It’s Never Too Late | South Portland, ME

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It’s Never Too Late

Atty. Francis Jackson: [00:00:00] I think the best time to apply for disability benefits is as soon as the symptoms surface and you recognize that you have an illness or a disability preferably before it gets really bad, but the reality is that for most people, they kind of go along in their daily lives and if they’re having symptoms and those symptoms aren’t overwhelming, they don’t stop them from functioning completely, then they kind of grit their teeth and work around it and just kind of keep going.

And so, the thought of filing for disability, whether you’re talking Veterans Disability Compensation or Social Security disability or some other disability program or private disability insurance.

Atty. Francis Jackson: [00:01:00] Welcome to Victory over VA, your guide to unlocking your VA disability benefits. This is our weekly podcast talking about Veterans Disability Benefits, and today our topic is Never Too Late.

So, welcome I’m Francis Jackson, this is Kristian Terison, and we are a part of the firm of Jackson and MacNichol.

We do Veterans Disability Benefits, that’s our specialty, and we focus on getting justice for veterans. So, who’s this podcast for? Well, obviously it’s for veterans, but it’s also for those who care about veterans, folks who [00:02:00] support veterans, folks who are related to veterans, folks who are friends with veterans.

Anyone who wants to see veterans get a fair shake on their disability compensation claims with the VA. Which, unfortunately, are often slow and difficult.

So, today, we’re going to talk about It’s Never Too Late.

Atty. Kristian Terison: Alright. So, I know in your great experience in veterans disability you’ve worked with thousands of veterans over the years.

How often do you encounter veterans who believe it’s too late for them to apply for disability benefits?

Atty. Francis Jackson: Well, certainly I’ve, heard veterans in the community express that concern, that there’s some statute of limitations or some other barrier to filing a claim. As a general proposition, the people that I see are people who are in the process of filing a claim or have filed a claim [00:03:00] and are appealing.

So, I don’t see lots of folks who feel that it’s too late, but recently we did a presentation for the Special Forces Association of the United States. And among the questions that we got Alexandra, my partner, and I did that together, and among the questions that we got were concerns about it being too late.

So, I know that’s an issue that’s out there, the subset of people that come to me usually have decided that it’s not too late and they should make a claim. But, I know it’s a concern.

Atty. Kristian Terison: Yeah, and I guess, do you see any primary reasons behind that persistent misconception?

Atty. Francis Jackson: Well, I think that really arises from kind of the general understanding about the law.

In most circumstances for example, if you get bitten by a dog or hit by a car or you know, run over by the Coca-Cola truck, there is a time limit for filing [00:04:00] a claim or filing a lawsuit. And it varies enormously from state to state, but typically anywhere from one to seven years.

And so, people get this impression in their heads that, you know, if it’s something that happened 20, 30 years ago in the military, it’s too late for them to make a claim.

But that’s not the case. Okay.

Atty. Kristian Terison: Now, how about, is there any factual basis to the belief that there’s a best time post service to apply for disability benefits?

Atty. Francis Jackson: Well, I think the best time to apply for disability benefits is as soon as the symptoms surface and you recognize that you have an illness or a disability preferably before it gets really bad, but the reality is that for most people, they kind of go along in their daily lives and if they’re having symptoms and those symptoms aren’t overwhelming, they don’t stop them from functioning [00:05:00] completely, then they kind of grit their teeth and work around it and just keep going.

And so, the thought of filing for disability, whether you’re talking Veterans Disability Compensation or Social Security disability or some other disability program or private disability insurance. Just kind of doesn’t seem to perk up to the level that people act on it until the symptoms get pretty serious.

Atty. Kristian Terison: Okay. And I know you mentioned that, because of the segment of the veterans population you work with, it’s folks who did, ultimately make the choice to file a claim. But you know, out of that group is there anyone who stands out as somebody who made their claim, you know, years and years, decades after their military service?

Atty. Francis Jackson: Oh, there are a lot of folks in that category. One that stands out to me, one of the earliest claims I represented, and it took a long time to bring it to conclusion, but we had a gentleman [00:06:00] who, I think at the time he came to me, he was in his 50’s. But what had happened is he had a very unusual series of events.

I think, sophomore year of high school, might have been his freshman year, but it doesn’t matter, he was in a hunting accident where he was hunting with another young man the young man fell, his rifle discharged, and it shot our client in the back, and a 22 caliber slug was lodged in his spine.

And you know, he was seen by the neurosurgeons, and everybody, you know, kind of tried to figure out what to do. They ultimately concluded that where the bullet was lodged it was too dangerous to try to surgically remove it, that it was so close to the spine that there was a very high risk of paralysis if they tried to move the bullet.

And that because it was a 22 shell rather than a much bigger one, it was lodged in such a way [00:07:00] that it wasn’t pressing on the spinal cord, wasn’t really doing any immediate harm. And so, the consensus was that they should just leave well enough alone. He healed up, he did well, he was an athlete, you know, he played football, he big guy, played football threw the hammer in the track and field you know, and very strong guy, big did fine.

Father was an officer in the military who died during our client’s high school, and the young man decided that he wanted to make a career with the military, as his father had. So, after high school, he started college, he went a couple years, and, you know, joined ROTC and all, but he decided rather than finishing college, he would go on to the military.

So, wanted to make that a career, and he enlisted. What happened was that in the all the strenuous physical activity of basic training, the [00:08:00] problem with the bullet became symptomatic. I don’t know whether it moved at all or what happened, but the net result was that he started having significant back symptoms.

And so, they sent him to the medical folks and, you know, they progressed up the medical line as the symptoms continued. And eventually, he saw a neurosurgeon and the surgeon said, well, you know, here are your choices. We can take the boat out and you can continue on your military career or we can invalid you out on medical grounds because you obviously are having trouble performing all your military duties.

So, he had been told by specialists before he went in that he should not have the bullet removed, it was far too dangerous that there was a very high risk of paralysis. So, he declined and so they said, you know, they discharged him and said, he shouldn’t have been taken in because he had this bullet in his spine, he was unfit for service you know, [00:09:00] and sent him on his way. No medical discharge, no benefits, just sent him on his way.

Well, he became very depressed. And to the point that within a few years he was really non-functional, he was on social security disability. But he came to us and I thought that it was reasonable to say that, even though many years had passed, that his depression, which was still ongoing and really disabling completely, was caused by this series of events where he became symptomatic in the military and lost the opportunity to remain in the military and pursue a military career as he had hoped.

And it took us almost 10 years with one appeal and another before we finally got to the result, but we had to appeal it up to the court and a couple appeals to the board. Anyway, without going into all the details, he eventually [00:10:00] got benefits and was put on the 100 percent VA disability.

But you know, that’s one example of a situation where it was years and years after service. I think it was easily 30 years from the time he’d been in the service before he made the initial claim.

Atty. Kristian Terison: Does the VA have any different process or take any different view on claims from veterans that are coming decades after service?

Atty. Francis Jackson: No, not really. One of our Attorneys a few years ago handled a case for a World War II veteran.

And this is early 2020’s or late 20’s, I forget, but World War II veteran who had to have both knees replaced, and this is a man in his 90’s and the VA, looked at his claim, they initially denied it, repealed it. It was granted by the Board of Veterans Appeals, and you know, he got benefits for both knees for [00:11:00] his disability.

So, I don’t think that it’s fair to say that the VA looks at these cases differently based on the length of time in and of itself. The place that it becomes an issue primarily is, if you have a situation where there’s never been any treatment for the problem for, you know, 20, 30, 40 years it makes it harder for the VA to accept that it ties back to events in your service 20, 30, 40 years earlier.

So, that’s the place that it has the impact, if any.

Atty. Kristian Terison: Okay. So, are there any other, specific challenges that older veterans would face when making a claim decades later? Or is that’s the biggest one?

Atty. Francis Jackson: Well, that’s part of it, the other part of it is that it becomes harder to get records. You know, when I first started practicing 40 years ago, pretty much every [00:12:00] medical institution kept their records, they just kept them, period. They would have these storage spaces full of old records, and over the time you know, a lot of folks have well, virtually everybody has gone to some form of electronic record keeping.

And they’ve also typically started purging records so that it becomes harder and harder to get old records, you know, once in a while we’ll get lucky and some records clerk will grumble that, well, you know, that’s an old paper record, it’s in the warehouse, it’ll take us a week to get it, but they’ll get it.

But less and less that occurs, it’s much more common now that you get a response saying, sorry, we don’t have records that are ten years old. And the same problem if anything, a greater degree applies to physicians. You know, physicians that were practicing 40 years ago, most of them are retired or frankly dead.

So, it becomes difficult to get old records, there is not a system in the [00:13:00] United States, you would think there would be, but there is not a system in the United States for preserving the medical records of a private physician who becomes incapacitated or dies. It’s typically left to the family to somehow deal with dad’s records and often the dealing with is where’s the nearest incinerator.

So, it is an issue that becomes difficult because of a lack of proof. You know, you can’t get the records showing that he was treated over the last 20 years, you can’t get the hospital records, you know, some things are somewhat easier. If someone had surgery, even if the records are gone, you can have a doctor look at the surgical scars and say, yeah, that’s consistent with the disc surgery that he describes as being like this.

But it just becomes a problem of proof, and, you know, as the further in time you get, the more difficult the proof problem becomes.

Atty. Kristian Terison: And, [00:14:00] I guess, you know, it’s pretty clear that medical documentation is essential, but are there any, other kinds of documentation or specific subsets of the medical records that become crucial for veterans applying after again, decades after service?

Atty. Francis Jackson: Well, I don’t think, I mean, the medical records are the medical records are the medical records. Sometimes you can jump over the medical records piece with a good report from a current expert, somebody who has practiced in the area and understands how these things move and what’s going on and can make the transition from this event to the current problem and say, you know, this is the description, the history that this veteran gives is consistent with the progression of this kind of condition.

And so, it is logically at least as likely as not that based on what occurred in [00:15:00] the service and what we see now that these two are in fact related. But sometimes, there are other sources of records that you can look to or not even necessarily records, but one of the things that we’ve had a reasonable amount of success with over the years are what the VA generically calls buddy statements.

And by that, they mean statements from people outside the military about, events and observations, whether it’s yeah I was in this person’s unit and I saw this event happen, or I’m John’s mom and when he went in the service he was like this and when he came back he couldn’t use his left arm very well and he’s had a problem with it ever since.

Those kinds of situations where you have someone who has observed the person over time going back to the military service period and can talk about how things have changed. And you know, it’s just a mixed bag.

We had one case where the issue was that our client [00:16:00] developed PTSD after seeing a helicopter crash. They couldn’t find the records of the helicopter crash, and I’ve forgotten whether the problem was that it was a civilian copter or what it was, but for whatever reason it was at this military base. But they had a very hard time, they couldn’t locate the records. We eventually found his commanding officer, who was then living in Labrador in Canada and got a statement from him, saying, this is what happened and yes, he was there and this is how he participated and you know, so sometimes there are ways to work around the absence of official records but other times it’s a problem.

Atty. Kristian Terison: Are there any specific illnesses or conditions where timing plays more of a role in the application process?

Atty. Francis Jackson: Well, I think you can broadly break it into physical and mental conditions. Mental conditions in my experience, it’s easier [00:17:00] to deal with the gap in time. In some ways the symptoms speak for themselves.

In physical cases, one of the things that we run into a lot is, the VA will say, yeah, okay we know that John Doe hurt his back in the service, but it wasn’t a serious injury. He didn’t have any disc problems that we know of, you know, he didn’t have to have surgery. We think his back just healed up fine and then, ten years later, he was in an industrial accident where his back was injured. And that’s really the cause, it really has nothing to do with going back to when he was in the service.

And we actually had one case where this doctor wrote this really nasty opinion saying, you know, I see this stuff all the , people get hurt after service and they try to blame it on the service and they’re just out mooching to get government bucks and I’m sure this guy is in that group and, that sort of thing. I mean, really just nasty.

And, we had to appeal that case and but it, you know, it’s a recurring [00:18:00] problem where there’s some kind of intervening physical injury the VA basically just says, not our problem, you got hurt after service, go away.

Atty. Kristian Terison: Are there any recent legal or policy changes that might help out veterans who’ve waited a long time and are only now applying?

Atty. Francis Jackson: Yes. The PACT Act, which is quite recent early last, well, effective August of last year, a little over a year ago has greatly expanded certain presumptions. So, the way a presumption works, ordinarily in a service connection case, you have to show that something happened in service, disease, injury, whatever, some occurrence in service.

You have to show a current disability, you have a bad back, you have diabetes, you have depression, whatever it is. And you have to have a medical opinion that connects those two. What the PACT Act did was to extend certain presumptions.

And let me focus on the Agent Orange presumptions from the Vietnam era [00:19:00] because those are some of the easier ones to explain. We’ve had several service people who were stationed on Guam. And, said they contracted various Agent Orange related diseases including diabetes cancer, whatever it was.

The VA, prior to the PACT Act, was insisting that there was no Agent Orange exposure on Guam, which frankly was ridiculous because the EPA has been to that base and found levels of dioxin that were, it couldn’t possibly be naturally occurring multiple times, anything that could ever happen naturally.

But the problem was that, you know, it’s 40 years later. There are other ways you can get diabetes other than being exposed to Agent Orange. And the VA was just being very hard nosed about those cases. The PACT Act, among other things, recognized that, in fact, Agent Orange was trans shipped to Guam [00:20:00] and handled there and that was used all around the base as a defoliant to control the vegetation.

So, presumptions in some of those cases have solved the problem of it being later in time. Similarly, there are presumptions for people who served in Southeast Asia but not physically in Vietnam. People who were stationed at the air bases in Thailand, people who were in the incursions into Laos or Cambodia and contracted Agent Orange related , that has now been solved with a presumption.

More recently there’ve been presumptions for veterans who were exposed to atomic testing in the 50’s and had developed radiation exposure type illnesses that the VA had previously said, you know, there’s no evidence that you were sufficiently exposed to radiation to cause this problem to go away or even, there’s a [00:21:00] presumption now that folks served in the Middle East were exposed to the burn pits and as a result have things like allergic rhinitis or whatever the condition, respiratory conditions from that.

So, In that sense, there has been change in the law that helps to overcome the difficulties from the delay but these are very specific pieces. There’s nothing that kind of solves delay generically, if you will.

Atty. Kristian Terison: Sure, but I guess the landscape is such that if you’ve waited years to apply, it may even be easier now, depending on what, what condition you apply.

Atty. Francis Jackson: Depending on the condition, that’s correct. If you fall within one of the new presumptive conditions your claim should go very smoothly.

Atty. Kristian Terison: Okay. So, we’re coming up on the end of the episode, but what would your advice be to a veteran who, maybe was discharged 30, even 40 years ago, never applied for benefits, but they’ve got a condition they believe is [00:22:00] related to service, it’s really bothering them. What would you say to them?

Atty. Francis Jackson: I would say apply, but a couple of things about that.

First off, the way the VA system works, you always want to apply as soon as possible because when your claim is eventually granted, they will only go back and pay you back to the date that you filed the claim. Actually, technically, it’ll be the first day of the first full month after you filed the claim.

So, if you filed on March 2nd, for example, they wouldn’t pay you until starting April 1st, but that’s relatively minor. The other thing I would say to people is, if you have concerns about assembling the information to support your claim, there’s a process with the VA where you can file what’s called an intent to file. It’s a very simple form. It’s on the VA’s website.

You can fill it in on the website or you can print it out or you can get one from the VA, fill it out and submit it. But it really only asks for your identifying information so they [00:23:00] know who you are, and it says that you intend to make a claim.

So, that intent to make a claim form, is a placeholder, if you will for a claim. As long as you make the claim within one calendar year of the date you filed the original intent to file, the VA, if they grant the claim, will go back to the date of your intent to file, not just the later date of claim.

Atty. Kristian Terison: Alright. Well, thanks very much for tuning in. This has been another episode of Victory Over VA.

Please be sure to subscribe and tune in next week.

Atty. Francis Jackson: We’ll see you then.

[00:24:00]

Welcome to another episode of Victory Over VA, the podcast that aims to help veterans unlock their VA disability benefits. In today’s episode, we tackle a common misconception that many veterans face: believing it’s too late to apply for disability benefits. Join us as we explore the truth behind this belief and shed light on the process of filing a claim even decades after military service.

1. The Misconception:
Many veterans mistakenly believe that there is a statute of limitations or other barriers preventing them from filing a disability claim after a significant amount of time has passed. While some veterans may feel this way, it’s important to note that there is no age limit or time restriction for applying for VA disability benefits.

2. Understanding the Reasoning:
The misconception stems from a general understanding of other areas of law, where time limits exist for filing claims or lawsuits. However, when it comes to VA disability benefits, the timeline is different. Veterans can apply for benefits as soon as they recognize the symptoms of their disability, even if it’s years or decades after their military service.

3. Real-Life Examples:
Francis shares stories of veterans he has worked with who made successful disability claims many years after their service. These examples include a veteran who had a bullet lodged in his spine since a hunting accident in high school, which became symptomatic during his military training and another veteran who developed PTSD after witnessing a helicopter crash during service. These cases highlight that it’s never too late to seek the benefits you deserve.

4. Challenges Faced:
While it’s possible to file a claim later in life, there are challenges that veterans may encounter. Obtaining medical records from decades ago can be difficult, as many institutions have transitioned to electronic record-keeping or even purged old records. Additionally, finding physicians who treated veterans years ago can be challenging, as many have retired or passed away.

5. Recent Changes and Presumptions:
Fortunately, recent legal and policy changes have made it easier for veterans to apply for benefits even after a long period of time. The PACT Act, for example, has expanded presumptions for conditions related to Agent Orange exposure, radiation exposure, and burn pit exposure. These presumptions help veterans establish a connection between their current condition and their military service, making the claims process smoother.

If you’re a veteran who has been hesitant to apply for disability benefits due to the belief that it’s too late, we hope this episode has provided you with valuable insights. Remember, it’s never too late to seek the benefits you deserve. Whether you served decades ago or recently, don’t hesitate to file a claim and unlock the support you need. Tune in to the full episode for more in-depth discussions and advice from our experts.

Don’t miss out on the valuable information shared in this episode! Listen to the Victory Over VA Podcast now.

AND MORE TOPICS COVERED IN THE FULL INTERVIEW!!! You can check that out and subscribe to YouTube.

If you want to know more about Attorneys Francis Jackson and Kristian Terison, you may reach out to them at:

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