VA Disability Claims: An Often Overlooked Benefit Source

Episode Notes

Transcript

Announcer:

Workers Comp Matters, the podcast dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers compensation. Here are your hosts, Jud and Alan Pierce.

Judson Pierce:

Welcome everyone to another edition of Workers Comp Matters. My name is Jud Pierce from Salem, Massachusetts. I’m with the law firm of Pierce, Pierce and Napolitano. On today’s episode, we are joined by a guest who happens to be an attorney in New York and Florida. His name is Alex Dell and he has his own firm, the law firm of Alex Dell. And he practices, as I said, in a couple of different states and in different areas of the law. We’re going to be focusing most of our episode today on the Veterans Administration and Veteran Affairs Compensation. And Alex, without any further ado, I’d like to welcome you to the program. How are you doing today?

Alex Dell:

Very good, Jud, thank you for having me. I was looking forward to chatting with you today and talking about VA claims and workers’ comp and all that other fun stuff.

Judson Pierce:

Yeah. I was noticing by reading your resume and looking at your website that you do practice in a lot of different areas, veterans Affairs, social Security Disability, New York and Florida Workers’ Comp, I would think state claims. How did you get involved in all of that and when did you start practicing?

Alex Dell:

So I didn’t tell you this in the beginning because I wanted you to like me, but I used to be a division one hockey ref for 25 years. Actually worked as an NHL trainee and did one NHL game, but I first started working with a hundred miserable lawyers in one particular firm and they assigned me to do commercial litigation. And probably within three to four months of starting at this firm, I got a call that I was being appointed to go referee a European championship in Russia. And I had never been to Russia before and I said to myself, wow, what an opportunity. And then I said to myself, well, wait a minute. I’m a brand new associate attorney. If I take off for 10 days and I come back, I’ll probably scrape my name off the door and throw me on the curb and my legal career will be over.

And so I did what any responsible young lawyer would do. I decided to go to Russia and ref, and then I came back and they said, oh, by the way, you’re now a worker’s comp lawyer. And I went home and I said to my wife, I go, this is the worst thing that’s ever happened to me in the whole world. And now looking back 29 years later, I can say it was actually the best thing that ever happened to me, and that’s how I got involved and fell in love with workers’ comp. So I’d love to tell you it was more of a romantic story than that, but that’s how I found the love in the comp world.

Judson Pierce:

Wow. It wasn’t by design or something that you knew at age five that you were going to do, but it was to quote Alan who had an episode on his 50 years of practice by accident, really, that you got into this particular field then.

Alex Dell:

Yeah, I would say not only by accident, but also by taking a risk and going to Russia as a brand new associate attorney.

Judson Pierce:

So you are in a private practice, right? You have other lawyers who work with you then?

Alex Dell:

I do. So I’m one of 16 lawyers in my firm and we’ve got offices throughout New York and in Florida, and as you noted, our practices devoted to representing individuals with workers’ comp in New York and in Florida as well as their disability retirement claims. And then nationwide, we represent veterans with their Veterans affairs compensation claims, and we also represent individuals with their social security disability claims.

Judson Pierce:

Now that’s federal law. Do you have to be licensed in every state to be able, or can you pro HC Viche in?

Alex Dell:

So there’s no pro HC viche requirement when it comes to practicing before the Social Security Administration. Obviously with federal court, there is an admission when we get to that level, but when it comes to the va, what the VA requires is that you become accredited and that you can either become an accredited attorney or an accredited agent, and that is administered by the Office of General Counsel. So those are technically the only individuals that are allowed and authorized to represent veterans. What’s going on practically right now, and the VA is really up on this, is that there are these claim sharks that are going out and that’s not my word, that’s the VA’s word. And they’re, they’re representing the veterans that they can represent them and literally charging them fees for services even where an accredited attorney or an accredited VA agent would not be allowed to charge fees. So there’s a lot going on right now, legislation and otherwise to try to really eliminate that practice because unfortunately, there’s so many veterans that are just simply not aware of this and they’re paying for legal services that we as accredited individuals would otherwise be providing to them pro bono or free for that matter.

Judson Pierce:

Fascinating. So are you yourself military or do you have military in your family? Is that a requirement for representing military individuals?

Alex Dell:

So it’s not required to be a veteran. My father served in the US Army and always had an interest in helping veterans for that basis. And then in addition to that, we represent a lot of law enforcement officers, particularly in New York and in Florida. And a good many of those individuals are veterans. And so it worked out that we could not only represent them with their workers’ disability claims, but also their VA claim, and frankly have a good understanding of what they were claiming with the VA and workers’ comp and vice versa, so that they would not run a foul of any conflicts or taking inconsistent positions with one agency versus the other.

Judson Pierce:

You and your firm have represented for many years veterans who may or may not know that they actually have claims that can run concurrently with workers’ comp claims. Can you tell the audience a little bit about what types of Veteran affairs claims there are?

Alex Dell:

So yeah, so first of all, when we talk about veterans claims, it basically falls into three different categories. We have veterans who are claiming pension benefits primarily based on years of service in the military and without regard to disability. And then we have VA compensation claims, which are similar to workers’ comp in the sense that if there is a physical and or mental health impairment caused and or aggravated or worsened by service, then there can be a VA compensation benefit paid to that individual, which basically is a monthly benefit, which could be paid over their lifetime. And then they have a benefit which is referred to as A DIC benefit, which is a dependency and indemnity compensation benefit. And those benefits are reserved for individuals that had a spouse, for example, or a parent that was killed in service or they had a VA benefit for a sufficient period of time that was labeled a 100% total disability benefit, such that they would also qualify for this particular DIC benefit. Our practice focuses primarily on the VA compensation benefit and also with respect to surviving spouses and children with respect to their DIC benefits.

Judson Pierce:

With that, say a veteran has had years of service, would his compensation claim be more per month based on how many years of service or it doesn’t matter?

Alex Dell:

So the years of service is relevant to assessing whether there’s a nexus or causal relationship, for example, between a particular condition and whether it’s service connected. But that is not something that is utilized to determine the amount of compensation that an individual will receive. The rating scale is between zero and 100%, and so that dictates the amount of money that the veteran gets on a monthly basis, and that percentage is determined by the medical evidence and then what we refer to as a DC rating code that says that if this particular veteran has these particular symptoms or conditions, it is equal to this specific percentage. And then that specific percentage equates to a very specific dollar amount, which typically goes up each year based on cost of living. There’s an additional benefit if the individual is rated at least 30% and they have dependents. It is important to also note that this is a tax-free benefit. And in addition to that, and this is important particularly for those workers’ comp viewers, there is no offset or reduction taken by the VA based on the receipt of these other particular benefits that they may be getting, either from workers’ comp, social security disability. And so all of these benefits can coexist at the same time.

Judson Pierce:

Wow, that’s fascinating because I know with SSDI, they will take an offset if you’re on state workers’ comp and you have to, when you’re settling a comp case, ada it out, so to speak, to spread it out over the claimant’s life expectancy so as to not affect future SSDI payments. So you don’t really have to worry about all that in the veterans.

Alex Dell:

In the veterans world. No, but I’m also truly amazed, and hopefully I’m not giving away too many secrets now to the defense bar, but how rarely defense lawyers ask our clients, are you a veteran? Have you applied for VA compensation? What is the status of that claim? Have you been approved for any service connected injuries or illnesses? And if so, what is your rating? And oh, by the way, we want to release to look at all the records from the va. And you might say to yourself, well, that could create obviously some problems in terms of pursuing other benefits. But the interesting part is the way the VA approaches this is that if somebody had a service connected back condition and then they went to go work in the public or private sector for that matter, and they got injured, they hurt their back while working, and now their back is worse, well one would say, all right, well you have a workers’ comp claim for the aggravation and or worsening of that condition, particularly if this person was working and they were fully functional and didn’t have any restrictions or limitations.

In many jurisdictions it would be a legit valid workers’ comp claim, especially for example, New York. But we would then also turn around and go to the VA and say, the original condition which was deemed service connected, made this individual, this veteran’s condition more susceptible to further insult, to further injury, to further worsening of their problem. And we can still, in those circumstances, turn around and seek an increase in their VA compensation even in the face of subsequent occupational trauma. So it’s an interesting issue and it comes up quite often with deployed veterans, particularly those that were in combat, particularly those that have developed post-traumatic stress disorder and or any other mental health conditions. And often they’ll come to us after a career in law enforcement and say, Hey, by the way, I was rated by the VA for service connected PTSD, but I also have to tell you that these incidents over the course of my career certainly have worsened my condition. And so we’re in a situation now where we’re pursuing the VA claim in addition to the workers’ comp claim, and frankly, they can both exist in those circumstances. But I think there’s a lot of fear or trepidation about making that New York or other workers’ comp claim because you had this preexisting condition. But remember too, like most jurisdictions with workers’ comp, you were able to work, you were able to function, and then it was something in your workplace that then puts you over the edge.

Judson Pierce:

So it’s a benefit enhancer of sorts. Why don’t we take this moment to have a quick break word from one of our sponsors and we’ll be right back with our special guest attorney Alex Dell. And we’re back. Alex, you were telling us before just the parallel path, or maybe not the parallel, but the divergent paths, this common similarities or differences in being a ref and being a lawyer. What are those similarities and differences?

Alex Dell:

I got to tell you, I mean, I think my officiating background really has been great for my practice as an attorney. And I think the biggest issue, and I talk about this often when we’re dealing with clients, is this idea that you need to get away from having a tunnel vision. You’ve been hurt at work and you say, oh, I have a workers’ comp claim. Well, the reality is, depending on the facts, you not only have a workers’ comp claim, you may have a third party liability claim, a disability retirement, a public safety officer benefit claim, and if you’re a veteran, you have a Veteran’s Affairs claim on top of it. And when we reft, we were always accused of getting trouble When we engaged in tunnel vision, we were focused on the net. We miss the guy get hit over the head with a high stick.

And it’s the same concept for people that get hurt either on or off the job. They need to really avoid this tunnel vision, really have a wide angle focus and be able to say, yes, I do have more than one claim, and let me pursue that because it is possible, certainly, as you know, to pursue multiple claims simultaneously. That’s one of the biggest takeaways that I see from my officiating career. And of course, the defense attorneys always loved when no matter how crazy they got, however loud they raised their voice, somehow I was able to maintain a cool, calm and collective demeanor. So that’s all due to my officiating.

Judson Pierce:

Yeah, you were used to angry hockey players or pucks coming at you at a hundred miles per hour. I mean, you have poise that maybe another lawyer wouldn’t have in the Courtroom, right?

Alex Dell:

Yeah. And no defense attorney was going to knock me off my games.

Judson Pierce:

So do you wear pads into the Courtroom, Alex, or are the pads left behind?

Alex Dell:

No, they’re left behind Jud. It depends. Sometimes it depends who the defense attorney is. I might need to have some elbow pads, but the practical reality is it’s usually pretty civil when we get into court, as you

Judson Pierce:

Know. Yeah, I’ve never understood as a fan watching hockey why the refs don’t seem to have as much padding on as the players because they’re often involved in the action unfortunately too.

Alex Dell:

Well, you’d be surprised. We do actually wear pads from head to toe. They’re just a thinner version, and it’s actually hard to see this, but they’re wearing shin guards, elbow pads, for lack of a better word, a girdle that covers their midsection. And then some of ’em are actually wearing chest protectors as well just because of how fast those pucks are flying. But they do have protection on them.

Judson Pierce:

Do you still represent them in your course of practice?

Alex Dell:

I do, yeah. We were privileged to be able to represent the NHL officials when they get hurt, but a lot of other individuals, they’re not very quick to tell you when they’ve been hurt at work. They really have a lot of pride in the work that they do. And of course, not saying something about injuries obviously can have a profound impact on their claims, but they’re hardworking guys and they’re getting beat up from time to time. So they do have the protection of the workers’ comp law, which is great. Interesting.

Judson Pierce:

Do you have to have a rating prior to the work accident to go back to the VA and ask for an increase? Or can it be the opposite? Can you have a comp case and then all of a sudden go, but I was a veteran, I never received a rating yet. I had a back injury.

Alex Dell:

Yeah, that’s a good question. That happens all the time. We have many veterans who have never applied for a VA benefit, and then we talk to them about a work injury. And then after that they say that they’re interested in pursuing this, and we look at their service treatment records and we determine that there were either physical and or mental stressors which could lead to that. The beauty with the VA is that there’s technically no statute of limitations when it comes to filing claim. Now obviously if claims get filed, for example, within one year of separation of service, there can be more favorable benefits provided, but a lot of times people will come to us 3, 4, 10 years post service, and when we file that particular formal claim from them is when the claim can run from in terms of the benefits. And one of the things I’m always asked is, well, I have no idea where to start and I’m not really sure exactly what happened in service.

I don’t have my service treatment records. What do I do? And the best advice to give to any veteran who is interested in pursuing or easy in just contemplating pursuing a VA claim compensation claim that is, is to file what we refer to as an ITF an intent to file. And this is a very simple document that gets filed with the Department of Veterans Affairs and it basically says to them, I am potentially intending to file a claim, and they will give you a one year window from that date to file. And the beauty of the filing within that one year window is that your effective date of when you’re entitled to these benefits will start as of the date of the intent to file. So in other words, you could wait 11 months, we will still go back to that original ITF intent to file date.

And in the VA world, one of the things that’s most important is the effective date. In other words, when do my benefits start? And unfortunately, all too often we review claims for veterans where the VA chose an incorrect effective date, they assigned an inappropriate or incorrect rating. And a lot of people, and you know this from the workers’ comp world, when they get a decision, they’re apprehensive about challenging it because they’re afraid that, well, maybe I’ll lose even what I’ve got. And the practical reality is there is a way to check what has been done and then go back later on and make a determination whether you’re going to challenge that. Now, typically when a decision is made by the VA either approving or denying a benefit, you have one year from that date to challenge that. If you want to preserve that effective date, if that gets blown because the veteran didn’t come to you until several years after denial, which is pretty common, they’ll say, well, I applied for it. They told me I wasn’t entitled to it and I just let it alone. And I said, well, let’s look at it again. We can pick it up from that point, but the effective date will now be when we commence

The pursuit of the claim.

Judson Pierce:

Gotcha. So you lose that time. You were talking about denials that that can be a VA denial and there’s a one year date to appeal that. How does a veteran go ahead and appeal it? And are those appeals often successful? Not as often.

Alex Dell:

So back in 2019, the VA implemented the Appeals Modernization Act, and what that did was it gave and continues to give veterans multiple decisions to make in terms of how best to appeal a denial. As I said earlier, typically when a denial is issued by the va, there’s a 12 month window to challenge that if you want to keep the original effective date of either when you filed or previously if you filed an intent to file, as I talked about earlier. And the avenues that we can pursue are really three particular avenues, three lanes if you will. The first is what we call a higher level review. The second is a supplemental claim, and the third is an appeal to the Board of Veterans Appeals. The higher level review briefly is we want someone at the VA who has more experience than the person who reviewed the file to begin with, to put a fresh set of eyes on it and tell us was there a duty to assist?

Did they make an error? And we’re looking to go back based on the existing record and try to have that reopened and pursued. The supplemental claim is basically, we got a decision, we don’t think we’ve got enough. Here’s some new and relevant evidence for you va, take a look at this, make a decision again, based on not only what you got but what we’re giving you right now. And again, it’s got to be new and relevant. And then the last lane at the administrative level is an appeal to the Board of Veterans Appeals. Basically what we’re looking to do there is get before a veterans law judge, and typically I look at that as something I would do after I have exhausted my higher level review request or my supplemental claim. And the feeling you’re banging your head against the wall, no one’s really listening to you, you know, got a good case. You know the laws on your side and you need a veteran law judge to pull you through. That’s when we get to that point.

Judson Pierce:

Should a veteran have an attorney represent them in connection with VA compensation claims? And if so, how does an attorney of theirs get paid?

Alex Dell:

Yeah, I think it’s important not only in the VA world, but workers’ comp to have an attorney. And as I had talked about earlier, it is a contingency system. If a veteran is entitled to a benefit based on an initial application through the help of a representative or an attorney for that matter, there is no lawyer fee. The lawyer fee is only paid after a claim is denied, and then an individual is entitled to back benefits. And in those cases it’s limited to 20% of any past due benefits, no ongoing benefit. So I think it behooves an individual to at least have a skilled representative look at it, not only for the purposes of being able to identify what is important, but I think this is something that you can relate to and a lot of our listeners can relate to. When you get involved in either a VA claim or a workers’ comp claim, there’s a lot of emotions, there’s a lot of issues that come up and your focus isn’t necessarily on all the legal issues.

And that’s where you really want to have a skilled rep. And I unfortunately am constantly reminded about my own dad. He was a shoe salesman for hush puppy shoes, Wolverine Worldwide, back in the day they were cool, but his territory was the metropolitan New York area and one horrific snow storm back in February of 2004, he was going to go to a customer, went out to shovel snow, came back in and had a sudden heart attack and died. I knew right then having practiced in this field for 10 years in the comp field, that it definitely was a work-related death. And my mom looked at me and she said, what do we do? And I got to tell you at that point, even though I had known this practice and after 10 years in a field, you feel pretty good about what you’re doing, I felt like I knew nothing. I felt like I forgot everything I knew and it was all because it involved my family. And the best thing I did was get someone who had as much more experience than I had

Announcer:

But

Alex Dell:

Didn’t have the emotional attachment and we were able to be successful for my mom. And I think that’s the real reason why you want somebody by your side. It’s not so much, Hey, I’m going to pay them a nominal fee. It’s really to have someone who you trust who’s going to help you make the right decisions when you’re at your probably lowest point of your life or close to it.

Judson Pierce:

It’s a really powerful observation, and I agree with you fully on that. It’s always best to have someone who has been there and gone through the trenches on these types of cases, focus on yours rather than you trying to do it all yourself. Why don’t we take our last break of the program and we’ll be right back with attorney Alex Dell and we’re back. Can a veteran work and still receive these benefits?

Alex Dell:

So the answer is yes, and I think that’s one of the most misunderstood aspects of the VA compensation claims. There’s two ways in which a veteran gets to a hundred percent status, meaning they’re getting a hundred percent benefit. One is through the totality of the medical evidence and where someone has a hundred percent disability based on a combination of one or more medical conditions, they are permitted to work and there are no asset or income limitations whatsoever or restrictions for that matter. Conversely, we have in the VA world what a lot of workers’ comp programs have, which is the equivalent of a total industrial disability person isn’t a hundred percent medically disabled from all work, but when you consider their age, their education, their prior work experience coupled with their medical conditions, they’re not really employable. Are they medically a hundred percent no. But when you put all that together, they’re truly unemployable those individuals.

There’s a special claim called a total disability individual unemployability claim, TDIU is what we refer to it as. If you get that claim approved by the va, you cannot have earnings above the poverty level. So strategy wise, someone comes to us and says, I’d like to be at a hundred percent. We’re going to look and see where are they in terms of their work capabilities, and if possible we’ll try to get them approved for a hundred percent medical impairment, enabling them to continue to work. But if they’re truly not able to work, then we’re going to consider a total disability individual unemployability claim for them.

Judson Pierce:

Well, we’re approaching the end of the show at this time. I usually ask our guests, where can someone who’s looking for these types of services looking for someone like you in your firm? How can they find you? How can they reach you?

Alex Dell:

So we can be [email protected]. And best phone number for anyone to reach out to us at is 5 1 8 8 6 2 5 5 5 5. As I mentioned to you earlier, judge, I mean we represent veterans nationwide with their VA claims and Social Security disability, and then our practice on workers’ comp is focused on New York and in Florida.

Judson Pierce:

Thank you. And I think I’d be remiss if I didn’t ask you just a little bit more about your hockey days and so many years being a division one hockey ref. Mike, my son, goes to Union, which is Division one Hockey School. They won the Natty 10 years ago. And I’ve got some friends who listen to this program who are big Boston University hockey fans. They love the Bean pot. And I know you roughed that in Boston some years ago, what it was your most remarkable experience, most memorable experience as a referee? You probably have many, but if you had to pick one,

Alex Dell:

I mean there Yeah, Jud, I mean, it’s over 25 years of officiating. I mean, there were so many great memories. I mean, obviously getting to do the Bean Pot Championship in Boston at the TD Bank building was wonderful. Having been blessed with doing an NHL game, I think was probably the pinnacle of my career, but also was blessed with able to do three world Championships and Switzerland and Germany and Norway. So I mean, basically I just wasn’t getting yelled at enough as a defense lawyer or by my wife, so I had to go hockey games to feel loved.

Judson Pierce:

What’s your favorite hockey movie? Would it be Slapshot?

Alex Dell:

I’m a big Slapshot fan. Yeah. From time to time, I’ll cite a few lines from that. But as I’m thinking about it too, that Michigan goal that I know has gotten a lot of

Publicity over years. Yeah, tell us a little bit about that. Yeah, so that was actually the 1997 regional finals for the ncaa, and it was at Michigan State, Monina packed to the gills and Michigan University of Michigan was playing Minnesota and back in the day, and still to this day, the refs go on the ice for the warmup. So we’re on the ice watching the teams warm up, and Mike Leg from Michigan does this move where it looks like he picks the puck up off the ice and looking like he had a lacrosse stick in his hand, wrap the puck around and put it in the net. And we all looked at that on the ice and said, what happens if that happens during the game? And we went back in the locker room, we reread the rule book, which said, if the stick below four feet, which is the height of the crossbar, then it’s not a high stick, and then therefore it should be a good goal.

And lo and behold, in the game it happened and it was a good goal and we didn’t flinch and thinking that it was a good goal because we had the privilege of seeing it in the warmup. And it kind of spawned a cult after that. And to this day, I know there’s a lot of people still practice in the Michigan. I gave up officiating after 25 years. I didn’t want to take a puck in the mouth, but I’m still having fun muscling around defense attorneys and getting benefits for our clients. There used to be an individual actually from Massachusetts who was very involved in USA hockey and his big line was Chance favors those who prepare. I think that’s a good thing for all of us to take away as lawyers too. Absolutely. Chance favors those who prepare. I never thought I’d get a chance to say that in my professional life, but I’m glad I did, judge.

Judson Pierce:

I’m glad you did too, and I’m glad you did it on our show. So for all of us here at Workers Comp Matters Legal Talk Network, I’d like to thank our special guest Alex Dell for joining us. And for folks out there listening, join hockey, please go on and make it a day that matters. Take care.

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