Veterans' Advocate Jim Strickland answers questions from VA Watchdog dot Org readers.

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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...

And, you can follow Jim on TWITTER here ...

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by Jim Strickland

NOTE:  Letters in my Q&A columns 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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A SPECIAL NOTE FROM JIM STRICKLAND ...

Are you a victim? Have you been affected by document shredding, the transmission of a communicable disease by unclean instruments at a VA health care facility or "seed" implant brachytherapy for prostate cancer at the Department of Veterans Affairs Medical Center in Philadelphia? Do you have information to share about these or other high profile events at VA? If you answered "Yes", we need to talk.  jim912@gmail.com

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Jim;

I am rated by the VA as 50% disabled. Part of that is due to a back injury received on active duty that has now been worsened by an injury on my civilian job. I applied for and received Social Security in six months. Someone told me that the VA has to acknowledge my Social Security disability and give me 100% disability due to unemployability. Another words that one federal agency must go along with another federal agencies findings. Are you aware of this and if so do you know where I can find this in writing? (Signed) Gulf war veteran

Reply;

I'm sorry to tell you that "someone" told you wrong. There is no required or implied reciprocity between the VA & the SSA. The standards of how "disabled" is defined are different from one to the next. It becomes even more fun when you look at how different insurance agencies and work comp policies define it.

Having said that, if you proceed to apply for 100% disability with the VA and provide them with the rationale that the SSA used, it's likely that they will follow along. This is *IF* the SSA based their finding on only your service connected disability. VA won't consider anything else.

If you're denied by VA don't sweat it. You'll appeal and the appeal is much more likely to consider the SSA conclusion and award you your benefits.

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Jim;

I just could not control myself in reacting to one of the item http://tinyurl.com/o5dtst  in your daily news dated this weekend May 9, 2009. This is the highest form of hypocracy there is. If they are doing a good job, there should be less than 5% of present complaint coming from VETS. They are not even comparable to the social security system in term of efficiency. As an example, If you try to get in touch with the social security system by telephone, you talk with a person who knows what he or she is talking about. In the VA system you give them a call and you end up talking with a person who does not even know as to what he is talking about.

When you confront them and point out their errors, they won't respond at all anymore. During the last 9 years of trying to increase my rating due to deterioration of the status of my disability, I learn a few thing in their methodology. They will grant your increase piece meal, in spite of your condition deserving of a higher rating. Another glaring finding, is a lot of people handling adjudication and implementation of disability benefits are not well verse in all the different aspects of the regulation of the VA. Some of them are not even aware of Special Monthly Compensation, and how different it is against regular disability compensation.

If errors come up on their part in implementing the payment of disability benefits, the VET have no recourse but to file for a NOD and pray that they get to it before you pass away. Unlike in the Social Security System, if an error is committed, and you bring it to their attention even by telephone there will be immediate action. So if the VA have some sense of decency, please don't play this award anymore in the press, because all VETs knows what they are and it makes us all feel sick for pampering a rotten system. Their system belong to a third world country, in spite of this country being able to sent a man to the moon.

Each Regional Dept and individual unit is a little kingdom by itself. Each personnel is arrogant in general for lack of accountability and for having job security. Much more has to be done before they deserve this kind of award otherwise the VA system is just kidding themselves.

Reply;

The key word above is "arrogant".

Arrogant is defined http://tinyurl.com/o6d5a6  as "Overbearing pride evidenced by a superior manner toward inferiors", "Having excessive pride in oneself", "The act or habit of arrogating, or making undue claims in an overbearing manner; that species of pride which consists in exorbitant claims of rank, dignity, estimation, or power, or which exalts the worth or importance of the person to an undue degree; proud contempt of others; lordliness; haughtiness; self-assumption; presumption."

There is no other federal agency that exhibits "proud contempt of others" to the degree of your VBA.

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Jim;

My husband is a retired veteran, he was in a uniformed service* from age 19-50 when he retired. Now at age 57 he has recently found out that he has stage 4 non small cell lung cancer which has met sized to his spine, lymph nodes, and brain. His median life expectancy is 1 yr. He was never a smoker and this cancer is not considered to be mesothealoma (asbestos related). He is unable to go back to work in the near future if at all. Do you think we should try and get his VA rating increased?

Our VA contact says the doctor must say that "the cancer was more likely than not related to asbestos" in order to get an increased rating". The doctor can not say that it was more likely than not related to asbestos. Should we still try and get his rating increased? If so, what do you think our chances are? Should we go to an attorney to help us? We are devastated and don't know where to turn. Any advise you can give us would be appreciated. He retired with a VA disability rating of 20%. (the 20% was for some scars he had, moles cut off, arthritis, and hearing loss).

Reply;

I'm very sorry to hear of his illness.

To receive VA disability compensation benefits, the veteran must have a service connection that links his condition with some specific cause. Your example of asbestos related disease (mesothelioma) is correct.

He would first need to show that he was in fact exposed to asbestos during his service. Then he would need to show that he had a related condition such as asbestosis or mesothelioma. Then the VA would evaluate him via a Compensation and Pension examination to determine just how disabling his condition is.

If he doesn't have either proof of exposure to asbestos (or another carcinogen) during his service there won't be any route for compensation to be approved.

If he had ever set foot on the soil of Vietnam he would also be eligible for compensation benefits. Vietnam veterans who develop lung cancer (and a handful of other conditions) are automatically assumed to have the condition because of their exposure to the herbicide known as Agent Orange.

If any part of his history shows contact with Agent Orange, there may be reason to pursue that as a cause of the cancer. This can be very challenging though and not always successful.

One final thing that comes to my attention...you say he had some moles removed. Are there any pathology reports available from any of those surgeries in his records? If there is any reason to suspect that a mole or other skin lesion was a cancer or pre-cancerous condition, a link may be made from that event to a later metastasized cancer. That would be a reach but it's something to consider.

You've probably already thought of this but if not...he should immediately apply for Social Security SSDI compensation. I doubt you'll need a lawyer as his condition is indeed very serious and the SSA is often pretty good about swift approval.

You are not allowed (by law) to retain a lawyer to represent you to VA at this point in a claims process. You must first have a denial of a current application for benefits and then you may retain counsel.

However, to be honest, I doubt that an attorney would take your case today. Without the above noted evidence of some sort of carcinogenic chemical exposure, you don't have a case.

Having said all of that, I would advise you to proceed with filing for compensation. While I don't believe that you have a great chance to prevail as it stands now, there is nothing lost by getting the process started. Then, should he discover some evidence 3 months from now that he was exposed to a carcinogen, you'll be that far ahead of the process.

Filing is very simple. You only need to write VA a letter (to your Regional Office) and state that you are making a claim for service connection for the lung cancer. That will set the date of the claim and start the process. Mail this brief letter using certified mail and return receipt only. Don't fax, email or call to file. Certified mail is the only method I ever recommend.

Once you've done that you will then be able to turn your attention and thoughts to his history of any exposure to a carcinogen.

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Jim;

I served in the Navy from Jan 1971 Thru Dec 1974, about two weeks from a full 4. I was stationed at White Sands Missle Range for a while. If I had any exposure to anything it was most likely there. I worked with all kinds of liquid and solid fuel rocket propellants. I also spent a lot ot time in the desert retreiving missle parts. I applied for my benefits and was turned down due to income limits. I don't know if I can do anything about that. However about 10 years after my discharge and 8 years after my inactive reserve I was operated on for lung cancer. Is there a group or a organization that could help walk me thru the comp process. My doctor said that I most likely had the cancer 4-5 years before it was found. It was not the type of cancer from smoking. If you can help I would appericate it.

The income limits that are in effect means that if I get sick again, I'll have to be destitute before I can use the VA. When I enlisted, the promise was that if I ever needed VA care I could get it. That has surely changed. The only reason I applied for the health benefits was that after I had paid for my own insurance from 1979 the inusrance company went belly up. Now these health insurance companys only wants aces, straights, and flushes.

Reply;

I don't know who promised you free VA care in exchange for your service. I hear that quite often but nobody ever has that in writing or remembers who told them. I served just before you did and nobody ever told me I'd have anything but GI Bill.

Today if you want VA care you must either have a pension or receive disability compensation. To get a pension means that your income is below the federal definition of poverty for your region. Otherwise you must be receiving a service connected disability compensation. Once you're receiving compensation, non-service connected care is offered on a basis of co-pays and so on.

If you were ever a smoker, that will always be seen as the cause of your disease unless you can prove otherwise. If you served in Vietnam with your boots on the ground it's likely that your cancer would be associated with Agent Orange and thus you would be eligible for compensation and care.

That you were in the Navy raises the question of exposure to asbestos. Many Navy guys who spent a lot of time below decks came ill with asbestosis, the condition that develops before cancer (mesothelioma) does. White Sands also has a history of asbestos and that's worth your efforts to pursue.

http://www.asbestosnews.com/asbestos-areas/new-mexico.html

http://www.asbestos.com/news/2008/01/14/m
esothelioma-claims-fontana-man/

http://edocket.access.gpo.gov/2008/E8-2090.htm

You may want to ask your docs if your cancer may have been associated with asbestos...then you'd have a case.

You'll have a steep uphill battle to fight but I think you should go ahead and file for disability compensation benefits.

It isn't hard to do at the beginning. Read how to do it yourself in my Veterans Benefits Guide...a link is just below.

Tell the VA you want compensation for your lung cancer because you were exposed to a carcinogen during your service at White Sands. It really is just that simple if you carefully follow the instructions I provide in the Guide.

It's very likely that your application will be denied. That's where we want to get to.

Once you have the denial, then you are allowed to retain a lawyer to take your case for you. The lawyer will appeal the denial and it won't cost you anything unless and until he wins for you. The fee will come as a percentage of any back pay.

I know this sounds like a crazy way to proceed but that's how the system works. You must have a denial before a lawyer can be hired and your case is complex enough that I believe you'll need that lawyer. So...let's get started and get the first denial.

Read that guide so you can get started.

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