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Jim Strickland is a Vietnam era Army veteran and nationally recognized expert on VA disability benefits.
Jim writes extensively about VA and Social Security disability benefits.
Jim's Mailbag is a regular column featured at Stateside Legal where veterans, servicemembers, and family members can ask Jim their questions about VA and Social Security disability benefits.
Question:
I am curious and can't seem to find an answer about my anxiety meds and marijuana. I don't live in a legal state, but am curious to try some marijuana to help with pain and other issues. I'm curious if my psychologist would stop my anxiety and sleep meds if I brought it up to them. Thanks for any guidance you can provide!
Jim's Reply:
The use of marijuana to treat medical conditions is controversial even in the states where it's legal. The VA doesn't care if you use illicit substances so far as your benefits go, no benefit will be interrupted because of substance abuse.
But...marijuana and other similar substances are psychoactive drugs and your mental health providers for the most part don't want you mixing any medicines with the ones they prescribe for you. That might even include alcohol and some over the counter medicines, anything that may skew the effect of the prescribed drugs is a concern.
The person who prescribes your mental health medications will have authority over whether or not your prescribed medications would continue if you added marijuana to the regimen. Each case would be decided individually and there isn't really any policy one way or the other except that everyone will remind you that marijuana is illegal. In your case it isn't just illegal at the federal level, you say you're in a state where it's still illegal so you have a steep uphill climb to convince anyone that it's a good idea to use something illegal.
So, what to do? It's a very personal decision and a lot of veterans decide to toss their prescribed medications in favor of using THC to control their anxiety and pain and to aid their sleep. VA tests everyone for drugs at almost every visit so be aware that you won't be able to hide the use of marijuana.
I'd offer that you should approach your provider and ask. If you aren't testing positive for marijuana at that time, if the provider says "no" to your using weed, you probably won't lose the prescriptions.
I'm in a state where medical marijuana is legal and relatively simple to get to. As I've said, a lot of older veterans I know in particular have decided to toss the pills and replace those with THC in one form or another and they are happier for it. It's your decision to make...remember that where you are, you can get in trouble and nobody from VA will be there to bail you out.
Question:
I recently was asked to do labs at the VA. I informed them I would not consent to a drug screen and that they didn't have my permission if they wanted to do that. They drug screened me anyway and I tested positive for THC. I'm mad as hell. I told them, "No drug screen" and they did it anyway. Does this mean the VA can override my medical decisions and do what they want?
One of the nurses drawing the blood said the VA was testing to see if I was taking my medications or if I was selling them. Great, but what would I sell? My prostate meds? I'm not on anything strong at all so they told me they would not drug test me, but they did anyway. Legally, if I refuse a drug screen can they do it anyway? What happens if I don't want a vaccine? Can they say ok and do it anyway? Do you know of any case law on this subject? I appreciate any help.
Jim's Reply:
You're right to be upset. I'm not sure I understand who you told that you would not consent to a drug screen but once you say that, there should be no further discussion and you should not have received a drug screen. VA policy is clear that permission...informed consent...is required.
Now we should address why you're so upset about a drug screen, You may know that VA doesn't care much if you smoke pot, there are no penalties for substance abuse of any kind. You won't lose benefits, although for anything other than weed you may be offered rehab. If VA is prescribing pain medications for you, the prescriber may interrupt that if you chose to smoke pot. That's fairly consistent with what's up with substance screens everywhere in America now...not only VA.
The deal is that VA is treating substance abuse as it should...as a health issue, not a criminal issue. Screening at every encounter is no different than checking your liver and kidneys to be sure they're functioning. Without the lab test your provider wouldn't know you had a problem.
I'm a retired health care professional and I agree with the position that every adult should be screened at every encounter. And since we're talking of that, I had a visit with my primary care doctor just yesterday and we reviewed my lab work drawn the week before and he never mentioned my positive marijuana screen. In fact, over the last 20 years not one person at VA has said one word to me about smoking pot.
The best I can offer you is that were I you, I'd reexamine why I'm so upset over a really trivial issue. You can talk with your primary care provider and let that person know that you're unhappy. If you feel it's worth your time, you can escalate to the director of the facility and have everyone wondering why you're so concerned.
Some form of marijuana use, recreational or medicinal, is legal in the majority of states. That the feds haven't caught up with that yet is no reason for you to act like you're sneaking behind a bush to get high. Were I you, I'd either quit smoking pot or own up to it. Good luck.
Question:
Hi, Jim. Thanks to you back in 2014, my husband applied for and received 100% disability rating for his high risk prostate cancer. As we do estate planning for the future, maybe you can help us again since my husband's cancer is now stage 4. There is an eight-year qualification rule for spousal DIC payments that military.com describes as: The veteran must have been rated that way for at least 8 continuous years immediately preceding death AND the surviving spouse had to be married to the veteran for those same 8 years. My husband applied for disability payments in November, 2014 when he was diagnosed with prostate cancer. due to Agent Orange exposure. He got a notice in March 2015 that he qualified for !00% disability payments. Payments were backdated retroactively to Nov. 1, 2014. So when does the eight-year rule start: diagnosis date, application date in November, 2014 and retroactive payments began, or March, 2015 when notification about monthly payments began? Thanks in advance for your help to all disabled vets and their families.
Jim's Reply
I'm familiar with the article, not one of my favorites as it's confused a lot of people. https://www.military.com/benefits/survivor-benefits/dependency-and-indemnity-compensation.html
The surviving spouse of a disabled veteran may or may not be eligible for DIC benefits. DIC benefits aren't a part of the veterans disability benefits, they're in a class of their own. For the surviving spouse be eligible for DIC benefits the veteran must die of a rated service connected condition OR have been rated as 100% P & T for at least 10 uninterrupted years.
The veteran who has been rated as P & T for at least 10 uninterrupted years can get run over by a bus and the surviving spouse is eligible for DIC. Veterans...you've been warned.
The 8 year rule you're speaking of is for an additional benefit to the base rate after eligibility for DIC is established. "Add $288.27 if, at the time of death, the veteran was rated 100% disabled or unemployable as a result of disability. The veteran must have been rated that way for at least 8 continuous years immediately preceding death AND the surviving spouse had to be married to the veteran for those same 8 years."
In other words, if the survivor is eligible for DIC based on death by a service connected condition and at the time of death the veteran was rated as 100% schedular or 100% TDIU and was rated as P & T, there is an additional $288.27 added to the benefit.
If I'm interpreting your message correctly you and he believe he will likely die from the service connected prostate cancer. That would establish your eligibility to the DIC benefit because he is service connected. His 100% rating started in November 2014 and that is known as the effective date of the rating and is the start date of the 8 year rule.
Thanks to you both for taking estate planning in stride and getting it done right. I have had fewer heartbreaking tasks than to try and help a widow when the veteran wouldn't talk about VA for whatever reasons. Death and taxes, as they say, should compel everyone to plan for our inevitable demise.
Give him my best and a salute from me, please.
Question:
Dear Jim...what are my rights when I say yes and take a toxicity urine test?
Jim's Reply:
Well, I suppose it depends on the circumstances. If this were a pre-employment screen you could decline and forget the job. If this were during your work hours, like a random drug test policy or a test done because of an accident or event, then that's sort of between you and the employer and you would be well advised to speak with a lawyer. If you're thinking about the routine drug screening that occurs to all of us at VA health centers, you have the right to decline testing before it's done and pretty much nothing will happen. Substance abuse at VA doesn't have any connection to disability benefits so the most that would happen for a positive screen would be a recommendation to pursue treatment and VA wouldn't prescribe narcotics to you. Most won't blink for a positive marijuana screen, few care about that these days. Other drugs are a problem though so ask yourself why you want to avoid drug screens?
Marijuana Laws by State in 2021: A Legal Weed Map and Short Guide to Regulation
Marijuana Legality by State: A Comprehensive Interactive Map
Question:
If I'm found to have amphetamines in my system, can the VA. take away my monthly disability check?
Jim's Reply:
The Veterans Health Administration (VHA) tests everyone who walks in the door for abused substances. Most vets call this 'random' screening but the fact is there's nothing random about it...everyone gets tested. Although they're supposed to tell you (Informed Consent) that never happens and if they were to tell you and you declined...then what?
I happen to agree with the VHA approach. VHA treats substance use and abuse as a health care issue, not a legal problem. Nobody calls the cops, there's no punishment...it's all about treatment. Let's be honest...amphetamines aren't good for you. Neither are things like opiates or cocaine or any of the many other things we come up with to alter our reality.
No...VA will not modify your disability benefits because you pop positive on a drug screen. For anything other than weed, you'll likely be referred to a rehab program and you should consider that option. If you're burning some rope, your provider may not even mention it...marijuana is pretty common these days.
What may also happen is that your providers won't prescribe pain meds to you in the future. Once you've tested positive for any illegal drug (even marijuana in a legal state...it's still illegal federally) the option seems to be that you won't get any pain drugs at your VHA.
Please do give some thought to seeking some treatment if you have a problem with speed. Amphetamines are the original 'burning the candle at both ends' drug and although you feel like Iron Man now, the havoc they wreak on your body won't be fun 10 years from now. They don't make you any smarter either. Good luck!
Question:
What happens if you test positive for marijuana and you’re on pain med and PTSD meds?
Jim's Reply:
That's up to the doctor who is prescribing the meds in question. Some doctors are OK with weed, others aren't. You'll have to address that with your care provider. Testing positive for drugs won't affect disability benefits.
MMMmmmK?
For the first time, U.S. panel recommends screening adults for illicit drug use
“We have a pretty high prevalence of adults using illicit drugs and we’re seeing harms every day from that. This is a big change
that we’re really excited about. Effective treatment is where we will finally begin to move the needle on the epidemic.”
Medicare
Question:
Hello Jim, I'm a 100% disabled Veteran and on Medicare part A. I stopped part B around 6 years ago because I never used it for medical reasons. I'm turning 65 soon and am getting correspondence from Medicare to pick up part B again but pay late penalties. What's your take on getting Medicare parts A and B? I appreciate your guidance and help with this matter. They want me to sign the notice card to opt out of Medicare part B by July. If I don't sign the card and mail it in they'll make the penalty adjustments and place me on Medicare A and B again.
Jim's Reply:
Medicare A is required when you begin taking your SSA retirement or SSDI, opting out is very difficult. Medicare B is optional but as you've learned, if you don't take it when first offered the penalty for that can be brutal depending on how many years you delayed.
Health insurance is a very personal decision. If you live within easy reach of a VA medical center, that's likely all you need. If you aren't within an easy drive to your clinic, you may want Part B so you can visit civilian physicians at very low cost.
I have it all...VA care, Medicare A & B because I'm 3 hours away from my VA hospital and I'm 1 1/2 hours away from my VA primary care clinic. My small community has a very nice and highly rated hospital and a bunch of doctors offices that are less than 10 minutes from my house.
You see where I'm going with this. It's a lot more convenient for me to use my Medicare even if it costs me a little more. I do stay connected to VA health care because I like my VA primary care guy a lot and I have all prescriptions filled through VA.
You'll have to decide for yourself how much money you want to spend protecting your health and how comfortable you are relying on VA if you do without the extra insurance. Good luck sir.
Typical VA
Question:
Jim I was tested by cardiologist and diagnosed with IHD. I filed a claim in Feb of 2020 and was awarded a 30% after almost a year of waiting. While I was waiting for the decision, I had a heart attack and was stinted. I filed an additional claim for the heart attack and was denied. They said I was already getting a 30% comp. and the heart attack was not service related - even though the 30% is for A/O IHD. Should I have been given the 100% for 3 months for the heart attack?
Jim's Reply:
Welcome to the VA!
You will have to formally appeal. On appeal you may or may not receive a higher rating. The IHD rating is based on how well your heart is functioning, not by the number of procedures you have or how many bypass grafts, stents and so on. If you had a heart attack and the stent was placed before any major damage and scarring happened, 30% may still be appropriate.
Yes, you should have been rated at a 100% temporary status for the recuperative period and then assessed with another C & P exam before a more permanent rating was awarded. This is a common error and once again, you will have to file a formal appeal to get it corrected. Good luck.
Question:
Can I lose my VA benefits if I refuse drug testing? I am treated for mental health issues among other health issues. No prior history of usage, 20 years of service, and 16 years of VA documented medical treatment and drug testing... never one positive test.
Jim's Reply:
No. Benefits aren't associated with health care. Drug screens aren't meant to be to set you up for punishment, they're to detect a health care problem just like a kidney test or a liver test. VA is treating substance use and abuse as a health care issue, and that's very appropriate.
Substance use, substance abuse, smoking marijuana in a legal state...the rumors and the controversy rage on.
Here are the facts. VA could care less that you burn rope whether it's legal in your region or not. There is no penalty for using marijuana, you will not lose any disability benefits for abusing any substance. If you test positive during a not-so-random drug screen, your provider may tell you that there won't be any more pain meds prescribed but other than that, there is no penalty. If you test positive for opiates or cola or speed or whatever, you'll get a referral to a rehab program...maybe. That's it, nothing more. Your rights are not being violated by drug screening you. Get over it. Drug abuse, particularly opioids, is a huge health problem in our country and VA is treating that like a health problem...not a criminal issue...and that's a good thing! I support drug screens of all adults at every encounter. It amuses me when my lab result for marijuana says HIGH.
No, you do not have to submit to
a drug test at VA.
You can tell your provider you do
not want to be screened for drug use...
But that raises the question...why?
What are you afraid of?
Citation Nr: A21013934 DATE: August 19, 2021
CONCLUSION OF LAW The character of the appellant's discharge from service for the period from
October 2, 1979 to March 26, 1981 is a regulatory bar to the receipt of VA compensation benefits.
38 U.S.C. § 101, 5303 (2020); 38 C.F.R. §§ 3.1, 3.12, 3.301, 3.354 (2020)
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