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secondary service connection
Today, I want to talk to you about a question that a lot of Veterans ask me: If I get a 100% rating, should I continue fighting the Veterans Affairs 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. You can read more about TDIU on the Veterans Law Blog, or download my VA 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.
This is contrary to what many VSOs will tell you – VSOs frequently tell Veterans not to “rock the boat” and withdraw any appeals pending when the VA awards TDIU.
In my experience, this is one of those “fairy tales” that VSOs tell Veterans – rarely does this pan out to be true!
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:
- Get your medical conditions service connected.
- Make sure the VA assigns the correct Impairment Rating.
- 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.
Had those conditions been properly 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%.
Had the Veteran ignored the VSOs “don’t rock the boat” advice and continued his Heart and Prostate Cancer claims, he would have been independently rated at 100% for both conditions, and the issue of TDIU would never have come up.
My law firm was able to fix the claim, but it took a couple years, and during that time, the Veteran did face some pretty significant financial problems because of the reduction of his disability benefits from 100% to 60%.
That story is just one of the reasons I tell every Veteran to get service connected for any condition that they believe is related to their military service, regardless how high their current total impairment rating.
By the way…I’m working on an ebook to teach veterans how to defend against a VA Ratings Reduction. Click here to sign up for an email announcement when it is ready.
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.
Is it possible for the doctor to say at a C&P this isn’t a secondary item but a direct issue? I filed it for a secondary disability now Im just waiting for a denial based on it being opinionated as direct…
Are You Taking Advantage of Secondary Service Connection in Your VA Disability Claim? – Veterans Law Blog
It was a routine call….checking in on a client about his case…. I was not expecting what I heard. The news on the other end of the line wasn’t good. He had just been through months of tests to figure out what was going on inside his body.