In a previous segment of this article, we gave an introduction to private medical opinions and why our firm uses them. We also discussed two different types of medical opinions: the nexus opinion and the opinion for increased rating. In this segment, we will continue our discussion on types of opinions, and types of file reviews.
Types of Opinions
There are four basic types of opinions that an attorney can request: a nexus opinion, an opinion for increased rating, an opinion for an earlier effective date, or a vocational expert opinion.
(The first two were discussed in the previous segment.)
- Opinion for an Earlier Effective Date: When the VA grants service connection for a veteran’s condition, it assigns a date at which the veteran became entitled to the benefits. It is important to note (for recipients of Social Security benefits) that this is not the same thing as the onset date in the Social Security system. In the VA system, the effective date is determined by either the date of the claim or the date that entitlement arose, whichever is later. The “date entitlement arose” means the date the condition was shown to exist by medical evidence.
- Vocational Expert Opinion: When a veteran is pursing a claim for Individual Unemployability (IU or TDIU), a vocational expert comes in handy. Recipients of Social Security Disability benefits are likely already familiar with vocational experts. These experts are trained in vocational evaluating and rehabilitation. In the Social Security system, a vocational expert evaluates the claimant to determine what types of jobs (if any) that the claimant is able to work. The expert takes into consideration all limitations that the claimant may have and the impact that those limitations have on the claimant’s ability to work. In the practice of VA law, we ask our vocational experts to provide this kind of information to support the veteran’s claim for IU. This is particularly helpful when the VA (be it a C&P examiner or a RO Rating Specialist) spews opinions on what kind of jobs the veteran can work, in spite of the limitations. The VA is overly-fond of opining that just about any veteran can maintain sedentary employment. An opinion by a vocational expert, explaining why the veteran cannot work sedentary employment, is very effective in refuting VA denials.
For example: Mr. John Doe has degenerative disc disease, Type 2 diabetes, peripheral neuropathy of the upper and lower extremities, and pain-related moderate depression. Mr. Doe used to be a long-distance truck driver, but had to quit his job several years ago because he could not feel his feet and because his low back pain prevented him from sitting for extended periods of time. The C&P examiner affirmed that truck-driving may be out of the question, but decided that he could still work a desk job. Accordingly, the VA denied his claim for IU. In contrast, a vocational expert found that Mr. Doe could not maintain sedentary employment for the following reasons: he can only sit for 5-10 minutes at a time before having to lie down; his severe chronic pain prevents him from concentrating and following instructions; his pain medication makes him drowsy; he cannot lift anything over 5 pounds; he has to lie down for most of the day due to his back pain. The expert determined that there were no jobs in the current market which would accommodate the veteran’s needs or consider him a competent worker in a competitive industry.
Types of Reviews
Hill & Ponton represents veterans throughout the United States. While it would be ideal for every client to be able to meet with the relevant expert face-to-face, this simply is not feasible in most cases. Instead, for out-of-state opinions, what we do is prepare the client’s medical file and send it to the expert to review. The expert may choose to conduct a telephone interview with the client in order to supplement the subsequent opinion. We always include the veteran’s Claims File, as well as all relevant medical records, statements, and C&P exams. This enables the expert to formulate a comprehensive and thorough opinion.
If the veteran is able to travel and meet with an expert local to him/her, we prepare the file in much the same way. In addition to the records, we coordinate with the expert to arrange an in-person evaluation. This is the most helpful for cases involving orthopedic conditions. The expert then writes the report based on the examination and the medical records in the client’s file as additional support.
