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JIM STRICKLAND'S MAIL BAG: VOLUME #34 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;

the Va called me about 4 day's ago to tell me they are finsishing up my claim needed some personal info about my son I asked the gentlemen if he new my rating he was very very hesitant to say he said the rating I have here in front of me is not an offical rating yet I said ok after prying teeth and being polite to them which I am always my non offical rating is 70% I am not a greedy man nor am I trying to game the system jim I found that fair but what is non

offical rating mean we have talked in the past I have done my claim all and all my self and advice from you thank you Jim

Reply;

Congratulations on doing this for yourself. Nobody cares about your claim as much as you do. I'm happy that you feel that the rating is fair.

I'm sure that by saying "unofficial" the person you were speaking with was trying to stay out of trouble. The only way you're supposed to be notified is by letter. I wouldn't worry about it.

When you get your letter, write back and let me know if the 70% is correct.

Jim;

After reading the mailbag yesterday I was laughing my head off. I find anyone who wants to call you out on your knowledge about the VA doesn't know or should know that you don't have to prove to the world your knowledge. I am sure he has only been a VSO for a very short time. As a VBA former employee and now a VHA I know that the laws change as well as people. Maybe this CVSO will change his mind set and use the knowledge that you share to help the veterans in OHIO to obtain more benfits.

Besides isn't that what us vet's are suppose to do..Take care of each other.....

Reply;

Thanks. When I did the piece on Ohio VSOs I was surprised at how much hell I caught. I thought that my barbs clearly aimed at the system, not at individuals.

The funniest part of it all was that some guys wrote to Larry, complaining to him about "his" article. He and I decided that if they were paying as close attention to reading claims as they did who wrote that article, Ohio veterans are in deep deep trouble.

That fellow eventually got back with me in a much more respectful manner. I didn't mind...I enjoy being challenged from any angle. I caught on pretty quickly that if I offer an opinion that will be read by a few thousand people, I better be able to back it up.

You're right of course...no matter what, we veterans should be doing what we can for each other. There's way too little of that though. My mail is often full of "Me, me, me" and little else.

Jim;

I’m a Iraq Combat Veteran I have done my own work for the VA claims process I did not use a VSO, Now i'm currently at a combine rate of 70% . 50% Ptsd 10% spondylolysis 20% bilateral radiculopathy lower extremities, sciatic nerve for both legs. I filed for SSDI was approved in 2 months recieved my first check on the sixth month.

I called the social security office and had them explain my Diagnosis and they stated my Primary is Anxiety and Secondary is Mood exam review in three years. First question does that fall under ptsd since it's service connected? So I sent the info regarding my SSDI award included with a NOD increase for the PTSD and a Claim for IU just to back that up along with another claim for service connected Diagnosis of Traumatic arthritis along the lumbar spine L4/L5. I had obtain copies from my exams and the doctors for my lower back Associated the Diagnosis Spondylolysis of the lumbar Spine.

Second Question what ball park rating do you get for Traumatic Arthritis of lumbar spine? Also for Ptsd to make long story short the examiner stated I was unemployable. I jump through all the hoops and look at exams as my way of getting my point across it doesn't matter if they give me a exam every year. I have already had seven and was an hour early to all of them. I know I have problems an have been patiently waiting because of 600,000 other deserving veterans is in front of me and now my claim is at the rating board.

I just need some type of intel on what to expect or not expect so I can continue on with the VA process just in case i have to send more evidence which I already have in a folder for the bonus having to do with my back according to what the last examiner stated that I had herinated disk but if I get 100% i will not file because out of respect of the backlogs of claims. Every piece of paper was relavant for my cases all stressors verfied as my tour of duty in Iraq 2004 as a 50 cal. gunner on Hmmvee. I feel like it should be 100% without IU due to the fact the examiner said I was unemployable an SSDI award is in affect.

Also I have not work at a job or been back to college to finish my degree for a period of two years and I'm only 30 years old. Thank you for the intel to help me not become homeless I only knew to fight for my benefits through another Vet. Then I studied all of you written works word from word and swiftly moved to 70% now I’m at the home stretch and your advice would be helpful. Thanks for the help. Respectfully Submitted

Reply;

Congratulations to you sir. You've confronted some formidable barriers and achieved victory. I admire an individual who accepts the reality of their situation and uses that to advance their cause. It's easy to sit around and blame others for your problems and it's very hard to make yourself get a grip and get control.

You've done very well and I can only imagine you'll continue to do so.

"First question does that fall under ptsd since it's service connected?" I can't answer that to a degree of certainty. The answer is likely "yes" but this may vary in the eyes of whoever is seeing it at the time. A lot of the things we deal with, particularly mental health issues, are subjective. A diagnosis of "PTSD" to one trained person may appear to be "generalized anxiety" to another. Nomenclature isn't usually as perfect as we'd like...in my field of health care, heart disease, one man's "heart attack" is another man's "myocardial infarction".

That the Social Security Administration and the DVA don't share many definitions makes it even harder to pin down. However, don't get too concerned with precise definitions as you go along. Continue to be aware that sometimes it sounds like apples and oranges when it's really an apples to apples comparison...be ready along the way to correct any misunderstanding.

"Second Question what ball park rating do you get for Traumatic Arthritis of lumbar spine? "

That can get very complex. There are many fine points that influence such a rating. The amount of pain one has at rest and with motion can be a significant factor. Measurements of flexibility or limits should be established. Side effects of medications are to be considered too.

The diagnosis...whether by MRI or x-ray will be considered. Importantly, a rater will give a lot of consideration to whether the arthritis is traumatic or degenerative. If degenerative, that isn't often seen as service connected. If you claim that it's traumatic, the burden of proof is heavy.

Let's look here for some overall definitions;
http://www.access.gpo.gov/nara/cfr/waisidx_04/38cfr4_04.html

Then down to 4.71a Schedule of ratings--musculoskeletal system.
http://edocket.access.gpo.gov/cfr_2004/julqtr/38cfr4.71a.htm

You'll find "5010 Arthritis, due to trauma, substantiated by X-ray
findings: Rate as arthritis, degenerative."

So now we know to look for ratings in degenerative arthritis and;
5003 Arthritis, degenerative (hypertrophic or osteoarthritis):

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.).

Then we look at 4.45 The joints.
http://edocket.access.gpo.gov/cfr_2004/julqtr/38cfr4.45.htm

and

4.59 Painful motion.
http://edocket.access.gpo.gov/cfr_2004/julqtr/38cfr4.59.htm

Then back to;
http://edocket.access.gpo.gov/cfr_2004/julqtr/38cfr4.71a.htm
where you'll see:

General Rating Formula for Diseases and Injuries of the Spine

(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease

Unfavorable ankylosis of the entire spine............... 100
Unfavorable ankylosis of the entire thoracolumbar spine. 50
Unfavorable ankylosis of the entire cervical spine; or, 40
forward flexion of the thoracolumbar spine 30 degrees
or less; or, favorable ankylosis of the entire
thoracolumbar spine....................................

Forward flexion of the cervical spine 15 degrees or 30
less; or, favorable ankylosis of the entire cervical
spine..................................................

Forward flexion of the thoracolumbar spine greater than 20
30 degrees but not greater than 60 degrees; or, forward
flexion of the cervical spine greater than 15 degrees
but not greater than 30 degrees; or, the combined range
of motion of the thoracolumbar spine not greater than
120 degrees; or, the combined range of motion of the
cervical spine not greater than 170 degrees; or, muscle
spasm or guarding severe enough to result in an
abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis.....

Forward flexion of the thoracolumbar spine greater than 10
60 degrees but not greater than 85 degrees; or, forward
flexion of the cervical spine greater than 30 degrees
but not greater than 40 degrees; or, combined range of
motion of the thoracolumbar spine greater than 120
degrees but not greater than 235 degrees; or, combined
range of motion of the cervical spine greater than 170
degrees but not greater than 335 degrees; or, muscle
spasm, guarding, or localized tenderness not resulting
in abnormal gait or abnormal spinal contour; or,
vertebral body fracture with loss of 50 percent or more
of the height..........................................

What this all means is that there is no single, precise formula to determine what the rating assigned will be. In my experience, the first awards are often too low. While frustrating, this is simply a part of the drill we have to go through. Each time we aren't happy with a rating or a denial, we simply appeal.

"I just need some type of intel on what to expect or not expect so I can continue on with the VA process"

What you can expect is exactly what you've seen so far. Frustration and delay is a part of the game. To appeal is a way of life. The game never ends...once you're part of the system, it will never simply be a quiet part of your life. Our VA benefits demand constant attention and maintenance for the rest of our lives.

However...the smart guys learn, like you, to face it head on and just deal with it. Anger has no place in our dealings with VA and is a wasted emotion. Keep at it...let me know any way I can help.

Jim;

My husband is a Vietnam Veteran rated 100% disabled. He was exposed to Agent Orange in Vietnam. He suffers from post traumatic stress syndrome and depression. He has had 2/3 of his one lung removed and suffers from emphysema. Unfortunately he is a smoker. He has tried all of the no smoking programs from the patch to Chantix. He has on occasion quit smoking.

The VA enrolled him in their home oxygen program and he is now on oxygen. They called and said he had to make an appointment for a "routine pulmonary exam". He went for this appointment and was tricked. She did a carbon monoxide test. Then they mail him a letter stating that they suspect he is smoking and he is required to go to the VAMC to get another Carbon Monoxide test done. If it determines he is smoking, he will be given 30 days to quit smoking. Then he will be given a repeat lab test. If the test result is positive, the VA will stop payment on his home oxygen program.

Have you ever heard of this happening?? You know when he was in Vietnam, the government shipped cigarettes over there for the soldiers to smoke!!!! Can you offer any advice? It would be greatly appreciated.

Reply;

I'm not specifically aware of any program that would deny a veteran patient payment for home oxygen if that patient continued to smoke but I'm not surprised.

The VA long ago addressed illnesses related to tobacco use. The following isn't the complete rule but it gives you the idea about how the use of tobacco products is viewed.


Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

Ratings and Evaluations; Basic Entitlement Considerations


§ 3.300 Claims based on the effects of tobacco products.


(a) For claims received by VA after June 9, 1998, a disability or
death will not be considered service-connected on the basis that it
resulted from injury or disease attributable to the veteran's use of
tobacco products during service. For the purpose of this section, the term "tobacco products" means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco.

Yes, for many years the military included tobacco in rations. That was during a time in our history that the harmful effects of tobacco use were still hotly debated. That era ended a long time ago.

Today, it's recognized that tobacco use, particularly in the form of cigarette smoking, is often deadly. Many employers and most insurers strictly forbid or control smoking among employees or insured lives. The courts seem to be supporting the thought that your right to smoke (and thus cause yourself harm) ends at the point where it may affect an employer's costs of health insurance or be a hindrance to an employee effectively accomplishing their job.

That a patient who has a severe lung disease and needs oxygen therapy would continue to choose to smoke is hard to understand.

Having said that, oxygen therapy costs money. If the oxygen therapy is ineffective, it makes sense to withdraw it. To continue to smoke while on oxygen therapy will render the treatment ineffective thus that's money wasted. Every health care system has a budget and money is needed for therapy that works to help patients.

Beyond that, it's very dangerous. Oxygen supports combustion. Contrary to popular belief, oxygen doesn't explode. It will make a small spark turn into a conflagration that will burn down a house and all in it at the blink of an eye.

Logic would dictate that the money that VA is spending on his oxygen therapy is being wasted so I can't find a reason to criticize a system that would withhold payment for that reason. I've not run into this specific issue in my years as a health care professional but I imagine the civilian systems I worked for would make that same decision. The thought process would be simple...if he can afford the high price of tobacco, he can afford oxygen.

I'm not unsympathetic. I'm an ex smoker. I learned to smoke when I was about 13 years old.

I was a 3 pack a day smoker and I would have smoked in my sleep if someone would have held them for me. In my work as a surgicaltechnician in operating rooms, I recall days in the early 1970's when I would assist a thoracic surgeon in the removal of a cancerous lung and as soon as we had stitched it all back together again, we'd run to the break room for a smoke.

I quit in 1979. I relapsed twice in the following 15 years but have remained smoke free for well over a decade now.

Your question, "Can you offer any advice?" can only bring a single response.

He must quit smoking. Tobacco isn't therapeutic for PTSD or any other mental health issue. I can't accept that he can't quit. To be perfectly blunt, he has no other rational choice. The issue is much larger than whether VA will pay for his oxygen...to have emphysema and to smoke is to ensure an earlier demise than it would otherwise need to be.

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posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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