JIM STRICKLAND'S MAIL BAG: VOLUME #21 FOR 2009 --

Veterans' Advocate Jim Strickland answers questions

from VA Watchdog dot Org readers.

Veterans' Advocate Jim Strickland provides regular columns for VA Watchdog dot Org.

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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.

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Jim;

I was discharged from the Airforce at the end of '07. I filed my disability claim in June of '08 for 3 conditions.

For the purpose of my questions, I need not go into great detail about my claims. I would like to note that I filed them with the assistance of my local disability counselor.

Everything was on schedule. I had my STR's sent to the VA upon my discharge and a few months after I filed, my claim exam was scheduled.

The exam went well, my doctor even commenting that (unoficially), my claims would be validated quickly because it was clear that they were service connected from evidence within my STR's.

A few more months went by and I became concerned over my claims' fate. I contacted the VA and was told that it was currently being reviewed by the board.

Less than one week later, I recieved a 3rd and final notice letter that stated that the VA had attempted to locate my records and that "future attempts to locate them would be futile." I immediately called them to find out what was going on and explained that the last place I had seen my records was at the VA clinic, in my examiner's hands. His response was for me to call that clinic an attempt to locate them. This frustrated me quite a bit. Not only did they lose my STR's, they had the audacity to tell me to find them. I asked if he could at least provide me the phone number for the clinic, which he happily obliged by giving me the wrong number.

I tracked down the correct number myself, called around to no avail, and proceeded to drive 75 miles to see if any of the nurses/doctors remembered me. I came up empty.

I still had a copy at home but it's incomplete because I had attempted to file for BDD. I submitted it to them and today, a month later, I recieved a letter denying all my claims because there is no record of treatment.

My questions are: What are my options now? Would contacting a vet benefits lawyer help? Have you seen similar stories like mine? Am I over reacting? I think the denial letter must have been sent before my records that I sent were reviewed, if that be the case, do I need to resubmit my claim?

Any response would be great.

Frustrated Veteran

Reply;

This is a tough way to learn the lesson that you never leave originals of anything with anyone. The VBA isn't good at many things but when it comes to losing your important files, they have a lock on how that gets done.

That it's the year 2009 and VBA is still struggling to come to grips with using those darned newfangled things... you know... computers... is a sad spectacle. The old guard waiting to push that 30 year retirement button doesn't want to have to learn all that geek stuff so they resist and act as if computers won't help.

We live in an age when your greengrocer knows how many lemons are on the shelf and when they'll be past their sell date and we've landed on the moon and seen close up pictures of Mars. But the VBA whines that they can't find your paperwork and what difference is it to them because in the final analysis, it just isn't their problem.

You have a denial, you need a lawyer and I've introduced you to one.

Good luck.

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Jim;

First, many thanks to you for your website and your contributions to other websites, and for the knowledge that you've shared with countless vets about how they should deal with their disability claims with the VA. I only wish I had found some of this information sooner.

                            click for more information -- a disabled veteran owned business

Now for my question. I was discharged in Aug 1988 from the Marine Corps for Chondromalacia Patella (CMP) in the left knee. My disability rating from the Corps was 10%, but I was told to visit my VARO within 90 days of my discharge for an evaluation. They reduced my Service Connection rating to 0%. I was still in the "they said so, that's how it is" military mindset, so I accepted the decision and went on with my life. In Oct 2006 I filed a claim for re-evaluation of my left knee and requested that my right knee be evalutated as a secondary service connected disability to my left knee. I have "babied" my left knee for over 20 years due to the pain and instability of my left knee and it is now in nearly as much pain as the left. I went through the C&P exam and awaited the decision of the VA. I was certain that any idiot would be able to see that the condition of my right knee was caused by the chronic pain in the left causing me to use it extensively (constantly putting all my weight on my right knee since my left hurt so bad), so I neglected to gather documentation from previous doctors as well as lay letters from family members, co-workers and friends.

I received the VA's decision dated 10 May 2007 that my left knee compensation had been upgraded to 10%, but that my right knee claim had been denied "because it was not shown to be secondary to the service connected disability of left knee chondromalacia patella." I didn't consider either decision to be "fair and accurate," and, like so many readers from your past, I got frustrated and wadded up the letter and threw it in the circular file without reading the fine print. Therefore, I failed to file an appeal in a timely manner and the decision is now final.

On 18 Feb 2009 I again filed a claim for a review of my left knee which has worsened in condition, as well as asking for the right knee claim - the condition has also worsened - to be reopened. My question is, since the condition of both knees has deteriorated since the examination in Oct 2006, and since I am much more knowledgable of the process I am in possession of MRIs of both knees (multiples of the right), medical records, x-rays of both knees, statements from my civilian PCP and the civilian ortho surgeon that performed the arthroscope on my right knee that agree with my opinion that the pain in my left knee caused me to inadvertently damage the right knee over time, as well as lay letters from family members, friends and co-workers, will it be enough to cover the "new evidence" request that the VA is looking for. And if it's not enough, what would it take? I just want to make sure I "do it right" this time.

Thanks again for sharing your vast knowledge on these topics with us.

Reply;

Thanks for your kind words. I do what I do mostly due to having been treated much like you are. My 1970 ETS and subsequent dealings with VA have been enough to make a grown man weep. I decided that I was smarter than all of them together and began a serious fight years ago. I won. Now every time I help another veteran win his or her earned benefits, I carve another notch in my holster. My little hobby borders on obsession but it keeps me off the streets at night so that's a good thing. The "New and Material" evidence is tricky.

Read; http://tinyurl.com/dkhh95  To sum it up, the evidence you've used in the past has been adjudicated and is no longer of any interest. You must submit new evidence that is not merely repetitive. In the case of the knees you'll want to ensure (for example) that you are offering an exam that isn't duplicative of one done in the past. An MRI is very good new evidence if there hasn't been an MRI before.

Lay statements aren't of any use unless they're from someone who saw an event occur during active duty. If you have your wife or brother submit a statement that they know your knee has deteriorated over the years, VA will not consider that as they aren't experts and then, what else would they say for you?

To connect the 2nd knee as secondary to the primary knee is even trickier. The only thing that will do that for you is an expert statement that clearly says something like; "Mr. Waller has a substantially altered gait when attempting to walk. His gait is altered due to the significant injury/condition/disease of his left knee. The pain and weakness of that joint has forced this gentleman to shift weight to the contralateral (right) knee and hip and both have suffered for that. It is my considered medical opinion that the current condition of the right knee is more likely than not caused, contributed to and aggravated by the condition of the left knee."

There are a couple of ways to get that statement...known as a nexus statement. If you have a friendly primary care doc at VA he may make that statement or similar to your medical record. No letter is necessary as the RO will have access to that. If you work with residents or fellows in ortho specialty clinic at your VAMC, they may also make such a statement to your record and it will be available to the RO at the time of adjudication.

You may also have a civilian doc make a similar statement and submit that. If you have an ortho guy, ask if he'll make the statement. If not, you may want to pay an IME doc for an exam of records and letter. That's a more expensive route but it works well.

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Jim;

Hello. I have a few questions to ask. I am a 70% srvc con. veteran also rated unemployable. For some reason my Dr is not working at my VA medical center anymore. I was told he was placed on admin leave. I don't know why. And no one is talking. My therapist which is new avoid questions and when I ask her about her opinion of my Dr or her opinion in regards to my case she quickly changes the subject. She also is voicing an opinion in regards to my diagnosis or illness which she states is different than originally stated. My question is can I be arbitrarilly sent up for reveiw and have my rating reduced? Some background. I was retired from the Navy after 10 years with schizophrenia, paranoid type. Over the years as an outpatient my treatments have been for Bipolar disorder with the realated meds. My therapists going back to 2002 have given me cause to believe that they may think I've pulled a fast one in receiving my current rating. Not to go into it but with the understanding that it is 04:00 and I havent been to sleep yet obviously something is going on with me. Anyway my current rating s date of award goes back to Jan. 2001. Prior to that Ive' held a 30% rating initially since March '88. Can they reduce or take my my benefits. How does that work?

Reply;

Any veteran with any rating may receive notice that VA will propose to reduce benefits at any time. The only protected category is when the rating is held for 20 years or longer.

However, I doubt that's happening in your case.

Your former practitioner may have been terminated with cause. Those things happen in every walk of life. The current staff aren't allowed to talk about that and they may not have any more information than you do. Whatever happened, happened. Now it's time to look to the future, not dwell on the past.

It's not unusual for mental health professionals to redo treatments when accepting a new patient. Each professional may have different thoughts and ideas what will be best for you. That's all tied into their education and experience. It's rare that any 2 doctors would treat you exactly the same.

Your doctors don't make decisions about your rating. The truth is that they have very little influence. The rating decisions are made at the Regional Office and your doctors don't have any input other than what they may write on your record. Even that isn't the final word. A doctor can't just write "disabled" and then you get the rating. Other factors and laws are considered.

My advice is to do your best to forget about what may have happened to your other caregiver. Try to develop a good relationship with your newest caregiver and move ahead.

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Jim;

I NEED SOME HELP WITH A CUE CLAIM WHICH HAS BEEN BROUGHT TO MY ATTENTION. IT IS NOW AT THE CAVC LEVEL AND I HAVE LITTLE TIME LEFT. I KNOW THIS CASE HAS MERIT IF PRESENTED RIGHT AND BY THE RIGHT LAWS. COULD YOU PLEASE GIVE ME SOME GUIDANCE? I WILL BE MORE THAN WILLING TO PAY FOR YOUR HELP. MY HUSBAND IS NOT ABLE TO HELP ME WITH THIS BECAUSE OF THE HORRIFIC MEMORIES IT BRINGS TO PRESENT.

Reply;

The CUE is the most difficult of all claims and you need a lawyer. To speak with you of court cases and CUE claims is far beyond my scope. I'm referring you to an attorney who I've chatted with on your behalf.

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posted by Larry Scott
Founder and Editor
VA Watchdog dot Org
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