Benefits

Question:

Hi Jim, Thank you for what you are doing. I have been on TDIU/T&P since 2016. This month I was awarded another disability rating which took me to 100% T&P. What happens now? Do I lose the TDIU since I now have a 100% schedular rating? What does that mean? Can I go back to work without any restrictions? Can they take away the 100% later on? Thank you for your time and help. 

Jim's Reply:

Your 100% TDIU or unemployability rating converted to a 100% schedular rating because another disability rating was awarded and that took you to a point where you didn't need to ratings boost that the TDIU process allows.
 

You received a TDIU rating because it was determined that you were disabled enough that you couldn't work but you didn't have the required numbers to add up to 100% on the ratings schedule. Now for whatever the reason your ratings do add up to 100% on the schedule and here we are.
 

What changes? Nothing much other than you can go out and get a job that pays more than the federal poverty wage. Some vets do that, others aren't able to even though they are now allowed to seek and hold gainful employment. Otherwise the dollars and all other benefits are exactly the same.
 

When you convert to a 100% schedular rating from a TDIU rating the underlying disabling conditions that allowed you a TDIU rating don't go away. Nothing about your physical and mental health self changes with the rating so your abilities to take on full time work may not be up to par.
 

In any case, yes...you can now take on any work you care to. Can VA reduce the 100% in the future? Sure they can but that's no different for you now than before. VA always has plenty of opportunities to reduce our ratings but thankfully we aren't subjected to that very often.
 

I'm a big believer that work...gainful employment...is a huge boost to anyone who is able to work. I worked in the health care arena and in my retirement, I miss it a lot. Were I physically up to it I'd find something to do in a hospital just because! If you can return to work, go for it. Good luck sir.

Question:

I am currently receiving 10% disability for my left ankle and have been told by the VA my ankle is severely unstable and will require surgery. The question I have is....I would like to file for an increase but my VSO is new to the job and told me he is unsure how to proceed other than to just ask for a reevaluation. Should I just ask for a reevaluation or ask the VSO to list out issues with my ankle?
 

I will be getting the following things done to my ankle... They will remove a growth that is pressing on one of the nerves in my ankle. They will repair a damaged tendon on the outside of my ankle. They will also be placing internal braces on my ankle to limit ankle roll. They are also going to scope the joint and clear out the debris that is there.
 

I have looked the individual items up online, but the answers found seem to give me more questions. I'm just looking for suggestions on how to proceed. Thank you for your time.

Jim's Reply:

Any time you have surgery or other invasive therapy for a service connected condition, once you've notified VA of the situation, you'll come out of the operation with a temporary 100% rating that lasts while you recuperate, usually 6 months or so. Then you'll be scheduled for a post-surgery C & P exam to determine how successful the corrective surgery has been.
 

That's when you make the decision to tell the examiner all the mobility, pain, flexion and any other issues you're having. All that information will be passed on to a rater who will eventually assign you a new rating that should include all you told the examiner.
 

You'll eventually get a USPS letter or Ebenefits notice of the new post-surgery rating. It's at that point that if you feel like they left out a rating, etc., that you can appeal and tell VA what you think.
 

In other words, you don't need to do anything right now, wait until you've healed and tackle those life-long ratings. Good luck!

Question:

Hi Jim, I am service-connected for both bilateral hearing loss and tinnitus. I will be filing a claim for Vertigo as secondary condition. Do I need a nexus letter from my ENT doctor or pay for independent opinion, if necessary? Thanks.

Jim's Reply:

Yes to both questions. Without a nexus statement that includes wording that the vertigo is more likely than not secondary to your hearing loss and tinnitus you aren't likely to prevail. The statement will need to contain the science to support that conclusion.
 

This guide contains the phrasing that VA must see to adjudicate your claim favorably. Good luck!

Question:

My father was an Airborne Ranger in Vietnam, and has been on 100% disability for many years now due to stroke and PTSD. In the last few years he’s been battling leukemia, potentially as a result of agent orange. I’m wondering if it’s possible to receive additional benefits if already at the max disability status? Thank you for your support and advice.

Jim's Reply:

Please offer your dad a salute and best wishes from me.
 

Yes, although 100% is the maximum rating a veteran may receive for service connected disabling conditions, there are many opportunities for ratings far above the 100% level.
 

Welcome to the VA! There is little about the disability ratings system that makes any sense at all and 'max disability status' sounds correct but is a misnomer.
 

If a veteran who is rated at 100% receives another rating of 60% or greater the veteran may be eligible for significantly increased monetary benefits and the Housebound rating even if he or she isn't actually housebound.
 

Then there are the SMC ratings that can add a lot to the monthly payment. 
 

Please proceed to file the claim soon. Good luck!

Question:

I have TDIU for over 10 years. The TDIU is attached to 70% rating in effect for over 20 years. I know the 70% is protected. Is the TDIU also protected? The 10 year rule states that a rating cannot be taken away, only reduced, barring fraud. Can TDIU be reduced?

Jim's Reply:

The concept of a protected rating has always been sort of interesting to me. The fact is that 'protection' of a rating is only useful when the law changes and has a direct effect on a given rating.
 

For example, VA is looking at changing the outrageously overrated 50% that we get for sleep apnea. If that rating falls to a more reasonable 10% anyone who had the 50% rating for a stated time is protected from the loss of the higher rating.
 

That's a pretty rare event and it affects darn few veterans.
 

In any case, to answer your question...yes, your TDIU rating would benefit from any protection that may be available since your underlying 70% ratings wouldn't change. If an event occurs that changed the underlying ratings to something less than required for TDIU eligibility then you'd have to be worried about the rating.
 

Plenty of rumors are out there about how 'they're' going to take away our TDIU benefit and none of those rumors are true in any way. There is no current legislation happening that has that as a goal and TDIU vets are as secure in their benefits as any other. Good luck sir.

Question:

Is there a legal way to ensure 38 CFR 4.116 is fair and equitable for women Veterans? I believe Veterans' Affairs is not following the provisions of 38 CFR 4.25. Any advice how to approach this issue will be greatly appreciated. 

Jim's Reply:

Sure there's a legal way to force VA to follow the rules. Whenever a claim is denied, we appeal. If they aren't playing by the rules, we force them to in front of the BVA or the CAVC. There is a stepwise legal process in place just as with any other similar process.
 

The other way is through your Congressional Representatives and the various committees that serve veterans interests. They will all have staff who are specialized in working with vets and they'll listen to your concerns and ideas. This is long-haul change the rules stuff, not for the timid. But this is how we make the laws, regulations and rules that our government (and the rest of us) live by. It's said that you don't want to get involved with and have to see sausage making and the promulgation of federal laws. Both are gruesome processes.
 

But...back to an appeal...it sounds as if you have been associated with a claim that was either denied or lowballed and you disagree with whatever you're hearing from VA. If I'm correct and there has been a denial of a claim, the only path forward is a formal appeal. The paperwork must be completed before anyone will pay attention to whatever you have going on.
 

If I'm correct you should file an appeal as soon as it's practical to do so. Explain the concerns you have in detail and then wait for the result. Good luck!

Question:

I was diagnosed with prostate cancer in January at a VA Hospital. I filled a VA claim for prostate cancer shortly thereafter. I was in Vietnam in 1975, as an aircraft guard during Operation Babylift, and Operation Frequent Wind (the evacuation of the embassy). I saved my aeronautical orders, and orders awarding me a Humanitarian Service Medal for those Operations, and submitted them with my claim. Should I be concerned about my relatively brief stay at Ton Son Nhut airport in Saigon and the presumptive connection with Agent Orange. I have heard both sides of the story. One is that one foot in country will do the trick, and the other that you need to show contact with Agent Orange. I am still waiting for my claim to be adjudicated, I had a C&P exam (very brief) this past week. Thank you.

Jim's Reply:

If you set foot in country you shouldn't have any issues with obtaining benefits. There is no time limit or anything like that. Good luck!

Question:

Why are family members who take on the roll of fiduciary not paid for performing the same if not more duties than their CPA or attorney counterparts?

Jim's Reply:

Because it's the law. Federal laws are promulgated by Congress and if you disagree with a statute, you can talk with your Congressional representatives to make a change. 

Good luck!

Question:

Dear Jim, can a 100% schedular disability rating veteran receive SMC(K) and SMC(L) together?

Jim's Reply:

The best explanation of the complex SMC rules can be found here https://militarydisabilitymadeeasy.com/special-monthly-compensation.html  Good luck!

Question:

Hi Jim,
 

I’m an army veteran and I have Neuro-Behçet's disease. I was on a base with toxins. I trained in several places stateside. I have multiple illnesses. I'm a female vet who's had breast cancer twice, vasculitis of CNS, neuropathy, HTN and more. How do I file these conditions? Primary or secondary? Thank you.

Jim's Reply:

The diagnosis of Neuro-Behçet's disease leaves a lot of questions unanswered. A primary question is, "What caused it?" and as you know, there is no answer. In the studies conducted so far nobody has been able to come up with a verifiable cause of the disease and that leaves us with a problem. 
 

You say you served on an installation contaminated with toxins and that could be almost any military base. I'll assume you served on a base that has been identified already as one of the heavily contaminated regions so that part of our task is done. If you served on a base that hasn't already been identified as a contaminated site (like Camp Lejeune has been) you have to prove that the contaminants you claim injured you exist and that you were exposed and that the exposure harmed you and that's a tall order. 
 

Depending on the order of your diagnoses I would consider filing those diagnoses that came first and then in an order that seems logical. For example, if you were diagnosed with Neuro-Behçet's disease in the year 2019 and then vasculitis, neuropathy, cancer, etc. you would want to claim the Neuro-Behçet's disease as the primary and then the rest as secondary to the primary condition.
 

If, for example, the breast cancer was diagnosed (twice?) in 2019 and then the Neuro-Behçet's disease was diagnosed in 2021, you would file the breast cancer as a single claim and claim the cause as HAZMAT exposure during your service and then you would file the Neuro-Behçet's disease as a similar stand alone HAZMAT exposure claim and those other conditions would be filed as secondary to that.
 

This method of filing would make more sense as the Neuro-Behçet's disease is associated with vasculitis, etc. where there is no association with breast cancer. However, as you're filing a HAZMAT claim, if the Neuro-Behçet's disease is diagnosed first, claiming the cancer as secondary to that is much the same as claiming it as a stand alone condition secondary to a HAZMAT exposure.
 

Yes, that's a complex and convoluted way to think of it but at your VA, timing counts a lot.
 

Now we have to address the underlying principle of your claim. You claim that a HAZMAT has caused all your problems and now you have to prove that. Even if the place you served is now a Superfund site, you still have to prove that whatever is going on there caused your claimed conditions. Just saying it and showing that the base was contaminated isn't enough.
 

You need an Independent Medical Opinion (IMO) that will provide the nexus or connection between cause and effect. Even the doctor who provides the IMO can't just say there is a cause and effect, he or she must provide reasonable science to support their opinion. You can learn more about how to obtain an IMO here https://www.vawatchdog.org/imo-ime-medical-opinions-exams.html 
 

If you plan to file these claims in the next year, proceed to file an intent to file form to get the process started. That sets your effective date and gives you time to prepare your claim before you submit it to be adjudicated. I'm a fan of DIY so you'll find instructions at that link to do all the filing yourself.
 

Your VA provides you with some pretty good data here https://www.va.gov/health-care/health-needs-conditions/chemical-hazardous-materials-exposure/   You'll find tons of opinions, some fact based, https://www.civilianexposure.org/military-bases-are-full-of-cancer-causing-compounds/  some not so much, using your Google search. Be very selective as you research your options and avoid the angry veteran sites as they aren't going to help much.
 

As you start the process it's smart to look at appeals of denied cases similar to yours so you can see what others have done to prevail. BVA cases do not establish precedent so you must go through all the motions you'll read with no guarantee of a similar outcome but it's a worthwhile exercise to build your claim. https://www.bva.va.gov/  You'll see the link to the BVA search engine where you can insert key words and choose different years for your search.
 

These are complex cases and not everyone walks away happy. Filing the Intent To File papers and then taking your time to put together an irrefutable claim may save you years in the appeals process.
 

Good luck!