Benefits

Question:

I have an overall 90% disability rating. I retired from the Army in 2011 and receive a pension. I have not worked since 2011 besides two internships while obtaining my MSW. I have had many hardships combined with Depression, Anxiety and PTSD (all service connected). My questions are:
 

1)  Which would be better to apply for TDIU and/or UCX?
 

2) Does the look back period to change the ratings (I think 5 years) have an impact on my ratings when filing for a new claim?

3)  If the answer to the previous question yes...Is it possible that by applying for either claim reduce my rating, since the smaller "individual" ratings may be reduced thereby affecting my overall ratings?

Jim's Reply:

It appears to me that you are well positioned for the TDIU benefit. So, to answer your questions: 
 

1) TDIU
 

2) I've not heard of any 5 year limitations when the rater is reviewing your claims history. Your folder will be reviewed pretty much in its entirety as your claim is adjudicated. Yes, all the data gleaned is a part of the decision.
 

3) Yes, a reduction in the base rating can happen during the adjudication process. That's a pretty rare event and often won't affect the process of getting to the TDIU rating. For example, you could lose 20% and still easily be eligible for the TDIU 100% benefit.
 

In any case, none of that should prevent you from applying for the TDIU benefit. Were I you I'd proceed to apply. More info on TDIU is here. Good luck!

Question:

I am currently rated at 90% disability but I am paid at 100% based on unemployability This rating is considered total and permanent by the VA. If one of my medical disabilities becomes worse should I file for increase?

Jim's Reply:

Great question! Thanks.
 

The best answer is...maybe. In most circumstances we don't want to open our P & T file because bad things can happen at your somewhat accident prone VA.
 

In very broad terms once you're at a permanent 100% rating whether TDIU or Schedular we let that sleeping dog lie. That's because most of the little additions we may make won't raise the rating above 100% due to VA math.
 

If there is a circumstance when your increase may propel you into SMC territory, then you should consider filing for the increase. 
 

I can't help but remind you that the 100% Permanent TDIU rating is the same in every way as the 100% Schedular rating. All your pay, dependent benefits and such are exactly the same as the 100% Schedular rated vet. As the rating is rooted in your unemployability due to your service connected disabilities, should you be able to return to work (gainful employment) you may lose the 100% TDIU rating.
 

Good luck sir!

Question:

I appealed my decision for a higher rating for MST, and for further backpay. I did this in July of 2020. How long does this take? It's been almost 2 years!

Jim's Reply:

I can't offer you an accurate answer since I don't know anything about your appeal. What I can tell you is that delays in the adjudication of all claims and all appeals...functions that are always running behind...are worse than ever because of the pandemic, work from home trials and so on. 
 

I also can't give you a reasonable guesstimate other than to say that 2 years delay isn't at all surprising, I'd even go so far as to say that we should expect that an appeal to BVA, for example, may take 2 years and even more.
 

There isn't much to be done about the delays unless and until the veteran is medically eligible for end of life or hospice care. If one could provide sound medical evidence of a health diagnosis that indicates that the veteran is rapidly approaching end of life, the appeals process will try to move that case up to the front of the very long line.
 

I understand that this sort of negligent treatment by VA may exacerbate your MST symptoms but the reality is, this is what we all have to deal with.
 

About all you can do is to try to stay on top of your appeal so that you understand that it's 'alive' in the system and then you wait in that long line with thousands of other with the same predicament.
 

Good luck!

Question:

I have a stepdaughter, who is my dependent, and she's currently using my chapter 35. I wanted to know if I can suspend or terminate the usage? If so, what's the process? Thanks.

Jim's Reply:

No. That is her benefit. It's not your C35, it's hers.
 

You have no rights of any influence or direction how she may use the benefit. If you were to try to interrupt whatever part of it is upsetting you, you could put your own benefits in danger. Whatever it is troubling you, let it go.
 

Good luck.

Question:

My son's father was affected by agent orange. Each has health issues. Their dad refused to allow us to get help from the VA. He has since passed and I would like to know if there is someone they can talk to about any benefits they may be entitled to. Thank you.

Jim's Reply:

I can't think of any benefits that the children of an agent orange affected veteran might be due. Unless the child of the Vietnam veteran has spina bifida, there are no presumptive benefits. 
 

You can speak with a state representative to be sure https://www.va.gov/about_va/state-dva-offices.asp  Good luck.

Question:

Jim, My question is that I was assigned to a reconnaissance squadron (VQ-1) from 1966 through Aug. 1968. VQ-1 flew hundreds of recon missions in Vietnam in search of SAM Sites. VQ-1 served as a direct support services for ground and air services in Vietnam and surrounding areas. My duty was to interpret data coming back from all missions and put it into readable format (longitude/latitude coordinates) to destroy the SAM sites. I was one of the few squadron guys who did not fly. Our home base was Atsugi, Japan. Nobody at the VA can tell if I am qualified to wear Vietnam Ribbon. Does direct high security back room intelligence processing for VQ-1 qualify me for the Medal also? I and only few others handled high security data as off shore support. This question has been bothering me for years. I have three of the presumptive conditions associated with agent orange. All of our coordinates data came directly from Vietnam flights. Thanks for listening.

Jim's Reply:

The requirements for eligibility are pretty clear. See Vietnam Service Medal It sounds to me as if you meet the eligibility requirements and then some.
 

Requirements

Individuals must meet one of the following requirements: Be attached to or regularly serve for 1 or more days with an organization participating in or directly supporting military operations.
 

This isn't the same as being eligible for agent orange benefits though so your comment threw me off just a bit.
 

To be eligible for agent orange benefits generally requires that the servicemember has set foot on the soil of Vietnam or served in some other capacity deemed eligible for those presumptive benefits. If you had flown there may have been a link to agent orange but if you didn't leave your station in Japan, I don't see a link to AO.
 

Wear the ribbon proudly! 

Question:

I just received 100% for my bladder cancer from Agent Orange. What will I need to be able to keep it at 100%? My doctor says you are never cancer free.

Jim's Reply:

The rating is going to depend on the treatment. In The Schedule For Rating Disabilities we find: 
 

7528 Malignant neoplasms of the genitourinary system 100%

Note: Following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.
 

Then when we go to...
 

Voiding dysfunction:

Rate particular condition as urine leakage, frequency, or obstructed voiding.

Continual Urine Leakage, Post Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence: Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day 60%
 

So...if your urinary bladder is removed and you are given a "urinary diversion" your rating will be 60%. To be honest, it's going to be a challenge to keep your rating at 100% after treatment is completed. You can file for mental health and/or other physical issues associated with your cancer to keep your rating up. It's not at all uncommon to have an associated depression with such a disease. You can also file for TDIU if your cancer has taken you out of the workforce.
 

Good luck sir.

Question:

I have been informed that VHA uses the Federal chain of custody form for work place urine drug testing. Then I’m told VHA doesn’t have to use the same method of tracking for veterans. Isn’t the health of veterans important enough to ensure the samples are theirs? The reason I ask, is that I recently received lab results that definitely are not mine.

Jim's Reply:

I hate to say it but yours is the 3rd communication I've received this week about someone who failed a drug test and that the test just had to be wrong. One fellow told me that he had sex with a partner who was high on cocaine and that's why he tested positive. Yes, well.
 

Allow me to be straight up with you...indulge me. I'm 73 years old and I'm a product of the 1970's. You may have heard of the sex, drugs and rock ' roll era? There isn't much in the way of substance abuse that I haven't either experienced first hand or seen up close and personal. I've suffered some small consequences but lucky for me, I was smart enough to walk away before I had any issues...like failing drug tests. Although I do still 'fail' VA drug tests because I use THC with my VA prescribed ibuprofen for pain control. I don't drink alcohol and I don't use tobacco so when my drug screen returns as "THC HIGH" my doctor and I have a good laugh and move on.
 

You're comparing apples and oranges in your attempt to disguise the possibility you've been busted. If you know enough about chain of custody and drug screens in the workplace you should know that has zero connection to the clinical laboratory standards that apply to each and every clinical lab specimen...not just your drug screen. Health care regs are a lot different than OSHA stuff...there are differences between employees and patients.
 

If you'd like to play that game I'll refer you to the CLIA regs here. You figure it out.
 

The chances that your specimen was mixed with another and you got someone else's results are a really really long shot, one in millions. Out of all the messages like yours that I've received over the years nobody has ever been able to prove a mistake was made. Your urine specimen was treated exactly the same way that blood samples drawn from cancer patients and pre-operative patients were treated that day. 
 

Yes, mistakes have happened. Lab specimens have been mixed up and patients have suffered. But that's a really rare occurrence and I have my doubts it happened to you. That you wrote to me rather than immediately going to see your doctor to get another timely drug screen is telling. You could even ask for hair screening if you want to prove your claim.
 

The good news is that there is no downside to popping positive for a VA drug screen Your doctor may not prescribe any more pain meds to you but otherwise there is no punishment or penalty, no loss of benefits or anything else. VA treats substance use issues as a health problem, not a criminal issue and I like that.
 

If you have a substance issue, get some help...this may have been a warning shot. If you don't have a substance issue and you're absolutely sure this was an error, the person who ordered the lab work is where you stop next. 
 

Good luck.

Question:

Hello Jim, I was diagnosed with ischemic heart disease in 2011 after suffering a heart attack. Approximately 2 weeks later I suffered another heart attack. One year later a third heart attack and a fourth in 2017. And recently I was diagnosed with atherosclerosis. Does this latest diagnosis qualify for additional benefits from VA? Thanks for any information and advise. 

Jim's Reply:

If you are a Vietnam veteran and you have had a rating for IHD, the diagnosis of atherosclerosis has been made already. Atherosclerosis is just another name for IHD or hardening of the arteries and it's what has caused your heart attacks. So...no, no additional benefit.