Benefits

Question:

Hi Jim. I have been rated at 100% since July of 2011 and I have been rated 100% P&T since November of 2016. Does my family qualify for DIC? I spoke with a DAV representative and they said something about an 8-year rule and that I qualified under that rule, can you show me where to find that regulation? Thanks.

Jim's Reply:

You'll have to ask your DAV rep about that since I don't know of an 8 year rule. DIC will come to eligible surviving dependents for any veteran who dies of a service connected condition. For example, if a Vietnam vet dies of his agent orange diabetes, his survivors are eligible to apply for DIC.
 

The 100% rated vet must hold the permanent 100% rating for an uninterrupted 10 years and then he can die of anything he wishes and survivors will be eligible to apply for DIC.
 

More is here https://www.vawatchdog.org/dic---survivor-benefits.html 

 

P.S. From StatesideLegal

You can also learn more about eligibility and benefits under the Dependency and Indemnity Compensation (DIC) program here. The information breaks down eligibility specific to spouses, children, and parents. 

Question:

I am receiving TDIU as of May 2021. Am I allowed to work as a self employed individual? Does that count as a family owned business where income limits do not apply?

Jim's Reply:

There is no gainful employment available where your individual income limits don't apply. While there are allowances and adjustments made for entities like a family owned business, the VA is acutely aware of how veterans will attempt to earn extra money while they aren't allowed gainful employment. 
 

In the end your VA is monitoring the income of the TDIU veteran by tracking IRS and SSA accounts. If anything at all catches their attention you could be subjected to a thorough review and lose benefits.
 

A lot more info on how this works is here https://www.vawatchdog.org/tdiu-unemployability.html 

Good luck.

Question:

I've been treated for Hypothyroidism for many years and am on a daily dose of medication for it. I applied to the VA for compensation due to Agent Orange exposer in Vietnam. I was given service connected status for it but I was given zero percentage because the VA says I don't have compensable conditions. I was in Vietnam. I had boots on the ground and was exposed to agent orange, what more do I need?

Jim's Reply:

I don't understand why you have a 0% rating.
 

As a rule, when we have a service connected condition rated at 0% it means we have a condition that could be disabling but the condition currently doesn't rise to a level of 10% disabled. This could be a healed broken arm, for example. If you break an arm in service and it heals with no deficit, you could end up with a 0% rating for that.
 

However...it appears that in The Schedule For Rating Disabilities that you should be rated at 30% as a minimum. I copied the relevant rule for you below.
 

You file a claim. This won't be difficult to do and I suggest that you DIY. When you file your claim be sure to mention that you believe your rating has been wrong since the beginning and that you want that corrected. VA will schedule you for another C & P exam and at that time you can discuss relevant symptoms of your disease for ratings.
 

When you've done all this you should get a bump to at least 30% and if you have any involvement of other organs (eyes, etc.) you should talk about that during the exam so those can be rated too. If there are any symptoms of myxedema, your rating should be at 100%. If you are also diabetic, be very cautious of the interaction between your diabetes and hypothyroidism. An in-law relative of mine has your history including service connected diabetes and he's very ill. The combo platter of diabetes and thyroid disease can be deadly.
 

Good luck.

RELEVENT RULE

4.119 - Schedule of Ratings - Endocrine System

Hypothyroidism manifesting as myxedema (cold intolerance, muscular weakness, cardiovascular involvement (including, but not limited to hypotension, bradycardia, and pericardial effusion), and mental disturbance (including, but not limited to dementia, slowing  of thought and depression)) 100%
 

Note (1): This evaluation shall continue for six months beyond the date that an examining physician has determined crisis stabilization. Thereafter, the residual effects of hypothyroidism shall be rated under the appropriate diagnostic code(s) within the appropriate body system(s) (e.g., eye, digestive, and mental disorders). Hypothyroidism without myxedema 30%
 

Note (2): This evaluation shall continue for six months after initial diagnosis. Thereafter, rate residuals of disease or medical treatment under the most appropriate diagnostic code(s) under the appropriate body system (e.g., eye, digestive, mental disorders).
 

Note (3): If eye involvement, such as exophthalmos, corneal ulcer, blurred vision, or diplopia, is also present due to thyroid disease, also separately evaluate under the appropriate diagnostic code(s) in §4.79, Schedule of Ratings--Eye (such as diplopia (DC 6090) or impairment of central visual acuity (DCs 6061-6066)).

Question:

Spouse of deceased veteran of Vietnam War was denied DIC and burial benefits when Veteran husband died from Parkinsonism because (1) there was no proof he was boots on the ground (he was a pilot); and (2) Parkinsonism was not yet presumptive. Now it is presumptive, and now the widow has affidavits stating he was in Vietnam picking up cargo. What paperwork should she file to have the VA take a look at her claim under Nehmer? She is on the docket for a BVA hearing, but that could take a very long time.

Jim's Reply:

If she is on the docket for an appeal to be heard by BVA, all the actionable things like Nehmer will be considered at that time. I'll assume she has a veterans lawyer https://www.vawatchdog.org/how-to-hire-a-veterans-law-attorney.html to represent her. Yes, this may take a long while but this is the appropriate spot for her appeal. Good luck!

Question:

I have a 100% rating due to Agent Orange exposure. My cancer (multiple myeloma) has no cure. Any remission is temporary. I am 77 years old. Will I be subject to a review of my rating?

Jim's Reply:

Yes, your rating will be reviewed at about 6 months after any course of treatment is complete. If you are cancer free at that time VA will propose to reduce your rating to reflect any residual disabling conditions. 

Good luck.

Question:

I have 100% full and permanent service-related disability. I want to go outside and get a second opinion asap. I am almost 75 years old. Can I sign up for Medicare? If so, should I get A and B? Please let me know my options. Thank you.

Jim's Reply:

If you're almost 75 years old, the odds are you have Medicare Part A already. The best I can offer you is that you need to get in touch with your local or regional SSA offices and determine the status of your Social Security benefits.

Question:

We are buying a 68-acre piece of property. It is farmland but we are not farming. The land is leased for ten years for $10,000 a year. Is this an issue with my TDIU? We have no farming intention and we have no farming company or equipment. We just want the property and allow the lease to continue.

Jim's Reply:

No, purchasing land with the lease won't have any effect on your rating. The only thing that will affect your rating is working at gainful employment...that employment earning an income greater than the federal poverty level. Enjoy your property.

Question:

The VA orthopedic surgeon suggested that I have surgery on my right shoulder for impinging tendinitis and torn rotator cuff. I am rated at 20%. I understand that if I have surgery I get a temporary rating of 100% afterwards, but will they try to reduce my 20% after that?

Jim's Reply:

In theory...you are rated at 20% because your service connected injury reduces your gainful work capacity by about that amount. If you have a surgical procedure to correct the disabling injury and it works like it should, you are then no longer disabled to the degree of your previous rating. The rules and regulations require that you be accurately rated at the time of your exam and during adjudication of the claim.
 

But no...of course it doesn't always work that way. Sometimes after recuperation the injury seems worse or your range of motion is even more limited for a while. Some vets walk away with a higher rating than before.
 

It's my experience that since your 20% rating is on the low end of the scale, you're not all that likely to lose it. Even after corrective surgery you're likely to have enough of a ROM deficit to remain eligible for 20% and that won't be subject to future exams. If your corrective surgery is successful to a point where you return to totally normal function with no pain, a lowering to 0% service connected could happen easily enough. A 0% SC rating tells us that VA recognizes there is a potentially disabling service connected condition that doesn't currently rise to the symptomatic disabling level of a 10% rating.
 

For what it's worth, I have the same diagnosis in both shoulders since 1971. I was diagnosed with bilateral tendonitis until the development of MRI when the full thickness rotator cuff tears were clearly visible. I've had maybe a dozen offers over the years to repair or replace both shoulders and I've declined all.
 

I have my own reasons for that and I don't suggest that you ignore your doctor's advice. The reality of my decision had nothing to do with my fear of losing a rating, I just haven't ever been convinced of shoulder surgery outcomes as being long term successes when compared to the risks involved. I'm really big on doing risk/reward analysis on important decisions and in my own case, I couldn't achieve the balance I felt I needed.
 

I rode big motorcycles to every one of the lower 48 states over the years and I took a lot of ibuprofen because my shoulders hurt.
 

My shoulders hurt a lot (a lot!) back then but today they're unscarred. I still take a lot of ibuprofen, motorcycles not so much.
 

Good luck.

Question:

Good Afternoon Jim,

I am active duty Regular Army and am currently approved for MEB/PEB. The PEB gave my initial findings, but i was unhappy with the results. They rated me a total of 40%. I had a ORIF Surgery (left clavicle) 20% / Hip CAM deformity with labral tear, left – status post arthroscopy with acetabuloplasty labral repair, femoral osteoplasty 10% / Right Hip Pain 10% / lower Back Pain 10%. My question is, will I get an increased rating if I recently found out that my left hip now has heterotopic ossification? I had an x-ray and the Orthopedic Surgeon told me that I'd have to get the surgery done again, but currently unable because my appeal is in September and I'll be getting out soon after that. Thank you for your time and expertise.

Jim's Reply:

Your ratings are likely to increase once VA takes over. After service VA ratings are always different and usually significantly more generous than MEB/PEB findings.
 

Why is that? The DOD is comparing your required physical and mental health duties and obligations to your active duty MOS. Ratings are a complex mishmash of rules and regs that simply don't apply to civilians...that's what veterans are you know.
 

My advice to active service members who are undergoing the laborious MEB/PEB process is...don't buck the system. Recognize that your only goal right now is to get your DD-214 in hand...everything you do today changes after that. Be prepared to wait for your benefits to kick in...maybe months.
 

I should add that just because ratings and so on change, the level of efficiency of the process may fall a good deal...hard to believe I know. Your VA is a mess right now and it may take you months or more to finish the details of your future and more lasting benefits.
 

What you need to do right now is prepare to meet the VA as a vet. Gather good copies of all your records, if you don't records will be lost. Not only medical records but any sort of unit records that may show what happened to you over time from a command perspective. For example, this could mean ship's log showing unusual conditions at the time of your injury and so on. But in the grand scheme of things, 10 years from today having good copies of your active duty medical records will be the best thing you can do.
 

If you feel that some time in the future a 'buddy statement' in support of a claim may help, line up who you may contact far into the future and make plans to stay in touch.
 

Deal with the process you're a part of today as efficiently and with as little fuss as you can so you can move on to where more lasting decisions are made at VA. Good luck.

Question:

Hello Jim... I have a question regarding DIC. My wife is a veteran who is currently considered 100% P&T disabled (70% with TDIU) as of November of 2020. She had been receiving the same pay benefits as 100% since 2009 but not P&T. Unfortunately she was diagnosed with stage IV cancer (not service connected) a couple of months ago and will likely die from the disease. Because of her disability I am the primary caregiver to her and our children. And am even given a caregiver stipend from the VA. Since she will likely die from her cancer she will not fit the criteria of dying 10 years after her P&T rating. My question is... does being eligible for 100% pay benefits because of unemployability since 2009 until it was considered P&T in 2020 make me eligible for DIC? Thank you.

Jim's Reply:

I'm sorry for all that's happening to your veteran and your family.
 

Unfortunately the death benefits are somewhat rigid and if she passes from anything other than a service connected condition without 10 uninterrupted years of a total 100% rating, survivors aren't eligible for DIC. The temporary part of her 100% rating record doesn't start this clock.
 

Although you don't say what her temporary rating was, you will want to file a formal appeal that says she should have had a permanent rating long before November 2020.
 

This will be an appeal of her recent rating seeking an earlier effective date.
 

As this will be an appeal, you're eligible for free legal help from an accredited veterans law attorney.
 

You'll also want to try and service connect her current cancer to whatever she is rated for...a secondary service connected condition. 
 

I'll also suggest you go here https://www.index.va.gov/search/va/bva.jsp  and use the search engine you'll find there and look for <effective date> or <early earlier effective date> or similar search terms and see what you can find that may be similar to what you're facing. The BVA search function is a great tool although it demands some focused time to produce favorable results.
 

I can't promise anyone will be able to help...this is always a bad spot to be in and unfortunately it isn't uncommon. If you file the appeal with the help of a lawyer today, even if she were to pass before it were adjudicated, the appeal would continue through the adjudication process. Good luck.