Benefits

Question:

Hi, Jim. Thanks to you back in 2014, my husband applied for and received 100% disability rating for his high risk prostate cancer. As we do estate planning for the future, maybe you can help us again since my husband's cancer is now stage 4. There is an eight-year qualification rule for spousal DIC payments that military.com describes as: The veteran must have been rated that way for at least 8 continuous years immediately preceding death AND the surviving spouse had to be married to the veteran for those same 8 years. My husband applied for disability payments in November, 2014 when he was diagnosed with prostate cancer. due to Agent Orange exposure. He got a notice in March 2015 that he qualified for !00% disability payments. Payments were backdated retroactively to Nov. 1, 2014. So when does the eight-year rule start: diagnosis date, application date in November, 2014 and retroactive payments began, or March, 2015 when notification about monthly payments began? Thanks in advance for your help to all disabled vets and their families. 

Jim's Reply

I'm familiar with the article, not one of my favorites as it's confused a lot of people.  https://www.military.com/benefits/survivor-benefits/dependency-and-indemnity-compensation.html 
 

The surviving spouse of a disabled veteran may or may not be eligible for DIC benefits. DIC benefits aren't a part of the veterans disability benefits, they're in a class of their own. For the surviving spouse be eligible for DIC benefits the veteran must die of a rated service connected condition OR have been rated as 100% P & T for at least 10 uninterrupted years.
 

The veteran who has been rated as P & T for at least 10 uninterrupted years can get run over by a bus and the surviving spouse is eligible for DIC. Veterans...you've been warned.
 

The 8 year rule you're speaking of is for an additional benefit to the base rate after eligibility for DIC is established. "Add $288.27 if, at the time of death, the veteran was rated 100% disabled or unemployable as a result of disability. The veteran must have been rated that way for at least 8 continuous years immediately preceding death AND the surviving spouse had to be married to the veteran for those same 8 years."
 

In other words, if the survivor is eligible for DIC based on death by a service connected condition and at the time of death the veteran was rated as 100% schedular or 100% TDIU and was rated as P & T, there is an additional $288.27 added to the benefit.
 

If I'm interpreting your message correctly you and he believe he will likely die from the service connected prostate cancer. That would establish your eligibility to the DIC benefit because he is service connected. His 100% rating started in November 2014 and that is known as the effective date of the rating and is the start date of the 8 year rule.
 

Thanks to you both for taking estate planning in stride and getting it done right. I have had fewer heartbreaking tasks than to try and help a widow when the veteran wouldn't talk about VA for whatever reasons. Death and taxes, as they say, should compel everyone to plan for our inevitable demise. 
 

Give him my best and a salute from me, please. 

Question:

I have a 90% disabled rating that is TDIU but it is P&T. Does that mean I can try to go to work without worries of losing my benefits?

Jim's Reply:

No. That you have achieved a permanent status doesn't change the base rule...you are rated as unemployable due to service connected disabilities. A return to work tells VA you are no longer unemployable and you don't need the TDIU benefit.
 

You are allowed to earn an amount up to the federal poverty wage level and no more or VA will want to have a talk with you.

Question:

I need an IMO letter stating that my migraine headaches are more than likely caused do to my PTSD. I was sexually assaulted by 3 men while serving in the military and had to work/live in the same barracks for a year and half after this occurred. I wasn't able to sleep and yes, I've been diagnosed with sleep apnea thru the VA but not service connected.

Jim's Reply:

Get in touch with this doctor https://veteranspsychevaluations.com/  Good luck.

Question:

I had surgery for prostate cancer 2009 and I was rated after at 60 percent after the surgery. Now the cancer came back and I am 100 percent. The doctor wants to take the prostate out. Will my rating go down to zero? Thank you

Jim's Reply:

No, if you have another surgery similar to the original procedure, the process of ratings will be much like the last time. You'll have the surgery and be at 100% for a few months and then likely drop back to 60%. Good luck.

Question:

I am undergoing radiation therapy for prostate cancer. Is it my responsibility to keep the VA informed about the status of my cancer or will they be in contact with my urologist?

Jim's Reply:

Are you a Vietnam veteran who has a service connected rating for the cancer? If you have filed a claim for a disability rating your VA will stay in touch with you as you go along. The usual process is that the eligible vet is diagnosed, he files a claim and either accepts treatments or watchful waiting. During the process VA will establish future exams for you to keep track of your condition so that a final rating can be adjudicated. Good luck sir.

Question:

I just got a cochlear implant from VA and I'm at 50% hearing loss. Can I file for increase, prosthetic pay?

Jim's Reply:

Hearing loss and tinnitus are the leading disabling conditions claimed by veterans. These are also among the most challenging of all ratings to get right and will require your patience. VA typically denies or lowballs the ratings for hearing loss because it is so very complex to determine the correct rating. You are a great example...50% for a profound hearing loss that requires a surgical implant is way too low.
 

Yes, you should file for an increase, possibly to a 100% rating and then some. You should also be eligible for a 100% recuperative rating after the surgery and depending on your other ratings, you could even be eligible for Special Monthly Compensation or SMC   https://militarydisabilitymadeeasy.com/special-monthly-compensation.html 
 

You must initiate the paperwork filing for all this yourself. Nothing will happen until you do.
 

Sorting out just what you may be eligible for will take some time and you're the best person to do that. Let's start with an appeal at the BVA that gives you an idea of the topics you need to address   https://www.va.gov/vetapp21/files7/21040694.txt   You can search for more like this here   https://www.index.va.gov/search/va/bva.jsp 
 

You'll want to learn more about Impairment of Auditory Acuity here   https://www.benefits.va.gov/WARMS/bookc.asp#g 
 

You should also consider whether or not your service connected hearing loss and tinnitus has had any mental health effects on you? Profound hearing loss can cause depression, anxiety and other mental health conditions that are often compensable as secondary conditions.   You can speak with this doctor about that, he's helped a lot of veterans with hearing loss and mental health claims. Tell him I said you should contact him.
 

You can file these claims yourself https://www.vawatchdog.org/how-to-file-a-claim.html  or you can seek some help from a state/county veterans service officer in your region https://www.nacvso.org/ 
 

Your disability is a very serious medical condition that will have a powerful effect on the rest of your life and it's my opinion that your current 50% rating is way too low for that. If I were you I'd file for an increase and then do it again. If VA denies any of this, get some help https://www.vawatchdog.org/how-to-hire-a-veterans-law-attorney.html  Good luck sir.

Question:

Can you confirm to your viewers that the Military can not discharge a serviceman for a preexisting condition after he/she have served on active duty for more 180 days. There is the presumption of soundness once you complete boot camp and if you are honorably discharged for preexisting condition after a year on active duty you can file a CUE for that injury dating back to when you were discharged example 1978.

Jim's Reply:

Can I confirm that an active duty soldier can't be discharged after 180 days because of a preexisting condition? No, of course not. You say, "the Military can not discharge a serviceman for a preexisting condition after he/she have served on active duty for more 180 days". Using that logic we'd have a lot of people who can't perform military duties sitting around in uniform.
 

If a preexisting condition that was either unknown or known and thought to be of no consequence on entry to the armed forces should become worse during active service, it must then be evaluated as to how it will affect the soldiers MOS duties.
 

Let's consider a known preexisting condition...this soldier had a badly broken bone in the left ankle that happened during high school athletics. The injury was repaired with routine surgical procedures and the individual returned to athletics and physical normalcy for 4 years before entering service. The well healed injury with surgical scarring was noted during the intake process and the soldier went on to complete 2 1/2 years of service with no issues. Then during normal and routine military duties the previous injury was reinjured (during a fall from a ladder) to a point that the ankle was surgically fused, limiting all motion of that lower leg and foot and requiring orthopedic footwear in the future. This soldier will be medically discharged and receive a disability rating by VA as having aggravated a known preexisting condition.
 

Then we consider the soldier who has an unknown intracranial aneurysm. An aneurysm (a swollen artery) in the brain is very rarely identified before it bursts and causes a significant hemorrhagic stroke or often enough, death. In this case the soldier entered active duty after college and was fast tracked to OCS and a bright military future as an officer. She was in outstanding health and had completed Airborne training before going to a more permanent station in remote Alaska. After arrival at her duty station she served 13 months before she had a sudden severe headache, collapsing to the floor. She was evacuated to the closest facility that could manage a brain injury where the diagnosis was grim and the long term prognosis was poor. This soldier will be medically discharged because of a preexisting condition and she will receive a VA disability rating for aggravation of the unknown preexisting condition.
 

The rules and regs regarding presumption of soundness are flexible in many ways, particularly with recent advances in genetic sciences. There are few absolutes in these adjudications.

Question:

Had my PTSD rating drop from 70% to 30% after I was reevaluated. I have tried appealing the rating decrease but was denied. What are my options and should I continue to be strung along by my VSO or should I contact an attorney? Thank you for your time!

Jim's Reply:

Any time you've been denied a benefit that you believe to be legit you should immediately proceed to appeal with the help of an accredited veterans law attorney. Click here https://www.vawatchdog.org/how-to-hire-a-veterans-law-attorney.html 

Question:

Hello. Can I receive housebound benefits for a mental health issue like schizophrenia and severe depression? Thank you.

Jim's Reply:

Yes you may...if you meet all the usual requirements for the benefit. Go to https://www.benefits.va.gov/BENEFITS/factsheets/limitedincome/EnhancedorSpecialPension.pdf to get more info. Good luck.

Question:

I have been receiving 100% disability for 5 years for residual due to lung cancer. They removed left lobe. I also recently had tumor removed from my bladder which was low grade cancer. I am Vietnam Vet. I am not rated P & T as far as I know. Should I file for the bladder cancer or leave it alone since I'm already receiving 100%? I don't want to put up red flag. I am 78 yrs old.

Jim's Reply:

Yes, you should go ahead and file for the bladder cancer benefit. That won't raise any sort of red flag and I'll anticipate that you'll receive a P & T rating and you may be eligible for the housebound benefit.
 

This will be worth your time. Good luck sir.