As about 3 million more people will soon be eligible to shop at military stores, officials are working to make sure these new customers will have access to bases, and that the shelves will be stocked.
Starting Jan. 1, all service-connected disabled Veterans, Purple Heart recipients, former prisoners of war and primary Veteran caregivers will be eligible to shop at commissaries and exchanges, and officials from three federal agencies are preparing the way.
The newly eligible customers will also be able to use certain morale, welfare and recreation activities.
It’s the largest patronage expansion in more than 60 years, said Virginia Penrod, principal deputy assistant secretary of defense for manpower and reserve affairs, who spoke at a recent meeting of the American Logistics Association.
The departments of Defense, Veterans Affairs, and Homeland Security have been planning for the expansion for more than six months, with four teams totaling about 70 people. Among other things, they’ve decided how the new customers will get access to military installations and to the stores; assessed the impact on the stores, and have been making plans to ensure enough products get to the shelves in the right assortment.
The fiscal 2019 National Defense Authorization Act expanded the pool of eligible shoppers. Because the expansion also applies to Coast Guard facilities, the Department of Homeland Security has been involved.
The law also included Medal of Honor recipients, but they already had shopping privileges. Previously, Veterans with 100 percent service-connected disabilities were able to shop; now all with service-connected disabilities can shop. The benefit extends to MWR programs that are “revenue-generating facilities,” according to the law.
The expansion is about a 50 percent increase in customers. Currently, about 6 million total households are eligible for the benefit; this adds 3 million, said Justin Hall, director of the DoD office of MWR and Resale Policy. “That’s a huge lift across the entire system.” he said.
Officials have been mapping out the areas, using VA statistics, where there may be more of an impact on the stores. The impact assessments generally show there will be a low to moderate impact on military stores overall, said Penrod. But she called on representatives of industry for their help to make sure the supply chain “remains responsive to the increased sales volume to ensure no out of stock situations occur” at stores in states with high populations of disabled Veterans and in states with higher cost of living.
States with a higher population density of disabled Veterans are Florida, Texas and California, said Barry Patrick, in the DoD office of resale policy. High cost areas were identified as Hawaii; Alaska, California; the Washington metropolitan area; New York; New Jersey and Washington state, he said.
These new shoppers generally don’t have access to military bases. Officials have decided the best form of identification for these groups:
- Disabled and other eligible Veterans: For access into the installation, and for access to the stores, they’ll use the Veterans health ID card, Patrick said. Officials are working to enable technology at the front gate to scan those Veteran cards, and will start scanning the cards in October, he said. Commissary officials are working on adjusting their technology to enable systems to read the Veterans health ID card.
- Caregivers: The process will be different, initially, Patrick said, since they’re not directly affiliated with DoD or VA other than through their annual appointment to be a caregiver. The benefit applies to the primary caregiver of wounded/injured Veterans who are registered in the Department of Veterans Affairs caregiver program. Beginning in October, the VA will post a memo to VA.gov for caregivers, to be used for access at the front gate, along with driver’s license or other authorized form of ID. The VA process will later transition to a caregiver-type ID card, which will have scanning swipe capability, he said.
Currently there are about 30,000 VA caregivers who will qualify for this benefit, but over the next several years the number could potentially grow to about 250,000, Patrick noted.
Credit card fee
These new customers will pay a fee for using a credit card at commissaries, except for the military resale system’s Military Star card. The amount of the fee has not yet been determined. By law, this expansion can’t include extra costs associated with using credit cards in commissaries; the cost must be passed on to the customer. Except for the Military Star card, credit card companies charge transaction fees to retailers when customers use their credit cards.
There will be a flag built into the system at commissaries so that when the card is swiped the fee will be charged.
The fee applies only to new patrons using credit cards in commissaries, not to Medal of Honor recipients or others who were previously authorized to shop. New customers can avoid the fees by paying by cash, check or using the Military Star card. It only applies at the commissary, which is funded primarily by taxpayer dollars.
The DoD resale community has been working together to estimate the number of likely shoppers by location, and the merchandise categories that will interest those shoppers. For example, the Army and Air Force Exchange Service will be adjusting its inventory by location, said Chris Ward, spokesman for AAFES. “Extending the brick-and-mortar military exchange benefit to all disabled Veterans is not expected to require material investments in facilities or technology,” he said.
Patrick said officials will launch an information campaign to get out the word about the new benefit to the new customers, but also to installation officials.
What is the Post-9/11 GI Bill?
The Post-9/11 GI Bill is a generous education benefit for the latest generation of service members and Veterans. It includes payment of tuition and fees, a monthly housing allowance and a stipend for textbooks and supplies for up to 36 months. The GI Bill traces its history back to World War II when the Servicemen’s Readjustment Act was enacted to provide education and training, home loan guarantee and other benefits for Veterans. Revamped several times to aid Veterans of war and peacetime, the GI Bill as we know it was signed into law by President George W. Bush in 2008 and went into effect the following year. Portions of the GI Bill were updated again in 2017 under the Harry W. Colmery Veterans Educational Assistance Act, better known as the “Forever GI Bill.”
Who is eligible for the GI Bill?
If you have served on active duty for at least 90 days since Sept. 10, 2001, you are eligible for Post-9/11 GI Bill benefits — whether you’re still in the military or have already separated with an honorable discharge. The amount of time you spent on active duty determines the percentage of total benefits you can receive.
Right now, the VA uses this scale to determine eligibility:
- 100 percent: 36 months or more, or at least 30 continuous days and discharged due to service-connected disability
- 90 percent: At least 30 months, less than 36 months
- 80 percent: At least 24 months, less than 30 months
- 70 percent: At least 18 months, less than 24 months
- 60 percent: At least 12 months, less than 18 months
- 50 percent: At least 6 months, less than 12 months
- 40 percent: At least 90 days, less than 6 months
- No benefit: Less than 90 days
Don’t worry about memorizing this, though, because it’s about to change in August 2020 when a portion of the Forever GI Bill goes into effect. At that point, the same 90-days-to-six-month window will equal to 50 percent of total benefits. Service members with at least six months and less than 18 months of service will be eligible for 60 percent of benefits.
Children or spouses of service members who died in the line of duty on or after 9/11 may also be eligible to use the GI Bill to further their education through the Marine Gunnery John David Fry Scholarship Program. These benefits are available at the 100-percent level to children between age 18 and 33 and spouses who have not remarried for 15 years after the service member’s death.
How to apply for your GI Bill
You can apply for GI Bill benefits online or in person at a VA regional office near you. You can also call 1-888-GI BILL-1 to ask the VA to mail an application directly to you.
The application process is simple, especially if you do it online. The form will ask you for information about your military background, education history and the school you want to attend. It also asks for your Social Security and bank account numbers, so make sure you have those handy, too. (While the tuition and fee payments go directly to the schools, the housing and textbook allowances go straight to you.)
If you’re feeling nervous about the process, you can also talk to the school certifying official at your college. This person typically works in the school’s registrar’s office or financial aid department and will be able to walk you through the application.
GI Bill certificate of eligibility
Once you apply for your benefits, the VA will send you a certificate of eligibility that spells out exactly what you are eligible to receive. This is the document you’ll present to your school when you enroll.
If your tuition payments are ever delayed, your certificate of eligibility acts as proof that payment is coming, meaning your school can’t charge you late fees or impose other restrictions when there’s an outstanding balance on your account through no fault of your own.
Keep in mind that it may take a while for the VA to issue your certificate of eligibility to you. In the meantime, you can log into your eBenefits account to keep track of things.
How much does the GI Bill pay for school?
The Post-9/11 GI Bill includes payment of tuition and fees, a monthly housing allowance and a stipend for textbooks and supplies.
For students attending public colleges and universities, the GI Bill covers all tuition and fees at the in-state rate, but it may not have the same reach at a private or for-profit school. The national maximum at such schools will be $24,476.79 for the 2019-2020 school year and generally increases slightly each year.
If the GI Bill doesn’t cover the full cost of your education, see if your school participates in the Yellow Ribbon program. This is an agreement schools make with the VA to split school costs not covered by the GI Bill, reducing or eliminating the amount students must pay themselves. Currently, only Veterans and surviving dependents of service members are eligible for the program, though this will extend to active-duty troops in August 2022.
A lot of schools participate in this program, including prestigious Ivy League institutions. To see if your school is part of the Yellow Ribbon Program, check out the interactive map on VA’s website.
Should I use my GI Bill while on active duty?
You can, provided you meet the minimum service requirements. But should you?
If you use your GI Bill benefits to pay for school while on active duty, you will not receive a monthly housing stipend from the GI Bill in addition to the housing allowance you’re already receiving from the military. Depending on which school you attend, that housing stipend could be worth as much as the tuition coverage and possibly more. Therefore, your GI Bill benefits will end up amounting to much less than what you would receive after separating from the military.
Still, the choice is yours.
The GI Bill housing allowance.
Your monthly housing stipend depends on the percentage level of benefits you’re eligible for and how many courses you’re taking.
The VA uses the Department of Defense Basic Allowance for Housing, or BAH, rates to calculate how much you will receive. Right now, this is the cost of living wherever the main campus of your school is located — not where you live — at the amount that an E5 with dependents would receive in that area. (Your own rank has no bearing on the total amount you receive.)
Under the Forever GI Bill, however, housing allowances will be determined by the location of the campus where a student takes the most classes. So, that means if you take classes at a satellite campus miles — or even states — away from the school’s main headquarters, your monthly stipend will better reflect your cost of living. The VA is expected to roll this out in December 2019.
The VA has already done a lot of the math for you through their GI Bill Comparison Tool. Simply search by school name or type and click on the results to see how much you’d receive each month.
A few things to remember:
If you are pursuing a degree entirely online, you will only receive half of the national BAH average. For the 2019-2020 school year, that amounts to $894.50 per month. Some experts recommend taking at least one class in person if you can, so you can get the flexibility of attending school online with the cash benefits of attending on campus.
If you’re attending school half time or less or are a dependent using GI Bill benefits that have been transferred to you from a service member, you are not eligible for this part of the benefit.
How to change schools with the GI Bill
Changing schools once you’ve already started using the GI Bill is much like applying for the GI Bill in the first place. You’ll need to provide basic information about your military service, education history and the school you want to go to, in addition to your Social Security and bank account numbers.
You can do this all online or in person at a VA regional office.
GI bill status and how to check it.
It’s important to maintain an active Ebenefits account so you can check on the status of your GI Bill benefits — how much you’ve used and how much you have left.
Transferring GI Bill to your dependents
If you’ve already finished your degree or just don’t see yourself ever going to school, you may want to consider transferring the GI Bill to your dependents.
To be eligible for transfer, you must have at least six years of service under your belt and must be able to serve four more after the transfer is approved by the DoD.
The DoD is slated to cap the transfer option at 16 years of service in January, though congressional lawmakers are working to kill the policy before it ever goes into effect.
If you are an active-duty Purple Heart recipient, disregard all of the above; you can transfer your GI Bill benefits to family members whenever you want.
A dependent child must be 18 or younger when the GI Bill benefits are transferred to them — or under 23 in special cases for approved programs. To use the GI Bill, the dependent must be 18 or a high school graduate.
If you decide you want to transfer your benefits, log onto DMDC milConnect to get started. At the top of the page, you’ll see a section labeled, “I want to.” Click on the “Transfer my education benefits” option and go from there.
Cool/alternative/creative ways to use the GI Bill
You have a little flexibility with the GI Bill in that it doesn’t have to just go toward a traditional education at a brick-and-mortar school. You can use it to take classes online or through correspondence.
You can get help starting your own business.
You can get a tutor to help you with your classes.
You can also use your benefits toward a flight school or apprenticeship program. Even licensing programs, certification tests and admission tests, such as the SAT or LSAT, are covered.
If you are a Veteran majoring in a STEM field — science, technology, engineering or math — you can apply for more GI Bill benefits, since many of these majors take more than the standard four years of college to complete. The Forever GI Bill set up the Edith Nourse Rogers STEM Scholarship fund that will give up to $30,000 to STEM students on a first-come, first-serve basis. Veterans and surviving dependents of deceased service members are eligible for this scholarship.
One of the most common VA Disabilities is hearing loss. And for that reason, one of the most commonly asked questions by Veterans is: What is the VA disability rate for hearing loss?
Ask this question to most VSOs, attorneys and your fellow Veterans, and you are going to get the wrong answer. Or, more properly said, the answer we have been taught for years, which happens to usually be wrong.
In fact, after 10 years of talking to thousands of Veterans like you, assigning a VA Disability rate for hearing loss is one of the most common errors the VA makes.
Why is that?
Well, for a long time, we Veterans have been taught that the VA rates hearing loss just by looking at a bunch of numbers, and matching them up to a chart. That’s the simple answer, and simplicity often reigns supreme in a complex world.
But in this case, the simple answer is the wrong answer.
In this post, I am going to walk you through 3 – CORRECT – steps to make sure that the VA disability rate for hearing loss which you are receiving is, in fact, the correct and highest rate you are entitled to.
How is the VA disability rate for hearing loss Currently Decided?
To understand whether you are getting the correct VA Disability rate for hearing loss, we need to first take a step back and understand what the whole point of an impairment rating is in the first place.
As I teach in my 5+ hour training video, “How to Prove the 4 Pillars of your VA Service Connection Claim“, the Impairment Rating is the 3rd Pillar. It is how the VA takes the frequency, chronicity and severity of your disability, considers how it affects you in your daily life with special focus on its impact on your ability to work, and converts that to a percentage for disability compensation purposes.
Over the years, I have noticed that a lot of Veterans put so a lot of energy into proving the 2nd Pillar – proving that their current disability is related to service – but lie exhausted on the field of battle and don’t fight as hard when it comes to the ratings.
And VA disability ratings for hearing loss are no exception to this observation. I teach, in great detail, how to maximize your VA Disability Rating for any condition by using the right evidence to prove the right facts in the “4 Pillars” Training Course, and won’t repeat them all here.
The first thing I teach, though, is to look at the VA rating tables to determine what symptoms – or manifestations of your disability – that you need to prove for that condition.
If you go to the VA hearing loss rating table, you would find that the VA focuses – in the rating table – on 2 very mechanical criteria.
The first is the “puretone audiometry test”, which is the test that measures the decibel levels of sound that you can hear at various sound frequencies. The VA first started using this test around 1987. This can get confusing, so let me see if I can help you understand the difference between frequency and decibels.
(As always, doctors and scientists, please forgive my over-simplification, here…if you have a better way of explaining this, I’m all ears. Pun Intended).
Sound is made by vibration of air waves, and every sound vibrates at different rates. The faster a sound vibrates, the higher it’s “frequency”. Frequencies are measure by “Hertz”, and the higher pitched a sound, the higher the frequency, and the higher the number of “Hertz” a sound measures at. Every sound has a different frequency…and the range of human hearing is from frequencies of 20 Hertz (Hz) to 20000 Hertz (Hz). The VA doesn’t care about the whole range of your hearing loss when it rates your condition.
It cares only about a few key ranges: 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz. Without getting too detailed, the VA hearing tests the level of sound you can hear at those 4 frequencies. It measures those levels in decibels.
What is a decibel? It’s the “loudness” of the sound at a particular frequency – and this loudness is measured in decibels. So the louder a sound, the higher the decibels. This chart has a GREAT listing of all the different decibel levels of particular military sounds – it won’t have any role in your VA Claim or Appeal, but it gives you an idea of how loud particular sounds we experienced in the military were.
The key number for rating purposes is the “Puretone Threshold Average” – as determined in your hearing test, it is the average decibel level you can hear at each of the 4 frequency levels above.
A couple points about this – these 4 frequencies the VA cares about are LOWER sound levels, and you will notice that they cover the bottom 20% of the human range of hearing. In simple words, the VA only compensates for low-frequency hearing loss. The problem is that most hearing loss begins at the high frequency levels, and can take years to begin to erode at the low frequency levels. So, by restricting hearing loss compensation to the lowest frequencies, the VA has created its most common reason for denial: hearing loss is due to degradation of hearing in older ages, not due to military service. Understanding that the VA does this not just for hearing loss but for EVERY medical condition (it rates conditions in such a way that those Veterans most needing the most help are excluded from compensation programs) is key to understanding the fundamental reasons that the VA disability claims process and system is, in my opinion, the equivalent of a car full of clowns doing a fire-drill at a traffic light. Allow my good friend “Elmo” to explain:
The second test that the VA uses to mechanically rate your condition on the VA Hearing Loss Rating Table is called “Speech Discrimination”. This also came into use in 1987. The test that the VA uses -the only one that is allowed – is the Maryland CNC Controlled Speech Discrimination test.
It’s not a widely used or accepted test. In fact, in 2014, the NCBI (National Center for Biotechnology Information) found that “The Maryland consonant-vowel nucleus-consonant (CNC) Test is routinely used in Veterans Administration medical centers, yet there is a paucity of published normative data for this test.” Loose Translation? The VA loves this test, even though there isn’t a lot of data to show that it means anything relevant.
What the Maryland CNC test does, in theory, is measure your ability to hear and recognize a variety of words at different Puretone Audio Thresholds (the number achieved in the first test). The result of this test is what is called a Speech Discrimination % – roughly stated, it is the percentage of words you recognized at different decibel levels.
So, now that we know those 2 numbers, we go to the VA Impairment Rating Tables at 38 CFR 4.85 and use the instructions at 4.85(e) to useTable VI to come up with a percentage of impairment. For each ear, find where the PTA and the Speech Discrimination Percentage intersect, and write down the Roman Numeral that appears. Then, turn to Table VII and go to the column corresponding to the Roman Numeral for the worse ear. Find where it intersects the row for the Roman Numeral for the better ear, and you have a percentage rating.
And, for most Veterans, VSOs, and attorneys, the analysis stops here.
But that is where we are missing out on higher ratings.
First, where do most hearing tests occur?
In a soundproof room with a nice set of headphones on so you can have the best chance of hearing the sound the examiner is testing for. How many of you work or live in sound-proof chambers? Even morticians – who work around the quietest people on earth – do not work or function in such a controlled environment.
Second, remember what I said above about how the VA’s tables are skewed to the lower frequency hearing loss that presents late in life?
How many of us left the Army at age 25, 30, 35 or 40 years old, and have difficult hearing our bosses at work, our clients on phone calls, etc. I will tell you that my hearing is largely high frequency hearing loss, which limits my ability to hear on the phone – that is one of the reasons I don’t take a lot of phone calls. I can’t hear very well on them, and I spend half the conversation saying “What? Who? Spell that for me?” It’s frustrating and embarrassing. Many of you have it much worse, and know what I’m talking about.
Those 2 situations have one thing in common – hearing loss has effects on our lives and our jobs that are no contemplated by the VA.
And it is in those “effects not contemplated” where the higher VA disability rates for hearing loss lie.
How the Martinak case changed Hearing Loss Evaluations.
The Martinak case was published in 2007 – and it’s a pretty important case. So important, in fact, that you cannot get a copy of it on the website of the Court of Appeals for Veterans Claims.
I’m not suggesting ANYTHING improper here – in fact, the Court is doing what it is supposed to do – complying with what Congress is telling it to do. So, to my friends and colleagues at the Court, please do not read this as an attack on or jab at the Court. It’s not. It’s a jab at our colleagues in the Legislative branch. Congress doesn’t require the Court to keep copies of case related records for this long. This is just another reason that Congress is part of the problem. It would take 6.5 minutes to write and pass a law that says that any Court reviewing a Veterans claim under Title 38 must maintain copies of the case files digitally for 50 years. Or 100 years. Digital storage is so cheap that I can’t fathom why we wouldn’t keep these records forever.
You can get a clean copy by looking up the case in a legal reporting service like Westlaw or Nexis. Here’s the citation: Martinak v. Mansfield, 27 Vet. App. 447 (2007). (I’m working with Lexis to see if I can publish a copy of the decision without violating my terms of service agreement with them…once I get permission, I will put a link here.)
The Martinak case considered whether the VA policy of conducting the Puretone Audiometry and Speech Discrimination Tests in a controlled soundproof environment was a valid and appropriate way of testing hearing loss.
It found that it was, but also found that the VA policy included another requirement: “[I]n addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak, 21 Vet. App 447 at 455 (2007).
What does that mean?
When you get a hearing test at the VA, get a copy of the C&P Exam Report (click here to learn how). Look at the report, and see if the doctor asked, or considered, the following factors:
- Impact of decreased hearing and difficulty understanding speech in an everyday work environment
- Dizziness related to your hearing or hearing loss (and its degree of frequency)
- Vertigo resulting from your hearing loss
- Ear pain
- Recurrent loss of balance,
- Social Isolation
- Workplace isolation
- Any other functional impacts other than #1.
If the only functional impact your hearing loss has is that it results in “decreased hearing and difficulty understanding speech in an everyday work environment” than you are likely stuck with the disability percentage that resulted from the 2 tests described above – those are, according to the law, the very functional effects that the Puretone Audiometry and the Maryland CNC Speech Discrimination Test measures.
But, if you have functional impact from your hearing loss that falls into any other category, then the examiners failure to consider those criteria renders the exam inadequate.
In short, if you have a functional impact from your hearing loss BEYOND decreased hearing and difficulty understanding speech, then as a matter of law, the VA rating criteria do NOT adequately compensate you for the symptoms of your hearing loss.
What to do when the VA exam doesn’t Adequately Compensate the Symptoms of your Hearing Loss.
If you have read the Veterans Law Blog for any amount of time, I think you know the answer.
Lay Evidence. Get more Lay Evidence. Get more Lay Evidence into your C-File.
Why? Well, here’s how the Veterans Court answered that question in a recent case called “Doucette“:
On the contrary, a hearing loss claimant could provide evidence of numerous symptoms, including—for purposes of example only—ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating, and the Board would be required to explain whether the rating criteria contemplate those functional effects. Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017).
How would the Board consider those criteria and how would it result in a higher disability rating? When the rating criteria for a given condition do not adequately compensate the Veteran for his or her unique symptomatology, then the Board is REQUIRED to consider whether an Extra-Schedular Rating (a rating above the percent that the schedule allows) is appropriate for that unique set of symptoms.
Click here to learn more about Extra-schedular ratings, and click here to learn more about Extra-schedular ratings in a Hearing Loss claim specifically.
Follow these 6 steps to work to get a higher VA disability rate for hearing loss using the Extra-Schedular criteria:
- Appeal the Ratings Decision that gave you NO or a LOW rating for your hearing loss – don’t seek reconsideration, that’s a trap that will screw you in the long run – by filing a Notice of Disagreement (aka, “NOD”).
- Make sure that your NOD includes a challenge to the credentials, competence, methods and conclusion of the VA Examiner – here’s a link to the language that I use (I update this language frequently, as court decisions give us more guidance on how to challenge junk science at the VA).
- While waiting for your DRO conference, get a copy of your C-file – specifically, you want a copy of the Hearing Examiner’s credentials and report. Here’s how to get a copy of your VA C-File – and how to USE it in your VA Claim or Appeal.
- Make sure your C-File is loaded with lay evidence showing the Frequency, Chronicity and Severity of the functional impact your hearing loss has on your daily life or daily work (use the criteria from the list above – anything OTHER than the first criteria…that one won’t help you get a higher rating). You can use the “4 Pillars Video Training Course” and the “5 Star Evidence Field Manual” to help you do this.
- When you get to the DRO Conference, argue that the lay evidence you provided shows that the functional impact of your hearing loss on your daily life is not considered by the VA impairment rating schedule, and ask that the VA consider assigning an extra-schedular rating under 38 CFR 3.321(b) for your hearing loss.
- Realize that the DRO that grants this claim is going to be a RARE creature – and be prepared to appeal this denial to the Board of Veterans Appeals (BVA). It is the BVA judge that is going to have to follow the rules set out by the CAVC in the Martinak and Doucette cases. If he or she doesn’t and denies you an extra-schedular rating, you should give serious consideration to contacting an attorney that has experience with appeals to the Veterans Court.
The VA has a whole bag of tricks for denying entitlement to VA TDIU benefits.
This, in my opinion, is really a tacky thing for the VA to do.
The Veterans seeking a TDIU rating are often earning wages below the poverty threshold – if they are earning anything at all. Veterans and their families often cannot survive without individual unemployability benefits. The last thing folks surviving on marginal employment, if they are employed at all, is the red tape of a federal government bureaucracy.
A common way that the VA denies the 100% rate for Veterans eligible for VATDIU benefits is by pretending the law is something it is not. The VA pretends you aren’t eligible for TDIU because you don’t have the right schedular rating percentages, ignoring that it does not matter what percentage rating you have. If you are unable to work – more specifically, you are unable to get and maintain substantially gainful employment because of a service connected disability, you are entitled to TDIU.
Another trick the VA uses in denying TDIU is denying your claim because you did not submit a VA Form 21-8940 with your claim for individual unemployability / TDIU.
Click here to learn why this is a B.S. reason for denying TDIU and how to fix it.
And, from what I am hearing from attorneys working in the new AMA system (AMA is the appeals reform statute that went into effect early in 2019) is that the VA has a whole new bag of tricks for denying TDIU depending on which of the three “lanes” you choose to challenge the denial of your service connected disability claim. More on that later.
One of the VA’s favorite reasons for denying TDIU is that the Veteran is able to perform sedentary labor. Here’s how it works.
In a situation where you are unable to get and keep substantially gainful employment because of your service connected disabilities, a medical examiner will often write in a C&P opinion that you are able to perform “sedentary labor.” The term is never defined, but the implication is clear: the C&P examiner thinks the Veteran can do some sort of “desk job.”
The VA examiner never says what kind of work can be done. He never explains how the Veteran has the skills, abilities and training to perform the specific type of work. He never explains whether there are such jobs available where the Veteran lives.
The VA believes, I suppose, that as long as the Veteran’s butt muscles are not the cause of his service-connected disability, he or she can sit at a desk and make a sustainable wage.
Here’s the thing. None of that is the law.
In fact, the term sedentary labor is meaningless in your VA TDIU benefits claims and appeals. And when I say meaningless, I mean that the VA should never use the words in a decision denying TDIU.
The term appears in the VA’s Adjudication Procedures Manual (aka, the M21 Manual), at Part IV, sbpt. ii, ch. 2, sec. F.2.d (beginning sometime in 2015 through the original writing of this post in July 2019). The M21 manual says that medical examiners may “comment regarding what kind of work tasks or work environments (if any), to include employment that is sedentary in nature and employment requiring physical labor,” Veterans can perform despite service-connected disabilities.
Problem is, the M21 isn’t law – although the VA will try to convince you that it is.
That’s not the whole problem though – the VA never defined what the term sedentary labor meant. Though completely in the government’s power to issue regulations that articulate a clean legal standard, the VA has never defined the term ‘sedentary labor.’
Instead – and this is rich – he asked the Veterans Court to define it for him using the “ordinary meaning” of the phrase. This is a classic example of a government agency “passing the buck.”
Well, the Veterans Court didn’t take the VA Office of General Counsel bait: it put the ball back in the VA’s court in a case known as Withers v. Wilkie.
The Court said:
“[T]he meaning of sedentary work must be determined from the particulars of the medical opinion in which it is used. That is, the Board must explain this meaning—to the extent that it is not apparent from the Board’s overall discussion of the opinion—as well as how the concept of sedentary work factors into the Veteran’s overall disability picture and vocational history, and the Veteran’s ability to secure or follow a substantially gainful occupation.”
In other words, the VA has to explain what it is about the individual Veteran’s disability and work history that leads the VA to believe that there is a particular type of “sedentary work” that he or she is capable of performing.
The Court went a step further and wrote that “absent such factual context however, the phrase [sedentary labor] can be regarded as conclusory and meaningless on its own.”
This is significant – if you are seeking VA TDIU benefits you should take note of the words “absent factual context.”
It has long been my philosophy of VA claims that the Veteran should take charge of providing the “factual context” for his or her own claim. Veterans should develop and give to the VA their own 5 Star Evidence establishing the elements of their particular claim.
To give the VA that factual context in a claim for VA TDIU benefits, there is one type of evidence that may be very helpful: a Vocational Rehabilitation expert opinion.
My law firm works with several experts – one of our favorites is a gentleman named Patrick Clifford.
Patrick is a Vocational Expert by trade. It is his job to look at your work history, training, skills and experience, compare that with what physical and mental abilities remain after the limitations imposed by your service-connected disabilities, and opine whether or not you are able to get and keep substantially gainful activity.
Watch the video below to see what Patrick says about sedentary labor in the context of a VA TDIU benefits claim.
If you want to talk to Patrick Clifford about preparing an expert opinion for your VA TDIU claim, he does work with Veterans directly.
The phrases “100% disabled,” “permanent and total VA disability ratings,” and “total VA disability rating” get thrown around a lot in Veterans disability benefits claims.
Problem is, that phrase doesn’t always mean the same thing to everyone. In fact it can mean several different things in at least 5 different types of service connection claims.
Let’s see if we can clear some of the confusion up.
5 things many Veterans don’t know about Total VA Disability Ratings.
1) There are MANY paths to a 100% rating.
The idea of a Total VA Disability Ratings start from the same point:
Total (100%) disability ratings will be assigned “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. § 3.340(a) (2013).
There are 5 ways to get there, though:
* Total VA Disability Based on 100% Schedular Rating. When the Veteran’s service-connected condition meets the 100% impairment rating requirements found in Table 4 of 38 CFR, they receive a 100% schedular rating).
* Total Disability Based on Schedular TDIU (When a Veteran has one service connected condition at 60%, or a total rating of 70% with one being at least 40%, the Veteran can request a 100% schedular TDIU rating).
* Total Disability Based on Extra-Schedular TDIU. (When a Veteran is service connected for one or more conditions, but is not able to secure substantial gainful employment, he/she can seek an extra-schedular TDIU rating of 100% even if their ratings don’t reach the schedular TDIU requirements above).
* Total Disability Based on an Extra Schedular Rating (if the VA schedule of ratings does not adequately compensate a Veteran’s service connected disability, they can seek a 100% extraschedular rating. This is NOT the same as extra-schedular TDIU)
* Temporary Total Disability based on hospitalization (generally speaking, this is awarded when a Veteran is hospitalized for a service-connected condition and for the 6 months following that hospitalization).
Don’t confuse these PATHS to a 100% rating with the designation that a Veteran has “permanent and total disability rating.” A lot of Veterans spend a lot of time trying to get to this designation, and while I’m not discouraging it (quite the contrary), it is an end state, not a path.
So, for example, a lot of Veterans email my law firm and ask to hire us to get a “permanent and total disability rating.”You do NOT need to have a 100% rating to get a permanent and total VA disability rating. This type of rating only happens when a Veteran has no chance of recovering or improving from their disability – it protects them from a reduction. So, if your goal is to get your VA disability properly rated at 100%, focus on getting that rating. Then focus on showing the VA that there is zero chance that you will recover or improve from that level to get the permanent and total VA disability designation.
2) A Claim for Increase is also a claim for TDIU when there is evidence of unemployability.
In the Rice v. Shinseki case (22 Vet. App. 447, 454-55 (2009)), the Federal Circuit held that a Veteran’s request for a higher disability rating, coupled with evidence indicating that the Veteran’s ability to work was “significantly impaired” by his or her service connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.
This type of claim is an inferred claim and should be considered by the VA Regional Office whether the Veteran specifically asks for it or not.
What does that mean in practical terms? Depends on where you are in your case.
When FILING a claim for increase, if you are unemployable because of the service-connected condition – regardless of the percentage, include VA Form 21-8940 and specify that you are seeking TDIU in addition to the claim for increase for that condition (include all service-connected conditions that impact your ability to get and keep substantially gainful employment).
When arguing that the VA wrongly denied a claim, look in your C-File for claims for increase where you also alleged you are unemployable or unable to get employment because of that condition, and then you could argue that the TDIU claim is reasonably raised by the record.
We are arguing the opposite in a case currently before the Board of Veterans Appeals – that a claim for TDIU, being a claim for increase, necessitates that the Board adjudicate the increased compensation claim as well as the TDIU claim.
NOTE: Don’t confuse the concept of unemployability with unemployment. This is a common mistake, and one that the BVA makes far more often than it should. Unemployability means the ability to get and keep substantially gainful employment. Unemployment is largely irrelevant to a TDIU claim – in fact, Veterans can still work and collect TDIU.
3) Extraschedular TDIU is NOT an Extra schedular Rating.
Adding MORE confusion to the mix, there are 2 totally different types of “Extra Schedular” ratings.
The first is a 38 CFR 3.321(b) Extra Schedular Rating.
This is available “in exceptional cases where the [normal schedule of ratings] is inadequate.” Thun v. Peake, 22 Vet.App. 111, 114 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
To determine whether a 3.321(b) extra schedular rating is warranted, the Board must determine that the schedular evaluation under which the Veteran is rated does not contemplate the [Veteran’s] level of disability and symptomatology, and that the Veteran has an “exceptional disability picture exhibited by factors such as ‘marked interference with employment’ and ‘frequent periods of hospitalization.’ “
The second type of extra-schedular rating is “Extra Schedular TDIU”.
Extra-schedular TDIU is governed by 38 CFR 4.16(b) – and is totally separate from the consideration of an extra-schedular rating under 3.321(b). See Kellar, 6 Vet.App. at 162; Stanton v. Brown, 5 Vet.App. 563, 564-70 (1993) (issue of extraschedular evaluation is separate from issue of TDIU rating)
A key difference – but not the only difference – is that Extra Schedular TDIU requires evidence that a Veteran is unemployable, but does NOT require proof that the Veteran is inadequately compensated by the normal schedule of ratings. a 3.321(b) extra schedular rating has nothing to do with unemployability – you merely need to prove that the normal Schedule of Ratings does not adequately compensate you for your service-connected disability.
4) The VA will deny your claim for TDIU – administratively – if you don’t file the 21-8940.
I see this happen SO much. Veteran claims unemployability or TDIU, and the VA actually catches the inferred claim.
They send a letter saying – essentially – send us a copy of VA Form 21-8940. The Vet never sends it in.
The VA has an internal policy of an administrative denial of a request for TDIU if the Veteran fails to send in VA Form 21-8940. And they usually don’t give a second warning.
If your request for TDIU was “administratively denied“, what can you do?
Send in the VA Form 21-8940 within a year of the VAs request for the VA Form 21-8940, and your claim should get processed properly (knowing full well that the VA rarely does what it should). Take a look at 38 USC 5103(b)(1) for the authority on this.
5) The VA will NOT give you an exam for a TDIU claim unless you specifically identify the medical condition that led to the Unemployability.
Hell, they may not even give you the exam anyway.
But the important point to note, here, is that you should list on VA Form 21-8940 every single medical condition that is, or that you believe should be, service-connected that you believe plays a role in rendering you unemployable.
They may not give you a CP exam on each of those conditions – but at least you’ve laid the groundwork for arguing later that the VA failed to fulfill its Duty to Assist if it denies your claim.
And, by the way, in about half of the cases where the VA says that the Veteran never submitted a VA Form 21-8940, I’ve found that they have already submitted at least one copy of the Form.
How do you find out if you submitted one and the VA is just not seeing it?
Get a copy of your C-File: it’s the most important document in your VA Claim.
And check out the TDIU Field Manual and TDIU training package at the Veterans Law Blog store.
An Overview of Anxiety Disorders in Veterans
Some Veterans develop anxiety disorder after experiencing trauma, or during high-stress situations, such as the transition from military to civilian life. Feeling anxious from stress is a normal part of life, and everyone endures stress from time to time. However, severe anxiety in Veterans is not temporary. Anxiety after military service can be long-lasting.
Severe anxiety in Veterans is common and there are help and treatment for anxiety and anxiety related issues. There are also VA disability benefits available to Veterans as well for anxiety disorders. In today’s post, we will go over some of the different types of anxiety disorder and their symptoms.
General Anxiety Disorder
General Anxiety Disorder (GAD) is most common among Veterans who were involved in a conflict. This anxiety disorder is characterized by excessive, persistent worrying that is hard to control, and by psychological and physical symptoms of anxiety that together, can cause significant personal distress and impairment to everyday functions. Some symptoms of GAD include:
- Poor sleep
- Being irritable
- Difficulty concentrating
- Physical pain in the neck, shoulders, and back
Panic Attacks and Panic Disorder
Panic attacks are intense periods of fear or feelings of doom that develop over a short time. Panic attacks are associated with sudden overwhelming fear, chest pain, and shortness of breath, sweating, and sometimes a feeling of being detached from the world.
Panic disorder involves recurrent panic attacks along with the constant fear of having panic attacks in the future and avoiding situations in which a panic attack may arise.
Social Anxiety Disorder
Social Anxiety Disorder can also be referred to as “social phobia”. Veterans who experience frequent and unending fear of social situations or situations where they are expected to perform in some way may be suffering from a social anxiety disorder. Veterans may also experience fear in appearing anxious or acting in a way that will produce embarrassment or humiliation. These symptoms can considerably interfere with a Veteran’s work life, relationships and normal day to day living.
A specific phobia typically involves a strong fear and avoidance of one particular type of object or situation. Unlike panic disorders and social anxiety, there is no fear of a panic attack occurring or fear of humiliation or embarrassment, rather a fear of direct exposure to the phobia causes a panic-like reaction. With a specific phobia, the fear is always out of proportion to the real danger posed by the object or situation. Typically, the fear and avoidance are strong enough to interfere with a Veteran’s normal routine, work and relationships. Agoraphobia is a common specific phobia that most Veterans with an anxiety disorder encounter. Agoraphobia is the extreme or irrational fear of entering an open crowded place, of leaving one’s own home, or of being in a place from which escape is difficult.
VA Disability for Anxiety Disorders
The VA uses a rating schedule that determines compensation for mental disorders called the general rating formula for mental disorders. This disability rating schedule for mental disorders ranges from 0, 10, 30, 50, 70 and 100 percent rating. These ratings are based upon severity and occupational impairment. It is important to note that all mental health conditions are evaluated using the same rating criteria. This means that a Veteran can only be rated for mental health disability to avoid the VA’s rule against pyramiding.
If you are a Veteran or know of a Veteran who is suffering from an anxiety disorder, the good news is that there are help and resources available. Click this link for a list of resources provided by the VA.
VA Benefits for Hearing Loss, Tinnitus, etc Explained
Some of the most common disabilities among Veterans are hearing conditions. These conditions include tinnitus, hearing loss, and deafness. Many Veterans are exposed to high volumes of noise for prolonged periods of time while in service. This noise exposure can cause a plethora of issues which include noise-induced hearing loss or tinnitus. In fact, tinnitus is the number one most commonly claimed condition by Veterans with over 1.6 million claims according to the Veteran’s Benefits Administration Annual Benefits Report. Tinnitus is a condition which causes noise in your ears. This noise can differ from person to person, with some individuals reporting ringing, buzzing, roaring, or clicking. Tinnitus can begin gradually or suddenly and can occur months or even years after a Veteran has had damage occur. Tinnitus can decrease your quality of life by causing depression, sleep disturbance, or lack of concentration.
Hearing conditions such as noise-induced hearing loss can be caused by both a one-time exposure or by a long term exposure. Not only do these conditions affect your ability to hear but they can significantly impact your day to day life. Hearing loss that interrupts your ability to communicate or understand speech in daily situations can cause adverse social outcomes and negatively impact your ability to socialize. It can also affect your ability to perform cognitively and minimize your ability to concentrate on tasks.
How Does Noise Exposure Affect Me?
Now, that we have some background information on hearing conditions, we are going to discuss the impact of noise exposure directly. For example, a Veteran, while in service, suffered for many years from exposure to extremely loud noises from mortars, small arms, and other gunfire now suffers from tinnitus and hearing loss. Additionally, this Veteran was a paratrooper and completed a number of jumps. It is also important to recognize that the Veteran, a paratrooper, spent numerous hours within a military aircraft.
Table 1 and 2 below depict the amount of permissible noise allowed in the workplace according to the Occupational Safety and Health Administration and the peak sound pressure level range of different weapons. As you can see, the weapons emit high levels of noise, in fact, they emit much higher levels of noise than permissible in a workplace setting.
What the Professionals Say about Noise Exposure
Table 1: Amount of permissible noise exposure allowed in the workplace:
Duration per day (hour)
Sound level (Dba)
¼ or less
 Adapted from OSHA 2014. Standards. US Dept Labor: Occupational Noise Exposure [Online]. Available by Occupational Safety and Health Administration. https://www.osha.gov/SLTC/noisehearingconservation/index.html
Table 2: Peak sound pressure level range of different weapons:.
Peak sound pressure level range (dB)
9 mm luger
Light anti-tank weapon
Inside armored vehicle, continuous noise
 Adapted from Chen L, Brueck SE. Noise and lead exposure at an outdoor firing range – California. Health Hazard Evaluation report Sept 2011, and from Kramer WL. Gunfire noise and hearing. American Tinnitus Association. June 2002:14-15.
How it All Applies to the Military
The correlation between hearing loss and noise exposure is described by Jenica Su-ern Yong and De-Yun Wang in their article entitled, “Impact of Noise on Hearing in the Military” which reported that:
“The US Department of Defense published a medical surveillance monthly report on noise-induced hearing loss and it was found that noise-induced hearing injuries were more prevalent among combat-specific occupations (41.2 per 1000 person-years of active component military service) …Military aircraft personnel is not spared…In fighter planes, the noise level ranged from 97 to 104 dBA, in jet trainers the noise level was at 100 to 106 dBA and in transporter aircraft, the noise level was found to be between 88 to 101 dBA . In such settings, due to chronic noise exposure, pilots were found to exhibit hearing impairment .”
Using Table 1 in correlation with the article above, we can determine that the noise level produced by a fighter jet would only be permissible in the workplace for approximately 1-2 hours. Comparatively, 80 dBA is equivalent to an alarm clock; while 85 dBA is equivalent to the sound of city traffic from inside your car. Sounds reaching 106 dBA which are only permissible for a ½ hour to 1 hour can be compared to a jet taking off, a jackhammer, or a live rock concert. Alternatively, if you look at Table 2, you can see that the peak sound pressure generated by firearms is far greater than the permissible level of noise allowed in a workplace setting. Being exposed to that level of noise for prolonged amounts of time or repetitively can cause severe damage to your hearing.
What About Hearing Loss and Airborne Veterans?
Additionally, it is imperative to note that pilots demonstrated hearing impairment due to the noise exposure produced from military aircraft. Our Veteran from the earlier example would have also been subjected to chronic noise exposure within the aircraft itself while onboard to complete jumps. Sudden pressure changes, such as jumping out of an airplane, can be significantly damaging to the auditory system as well.
As we discussed above, the impact of these events can lead to serious effects on your day to day life by interfering with your ability to communicate, concentrate, and socialize. If you have suffered hearing loss or tinnitus due to your time in service, it is important to remember what is required to prove your claim. To establish service connection, you will need a diagnosis of a hearing condition, evidence of an event (or events) that caused the condition, and a medical opinion that links together both your current condition to the event that you experienced in service. For more information on filing a claim, speak with your local VSO.
Do You Have Hearing Loss But No Benefits from the VA?
A local man, who served our nation in uniform and is coping with the death of his wife, is now dealing with another emotional trauma.
“VA – they’ve been taking care of me for what, 75 years, and they’ve been phenomenal,” said Mario Salvi, referring to the United States Department of Veterans Affairs. “They’ve been great.”
But the VA now considers Salvi dead.
“It’s tough,” said Salvi through tears.
When Salvi’s wife, Geraldine, died in January, he said he followed the law and notified the VA of her passing. He told the government agency to take out the stipend relating to his wife. A few months later, a letter arrived addressed to Geraldine. It offered her condolences for her husband’s death.
“I jumped immediately on the telephone,” Salvi said. “That was an error that I was much alive.”
Since the VA listed him as deceased, the government agency reached into his bank account and confiscated six months worth of benefits paid to him after his supposed date of death.
Salvi, 93 years old, said it had been a nightmare. He depended on the nearly $1,500 a month he used to collect. Now that the VA took back his benefits, he said his bank account is overdrawn.
Salvi and his family are working on getting the nation he served proudly in uniform to admit its mistake. Salvi wants his name taken off the list of the deceased and have the money he deserves returned to him.
“At this point,” Salvi said, “nothing has been taking care of.”
Since the story aired, Sen. Rick Scott has expressed a willingness to help Salvi. In a statement, he said:
As a Veteran and member of the Senate Armed Services committee, taking care of military members, Veterans and their families is Senator Scott’s top priority. Senator Scott will always fight to support our nation’s Veterans and make sure they have every resource they need to succeed. Our office is reaching out to Mr. Salvi to help in any way that we can.
Gov. Tom Wolf signed into law Monday a first-of-its-kind measure providing tuition assistance to the spouse and family of Pennsylvania National Guard members upon their signing on for a six-year reenlistment.
This law, which Wolf dubbed the PA GI Bill," provides to National Guard members who re-enlist up to 10 semesters of tuition assistance for their spouse and/or family member toward earning an industrial certificate, associate or bachelor’s degree at most Pennsylvania colleges or universities.
It would cover the lesser of the cost of tuition or the in-state tuition rate set by the Pennsylvania State System of Higher Education, which last year was $3,858 a semester. The first grants from this program will be available starting with the fall semester of 2020. The 10 semesters can be divided up amongst a Guard members’ family members.
The measure could benefit up to 8,000 family members of Guardsmen, who themselves are eligible for tuition assistance through the Education Assistance Program with their initial service obligation of six years.
Prior to signing the bill surrounded by National Guard members and equipment, Wolf said, “I want all of you, members of the National Guard and family members, to know that while you have our backs, we have yours.”
While proud of the work that the Guard does, Wolf called the families of Guard members unsung heroes.
“They take on many extra roles and offer endless support to the service member whether at home or deployed,” he said. “The PA GI bill is one more way that we can support both the service members and their families.”
Lawmakers who assisted in crafting the bill also voiced their praise for the behind-the-scenes role played by families of the nearly 20,000 soldiers and airmen who serve in the Pennsylvania National Guard.
“Make no mistake. Guard families sacrifice just as much as their loved ones in the Guard,” said Rep. Stephen Barrar, R-Delaware County, the bill’s sponsor who worked with Rep. Chris Sainato, D-Lawrence County, to get this bill through the House of Representatives.
Getting Guard members to re-enlist and continue to apply the skills acquired through their training in service to the state and nation has posed a challenge as they complete their initial tour and have begun starting families.
“We needed an incentive for that reenlistment and that’s what this is,” said Sen. Mike Regan, R-Cumberland County, who championed the bill in the Senate along with freshman Sen. Lindsey Williams, D-Allegheny County. “Having this benefit will be something that will keep our high-level, highly trained Pennsylvania National Guardsmen in place and we all know it’s a family commitment.”
Wolf said the only state in the nation that offers anything similar is Minnesota but that state limits its tuition assistance to the service member’s spouse. Maj. Gen. Tony Carrelli, Pennsylvania’s adjutant general, said Pennsylvania is not likely to stand alone for long. He said he’s already been contacted by at least a dozen other states’ adjutant general asking to see how this new law is written.
“It’s a great bill,” Carrelli said. “It’s great for Pennsylvania to lead the way throughout the nation.”
Lawmakers are asking the Defense Department to hold off on a controversial education benefits change while they try and force a legislative fix.
The change, scheduled to roll out July 12, will bar long-serving troops from transferring the Post-9/11 GI Bill to their dependents — a move the Pentagon has said is necessary to preserve the benefit as a recruitment and retention tool.
Yet members of the House of Representatives Armed Service Committee voted unanimously in mid-June to throw out the new policy as part of the National Defense Authorization Act, with one member calling it “a truly lousy decision" by DoD.
But because the NDAA is unlikely to pass through Congress before the July 12 start date, 29 members of the committee have signed a letter to Acting Secretary of Defense Mark Esper, asking him to delay implementing the new policy — or do away with it entirely — to avoid “whiplash of a potential reversal" if the NDAA as it currently stands becomes law.
The Pentagon did not respond to request for comment by press time.
Currently, troops with at least six years of military service may transfer their GI Bill benefits to a spouse or child, provided they agree to serve for four more years. The impending policy change would end transfer options for service members with more than 16 years in uniform.
In the letter, signed by 23 House Democrats and six Republicans, lawmakers write, “We strongly disagree with this change in policy. It remains critically important to attract and retain the best-qualified individuals for military service and we believe it sends exactly the wrong message to some of our most seasoned service members to make them ineligible for incentives to continue their service to our nation.”
They have asked for a written response from the acting secretary before July 12.