Benefits

Question:

I was diagnosed with Hurthle Cell carcinoma and the Memphis VA decided to have a general surgeon remove the tumor. The surgeon noted that they had trouble finding the recurrent laryngeal nerve and in fact severed it during surgery. They were unable to complete the surgery due to the difficulty of removal. I woke up unable to speak, coughing due to nerve paralysis. The doctors at the VA wrote they had stimulation of the nerve before closing. I asked to be sent to a thyroid surgeon specialist outside of the VA. This doctor was excellent and found the severed nerve in the side that the VA removed. He also removed material they left behind along with completion thyroid on my right side and protected the nerve on that side. Now I will have to get more injections in my left vocal cord to be able to speak, not get out of breath, etc. I am trying to get disability through the VA due to this incident as I am a self employed realtor and need my voice. Is there anymore I can do? This will be lifelong as they paralyzed my vocal cord. I know students did the surgery with the surgeon scrubbed in. I’ve sent both the surgical report from the VA and the non va doctor to disability.

Jim's Reply:

You need to talk with a lawyer. Not just any lawyer, you need to talk with a lawyer who knows how to sue the federal government for medical malpractice.
 

Yes...what you've described to me is a demonstration of incompetence, frank medical malpractice and coverup typical of how VA reacts when they've made a serious mistake. You're going to deal with this the rest of your life and VA should pay...this is going to get worse as you age.
 

I refer to one attorney group only for cases like yours.  https://verdictvictory.com/medical-malpractice/va-malpractice/  
 

I hope you'll make contact with these folks soon. There's a time limit to filing and you need to start ASAP. Good luck.

Question:

Jim, If you are 55 or older are you required to attend a reexamination with the VA? I’m not sure exactly what 38 CFR 3.327 is saying. I have two disabilities they are wanting to review at the same time. Loss of kidney from cancer (Lejeune) water, and prostrate cancer agent orange. Also receiving SMC for scars from kidney removal. Thank you

Jim's Reply:

Yes, any time VA asks that you attend an examination you should go and not fuss about it. Some reexams are more about quality controls, crossing t's and dotting i's in paperwork than anything else. Other reexams will discover things missed that are favorable to you. I was called to a reexam some 25 years after the rating had occurred. The examining doctor had no clue why I was there and neither did anyone else.

He examined me, made notes to the file and I went on to lunch on the VA dime (woohoo travel pay) and didn't think much about it. Many months later I got a letter telling me my rating hadn't changed and nothing else. To this day I have no clue.

If you skip an exam or raise too much of a fuss, bad things could happen. If the exam is to settle a legit issue VA will default to whatever is in favor of VA and you lose. If the exam is to settle a question of quality control, nothing is likely to happen when you go.

In the end, when summoned...just go. In this instance doing as you're asked to do is not only the path of least resistance, it makes sense to hush and see what VA is up to. Good luck!

Question:

Hi, I am a 1+year widow, my husband and I thought I would automatically receive his disability benefits after his death. However, after filling all the paperwork out, I was informed I had to prove his 70% Vietnam Vet PTSD was directly correlated to his massive cerebral stroke. The first time I researched this I found a lot of info, stating they did correlate, however, all lawsuits were not in the veterans' favor despite the evidence. Are you aware of any court presidents I am missing? Now a year later, I am not finding as much info. What would be the best phrase to use to research this? Thank you in advance for your service here, and for you military service.

Jim's Reply:

My condolences, I'm sorry to hear of the loss of your veteran.
 

Surviving dependents do not get a part of the veterans benefits on the death of the veteran. If the survivor is eligible that person may receive DIC benefits but those pay considerably less than the veterans award.

Eligibility for DIC is centered on how the veteran died and whether or not the death was caused or contributed to by a rated service connected condition. Your veteran died of a cerebral stroke, a condition that isn't connected to a PTSD diagnosis as easily as diabetes would be, for example. It's commonly accepted in medicine and health that diabetes causes vascular diseases and that vascular diseases cause heart attacks and strokes. It is not commonly accepted that symptoms of PTSD cause vascular disease and thus stroke.
 

You'll absolutely have to have an expert Independent Medical Opinion (IMO) from a disability doctor who has done this before. Even if you were to provide reams of paperwork in support of your theory, you are not a health care professional and your opinion doesn't carry any probative weight.

You're asking me about precedent in similar cases and unfortunately decisions in the courts established to serve veterans do not set precedent in VA appeals. Each appeal is unique and must be reinvented for every new case. You can research outcomes of cases here https://www.bva.va.gov/ 

If you're doing this yourself, you're fighting an army of lawyers and bureaucrats who are not on your side. You need a lawyer...an accredited veterans law attorney. 

To be honest, I'm not sure that most veterans law attorneys will take on your appeal for benefits unless you have a solid IMO in hand. Without the IMO you don't have a case that I can see and that you're already a year out from his passing isn't in your favor. Please speak to an IMO doctor and then to a veterans law attorney to see what you may be able to put together. Good luck.

Question:

How do I obtain Certification of my disability pension?

Jim's Reply:

I'm not exactly sure what you mean by, "Certification of my disability pension"? I'll guess that you need a copy of any awards you have from VA and those are available on your eBenefits account.

Try starting your search for what you need here https://www.va.gov/disability/view-disability-rating/   Be patient, the VA system is a bit clunky some days. Good luck!

Question:

VA gave me tinnitus rating, no rating for hearing loss and no rating for depression/anxiety. Can I make my depression/anxiety secondary to tinnitus?

Jim's Reply:

It sounds as if you've been rated for tinnitus (10% is max) and hearing loss. I'm not sure the % of your hearing loss rating but it's usually wrong or 'lowballed'. I'm also unsure whether you asked for depression as secondary to your hearing loss and you were denied or if you thought they should infer the mental health rating?

In any case, if you're not happy with the results of your hearing loss and mental health claims status, you should go ahead and speak with a veterans law attorney. Talking with an accredited lawyer about your options won't cost you anything and you won't pay anything out of pocket for the required appeals. Outcomes in cases like yours are always better with an accredited veterans law attorney in charge.

Hearing loss and tinnitus are the leading disability claims submitted by veterans...we're exposed to a lot of acoustic trauma. The connection between profound hearing loss and tinnitus to depression, anxiety and other mental health conditions are well established.

You'll want to speak with a clinical psychologist to better establish the link or nexus between your hearing loss and tinnitus and any mental health condition you may have as VA won't accept your word for it. In other words, you'll likely need an IMO. I refer to only one clinical psychologist and he is experienced with the often devastating effects of profound hearing loss. Talk with Brett and see what he can do to help you. Good luck.

Question:

Hey Jim, I’m like a lot of other veterans in the I’m TDIU and have been for 15 years. Michigan is great for TDIU/PTD and property taxes as they consider both tax exempt. I’m trying to move to Florida and they do separate the two. I’ve seen where you have said that you can design or adjust your benefits letter, but I didn’t see that anywhere. I just printed off mine today. Any suggestions?

Jim's Reply:

I'm retired in Florida. My career 'Old Corps' USMC father was a native Floridian so this was always home to me even though we lived many other places. I learned from him that Florida is an outstanding place for military veterans and retirees to live. The benefits are plentiful and the respect shown by most citizens is a nice touch. And yes...I understand that Michigan is also a terrific place for military veterans. Although there's that weather thing...
 

If you can ignore the hurricanes, alligators, lizards, boas & bugs (and lately the hottest summers on record), Florida is a nice place to live!
 

Plus...Florida has a well deserved reputation as an interesting place to be. The people here are (ahem) unique. When you have a moment and need to be entertained, do a search for <florida man> or <the villages> and be prepared for most anything.
 

I've had to download the letters you need and found that this set of instructions and tools worked well for me. I'm not sure where you may have printed a letter from but this tool gives you the options of inserting and deleting certain phrases that can cause problems. For the TDIU vet the phrase that causes problems is anything that references your base rate...the TDIU vet has a service connected disability rating of 60%/70% or greater as a 'base rate' and anytime a tax assessor sees that they question whether you are 100% service connected as required (you are). You are able to use the tool to delete or modify certain verbiage (the base rate) that may hang you up without changing the end result or intent of the document.

The document you want should say that you're rated at 100% service connected but should not reference the base rate.

While I can't offer instructions beyond what you'll find at that link above, I found that it took a couple of tries to get it right. You must be properly registered to use eBenefits and that can be a challenge...documentation protocols to get your account are designed for security and can take a while to get set up.

The VA computer system remains clunky and seriously in need of attention. You'll learn that to get where you need to go in your eBenefits account you'll be redirected from site sign-in to another site sign-in any number of times, not always successfully. Patience and Persistence are your best friends when in eBenefits. Take pen & paper notes as you go...passwords and such. You'll thank me.

I urge veterans to use a desktop or 'real' computer with a reliable and fast Internet connection when navigating VA sites. Trying to access and work within eBenefits from a phone or pad is as frustrating as anything you can imagine and the end result is usually a fail. In fact, you'll often need both a real computer and a smartphone to access eBenefits because VA is doing a secure two-tier identification log-in on most products. You may have to accept a unique text code to get properly logged in every time you access the site.

The VA web sites are particularly sensitive to ad blocking and popup blocking extensions that you may have installed in your web browser. When you're redirected from page to page, you'll need to continually check and turn off any installed extensions that may interfere with how the letter generator functions. This will also include any virus blockers that you may have installed...these types of add ons are notorious for interfering with the functions of many complex web sites.

If you're willing to jump through the hoops required to use your eBenefits account, you'll be able to print the letter you need for the Florida tax folks. If you're coming to the NE region of Florida, let me know when you're here and the coffee is on me. Good luck sir.

Question:

If I'm found to have amphetamines in my system, can the VA. take away my monthly disability check? 

Jim's Reply:

The Veterans Health Administration (VHA) tests everyone who walks in the door for abused substances. Most vets call this 'random' screening but the fact is there's nothing random about it...everyone gets tested. Although they're supposed to tell you (Informed Consent) that never happens and if they were to tell you and you declined...then what?
 

I happen to agree with the VHA approach. VHA treats substance use and abuse as a health care issue, not a legal problem. Nobody calls the cops, there's no punishment...it's all about treatment. Let's be honest...amphetamines aren't good for you. Neither are things like opiates or cocaine or any of the many other things we come up with to alter our reality.
 

No...VA will not modify your disability benefits because you pop positive on a drug screen. For anything other than weed, you'll likely be referred to a rehab program and you should consider that option. If you're burning some rope, your provider may not even mention it...marijuana is pretty common these days.
 

What may also happen is that your providers won't prescribe pain meds to you in the future. Once you've tested positive for any illegal drug (even marijuana in a legal state...it's still illegal federally) the option seems to be that you won't get any pain drugs at your VHA.
 

Please do give some thought to seeking some treatment if you have a problem with speed. Amphetamines are the original 'burning the candle at both ends' drug and although you feel like Iron Man now, the havoc they wreak on your body won't be fun 10 years from now. They don't make you any smarter either. Good luck!

Question:

I had sixteen months in RVN,  '66-'67. In 2019, I had an ischemic stroke. An MRI showed several previous strokes before that. VA denied my claim. Is it worth pursuing an appeal or should I wait and see if Congress acts on the Bill to recognize ischemic strokes as something Agent Orange exposure causes?? Thanks.

Jim's Reply:

It's unfortunate that ischemic stroke caused by carotid artery disease isn't recognized as a presumptive condition when ischemic heart disease is. Ischemic stroke is caused by narrowing of the arteries in your neck whereas IHD is caused by narrowing in the arteries that supply blood to the heart muscle. These vessels are a couple inches from each other and the mechanism of the disease is the same for each. Yet somehow the decision was made that one would be presumptive, the other not.

However, it is what it is and your carotid artery disease is not presumptive to agent orange exposure.

You can file and win a claim however. The first way and the most effective is if you are rated for diabetes...and many Vietnam veterans are...you can file carotid artery disease and a subsequent ischemic stroke as secondary to the service connected diabetes. Otherwise you can seek an independent medical opinion or a 'nexus letter' from a qualified physician who is of the opinion that agent orange caused or contributed to your carotid artery disease.
 

In any case an Independent Medical Opinion is likely to be necessary. Yes, I do think it's worth pursuing an appeal and were I you I'd go for the IMO and I'd also speak with a veterans law attorney.

While this may seem like a lot of fuss, you'll be happy that you did it all should another stroke come along in the future. Good luck sir.

Question:

My daughter was a dependent of a veteran. He is 100% disabled. My daughter turned 18 and benefits stop. I submitted a claim va21-686c because my daughter is a proven child incapable of self -support she has all her diagnosis which was sent in. I received a letter stating I couldn't apply because I'm not entitled to file a claim for this benefit. I guess because I'm not the veteran. Is there any thing I can do if the dad (a veteran) refused to file for this benefit ? Is there any benefit for my daughter that I can apply for without me being a veteran? She just started a new school program at 18, I don't want to waste my time applying if they going to say the veteran needs to file. His disability makes it so he barely understands what is going on and believes it will snatch benefits away from him. He doesn't understands his daughter really need these benefits. HELP!

Jim's Reply:

Benefits must be initiated by the veteran. You're correct that if you aren't the veteran you have no rights to sign documents for him.

You can't do any of that for him. If you look over the form you'll see that there are some specific signatures required. 

Your option is to speak with an accredited veterans law attorney to learn of any options. Good luck.

Question:

I received a letter from VA saying Military Order of the Purple Hearts is no longer accredited. That I needed to get another Organization to pursue my claim. I've been 100% IU with no further appointments since 2002. They aren't going to drag me through that whole deal again are they? Should I talk to one of these legal reps on, VA watchdog.org?

Jim's Reply:

MOPH ended their service program in 2018. I haven't heard much about it since so I'm surprised that you're getting such a letter today. I had thought that since this happened long ago it would have been settled. 
 

In any case, it sounds as if MOPH holds your POA as your representative for VA claims and appeals. In practical terms this has no effect on you since you're not in the midst of claims or appeals. What your VA is doing is trying to clean up loose ends in terms of having someone on record to replace MOPH if you should ever need a representative. The action by VA is to ensure that any and all claims that are in process or may become active again have a representative should the veteran want one. That POA is a legal document that can have an effect years from now so better to take care of it in a timely fashion.
 

I'm not sure who your letter is from, the VA or MOPH? In any case I assume you were given instructions on how to choose a new representative and you should choose 'none' or otherwise state that you will represent yourself in the future. If you should need an advocate down the road, yes...I would recommend that you speak with an accredited veterans law attorney first. Good luck sir.