Due Process Concerns Arise For Veterans Receiving Retroactive Benefits Based On Agent Orange Related Prostate Cancer
In my practice, however, is is clear that the VA is not always scheduling medical examinations six months after surgery. In most cases, the VA is scheduling a mandatory examination one year after surgery. Of course, this is a benefit because the 100-percent rating continues for a longer period of time. However, veterans that filed claims for Agent Orange-related prostate cancer and who are awarded service connection for prostate cancer retroactively will only receive a 100-percent rating for six months. See Tatum v. Shinseki, 24 Vet.App. 139 . In my opinion, this raises serious due-process concerns for veterans that have been fighting the VA for many years.
Applying For Social Security Disability Benefits With Prostate Cancer
The Journal of The National Cancer Institute reports there are nearly 2 million men living in the America today who are prostate cancer survivors, and the Prostate Cancer Foundation reports more than 220,000 new cases are diagnosed each year in the U.S.
While prostate cancer is among the leading causes of cancer-related death for American men as well, it is also among the most treatable and curable forms of cancer, which is why it may or may not qualify you for disability benefits.
If your prostate cancer was advanced when diagnosed or has recurred after initial treatment, then you automatically medically qualify Social Security Disability. If it is not advanced, you will need to meet Blue Book listing 13.24 to qualify. Either way, you will need to apply and provide medical records to back up your claim though.
If your prostate cancer is caught early and responds to treatment, then you wont qualify for benefits through the typical review process. Instead, youll have to show that your cancer symptoms, treatments, and complications severely disrupt your ability to function on a daily basis.
Is A 100% Rating Permanent
No. The VA awards temporary total ratings for veterans whose conditions need additional support for a limited time, like for a 3-month convalescent period after surgery. All 100% ratings are not considered permanent unless it is medically unlikely for the condition to ever improve. In these cases, the VA will declare the condition Permanent and Total .
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What Does All This Mean For Veterans With Prostate Cancer Claims
This case was a little complicated because of all the side issues of protecting effective dates, using VA forms, etc. So lets boil out the important facts for veterans trying to maximize their VA prostate cancer rating.
#1: Tell the VA every complication of your prostate cancer.
In your original claim for prostate cancer, tell the VA all of the complications of your prostate cancer even before it goes into remission.
If you use lay evidence, be sure to focus on the frequency, chronicity and severity of your prostate cancer complications and residuals and their impact on your earning capacity. It has been my experience over the last 13 years that lay evidence when done right is the silver bullet in your VA claim or appeal.
You can bolster your lay evidence with medical evidence showing the complications and residuals of your prostate cancer. This isnt technically necessary, but it is incredibly helpful if you can back up what you tell the VA with evidence in your medical records.
And, if you decide to use an expert opinion, present your lay evidence, medical evidence and a copy of your VA claims file being especially sure to include adverse medical opinions to the expert to ensure that his or her opinion is thorough.
#2: Dont let the VA cut you out of an earlier effective date for your prostate cancer ratings.
Changes To Prostate Cancer Veterans Disability Benefits Law
The VA is considering veterans who have been exposed to toxins at locations other than just Vietnam. The laws may have changed since this article was written. To learn the most up-to-date law, please feel free to contact our law firm.
- Two veterans just received Agent Orange disability benefits who were exposed in Okinawa, Japan.
- Some veterans may have also been exposed in Korea.
- Many veterans claim to have been exposed to Agent Orange while stateside as well.
- There are some Navy ships that have also been identified for Agent Orange transportation those veterans may have been exposed as well.
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How To Establish A Service Connection For An Enlarged Prostate
Establishing a service connection for an enlarged prostate is extremely difficult because the root cause of this condition is unclear, making it difficult to directly or proximately link this disability to an injury or disease in service.
For example, the VA denied a disability claim where a veteran tried to prove a secondary service connection for their BPH, arguing that this disability is a result of his primary service-connected diabetes. The VA found that there is no medical correlation between BPH and diabetes and denied the claim.
The Nexus Letter is like the missing link to a successful VA disability compensation claim. In this video, one of our veterans disability lawyers explains the importance of the Nexus Letter.
Therefore, a veteran needs to submit strong medical evidence with their disability claim to prove that their BPH is either a direct result or secondary result of their military service.
A veteran can submit:
- Medical records showing that they have been diagnosed with BPH.
- Service treatment records showing that they were treated for BPH or a prostate-related injury during service.
- Lay evidence that confirms the veteran developed BPH or a prostate-related injury in service. This can include statements from your co-workers, spouses, family members, etc.
- Doctor reports validating that a connection exists between their enlarged prostate and an injury or disease they suffered during service.
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Prostate Cancer Treatment Methods
Most veterans discover they have prostate cancer after their doctor orders a prostate-specific antigen blood test or digital rectal exam. As veterans age their risk factor for prostate cancer increases.
Cancer in a mans prostate a small walnut-sized gland that produces seminal fluid can be treated by surgery, radiation, hormone therapy, or chemotherapy. Many veterans with prostate cancer choose a treatment program called watchful waiting.
Veterans who choose watchful waiting treatment may be eligible for VA benefits. Veterans with prostate cancer that are on the watchful waiting program are often older veterans that choose to hold off on aggressive prostate cancer treatment and they wait to see if the cancer appears to be growing.
Veterans needing surgery for prostate cancer or prostatectomy will have their prostate removed with the goal of removing all cancerous cells. Veterans needing radiation therapy will undergo treatment that uses high levels of radiation to kill prostate cancer cells while minimizing damage to healthy cells.
Some veterans choose radiation seed implants to battle prostate cancer. Veterans choosing radiation seed implants will have radioactive seeds implanted into their prostate in hopes of killing the cancerous cells.
Veterans with prostate cancer also choose cryotherapy. In this treatment program, cancer cells are killed by freezing them.
About The Va Disability Rating System
Veterans with a disability that developed or worsened while serving in the military or due to military service may be eligible for Service-Connected disability pay.
Conditions covered by these benefits typically include:
- Physical disabilities including hearing loss, chronic back pain, asthma and cancers caused by contact with toxic chemicals.
- Mental disabilities including anxiety, post-traumatic stress disorder , depression and traumatic brain injury .
Find a complete list of covered conditions here.
For every disability claim, the Department of Veterans Affairs assigns a severity rating ranging from 0-100%. This rating moves in 10% increments, is based on service treatment records, VA medical records, and private medical records directly relating to the disability.
For Veterans with more than one disability, the VA uses the combined rating table to calculate your disability percentage.
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Fully Developed Disability Claims
The next fasted option is the Fully Developed Disability Claims program.
The primary difference between the FDDC program and filing a standard claim is the Veteran must provide all evidence upfront and certify theres no additional evidence needed to make a claim decision.
At a minimum, the Veteran should provide:
- All military personnel records on the condition, and
- All service treatment records on the condition, and
- All private medical records on the condition, and
- All VA health records or supplementary information about related VA health records that the VA can request on your behalf
If the VA requires additional information, the claim typically gets removed from the FDDC program and is processed as a standard claim.
What Are The Current Presumptives
Below are the categories of veterans who have presumptives established.
If a veteran is diagnosed with chronic diseases, such as arthritis, diabetes, or hypertension, within one year of their release from active duty, the VA will presume that the conditon originated during military service.
Vietnam Veterans and Agent Orange
If a Vietnam Veteran has any of the following conditions, the VA will presume that the condition was caused by exposure to Agent Orange.
- Hodgkins Disease
- Pellagra and any other nutritional deficiency
- Peripheral Neuropathy, except where directly related to infectious causes
More information can be found at the VAs American Former Prisoners of War Website. In addition, the White River Junction VA Medical Center has a Former Prisoner of War Coordinator.
- White River Junction Former Prisoner of War Coordinator 687-8387, extension 5362
Veterans exposed to radiation from atomic weapons, fallout, and nuclear reactors also have presumptive conditions. There are 21 different types of cancers related to exposure to radiation. We recommend any veteran who was exposed to radiation and later develops cancer to apply for Disability Compensation. For more information, visit the visit the VAs Office of Public Health and Environmental Hazards Website.
Gulf War Illness
- Chronic Fatigue Syndrome
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How Does Va Calculate The Disability Rating For My Cancer
VA uses ratings tables published in the Code of Federal Regulations to rate medical conditions. The disability rating given by VA in the rating decision should depend on your particular type of cancer and the severity of it. Some examples of ratings tables for the different types of cancer are discussed below.
Chronic B-cell Leukemias
Leukemia is rated using diagnostic code 7703. Leukemia should be rated at 100% when it is in the active treatment phase.
|With active disease or during a treatment phase||100|
|Otherwise rate as anemia or aplastic anemia , whichever would result in the greater benefit.|
|Note: The 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105 of this chapter. If there has been no recurrence, rate on residuals.|
Six months after treatment is completed, there should be a mandatory VA examination and additional ratings should be based on residuals if there has been no recurrence.
Hodgkins disease is rated using diagnostic code 7709. Hodgkins disease should be rated at 100% when it is in the active treatment phase.
Va Benefits For Prostate Cancer
If you have been exposed to Agent Orange and developed prostate cancer, you may qualify for substantial compensation from the Department of Veterans Affairs . These contaminants may have lingered in your body for decades and your body is just now beginning to show symptoms of being exposed to these harmful chemicals. You deserve compensation from the VA for your diagnosis.
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How To Determine Your Disability Compensation
To determine your disability compensation, you need to file a claim with VA. The VA rates your disability by severity after reviewing every piece of evidence in your claim.
You may only receive compensation for a single diagnostic code per condition, even if that condition satisfies more than one diagnostic code. However, those with more than one condition may receive additional compensation based on the combined rating system.
You may receive additional compensation if:
- You have very severe disabilities or loss of limb
- you have a spouse, children, or dependent parents
- you have a seriously disabled spouse
Note: If you have more than one child or your spouse receives Aid and Attendance benefits , be sure to include the figures from the Add row.
Did you know: Veterans can use their disability income in conjunction with their VA loan benefits. Speak with a home loan specialist to see how much you can afford.
How Is Prostate Cancer Work
Prostate Cancer can be work-related in a variety of manners. Prostate Cancer can be work-related with respect to certain:
- Worksite Exposures: Certain Pesticides, Chromium
- Occupations: Administrative and Management Positions, Firefighting and Law Enforcement, Pilots, and Agriculture
- Work Activities: Shift Work
- Labor Code Sections: Labor Code Presumption for Cancer 3212.1
Jeavana Sritharan, Jill MacLeod, Shelley Harris, Donald C. Cole, Anne Harris, Michael Tjepkema, Paul A. Peters, and Paul A. Demers and J Cancer Prev. 2019 Jun 24: 91111.
Published online 2019 Jun 30. doi: 10.15430/JCP.2019.24.2.91, Occupational Risk Factors for Prostate Cancer: A Meta-analysis, Srmena Krstev and Anders Knutsson
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Va Disability Rating For Enlarged Prostate
A disability rating is a percentage that the VA uses to score the severity of a condition and determine the amount of compensation that a veteran should receive for living with the effects of this disability.
The VA determines which rating system they will use based on the diagnostic code assigned to that disability. VA diagnostic code 7527 is the code assigned to prostate gland injuries, infections, etc. This code provides that these types of injuries should be rated under the voiding dysfunction or urinary tract infection rating system, based on whichever symptoms are predominant.
BPH is categorized under diagnostic code 7527. Therefore, the VA disability rating applied to this condition would be either under the voiding dysfunction or UTI rating system.
Qualifying For Social Security Disability With Prostate Cancer
Medically Qualifying With the Blue Book
- Your prostate cancer is progressive or recurrent despite hormonal intervention*
- Your prostate cancer has spread to internal organs
- Your prostate cancer is small cell/oat cell, which is usually more aggressive and harder to treat
*There are two notes with this listing. Biochemical recurrence will not count for the first qualification. Additionally, the SSA requests progression despite hormonal intervention because its commonly the standard care for men with prostate cancer, but if your oncologist started you immediately with chemotherapy and your cancer returned, you will qualify all the same.
The entire Blue Book can be found online, so you can review the prostate cancer listing with your oncologist to know if youll qualify.
Medically Qualifying Through a Medical Vocational Allowance
Starting Your Disability Application
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Va Disability Ratings For Cancer: How Does Va Rate Cancer
If a veteran is service-connected for an active cancer, VA should automatically assign a 100 percent disability rating. This rating continues for as long as their cancer is active, and then for another six months following the successful completion of a treatment program . Six months after cancer treatment ends, VA will schedule the veteran for a Compensation & Pension examination to evaluate the current status of their condition. If the C& P examination shows that their cancer is no longer active, but in remission, VA will then evaluate the cancer based on its residuals, if any. For example, erectile dysfunction and urinary incontinence are common residual symptoms of prostate cancer. If prostate cancer is no longer active, VA will likely reduce the disability rating for that condition and assign new ratings based on the severity of the veterans erectile dysfunction and urinary incontinence if present.
How Is Service Connection Established For Cancer
Presumptive exposure to Agent Orange or the contaminated water at Camp Lejeune are the two most common ways that veterans are service-connected for cancer. The VA assumes that those veterans who were in certain areas such as Vietnam or Camp Lejeune during specified time frames were exposed to something that caused later development of cancer. For the cancers on the presumptive lists, a veteran simply needs to apply for disability once they have been diagnosed with cancer, identifying their in-service exposure as the cause.
If you are a veteran who does not have a type of cancer listed on the presumptive list, but you suspect some in-service event, illness, or injury caused your cancer, you must have a current diagnosis and a medical nexus that links the cancer to the illness, event, or injury from your active duty period.
Whether the disability is presumptive cancer or not, a veteran must provide VA with medical records and attend a C& P exam. . During the C& P exam, a doctor will review your medical records and ask you about any current residuals, if the cancer it not in an active phase. The C& P report will also contain a medical nexus opinion, identifying whether the doctor believes the cancer is at least as likely as not related to service, if the condition is not on the presumptive list.