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JIM STRICKLAND'S MAIL BAG: VOLUME #27 FOR 2008 --
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...
To find an answer to a specific VA benefits
question, use the VA Watchdog search engine...
click here...
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by Jim Strickland
NOTE: Letters in my mailbag are reprinted
just as they come to me. Spelling and grammar are left as is and only
small corrections are made to improve readability, ensure anonymity or
delete expletives that may offend some readers. This is not legal advice.
You should always seek the advice of an attorney who is qualified in
Veterans' law before you make any decisions about your own benefits.
Jim;
I was wondering if you could answer this question for me. It's been a
couple of weeks since we last spoke and looks like I need a little advice
if possible. My claim is currently pending in my VARO. The 'C' and 'P'
exam basically are in a holding pattern to be rated. Since leaving El Paso
I have been using the Tri-care Insurance to get the help I need from
private providers. Some of the doctors that I have seen have been a
neurologist and rheumatologist. The VA has decided to put me in priority
group '6. The documentation the private providers gave me have sent to El
Paso letting them know I am sending more medical evidence. My question is
do you think this is wise of me to continuing to do that since my file is
already about 4inches thick with all the 'T's' crossed. It seems like I
just keep getting more documentation like a mad man. Is this wise of me to
do this or not?
Thank you for your time. Also I wanted to mention that I really enjoy your
columns.
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Reply;
You pose a very challenging question. I wish there were a clear answer.
However...as you say, "my file is already about 4 inches thick with all
the 'T's' crossed" I would lean toward not putting more icing on the cake.
I have 2 reasons for this thought...First, if you do have enough in your
file to win your case, adding more isn't necessary and will almost
certainly slow the process down. Second, in the event that you were
denied, you'd need "New and Material" evidence. Whether VBA would see what
you have accumulated as N & M is open to debate, at least you'd have
something to keep the action ongoing while you develop Plan B.
No matter what you choose to do, keep up the way you're thinking and
organizing. I think that it's a very good sign you're giving thought to
these details. This is how we win!
Jim;
When I received my 100% rating for PTSD I was told it said it was a
temporary award and would be reviewed in May of 2008. What does this
review consist of and will they want to take my 100% away?
Reply;
A 100% disability rating may be awarded as temporary or permanent. If
temporary, the VBA believes that with treatment or therapy, the rated
condition will improve. If permanent, the VBA believes that the condition
is chronic and is more likely than not to stabilize at 100%.
The VBA is required by law to rate a veteran appropriately for his or her
condition. This means that the VBA should assess veterans to rate them
appropriately and raise or lower the percentage of disability according to
a veteran's current health. In practical terms, if a veteran feels his
condition is worse and deserves an increased rating, he will have to fight
for it. If VBA needs a tool to help control the high costs of caring for
all of us, lowering the ratings of the highest awards offers one solution.
Your reexamination should be very much like previous examinations you've
experienced to receive your 100% award. By the book, VBA must examine you
and affirm that your condition is measurably improved before they can
propose to lower your rating. If your condition hasn't measurably changed
and the exam criteria is unchanged, your rating should remain unchanged.
Back to how things really work though, you should expect a letter soon
after your reexamination to tell you of the proposal to reduce your
benefit. This letter will include specific tasks that you must timely
perform or the reduction will proceed. During the first 30 days you must
reply to tell VBA that they should not alter your benefit until your
appeals process is ended. The first correspondence to the VARO should be
in the format of a Notice of Disagreement (NOD) and clearly state the
action that you disagree with.
Then you must tell them why you believe they've erred in the proposal to
reduce your benefit. At this point you should also request a personal
hearing, a Decision Review Officer process as well as specifying that you
seek a de novo review.
Frequently, the proposal to reduce a benefit is reasonable. The example
that most often comes to mind is a veteran with prostate cancer. Many men
will get prostate cancer. For most it's more an inconvenience than a
debilitating disease. If a Vietnam veteran has a service connected
prostate cancer he'll usually be rated at 100% while he undergoes
treatments of surgery, radiation therapy or chemotherapy.
Many men will return to good health after treatment and may only
experience mild residual symptoms. Those men should expect to see lower
benefits.
However, PTSD isn't as clear-cut as prostate cancer. To schedule a
reexamination on a veteran who is rated at 100% for PTSD or another
anxiety related mental health issue seems to usually have the immediate
effect of worsening the condition. The stress of knowing all that's at
stake for an already fragile personality may wipe away any benefits of
recent treatment and progress.
You should accept the examination in stride...you don't have much choice.
Then be prepared that you may have to fight to keep that 100% rating. If
you've remained in treatment and kept regular appointments as scheduled,
you probably won't have any issues.
Jim;
do you know of any lawyer's in my area that specilize in v.a. claims i've
had it going thru the american legion v.s.o. b.s. before being deployed
for operation iraqi freedom i was rated at 40% disabled while on O.I.F. i
under went an L-4-L-5 spinal and other spinal injuries to numerous to list
the va basically rated my spine at 20% which move me to 60% but according
my vso i stay at 40% because the va i will forward his e-mail to you i am
confused
Reply;
I understand. The system is very confusing. There are a couple of problems
you face though. You can't use a lawyer until you've been denied a
benefit. It appears you haven't been denied a benefit, you simply aren't
happy with the rating you received.
The "VA math" is almost impossible to understand. But your representative
is correct when he tells you that's how it is. This is the Combined
Ratings Table used here
http://frwebgate.acc
ess.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=38&PART=4&SECTION=25&YEAR=2003&TYPE=TEXT
You told me that your back was badly injured. If your back was injured and
you had corrective surgery and you were awarded only a 20% rating, that
sounds very low to me.
There is only one thing to do. You should notify your representative that
you are not happy with the rating for your back. Ask that he file a Notice
of Disagreement (NOD) for you and tell the VA that 20% is too low. If
he'll do that the VA may go ahead with a review of your back injury and
award a higher percentage. If that NOD is denied, then you will be allowed
to retain an attorney.
Jim;
Thank for all the great info your org. provides! It's a wonderful service
to needy vets. I have been reading your columns on the possibility of
losing Indv. Unemployability over time. I am a vet with Vietnam related
PSTD and Major depression for which I was given the 100% IU rating in 2006
for these 2 conditions. I also carry a 90% outright rating for these
conditions and diabetes II, djd rt knee, neuropathy both legs and hands,
kidney function problems and a hip condition. I have not been able to work
since Jul 2006 as a result of my mental and physical condition. I have
seen 2 Psychiatrists several times since 2006, one of them being a VA Dr.
Who changed my depression meds and dosage 3 times during that time period.
My question is this: Even though I see these Drs. My greatest relief is
from a non VA psychologist with a PHD.He also seems to have a better grip
on my cause and effect symptoms. The Psychiatrists seem to be only med
prescribers. I have been told that Psychologists don't hold much weight in
matters of testimony. Can you tell me if this is true? Also I worry that
when my actual retirement age arrives, I will be denied the IU of 100%
because I am no longer a candidate for the job market. Can you enlighten
me?Any info would be great. Thank you so much, Sgt of Marines 66-69
Reply;
Your "retirement" age won't hurt you. It's been questioned before how a
veteran who is in his 70s could deserve IU. That's the law....it's a given
that a veteran who lives until age 100 will keep getting his IU benefits.
Your current age may protect you a little. If you're past 55, they have to
have an unusual circumstance to try to lower your rating. You aren't
"protected" but maybe a bit more than a 40 year old.
PhD shrinks do have weight at the VA. In fact, a PhD shrink may have more
weight than an M.D. who isn't a board certified psychiatrist. I'd feel
safe to say you have fewer worries about the VA than most. Remember that
each year you should receive a form asking if you worked in the last year.
Mark that on your calendar and if you don't receive it, get some help to
determine why.
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Scott
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