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JIM STRICKLAND'S MAIL BAG: VOLUME #32 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 have been reading your responses to some of the emails;

If a veteran is already has service connected 10% he/she does not need to submit another 21-526, a 21-4138 is used. Most veterans do not understand the VA system so by stating that you do not recommend DAV, VFW or other originations’ and to do it yourself, is a shame and wrong! It is well know at least in Texas that veteran service organization can assist you better than doing it yourself and will also get you more money and save you time.

Base on what the veteran wrote you;

If you had file a claim before for the knees, wrists, elbows and ankles and were granted service connected, then you can ask for an increase, but if any one of those were denied on your original claim, then you will need new and material evidence (1) before submitting! If there are no service medical records, he/she would then need statements from other veteran’s during that period of service that maybe remembered he/she hurt that knee (etc). This would be in lieu of service medical records. Then take those to a doctor for a medical opinion.

This is why there are 400,000 claims because of bad advise were veteran are filing claims but do not have the evidence for that claim and do not understand what is needed.

(1) Nexus between the in-service problem and the current one:

a.The Veteran has to prove a medical link or nexus or relationship between the bad thing which happen in-service and his present disability.

b.VA regional office requires evidence which positively link the two.

c.How do I give an opinion for nexus (relationship to a military incident)?

c. (1) When asked to give an opinion as to whether a condition is related to a specific incident during military service, the opinion should be expressed as follows:

1. “is due to” (100 % sure)

2. “more likely than not” (greater than 50%)

3. “at least as likely as not” (equal to or greater than 50%)

4. “not at least as likely as not” (less than 50%)

5. “is not due to” (0%)

This is why all veteran’s should be getting help on their claims from a service officer are experience in the Code of federal Regulations(CFR) 38 and other change that the courts have ruled on.

The government does not care if you do not know?

Reply;

Actually, you couldn't be more wrong. When you write that "If you had file a claim before for the knees, wrists, elbows and ankles and were granted service connected, then you can ask for an increase, but if any one of those were denied on your original claim, then you will need new and material evidence (1) before submitting!" you seem to miss the point completely that if you were "denied", you would not ask for an increase, you would appeal.

New and material evidence is not required in an appeal. It may be helpful but generally you appeal because you don't agree with the original interpretation of the evidence already submitted.

Similarly, the "Statements in Support of Claim" you refer to are of little use. How many veterans can find their buddies from 35 years ago? These "Buddy Statements" have value only in very exceptional circumstances but even then are very restricted.

Later, as you continue to critique my work, you refer to a nexus letter. Had you actually bothered to read the things I write of, you would know I'm a health care professional and I well understand how a nexus letter works. I've written extensively on the subject here http://www.vawatchdog.org/08/nf08/nfJAN08/nf010708-1.htm

Your advice to take a "buddy statement" to a doctor; "This would be in lieu of service medical records. Then take those to a doctor for a medical opinion." is, of course, ludicrous. Why would anyone do that? That makes absolutely no sense at all.

Finally, you end your note to me with, "The government does not care if you do not know?"

I've looked at that a few times in the last couple of hours trying to decipher just what it means. I give up. It's old-fashioned Texas gibberish of the finest kind, nonsensical to a degree that has quite possibly set a new record. Yes, I know about Texas gibberish. I've spent a lot of my life in Texas.

I'll assume that you are a VSO since your email address ends with va dot gov.

If I'm correct, by writing to me with a letter that is a poor example of how to use the English language, you have proven my point exactly. You are exactly the reason I do what I do.

Your letter is full of things that aren't true. You misunderstand how the system works. You write to me to criticize me without studying my writings.

Further, your note is full of incorrect uses of words that are spelled correctly. Your command of the language we use to communicate with is poor indeed. If you think that isn't very important, you're just plain wrong.

Your letter has inspired me to work even harder so that veterans don't have to depend on your "advise" (sic) to further their claims at VA. Please feel free to hand out my email address to anyone who approaches you.

Before you attempt a reply, ask a friend to help you with your grammar, punctuation and spelling. (BTW..."Advice" is the noun, "advise" the verb. When Ann Landers advises people, she gives them advice.)

Jim;

I read your candid reply to the CVSO in Ohio and I must write to commend you on the composure and professionalism you displayed in your response to that person's "in-your-face" challenge regarding your personal qualifications as an advisor to me, a fellow Veteran. In reading your reply, you provided me a with great lesson and I thank you. Now that you have presented your resume online detailing your experience for all to read, I believe it's only fair that the Ohio CVSO do the same. With CVSO's like that one, no wonder Ohio is dead-last in the country in compensating our Veterans!

For the past 14 months, I have been DIY'ing my own claim for disability compensation through the VARO in Cleveland (thanks to your guidance). I'm a Vietnam Veteran (40 years a civilian) with several service-connected illnesses and injuries. I enrolled in the VA Healthcare System last year and was approved for Priority Group 6 due to agent orange exposure. After being approved for VA healthcare, I volunteered to take the Agent Orange Registry exam. The VAMC in Cleveland who conducted the various AOR medical exams found several medical conditions (lung, liver, malignant melanoma, hypertension, etc. and are in the process of treating me for those conditions and others - the VAMC in Cleveland has done a great job, little doubt they have extended my life!) The clinicians and MD's at the VAMC encouraged me to file a service-connected disability claim based on their medical findings from the AOR exam (my disability claims process was started prior to my taking the AOR exam). However, at this writing, I have not received the standard follow up form letter from anyone at VA acknowledging my taking the AOR exam and describing the illnesses-injuries the VAMC diagnosed during the exam. I contacted the environmental clinician at the VAMC in Cleveland who was in charge of my registry exam and met resistance when I asked them to send me the follow up letter (this letter is referenced and the content of the letter is detailed in VA's procedural guide for the AOR exam). Is this letter a requirement the clinician must fulfill? Although the letter is not admissible evidence in support of my claim for disability, I believe having the letter is better than not having the letter.

One last question regarding lapse in time frames for private medical treatment records - I cannot locate approx. 7-10 years of my post-military private medical treatment records showing that certain medical conditions were ongoing after my service in the Army (due to closed medical treatment centers and a deceased MD - the records no longer exist). I requested VA to assist me in this effort and when they were not successful in retrieving those medical records, I received the typical "fill-in-the-blank" form letter from them implying the importance of those records in their review and analysis of my claim. It appears to me the VARO found a sought-after weakness in my claim and they are now only focused on that particular issue, not the essence of my claim. I have submitted signed Statements in Support of Claim forms from colleagues who have witnessed my medical problems over the years to help fill-in those gaps in the time, but this may not be enough as they are not medical practitioners. It appears to me that my disability claim is now destined for the usual Cleveland VARO's rejection because of this 7-10 year gap in time. If my claim is ultimately rejected at this first step in the claims process for that reason, in your opinion, will VA win on that basis in the appeals process?

Thanks again, Jim. I am an Ohio Veteran who sincerely appreciates your efforts in helping us improve the disability claims process in Cleveland. I have tremendous documentation relating to my personal claims experience that may prove helpful in improving the claims process for other Veterans in the future. Let me know how I can help.

Reply;

Thanks for your kind words.

I wasn't particularly offended by that letter and it was a valid question. It was a bit "in your face" and belligerent but in later correspondence he toned it down a lot.

There were 2 or 3 others who were straight up bitching about my article that were much more surprising. Each of those was directed to my partner Larry Scott about "his" article and the things he said. Yes, that's correct...these folks couldn't discern who the author was.

Larry and I decided that if that was the best that they could do with a test of their reading and comprehension, God help the veterans in Ohio.

Whether or not the AOR letter is a requirement isn't something I can answer. I haven't confronted that one previously and I'll have to ask around.

You're to be commended for going forward with all of that and it will undoubtedly help you in the future. Knowledge being power, you've gained a lot. It sounds as if you recognize the need for medical treatment and that you're getting it. Your life will no doubt be better for it.

I agree that the AOR letter won't have any particular influence on your claim.

Whether or not the gap in your record will have a negative impact is almost impossible to predict. Common sense would dictate that if there were a condition that was evidenced to originate in service, then a gap of records due to the reasons you cite, and then the evidence correlates to continue the existence of the condition, there should be no real issues.

However, common sense is in very short supply at your VARO. Beyond that, no matter how good your evidence is the adjudication error rate is so high that we can predict that there will be required some sort of appeal. The bottom line at your VARO today isn't the quality of the end product, it's to close the file. Of course that's terribly short sighted and results in a burden of future rework but there seems no way to get around that fact...most cases today will need to be appealed.

Most appeals are being won. In fact, I'd guess that if the veteran has a valid claim to begin with, along with patience and tenacity, ultimately the case will be won 100% of the time. Note that I qualify that with "has a valid claim to begin with". Hardly a day goes by that I don't tell a veteran that they don't have a case and that they should leave the VBA alone.

It's apparent that the higher one climbs up the rework ladder, the closer the attention that is paid to the evidence. If your case is rejected primarily, you stand a very good chance of winning with de novo DRO review at the local level. Beyond that, you'll want a lawyer to represent you today. Any lawyer who accepts the case will already have it in mind that the case will win.

I'd say that you've done all the up-front work that you can do and now is the time to wait for the system to do what it will do. Let the wheels turn and then when you get the letter, react accordingly.

While you wait, focus on improving your own health and seek out and take advantage of all the VHA has to offer. If you find the time, pass on some of your good fortune to others via the VA Voluntary Services programs. One veteran offering a hand up to another veteran is as good as it gets.

Jim;

recently I was awarded 100% I U. My question is Do I get an ID card and enjoy PX/BX privileges ? or any other privileges as the permanent 100% veterans?

Reply;

Maybe.

Your award letter will tell you if your 100% rating is considered "Permanent & Total" (P&T) or if your rating is one that the VA expects will show improvement over time and is thus "Temporary".

Either of the categories of 100% disabled (100% Schedular or 100% IU) can be awarded as P & T or Temporary.

If your letter tells you that, "no future examinations are scheduled" then your rating is considered to be P & T. If the letter uses verbiage similar to, "Future examinations are scheduled (date)" then your rating is a temporary one.

A P&T rating offers the veteran and dependents the opportunity to apply for ID cards for on base privileges, CHAMPVA health insurance for dependents as well as Chapter 35 DEA benefits for dependents. No such benefits come with a temporary rating.

A word of caution...if you received an award letter telling you that you have "no future examinations scheduled", that's great. You know that you're P&T. However, all too often when you apply for ancillary benefits, even the other branches of the DVA will tell you that you aren't eligible either because you aren't "Permanent" or you aren't "Total". The folks at CHAMPVA administration and C-35 administration don't always recognize the arcane term "no future exams" as valid.

You may have to write back to your VARO and ask for a plain English letter, on their letterhead, that formally states the date of your award, that you are 100% disabled and that the disability is considered to be permanent in nature.

If you are P&T you should also look at the benefits your state of residence will offer you. There are no-charge licenses, tax breaks and other concessions many states give to veterans. No state will recognize the "no future exams" language though so for sure, you'll have to ask your VARO for a more straightforward letter.

Bottom line...whether you are 100% disabled by the schedule of ratings or due to Individual Unemployability, the pay and privileges are equal. The difference in privileges is determined by the permanence of the award.

Jim;

Question: Why doesn't the VA rating board reconize medical evidence provided by their own physician's. My diagonis' was Anxiety, depression, and PTSD in 2004?

I recieved social security disability based on many different factors and anxiety, depression, PTSD was one of the conditions in 2007. VA medical doctors wrote letters stating my conditon and stated that it was as likely as not serviced connected. In addition, this same doctor was requested to fill out a paper stating his medical opinion as to the connection to the military service of this conditon.

Why is there a YES from one government group and a denial from another that was initially reported as the source of my medical condition?

Reply;

Your question...and reaction to your dilemma...aren't at all unusual.

The ratings personnel at your VARO are largely able to be very independent in evaluating evidence. In the process of making their decision about your award they look at a big picture of what they have in front of them and lend weight to that which appears most credible.

A VA rater also must make a decision that is based on a service connection whereas the Social Security Administration decision maker doesn't have such a burden. To the SSA, if a person has a condition that is disabling, that's enough. To the VA, the source or reason for the condition must be considered.

Also, in terms of how disabled you are, to the SSA you're either able to work or not...either you're 0% disabled or 100% disabled. In the VA system, you may range from 0% to 100% disabled in increments of 10%.

For example, if you had suffered a disabling injury after your military service in an auto accident, SSA may easily find you disabled and award SSDI. The VA would see that disability as being unrelated to your service and deny you any VA benefits.

Often enough a veteran with a mental health disability will find that the SSA has approved him as 100% disabled and denied by VA. If the VA system doesn't accept that your condition was caused by or aggravated by your military service, you'll be denied. Most often, a denial of a PTSD claim is because you haven't clearly shown the circumstances or "stressors" that occurred while on active duty that would cause a PTSD reaction.

In most claims of PTSD, the raters will look for events during combat. Historically, it's accepted that soldiers serving in combat receive a life altering stress from the experience. Today we're seeing a slight shift towards allowing other stressors to be recognized as having contributed to a PTSD condition. Along with that we know that evidence requirements for conditions other than combat are very stringent.

If you've been denied an appropriate disability rating by the VBA, you have one year to appeal that decision. Most appeals are worth the trouble as the appeal is accepted and a disability rating is awarded. If you have received a denial of any benefit after June 20th of 2007, you are allowed to contact an attorney who may accept your case on a contingency fee basis and assist you in your appeal. The attorney will be paid a fee of 20% of any retroactive benefit only if the appeal is successful. If you don't win, you don't pay.

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posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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