Benefits

Question:

What happens when Judge retires middle case? Back from 2nd remand and I found out my judge has retired. Now what do I do? Will they just use transcript of the hearing or all info in C-file? Thanks!  I'm a long time reader and appreciate all the help you have given me on my 10-year claim.

Jim's Reply:

Thank you for your kind words.
 

Every professional and complex function will have a contingency plan for retirement, illnesses, sudden deaths and so on. Whether in the legal arena, health care or auto repair, if one person steps aside someone else fills in and there will be a process to follow to get it dome right.
 

Your appeal will be passed on to another person who will continue the process. This isn't at all unusual so you won't lose any ground here.
 

Exactly how the earlier data will be used is up to whoever is assigned your case. Good luck sir.

Question:

Jim - do you know if there is an archive of VASRDs? In other words, if I wanted to see the VASRD used in 1999 when I retired from the Army is there an online source for that document? Appreciate the help.

Jim's Reply:

Hmmm. A lot of changes are made and they occur often. Most changes are simple enough and don't impact the intent of the rule. Substantive changes to the rules don't happen all that often, most FR publications are about housekeeping details rather than any sweeping reforms.
 

But the government does keep track of even the most minor change in rules and regs in the greatest detail. I'm not sure this will be in an easy to find format but your answer is in here somewhere.
 

Changes to The Schedule are posted daily in The Federal Register. You can search changes back to 1994 so that helps. This will probably be a cumbersome search but if whatever you're looking for has changed since 1994, the change will be published in The Federal Register.
 

If there hasn't been any change to the particular rule you're looking at, you won't find anything in The Register.
 

You may also find some help here https://www.ecfr.gov/current/title-38/chapter-I/part-4   You'll see citations that link to the Federal Register...any before 1994 aren't available.
 

A search function I use often is the BVA Decision Search Engine here. By using the appropriate key words for your search and choosing the years you're interested in, you may find a decision or comments of value.
 

Good luck sir.

Question:

Did the JSRRC or (Records Management Center as I believe it is called now) hire more staff or allow more staff to go back to work in order to catch up with the massive backlog of records request?

Jim's Reply:

If you're referring to the NPRC, yes...they are doing what they can to return to work. I know people there and they face the huge challenge of COVID just as any business does today plus they are always dealing with the less than ideal conditions of exposure to HAZMAT left from the decades of dust and debris of storage of paper files...some even known to contain asbestos.
 

I can't speak to just how many people have returned to labor on site, may are still working remotely in support of those on site. They're trying to prioritize recovering files for veterans who may be in hospice care and so on.
 

The mission there has been a mess since the fire and the pandemic made it that much worse. If you're waiting on files for your case, it may be a while. Good luck.

Question:

I’m about to have surgery and the doctor I’m using does not accept CHAMPVA. I have Medicare. Will I owe a lot more for the surgery if they don’t accept CHAMPVA?

Jim's Reply:

When the beneficiary has Medicare and CHAMPVA, Medicare acts as the primary payer and CHAMPVA picks up any copays. If your health care providers don't accept CHAMPVA you'll probably owe the copay and maybe even more. I'm surprised to hear that a provider who accepts Medicare doesn't accept CHAMPVA, they usually take both if they take Medicare as payment. You may want to double check with your provider's insurance and billing folks before you do anything else.
 

Since I don't know if you'll be in a hospital using Part A or having surgery at an outpatient facility using Part B, it's not possible for me to define how this will work for you.
 

However, I'd urge you to touch base with every provider you'll encounter long before you have elective surgery. Hospital and outpatient surgery center billing processes are enormously complex...the lab bill, your anesthetist, and many ancillary charges won't be covered and you can be surprised with a bill running into tens of thousands of dollars if you don't do your homework ahead of time. 
 

You'll also want to have preapprovals from CHAMPVA. No surprises are the best! Good luck.

Question:

I have a rating of 80%. I haven’t been able to sustain employment for the past few years. My representative is going to apply for TDIU. I plan of looking for employment one day as I progress mentally. My employment part time would be higher than the poverty line when I do seek it in the coming years. When I return to the workforce I tell the VA and they cancel my TDIU. But will they put me back at 80% scheduler rating or will they also revise that rating as well? I don’t want to lose my rating of 80%. It took many years to get here but right now I am in and out of hospitals and don’t have the income to support my family. I don’t plan on using the TDIU benefit as a permanent solution since my line of work (which I can only work part time due to my mental health) makes sustainably over the poverty line. What would you suggest? What happens after the TDIU benefit goes away or is canceled or I no longer need it?

Jim's Reply:

Once you have the TDIU rating you are no longer allowed to work at the level that VA calls gainful employment. You are allowed to work at marginal employment however. Marginal employment allows you to earn up to the federal poverty level with no penalty. That can be a generous amount of money, more than $10,000.00 for a single veteran and significantly more for those with dependents.
 

You tell me that you want to return to work and I'm all for that. Structured work is good for us and provides benefits way beyond the money. After VA has rated you as TDIU they will begin to monitor your IRS and SSA accounts to check on how much taxable income you're making each year. If you aren't making any, your benefits will go on with no problems. 
 

If you are successful in a return to work and you earned more than the allowable limit in a year, VA will send you a 21-4140 form to complete and explain why you had that money on record. If it appears to everyone that you're able to continue working the VA will usually suggest that your TDIU 100% be modified to the original rating, in your case 80%.
 

In other words, if you are able to return to work, you do not have to notify the VA of anything, they'll be in touch with you. 
 

I like your plan and the thought you're putting into it. Good luck!

Question:

I have been awarded 100% unemployability due to a service connected disability. Total and permanent. Does this qualify my wife for CHAMPVA? As of now, I pay $650 a month out of my OPM pension for her health insurance.

Jim's Reply:

Yes, she is eligible for CHAMPVA. You should get notice in your benefit awards package or at your eBenefits account. CHAMPVA is great health insurance although working with the CHAMPVA office requires persistence and patience. Once you figure out how it works she'll enjoy the benefit.

Question:

Where can I start to get the VA to cover the cost of a specialist's recommended hearing implant? I heard that the VA has covered these costs for some veterans.

Jim's Reply:

Is your hearing loss service connected?
 

If so the VA has a pretty good record of providing hearing aids,  any necessary cochlear implants and so on. If your hearing loss is service connected the place to start for cochlear implants is your primary care provider. That person can refer you up the chain to the ones who provide the advanced assistive devices. Good luck.

Question:

Jim is getting 100% VA disability for bladder cancer from Vietnam vet service. He’s been through a course of treatment of combined chemo and radiation. Unfortunately we are looking at removing his bladder and living with a urostomy bag for the remainder of his life. What can we expect his benefit percentage to be?

Jim's Reply:

His final rating will depend on a variety of factors like how well he recovers and how proficient he will remain with Activities of Daily Living or ADLs. I'll guess that it's likely that he could end up with SMC ratings. Have a look at the SMC ratings here and line up all that's happening with him to learn of a potential rating. Good luck.

Question:

If I'm rated a P & T TDIU but otherwise rated 80% disabled, can I file claims for 2 newly diagnosed disabilities that would be rated above 100% disabled combined and request my P & T TDIU rating be removed when I'm over the 100% disability threshold?  Although it wouldn't change my monthly award amount, it would allow me to make a living and earn income again. Living in California, costs are so high that $3100 a month doesn't even cover rent and the TDIU rating is limiting my ability to work to cover the difference.

Jim's Reply:

I hear you. It isn't only California, the rest of the nation is expensive too. You may have an edge on the rest though depending on just where you are.
 

And yes, you can try the tactic you're speaking of but that comes with hazards. In a nutshell you're telling VA you can work and that you really aren't all that disabled. If you file for what you believe are ratings that will take you to 100% schedular so that you can seek and hold gainful employment, know that this isn't the first rodeo that VA has been to.
 

You'll get C & P exams and a review of everything that you have now and in the end it's entirely possible for you to lose the TDIU rating and end up with 80%...or less. What happens if the ratings you file for are denied and your TDIU goes south? It happens every day and only you can decide if it's worth the risk.
 

Were I you I'd focus on earning up to the federal poverty wage before I considered anything else. TDIU vets are allowed to earn up to those limits and that's quite a bonus. You could put an additional $10,000.00 in your pocket and not risk anything. If you're married with dependents, you can earn a fair amount more. 
 

The #1 consideration when filing new claims is how that action might affect existing ratings. We never want to put our TDIU rating at risk, if we lose it, it can be hard to recover.

Question:

Hello Jim. You helped me out in the past. I finally heard back from VA on my claim. Question is: I had lung cancer - Claim was based upon my Blue Water Navy exposure to Agent Orange. VA did service-connect my lung cancer and residuals of my partial lung removal (lobectomy) but assigned it a 0 disability rating? I think that has to be in error (have yet to receive their package explaining how they determined 0 rating).

I had C & P exam with results that had my FEV1 score was below 55% predicted which by my calculations equates to 60% rating. One of the other tests showed FEV1/FVC ratio as higher in the 80% range but from what I found online with past appeal decisions the VA seems to be using FEV1 primarily as the Gold standard on how severe the COPD may be. Is this your understanding on this test? The other ratio is less reliable the longer you have had COPD. I had my lung cancer surgery in 2007. Would there be any other reason you can think of why they would service connect my lung cancer/residuals and assign a 0 disability rating? They also service connected my scar due to the surgery but with a 0 rating. They use both tests I have noted above for decisions, but it is stated as an either OR situation. If one test is worse than the other how do they rate? There was a prior case in law that said the Raters prefer to use the FEV1 test as that one is more accurate in determining disability. Are you familiar with that case? Thanks a lot Jim for your help on this.

Jim's Reply:

I can answer everything simply: VA is in error.
 

You will have to formally appeal every detail. VA seems to make a sport of lowballing agent orange cancer victims in their recovery. "Lose a lobe, no big deal!" I can't count how many times I've seen this.
 

If you don't formally and timely appeal, nothing at all can or will happen. I'd suggest that you provide a brief statement outlining just what you told me and then be ready to repeat it verbatim at your next C & P exam. Soon after your appeal is recorded you'll be scheduled for a new C & P. If they schedule you with the same examiner, ask for another.
 

Exactly, precisely how you should be rated will be found in The Schedule. https://www.benefits.va.gov/WARMS/bookc.asp  The Schedule takes a bit of studying to understand but soon enough you'll see just what your rating should be. While you don't want to be a know-it-all, at your new C & P exam you can opine on how it should be done.
 

You should also dive deep into The Clinicians Guide so you can learn what a C & P exam should produce for you. This guide is still the gold standard for the C & P exam.
 

I understand that this isn't great news and that there's a lot of fuss for you to deal with in the future. It's unfortunate that this is just typical of some of the sloppy work that VBA puts out these days and how poorly agent orange cancer victims are thought of. 
 

I'll emphasize that unless and until you file an appeal, nothing can happen. You have to kick-start the process with a NOD and appeal and you're the only one who can do that.
 

I'll leave you with a tip. You've lost a big piece of your lung. Many veterans find that will leave them short of breath even as they rest. Their sleep is upset because of shortness of breath.
 

The veteran who is short of breath while resting may benefit from a home oxygen supply. A CPAP/BIPAP machine can also be prescribed to treat your service connected post cancer treatment syndromes. VA doctors are usually very happy to set you up with the latest oxygen therapy technology to help you rest at night and to help you maintain the usual activities of daily living (ADLs) we all want to enjoy.
 

Service connected home oxygen therapy because you're SOB will bring with it a 100% rating. Talk with your doctor, get some O2, feel better, file the claim. Good luck sir.