Veterans Affairs Issuing Impairment Protocol

My name is Gideon Miller, and I’m going to explain to you how ratings are issued by the VA, for multiple impairments including Post-Traumatic Stress Disorder. Multiple impairments are not simply added up to obtain a novel rating in a VA claim. Each decreasing impairment is seen as a percentage of what is left. For example, a 15% impairment leaves you with 85% remaining. A further 10% impairment is taken against the 85% to yield an additional 8.5% rating.  And the total of 18.5% would usually be rounded to 20%.

However, the VA can also pay a benefit greater than the 100% rating amount for cases of Individual Unemployability or IU. To qualify, you must have at least one service-connected disability rated at 60%, or alternatively, two or more service-connected disabilities with at least one disability rating at 40% or more, with a combined rating of 70% or more.  You must be unable to maintain substantially gainful employment as a result of your service-connected disability.

Individual Unemployability & Post-Traumatic Stress Disorder

Marginal employment such as odd jobs, is not considered substantial gainful employment for VA purposes. While Individual Unemployability can come from many combinations of impairments, it is frequently associated with claims for Post-Traumatic Stress Disorder. Due to the great deal of attention this condition has received in the past 10 to 15 years, there are now a number of presumptions in favor of a diagnosis of Post-Traumatic Stress Disorder.

For example, if you’ve served in combat, and you can prove that your PTSD is related to that combat experience, the presumption applies. But even if you think you meet one of the presumptive causes, there may still be difficulty showing the existence of the stressor to the VA satisfaction. You may be found to have a service-connected disability for Post-Traumatic Stress Disorder from a stressor that is not among the presumption. However, in that case, you will need a medical report connecting the stressor and the diagnosis called a Nexus Report. Nexus reports are needed for any condition for which a presumption does not exist in the law.

Exposure to Agent Orange

The other major condition for which there are presumptions, is for Vietnam arrow exposure of the Agent Orange. Proof of exposure to Agent Orange, and a diagnosis of certain conditions such as diabetes or leukemia, allow for a finding of service connection.  However, in any of the presumptive service-connected impairments, the rating is still subject to the usual factors.

By: Gideon J. Miller

Railroad Retirement Act Benefits

Hi, I’m Gabe Herman, and today we’re going to speak about what benefits are available under the Railroad Retirement Act that are different from those received from Social Security. The Railroad Retirement Act provides for two kinds of benefits to railroad employees: tier one benefits and tier two benefits.

Tier One & Tier Two Benefits

A tier one benefit corresponds neatly with the benefits that a claimant would collect under the Social Security Act. Tier two benefits, on the other hand, are a pension benefit unique to railroad workers who retire or are rewarded a disability annuity. The combined tier one and tier two benefits are generally higher than what a Social Security beneficiary would collect.

Dual Benefit Reduction

If somebody is eligible for both Social Security and railroad benefits because of their work history, that person will only get the larger benefit, whether it is the Social Security benefit or the railroad benefit. This reduction occurs because benefits are based on combining railroad and Social Security credits, figured under Social Security’s formulas, and reflects what Social Security would pay if railroad work were covered by that system.

The dual-benefit reduction follows the principles of Social Security under which a beneficiary receives only the higher of any two benefits that are payable. Railroad retirement benefits rise with cost-of-living adjustments at the same rate and at the same time that Social Security benefits increase. Generally, tier one benefits are calculated using the same formulas as Social Security benefits.

By: Gabe Hermann

Proper Steps to take to Avoid Social Security Claim Errors

Hi. I’m Lew Insler from Insler & Hermann. We’re going to talk about the most common mistakes we see with Social Security Disability claimants and when you should retain an attorney. The hardest part about a Social Security Disability claim is the initial application and the daily activity questionnaire. They come at the beginning, so get the attorney involved from the start to help you deal with the hardest part of your case, the most stressful, and the time when you have the most questions. Also, we win the initial claims at a far greater rate than the national average. The percentage of cases that are won at the later stage, particularly at the hearings, has also decreased. So you’re maximizing your chances of success by having us represent you right from the start and helping you with your initial claim.

By: Lew Insler

Hi. I’m Lew Insler from Insler & Hermann. In this video we’re going to talk about what your attorney will do for you as you retain him to handle your social security disability case. People who receive social security disability are often receiving other benefits, and one of the most important things we do for you, is explain how those benefits relate to each other. You may be getting long-term disability; you may be getting a pension from your employer or from your union. You’re getting Medicare or Medicaid, you may be getting workers compensation. We are well versed and well able to explain the individual benefit relationships that apply to your case. Once your hearing is scheduled, we’re going to meet with you and prepare you for your hearing. We’ll go through the hearing in general, and then case by case, and we’ll talk a little bit about the particular judge that’s handling your case, because we know the judges, and we know the questions that they’re going to be asking you. If there are any expert witnesses at your hearing, we’ll be preparing to cross-examine them based on what we know about your case and your medical records. In addition to being with you at the hearing, getting you ready for the hearing, both before and after the hearing, we may have to file memorandums with the judges.  If we’re not successful at the hearing, we will file an appeal, and we also will determine whether or not a new claim should be filed, sometimes in addition to the claim that we’re appealing, sometimes instead of appealing.

By: Lew Insler

Common Errors in Social Security Claims

Some of the biggest mistakes people make in filing for Social Security Disability is, first of all, waiting too long to apply, which can cost them retroactive benefits. Giving up when they’re turned down the first time, which is what Social Security wants you to do. Thinking that they can’t apply at all because the disability has to be permanent, but it only has to last for 12 months. And finally, failing to include all your medical problems. For example, only including things that are a result of an auto accident or a Workers’ Compensation claim when there are other impairments or medical problems that affect your ability to work.

By: Lew Insler

Unsuccessful Work Attempts in New York

My name is Gideon Miller, and today I’m going to be talking about unsuccessful work attempts and trial work periods. Many clients ask whether they can work while their application for Social Security Disability benefits is pending or after the claim has been approved.

While you can always return to work, the impact on your claim depends on a number of factors, including when you return to work, how long you work, and how much you make. Generally if you have applied for benefits but have not yet been approved, Social Security allows you to work for up to three months before it has any effect on your claim.

However Social Security only considers months where your income is above a certain amount, $1090 per month in 2015. If you stop working or reduce your wages below this amount within three months, you will have made an unsuccessful work attempt, and Social Security will allow you to continue your claim. This three-month period can also be extended to six months under certain conditions, and you should always call your attorney to discuss a work attempt that lasts between three and six months. However if your work attempt lasts longer than six months, Social Security considers you to be working, and you will not be able to continue with your claim. If you stop working again because of your impairments, you will need to file an entirely new claim.

Trial Work Periods

Here, the answer to this question depends on a number of factors, but generally speaking, Social Security gives individuals who are receiving benefits a nine-month trial work period before the benefits are stopped. The months do not have to be consecutive, and the earnings that lead to a trial work period month are considerably less than the amount needed to be part of an unsuccessful work attempt. Insler & Hermann never discourages our clients from trying to return to work, but there are a lot of issues to consider, and Social Security does not make it easy. Therefore before returning to work, always give us a call, so that we can explain how it may impact your claim or receipt of benefits.

By: Gideon J. Miller

Working While Applying for Social Security Disability Benefits

Hi. This is Lew Insler from Insler & Hermann, and today we’re going to talk about working while applying for, or receiving social security disability benefits. We feel our clients are better off financially and emotionally if they’re working. We never tell a client not to try to work, as long as their doctor approves, and a full answer as to whether or not you can work, depends on the specifics of your case. But generally, the following holds true. You can work at a level below what’s called Substantial Gainful Activity, and the amount for that changes each year, and still pursue your claim or continue to receive benefits. During the claims process, you can work up to three months in most cases, and six months under limited circumstances regardless of your earnings, and still use the original date of disability. That’s called an Unsuccessful Work Attempt, and it may actually help your claim.

Working After Winning Disability Claim

After you have been found disabled, you’re entitled to a Trial Work Period of up to nine months of an unlimited earnings, and those months don’t have to be consecutive. They can be within the first five years of your disability, after which any month in the next five years, where you make more than the Substantial Gainful Activity amount, you’re no longer entitled to benefits for that month. After those five years end, any month above Substantial Gainful Activity ends your entitlement to ongoing benefits. If you’re self-employed, it’s more complicated than just how much you were earning. Pensions, disability benefits, and other sources of wage replacement, do not affect your benefits. However, workers compensation might. The total of your social security disability and your workers compensation, can’t go over 80% of your past earnings.

By: Lew Insler

Social Security Video Hearings in New York

Hi, I’m Dave Herman and today we’re going to talk a little bit about Social Security video hearings. Although Social Security has been holding video hearings for a number of years, they very recently changed the regulations so that if somebody wants a live hearing, which is with a judge, face-to-face, it’s necessary to object to the option of the video hearing within 30 days of receiving that notification. This is led to a greater awareness of the program. But it has also resulted in a lot of misinformation that we will try to deal with in this video.

Video Hearing Process

First of all, if you object, in time, to a video hearing, you as a claimant still have an absolute right to a personal hearing. Which means that you, me as your attorney, and the judge are all in the same place. A video hearing means that while you – and I as your attorney – are in the same place, the judge is somewhere else and the hearing is connected through an audio/video connection. The judge at a video hearing may or may not be from your local hearing office. This means that it could either be the hearing office that is generally located near your home or it could be a judge that is off-site at one of the national hearing offices or in a hearing office that is perhaps, less bogged-down with case load.

In that case although the original judge may keep the case and conduct the hearing as a video hearing, unless the claimant chooses to return, the hearing may be by video, even if the claimant had originally objected. We have found that judges seem to have the same approval rates, whether it’s by video or by a live hearing.

Objecting to Video Hearings

But when the program first started, we and many other firms, objected to the video hearings because we thought it would be easier for judges to deny claims that were not in person, even though the claimant was not told of the decision at the end of the hearing. At this point, we are objecting to video hearings in the majority of our cases because we want the hearings to be with local judges who we know respect us.

In some cases where we know the hearing will be away from the main hearing office, but will be heard by the local judges, we won’t object to the video hearing because, as we noted, the judges already know us. But more important, we know that if we object to a video hearing, the wait for a hearing will be even longer because the hearing is not being scheduled live in those locations.

Demanding Live Hearings

Even in those cases though, sometimes we want a live hearing no matter where or how long the hearing delay is, because some impairments are not suited for video hearings. Obviously, in hearing loss cases as well as in certain psychological cases, having a claimant face-to face with the judge, so that the judge can get a sense of the claimant, is critical.

As your attorney, we will decide, based on our experience and using our discretion, whether it is appropriate to object to a video hearing and demand an in-person hearing or whether we will consent to a video hearing. If we find that our client’s hearings are being scheduled to out of town judges who don’t know us, we are far more likely to object to the hearing. Before we make that decision, we generally still look at where these off-site judges are from, what their approval rates are, and sometimes we will even contact our colleagues around the country, to get a sense from them of the kind the judge that we will be in front of.

Local Judges in New York

Social Security uses video hearings as an effective way to manage their judge’s case loads. As your attorney however, we are far more concerned with your case. You retained us to win, and we want to win as soon as we can. We want to be sure that we maximize your chance of success. Everything we do is directed toward that goal. We do feel that local judges give you a better chance of success in most, but not all cases.

Whether or not we object to a video hearing, that is a factor of who we think will be handling the case. We can’t decide who the judge will be. But it is often the case, that the judge we know, is a better option than one we don’t, because we can prepare you and your case for how we know that judge conducts his or her hearings. While we still think that a in-person hearing is preferable, we understand the realities that our clients can’t wait for hearings, and we therefore decide, on a case-by-case basis, whether or not to object to the video hearing for our clients.

By: Gabe Hermann

Why Should I Review My Award Notice?

Reviewing the award notice that you get after a favorable decision is probably the single most important thing that we do. The award notices often contain errors. They can misstate the amount of time you are entitled to retroactive benefits. They can be wrong on the amount of benefits you’re supposed to get going forward, due to things like workers compensation offsets, and they can forget to discuss your auxiliary benefits – benefits that you are due for dependent children. Reviewing those records is something that we do very, very closely in order to maximize your benefits.

By: Lew Insler