Benefits

Question:

I have been receiving 100% disability for 6 years due to lung cancer from Agent Orange. That cancer was removed. My award letter said for residuals. I am 78 years old. The benefit letters I receive every January always states I am being paid at 100%. Nowhere have I ever seen the words permanent and total. l applied at the beginning for the property tax exemption as well as car tags. I get all my meds from VA at no cost. I live in Tx. My question is: Am I P & T and should I apply for it? I haven't had a C & P since 2016. Thank you, sir.

Jim's Reply:

You're in the situation many veterans find themselves in today. VA rates all service connected cancer as a temporary condition apparently believing in a model where every cancer is definitively cured and every veteran goes on to live a happy, productive life after the trauma of having had a life threatening disease. VA doesn't compensate for the psychological trauma of having lost a lung unless you file for it and fight for the benefit.
 

It is highly unlikely that you have converted to a permanently disabled status without your knowledge. The process for that to happen would be for you to attend one of your 'future exams', the C & P you should be getting every year or two. At an exam it's up to the examiner to opine whether or not your 100% rating should be permanent because your disabling conditions are static without a reasonable chance of improvement. 
 

What usually happens at the future exam is that the examiner finds that your cancer is cured and you are to be rated on the residuals of your treatment. If you lost a lobe of a lung to a service connected cancer you would be offered a Pulmonary Function Test (PFT) or similar and your final rating would depend on those test results and your C & P exam. You can bet that your rating wouldn't be 100%.
 

I always advise against trying to make a temporary 100% permanent because there is no regulatory path to do that other than to appeal your current rating. If you try to make it permanent today it's very likely that you'll get a prompt C & P exam and and up with a 40% rating.
 

Since you didn't tell me what happened when you applied for tags and an exemption, I'm going to have to guess those were denied because you don't have evidence of a P & T 100% rating and that's always a requirement.
 

If you are able to access your eBenefits account, try this: Go in and print your benefits letter and see if you can manipulate the text to say that you are permanently rated at 100% disabled. This can take a bit of computer expertise so if you aren't comfortable doing this, get a tech savvy friend to help. The benefits letter generator allows us to print a letter for tax and other purposes that says clearly we are 100% P & T...unless we aren't.
 

If you can print that letter, you're done. If you can't, you may want to accept the fact that VA is a year and more behind in catching up to C & P exams like yours. The pandemic shut down VA exams for a while and they're still trying to recover from that so patience is not an option.
 

In a nutshell, your best bet is to continue being paid at 100% even though you may not enjoy the tax benefits of a 100% P & T rating. You're better off than if you were to fuss and end up with a 40% rating. Good luck sir.

Question:

I was stationed in Okinawa at Futema in 1974. I've come down with prostate cancer and want to know if Okinawa is considered eligible for claiming. Thanks.

Jim's Reply:

There is no basis for a presumption having served in Okinawa that I'm aware of. Good luck sir.

Question:

I’m a former active duty reservist. I currently have VA ratings but had a bad examiner during my MEB C&P exam and now my rating will go way down based on the exam. I also will not be eligible for medical retirement just a separation. Should I file for a new C&P exam either through an increase or appeal prior to the PEB’s review?

Jim's Reply:

The MEB process is incredibly complex and full of ambiguous processes, so much so that it's impossible to predict an outcome in almost any given case...like yours.
 

In very broad terms I usually offer that you should just get out as quickly as you can and then deal with the final ratings that VA awards you if you believe an increase is appropriate. This is the only time I'll find that VA is easier to deal with since you're dealing with DoD policy. That you may or may not be eligible for retirement adds to the complexity of your ordeal.
 

My expertise lies in working with the VA to ensure that you have the correct VA ratings and I have very limited PEB/MEB experience to offer you. I'll direct you to a site that I like https://militarydisabilitymadeeasy.com/mebprocess.html and I think you'll find your answers there.
 

Good luck!

Question:

Jim I was tested by cardiologist and diagnosed with IHD. I filed a claim in Feb of 2020 and was awarded a 30% after almost a year of waiting. While I was waiting for the decision, I had a heart attack and was stinted. I filed an additional claim for the heart attack and was denied. They said I was already getting a 30% comp. and the heart attack was not service related - even though the 30% is for A/O IHD. Should I have been given the 100% for 3 months for the heart attack?

Jim's Reply:

Welcome to the VA! 
 

You will have to formally appeal. On appeal you may or may not receive a higher rating. The IHD rating is based on how well your heart is functioning, not by the number of procedures you have or how many bypass grafts, stents and so on. If you had a heart attack and the stent was placed before any major damage and scarring happened, 30% may still be appropriate.
 

Yes, you should have been rated at a 100% temporary status for the recuperative period and then assessed with another C & P exam before a more permanent rating was awarded. This is a common error and once again, you will have to file a formal appeal to get it corrected. Good luck.

Question:

Sir, I am retired military, 100% disabled through VA, accepting a civil service position which I know you may retire at 10 years. Can I still collect Social Security at the end as well?

Jim's Reply:

Since I'm not sure which civil service position you may be accepting with which department or agency or what you're rated for, I can't promise that this is 100% accurate but in very broad terms, your 100% VA schedular rating won't interfere with federal employment benefits.
 

I have to fudge my answer just a bit because some federal agencies have unique rules about interactions with other agency's disability ratings, substance use, criminal history and social media use. If you're rated for PTSD by VA your potential employer may have an issue with you carrying firearms as part of the job, for example. I once had a potential employer tell me they would hire me as soon as I could get a doctor's letter saying that my 80% VA disability rating wasn't really all that and I wasn't seriously disabled. I didn't get the job.
 

As you enter into the maze of benefits of federal employment you should make it a priority to learn all about the fine print of your particular position and employer. I know of people who spend a lifetime in the system and at 30 years they're shocked at their past mistakes when planning retirement. The feds offer tons of education for employees, take advantage of all of it. Good luck!

Question:

Hi Jim. As 100% P & T veteran for 5 years and a 100% disabled veteran for 11 years, what does the death benefit rule say about my spouse and child receiving death benefits at my death? I have heard something about an 8-year rule. Can you explain how that works?

Jim's Reply:

A veteran who had a VA disability rating of 100% P & T for the 8 years leading up to their death and the surviving spouse was married to the veteran for those same 8 years the 8 year rule would add $288.27 to the monthly payment.
 

DIC and other survivor benefits can be exceedingly complex just at the time that complexity isn't needed. It helps to study ahead of time https://www.law.cornell.edu/cfr/text/38/3.10  I urge everyone to have a will made out by an attorney who practices probate and is familiar with the laws in your state and community. Yes, that can cost you a chunk of out of pocket money to get it done right but in the time of need, knowing your rights and anticipated benefits is invaluable.

Question:

Hello Jim, I have moved to Italy with my wife for possibly a few years after getting married this week and want to add her as a dependent. I am on TDIU will adding her as a dependent cause me to be re-examined for my disabilities? I read somewhere that they review your file and re-examine you. Thank you very much for your help.

Jim's Reply:

All best to you both.
 

No, getting married won't trigger a reexam or anything like that. The only thing that can affect your TDIU is gainful employment or significant improvements in your rated conditions.
 

While you're having her added to your benefits, keep a couple of things in mind. The State Department vis embassies within your reach can be a veterans best friend. They know how to expedite things to CONUS if you're in need of help. And don't forget to get you and your new dependent set up with health care here https://www.va.gov/communitycare/programs/veterans/fmp/index.asp
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Good luck.

Question:

Can a connection be made between agent orange and congestive heart failure and progressive heart disease?

Jim's Reply:

"Heart disease" is a very broad descriptor. There are dozens of things that can cause a malfunction that will lead to health issues so we won't go there. 
 

The only cardiac medical condition that can be directly linked as presumptive to agent orange is Ischemic Heart Disease or IHD. IHD is a condition of the arteries that supply fresh oxygenated blood to the muscle of the heart as it pumps and this function is not always associated with congestive heart failure (CHF). 
 

IHD can cause a heart attack that leads to CHF however. If one has a heart attack because of an agent orange service connected IHD, the CHF may be sought as a secondary condition caused or aggravated or contributed to by the IHD.
 

Without IHD as the cause, CHF is always likely to be denied as service connected. Document the IHD and go from there.

Question:

Does collecting Unemployment (state) affect your TDIU benefits? When I was discharged I was encouraged to apply for unemployment which I did. Almost a year later I was awarded TDIU and it back dated from when I was discharged. The amount I made from unemployment was almost double that of the poverty line and will surely be known once I file for my taxes this year. Because of this will I lose my TDIU?

Jim's Reply:

No. As the VA accounting is done over time and if any questions arise, you'll be given the chance to explain what happened and how. As you probably know VA is monitoring your SSA and IRS accounts and if and when any discrepancy comes up you'll be sent a VA form 21-4140 to complete. No action is taken to reduce your benefits without this notice so no worries about a surprise. In the end your financial windfall didn't come to you because of gainful employment so you should be good to go. 
 

Were I you, I'd be concerned about the provider of the unemployment benefits wanting some money back. You might want to read the fine print to ensure that the retroactive payment from VA doesn't somehow invalidate the need for the unemployment benefit.
 

This isn't at all an unusual situation because of the lag time built into the VA claims process. You may discover that nothing at all happens and nobody notices that you double-dipped or you may have some paperwork to do as you sort this out. I think worst case you may have to pay some unemployment money back, but I doubt that.
 

Hang tight, don't do anything you'll regret and this should sort itself out. Good luck.

Question:

The VA have rated me 40% for viral gastroenteritis, H pylori and GERD. I have been diagnosed with chronic gastritis and heartburn. Will they change my 40% disability rating?

Jim's Reply:

I don't see why they would change your ratings? For what it's worth, GERD and heartburn are the same thing and chronic gastritis is pretty much another way to describe the H pylori and a viral gastroenteritis. 

The system won't usually reach out to you and change a rating unless there's a problem or unless you file for a change. If a different label is applied to an illness and a name change wouldn't change the rating, nobody is going to bother. I think you're all set. Good luck.