Benefits

Question:

Hi Jim, In February 2021, I received a Non-Hodgkin Large B-Cell Lymphoma diagnosis. I submitted a claim to VA, and last week i received the final decision. It is service connected and a 100% was approved by VA. Nowadays, my cancer went away with the R-Chop treatment received last year and now I'm in remission (Observation) for 5 years as per my Oncologist. I'm afraid to receive VA benefits for a 100% and in a future being ask to pay back because my cancer is gone. I've been suffering remnants of the chemotherapy like neuropathy, frequent stomachaches and migraines which I never suffered before, but I have not treat any of this yet and not sure if i have to report this to VA. What is the proper way to handle this situation? Do I need to report this new symptoms, and report also that my cancer is gone and that I'm under remission for 5 years? Am I supposed to receive VA benefits equals to 100% while in remission?

Jim's Reply:

Your VA rates all service connected cancer as 100% on a temporary basis. You are not 100% P & T, you are 100% temporary. The VA will schedule what is called a future exam in your file with an alert for a future date to set up a C & P exam for you. That usually happens 6 months to a year after CHOP. At that time you'll be evaluated to see how you're doing and your rating should be adjusted accordingly. Many veterans who are fortunate to receive the first CHOP and have a great remission are no longer viewed as totally disabled so the rating may fall to represent any leftover problems like the ones you mention.
 

You don't need to be concerned about paybacks or when your exam will be scheduled. Your VA is in a serious battle with C & P exams because of the pandemic and they're running months and months behind. They will notify you when they want to examine you.
 

None of the timing of your exam is your problem and you won't be required to pay back any payments unless there is fraud involved and you're convicted. You don't need to report any new symptoms to VA, just be sure that all of that is in your current medical record for future review.
 

In fact, the best thing you can do to protect your future benefits is to buff and polish your medical record. Look through your records to ensure that each detail you think is important is recorded to the record by your provider.
 

If it isn't in your record repeatedly, it didn't happen.
 

Good luck sir.

Question:

Hello Jim, I had originally submitted a claim in 2013 and it was denied. In 2020 my claim was resubmitted and approved. Does the time frame from when my claim was submitted and denied to the time it was approve qualify for retroactive pay? Thank you for your service.

Jim's Reply:

The effective date of a disability claim is the date you first file it. If your claim is denied, you have one year from the date of denial to file an appeal. If you file an appeal within the one year time period, the original effective date remains that and any further awards or actions will date to the original effective date.
 

If you didn't appeal within that one year period, the denial is considered to be permanent and the file and claim is closed. If you then reopen the claim in the future, a new effective date is set upon that reopening. 
 

Reading your message it sounds as if you were denied a benefit in or around 2013. You make no mention of an appeal so I assume you lost that earlier effective date. Your new effective date will be to the date of filing in 2020.

Question:

I am a boots on ground Vietnam veteran. I am 69. I have been diagnosed with atriventricular complete heart block. A pacemaker was just put in. I am studying hard. Is this heart block in the category of Ischemic heart disease for presumptive. Thanks for your time.

Jim's Reply:

The only heart condition that is presumptive to agent orange is IHD or Ischemic Heart Disease. IHD is the condition where your coronary arteries become clogged with cholesterol plaque and oxygenated blood can't go through, often causing a heart attack.
 

One result of a heart attack might be a complete AV heart block. If you have had a heart attack that precipitated the heart block, the heart attack would be presumptive because that would be IHD and then your condition could/would be service connected secondary to the primary IHD.
 

However, your atrioventricular heart block can also be caused by a dozen or more other things that have nothing to do with IHD. A simple viral infection may cause electrical malfunctions of the hearts conduction system.
 

In the end unless you are first diagnosed with IHD and it is then determined that IHD is the cause of your heart block, there won't be any disability benefit that would apply to your condition.
 

Good luck sir.

Question:

VA still certifies appeals before sending to BVA as I understand the process. If the RO discovers, during this certification process, that the VET is correct will they issue a new / revised decision or simply let the appeal move forward to the Board? 

Jim's Reply:

Will the VA have a sudden change of heart in your favor? I'd guess the chances of that are somewhere between slim and none.
 

Yes...accidents do happen and VA sometimes gets it right, that's why there's a certification process. Cars are inspected during the manufacturing process and anything not perfect is rejected and most other step by step processes have similar follow-up checks. VA tries to emulate all that but doesn't always get it right. Think the Lada inspection line.
 

The sad fact is that the certification process isn't all that great. Rubber stamp is one phrase that comes to my mind. That's a reason we see so many remands from the court to the regional offices telling them to do it again, in part or in whole.
 

In a nutshell, flawed decisions wind their way to the court and the court sends it back for a redo. This is all too often a repetitive process and many years ago was tagged as "The Hamster Wheel". This can happen when your claim is appealed to BVA and after a few months a clerk at BVA notices an inadequate C & P exam so that judge remands it back to the RO to set up your new C & P. 
 

That takes a while and your appeal is returned to the BVA where a new clerk and judge get a look after a few months wait and they see an error in what the RO says about the second C & P so they remand it to the RO for an IMO with new DBQs and an ACE process to be conducted by the VHA. 
 

During all this your file may make a stop at the Appeals Management Center which is a bit like an old tire junkyard, thousands and thousands of denied claims stacked up as far as the eye can see. There isn't much good that results from the place and it's a bother to everyone who gets involved but nobody can do anything about it.
 

My best advice when you decide to appeal a denied claim is to retain a lawyer as soon as you get the chance. Lawyers win maybe +/- 15% more appeals than veterans do when they manage their own cases. That's a lot.
 

Good luck sir.

Question:

Hello Jim, I have a question about child support in regards to military pay and VA compensation. My ex-spouse has been ordered to pay child support. She is retiring next year. She has stated "my pay will go up (anticipating VA disability rating)" However, she stated that her child support payment will go down because her VA compensation will not be a factor, only her retirement pay. I have found conflicting information on the VA site and want to get ahead of this. Dad has full custody of the two children and she is not involved in any of the parenting. Please advise, thank you

Jim's Reply:

Every family court that I'm aware of will use all income sources to determine child support and alimony. Many veterans make the mistake of believing their VA disability benefit money is exempted from divorce court because it's tax exempt. The fact is that VA disability money is intended to support and care for the veteran and the family of the veteran and divorce doesn't throw out that obligation.
 

Typically the court will require each party to complete a fairly standard financial statement listing incomes, debts and properties. From that set of numbers and using your state court formula, a calculation of obligations will be made and enforced. Over the years I've met a number of vets who decided they didn't have to comply since they knew very well the judge was wrong. They wrote to me after their weekends in jail, so that's not a great thing to argue with the magistrate.
 

In divorce court all income must be accounted for. Whether Lotto wins or poor old Aunt Gertrude left her fortune to you, the court wants to know and will make the decisions on who owes what to who.
 

Pro tip: The only thing you have going for you in divorce court is your credibility to the judge. Being up front, honest and courteous to the court is the way to exit with your skin intact. In most divorce courts the children are the focus of the court and if you agree, you're way ahead.
 

Good luck.

Question:

I have 100% disability, total and permanent on hearing. I'm also rated 50% for PTSD, and 10% for tininitus. Will the VA reduce this if I get cochlear implants?

Jim's Reply:

I can't absolutely predict your outcomes but I get similar questions often enough and I think you likely won't place your rating in danger.
 

However, we're supposed to be rated on our conditions of the moment. If you're 100% for hearing loss that tells me you have a very serious hearing issue and the rating is likely appropriate. If your implants work as advertised and you don't have the same issues then as you have today, it makes sense that your rating should fall to show to degree of improvement to your pattern of hearing loss.
 

What usually happens is that a corrective surgery or therapy will occur and then a few months later a 'future exam' will happen and the examiner will focus on how much you've improved. Often enough when all factors are considered, your overall rating isn't likely to change. The examiner should consider the totality of the things that affect your rating, your mental health, scarring from surgery and any remaining hearing deficit and in total, you're likely to continue the rating without changes.
 

Good luck!

Question:

I have Abnormal IV diastolic function with impaired LV diastolic relaxation pattern. Does this fall under agent orange?

Jim's Reply:

Presumptive service connected benefits for those who served in validated regions where agent orange was used aren't required to prove cause and effect, that is presumptive for these troops.
 

The presumptive conditions list includes only a single heart related disabling condition and that's Ischemic Heart Disease or IHD. IHD is sometimes called coronary artery disease. 
 

If your diastolic dysfunction can be traced to your service connected IHD then you may have a well grounded claim secondary to your rated IHD. If your diastolic dysfunction isn't caused or contributed to by a service connected IHD then you may not have a well grounded claim. For what it's worth, many who are diagnosed with diastolic dysfunction weren't aware they had the condition as it's frequently symptom free. In other words, often enough this isn't a disabling condition and is a byproduct of getting older.
 

Good luck.

Question:

I just had a C&P examine and I received an overnight letter from the examiner indicating the test results indicate that I MAY have moderate / severe Interstitial Lung Disease (ILD) and recommended that I seek treatment soon. I had recently (Jan 2022) submitted a claim seeking a disability increase (currently at 60%) due to radiation scarring and shortness of breath. Kudos to the VA rater for requesting the pulmonary tests and the Examiner for telling me they found a real problem.

My question: Should I expect the VA rater to automatically TDIU my claim, if his rating results in the expected additional rating of 60% with a possible terminal disease?

Second question: Since I had told VA about these same problems back in May 2020 and the Rater at that time ignored them, should I expect them to back date whatever their findings are this time? Is there anything I need to do pending the VA completing the rating process?
 

P.S. I am waiting for my VA primary care provider to get back to me!

Jim's Reply:

"should I expect the Rater to automatically TDIU my claim". No, automatic isn't a word we use much in the VA disability claims process. A rater will take into account all the various factors that will affect a decision.
 

"should I expect them to back date whatever their findings are this time?" No. Only when we formally claim an earlier effective date will that happen. 
 

It sometimes will happen that a VA rater will infer an event and proceed to work the claim on your behalf, but the general rule is that for any action at all to occur, you must first file the paperwork. Good luck!

Question:

I have a rating of 50% for my back. If the VA performs surgery to correct the problem, do I lose my rating?

Jim's Reply:

Will you lose a disability rating after corrective surgery? Not necessarily.
 

Here's how it works. You're rated on certain objective criteria like flexion...how far you can bend in various directions and probably a component of pain is mixed in too.
 

You're going to have corrective surgery and you hope it will improve your abilities to flex and bend without pain. Once you complete the surgery you'll be rated at 100% for a period of time and you'll be examined again...a 'future exam' to determine how well your surgery worked for you.
 

If you're a lot better, you'd expect to have a lower rating. If you aren't better, your rating may stay exactly the same. If you have issues and the surgery doesn't help, your rating may go higher. This is true no matter who performs the surgery, whether at VA or at a civilian provider.
 

Often enough a rating won't change because the underlying reasons for the rating may change but the final % doesn't. For example, you may lose 10% on the functional side if your condition has improved and you could gain 10% for the scar you have after surgery...no net gain or loss.
 

In a nutshell, you won't automatically lose the rating but it could fluctuate up or down. Good luck sir.

Question:

Jim, I’m 100% Disabled because of PTSD and also P and T. Can I legally work without it affecting my compensation? Again, I'm rated 100% PTSD for a mental disorder…PTSD.

Jim's Reply:

Our disability ratings are as complex as any algebra challenge. There are some basics you need to understand to survive VAspeak. First up: Permanent and total doesn't mean either permanent nor total. Welcome to VAspeak.
 

Either 100% P & T rating opens the door to dependents benefits and otherwise the ratings are pretty much equal.
 

There are 3 ratings that will calculate to equal 100%. The first is the 'schedular 100%' rating where you meet the requirements that are set in the schedule.
 

Then there is the 'TDIU 100%' rating and when you're awarded that rating it's because VA agrees you are unable to work because of service connected rated conditions that don't add up to 100% on the schedule.
 

There is also a 100% recuperative temporary rating that may be assigned after in-hospital surgery or treatment of a service connected condition but we won't discuss that here.
 

If you are rated as 100% and this is a schedular 100% rating, you are allowed to pursue any gainful employment you are capable of with no income restrictions.
 

If you are rated as 100% and this is a TDIU rating, you are not allowed to work at gainful employment that would earn you more than the federal poverty wage level.
 

How do you know which rating you have? You need to head to your eBenefits account and review the award. If you see language like "your rating is 80% and you are paid at the 100% rate" then you have a TDIU rating.
 

You put particular emphasis on PTSD and that's interesting. PTSD is often not rated as P & T by the schedule. Most mental health conditions are assigned a temporary (not TDIU) 100% rating that requires future examinations because VA believes that mental health conditions generally improve with time. 
 

In any case I'm aware of enough P & T schedular ratings for PTSD that I know it does happen so is that's you and your rating, welcome to the mainstream workforce. I'm a believer that productive income earning labor is good for us all and if you're able, go for it! Good luck sir.