VA Watchdog Stuff
cups, hats, shirts
click here to
support the site





Be sure to get all four
VA Watchdog dot Org
RSS feeds --
Daily VA
News Flashes
House CVA
Veterans' News
Senate CVA
Veterans' News
VA Press
Releases

Download your
free copy of the
2007 VA benefits
handbook here...

Social Bookmarking

 

IT'S TIME ONCE AGAIN FOR JIM STRICKLAND'S MAIL BAG --

Veterans' Advocate Jim Strickland answers

questions from VA Watchdog 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...

   Learn More about how to get a VA Loan today -- Click Here

-------------------------

NOTE:  Spelling, grammar and punctuation found in questions are as they were received.

Question:

I am a disabled vet and was told by the vfw representitive at the va hospital that I had a protected rating.That after twenty years drawing 100%,I could do anything I wanted and the compensation would not stop.Even if I could or wanted to work and receive another income.I guess it was his way of exclaiming my now protected status.He gave me a copy of where it stated that from his spiral back,book.I don't have it with me to read the section and numbers or I would rewrite the section here.From what I am reading lately,the rules of the game could change anytime now.I have not had another c%p since my 20th and I am not sure if I have any such paper you mention to others when asking does it say this or that.My award letters are numerous and I never have reason to read them much.The doctor who I had my last schelued exam was also the doctor for my first exam.He joked an said see you in another 20 years,but conceded he would not be there then.Is it probable now that people like me now,will be called back in for future exams?Thanks so very much for reading my question.

Answer:

It all depends. I'm putting some of the code that affects all this below. I'm going to assume you are rated at 100% "schedular" and not "IU" although you didn't say. More about that later. If the effective date of your 100% rating was 20 years or more ago, you probably have nothing to worry about. As a rule, I don't trust the VBA to honor any of this though...I've said it before, when the VBA tells you that something is "Permanent and Total" (P & T) they are actually saying that it's temporary and less than 100%.

VBA is on constant alert with a mission to reduce your rating. To think otherwise is like believing you should allow IRS to calculate your taxes for you or hiring a fox to guard your hen house.

The VBA games you with complex phrasing. The VBA considers that on your award letter entering the phrase, "eligible for Chapter 35 DEA Benefits" means P & T. Chapter 35 DEA Benefits are educational funds for dependent children and VBA uses this term even for Vets who don't have any kids.

When you tell me, "My award letters are numerous and I never have reason to read them much", that causes me concern. Are you positive that your 100% P & T, "no future exams" award letter is 20 years old? I'm aware of cases that the VBA has waited for 19 years and a few months and scheduled a Vet for a repeat C & P and lowered their rating days before the 20 year mark.

Were I you, I'd be digging through my files to find that single magic letter dated more than 20 years ago that will confirm the date of your 100% P & T rating. If you don't have it, the VBA may not have it either...they are famous for losing records. If you can't be sure of the date of the award, I would be somewhat concerned.

Finally...if your 100% rating was "schedular" and not "individual unemployability" (IU), you could have worked all along and earned any income you desired. Your VFW VSO should have known that many 100% 'schedular" rated Vets work productively within the VBA, VFW and DAV, amongst other places. You are only restricted from working when you are 100% under the IU rules...the word "unemployability" being the catch.

§3.951 Preservation of disability ratings.

(a) A readjustment to the Schedule for Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved. (Authority: 38 U.S.C. 1155)

(b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. (Authority: 38 U.S.C. 110)

§3.957 Service connection.

Service connection for any disability or death granted or continued under title 38, United States Code, which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with §3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation. (Authority: 38 U.S.C. 1159)

§ 3.343 Continuance of total disability ratings.

(a) General. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).

Question:

It has been awhile since we emailed regarding my Tinnitus claim & I have added the thread to refresh the memory. I want to thank you for all your help & assistance,tips & advice, through out the process of dealing with the VA. I was awarded 10% for Tinnitus July 2007 with retro back to April 2005. Almost 2 1/2 yrs of patience! As of last week the VA finally fixed my pay problem issue. they sent my award package with Retro check to the wrong address! They traced all the letters & reissued the checks but sent it back to the wrong address! But in the end all is well. Thank you again for helping me, keep up the great work with your columns, I look forward to them & pass them on to other vets.

Answer:

What a great way to start a week! Thank you so much for sharing that with me. I recall that you had been denied benefits and that you chose to “Do It Yourself” for an appeal. I also remember that we went to our friend Ed Ball for advice. Ed had recently written an article on compensation for hearing loss. You can find Ed's excellent advice here;

http://www.vawatchdog.org/07/
nf07/nfMAY07/nf050207-7.htm

I know how frustrating all this can be but as I preach from my soapbox, it can be done in spite of the inherit obstacles of the VBA. Perseverance, patience and a positive attitude win every time. While it may be frustrating, the day you're notified that you've won brings a degree of satisfaction that almost makes it all worthwhile. The back pay doesn't hurt either.

Question:

I was reading this at VAWATCHDOG: PRIVATIZING THE VA: HMO TO PROVIDE SOME VETERANS' HEALTHCARE IN PARTS OF 23 STATES -- Humana Veterans Healthcare Services, led by former VA official Alfonzo Poteet, gets Project Hero contracts. and find myself really concerned, as I had Humana Gold as my Medicare supplement, only to be notified by Orthopaedic Clinic that if I used Humana I could no longer be seen by any of their physicians. I went to a consult at a local Gastroenterology clinic for an upcoming colonoscopy, only to see a sign there that they no longer accept Humana. It appears that at least here in (in my hometown), Humana is not working out so very well. In talking to (these doctors) they withdrew from Humana because Humana would not pay for certain tests their Dr.'s felt were necessary (this is what I was told, I can not attest to the validity of the statement). What do you think?

Answer:

I'm beginning to waffle a bit on this issue. I had originally thought the only answer would be to increase funding to the VA hospital system, not to parcel us out into civilian health care. Then someone posed an argument that made me think... Years ago, the VA created 2 giant systems of funding Veterans. First was health care. They built a system of hospitals and doctors exclusively for Vets. Until recently, it was a horrid system and you wouldn't have wanted your pets treated there. Now it's better but perpetually underfunded.

Then came the GI Bill in one form or another. The VA didn't build a network of colleges and teachers just for vets. They gave us money or credit to do what we wanted to do...within certain guidelines. That system has worked rather well.

The world of health care is in upheaval. I confess I'm becoming a proponent of a Medicare-like system of health care for everyone. I simply don't see any other solution. What we have now..."free-enterprise" health care obviously isn't working.

I love my VA health care. But I needed some very minor surgery recently. In February 2007 I visited a podiatrist at VA. He agreed minor surgery was necessary. He referred me to the hospital based podiatrist and I was seen in April. X-rays were ordered and I had a pre-op visit in July for surgery scheduled in August. I showed up for my surgery late in August to have it canceled because of some lab issues.

I was rescheduled for another pre-op visit in late September for tentative surgery in October or November. On a Tuesday early in September, I got tired of it all and called a local civilian orthopedic surgery group. Of 16 doctors, one is a foot, ankle and lower leg specialist...an M. D. I have Medicare and I decided to pay any deductible out of pocket.

I saw an orthopedic surgeon the following Friday and then the following Tuesday, in the doctor's office based outpatient surgery suites I had my surgery done in about 20 minutes. I was there for all of 1 1/2 hours. After 2 follow up visits for my little operation, I was billed my co-pay of less than $150.00 for it all. In one week I had done more than VA accomplished in 9 months. I figured that with driving back and forth to the VA hospital and being reimbursed 11 cents per mile...I saved money by paying the local doc $150.00.

So...to answer your question...I'm not sure what I think. The health industry is beginning to look a lot like the used car industry with a lot of "buyer beware" built into it. Veteran or not, a smart health care consumer is going to have a lot of studying to do before purchasing anything.

Question:

Re; Taps. A flag presentation to the widow and a gun salute.

http://vawatchdog.org/07/
nf07/nfOCT07/nf102007-7.htm

In this article you state; A veteran who is rated as 100% P & T "no future exams" scheduled gets CHAMPVA health coverage and other benefits for dependants. I am under the impression that Champva is an income based program for my dependant wife. Also I am informed that all income is to be accountable for possibility of enrolling in Champva. IE; Military Retired Pay, VA, Social Security, etc Based on your statement, who is actually eligible for Champva ???? I personally am rated at 100 %, scheduler with no future exams, and have a single Combat related rating at 100 %, plus additional ratings to qualify for SMC "S".

Answer: CHAMPVA is not means tested. You may find eligibility details by clicking here

http://www.va.gov/hac/forbenefic
iaries/champva/champva.asp

Question:

My husband served in Thailand and VN late 60's early 70's. fell off a 40 foot flatbed trailer onto a bomb fin that lodged in his spine...... After discharge, he sought help from a civilian Chiropractor (still in business). This doc is the only tie to the 'treatment sought upon discharge for this service connected disability' (back and hips). Our dilemna is this: Doc acknowledges him, remembers him, remembers the problems, but REFUSES to sign anything for the govt, for fear of 'legal action'. I have checked with Tx. Bd of Chiropractors. He is in good standing and current. VA has requested and received nothing from this guy....only required to keep records, a minimum of 7 yrs in Tx. These are 20-90 y/o records. Acknowledged this on the cell phone conversation 10 days ago. Do you have any kind of 'tricks' that may 'inspire' this doc to sign a general statement without details. any ideas.... please advise.... This claim is down to the last 30 days of remand at the appeals mgmt board in Wash DC.

(A letter to a chiropractor is attached...)

Answer:

I'm afraid I don't have good news. I'll play Devil's Advocate here to explain. We'll start by looking at your letter.

You say, "your expert medical treatment of me" when in fact, there was no medical treatment. There was chiropractic treatment. There's a big difference. You say, "(This) state says that a physician..." and he is not a physician. Again, a big difference. That in and of itself is a huge issue. He's not a medical doctor. Neither the VA nor the Social Security system lend as much credibility to the testimony of a chiropractor as they would a board certified medical doctor.

Further, if treatment were sought in the 70's and 80's but not for the 90's and into 2007, what happened? Over 20 or close to 30 years with no treatment records? The VA will only assume that there was no lasting injury.

If your statement, "a bomb fin that lodged in his spine" is correct, he must have had immediate and extensive surgery. That sort of injury would be horrid and would have required an intensive care unit sort of setting to survive. There would be a major scar from the injury itself as well as subsequent surgery. If there is no scarring, the VA will not believe that there was "a bomb fin that lodged in his spine".

The chiropractor (or any other health care provider) is under no obligation at all to write any sort of letter. If you were able to convince a judge that the chiropractor had meaningful evidence and was intentionally withholding it, a judge maybe could make such an order...but I doubt that will happen. And...as I said before, he isn't an M.D., so it wouldn't carry much weight even if he signed the letter you request.

To win a case like this you need to have solid evidence.

First...evidence of an event and injury resulting in a "condition". Military records should reflect that an accident occurred injuring his back. The date that occurred, treatment and so on should be available.

Second...treatment records that show an ongoing pattern of a continuing "condition". If there was a serious back injury, there will be records of x-rays, sick calls and hospitalizations during military service.

Third...after discharge, medical records (not chiropractic) that clearly show that the condition that originated in service is continuing to be a serious issue. Regular visits to seek treatment...doctors (M.D.) records, surgery reports, CT scans, MRI scans and pharmacy records help to establish the continuity of the event.

Finally, number four in the line up......a statement from a currently treating physician (M.D., not chiropractic) that records have been reviewed and the physician reasonably is sure that the current condition is related to military service. This is called the nexus letter.

If you don't have any or all of the above, it is very doubtful that VBA will award any benefits.

If I've missed something, please let me know. With what you've told me though, I'm surprised that none of your advisers has let you know that you don't really have a claim. I'm sorry to be the one to say that but again, unless I am missing something, I don't see any service connected condition.

Question:

I SURE WOULD APPRECIATE ANY HELP YOU COULD GIVE ME REGARDING MY BROTHER. HE WENT TO VIET NAM FOR A YEAR BACK IN 1968. HE WAS ONLY 18 YEARS OLD AND IT REALLY MESSED WITH HIS MIND FOR A LONG TIME, ANYWAY, AFTER HIS VIETNAM TOUR WAS OVER AND HE CAME BACK TO THE STATES HE WAS GOING TO BE SENT TO GERMANY FOR HIS LAST 6 MONTHS IN THE SERVICE. HE SAID HE JUST COULDN'T GET ON ANOTHER PLANE AND LEAVE THE U.S. AGAIN. SO HE WENT AWOL FOR AWHILE. HE TOOK THE OTHER THAN HONORABLE DISCHARGE I GUESS FEELING LIKE HE DESERVED IT. NOW IN HIS LATE FIFTIES HE WAS JUST DIAGNOSED WITH DIABETIES. WITH ALL THE AGENT ORANGE DATA I'VE HEARD OF IT SEEMS LIKE THEY WOULD MAYBE DO SOMETHING FOR MY BROTHER, HE DID AFTER ALL SERVE A YEAR IN VIETNAM.

AGAIN I WOULD APPRECIATE ANY HELP OR DIRECTION YOU MIGHT POINT ME IN.

Answer:

There's a lot your brother can get from VA. I get this kind of question all the time and there are many remedies available. From what you've said so far, getting health care and some benefits probably won't be hard. It will require a fair amount of paperwork, some frustration with all that paperwork, and waiting patiently for 18 months or so. The VA is that far behind and there is just no way to speed it up. I need to know 2 things. Are you and your brother up to all that and how will you prove to me that you have his permission to act for him? Unless I know he approves of all this, I can't do a thing.

(Updated) Your answers have been most helpful. We've determined that your brother should proceed to complete the necessary procedures to ask that his Other Than Honorable (OTH) discharge be upgraded. You've started that process. We also determined that he should go ahead and apply for VBA disability benefits. Unfortunately, we soon found out that he has lost his DD214 document. You now have all the necessary addresses and telephone numbers to help him get a new DD214 issued. As soon as you have that in hand, we'll go back to the application for a disability award as well as to get him registered at a local VA outpatient clinic.

---------------

Larry Scott  --

Don't forget to read all of today's VA News Flashes (click here)

Click here to make VA Watchdog dot Org your homepage

email Larry

(go back to VA Watchdog dot Org Home Page)

VA Watchdog Stuff
cups, hats, shirts
click here to
support the site