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JIM STRICKLAND'S MAIL BAG -- VA Watchdog's Veterans'

Advocate Jim Strickland answers questions from readers.

Veterans' Advocate Jim Strickland provides regular columns for VA Watchdog dot Org.

If you would like to contact Jim about his columns, you can email him here...

The archive of Jim's articles is here...

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Jim:

Below is an email I have sent at least twice before to the VA and apparently they have not responded to my question. Is there anyway you can assist me in this matter?

“My name is (redacted) SSN (redacted), Service Number (redacted), DOB (redacted), Dates of Service 07/29/1968-07/29/1972, USMC-Honorably Discharged.

I have filed an Appeal for PTSD, Anxiety, Depression and was examined at your (VARO) facility on 10/11/2007 by a Psychologist and would like to know the status of my claim. I have sent you a couple of emails but I'm not getting any responses from you on this claim! This claim I had initially filed at least one year ago and was wondering what is going on?”

Answer:

The VARO probably won't reply to you. It isn't right but it's the way it is. The VARO rarely writes or emails Veterans who have claims in process. If they did, they'd do so only to tell you that they'll get to your claim when they get to your claim. Their attitude is that time spent communicating with Vets about the status of their claim is time wasted that could be used working on claims.

If you filed a year ago and had an exam on 10/11/2007, it's very likely you'll wait another year before your claim is adjudicated. There are tens of thousands of claims ahead of yours and there is no way to move a routine claim to the head of the line.

The best I can tell you is to leave them alone. Calling, writing, emailing won't do anything for you. You're wasting your time, it's like arguing with a stop sign. If you haven't heard anything by this time next year, write me again. A 2 year wait is pretty routine...3 years isn't out of the realm of possibility.

Follow Up On The Above:

Thanx for the info even though it is not what I wanted to hear.

Jim:

I am 70% for PTSD and currently rated at 100% Inividual Unemployability (IU). As you know, I have been scheduled for a reexam in October of 2007. You have helped me get prepared for the reexam since August of this year. It's now November and I never got an appointment for the reexamination. Yesterday I got a single page letter that tells me that my dependents are eligible for CHAMPVA. Now what do I do?

Answer:

In recent months I've had reports of similar events from other regions of the country. One Veteran who was being reviewed had been told that after his reexam his benefits would be lowered from 100% schedular to 60% schedular. In that case I assisted the veteran to write a Notice of Disagreement (NOD) and requested a Decision Review Officer (DRO) review process and a personal hearing. A few weeks went by and the Veteran got a letter similar to yours that informed him of dependents eligibility for Chapter 35 Dependents Educational Benefits (C-35 DEA).

I hazarded a guess that in each case it meant that a decision had been made to grant the Veteran a rating of 100% disabled whether it was schedular or IU. I assumed that the lack of notification was sloppy work on the part of the VARO and that after the favorable decision was made, a reasonable document explaining what had happened didn't get sent out.

You decided to check up and you called your VARO. At first you were informed that you shouldn't have received that letter as the CHAMPVA privilege is reserved for 100% disabled Veterans. You persisted and were placed on hold. The VA representative came back a moment later to tell you that you were now 100% Permanent and Total and that she will send you a letter.

I'm hearing of more of these occurrences and I decided to do a sanity check with a trusted VA Insider. I wrote and questioned what may be happening. My hard working friend replied:

“There are lots of VA employees who don't know how to read their own computer screens. First, review exams are not automatically scheduled. His case was 'diaried for review' in October 2007. At that time, the folder came to the attention of a Rater who does a quick look-see at the case to see if an exam is really needed. This is really a judgment call by the Rater. These days, with the
workload climbing, Raters are really reluctant to schedule the exam unless they think it will result in a decrease in benefits. They consider things like the vet's age, the duration of his disability, maybe they look in CPRS for any hospital treatment. The bottom line is that they are looking for a reason NOT to examine. If they get one, they send it back to the Veterans Service Rep with a note that no exam is needed. If the VRS is sharp, then they send the vet out those P&T letters.

The key computer action by the VRS is to put the word 'NONE' in the 'Future Exam' block on the M-13 screen. That little bit of computer magic makes the vet P&T. I always tell vets to ask the phone person to read the Future Exam block on the M-13 screen.

Why? Because there is also a Diary block on the M-13 with stuff like a diary for a kid turning 18, an employment questionnaire, a spouse questionnaire etc. Too many telephone operators at VA look at that block and so 'Oh, I see a future diary for 10/2009, so you are not P&T.'

I suspect that happened with this vet.”

It all fits together. We know that the Veterans Benefits Administration is continuing to fall behind in its work. Read http://vawatchdog.org/07/nf07/nfNOV07/nf112907-1.htm  for more on that.

Raters work on a quota system. So that they don't fall even further behind, it makes sense that they will apply a bit of common sense to prevent more delays. Most reexaminations will only lead to appeals now that vets are getting smarter and that will clog the system to a greater degree.

If you know of a Vet who has received this sort of cryptic communication or if it's happened to you, please let me know at <jim912@gmail.com>
 

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Jim:

I read that article in VAWatchdog about getting free lawyer help. Where can I find a lawyer who will work on my case for free?

Answer:

You're talking about http://www.vawatchdog.org/07/nf07/nfNOV07/nf112807-4.htm

That USA Today article heaped praise for the, "Hundreds of attorneys from around the country providing legal service to veterans for free." The article focused on a meeting held at, “...Sidley Austin, a firm with 1,700 lawyers around the globe...part of a growing effort to provide free legal help to thousands of veterans returning from Iraq and Afghanistan who are trying to win disability benefits from the Department of Veterans Affairs (VA).”

I decided that a good way to answer your question would be to check with that firm's web site. I went to http://www.sidley.com/  and looked around.

Hmm, under the heading of “Our Practices” there's nothing about Veterans or disability law. So, I checked, “Other Substantive Practice Areas”. No, it wasn't there either. I know that every company site has a search engine specific to their site. It was right where it should have been so I searched for, “Veterans Disability” and “Veterans Benefits” and all I got was the message that, “Your search produced no results.”

Finally, using just the word “Veterans” I was linked to a page about the pro bono (no fee) services of this large firm. Listed in with 22 other categories of pro bono work the firm may do was “Veterans Appeals”. While many other categories were talked about, the topic of Veterans Appeals didn't get any comment.

The National Veterans Legal Services Program is well known for providing assistance to Veterans. You may learn more here http://www.nvlsp.org/  I checked their site to learn that, “Veterans Can Now Hire an Attorney to Appeal a VA Regional Office Decision Denying Benefits”. That's no longer exactly breaking news.

I was also made aware that, “VETERANS NEED YOUR HELP: VOLUNTEER LAWYERS NEEDED”.

Darn, this isn't looking too good so far. Where the heck are the, “ Hundreds of attorneys from around the country providing legal service to veterans for free” that USA Today spoke of?

Here's how I see it. There aren't hundreds of attorneys who are knocking down doors to give away their legal services to Veterans. There won't be a future where hundreds of lawyers are lined up on the street begging to give up their fees.

Before you lawyers start writing to me, I'm not here to bash a lawyer today. I think now that you've finally earned the right to represent Veterans you should get paid for your knowledge and your hard work. The rules have been set into law and your fee structure is right in line with much of the other work you do. I actively supported the push to change the law that allows you to help us.

I would support eliminating the VSO program as it exists today. The VSO system continues to believe that a quiz with some 25 questions on it is enough to allow a VSO to be “certified” to represent a Vet in an arena where his very future is at risk. This always strikes me as comparable to asking an EMT to do your brain surgery rather than paying an M.D. Sure, the EMT is a great guy and his intentions are good but there's a difference in how extensive the training is.

I prefer to use a licensed, skilled person who I can hold accountable. Enough said.

The article is typical of that flashy sort of journalism and it's the reason I don't read USA Today. It's irresponsible to lead Veterans to believe that they will find a pro bono attorney out of the “hundreds” who are suddenly clamoring for unpaid work.

The reality is this; Since June of 2007, lawyers may be retained to assist Veterans with appeals to denied applications for disability benefits. Lawyers can't help a Veteran with that first application for benefits unless they do it for free. Few lawyers have done that task for free for the last 50 plus years, I don't see that changing.

The lawyer who agrees to represent you on an appeal can now charge you a reasonable pre-determined fee from any winnings you may receive. I know quite a few lawyers. I don't know any who don't have bills to pay so I can't understand what might motivate a great attorney to take on clients who could pay but the lawyer won't accept pay.

Most of the lawyers at the many meetings that are coming together this year and next are already immersed in and skilled in disability law. They've been earning a living for years by representing clients to the Social Security Administration SSDI or workman's compensation cases to earn their clients benefits. They earn a portion of the SSDI client's award with a structured (contingency) payment and they will advocate for a Veteran in much the same way.

Like a licensed, professional race car driver, the lawyer who is accepting Veterans benefits clients is already skilled and practiced in the basics of the task...it's only a matter of climbing from one cockpit to another. He or she won't have a steep learning curve to become expert at VA law but will adapt to it very quickly.

Much to my astonishment, Congress did something right in 2007 by changing that absurd restriction that kept lawyers away from Veterans. Don't waste your time looking for a “freebie” to represent you with your VBA appeal. Look around at the firms that advertise on VA Watchdog and talk to a skilled, experienced lawyer about your case or write to me and we'll talk about a referral. You'll likely get what you pay for and you're much more likely to finish as a winner!

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Larry Scott  --

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