Veterans' Advocate Jim Strickland answers questions from VA Watchdog dot Org 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...  To find an answer to a specific VA benefits question, use the VA Watchdog search engine... click here...  And, be sure to use Jim's:  "A to Z GUIDE OF VETERANS DISABILITY COMPENSATION BENEFITS" click here...  JIm's series for new vets, "Welcome Home," is also featured on Military.com. And, you can follow Jim on TWITTER here ...

-------------------------

-------------------------

by Jim Strickland

NOTE:  Letters in my Q&A columns 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 was approved for Army Retirement Last May (08) upon turning age 60 with 25 years combined Active and Reserve Duty (often 24/7). I am also a disable vet from action with the 3rd Marine Division in the Hill Battles 881 & 861 also for Khe Sanh during 19666-1967. Awarded 100% permanent PTSD, Diabetes II from Agent Orange, 3 purple hearts among other injuries; I am walking pharmacy at the VA.

During the process of filing for CRSC due to my 100% disability, I was first awarded 3 months Military Retirement, then CRSC Kicked in and eliminated tax. Up to that moment $8,000 was paid and approx $400 was taken out in taxes. We are now filing an 2008 extension due to a break in at our home and medical issues.

I was told we could get the $400 back that was taxed. How do we do this? Many thanks in getting back to me on this asap; the Oct 15 deadline is fast approaching.

Reply;

I replied to let you know that I don't usually try to respond to tax questions. I have no expert knowledge and have my own taxes done by a CPA. You tracked down the answer yourself and then took the time to share it with me so that others would know.

"I found out after several calls (being switched around, being kept on hold in the DFAS puzzle palace, finally landing in the Retro area) that we need to obtain a corrected 1099 from DFAS to collect retro tax that military retirement took while CRSC application was in the process of being approved. CRSC was newly implemented and a lot of confusion was happening. A lot of people who should know the score by now are still confused. This should help other vets in the same tax situation. Have a great day Jim."

We all thank you for that. Veterans helping veterans, sharing knowledge, makes our world a better place.

-------------------------

Jim;

Thanks to you, I completed a NOD and requested a DRO. I went to Phoenix regional for the Dro in May 2009 and found out that their tape recorder did not function properly so, no transcript. The Phoenix regional office wrote me to ask if I wanted another DRO. Since I have a useless DAV rep, he didn't return my many phone calls and I had only 15 days to respond about this matter; so I requested another DRO in Phoenix. I live 56 miles south of Tucson (about 300 miles from Phoenix) and requested travel pay which was denied. In reading our benefits for veterans, I saw that in general terms that I was eligible. Would you please inform me about this matter.
Once again, I thank you, my veteran-brother for all of your great advice to US Veterans!

Reply;

Unfortunately the VA only pays for travel for health care and not always then. When you elect to have a personal hearing, it's at your request...and your expense. While I understand that you aren't happy at having to have a 2nd hearing because of VA's faulty equipment, the same rule applies.

-------------------------

Jim;

I recently applied for an increase to my disabilities. Everything was going great and the Cleveland; Ohio VA Regional Office granted my increases. According to the VARO, I went from a 70% rating to 80% during the first round of awards. The VARO divided my request for increase into two rounds of appointments and awards. While waiting for the second award, I was sure the VARO would increase to 90% due to the disabilities still being reviewed. When I got my second award letter they had changed a few numbers to suit the calculation and insisted I was going to remain at 80%. I looked over everything they did and requested a re-comp of the rates.

My individual rates are 30, 30, 10, 10, 10, 10, 10, 10, 10, 10, and 10. Six of the 10% ratings are bilateral and thus require an additional Bilateral Factor. In the letter from the VARO they explained that my six bilateral conditions became 47%, plus a Bilateral Factor of 4.7 to make the final percent 51.7% rounded up to 52%.

This is where they (VARO, Ohio) do the funny math. They explained to me in this letter that my rates are 52, 30, 30, 10, 10, and 10, which equates to 82% rounded to 80% for a final disability rating.

What happen to the six 10’s? Shouldn't they have become 60% plus a Bilateral Factor? How does anyone get a Bilateral Factor of 4.7 from 60?

Reply;


It's no surprise to you that you've hit upon one of the trickier parts of VA math.

Let's begin with the Bilateral Factor rules:

38 CFR Book C Schedule for Rating Disabilities
Subpart A - General Policy in Rating
§4.26 Bilateral factor.

When a partial disability results from disease or injury of both
arms, or of both legs, or of paired skeletal muscles, the ratings for
the disabilities of the right and left sides will be combined as
usual, and 10 percent of this value will be added (i.e., not combined)
before proceeding with further combinations, or converting to degree
of disability. The bilateral factor will be applied to such bilateral
disabilities before other combinations are carried out and the rating
for such disabilities including the bilateral factor in this section
will be treated as 1 disability for the purpose of arranging in order
of severity and for all further combinations. For example, with
disabilities evaluated at 60 percent, 20 percent, 10 percent and 10
percent (the two 10’s representing bilateral disabilities), the order
of severity would be 60, 21 and 20. The 60 and 21 combine to 68
percent and the 68 and 20 to 74 percent, converted to 70 percent as
the final degree of disability.

(a) The use of the terms “arms” and “legs” is not intended to
distinguish between the arm, forearm and hand, or the thigh, leg, and
foot, but relates to the upper extremities and lower extremities as a
whole. Thus with a compensable disability of the right thigh, for
example, amputation, and one of the left foot, for example, pes
planus, the bilateral factor applies, and similarly whenever there are
compensable disabilities affecting use of paired extremities
regardless of location or specified type of impairment.

(b) The correct procedure when applying the bilateral factor to
disabilities affecting both upper extremities and both lower
extremities is to combine the ratings of the disabilities affecting
the 4 extremities in the order of their individual severity and apply
the bilateral factor by adding, not combining, 10 percent of the
combined value thus attained.

(c) The bilateral factor is not applicable unless there is partial
disability of compensable degree in each of 2 paired extremities, or
paired skeletal muscles.

You had 6, 10% conditions. Using the CRT that adds up to 47%. (The 6, 10's aren't 60%, you must use the CRT http://edocket.access.gpo.gov/cfr_2004/julqtr/38cfr4.25.htm 

Where did the 6, 10's go? Watch closely...

10 + 10 = 19 (2 tens)

10 + 19 = 27 ( 3 tens)

10 + 27 = 34 (4 tens)

10 + 34 = 41 (5 tens)

10 + 41 = 47 (6 tens accounted for)

The bilateral factor of 10% would then be 4.7 to = 51.7 rounding up to 52.

52 + 30 = 65 (Round up to 70) (The first 30)

70 + 30 = 79 (Round up to 80) (The second 30)

You told me, " They explained to me in this letter that my rates are 52, 30, 30, 10, 10, and 10, which equates to 82% rounded to 80% for a final disability rating."

I don't understand how anyone arrived at 52, 30, 30, 10, 10 and 10...in a setting of Bilateral Factor usage, the 10's would be the first ratings addressed just as as I did. However, the resulting number is the same. You're at 80%.

The good news...if you aren't employed because of your SC disabilities, is that you're now eligible to apply for 100% IU. Read up on the IU benefit in my A to Z Guide at http://jimstrickland912.com

How is it I'm smart enough to figure out all that math? I'm not.

I confess...I needed help. I turned to an expert: A friend who happens to be one of the finest RVSR's on the planet. I continue suggesting that we give the VA to him but so far, few are listening.

I asked him a few really dumb questions to start and after he finished laughing at me (I can hear sneering in an email) he finally was able to educate me.

"You must always do the bilateral factors first, no matter what. After you apply them to the table on 4.25, ADD (not combine) 10% of that amount. Thus, if it's 19%, you add 1.9, round it off, and then do the rest.

A common misunderstanding with people (vets, vsrs and rvsrs) is that simple addition is the way to go. Wrong.

The idea behind the table is that if your 10% disabled, that means you're 90% able and another 10% is really worth only 9% (10% of 90%). It's added to the original 10% and you are now 19% disabled. That rounds up to 20%.

The only thing about the system that isn't always in the veteran's favor is that rounding (up or down) to the nearest 10% usually takes place at the end. But when you're doing the individual stuff, it rounds each time. This can be an
advantage and a disadvantage depending on the circumstances presented.

Imagine that you're in the 6, 10% ratings deal:

10 +10 = 19

19 + 10 = 19 + (10% of 81) = 19 + 8.1 = 27.1

27.1 + 10 = 27.1 + (10% of 72.9) = 27.1 + 7.29 = 34.39

34.39 + 10 = 34.39 + (10% of 65.61) = 34.39 + 6.651 = 41.041

41.041 + 10 = 40.041 + (10% of 59.959) = 40.041 + 5.9959 = 46.0369

The bilateral factor in this case is 4.6, not 4.7.

Maybe it's not significant in this case, but if it were the difference from 94 or 95%, it would mean a lot. The 94 is rounded down to 90%, 95 is rounded up.

It works against the vet in some cases, too, mainly when there are large evaluations of each extremity. However, most of the time, it's to the veteran's favor to round each time. Bilateral factors are generally many small percentages rather than a bunch of big ones. Finally, the amputation rule generally limits this stuff. In those cases, they're usually over 100% with special monthly compensation."

OK, he explained it to a point even I can understand it...sort of.

The bottom line is that the fuzzy math of the VA requires a lot of thought and attention to detail. Pay attention to it and keep a close eye on the guy who calculates your complex benefit. Nobody cares about the math in your claim like you do!

-------------------------

TOPICS: veterans, veterans' benefits, VA, Department of Veterans' Affairs, Jim Strickland, Veterans' Advocate,