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JIM STRICKLAND'S MAIL BAG: VOLUME #12 FOR 2008 --
Veterans' Advocate Jim Strickland answers
questions from VA Watchdog readers.
Veterans' Advocate Jim Strickland provides
regular columns for VA Watchdog dot Org.
If you would like to contact Jim about his
columns, you can email him here...
The archive of Jim's articles
is here...
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by Jim Strickland
NOTE: Letters in my mailbag are reprinted
just as they come to me. Spelling and grammar are left as is and only
small corrections are made to improve readability, ensure anonymity or
delete expletives that may offend some readers. This is not legal advice.
You should always seek the advice of an attorney who is qualified in
Veterans' law before you make any decisions about your own benefits.
Jim;
I'm a state Veterans Service officer. Vets who become eligible for SSDI
based on SCDs should apply immediately and then seek help from their local
congressman. If you are applying for TDIU, SSDI should be the next step.
These claims can be fast tracked. We have been following this course for
over a year and routinely see SSDI awarded in 4-6 weeks. Our local
Congressman has helped many vets with this issue.
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Reply;
You're correct. I do advise everyone to file simultaneously and with the
help (usually) of a good lawyer.
While the systems are based on different principles of disability and
having one is not a guarantee of eligibility for the other, it's my
experience that each system will take close notice of the other's award.
I also believe and I've heard from a number of attorneys that the SSA
Administrative Law Judges are likely to look more favorably at the
application of a veteran who has an honorable discharge and a good record
of military service. They tend to believe that the veteran is less likely
to be seeking benefits because they want to avoid work and more likely to
actually be disabled.
Thanks again for writing and reminding me of this important detail. Keep
up your good work helping veterans!
Jim;
I am a retired VA senior claims examiner. I am also a volunteer service
officer working with veterans much as you do. I have been reading your
articles for some months now and am impressed by your knowledge of the DVA
and it's policies and procedures. One of your articles had to do with a
veteran who was rated for PTSD and another disability combining to 60%.
You were absolutely correct that the regs do not allow for individual
unemployability unless the veteran has one disability at 60 or combined
disabilities at 70 with one at 40. However, there is also the regulation
which uses the policy of "common etiology" in certain cases. This would
allow a veteran, who is rated 50% for PTSD (combat related) and 10% for
tinnitus (due to acoustic trauma) with a combined rating of 60 to be
eligible for the TDIU. Anyway, keep up the good work. Frustrations with
the VBA are running high and there don't seem to be many answers. It's
great to know there are people out there trying to help the veterans and
not just giving them lip service.
Reply;
Thanks for your kind words! You're correct and I do try to advise folks
that the VA often has a fair amount of discretion in many ways. I do all I
can to impress my readers that the VA isn't out to get them. I hear from
many VA employees...just like you...who are dedicated to giving the
veteran exactly what the law allows. If the law isn't as good as it should
be, that's not the fault of the VBA, the Congress makes the law. In any
case, if a veteran remains civil and sticks to facts, I'm convinced they
get a lot further with any discretion that a rater may have than if they
come in at full tilt attack mode. Thanks for your service as a VBA
employee as well as your current volunteer work for veterans.
Jim;
DO YOU HAVE TO CLAIM OTHER INCOME IF YU ARE RECEIVING A MILITARY
DISABILITY BENEFIT? THE FACT OF THE QUESTION IS THIS----I KNOW A GUY WHO
IS ON MILITARY DISABILTY BENEFITS --HE EARNS MORE AT OTHER JOB THRU A
CONTRACT-(DELIVERING NEWSPAPERS) AND HE IS SUPPOSE TO TAKE CARE OF HIS
TAXES BUT DOESNT DO TO RECIEVING MILITARY BENEFITS HE EARNS $1000 A MONTH
DELIVERING NEWSPAPERS AND $920 ODD FROM MILITARY DISABILITY IS THIS LEGAL
TO DO???????
Reply;
In most instances, if you earn income, you pay taxes on it. A VA
disability payment is not taxable itself. However, having a VA disability
income has no effect on any other income a veteran may have. If a person
isn't sure if they are supposed to pay taxes on any money they receive,
they should speak with the IRS.
Jim;
In volume 6 of your mailbag for 2008 on VAWatchdog.org, I believe you may
have given incorrect or incomplete advice to the mother of the Army
specialist who tested positive for marijuana use.
You stated, "In time he will be able to petition his branch of service and
request that his discharge be issued as honorable. If his civilian life
shows that he has overcome the mistakes he made and that he is a good
American with no further criminal record, he stands a good chance of
ending up with an honorable discharge."
This may leave the mother and her son with the impression that he can just
accept an other than honorable discharge and in time apply for an upgrade
based upon his civilian life after service. This is not so.
While a good record after service might hold sway on some members of the
board, that is not enough in and of itself to obtain an upgrade. There are
only two reasons the character of a discharge can be upgraded. Those two
reasons are error and inequity.
The discharge must either have been issued in error or this particular
soldier's discharge was inequitably executed. See
http://arba.army.pentagon.mil/adrb-faq.cfm.
As the FAQ section of the Board's website describes, equity is applying
the rules and regulations equally to the same set of circumstances. Error,
or impropriety, is whether the Army followed its own rules and regulations
in processing the discharge.
The soldier in question, once he becomes a veteran, can certainly apply
for an upgrade but not based upon his civilian life. If he can prove the
Army treated him differently than they have treated soldiers more
liberally in the same circumstance before, during, and/or after his case
then he will stand a chance of an upgrade.
If he can show in his discharge review argument that the Army did not
properly follow their own rules and regulations in processing his
discharge then he stands a good chance of winning an upgrade. However, the
burden of proof is upon this soldier/veteran. As one who has filed
applications for review and corrections, I can tell you the percentage of
upgrades is small.
Reply;
Thanks very much for that input. I really appreciate you taking the time
to alert me. I depend on my readers to point out these things that they
have experience in...I learn, pass it on and we're all better for it. I
was relying on my experiences with VA. VA has a wide range of options open
to them when deciding if a Veteran will or won't be granted access to
disability benefits.
The good news is that mom wrote me back a couple times after that and as
it happens, his command apparently decided to cut him some slack. The
story seems that since he had been passing his tests and had really shaped
up, there's no further reprimand for him and he'll exit with an honorable
discharge and a hard life-lesson. Thanks again sir!
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Scott
Founder and Editor
VA Watchdog dot Org
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