Multiple Sclerosis (MS) and Amyotrophic Lateral Sclerosis (ALS) Claims at VA
- What is presumptive service connection?
Amyotrophic Lateral Sclerosis (ALS)
- What is ALS, or Lou Gherig’s disease?
- The ALS Presumption
- Why did VA create the ALS presumption?
- ALS Presumption Eligibility (Does it apply to Reservists and National Guard?)
- Is there a time limit for the ALS presumption?
Multiple Sclerosis (MS)
- What is MS, or Multiple Sclerosis?
- What causes MS?
- Time limit for the Multiple Sclerosis presumption
- MS symptoms within the 7-years of separation
- Does the MS presumption apply to Reservists and National Guard?
VA Ratings and Other VA Benefits for ALS & MS
- How VA rates ALS and MS
- Evidence for a Multiple Sclerosis (MS) Claim
- Special Monthly Compensation (SMC) for MS or ALS
- Total Disability based on Individual Unemployability (TDIU) for MS or ALS
- Specially Adapted Housing (SAH) and other VA benefits for MS or ALS
Maura Clancy: Good afternoon, everyone. Welcome to today’s Facebook Live discussion. My name is Maura Clancy. I’m here with Kerry Baker and we’re here today at Chisholm Chisholm and Kilpatrick. Today, we’re going to be talking about MS and ALS and the different ways to be service-connected for those conditions. There are a few acronyms that we’ll be using. So, we’ll be sure to get into the details about what those mean. But just as a preliminary note, please feel free to leave any questions or comments that you might have in the comments feed next to this video. We aren’t able to take every question that comes in, but if you have a question that we think we’d be able to answer during today’s discussion, we’d be happy to do that. We will also be posting any related materials that bear on the topics that we’re going to be talking about today, also in the comments feed. So, definitely, feel free to check out the feed and see if any of the materials that we post there would be helpful to you. And finally, don’t forget to visit our website at cck-law.com. That is where the materials– a lot of other materials that we have will be posted in addition to other videos and blog posts. So, we want to make everything available to you. And then in addition, we have some topics prepared for today. So, without further ado, Kerry, I’m going to be asking Kerry a lot of questions today about, as I said, ALS and MS. So, let’s start with a general discussion about presumptive service connection because this is an idea that comes into play when we talk about MS and ALS. So, can you briefly tell us first what presumptive service connection is and what the significance of it is?
Kerry Baker: All right. So, presumptive service connection in general– to better understand presumptive service connection, it’s better to understand what you normally require for service connection. Generally, that’s three elements and that is an event in-service that could be an injury, could be an exposure. Sometimes it could just be service and the instance of these two disabilities. The diagnosis of what you’re claiming and medical nexus between the two. Like presumption of service connection relieves one’s ability to have to submit that nexus, a medical link between the two. So, if all other boxes are checked, you don’t have a medical link between the MS or the ALS in this case, you won’t need one if the rest of the presumptive service connection provisions apply.
Maura: So, this is a really important topic because as Kerry said, it’s a lot easier to get service connection for a condition if it’s been recognized as a presumptive condition in the list somewhere. So, it removes the nexus element as Kerry said. And that’s usually where we see the most traction with claims. Usually, the in-service event can be easy to come by in terms of getting evidence of that. And usually the current disability is understood. But it’s usually getting that opinion to connect the two that can be difficult. So, in these cases, you don’t need that extra element, which is great. So, let’s first start off with talking about ALS. What do we mean by ALS? What does it stand for and what are the symptoms of that condition?
Kerry: So, ALS stands for amyotrophic lateral sclerosis. A lot of people know it as Lou Gehrig’s disease. And it– now, I’m obviously no medical doctor, so I can’t explain all the medical aspects of it. But it is simply a neuro-degenerative disease that will eventually leave you paralyzed from head to toe. And eventually, it’s a fatal disease. It’s pretty much– the life expectancy is normally a few years after you have it diagnosed. Some people have occasionally lived longer. But by that point in time, you’re usually paralyzed over your whole body.
Maura: So, needless to say, we’re talking about very severe–
Kerry: Extremely severe disability.
Maura: And effects.
Maura: And there’s a presumption for ALS.
Kerry: Right. So, the presumption for ALS is interesting. It’s not based on anything like exposure meters like MS. Anybody that served on active duty for the required amount of time and later contracts MS, VA will presume that that– I’m sorry. That later is diagnosed with ALS, VA will presume that that ALS began on active duty or somehow caused by active duty. And that’s it. So, there is no link. There’s no exposure requirement. So, it’s really one of the cleanest presumptions out there for the most part.
Maura: So, we’ll get more into the criteria after– what the only criteria are that you have to meet in order to satisfy that presumption and then eventually get service connection. But if you know, do you know why they decided to create the presumption of service connection for ALS?
Kerry: Yeah. I’m not a 100 percent up to speed on all the details of the history. But a number of years ago, VA was looking into multiple diseases. I believe it start– if I’m wrong in this, somebody please leave a note and tell me I’m wrong. But I believe it started with the Gulf War issues and they were looking at ALS in relation to that. And once all was said and done and the research was complete, they realized that ALS was higher among veterans who served on active duty period, regardless of where they served, when they served, what they may have been exposed to. And it was so much higher that once that report came out, the secretary of VA under his own authority decided to make ALS a presumptive service-connected disability for anybody that served on active duty in the military.
Maura: So, pretty much a lot of uncertainty about why it crops up so much in-service members might have led to the decision to make it a presumption.
Maura: I think it’s similar, in a way, to the presumptions that extend to veterans who were exposed to herbicides. There’s just no way to know whether a person was or wasn’t, or to what degree the exposure affected them later on. So, they just decided to say that across the Board, everyone should be entitled to the presumption because they’re not going to be able to figure out the specifics. And so that’s why they create things like that. Under what conditions can you not get service connection or be entitled to the presumption for service connection for ALS if you were a service member?
Kerry: Really good question. And the main one is if you were in the Reserves or National Guard, inactive duty, inactive duty for training, that type of thing, it does not count as active duty or the presumption of ALS. ALS in the regulations is not tied into any of the regulations concerning exposures to whatever, Agent Orange, any other type of exposure. It’s just tied to being in the military. But the wording and the regulation has been interpreted to be limited to active duty. And there’s a Federal Circuit Case Law that confirms that. So, that pretty much ends the debate on ALS. It has to be active duty. You can’t be reserves. You can’t be a National Guard.
Maura: And what about– is there a time limit or a time minimum that you have to have served for to be able to get the presumption?
Kerry: I want to say it’s 90 days or more on active duty. I hear rumors out there and they’re incorrect, usually that you have to serve for two years or one year. But I believe it’s 90 days of active duty and that does it.
Maura: And what about evidence that VA might try to produce that– rebuts the presumption? Is there any way that they could provide evidence that shows that ALS is attributable to something else and so the presumption wouldn’t extend to the veteran?
Kerry: Well, all presumptions are rebuttable. But it requires a higher level of evidence, significantly high in some circumstances to rebut that presumption. I have not personally ever seen that happen with ALS, where the veteran had the requisite amount of active duty, had to confirm diagnosis of ALS. I have yet to see that presumption rebutted in any case. And I would be quite surprised if– well, I wouldn’t be surprised if it’s happened. But if it has and you’re listening out there, that kind of case should be appealed immediately.
Maura: So, like Kerry said, presumptions can be rebutted. But there is a much higher evidentiary burden that’s placed on the government if they want to try to say that you aren’t entitled to the presumption. If you meet all the other parameters for it, they need to produce more evidence that’s a lot– at a more stringent standard than usual in-service connection cases. What about the time frame after service that ALS manifests? Is there a certain limitation? So, for instance, does it have to manifest within a certain amount of time after service or is it just whenever it comes up?
Kerry: Not currently. No time limit for ALS. And that’s a really big benefit for those– there are lots of things have time limits or at one point or another had time limits when you’re talking about presumptions. But no time limit for ALS.
Maura: Great. And just as a reminder to anyone who maybe has tuned in a little bit late. My name is Maura Clancy. I’m here with Kerry Baker. We’re here today at Chisholm Chisholm and Kilpatrick. We’re talking about ALS and MS and the presumptions of service connection that are extended to those disabilities. Please feel free to review any materials that we post in the comments section next to this video and to visit our website at cck-law.com for any other materials that are relevant to today’s discussion. So, we just finished talking about ALS. How there’s some uncertainty about what causes it. We talked about the parameters for a presumptive service connection for ALS. And also the fact that there is no time limitation after service that has to manifest in, in order for you to get the presumption. We’re going to turn to MS now, which is a totally different condition. And so, it comes with some different rules and the presumption differs a little bit. So, first of all, can you tell us what MS stands for and what the condition causes? So, what are the effects of MS that are common in persons with this disability?
Kerry: So, MS is multiple sclerosis. It also is a sort of neuro-degenerative disease. It causes white matter lesions in the brain, white matter lesions on the spinal cord. It causes demyelinating damage to the long axons of the nerves. And I know that’s kind of technical. Basically, what that means is you have a cholesterol sheath that surrounds the long nerves of the body. It’s called the myelin sheath. And so, anything demyelinating destroys that sheath and it eventually affects the movement of that extremity, the strength of the extremity depending on, obviously, the severity of the condition. Some people do fairly well in managing MS and other cases just go downhill really fast.
Maura: In addition to the physical effects, are there any mental effects that are common with MS?
Kerry: There are significant mental effects, especially the more advanced it is. The significant sleep difficulties that just aides to the mental defects. There’s dementia. I mean, there’s a host of things that could– and it doesn’t happen in every case. But, yeah, there’s a host of mental effects that could be related to MS.
Maura: And do we know what causes MS or what factors or exposures the person might have in their lifetime that are going to bring on this condition?
Kerry: It’s thought to be an autoimmune disease, things affecting the autoimmune system could bring it on. As far as VA is concerned, however, MS is not presumptive to a certain exposure. That’s just not how the MS presumptive service connection works. And I’m sure you’ll ask me about that. But as far as VA is concerned, and our VA rules and regs, there’s no specific exposure to something that’s going to lead to MS. And not to say that the scientific community shares that same belief, there are obviously certain things that show a higher prevalence of MS after exposure to any particular substance. But that would be outside the realm of VA.
Maura: Okay. And like we just talked about, with ALS, there are no time constraints after service that the disability has to manifest in. That is not the case for MS, is that right?
Kerry: That’s right.
Maura: So, what are the parameters for being entitled to service connection or presumptive service connection for MS, and how far after service does it have to start coming up?
Kerry: So, seven years is the short answer. So, the symptoms have to have manifested within seven years of discharge from the military. And that’s a little tricky because a lot of the regulations on presumptives will tell you, “well, it has to manifest to a degree of 10 percent or more during the presumptive period.” What if you don’t have the diagnosis yet 10 years after, but you started having symptoms five years after service and they found out those symptoms were actually the onset of MS. Well, MS has a minimum rating of 30 percent. So, you always meet that 10 percent. So, you just have to– I mean I’m saying that in order to– so that you understand, you have to show that the symptoms of MS had their onset within seven years of service. That usually get you the presumptive service connection for MS.
Maura: Okay. And we actually have a question that I think is relevant to the presumptive period that you were just talking about. So, this question is from Jennifer. Thank you, Jennifer, for tuning in today. Jennifer is asking, “If a physical wasn’t done at retirement and symptoms were present during active duty and MS was diagnosed later, is that service-connected?
Kerry: Maybe. There’s a few things the question leaves out. If the MS was still diagnosed within seven years, it doesn’t matter if you had a physical exit or not. Ninety-nine percent of the time, a discharge exam is not going to show MS unless you’re really having symptoms during the military service. So, in a situation like that, if you didn’t have an exit physical getting out of the military but you had symptoms, then or any time from then into that seven-year window, so the question then becomes is how do you show VA that you had those symptoms. And there’s a plethora of ways to do that. You can do it with lay statements. The first thing you’d want to do is explain to VA in a very detailed manner what your symptoms were while on active duty or any time within that seven-year window, be it weakness in extremities, eyesight, slurred speech, any of the things that MS might cause. Anybody else that can supplement that claim with lay statements, friends, relatives. And then probably the most important would be a medical nexus. So, a medical opinion from someone indicating that, yes, these particular symptoms that veteran’s talking about as likely as not were the onset of the MS. And as long as that onset can be placed within that seven-year window, you should get service connection for it.
Maura: Great. And that’s really helpful because oftentimes, there’s no diagnosis within the seven-year period. But the law doesn’t require the diagnosis. So, sometimes you want to be sure to look at what symptoms were the basis for the diagnosis and whether you can trace those symptoms back to within the seven-year period. That can be helpful, as you said, by providing lay statements from the veteran or from others with personal knowledge of the veteran symptoms and also treatment records. Sometimes you might have treatment records within the seven-year period that are documenting certain deficits and later on the MS diagnosis is based on precisely those things. So, all of that can be very helpful. But as Kerry said, it’s important to be detailed and it’s important to give as much information that you have to substantiate or to link the symptoms that fuel the diagnosis later that they were present before.
Kerry: Yeah. And as you know, we’ve had plenty of cases where the official diagnosis came many years after– not even close to seven years after service, maybe 10 years, 15 years after service. But there was some shift in eyesight or some shift in strength and an ability to not grip as strong or not walk as fast or– not have as much strength in your legs, something. And if you can verify that was somehow reported to somebody, that’s worth its’ weight in gold and you want to focus on that and then have any examiner focus on those symptoms as well. You as a layman– most veterans out there are laymen, they’re not medical experts– you’re not competent under law to diagnose yourself, obviously, or to say when the MS began. But you are competent under the law to state, “Well, I noticed my right leg getting weaker before I got out of service and a year later, it was going numb. I didn’t think anything about it. Then it got better and then a year later it came back.” Because MS can wax and wane. It can kind of show up a little bit and then kind of go away. And so, those can be the beginning symptoms of MS. So, all of that stuff becomes extremely important in M.S. cases.
Maura: And one more question specific to MS. I don’t remember if you covered it. So, I apologize if you already did. The presumption does not extend to reservists or national guard service members, is that right? Or does that depend?
Kerry: That hasn’t been litigated yet.
Kerry: I mean that’s– to answer that question fully, I kind of got to get off topic a little bit. This case law that pretty much tells us now, reservists and national guard are not going to get the presumption for ALS. I don’t really know how to answer that with MS.
Kerry: Okay. And I say that because there’s no case law that I’m aware of. But at the same time, there are other presumptions that VA has put into place where national guard and reserves do count for the presumption, where they didn’t use to. So, VA has changed some of their regulations dealing with C123’s and herbicide exposure, Camp Lejeune and the contaminated water, where reserves or national guard are included there. Ironically, when they did that– for example, the C123’s– they didn’t change the law with respect to the reserves or national guard members that actually served in Vietnam. I think that was an oversight on their part. I don’t think it was intentional. So, I’d say the answer is still out there for MS.
Maura: Okay. So, still a bit of a question mark there.
Maura: Okay. Once again, everyone, we are here today at Chisholm Chisholm and Kilpatrick. My name is Maura Clancy and I’m here with Kerry Baker. We’re talking about ALS and MS. And Kerry, now, I want to talk about what happens when ALS and MS are service-connected. So, what happens in the rating process for those conditions? So, first of all, let’s take ALS first. How does that condition get rated?
Kerry: Well, as of a few years ago, it has one rating and it’s 100 percent because it’s a fatal disease. And it’s going to disable you 100 percent and beyond. So, the ratings schedule requires a hundred percent rating. But as the disease advances, I’m sure you’ll be asking about SMC– I’m going to get ahead of you. But as the disease advances, it may easily go beyond 100 percent. And I’ll just wait for your question on that.
Maura: Okay. Sounds goods. So, minimum 100 percent.
Kerry: Minimum 100 percent.
Maura: Pretty straightforward.
Maura: And what about ratings for MS?
Kerry: MS has a minimum rating of 30 percent. And that would apply in a case where the diagnosis is confirmed. But if you rate the individual symptoms under their own diagnostic codes, they don’t exceed 30 percent, then that would be incorrect to rate it that way. You would rate the MS as a whole at 30 percent. Most of the time, you’re going to have residuals of MS, being in the arms, legs, speech, digestive tract, mental health or whatever. They have so many residuals. The rule is to rate those residuals under their own independent diagnostic code if there is one. That normally will result in a much higher rating than 30 percent. If none of those things exist, they have to at least give you 30 percent just for the diagnosis.
Maura: So, since the rating for ALS is– it is what it is. It’s just the 100 percent. But particularly with MS, what kinds of evidence would be helpful for people to submit to be able to show that their residuals should be rated at a certain rate, or what types of evidence can claimants produce that would try to get them the highest rating possible?
Kerry: The best evidence is medical evidence showing the functional– the remaining functional ability of pretty much what you have from head to toe. What disabling effects do you have in your upper extremities? What do you have in your lower extremities? Do you have constipation? A lot of people with MS get that. You have depression. And so, for example, a very, very full physical from your doctor explaining what each of those symptoms result in. And so, you have weakness in one leg, but can you still use your leg? Can you walk on your leg or do you have to use a wheelchair or a walker? The difference could very well be the difference between a low rating and a high rating. VA, if it all goes right, VA should answer that job for you. Because if you have MS and it is service-connected and they provide a compensation and pension examination, those MS exams are designed to answer all those questions.
Kerry: But you can have your own doctor do the same thing. Now, if none of that works, you don’t have any of that for whatever reason in your record, then still, you can supplement the record with lay evidence as long as it’s things that are reportable by a lay person under the law. Like, “my husband can’t stand up for more than five minutes or he can’t walk,” those are things that any layperson can observe and report on. So, that can help as well, especially if the medical evidence doesn’t portray all of the true effects.
Maura: And so, the fact that VA should be getting a CMP or a compensation and pension exam to assess the severity of the residuals and the condition in order to assign the rating is great. But as Kerry said, lay evidence can also be very helpful, particularly to make sure that VA is on notice that you have a certain type of residual. And given that MS is a gradually worsening condition, you may be developing residuals years after your diagnosis or getting service-connected that you didn’t have before. And so, if VA is going to send you for an exam, I think you’d be wise to make sure that they’re aware of all the different types of residuals, so that they can assess them. And that’s going to maximize the chances of getting an accurate and higher rating.
Kerry: And context is really important. And I say that because if you look at a lot of treatment records with people with MS, you might see a neurologist looking at somebody’s ability to ambulate, looking at their ability to walk. And they explain their progress is doing great. “My patient has improved. He’s getting better or he’s doing well on this particular rehab.” But they might be answering the question in the context of he’s doing great for somebody that can barely walk and has MS. He’s not doing great compared to your average person who goes out and runs three miles a day. So, the context there is quite important sometimes. And I have seen plenty of cases where VA has misinterpreted that type– those type of statements by a doctor and took them as, “Oh, well then, your rating shouldn’t be that high.” Ten percent of your weakness of an extremity versus also use of that extremity. Those are really important differences.
Maura: And I think that’s a point that applies to a lot of different cases. Especially increased rating cases. If you are being sent to examinations for MS and you’re trying to get a higher rating for your residuals and the exam is doing something that Kerry described, which is maybe taking some things out of context or not giving enough details about the severity of your condition, definitely think about supplementing those examinations with lay evidence, either from you or someone that knows about your symptoms because that can be really helpful. Sometimes the answer is that they need to get a whole new exam. And if you let them know that the exam that you had was not adequate, they might be more inclined to do that and that may help you in the long run.
Maura: And then the last thing I want to talk about is other benefits that are available. Not just the scheduler ratings to persons who are service-connected for ALS and MS. And you alluded to SMC earlier. So, one of the benefits that comes into play in these cases a lot is special monthly compensation, which is compensation that is designed to pay you at a rate that’s higher than the scheduler ratings usually because it’s a recognition that your disability is more exceptional, special in nature and it warrants additional compensation. So, do you want to briefly talk about what kinds of SMC maybe would be in play?
Maura: I know we’ve done other presentations about SMC generally that people might find helpful. But what about in this context?
Kerry: Well, if you’re unfamiliar with what is SMC is in general, I would definitely go look at some of our other videos and online training on what SMC is because it gets extremely complex that we could not get into all the SMC here. That’s its own video and own class. But with MS especially, and ALS especially, as the disease progresses– obviously, ALS is going to start at 100 percent. MS, it becomes service-connected when it’s not very severe. It may start at 30 percent. But eventually, it’s going to get up to the 100 percent rate. Now, what a lot of people do to– because they don’t– maybe they’re more focused on their health care and their family matters. Once they reach a certain level like ALS with 100 percent or MS with 100 percent, that’s as far as they go with their case. They might believe, well, that’s all they can get. Got a 100 percent, what else can I do? But as the disease progresses and say– take either one of them, it doesn’t matter which one– it gets to the point where you’re confined to a wheelchair. Well, now, you can’t use your legs. So, you may have lost the use of both legs that pays SMC, a special monthly compensation rate above 100 percent. Not in addition to the hundred percent. So, don’t get those two mixed up.
There’s an SMC rate for all kinds of things and they– all of that them go… except for the one called SMC(K), which is about 125 bucks extra a month. Everything else already contemplates starting at 100 percent. So, if you have lost use of both legs, instead of getting a 100 percent, you’re going to get at a minimum, SMC at the L rate which is six, seven hundred dollars higher than the hundred percent rate. Once you advance, let’s say, loss of use of your upper extremities and normally with those two diseases, that’s going to happen at some point, especially ALS, you may have lost use of all four extremities. And before it ever gets to any of those points, you may need the aid and attendance of somebody else just to help you with the daily needs of living. You might be entitled to aid and attendance. But that’s equal to SMC(L). Same thing you’d get for lost use of both legs. But at some point, you’re going to become just bedridden. Unfortunately, with these– if either one of these diseases is what causes a veteran’s death, that veteran’s going to become bedridden. They’re probably not going to be able to use their arms or their legs. They’re going to probably going to be on life support to some degree. Their mental health is going to be gone. They’re not going to be able to speak. So, in those circumstances, you’re going to be eligible for some of the highest benefits VA has to offer, which is SMC at the R1 rate or at the R2 rate. Just to put that in perspective, R2 is over 8,000 dollars a month, close to 9,000 dollars a month. Obviously, you don’t want to have that kind of disability. But as your disease progresses, if you’re already at 100 percent rate and you’ve been in a wheelchair for the past year, but you think you might live another two or three years, there’s a lot of extra benefits there under the SMC rules. You don’t have to just be fine with collecting the 100 percent rate, when you could be getting three times that much as the disease progresses. So, all you have do at that point is follow an increase rating, they’ll examine you, and if you meet the qualifications for SMC in any of its’ forms, they should be granting it.
Maura: So, a good thing to keep in mind when you’re pursuing an increased rating that these benefits are available in addition to the scheduler evaluations or the standard rates for the disabilities. And as Kerry said, you don’t have to file anything specific to seek SMC benefits. It’s actually supposed to be inferred by VA that you are seeking the highest rating possible whenever you’re seeking a higher rating. So, if you file an increased rating claim and they develop evidence that shows that you might be entitled to or are entitled to SMC, they’re supposed to have those issues worked out on their own. It certainly can’t hurt to mention it when you’re working on an increase rating claim that you think you qualify for higher levels of special monthly compensation. And that’ll certainly put the issue right under their nose. But at the same time, if the evidence shows that you’re entitled to those benefits, then they’re supposed to be at least thinking about them. In addition to SMC, another benefit that might be on the table for someone with ALS or MS is TDIU or a temporary disability rating based on individual unemployability. Do you want to talk a little bit about how that might be relevant in these cases?
Kerry: I think it would be more relevant in MS cases than ALS cases, since the ALS is already going to be rated a hundred percent. Having said that, you might have something else service-connected in addition to the ALS that could cause you to be unemployable irrespective of the ALS. If that’s the case, you want to apply for unemployability based on the disease or diseases that’s causing the unemployability, except for the ALS. And I said that because you could end up with 100 percent for ALS and in TDIU or at least a 60 percent or higher for some non-ALS related disability and get you up to the first SMC rate, SMC, the housebound rate or SMC(S) as we call it. You want to rephrase the rest of the question?
Maura: Yeah. Sorry. So, you said that TDIU is a little more relevant with MS.
Kerry: MS. Yes, because MS, you’re not– obviously, there’s no guarantee of a 100 percent. The minimum rating is 30 percent. You may end up anywhere from 30 percent to 90 percent, but have enough residuals that obviously, it prevents you from working. So, if that’s the case, you’d definitely want to file for temporary or total disability based on unemployability because you’re probably going to get it. But again, when that happens, I urge you, don’t think that’s the end of the road. You might have– especially with MS, you might have numerous years of life left. But you may steadily, progressively get worse to the point where you could go above that 100 percent. So, just because you’re not 100 percent for MS, if you’re not working, I would request TDIU in a claim. But once you get to the point where you’re not able to use extremities the way you used to, you can’t speak, there’s a whole different story there.
Maura: And kind of similar to SMC, TDIU or asking for a TDIU, doesn’t require that you make a specific claim for it. VA does use a special form. It’s the 21-8940 for determining your entitlement to TDIU, so they will ask you to fill out that form. But the important thing about TDIU benefits is that they can attach to an increase rating claim. So, if you’re pursuing a higher rating for MS and you assert at some point in your pursuit of a higher rating that you cannot work due to the residuals of MS, then they are supposed to consider that a request for a total rating, 100 percent rating based on unemployability. So, again, it doesn’t hurt to be explicit and ask for what it is that you’re seeking, but it’s not something that requires a special form to get the ball rolling.
Kerry: On that note, if I can piggyback on that, if you file a service connection claim for MS and they grant it and say it’s 60, 70, 80 percent and you’re not working at that point and it took them a couple of years to get to that particular rating, you want to make sure you file that TDIU claim within a year of that decision. They gave you that rating because that’s when that TDIU claim is going to attach to that original claim and it should go back to the same effective date as long as you weren’t working at that point in time. Don’t wait two years down the road to file your TDIU claim. Unless, of course, you’re actually working because you do that once you go over that one year past that rating decision, then your TDIU at a 100 percent. So, only going to go back to the day you filed a claim. So, really important on effective dates there.
Maura: That’s good advice. Anything else you wanted to add about other benefits that might be available?
Kerry: With these two particular disabilities and a whole plethora of others, at some point, you’re going to progress to the point– you’ve heard me mention wheelchairs half a dozen times in this video. Once you reach that SMC rate like that or depending on the various extremities, eyesight and all, you may qualify for adaptive housing. Special adaptive housing, automobile allowance, where VA assists in purchasing you a house built around your disabilities or helps adapt the current house that you have to fit your disabilities. The shelves need lowered, the doors need widening for wheelchairs, that type of stuff. Automobiles, special automobiles, if you need handheld controls, or even if you can’t drive. So, you have a wife or spouse, you can actually still get the automobile allowance and if somebody else has to drive the vehicle for you. So, there are other ancillary benefits there. And if you have any questions about them, give us a call or whoever your rep might be.
Maura: Yeah. And I think that last point is a good one that this can be a complicated area in a way. I think especially with the ratings. And it can be sometimes even difficult with MS cases to prove that you’re within that seven-year presumptive period. And if your diagnosis falls outside of that period and you find you’re having difficulty having success on your claim, don’t hesitate to reach out to a representative, our colleagues at DAV, or just really anyone that you want to get in touch with to help you along. That’s all I have. Did you have any final thoughts you wanted to add?
Kerry: I think that’s it if there are no questions.
Maura: No other questions. Great. Well, thank you everyone for joining us today. Again, please feel free to utilize any materials that we posted in the comments feed next to this video. And we hope you will join us next time.
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