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YOU HAVE QUESTIONS -- WE HAVE ANSWERS --
Veterans' Advocate
Jim Strickland is joined by NSO Gunny for this
Q&A.
Veterans' advocate Jim Strickland
provides regular columns for VA Watchdog dot Org.
Today, Jim and NSO Gunny answer questions
asked by VA Watchdog readers.
If you would like to contact Jim about
his columns, you can email him here...
The archive of Jim's articles
is here...
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You have questions. We have answers. I’m joined today by a friend who is
a working and accredited National Service Officer (
http://www1.va.gov/vso/ ). NSO
Gunny is a decorated combat Veteran with a VA service-connected
disability. He’ll be checking my responses and correcting me if he
disagrees, adding comments to my reply and assuring that you get
relevant info. Send us your questions and we’ll publish as many as we
can in the future.
Here’s the necessary disclaimer: This isn’t legal advice but
general information. You must check with your chosen representative
prior to proceeding with your claim based on what you may read here. We
can’t be responsible for specific outcomes.
Q. I was drafted 1971 with a pre-existing back problem,
aggravated during service and was on light duty last 10 months. Was
given 10% when I got out. Re-injured back while working and was awarded
workman's comp. Applied to VA for higher disability but denied by BVA.
In 2002 got 40%. Awarded SSDI (
http://www.ssa.gov/disability/ ) in 1993. Applied for secondary as
depressed in 2005 and finally awarded 100%. I didn’t see the
opportunities open back then. Could I or should I file with an NOD
(Notice of Disagreement) for an earlier date from when I was awarded the
SSDI ?
Jim. No. When VA denies a benefit award, you have one year
to appeal. If you don’t appeal within that one year window, you must
open a new claim and the date of that new claim is the date benefits, if
awarded, will begin. The only exception to this is if you can prove that
VA made clear and unmistakable error (
http://thomas.loc.gov/cgi-bin/query/z?c105:S.464.RS: ) in earlier
decisions, an almost impossible task.
NSO Gunny. I agree with Jim. If the facts are just as laid
out in the question, there doesn't sound like an avenue for an Earlier
Effective Date (EED) (
http://www.vba.va.gov/pubs/forms/4107.PDF ). If there was a clear
and unmistakable error as Jim mentioned it may be possible, but that
type of error must be undebateable under the law that existed at the
time and in accordance with the facts at time. As far as the SSDI, a
claim with SSA is not automatically a claim with the VA. There is always
the possibility of an unadjudicated inferred or otherwise informal claim
for unemployability, but to determine that, you need to have a local
expert review your claims file. It’s a long shot; worth having someone
review your file, but not worth getting your hopes up.
Q. In 1952 thru 1975 drug & chemical tests known as MKULTRA
(
http://en.wikipedia.org/wiki/Project_MKULTRA ) were done at Edgewood
Arsenal. DOD will not release the names of the Vets used in the tests,
but we know who we are. Of 7120 men of Edgewood in the March 2003 Sarin
report, 40% of the vets are dead and of the 4022 survivors 54% or 2200
men are disabled for a total of 74.43% death and disability rate. The VA
keeps denying my heart disease as either secondary to the PTSD (
http://www.ncptsd.va.gov/facts/general/fs_what_is_ptsd.html ) or as
a direct result from the tests, for 4 years they would not even mention
the experiments in 1974. How do I get the VA to even address the
problem?
Jim. I’d enlist the help of a professional NSO who is
sympathetic to your case and interested in the history of the Edgewood
Arsenal event. You might try approaching an elected representative in
your district or seek assistance from your state’s Veterans Service
Officer offices.
NSO Gunny. The Edgewood event can be difficult. You have to
get proof of (1) that you were there, (2) what you were exposed to, and
proof of it, and (3) a good medical link to your condition and the
exposure. As bad as it sounds, VA has taken the position that anxiety
disorders (PTSD) have no relationship to cardiovascular disorders,
despite all the medical evidence to the contrary. Bottom line, you need
a good medical opinion, preferably from a cardiovascular specialist
indicating your condition is caused, or aggravated by PTSD. You VSO
should be able to help.
Q. Is it still the "10 year rule" for holding a rating
before the rating cannot be changed? where is this info located in the
CFR?
Jim. To my knowledge, yes. In my experience, this is one of
the rules that doesn't get talked of too often. The regulations (38 CFR
3.951, 3.957) are linked below.
http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_950.DOC
http://www.warms.vba.va.gov/regs/38CFR/BOOKB/PART3/S3_954.DOC
NSO Gunny. The 10-year rule is for an award of service
connection. After 10 years, the award of service connection cannot be
severed. A "rating" for a service-connected disability is protected
"from reduction" only after 20 years. The only exception to each
scenario is by a showing of fraud or if a Veteran didn't have the
requisite service to begin with, both of which are extremely rare.
Q. What are the procedures for removing the DAV as my power
of attorney?
Jim. Write to them and tell them in plain English that you
rescind the power of attorney effective upon receipt of your notice. Ask
for a confirming reply. Notify VA that you have taken this action. Use
registered mail. If you don’t get that confirming reply within a month,
write again noting that this is second notice, etc.
NSO Gunny. Nothing to add technically, I agree with Jim.
Having said that, I’d caution you to reconsider your actions. If you
aren’t happy with your NSO’s service, before severing ties with them be
sure to speak to the local supervisor and then the district manager.
Your file might just be ready to tip in your favor and your actions
could contribute to circumstances that could delay your award while VA
sorts out exactly what you’re trying to accomplish.
Q. I was honorably discharged from the U. S. Navy for a
Medical (Ulcerative Colitis) in June 1966, after serving on Active Duty
for seven years. I filed an application for Disability Comp with VA the
following year 1967, but could not report for a C&P (Compensation &
Pension Exam) (
http://www.vba.va.gov/bln/21/Benefits/exams/index.htm ) because I
was in a Civilian Hospital. Later I received a 30 % rating in 1984, and
then a 100% rating in May 1986, which I still receive and I think this
rating is now protected under the 20 year rule. My question is, am I
eligible for an earlier effective date of 1966 for my disability when I
first filed with the VA?
Jim. No. Although you didn’t say it, I assume after missing
that C & P you didn’t immediately reschedule and/or explain your
circumstances to VA as you must do within one year of losing an appeal
or filing. Generally speaking, when you don’t file timely actions you
lose your right to reopen those actions years later.
NSO Gunny. We touched on this in the previous Q&A on Earlier
Effective Date (EED) and that may also apply here. When you were in the
hospital, was the VA Regional Office ever made aware or did you provide
the VA with your latest (during the hospitalization) mailing address? If
so, was the proper notification sent to that latest address? If VA had
your correct mailing address, sent the proper notice to the correct
address, and you failed to respond after getting out of the hospital. I
see no avenue for an EED. Generally speaking, it is always your
responsibility to keep VA timely notified of changes of address,
circumstances, marriages, divorces, telephone numbers and so on.
Q. I am 70% for PTSD with IU 100%. In March I was awarded
SSDI for PTSD, major depression, anxiety, severe asthma and arthritis.
Is it feasible to file for Total/Permanent now that Social Security has
found me totally disabled?
Jim. As you are already IU and 100% disabled, you have all
the privileges and compensation of any other totally and permanently
disabled Veteran. (“IU” refers to Individual Unemployability (
http://senate.gov/~veterans/index.cfm?FuseAction=Hearings.CurrentHearings&rID=
290&hID=120 ) due to your service connected disability. It’s a VA
shortcut allowing certain Veterans to achieve 100% status with ratings
that may be as low as 60% or 70%.) A key phrase to look for on your
award and benefit documents is “no future examinations” are scheduled or
similar verbiage. That indicates that VA does not see your condition as
temporary. I’d let sleeping dogs lie and not bother with any further
applications were I you.
NSO Gunny. You are "total" in the fact that you are IU, the
question is whether you are permanent. In some cases, VA may award IU
without making it permanent; have they done that in your case? Jim is
correct in looking for the language he mentioned, but some ROs,
especially considering the workload they are under, do not put very much
info in a rating decision. If your decision (or award letter) granting
IU stated that your were entitled to Chapter 35 benefits (Dependents
Education Assistance or DEA) (
http://www.gibill.va.gov/GI_Bill_Info/rates.htm ) then case closed,
you’re permanent. VA sometimes forgets to put this on a decision. The
code sheet (which VA will not send you) indicates whether future exams
are scheduled. If you just can't tell, call the VA and ask (
http://www.gibill.va.gov/contact/landing_contact.htm ). Like Jim
said, do you need to bother? If you have a family that needs healthcare
insurance, a wife or children who need those education benefits, then
you need to be permanent. If the answer to those questions are "no," you
have nothing to gain, VA will eventually make you permanent, usually
after about 5 years.
Contact Jim
Strickland here...
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Larry Scott
