Veterans' Advocate Jim Strickland asks:  Was the VBA even looking at his medical records or was this just another attempt to back him off until he dies an early death?

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

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...   JIm's series for new vets, "Welcome Home," is also featured on Military.com. And, you can follow Jim on TWITTER here ...

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

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

THE VA CLAIMS BACKLOG EXPLAINED

by Jim Strickland

The Veterans Benefits Administration (BVA) is notoriously slow to adjudicate claims made by veterans seeking disability compensation benefits.

Just how slow is a matter of ongoing debate. The BVA would like us to believe improvements are being made and Veterans Service Organizations variously agree or disagree, depending on the prevailing winds.

Veterans know how long it takes. Too long. Most veterans would tell you that 3 to 6 months is about what they could live with and not complain.

It's headlined that there's backlog of cases pending. Some say the backlog is at one million now...and growing.

The question asked and never answered is, "Why the backlog?"

Veterans understand that the process can be complex. We know that some of us would game the system and VBA has to operate with checks and balances. We get all that.

We don't get it when our application for a benefit has disappeared down the gaping maw of the VBA and languishes there for 12 months or longer.

When we read that the Regional Office in Houston has a average wait time of 192 days ( http://tinyurl.com/leffpk ) we know that at least half of those claims are waiting longer than 6 months.

The processing time is the number one complaint veterans have with our VBA. It ties for first place with the number of flawed decisions issued during the preliminary rounds of the fight.

I'm doubtful that the numbers VA issues are real or that you or I or anyone can make sense of them but the article focusing on the Houston RO says some 18,000 veterans are waiting to have a claim processed in Houston. There are over 11,000 claims in the appeals process.

Any way you tilt this one, it comes down to the fact that over 1/2 of Houston's adjudicated claims are sent back for various appeals. In my own work I advise veterans that I see reasons to appeal in at least 70% of the cases that cross my desk and the actual number may be closer to 100%. Some vets are too worn out to appeal. We get tired of the VBA in our lives after years of waiting for the letter, years of disrespect and outright lies. Some of us don't have the grit for yet another appeal.

For the sake of having a number to agree on, lets agree that the Houston VARO is sending out 50% of its work that's wrong on the face of it. If 10,000 claims are processed, 5,000 of them are returned on appeal so that a higher ranking employee can do the work again to try and get it right.

The great majority of DRO decisions I see are favorable to the veteran. Our suspicions about the general quality of the work at the VARO are affirmed. We were right...that initial work was flawed, the DRO said so.

This begs the question; If the VBA doesn't have the time to get it right the first time, where do they find the time (and money) to rework 50% (or more) of the cases?

So, Jim, why the backlog?

I've been working with veteran John Nettles since August of 2008. John is a Vietnam veteran and he's developed diabetes...DMII. Sometime after his diagnosis of DMII John developed vascular disease secondary to the DMII.

The DMII hit him hard and fast. He had a series of heart attacks and strokes and today he wears an Automatic Implantable Cardiac Defibrillator (AICD) to internally shock his heart back to a normal rhythm as needed.

The strokes left him with a cognitive deficit...his brain took some big hits and isn't working as well as it did. John is sometimes quick to anger and he has trouble controlling his emotions. A series of strokes can leave one like that.

John can't work and left his job as a private practice lawyer.

"Jim, this filing is a piece of cake", you say. DMII is a presumptive condition for the RVN veteran and all one need do is file for benefits. Done and done.

No, not in the Columbia, South Carolina VA Regional Office. We've all heard that they see things differently down there in my state. I was born in South Carolina a bit over 6 decades ago.

John applied to the Columbia VARO for the benefits he earned in February of 2008. There was the usual back and forth about evidence but finally, John had the decision. His application for benefits was denied. The denial said he hadn't proved that he'd set foot in Vietnam. His denial arrived August 2008.

The truth was that John was stationed in Okinawa and he was sent TDY to RVN on classified missions. "I was a finance clerk", John told me, "Yes, I was there. I delivered millions of dollars in US currency monthly for bribe payments to politicians there so they would be 'on our side.'" The "Vietnam Conflict" was as dirty and ugly as any war.

He had the TDY orders for the VARO, he presented his pay records showing hazardous duty/combat zone pay and so on but our VBA Columbia RO rejected that as evidence. They told John that none of his evidence showed that he was actually there, only that he'd been ordered to go there a number of times.

John sent me a scan of an old photograph that showed him and 4 others at the tail of an airplane on a runway. This was the air field at Tan Son Nhut http://tinyurl.com/n79gxn

I was excited about that photo and when John told me that he was still in touch with 2 of the guys pictured, I was beyond happy. As luck would have it their names were also listed on those TDY orders.

Much of the rest of 2008 was taken up with getting "buddy statements", having his DD 214 upgraded to show his RVN service and returning all of that and a copy of that picture on appeal to the Columbia VA Regional Office.

Then we waited. I was confident that John would receive 100% Schedular as his benefit rating. We'd shown he was a "boots on the ground" Vietnam veteran. We knew he had a presumptive condition. We also knew the presumptive condition could reasonably be assumed to have caused the secondary conditions of heart disease and stroke.

February 2009 soon came and went, like Februaries are inclined to do. John and I stayed in touch and I counseled him that patience would win the day. We had a great case and a ton of medical records. John is very seriously ill. Even the SSA recognized how sick he is and had easily awarded him his SSDI benefits in 2008.

By then John was in some financial dire straits. He's surviving on his SSDI...a far cry from what he earned as a practicing attorney. All I can do is ask that he remains patient.

Then, June of 2009 the letter arrives.

I'm not surprised that the Columbia, SC Decision Review Officer has found that John is a Vietnam veteran with boots on the ground service. What the TDY orders and pay vouchers wouldn't do, a photo with buddy statements did.

I'm not surprised that the DMII condition is found to be presumptive and thus service connected due to his RVN service. There's no surprise that the heart disease and congestive heart failure is found to be secondary to the service connected DMII.

I was surprised...stunned, speechless...to see an overall rating of 60% disabled.

None of the ratings were at 40% so he wasn't even eligible for Individual Unemployability. He was rated for heart disease, diabetes and peripheral neuropathy of a single limb. Using VA math, it came to a paltry 60%.

The letter told John about his rating for heart disease:

"An evaluation of 30% is assigned from 2/26/2008. A higher evaluation of 60% is not warranted unless there is more than one episode of acute congestive heart failure in the past year, or workload greater than 3 Mets but not greater than 5 Mets resulting in dyspnea, fatigue, angina or syncope, or left ventricular dysfunction with ejection fraction of 30 to 50%. The 30% evaluation best represents your level of disability."

Here's the problem...nobody read his medical record. How do I know? Easy. The reference to the required "Mets" is simply bogus. The "Met" (metabolic equivalent) reference refers to a measurement of Individual Functional Capacity and is often measured by a cardiologist while the patient is on a treadmill.

John has never had a treadmill test. His heart is entirely too weak. He can't be graded by metabolic equivalents when they have never been measured. Did the rater assume that we wouldn't notice? Did the rater not understand that you can't rate a person using a measurement that doesn't exist?

Now we'll move to the next segment of the denial reasoning and we read, "not warranted unless ...left ventricular dysfunction with ejection fraction of 30 to 50%".

A higher disability compensation rating requires an Ejection Fraction (EF; another measurement of heart function) to be as low as 30% to 50% (normal is around 65% to 70%).

During his C & P examination, measured in a VHA hospital by VHA staff, John's EF measured 21%. Did that rater not notice or was he hoping we wouldn't notice?

The fact is that in The Schedule For Rating Disabilities Sec. 4.104 Schedule of ratings--cardiovascular system--Diseases of the Heart we find that; DC 7005: "Arteriosclerotic heart disease (Coronary artery disease): With documented coronary artery disease resulting in: Chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent...100%"

VA opened the award letter by telling John his, "coronary heart disease with congestive heart failure has been established as related to your service-connected disability of Diabetes Mellitus type II."

The law ... the Schedule ... requires that a veteran with an EF of below 30% is rated at 100% disabled. Was the objective of the rater to try to distract John and hope that he didn't have a copy of the law?

Was anyone even looking at his medical records or was this just another attempt to back him off until he dies an early death?

This reeks of, "Deny until they die".

I don't know the answer to any of the above questions. I do know that if you believe that there was an error in all that you've read so far, allow me another moment of your time. Sadly, I'm far from finished.

You may recall John has an AICD. It's prominently featured in all of his medical records and is the most serious piece of his medical conditions. AICDs are only implanted to prevent sudden death. Anyone looking at John's medical record couldn't miss it...unless they intended to exclude that from the process.

Now think back...did you remember the DRO decision referring to that? No...the fact of the AICD isn't there. The exclusion of any mention of the AICD could only have been with malice aforethought.

When a veteran with congestive heart failure has an Automatic Implanted Cardiac Defibrillator (AICD), the Schedule For Rating Disabilities tells us that we are to: "Evaluate implantable Cardioverter-Defibrillators (AICD's) under DC 7011."

This brings us to DC 7011 Ventricular arrhythmias (sustained): "For indefinite period from date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator (AICD) in place....100%."

The fine print of The Schedule can be found here http://tinyurl.com/lm4wo7  for those of you who have too much time on your hands.

John should have been rated as 100% disabled on the schedule by any one of 3 published criteria; (1) dyspnea, fatigue, angina, dizziness, or syncope with less than 3 METS exertion or (2) left ventricular dysfunction with an ejection fraction of less than 30 percent or (3) John has an AICD.

Now we come full circle to the question at hand. Why a backlog?

I wish I could tell you that John's case were unusual. It isn't. In my experience this is a perfectly ordinary adjudication by people who don't care about the quality of their work product. There can't be any feeling of a job well done when the goal is to produce garbage like this decision.

I do this day after day and I see the same patterns of error over and over again. Are they errors or is it true, as many veterans rant, that there is some sort of giant conspiracy that we will never understand? Deny until they die.

This case didn't have to be difficult.

In the beginning, anyone who had thought about it would have looked at those TDY orders and known John had set foot in Vietnam. You might recall that Title 38, Part 3, Subpart A, § 3.102 is "Reasonable doubt".

Even though this is one that's seemingly never a part of a VARO decision, we learn that, "When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant."

That isn't hard to understand. It's also not hard to read a TDY order and know that there was never a PCS order issued...that's why we had TDY documents. They were temporary by their very nature. This isn't rocket science here, it's common sense.

The Columbia, SC VARO should have ceded that to John by March of 2007. Why they wouldn't is a mystery to me. Do they enjoy being bullies and kicking sick guys like John around? Is the training they recive so poor that they don't understand the meaning of "Reasonable doubt"?

Is it evil or is it ignorance that drives decisions like this one?

John jumped through the hoops and did all the tricks they insisted on and proved the TDY orders were correct. He had to work harder and now so does the VARO...it has another, thicker file to review.

But they don't. They pay scant attention to his heart disease and they don't notice he has an AICD and the high ranking and well paid DRO sends his uninformed decision out the door. It's wrong but he doesn't seem to care...he really doesn't have time for a thorough reading...the vet should be happy he's gotten 60% and some retroactive pay.

What the DRO didn't know is that John isn't your usual veteran and he's not being helped by your usual advocate.

John and I have scripted his 2nd Notice of Disagreement, this time about that 30% and it will be mailed on the day this is published.

A year ago John told me, "I feel totally betrayed and lied to." He has good reason to. Along with those tens of thousands of veterans in Houston are 56 other VA Regional Offices that have similar problems.

The backlog isn't an anomaly at one or two VAROs, this is the way that the VBA conducts its routine business.

The glaring flaws in the adjudication of John's claim aren't at all unusual, this is the norm at your VBA.

Why the backlog?

We hear it all the time, "If you don’t have time to do it right, when will you have time to do it over?"

Your VBA has created a giant closed loop circuit for itself that it can't break free of. The leaders of the Department of Veterans Affairs have failed the American people for decades. Not only are there DRO appeals but BVA remands and lost files and the list is unending. Rework is expensive and every time VBA issues a decision that is doomed to be appealed, the American taxpayer coughs up some more money.

The backlog began when the leadership failed to look to the future and see the baby-boomer Vietnam era veteran aging and needing more care. That was compounded as they underestimated the impact on VA of a horrific, drawn out, modern day war.

Add that to a collapsing economy with skyrocketing health care costs and you have a perfect storm; every veteran wants his or her health benefits and they're turning to VBA to get their ticket punched.

The leaders of the VBA didn't have the vision to understand how quickly all their dark, hidden secrets would be exposed on that new-fangled Internet / web thing.

The Internet has provided veterans with better tools and resources than the VA itself has! My computer is faster, my printer is sturdier, my ability to access data is broader than anything the average VBA employee has at their desk.

I have no restrictions on how I can use my technology to joust with VA. Everything is available. Can't find a document? Use FOIA!

Is this a great country or what?

Like most of my brothers and sisters of the Vietnam era, I'm pretty good with all this technology and I'm quick to use it. The young veterans who are coming into our world today were born with a computer and Internet access in their hands. This is routine to them.

We see the errors VBA makes and we correct them. There's no fear of the VA any more, we feel mostly disdain, contempt...certainly no respect for the institution is left.

We will appeal and appeal and appeal and appeal again until they get it right. What will VA do? Deny us our claims?

Why the backlog?

Beats me.

Can I help you with that appeal sister? And the next one brother...

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

TOPICS: veterans, veterans' benefits, VA, Department of Veterans' Affairs, Jim Strickland, Veterans' Advocate,