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JIM STRICKLAND'S MAIL BAG: VOLUME #4 FOR
2009 --
Veterans' Advocate Jim Strickland answers
questions
from VA Watchdog dot Org readers.
Jim Strickland -- Veterans' Advocate
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...
And, be sure to use Jim's: A Military
Veterans Guide To Disability Compensation and Pension Benefits -- A
Compendium of Resources and Knowledge For The Disabled Veteran --
click here...
Your comments accepted at bottom of
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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;
Just wanted to give you an update on my claim for increase filed Jan 2008
for my COPD (6604) condition from 30% to 100% since I now require Home
Oxygen Therapy during sleep.
Today, I finally received the Manila envelope from VARO Roanoke. Decision:
COPD rating increased from 30% to 100% Permanent & Total, with SMC 'S',
retroactive to Nov 28,2007 (which is the date of the sleep study which
showed 84% O2 saturation).
I'm very satisfied with the VARO decision, it was correct based on the
criteria under 6604. But, I do not understand why the VA even wasted the
funding and my time by sending me through the QTC exam process. Their own
physicians at VAMC Hampton Pulmonary clinic are the ones that prescribed
me the Home O2 Therapy due to a decrease in my O2 saturation. This was a
cut and dry claim, but took exactly 1 year to process through the VARO
maze.
Reply;
I've recently been focusing some effort to answering your excellent
question: "I do not understand why the VA even wasted the funding and my
time by sending me through the QTC exam process."
The VA is no more than a business, a giant corporation not unlike GM or
Sony. There are different business models or attributes that we see as we
examine how a business operates.
 Some
businesses provide products that they manufacture for a profit; think
Sony. Others provide a service at little or no profit; think of a charity
hospital.
The VA is a government business designed to provide a service. So are our
public schools.
The public schools are goal driven businesses. The goal is that each year
a group of students are educated to a certain standard, given certificates
or diplomas and moved to the next level of the process of education. If
the school doesn't achieve the goal, it is seen as failing in its assigned
task.
The VA is a process driven business. It makes no difference to the VA what
the outcome of the process is. Whether you win, lose or draw makes no
difference to the VA. The only thing of any importance to them is the
process itself. The VA believes that if they cross every T and dot each I,
the outcome of the process will be perfect.
This is exactly why you received a QTC exam even though you had a ton of
other evidence in your file that supported your claim. The VSR or RVSR who
was rating your claim had a check-list to go by. The list is the process.
On that list is the option of a QTC exam. The exam is not required. The
rule tells the rater that they may order an exam if they believe that it
is necessary to provide evidence about your condition.
http://www.warms.vba.va.gov/M21_1MR.html#a
M21-1MR, Part I, Chapter 1, Section C
a. VA's Responsibility
In claims for disability compensation, assist the claimant by providing
a medical opinion or examination when the opinion or examination is
necessary to make a decision on the claim.
b. When to Request a Medical Opinion or Examination
A medical opinion or examination may be necessary when, after the
development of all other relevant evidence, including the statement of
the claimant, the file contains competent medical evidence that the
claimant has a current disability, or contains competent evidence that
the claimant has persistent or recurrent symptoms of disability (Note: A
claimant is competent to describe symptoms of disability that he/she is
experiencing, such as pain in the knee. However, because a claimant
ordinarily lacks medical training and experience he/she would not be
competent to diagnose his/her own medical condition or offer a medical
opinion.) contains supporting evidence from service records or other
sources that the claimant suffered an event(s), injury, or disease in
service that may be associated with the claimant's current disability or
symptoms of disability, and does not contain sufficient medical evidence
to make a decision on the claim.
c. When to Request a Medical Opinion Versus an Examination
A medical opinion versus an examination should be requested when only
the following is necessary to decide the claim:
reconciliation of different diagnoses
opinion concerning the relationship between two conditions
opinion about functional impairment
etiology and nexus opinions
Allen v. Brown cases (that is, when the issue is whether a
service-connected condition has aggravated a non-service connected
condition)
independent medical opinions, and opinion regarding the extent to which
service-connected disabilities affect the veteran's ability to perform
physical and non-physical tasks in order for VA to determine whether the
veteran is unemployable.
Notes:
Many opinion requests require information that
would be gleaned as part of the normal examination process, which the
physician should not be precluded from conducting, if necessary.
A medical opinion is not generally required to establish a link between
a claimed disability and the veteran's service when the evidence shows
that the disability is chronic, or symptoms have continued after the
veteran's discharge from service.
References: For more information on requesting examinations, see
M21-1MR, Part III, Subpart iv, 3.A, and medical opinions, see M21-1MR,
Part III, Subpart iv, 3.A.9.
Having read the above, you begin to understand that requesting an
examination is somewhat ambiguous.
The reality is that if the rater awards the veteran a benefit without a C
& P exam, the rater's supervisor will likely come back to question why. In
the mindset of the VA, the process leaves an opportunity for a QTC exam
and that to not use it is to leave a T uncrossed.
It's easier and less risky for the rater to get you before QTC so that the
process isn't violated by individual thought. That the outcome will not be
changed isn't important.
It works well for the former Secretaries of DVA who are the owners and
operators of QTC. They get paid (with your tax dollars) for every exam
whether it's necessary or not so there's really no incentive for them to
champion anything else.
-------------------------
Jim;
How do I go about obtaining The Veterans Benefits Manual, the version the
VA uses for Service-Connected Disabilities?
Reply;
By clicking here
http://www.warms.vba.va.gov/M21_1MR.html
-------------------------
Jim;
cant some of our representatives contact president Obama at this time and
let him know the problems navy vets are having.. about agent orange. tks..
Reply;
I doubt it would have any effect. The case is lost, done and over. The
Supreme Court has declined to review the decisions of the lower courts and
that effectively ends the debate. The Executive Branch (The President)
can't simply override a decision by the Judicial Branch (The Supremes).
The only way that this is ever going to come up again is in the
Legislative Branch (Congress) and they would have to change the laws that
exist today. To do that you'll have to convince a representative
(Congressman or Senator) to introduce a bill that would make a different
set of laws that affect Blue Water veterans. The bill would have to go
through all the usual steps that happen in Congress. Then the president
would need to sign off on it and after required waiting periods, there
would be a new law to work with.
Personally, I don't see that happening.
I support the "Direct Cause" claim process for Blue Water Navy veterans.
The Vietnam veteran who has boots on the ground service is presumed to
have been exposed to herbicides. There exists a list of conditions that
are presumed to have been caused or contributed to by that exposure. Thus,
the boots on the ground veteran does not have to prove that he was exposed
or that the condition was caused by herbicide.
The "Direct Cause" veteran has a steeper hill to climb but it isn't
insurmountable.
For example, if a Blue Water veteran has been diagnosed with Diabetes, he
can still claim that as being caused by exposure to herbicide. Unlike the
boots on the ground vet, the Blue Water vet must prove that he was exposed
to herbicide and then he must have a medical opinion that clearly states
that "It is more likely than not that the DMII condition was caused by
exposure to Dioxin."
Evidence of exposure must be compelling and reliable. Just making the
statement that you were exposed isn't likely to pass muster. The "nexus
letter" must contain verbiage to satisfy a couple of language requirements
and each letter should be reviewed carefully for accuracy.
These cases are very winnable if approached as above. This is also true
for veterans who are not in the boots on the ground or Blue Water
categories. If you were stationed at Fort Dog's Breath, Georgia and you
have evidence that you handled herbicides and you have a good nexus letter
describing the effects of that, you're very likely to win your award.
-------------------------
posted by Larry Scott
Founder and Editor
VA Watchdog dot Org
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