Question:
Jim,
First off great site glad I found it. I ETS from active duty in 01 I was then awarded 30% for a injury. From 01 to present I have served in the Ohio National guard. Well I just got home from Iraq and while there I got messed up so when I got home I filed a claim well I was contacted Friday 31 oct 08 by the VA. The lady wanted to talk to me about the claim and then she asked me if I was on full time orders from OCT 01 to AUG 02 then again SEPT 04 to AUG 05 and then again MAY 06 to OCT 07. I said I was and at that time she told me I owed the VA approx 40 months of pay. I was so confused she told me when your on orders you do not get your disibility. I am lost I have no I deas wht to do I depend on this money for me and my family. She then told me I was given a 50 percent rating which would move me to 60% total and they are going to back date it to when I got home from Iraq. I just could not believe this was true and it looks like they are going with hold my monthley checks until they are paid back. I am waiting for my packet from them then I will know more. I just find it hard to believe it took them almost 6 years to tell me this.
Answer:
Your story is familiar to me. The basics aren't too hard to figure out. If you receive VA disability and you reenter active duty service, while on active duty you are no longer allowed to receive disability compensation. It's another of the "concurrent receipt" rules...often called the 'double dipping laws'. You are generally not allowed to get two simultaneous checks from the government.
So, you were supposed to notify VA when you went on active duty. They would have withheld your compensation until you were inactive and then started it back up on word from you. What's happened is you have had an "overpayment". The overpayment has created a "debt". The VA wants its money back and will take it from you in a "recoupment" action. Yes, those are the terms VA will use.
If you didn't know of these rules VA will fall back to tell you that "ignorance is no excuse". There is only one single way to manage this.
You will receive a letter that will advise you that VA is proposing to reduce your benefit. You will have 60 days to respond to this letter or the reduction is automatic.
You should, within 30 days (to be ahead of the game), write back to VA and using only *certified mail, return receipt* requested, advise them that you disagree with their proposal. If you will spend some time at my VA Benefits Guide (ttp://tinyurl.com/5wxapm)you will learn how to write an appropriate letter to the VA.
This step is critical to your future and you are well advised to pay close attention.
In your very brief letter you will tell VA that you disagree with their proposal. You must tell them, "I do not want you to lower my benefit until such time as my appeals are decided". Then you must tell them, "I want a personal hearing with the Committee on Waivers and Compromises and a de novo review of this case".
This will buy you some time to think things through.
In the same letter you tell them, "I do not agree with your conclusion that an overpayment has happened."
Don't say anything else, keep it very brief. don't tell them that you
didn't know, this isn't the time for that. This letter is only to buy
time and exercise your rights.
You will eventually have a hearing. At that hearing you will ask for the Committee on Waivers and Compromises be convened to hear you so that they may consider your request for a settlement. You should by then have completed a financial statement. The VA will provide you with that. Your defense will be "Undue financial hardship. Collection will seriously impair the debtor's ability to discharge the responsibility to provide himself/herself and his/her family with the basic necessities of life."
As all of this is ongoing, you should begin to prepare a budget that will be realistic should you lose.
I recognize that this is a shock to you. However, the law is clear that you should not have continued to receive VA benefits along with active duty pay. There is no argument to that fact. The VA will do all that's necessary to get back all or a part of that money and they will show little concern for you or your family.
I'm working with veterans today who decided that the rules didn't apply to them and they chose other ways to face their debt. The government is now withholding tax rebates, Social Security Benefits and has placed liens on bank accounts and property, One veteran has been handed off to a collection agency that has his arrears gathering 28% interest. His $20,000.00 debt is now some $28,000.00 with the penalties and interest.
It is most likely you will repay some or all of this. The only question is on your terms or theirs. If you fight smart, you'll feel minimal pain.
Jim Strickland's Mailbag: Volume #69 for 2008
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.
11.06.08
Question:
Jim,
hi, my name is LR, they lost my liver!!!
Answer:
Do you miss it? I've heard that leaving a trail of onions to your door will sometimes trick it into coming back.
(Yes, that's a real email. This is how I know when the moon is full. If my email starts to pile up with these, it's a sure bet there's a bright full moon in the sky.)
Question:
Jim,
My Rating Decision says Future Exam: NONE and Individual Unemployability My understanding is that this would imply Permanent and Total. I am receiving seventy percent and one hundred percent with IU. I have been receiving this for over ten years. I have never had another exam.
My Rating Decision does not say Permanent and Total.
I need CHAMPVA benefits for my wife and girls. CHAMPVA says I am not P&T because when they look at my Rating Decision it does not spell out Permanent and Total.
I have received a letter from VA stating that I am P&T. I have received a Notice Of Eligibility for CHAMPVA Benefits from VA. The VARO has told me on the phone I am P&T. CHAMPVA will accept none of this.
CHAMPVA will not have a normal conversation with me. They say they must follow their guidelines strickly. They sound like robots.
I cannot get the VARO to address this with CHAMPVA. And I cannot get CHAMPVA to talk to the VARO. They submit forms according to guidelines, got back a copy of my Rating Decision, and made their decision.
All I can think is that the Rating Decision, for some reason, is missing the words Permanent and Total....Or...I am not Permanent and Total and misunderstand the definition of it.
I don't know how to resolve this. I think it requires someone in upper management at the VA. Who I don't know.
I am putting in a NOD with CHAMPVA. I am thinking to request P&T from the VA. Maybe by requesting it, I will put the issue squarely in front of them and they will have to decide if I am already P&T. This may open a can of worms and I fear losing my compensation. Not that my condition has improved. My thinking is what if the VA standards for granting compensation have changed. What if with the war and all, they need all the money they can get...and so will look at my case and then cut my compensation even though my situation has not improved. Any feedback is appreciated. Thanks.
Answer:
You're experiencing one of the most frustrating encounters built into the system. As you know, The Department of Veterans Affairs (often referred to as "VA") is made up of many separate business units. The one you're dealing with is the Veterans Benefits Administration (VBA). It is further broken down into sub-units of Compensation and Pension, CHAMPVA, DEA and so on.
None of the separate business units communicate with the others in a similar language nor do they use similar rules. I know it's hard to believe, bear with me a moment.
When you receive a 100% rating (totally disabled, either schedular or IU) it may be permanent or it may be temporary. If it is temporary that means the VBA has some reason to believe there will be a significant improvement within a year or two. The improvement will demand a new (lower) rating. Thus, in a "future calendar" with your name on it, the VBA schedules an examination for you, or they at least note that a future exam will need to be scheduled.
If you are over 55 y/o or if there is reason to believe that you will not show improvement in your condition, you will not have a note in your calendar about an examination in the future...your condition is thus deemed as 'permanent'.
So, on your award letter it will tell you, "future examinations are scheduled" or it will say, "no future examinations are scheduled". The verbiage may vary a bit but the message is the same. Now, if you know how to use your VBA Secret Decoder Ring, you can see that "future exam" means temporary and that "no future exam" means permanent.
Your 100% permanent award letter also says, "the veteran's dependents are eligible to apply for Chapter 35 DEA benefits and CHAMPVA benefits...". Note it doesn't say that you are eligible for the benefits, only that you may apply.
But...VBA will not use the words "permanent" or "total" on an award letter. The award letter template in the antique computer they use does not have those words in it.
Are you confused yet? No? Just wait.
Down the street, over at the DEA Chapter 35 place and at the offices of the good folks at CHAMPVA, they have their own rules. Interestingly, the state you reside in may have the same rules.
Those rules require a document, on VBA letterhead, that will clearly state "Permanent", "Totally Disabled", "Service Connected", and also note the effective date of the rating and clearly show your address on the same page.
Almost every veteran who receives a 100% award letter and then applies for the other benefits is denied. In my case, my wife was denied CHAMPVA benefits because my award letter didn't state that I was "totally" disabled. My letter said 80% and IU at 100%. But they needed the words "totally disabled".
Then my son's DEA benefits were denied at about that same time because my 100% benefit wasn't "permanent". My award said "no future exams" but did not say "permanent". You see, each agency had an individual way to express the same concept but none could bend their own rules. It became even murkier because when I attempted to fix this with phone calls, I was bluntly informed that the DEA folks couldn't speak with me. The DEA was NOT my benefit, it was my son's. because of a need to protect his privacy and his rights, I was seen as an intruder to be repelled no matter what it took.
As you may guess, the same was true at CHAMPVA. It was my wife's benefit and I had no business snooping around. As usual with your VA, I was guilty and would have to prove my innocence.
I finally figured it out. It only took 6 months to get this done. I've called the Guinness Book of records people but they won't talk to me either...they don't believe anything can be done in only 6 months at VBA.
I wrote to my Regional Office and very simply spelled out exactly what I needed for them to write on letterhead for me. The planets must have been aligned because I got the right letter back in just a few short weeks. I then used that letter to appeal CHAMPVA over my wife's signature and then Chapter 35 DEA was appealed over my son's signature. They were each approved.
I've attached the letter I designed so that you may ask for a similar letter.
Also, this link will take you to the best explanation of your IU benefit available.
I hope I've helped a bit. As you prepare to write VA and get this worked out, please visit my benefits guide (http://tinyurl.com/5wxapm) to learn more of how to write a powerful letter to VA and so on.
