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JIM STRICKLAND'S MAIL BAG: VOLUME #17 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...

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

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 am having trouble finding the codes that relate to my back injury. The only codes I have found in the CFR that could be related to my claim is Code 5320 Lumbar Region and Code 5237 Lumbosacral Strain, I don't know which condition relates to me. Should I put in for both & see what happens?

I haven't been scheduled for a C & P as of yet. Do you know what I should expect in a Back C & P? or could you turn me onto someone who deals in back injury claims specifically with the VA? I am doing the DIY approach thanks to your guidance.

Reply;

When you're finally scheduled for an exam, this link may help. You may have seen this but it's a good start. Pay attention not only to back related issues but 4.59 painful motion, etc. The examiner will focus mostly on measurement of how far you can bend in given directions. If you are able to move (x) degrees, that will be the score assigned whether the motion is painful or not. I'd tell the examiner, "This is my limit or it becomes very painful." and stop there.

http://www.access.gpo.gov/nara/cfr/waisidx_04/38cfr4_04.html
 
Pay particular attention to "facial grimace" and other signs of pain. Make a point that you need help to get in or out of bed, get dressed, or whatever else hurts. Don't make it up or fake it, but do be
accurate and don't miss anything. The whole point is to show the examiner the worst symptoms you have and how they limit you. The VA would prefer to see you on your best day and just how far you can push yourself.

Write down what your points are before you go. Work from your notes so you don't forget to tell your examiner an important detail. That way, if in the future you find that the examiner didn't report all you said, you're better prepped for appeal. Much of what we do is in preparing for the inevitable appeals of errant decisions. I'm seeing as many as 75% of initial adjudications today that will have to be appealed. The error rate by VBA is stunning and your appeal to a higher authority will be based on the records you've kept of your initial process.

Examiner's worksheets are here
http://www.vba.va.gov/bln/21/Benefits/exams/index.htm

All too often, the examiner strays from these and the exam is incomplete. That's an appeal point.

The specific back (spine) exam worksheet is here
http://www.vba.va.gov/bln/21/Benefits/exams/disexm53.htm

Before you go, make sure you know what you want to say in regard to these points. Write down bullet points of the important things you want to impress on the examiner. You can even make an extra copy to leave for the examiner. They may not accept it but if it is accepted, you're one step ahead.

Jim;

I am a 70% vet with unemployable for PTSD. Currently the PVA is trying to get me an additional claim for Multiple Sclerosis, back to 70 when I got out of the Army. They have put me in for SMC. What is this and how does it work?

Reply;

SMC is a Special Monthly Compensation benefit. It goes above and beyond the 100% mark and is reserved for veterans who have lost a certain degree of mobility, have experienced paralysis to some degree, lost limbs or otherwise are seen to need a caregiver in some capacity to assist with activities of daily living...ADL's.

From the VA web site...

Special Monthly Compensation (SMC)

Special Monthly Compensation (SMC) is a rate paid in addition to (i.e., SMC (K)) or in place of 0% to 100% combined degree compensation. To qualify, a veteran must be disabled beyond a combined
degree percentage or due to special circumstances (i.e., aid and attendance, loss of use of one hand, etc.). SMCs are referred to by the letters (K) through (R.2). These alphabetic designations follow
the paragraph numbering system in 38 U.S.C. §1114 (also see references to that in 38 CFR §3.350 below).

Eligibility criteria, see 38 CFR §3.350 (Special Monthly Compensation)
http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_350.DOC

Rates, see Special Monthly Compensation (SMC)
http://www.vba.va.gov/bln/21/Rates/comp02.htm

I'll assume your MS diagnosis was within the last few years, has progressed to a point where you need help with ADLs and PVA believes that you had some manifestation of MS in 1970. If VBA agrees, you could potentially see benefits retroactive to that time. However, those sort of retroactive benefits are very hard to prove and are rarely awarded. As it is a fairly complex and bold filing to make, someone at PVA must think you have a good case. PVA has a reasonable track record of advising veterans so you are likely getting good advice.

Jim;

I have been 70% PTSD with IU since July 2005. "Permanent and Total"

Yesterday I received a letter from the VA notifying me that a re-evaluation of my service connected disabilities will be conducted.

Having read and saved your post of 2/19/07 on Permanent and Total I have been expecting this to happen some day. I have continued to see a VA psychiatrist at least every other month and a private psychotherapist every other week since long before getting the 100%.

Any further advice you might offer me in advance of this re-evaluation would be most appreciated.

Reply;

You aren't alone! Many of those letters have gone out. There's little question that PTSD is in focus. It's always been a controversial diagnosis. It just amazes me that the VA is seemingly ignorant of the fact that a PTSD patient wants and needs a steady and safe environment. So, what do they do when that environment is achieved? They upset it with a reexam.

Bottom line, there isn't a thing to do today but play the game well and do your best to cope as you go along. You're far ahead in that you've kept up your steady therapy and you likely won't have any problems.

Once you have your exam, one of 2 things will happen.

First, not much. Life will go on as you like it.

Or...you will receive a notice that is a proposal to reduce your benefit.

If this happens, don't panic. It's only a proposal. You have appeal rights and can stop it dead in its tracks. It takes a bit of effort but it really isn't a huge deal. However, there are timely actions that must proceed immediately upon receipt of a proposal to reduce benefits.

You will have 30 days to reply and inform the VBA of your Notice of Disagreement and that you wish for your benefit to continue as is, uninterrupted. If you don't meet the 30 day time line, your benefit will be reduced per the proposal while you appeal the action. Beyond that 30 day window, you have the usual rights to appeal and have a personal hearing and so on.

Receiving a proposal to reduce your benefit isn't the time to panic, it is the time to take immediate actions to protect your rights.

Jim;

We received another request for information. In January I sent the (VCAA) letter we discussed requesting that they proceed and requested they schedule my husband for a C & P exam at the VA Hospital.

My husband is getting very frustrated with the numerous requests for additional information (we get about one a month). He feels that the request is only an attempt to satisfy some internal requirement that they are indeed working on his case and that in actuality, nothing is being done. He attempted to contact a live body and called the 800 number listed on the letter but the number will not go through. He checked all of our correspondence and that is the only contact number listed.

He did finally talk to someone this afternoon but basically was told that she did not have a copy of the most recent correspondence in her computer and was thus unable to help him. She attempted to disconnect him numerous times before finally ending the conversation.

My husband was able to find out that, although the most recent letter stated that they had not received records from various hospitals and doctors, they had in fact received records from everyone the letter said that they were lacking. I sent them copies of my husband's entire file from his civilian doctor's office (including hospital notes) when I sent the original paperwork. Many of the doctor's offices are now charging $25 per request, as well as $1 per page for any copies they are required to make.

My husband is contemplating making a trip to the VA Regional Office to view what paperwork they do have and to have them identify exactly what it is they believe they are missing. I am not sure that this is necessary nor am I sure if it would accomplish anything and would like your feedback.

If you have any other suggestions, please let me know.

Reply;


Your veteran husband is correct, right on the money. The letters requesting more information are only a smokescreen meant to satisfy the requirement of the VA's "Duty To Assist". These are known as the Veterans Claims Assistance Act (VCAA) letters. This gets pretty complex and you can bore yourself to tears by clicking here http://www.nvlsp.org/Information/ArticleLibra
ry/VABenefits/VETBEN-CLAIMSHELP.htm

The Cliff Notes version is that VA is required to notify the veteran that they should give the VA a lot of evidence. The VA is required to help the veteran gather the evidence...that's the Duty To Assist. Prior to VCAA the VA had little obligation to ask for records...each veteran is supposed to be born knowing all this stuff.

So today, they practice overkill and while your file is gathering dust in its place in a very long line, the computers send out these idiot letters. The result is just what you and he are experiencing today. The constant onslaught of form letters that request information you've already provided usually results in the veteran being confused and angry. It's a terrible system that makes little, if any, sense.

Ultimately, there is absolutely nothing that can be done to move his claim along. Today the VA is close to being 400,000 claims behind. The error rate in initial adjudications has risen to an alarming degree. The appeals of these errors is causing a steady stream of rework to get it right.

The way a file travels through the VARO is incredibly complex. I've seen studies that say a file must hit over 100 check points before it reaches anyone who can actually do anything with it.

Simply described, your claim is in line, marching along at a snail's pace. I'm estimating 1 to 2 years on claims before they even get a first glance. In other words, all of that stuff that you sent in and all of the stuff that they have requested is in his folder and no authority has looked at any of it yet. Eventually, a Veterans Service Representative will get it across his desk. The VSR will make a number of quick decisions and if more is needed, he'll set about accomplishing that. One thing the VSR will do is make the appointment for a C&P examination.

Once the C & P exam is done the file returns to a VSR. If then, the VSR deems the file complete enough, he puts it in the line to go to a rater. The rater will eventually peruse the file and determine how it is to be adjudicated. That rater will make the call and enter the data into a computer to send out letters. If there is an award with retroactive pay, the information is sent on to a finance department to calculate it and issue a check.

If the claim is denied, you will receive the denial letter.

The issue is simple...they are (plus or minus, I don't trust anyone's quoted numbers) 400,000 claims behind at 57 VA Regional Offices. Claims are pouring in daily at an astronomical rate from our current war veterans. Even more claims are pouring in from the very disgruntled older veterans who are getting sicker as they age. We've all discovered our appeals rights and we're appealing anything and everything as if it were the accepted norm...thus it is!

Because of the downsizing of our military and our VA during the Clinton years, the VBA is some 1500-3000 people short. There are a handful of qualified raters at each VARO. They are hiring at a
breakneck pace but it takes about 2 to 3 years to train a rater.

I rarely recommend calling the VARO because it usually ends up...well, just like you experienced. No matter how much paper is in that file, it isn't routinely annotated in a computer until a VSR gets it. Your VSR is maybe a year behind. So, the telephone representative looks at the computer screen and...nothing! And you have steam blowing out of your ears while all this is happening.

There is no reason to drive to your VARO to view your files. You may drive over and have a look at your file if you wish but until its turn comes, nobody else will look at it. That is, you may see your file if you can find parking. Parking is atrocious, security is very tight and once you're there, you take a number and wait in line. They don't make appointments

I know this is unbelievable and your veteran husband is likely to think I'm full of straw by now. But, this is the reality I deal with each day.

Yes, you can call your Congressman. He will issue a standard inquiry. VA will respond in 45 days telling him all is well, it's just business as usual. You'll get a copy of the form letter and that will be that. Calling your elected representative unnecessarily may even slow down the progress of your case. Your file might be pulled out of line a day before it was to be worked on and it'll sit in the office that works on Congressional inquiries. Then it's put back in the stack, often far behind where it was earlier.

You have done all there is to do. You've made a clean and clear application for benefits. You've provided extensive civilian medical records, all delivered using registered mail. There is no more to be done. Now you must practice that hardest of disciplines, patience. There are 400,000 veterans claims in line ahead of you. There is no way to jump the line.

Eventually, your veteran husband will get a notice for C & P. That will mean his file is finally active and is work in progress. Once the C & P is done, it will be another 4 to 6 months before I would expect to hear anything.

I'm advising people who are beginning the process in 2008 that they will be about 2 years to to an initial adjudication. That adjudication will be wrong in 75% of the cases and require an appeal. The appeal will take another 1 to 2 years. Many of those appeals will be wrongly decided and require an appeal of the appeal. The burden of rework delays everything even more. Most folks will spend at least 5 years sparring with VBA before they are somewhat satisfied with their benefits.

I'll also point out that your case is brand new in the scheme of things. Your initial filing was in July of 2007. I wouldn't be a bit concerned before 18 months have passed with no action. That's not what you wanted to hear but it is the reality.

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

posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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