"Toughing Out" an Illness Can Result in Lost VA Benefits

“Toughing Out” an Illness Can Result in Lost VA Benefits

“Toughing Out” an Illness Can Result in Lost VA Benefits

Are you concerned about lost VA Benefits? In October 2022, the Supreme Court will consider an obscure rule that, in many cases, sharply limits VA back pay in disability cases.

The case is Arellano v. McDonough and involves a veteran diagnosed with PTSD in 1981 but did not apply for VA disability benefits until 2011. A VA regulation says a veteran can only get back pay for the time of service if they apply for benefits within one year of being discharged. The VA used this legal provision to deny Mr. Arellano back pay.

Because of this loophole, some disabled Veterans face a jarring catch-22. The disabilities that qualify them for benefits also prevent them from realizing they are entitled to government assistance and successfully navigating the burdensome application process within the one-year deadline for retroactive benefits.

The Supreme Court And Lost VA Benefits

The Supreme Court will answer three questions:

  1. Whether the rebuttable presumption that plaintiffs can bring a lawsuit against the government, even after the expiration of the statute of limitations under certain circumstances applies to the one-year statutory deadline in VA regulations (38 USC § 5110(b)(1) for seeking retroactive benefits, and
  1. If the presumption applies, whether the government has successfully disputed the view that the deadline can be flexible by showing Congress did not intend to allow for any flexibility, and
  1. If the government has not rebutted the presumption, whether this case should be sent back to the VA so it can consider whether Arellano’s particular circumstances justify an extension of the deadline.

Veterans can expect a decision about lost VA benefits sometime early next year.

Disability Benefits

Disability benefits for service-connected conditions like PTSD include monthly cash payments and free VA medical care. By definition, disabled veterans cannot work or at least cannot work full-time. Therefore, substantial monthly cash — about $3,000 a month for a 100% disability — is available. However, the VA rates disability on a scale between 0% and 100%, so compensation levels vary.

Usually, full benefits are enough to lift the veteran, and any dependents, out of poverty. Partial benefits make it much easier to pay monthly bills and enjoy a better quality of life. VA medical care benefits may be even more life-changing than the monthly stipend.

Many large VA hospitals are among the best medical facilities in the world. Furthermore, almost every large or medium-sized community in America has at least one or two satellite medical facilities, like clinics and day surgery centers.

Legal Representation For Veterans

Veterans without legal representation have had an increasingly challenging time obtaining these benefits. By law, veterans cannot have a lawyer represent them at the initial stage of the claims process. They may not know what their rights or responsibilities are regarding filing an appeal for denied claims.

However, once a claim is denied, a VA disability attorney can make all the difference in the outcome. As the above story demonstrates, a good VA disability lawyer will go to the Supreme Court if that is what it takes.

A phrase like “hiring a lawyer” is misleading, at least in VA disability cases. Most attorneys do not charge upfront legal fees in these matters or any fees at all from the veteran. VA disability lawyers who are successful in part or all of a claim can apply to the government to have their fees paid under the Equal Access to Justice Act (EAJA).

Applying for retroactive benefits is a different process. Sometimes lawyers take contingency fees in that situation. That means they only receive a percentage of the eventual winnings; if they lose, they get nothing. VA disability lawyers must balance making a living with avoiding taking any money out of pocket from a veteran.

Disability Rating System

When Veterans file disability claims, the VA usually schedules a Compensation and Pension (C&P) medical examination. A VA doctor runs medical tests — usually range-of-motion and cognitive ability-type tests — that determine symptoms and assigns a disability rating.

C&P examinations often have some issues. Several years ago, the VA switched to mostly contract physicians. These doctors may not have much expertise, particularly in a specific area.

A VA disability attorney may order an independent medical examination from a doctor who can spend more time with the veteran and use specialized expertise to make a diagnosis. Attorneys may also partner with vocational experts to determine what kind of impact the veteran’s

disability has on their employment. Obtaining this kind of evidence is one way a VA disability lawyer makes a huge difference in the outcome of an appeal.

Reach Out to Compassionate Attorneys

An attorney is a valuable partner in all phases of a disability claim. For a free consultation with an experienced Veterans disability lawyer, contact Cameron Firm, PC at 800-861-7262 or fill out the contact box on our website. We are here to represent Veterans nationwide.

This article is for educational and marketing purposes only. It does not create an attorney-client relationship.