Getting Veterans (VA) Disability for Lung Cancer
If you were in the U.S. military and received a lung cancer diagnosis during or after your service, you might be eligible for disability benefits. Lung cancer has several known risk factors, including exposure to radiation, asbestos, and Agent Orange. You can win veterans (VA) disability compensation by demonstrating that your military service caused your lung cancer.
How Do I Get Service Connected for My Lung Cancer?
Generally, a grant of VA disability benefits requires three things:
- An in-service event, injury, or illness;
- A current diagnosis by a medical professional; and
- A medical nexus, or link, between your in-service event, injury, or illness and your current diagnosis.
The VA disability attorneys at Chisholm Chisholm & Kilpatrick LTD can examine your personnel medical and service records to build the strongest case on your behalf. We can gather evidence that connects your lung cancer diagnosis to your military service and prepare a compelling legal argument for VA.
Presumptive Service Connection
Presumptive service connection removes the need for a veteran to provide a nexus between their in-service event and their current disability. This means that veterans do not need to submit evidence proving that their condition was caused by service, because the presumption provides the nexus. For example, veterans who served in Vietnam and developed lung cancer are presumed to have been exposed to Agent Orange. Importantly, the veteran must meet certain service requirements—meaning they must have served in specified locations and time periods—in order to be eligible for presumptive service connection.
Secondary Service Connection
To establish secondary service connection, veterans must show that an already service-connected condition caused a subsequent condition. If VA agrees that your already service-connected condition led to the development of a secondary condition, then that secondary condition should be subject to compensation.
Will I Need to Participate in a Compensation and Pension (C&P) Exam?
Oftentimes, VA will request the veteran to undergo a compensation and pension (C&P) exam once a claim has been filed. This exam will usually be conducted by a VA examiner or a VA contracted examiner.
During the exam, the examiner might physically examine the veteran. With lung cancer, this will usually involve examining the veteran’s chest and possibly performing some testing. The examiner may also ask questions regarding the veteran’s cancer, their service, or the connection between the lung cancer and the veteran’s service.
The examiner should also be knowledgeable about the information in the veteran’s c-file. A c-file contains any documentation that VA has regarding a veteran’s case, including previously submitted claims and any medical and service records.
Veterans may also use a DBQ, or Disability Benefits Questionnaire, to help support their claim. This is a specific form created by VA with the aim of giving veterans a chance to address important aspects of their condition, such as symptoms, severity, and potential causes. The veteran may also speak to the relationship between their condition and other conditions. This form can be filled out by a VA doctor or a private physician.
Attendance is crucial when it comes to compensation and pension exams. If the veteran does not attend a C&P exam, VA may deny their claim. To schedule the exam, VA will usually call the veteran or send a letter to their most recent address. As such, it is crucial to make sure VA has the most up-to-date contact information to ensure that the veteran does not miss any C&P exam requests. If the veteran does miss an exam, they should contact VA as soon as possible to see if they can reschedule.
How Much Can I Receive in VA Disability Benefits for Lung Cancer?
Assuming you are granted benefits, VA will rate your disability from 0 to 100 percent, depending on the rating criteria used to measure your condition. Your disability rating determines the amount you receive in monthly benefits.
VA Disability Compensation Levels
As of December 1st, 2021 the VA disability rate benefit amounts are as follows:
- 0 percent disability rating: $0.00 per month
- 10 percent disability rating: $152.64 per month
- 20 percent disability rating: $301.74 per month
- 30 percent disability rating: $467.39 per month
- 40 percent disability rating: $673.28 per month
- 50 percent disability rating: $958.44 per month
- 60 percent disability rating: $1,214.03 per month
- 70 percent disability rating: $1,529.95 per month
- 80 percent disability rating: $1,778.43 per month
- 90 percent disability rating: $1,998.52 per month
- 100 percent disability rating: $3,332.06 per month
A disability rating of 30 percent or above qualifies you for additional benefits if you have qualifying dependents (e.g., spouse, children, or dependent parents).
Special Cancer Provision
VA has a special provision for service-connected cancer patients in its disability rating system. If you have an active cancer diagnosis that is service connected, you automatically qualify for a 100 percent disability rating. You will receive benefits at the 100 percent level for as long as your cancer is active and you are receiving treatment.
When you complete treatment and your cancer goes into remission, you will continue to receive benefits at the 100 percent level for an additional six months. After this, VA will typically require you to undergo a reexamination to determine the current status of your condition.
How is Lung Cancer Related to Military Burn Pits?
Military burn pits are areas of land in the Middle East where the U.S. Military burned the waste generated by military bases. The waste included plastics, rubber, medical waste, human waste, and more.
The pits were used in the post-9/11 era during Operation Iraqi Freedom, Operation Enduring Freedom, and Operation New Dawn. Although the use of burn pits was effective in reducing large quantities of waste the pits also emitted plumes of toxic smoke that caused adverse health effects for those exposed to them.
Specifically, the burn pits released toxins, carcinogens, smoke, and ash into the air, which then reached the skin, noses, and lungs of those in the vicinity. Tens of thousands of veterans have since reported lung diseases, such as lung cancer, and other ailments as a result of their exposure. Research has also indicated that one of the known chemical compounds which was found in Agent Orange, called TCDD, was also released by burn pits.
New Particulate Matter Presumption
As of August 2, 2021, VA is processing disability claims for asthma, rhinitis, and sinusitis on a presumptive basis based on presumed particulate matter exposures. Veterans will only be eligible for this presumption if they meet certain criteria, including service in Southwest Asia and other specified areas and manifestation of asthma, rhinitis, or sinusitis within 10 years of a qualifying period of military service. Many veterans exposed to burn pits during their service and developed one of these three conditions may be able to seek service connection under this new presumption.
Specifically, the presumption impacts veterans who served in Afghanistan, Uzbekistan, Syria, or Djibouti between September 19, 2001 and the present day. It also encompasses veterans who served between August 2, 1990 and the present in the Southwest Asia theater of operations. The Southwest Asia theater of operations refers to the following areas:
- Saudi Arabia
- The neutral zone between Iraq and Saudi Arabia
- The United Arab Emirates
- Gulf of Aden
- Gulf of Oman
- Persian Gulf
- Arabian Sea
- Red Sea
- The airspace above all these locations
Despite this new presumption, VA does not have a consistent approach to deciding these cases, so lay evidence from veterans is key to winning burn pit claims. Often, VA does not have a way of proving veterans were near burn pits, so statements from the veteran themselves or buddy statements can help provide necessary details.
New Proposed Burn Pit Legislation 2021
As of 2021, there are several major bills currently pending in Congress, that deal with the toxic exposure caused by burn pits. These bills include:
- Conceding Our Veterans’ Exposure Now and Necessitating Training Act (COVENANT)
- Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act of 2021
- Veterans Burn Pit Exposure Recognition Act
- Toxic Exposure in the American Military Act (TEAM)
Any of these bills, if passed, would offer much needed relief to veterans suffering the toxic effects of burn pit exposure. Specifically, the COVENANT Act would make any form of respiratory cancer a presumptive condition. Lung cancer is a form of respiratory cancer, meaning it would become a presumptive condition if the bill were passed, thereby placing less of the burden of proof on the veteran in the claims process.
What Are Residuals of Lung Cancer and Can I Receive VA Disability Benefits for Them?
As mentioned above, if you are service connected for an active cancer, VA should automatically assign a 100 percent disability rating. This rating continues for as long as your cancer is active, and then for another six months following the successful completion of a treatment program, such as chemotherapy, radiation, or surgery.
However, even after a veteran’s lung cancer is in remission, the veteran may still suffer from residuals of their cancer. Veterans who experience cancer residuals are eligible to receive VA disability benefits for them. Below are some common residuals of lung cancer:
- Panic Attacks
- Shortness of breath
- Impaired lung function
This list is not exhaustive, however, and there are additional conditions which may be residuals of lung cancer.
There is an additional benefit available to veterans who are unable to work because of their condition, or residuals of their condition, called total disability based on individual unemployability (TDIU). This benefit compensates veterans at the 100 percent level, even if their combined disability rating may be less than that.
In order to be eligible for schedular TDIU, veterans must meet the criteria listed under 38 CFR § 4.16a. The criteria stipulate that veterans must have one condition rated at 60 percent minimum OR two conditions that can be combined to reach 70 percent, where one condition is at minimum 40 percent. If a veteran receives a rating for the residuals of lung cancer, they may meet the above criteria and be eligible for receive TDIU.
Do I Need a Lawyer to Pursue VA Disability Benefits for Lung Cancer?
Although you are free to apply for VA disability benefits on your own, having an accredited representative on your side can be beneficial. VA law is complex and nuanced, and winning a claim is not always a simple, cut-and-dry process. Many veterans receive a denial on their claim for benefits, despite having a documented medical condition and a seemingly strong case.
The attorneys at Chisholm Chisholm & Kilpatrick LTD have many years of experience securing VA disability benefits on behalf of our clients. We will handle the process for you and pursue your case aggressively. Do not risk leaving money on the table because you lacked adequate legal representation.
We offer free consultations, so call us today at 800-944-5144 to go over the details of your case.
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