was not “life-threatening” you should consult a VA Benefits Attorney or a Veterans’ Service Organization to inquire whether you can obtain retroactive benefits.)

Returning to our topic, there are two categories of in-service stressors: combat related and non-combat related.

1) Proving a Combat-related stressor. Even a brief period of participation in combat will trigger provisions which are very helpful in securing PTSD disability benefits. If you engaged in combat, you only need to present your statement of the occurrence of the stressor event in order to prove this element. The VA shall resolve every reasonable doubt in favor of the veteran, and may rebut your statement only be clear and convincing evidence to the contrary. Unless the stressor is not consistent with you circumstances of your combat service (i.e., you have a non-combat MOS) or if there is clear and convincing evidence (this is a lot of evidence) that the event didn’t occur, the VA cannot generally rebut your statement. You will need more than just your statement, though. Additional evidence that can help are your DD-214, statements from your fellow unit members, letters home to family or friends, combat related decorations (Purple Heart, Combat Infantryman’s Badge, etc.) are helpful to corroborate your claim so that the VA is unable to rebut it. The veteran should provide information from the JSRRC (Joint Services Records Research Center) to help verify that the stressing event occurred.

2. Proving a non-combat related stressor. The VA regulations for proving a non-combat related stressor are a little more strenuous than the combat-related stressor. The VA’s PTSD Regulation appears at 38 C.F.R. 3.304(f), and requires that you, the veteran, provide “credible supporting evidence that the claimed in-service stressor occurred”. The VA VA must assist you in developing evidence that supports the existence of the stressor - unless there is no reasonable likelihood that the assistance would help to substantiate the claim. This evidence need not be found in your military recordes, although that sure helps. The Court of Appeals for Veterans Claims has said that as long as you can provide “independent evidence of the occurrence of the stressful event, and the evidence implies [your] personal exposure”, you will satisfy this element. What sort of evidence should you get? Sworn declarations or affidavits from other soldiers in your unit would be most helpful - but not every event has witnesses. One thing is certain - a statement from your psychiatrist or treating physician that your version is credible is not sufficient. You should consult with a Veterans Benefits attorney or a Veterans’ Service Organization to help you determine what corroborating evidence you will need to provide.

In our next topic, we will discuss the final necessary element for a PTSD claim to the VA: the causal link between the diagnosis of PTSD and the in-service stressor. In the meantime, if you would like to consult with a Veterans’ Benefits Attorney on your PTSD claim, contact the Attig Law Firm, PLLC, today.

This is the second installment in our series titled: “VA Benefits: How to Prove your Claim for Veterans Disability due to Service-Connected PTSD”. You can read the first installment by clicking here.

The topic covered in this installment is the medical evidence a veteran (or that veteran’s advocate, attorney or representative) needs to secure disability benefits for PTSD. As you recall from the original post, medical evidence of a current diagnosis is the first thing the Veteran needs to prove in his/her claim for PTSD disability benefits.

This post will address the two big issues in this element of a PTSD claim: how much medical evidence is enough, and what type of medical evidence is needed.

How much evidence you need to prove depends on when you filed your claim. If you have a Board of Veterans’ Appeals decision issued after March 7, 1997, the veteran need only show that it is “at least as likely as not” that you have the PTSD condition. Prior to March 7, 1997, the standard was that the veteran needed a “clear diagnosis” of PTSD - this is no longer the proper standard. (If you have a BVA decision after March 7, 1997, which denies your PTSD claim on the basis of the lack of a “clear diagnosis” of PTSD, you should consider contacting a Veteran Service Organization or contact a VA Benefits attorney - the VA may have committed error in denying your claim).

The type of evidence necessary is this: an examination by a doctor, preferably a psychiatrist, and a written report. That report should discuss the doctor’s medical opinion that the incident you allege triggered your PTSD was medically sufficient to support a diagnosis of PTSD and that your symptoms were adequate enough for the doctor to diagnose PTSD. This gets a little tricky - you still need to prove the link between the stressor event and the current condition, and your doctor’s testimony that they are linked may not be enough. This is because the question of “linkage” is a question of fact for the VA, not a medical matter.

If the VA doubts the medical evidence you provided, it must follow one of two courses of action. It can either a) set aside its doubts and accept your medical evidence, or b) seek clarification of the portions of the report that cause it to doubt the medical evidence. If the VA does not get the clarification it needs, it can either a) return the report for more clarification or b) obtain independent medical evidence concerning the portions of the report the VA doubts or needs clarified.

Now that you now what (and how much) information you need to provide to VA, what does the doctor need to put in the report to aid your claim. It is imperative that your doctor follow the PTSD criteria in the DSM-IV; using an older DSM (DSM III and DSM III-R) is going to delay your claim and require medical reevaluation under the DSM-IV. This is because the criteria in the DSM-III and III-R are significantly different than the DSM-IV criteria.

The change to the PTSD criteria in DSM-IV benefits veterans in many ways, and leads to an interesting point. The VA used to use the DSM III and DSM III-R. In 1996, the VA adopted DSM-IV as the standard for evaluating mental health impairments. If your claim for disability benefits due to PTSD was rejected prior to 1996, and you have a diagnosis of PTSD dated after 1994, you may be able to reopen your claim for benefits and have it evaluated under the new criteria. At the very least, you should be able to file a new claim for benefits. You should consider consulting an attorney if this issue sounds like it might apply to you.

If you have any questions about the medical evidence you need to support a claim for VA disability benefits for PTSD, contact a Veterans Service Organization or contact a VA Benefits Attorney.

A November 13, 2007, CBS report found that at a significant number of our soldiers returning from Iraq and Afghanistan are committing suicide.

According to the report, since 2005, a total of 6,256 Iraq veterans have killed themselves after returning home. To put that figure into perspective, the total number of US Soldiers killed in Iraq currently totals around 3,800 - 3,900.

One cause of these suicides may be untreated Post Traumatic Stress Disorder (PTSD). PTSD is a mental health condition which, according to the American Psychiatric Associations Diagnostics and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV) is:

“[T]he development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one’s physical integrity…[the response to which is] intense fear, helplessness, or horror.”

In other words - seeing people kill or be killed on a regular and recurring basis can damage your mental health. It may start with a general feeling of emotional numbness after a traumatic event. There may be guilt about surviving when others did not, anxiety, depression, flashbacks and nightmares, insomnia, and worse. Untreated, the condition can lead to drug or alcohol abuse and suicide.

Many veterans returning from service in Iraq and Afghanistan suffer from PTSD - sometimes it won’t surface for weeks, months or years. When service-connected PTSD surfaces, it is a compensable condition and the veteran is entitled to disability benefits.

A veteran may find it difficult to prove to the VA that he or she has PTSD. The next few days of this blog will be dedicated to laying out some basic requirements for proving entitlement to PTSD to the VA. Click on the bold and underlined text below to learn more about a particular requirement.

Generally speaking, to successfully claim disability benefits for PTSD, a veteran (or their attorney or advocate), must show three (3) factors:

1) Medical evidence of a current diagnosis of PTSD. A veteran need only prove, by competent medical evidence (consistent with the criteria of the DSM-IV) that it is at least as likely as not that the veteran has disabling PTSD.

2) Credible evidence of an “in-service stressor”. There are, generally speaking, two categories of “in-service stressors”: a) Combat Stressors when the Veteran served in combat, and b) Stressors when the Veteran did not engage in combat or experienced a non-combat stressor. The standards are quite different, and will be discussed in the link, above.

3) A link, or connection, between the current condition and the “in-service stressor”. This is the murkiest element of the three, but generally speaking, if the Veteran can show medical evidence - by a lay expert - that the in-service stressor was at least a contributory factor for the current symptoms, then the veteran should be able to secure benefits for this condition.

Each of the elements above will be discussed in more detail in the coming days. You can tell that the blog has been posted by clicking on the underlined text in each paragraph.

In the meantime, if you are a US Veteran returning from Iraq or Afghanistan - or a veteran of any war - and need help with your claim for disability benefits for PTSD from the VA, contact an attorney at the Attig Law Firm, PLLC, today for a free consult.

The thought occurred to me that many folks that are not veterans don’t understand the process that Veterans go through to secure benefits when they have a service-connected disability. One way that I thought might help broaden the understanding of non-Veterans might be to create a Blog Diary of one veteran’s struggles to apply for and receive benefits.

After thinking about this for a while, I decided to go ahead and see if there are any veterans who are interested in participating in this experience. If you are a veteran who has not yet made an original claim to the VA, please contact us if you would be interested in participating in this experience.

As we progress through the claims process together, both of us would describe our experience with the process in regular blog postings. Here are some basic ground rules of the process:

• The veteran could remain completely anonymous or use a pseudonym (your choice);
• The veteran would have to agree to regular posts which would be submitted to the Firm, and posted after editing for grammar, spelling, etc.
• The Firm would represent the Veteran pro-bono through the entire claims process, whether it takes 5 weeks or 5 years
• We would prefer a Veteran returning from Iraq or Afghanistan, to begin to highlight some of the great difficulties that lie ahead for our latest generation of returning soldiers.

If you are interested in participating in this opportunity, please contact Chris Attig, an attorney at Attig Law Firm, PLLC.

If you are a US Veteran seeking assistance with your VA benefits or VA disability claim, please contact the Attig Law Firm, PLLC to set up a free consult with an attorney.

Your military health records can be ordered through the NPRC and the VA, and can be done by letter, fax, or online. To properly request your records, and to ensure you get the records you are looking for, you will need to know the two major categories of military medical records.

The first category is “outpatient records”, or the “health record”. It typically consists of your in-processing and out-processing physical exams, immunization, dental, eyewear and other medical profiles (if you ever had any duty limitations or health conditions). For most veterans discharged after 1992-1994 (depending on your branch of service), the VA will maintain the outpatient records at the VA’s Record Management Center (RMC). Sometimes, you may get a summary of “hospitalizations” or “inpatient treatments” in the health record. When you first file a claim with the VA, they will usually request the outpatient record and included it in your complaint file (C-File).

The second category is “inpatient records”. These records are created by the military medical facility that treated you. They are retained by that facility, and then eventually forwarded to the NPRC (National Personnel Record Center). For this reason, your “inpatient records” are not stored under your name with your outpatient records. They are stored first under the name of the treatment facility, and then second by month/year. So, when requesting your records from the NPRC, always be sure to request records from any specific military facility where you were treated, including the month and year that you were treated. The VA does not typically request the “inpatient records” when a claim is filed. Moreover, inpatient records are not stored at the VA’s RMC. These records continue to be maintained at the NPRC, regardless of when the service member was discharged.

Sometimes, the treating facility fails to send the inpatient records to the NPRC. So, if you are having difficulty locating specific treatment records, you should consider contacting the facility directly but be sure to include language from the Freedom of Information Act (FOIA) and Privacy Act so that the facility will not try to block the release of these records.

If you are having difficulty locating your military medical records, contact a Veterans’ Service Organization or VA Benefits Attorney, such as the Attig Law Firm, PLLC, to get some assistance.

The Son of George Bush has asked Congressional Democrats to send him a Veterans’ spending bill to commemorate Veterans’ Day. The snippets we hear from the Oval Office sound good. His request makes it sounds like he wants to help Vets. His request seems to chide Congress for not doing enough to help Vets.

Let’s take a look behind his gamesmanship.

A Veterans spending bill is currently in Congress. It proposes to add $3.7 billion more than Mr. Bush himself proposed in his own 2008 budget for the Department of Veterans Affairs. The monies from Congress would ease waiting times for VA health benefits and add money to treat post-traumatic stress disorder and traumatic brain injuries for veterans of the Iraq and Afghanistan wars. Mr. Bush isn’t interested in this bill - why? Because it is part of a larger spending bill that seeks to increase not only the VA’s budget, but other Federal Agencies as well.

The Democrat-controlled Congress has done more for Vets than nearly any other Congress in recent memory. In February 2007, the Democratic Congress added $3.4 billion to the VA coffers. In May 2007, Democrats added another $1.8 billion to the Dept of Veterans’ Affairs.

It seems clear that the Son of George Bush is up to his usual game - paying lip service to our veterans and soldiers while doing nothing to actually help their situation.

Happy Veterans’ Day, Mr. Bush! Enjoy your comfortable, plush, and safe surroundings in Crawford - brought to you courtesy of the sacrifices of the American soldier.

I had mixed feelings when A-Rod showed up in the Bronx after the 2003 season.   On one hand, he is arguably the best active player in the game.  On the other hand, I always agreed with Dave Winfield that a team with too many superstars can’t win.  After this last post-season, I have no problem saying “So long, A-Rod”.

Now that he’s gone - for good, I hope - I’m ecstatic. Yes, he added a lot of runs, RBI’s and homers to the Yankees offense.  But the run generation never seemed to carry over into the post-season.  Yes, except for 2006, he was a steady glove at the hot-corner.  But we won more post-season games with Brosius and Hayes at 3B than we did with A-Rod.

I don’t know how to articulate why I’m glad he’s gone - except to say that I think that it was too easy for the front-office to rely on his run generation as an  excuse not to bolster the starting pitching and the bullpen.  Taking his bat out of the Bombers’ lineup means that we’ll have to find better pitching to keep the scores lower.

It may take a season or two, but the loss of A-Rod might actually give us a chance to see something other than Kyle Farnsworth-less, Myers, Proctor or Sturtze come out of the bullpen.  It may give us a chance to see a better back end of the rotation than the parade of no-names, has-beens and wanna-bes that have filled the number 4 and 5 slots since 2004.  And it may give us a chance to see a 3B’man that focuses on winning in the post-season instead of winning in the stats.

For those chances, I’m more than ecstatic about seeing A-Rod go and bleed Dodger Blue (or, given his salary demands, Bleed the Dodgers’ Green).  So long, A-Rod.