PTSD and Individual Unemployability Denial: How to Win
You may be dealing with a PTSD and Individual Unemployability Denial of Claim. Post Traumatic Stress Disorder is not a processing disorder or a random accumulation of adverse symptoms. It is a physical injury that is every bit as real as a gunshot wound, broken leg, or shrapnel wound. The obvious difference is that PTSD is invisible.
Clinically, exposure to combat stress erodes the cerebral cortex. That is the part of the brain that controls logical responses. When the cerebral cortex shrinks, the amygdala gets larger. That is the part of the brain that controls emotional responses. Therefore, PTSD victims experience symptoms like flashbacks, heightened awareness, depression, and anger outbursts.
Symptoms like these, even in relatively small doses, make it difficult or impossible to function at work. So, a mild PTSD case may make a person unemployable for VA purposes. Nevertheless, claims adjusters routinely deny these claims. Appeals are often successful, and they are even more successful if a VA disability attorney fully understands the reasons for denial.
Misclassification of Unemployability
Many veterans, and even claims examiners themselves, believe that if the veteran is working, or even if they have a job interview, they are not unemployable and thus not entitled to individual unemployability benefits from the VA. However, VA unemployability is not the same thing as total disability.
Generally, people are totally disabled if they are essentially bedridden and unable to hold down any kind of job for any length of time. But the VA benefits standard is an inability “to secure or follow a substantially gainful occupation as a result of service-connected disabilities.”. In other words, the veteran’s service connected disability must make it impossible to earn more than a poverty-level income. As such, the veteran could be working full-time and yet still be deemed unemployable under this standard. Additionally, there is an exception which allows for a finding of individual unemployability even if the veteran is making an amount above the poverty threshold, if the veteran is deemed to work in a “protected environment” such as a family business or sheltered workshop.
Many claimants suffer from both a service-related injury, like PTSD, and a non service-related injury, like a bad knee. In these cases, claims examiners often blame the non service-related injury for the veteran’s disability and deny the claim.
In civil court, a pre-existing or non-injury condition is usually irrelevant. But VA disability is not civil court. So, an attorney must use an alternate approach.
Typically, it is possible to downplay the non service-related factor and accentuate the service-related injury. In the above example, an attorney could argue that the PTSD prevents the claimant from working with people and adhering to a rigorous schedule. In other words, the PTSD, and not the knee injury, caused the disability.
Failure to Consider Non-Medical Evidence
In the unemployability issue discussed above, claims examiners cannot consider non service-related factors. But the extent of disability is an entirely different matter. In this area, the claims examiner must consider these factors.
Disability is more than a medical term. It is also an educational and vocational term. For example, paraplegia is disabling for a miner with limited education, but it is probably not disabling to a college professor with a Ph.D.
Most claims examiners do not consider non-medical factors because these factors are outside their area of expertise. They may be well-qualified when it comes to medical issues, but they are not vocational analysts. Such an expert could testify at the BVA hearing with regards to the claimant’s overall employment prospects given the claimant’s physical condition, age, education, and other factors.
Team Up with Experienced Attorneys
Overcoming a TDIU denial starts with understanding the reason for that denial. For a free consultation with an experienced veterans disability lawyer in San Diego, contact the Law Offices of Peter S. Cameron, APC at 800-861-7262 or fill out the contact box to your right. We are here to represent veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.