Category Archives: Veterans and Disability

How Can the VA Reduce a 100%, Stabilized Rating?

This week’s blog post is answered by guest blogger Margaret Wadsworth, a regular contributor to Nolo and an attorney accredited by the VA to represent veterans.

Question: The VA has reduced my benefits. I am more than confident that this action is retaliation. Their reason for the reduction is ridiculous. The one examination I went to does not even come close to showing any change in my hand disability.

I have acquired federal regulations that specifically explain the rules of reducing a veteran’s disability compensation benefit. It appears the VA has bypassed these rules, in a hasty manner. The exam letter I received advised me that the comp and pension exam I would need to go to was just at the beginning of the very next week. And less than two months after the exam that they claimed was ordered as a mistake, I received a decision that my benefits would be lowered substantially.

The rating they reduced from 100% to 0% was a protected rating. It was protected as a stabilized rating, which has been at the same level for five years. It is also protected as a 100% rating, which can be reduced only after a re-examination has found there is a material improvement in the disability, and a material improvement in ability to function in life and work.

Furthermore, under 38 CFR 3.327(b)(2), the VA can’t send you to a re-examination if the disability has been as established as static or is of a permanent nature with no likelihood of improvement when the veteran’s symptoms haven’t shown improvement for five years or more.

I believe that this action is clearly retaliation for my self-advocating while attempting to attain a customized VA letter. I made an accommodation request for the letter, due to fact that the letter they wanted to provide me would not be equally beneficial to me as they are to other parties requesting special letters from the VA. Under laws I can make a section 504 request verbally, as I did. This accommodation request is a protected action under ADA law.

I don’t have time to go over the many past incidents I have had with the VA (one involving me initiating an ethics review. Even recently, I have had a request in for a new power wheelchair for over a year now. I have gotten nothing. I have been forced to use my one manual chair, because it’s all I have. The chronic soreness I feel throughout my body has risen dramatically since using a manual chair. It seems ironic that the evidence the VA is utilizing to reduce my benefits relies heavily on my use of a manual wheelchair, when I have been requesting a power chair from them for over a year now.

Answer: Thank you for your service, and I am sorry to hear of the ordeal you are going through.

If your disability is “static”, meaning there is no medical possibility whatsoever of any improvement, or if your disability has not improved at all in five years or longer, then the VA made an error in ordering a reexamination. However, although you have had your rating for five years, it receives only limited protection. For example, if your symptoms have shown medical improvement during those five years, and that medical improvement was more than temporary and lasted for a sustained period of time, the VA had the right to request the reexamination. But in such a situation, benefits can be reduced only if the reexamination report and your full medical history support the finding that the improvement is more than temporary.

Since the VA ordered a reexamination, the VA may have believed your condition had medically improved such that a reexamination was necessary to determine whether a decrease in your service-connected disability compensation was warranted. Since you were sent notice of this exam, even though the notice was very short, you were required to either reschedule or attend the exam in order to protect your benefit rate.

If for any reason you couldn’t attend the reexamination, the VA would have had the legal right to reduce and/or terminate your benefits, regardless of your disability rating or the fact that you had this rating for five years. Although generally a rating of 100% cannot be reduced unless the VA finds that your disability has materially improved and your ability to function in your life and work has increased, any rating can be reduced for failure to appear at, or reschedule, a reexamination.

If you attended the required reexamination, then your benefits were likely reduced based on the VA doctor’s finding that your condition had materially improved, as discussed above. You may want to contact a VA-certified attorney to evaluate the doctor’s report to determine if it is sufficient. Sometimes VA doctors do not have access to your full medical history when conducting a reexamination, in which case you can challenge the report. You can also challenge the report if it’s not thorough.

I would advise you to consult with a veterans disability attorney in order to have your case file reviewed for errors and to consider an appeal.

Regarding your request for a power wheelchair, I recommend you seek that assistance of a local Veterans Service Officer. See the VA Directory of VSO’s to find assistance in your area by visiting www. va.gov/vso/.

Regarding your Americans with Disabilities Act Section 504 request, I also recommend that you consult with a disability attorney to determine what your rights are and how to protect your interests. Good luck.

Margaret Wadsworth

How the DOMA Ruling Affects Children of Same-Sex Marriages

Question: I married my wife in a same-sex marriage ceremony in New York last year. We now live in California. My wife is on disability. Is my child now eligible for federal disability benefits?

Answer: The children of same-sex couples who marry may now be eligible for federal disability and retirement benefits, including Social Security dependents and survivors benefits, veterans dependents and survivors benefits, and military benefits. Eligibility depends on the type of benefit and either the state the marriage took place in, the state the family lives in, or the state the couple lived in when they got married – all three federal benefit programs have different rules. The good news is that a child with same-sex parents can get federal benefits even if the new parent hasn’t gone through a stepparent/second-parent adoption.

Social Security

Let’s look at Social Security first. The children of disabled, retired, or deceased individuals who were insured through Social Security are eligible for dependents and survivors benefits. This is true whether the child is a biological child, adopted child, or stepchild of the insured individual. For instance, if a woman gives birth to a child and then marries her lesbian partner (the “stepparent”), if the stepparent is collecting Social Security retirement or disability benefits, the child is eligible for a dependents benefit based on the stepparent’s Social Security record.

Dependents benefits. The amount of the dependents benefit for a child is 50% of the parent or stepparent’s monthly benefit, but if other individuals are receiving a monthly benefit, such as other children or a spouse, the amount will be less. To be eligible for dependents benefits, the child must have been a stepchild for at least one year before the child can apply for benefits (in other words, the parents must have been legally married for at least a year and live in a state that recognizes same-sex marriage before the child can apply for benefits). Read more about the requirements for dependents benefits.

Survivors benefits. The amount of the benefit for a surviving child is 75% of what the deceased parent or stepparent’s monthly benefit, but will be lower if other children or the surviving spouse shares in the benefit. To be eligible for survivors benefits, the child must have been a stepchild (with parents who were legally married) of the deceased parent for at least nine months before the stepparent’s death. There are some exceptions to this rule, however: if the death of the stepparent was accidental or the result of active military duty, or if the parents legally adopted the stepchild, the marriage can have lasted fewer than nine months. Read more about the requirements for survivors benefits.

Legal issues. A stepchild in a same-sex marriage is eligible for benefits only if he or she lives in a state that recognizes same-sex marriage as legal and only if the stepparent financially supports the stepchild. The insured stepparent does not need to officially adopt the child. However, Social Security considers a child to be a stepchild eligible for benefits only if the child’s natural or adoptive parent married an insured individual after the child was born. A child’s whose natural parent married a stepparent before the child was born is not considered a stepchild, except in the case where the child was conceived before the marriage occurred. So in the situation where a lesbian or gay couple marries and then one spouse has or adopts a child, the other spouse (the stepparent) will probably have to officially adopt the child for the child to be eligible for Social Security benefits based on the stepparent’s earnings record.

Veterans Benefits

The rules are a bit simpler for VA benefits. If a biological or adoptive parent of child marries a same-sex partner who is eligible for veterans benefits, the “stepchild” is eligible for benefits as long as he or she lives with the veteran (or lived with the veteran before the veteran’s death). A child is eligible for veterans dependents and survivors benefits based on a same-sex marriage if the state the veteran lived in at the time of marriage recognized same-sex marriage as legal or if the state the veteran lived in when he or she became eligible for veterans benefits recognizes same-sex marriage. This means family members are ineligible for benefits when the veteran and his or her spouse traveled to a state that recognized same-sex marriage for the purpose of getting married.

Unlike Social Security, children aren’t eligible for a monthly cash dependent benefit if their parents are disabled; instead, their parent will receive a higher disability compensation rate depending on the amount of children he or she has. Plus, children and stepchildren of veterans are eligible for dependents benefits that include educational benefits and health care through CHAMPVA. Children and stepchildren of deceased veterans are also eligible for survivors benefits, including disability indemnity compensation and death pension. See Nolo’s article on veterans benefits for same-sex spouses for more information.

Military Benefits

While children and stepchildren of active duty military members are not eligible for separate cash payments, some forms of the service member’s compensation will increase when a dependent is added to the family. But children and stepchildren of service members are eligible for TRICARE health benefits and other benefits.

For the purpose of military benefits, stepchildren count as dependents without needing to be adopted. The stepchild’s parents do need to be legally married, which, to the Department of Defense, means that the marriage took place in a state that allows same-sex marriage. See Nolo’s article on military benefits for same-sex spouses for more information.

Learn More

For more information on developments following the Windsor decision on the Defense of Marriage Act, see Nolo’s series of articles under The Supreme Court’s DOMA Decision.

Will I lose disability benefits if I receive compensation benefits?

Question: Will I lose my disability benefits if I start to receive compensation benefits?

Answer: You didn’t say what type of disability benefits you’re receiving, and what type of compensation benefits you might get soon, so I’ll try to address of all the possible situations you might be in.

If you are currently receiving Social Security disability benefits (SSDI), veterans disability compensation benefits will not decrease your benefit check (nor will any other VA benefit). Workers’ compensation benefits, on the other hand, will decrease your Social Security benefits — SSDI and workers’ comp benefits can’t total more than 80% of what you earned before you became disabled.

If you’re receiving SSI, most types of income will reduce your SSI check. This includes veterans disability compensation, workers’ compensation benefits, state temporary disability payments, military pensions, and most other veterans benefits, with a few exceptions (which I’ll list below).

Social Security treats all of these benefits as unearned income, and they will cause your SSI check to be decreased. The amount of your unearned income is simply subtracted from the federal SSI payment (sometimes $20 of the unearned income isn’t counted, depending on the benefit).

Now for the exceptions. The following VA benefits aren’t considered countable income and should not affect your SSI payment:

  • aid and attendance benefits
  • housebound benefits
  • benefits that are used to pay unusually high medical expenses
  • clothing allowance for those who use prosthetics or wheelchairs, and
  • payments made to children of Korean or Vietnam veterans for certain birth defects.

If you’re currently receiving private disability benefits from a long-term disability (LTD) insurance policy, whether or not workers’ compensation or veterans disability compensation will reduce your LTD payments (called “offsetting your benefits”) depends on what the language in your LTD policy says and whether both types of benefits are for the same disability.