VA Claims6 Reasons to Keep Pursuing VA Claims and Appeals – AFTER you reach 100%

[Tbird]

 

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Takeaways

• Do not to pursue a rating % as your goal in your VA Claims and Appeals …. instead seek to service connect every disability that resulted from your military service.
• When you have achieved that goal – all conditions that can be service connected are, all impairment ratings are properly assessed, and all effective dates are properly selected –  that is when I say a Veteran should stop fighting for the VA Benefits to which they are entitled.

Chris Attig talks to you about a question that a lot of Veterans ask him: 

"If I get a 100% rating, should I continue fighting the VA for benefits?"

Let’s jump right into the answer. Many Veterans perceive the 100% rating as the end of the line. The sign of victory over the Hamster Wheel. But….….is it REALLY over when you get to 100%?  Well, the hard part sure is over…but I think that there  are several reasons to keep on fighting – even after you reach the 100%. Let me tell you about 6 of those reasons…[Reprinted here with permission from Veterans Law Blog ]

Scenario #1:  100% TDIU May Not be Permanent

There are several paths to a 100% rating in VA Compensation – one of the most common is the TDIU 100%.

TDIU – also known as “Total Disability Individual Unemployability” – is a 100% rating awarded when a Veteran’s service connected disability (or a combination of disabilities) renders that Veteran unable to procure substantially gainful activity.

Quote   Substantially gainful employment is employment that is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Substantially Gainful Employment is defined in VA Manual M21-1MR, Part V, Subpart ii, Chapter 1, Section B

You can read more about TDIU on the Veterans Law Blog, or download the Veterans Law Blog’s TDIU Field Manual eBook.

When a Veteran is awarded TDIU, there is no guarantee that TDIU 100% will last forever. 

In fact, if the Veteran does not submit the annual income statements, or if the VA gets evidence that the Veteran is engaged in substantially gainful employment, the VA could reduce the Veteran’s rating to the combined rating in place prior to the TDIU grant.

It is almost always preferable to have a schedular 100% – meaning that your 100% rating is based on the schedule of impairment ratings for disabilities, and not on the circumstances of your employment.

So, even if you get approved for 100% based on TDIU, you might want to give serious consideration to pursuing a schedular 100% rating.

Schedular ratings become “protected” at certain points – again, too much detail for this post – but there are times when the VA can no longer reduce a 100% rating.

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The 5, 10, 20 year rules…

 

Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.

 

Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.

 

Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it’s unlikely the rating would get reduced.

If you are 100% for 20 years (Either 100% schedular or 100% TDIU – Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person’s life. “M-21-1-IX.ii.2.1.j. When a P&T Disability Exists”

At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.

 

NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.

Scenario #2:  A 100% rating doesn’t get you the right Effective Dates

When I teach Veterans how to pursue an appeal for a denied claim, here’s the “order of battle” I teach:

1. Get your medical conditions service connected.

1. Make sure the VA assigns the correct Impairment Rating.

1. Fight for  the earliest effective date possible.

Those last 2 often go hand in hand. But, many times, the VA will grant you a 100% rating – TDIU or schedular – and not give you the earliest effective date possible. At 100%, past due benefits can really start to add up. 

Using the 2014 disability rate tables, a single Veteran loses out on $2,906.83 for each month. If the Veteran misses your correct effective date by 1 year, this means they are shorting a single Veteran $34,881.96.  Double that for 2 years.

My point is this – just because the VA got your rating to 100% doesn’t mean that they gave you the right effective date. If you give up the fight early, you might be leaving a lot of benefits on the table.

Scenario #3: Special Monthly Compensation

Not many Veterans have ever heard of Special Monthly Compensation.  And so many Veterans don’t pursue it when they get their 100% rating.

To be quite honest, far too many VA Raters haven’t heard of (or don’t correctly compute) Special Monthly Compensation.

Special Monthly Compensation is complicated – but generally, it works like this.

When a Veteran receives a 100% rating, the VA is supposed to consider whether they might be eligible for additional payments known as Special Monthly Compensation.

There are many different kinds of Special Monthly Compensation (SMC), but here are a few:

Statutory SMC – also known as SMC(s) is one of the more common types of SMC.  It is commonly known as “Statutory/Housebound” SMC, because there are 2 ways to get it.

First, when a single Veteran with no kids  has one 100% rating, and at least a 60% rating for a wholly separate condition/disability, that Veteran is entitled to an additional $347 a month in VA disability (using the rating tables effective 12/1/2014).  This is the “Statutory” method of getting SMC(s).

Second, if a Veteran is housebound because of a service connected disability, that Veteran may be entitled to SMC(s) on a “housebound” basis.  The VA’s definition of housebound is rather precise, and is discussed elsewhere on the Veterans Law Blog.

Loss – or loss of use – of extremities, sensory organs, and/or reproductive organs, might entitle one to Special Monthly Compensation as well.  As could the need for Aid & Attendance.

The highest levels of Special Month Compensation can take a 100% Veteran as high as $8,859.84 a month – these Veterans are usually in pretty bad shape.

Even still, I’ve seen the VA “stiff” Veterans that are housebound, bed-bound, and quadriplegic out of Special Monthly Compensation.

This happens, most often, when a Veteran stopped fighting for their benefits after reaching 100%…..far too many Veterans think that is the highest level of compensation available.

Scenario #4: Protection against Future Reductions

We all know that the VA loves to reduce benefits – often for no reason at all.

There’s not a week that goes by that I don’t talk to at least one Veteran who was rated 100% – schedular – and then the VA comes out of nowhere and reduces them to 0%.

Often, when I dig into the C-File for these Veterans, I find other conditions that were improperly rated in the past, or that the Veteran gave up on when they received their 100% rating.

rly rated, the Veteran might not have seen any reduction in disability compensation  when the VA reduced the rating on another condition.

Here’s an example I saw a couple years back.

A Veteran – presumed exposed to Agent Orange – had both Ischemic Heart Disease and Prostate Cancer.  Both conditions were severe enough that the Veteran should have been rated at 100% for EACH condition.

However, following a VSOs advice, the Veteran gave up his claims and appeals for the Heart and Prostate conditions after the VA awarded TDIU for the Veteran’s back condition. 

A couple years later, the Veteran reported income to the IRS from a side project he was working on.  It wasn’t a lot of income, but it was enough to show that the Veteran was able to participate in Substantially Gainful Activity,  even with his 60% disabling back condition. 

The VA cut his 100% rating down to 60%. 

Scenario #5:  Secondary Service Connection

It is the rare Veteran that is pursuing service-connection for just one condition.

But when a Veteran gets to 100% on just condition, many VSOs, some attorneys, and other Veterans often say the Veteran should give up their other claims or appeals so they “don’t rock the boat”. 

Be happy with what you got, they’ll often tell you.

Here’s the story of a Veteran that wishes he hadn’t listed to that advice.

The Veteran had a renal (kidney) condition that resulted from his exposure to certain chemicals in the military.  He also had a claim in for Hepatitis C that, at the time, would not have given him much more of an impairment rating.

So when he got the 100% rating for the renal condition, he withdrew the Hep C claim on the advice of his VSO.  This is not at all an uncommon scenario (perhaps you have been the victim of this common VSO tactic).

When the Veteran was diagnosed, years later, with liver cancer, he though it might be related to his Hepatitis C.   And his doctors agreed with him: Liver Cancer is a common consequence of chronic Hepatitis C.

The Veteran in the story above spent the last 6 months of his life trying to get the Hepatitis C Service Connected so that he could show that the liver cancer was secondary to that Hepatitis C. 

During a time in his life when the Veteran could have used the extra Special Monthly Compensation that he should have received for two 100% disabling conditions (renal condition and liver cancer secondary to Hep-C) to make his final days more comfortable for himself and his family, he was battling a VA Bureaucracy that could not – or would not – move quickly enough.

Here’s the take-away point: if you believe a condition is service connected, continue to pursue that service connection even if it is only going to give you a 10%  (or a 0%) rating today.

Tomorrow, it may be the key to showing that another condition – one that is much more serious – is service connected.

Scenario 6: Continue Battling the VA to Make things Easier  For Your Survivors

My law firm represents a LOT of Surviving Spouses of deceased Veterans.  

They are my favorite types of cases.

That’s because I have an axe to grind with the VA – when my grandfather died from an injury he sustained at the Battle of the Bulge, the VA and several VSOs told my grandmother that there was nothing they could do to help her or her 5 children. 

They were wrong – the VA and those big national VSOs could have helped and changed the course of my grandmother’s life instead of lying to her.

In the course of representing a lot of surviving spouses, I see the same scenario play out time and time again. Here’s that scenario:

A Veteran dies from a medical condition.  The medical condition that contributed to his death was related to the Veteran’s service in the military.

The Veteran gave up his claim for service connection of that condition because he reached 100% on another condition. 

The Surviving Spouse – to get DIC benefits – almost always has to start from scratch to prove the condition that killed the Veteran was service connected.

If a Veteran dies from a service connected condition, the surviving spouse is entitled to a benefit called “Dependency and Indemnity Compensation”.

It’s a monthly benefit that is often misleadingly called “Service Connection of the Cause of Death”. 

Now, if the Veteran did not prove that the condition was service connected during his or her lifetime, the spouse gets a chance to prove that it should have been service connected.

So a Veteran’s failure to pursue service connection for the condition that ultimately killed him does not prevent the survivor from recovering survivor benefits

HOWEVER…. it does make the claim or appeal REALLY hard for the surviving spouse.

Many times, the Veteran is the primary “bread-winner” in his or her family – when the Veteran dies, the spouse and children are left to fend for themselves. 

Most of them do find a way to eek out a living after their husband or wife dies – whether by the grace of God, the support of family or friends.

But if the Veteran had kept up the fight with the VA while they were living, it wouldn’t have had to be so hard on the family they left behind.  The Veteran’s spouse might have had the ability to grieve the loss of their beloved, without having to find replacement income to stay alive and in their home. 

The spouse might have had the ability to spend more time honoring the Veteran’s service, more time grieving, more time healing….but instead they spend years fighting the VA to win a benefit that they could have had if the Veteran had continued to pursue the claim while living.

So, if you get to 100%, please consider making sure that any medical condition that could likely contribute to your death is service-connected before you stop battling the VA (or, make sure that there is at least a pending claim or appeal at the time you pass).

Related

Individual Unemployability

Unemployability (IU) Guide from Hill and Ponton

VA Law

 

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[MikeR]

Considering the VA as an employer does illegal things to employees, it’s not a stretch to think that they would be unscrupulous with veterans. The attitude that I observed towards veterans was mind blowing. Now the medical people tend to be better, but people in desk jobs often never see veterans.

[john999]

I had a VA C&P doctor tell me vets get fat just to get money for DMII.  What kind of attitude is that?

[McRay]

Seems there is a lot of jealousy and resentment concerning VA disability benefits.

[Rivet62]

1 hour ago, McRay said:

Seems there is a lot of jealousy and resentment concerning VA disability benefits.

I didn't notice that so much at the VAMC where I worked, but it does appear they are on guard for vets gaming the system. 

[broncovet]

Oh, yes, Rivet62.  I was reading where, for example, VA audioligists are trained in finding Vets who may be faking a hearing loss to get benefits.  

One way:  They repeat a test.  It would be tough for you to repeat faked results...How would you know which sounds you pretended not to hear last exam?  The 30 db, 20db, 70 hz, etc?  The answer is you wouldnt.  

    You dont ever want to fake any exam results on hearing or anything else.  And be very careful to not exaggerate your symptoms.  

     ONE way VA burns Vets, your doc may ask you, "when did you first notice (your symptoms)?  Gee, I dont remember, it was probably last year.  

     So, you go to another doc, much later.  You remember, that you hurt your self on a 4th of July picnic.  So, you tell the doc the 4th of july (20xx).  

     O, boy.  Were you gaming the system?  Probably not.  But you really need to be consistent in what you say, any inconsistency such as harmlessly forgeting a date, then your wife reminds you, "Remember when you hurt your knee on the 4th of July picnic?"  

Oh, yea, I did do that, gee, I guess I was drunk and did not recall.  

     I hate that they try to burn Vets on inconsistent dates.  I really dont remember "dates"...

     What date did you fall and hurt yourself?  Oh, it was a few days ago...

     Your wife, who sometimes remembers the dates of everything, then corrects you:  It was almost 3 weeks ago..on Christmas eve.  

      So, next time you tell the doc, "yea, I fell on Christmas eve".  

      Hmmm..gee, last time you told us you fell "a few days before Jan 11", now its Christmas eve..

      FACT:  If 3 people tell exactly the same story of an event, its probably "scripted".  

      In reality, for example, when JFK was shot, dozens of witnesses (with no reason to lie) teachers, doctors, etc...reported different numbers of shots fired, and different locations where the shots sound was coming from!  

     These people were likely telling the truth, but they recalled different things..Oh, gee, I dont recall what color dress Jackie Kennedy was wearing.  

     But your wife, who is a clothes nut, payed attention to her dress and could describe how many flowers were on it.  So she mentions that to you, and, when asked again, you say it was white with yellow flowers.  

     I have had about 5 audio exams..over a period of 19 years or so..by 5 different examiners..in 2 different states.  

     They are not all the same, but they are consistent.  My hearing loss gradually got worse.  

     I made sure I was honest, and, if they order another exam, it will be consistent with the others.  So, I dont worry about reductions.  

      Of course, I can hear better in some settings than others.  Some people have very loud, bold voices.  I can hear my pastor most of the time.  But I cant hear hardly any of my grandchildren no matter how many times they repeat or how loud they talk.  

    I dont want to be rude, so I nod.  Then I ask my wife, "What did (grandchild) say?"

    She talks in my ear and I can understand her..some of the time...when there are not loud noises, such as fan motors, or car noise.  Im very used to her voice, and I often extrapolate or guess what she says.  We have known each other more than 15 years, and I often know what she is gonna say, before she even says it...as she does for me.  

 

Edited January 11, 2022 by broncovet

[john999]

I had a VA exam doctor accuse me of faking because I had a college degree.  I kid you not.  These half-ass VA C&P doctors have absorbed the VA prejudice against vets to think we are all fakes and scammers.  Wonder why many vets who have been around for years have huge distrust of the VBA.  The medical side is tolerable, but anything to do with cash benefits are pretty horrible.