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YOU ASK, JIM ANSWERS -- IT'S JIM STRICKLAND'S MAIL BAG --

Veterans' Advocate Jim Strickland answers questions

from VA Watchdog readers.

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...

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Jim:

I thought you might find this story of complete VA incompetence that recently happened to me...unbelievable if you did not know better. I called the VA RO on a case of mine and asked to speak to someone about the case. I explained I was the attorney of record and that they had all my forms. They know this because they sent me the c-file. They told me they can't talk to me about the case because I am not the veteran. That is bad enough but then I had the veteran call and they told him they could not talk to him about the case because he had a lawyer. I called back told my story and the woman on the phone actually said to me that I would have to talk to Congress to get rules changed before I could talk to anyone. She then said, "That is why we tell veterans not to get lawyers." and stopped abruptly realizing she should not have said that. It is stupid things like this that make the VA process so slow.

I don't think the VA is ready for the army of lawyers that will begin to enter this process and change the way they do business. I used to think SSA was run poorly but they are a finely tuned machine compared to the VA.

Answer:

I wish I could say I was surprised. It's a very sad commentary on the state of today's Veterans Benefits Administration that you're able to compare it to the Social Security Administration's disability process and that the SSA is a clear winner. But, it's true...the VBA has seemingly reached a new low in serving Veterans and is apparently working hard to go lower still.

I have a lot of respect for many of the individuals who work for the C & P division of the BVA. I hear from quite a few of them on a regular basis. It's unfortunate that the people who write to me have a consistent story to tell; they are disgusted by what they see. Those who want to better serve veterans aren't allowed to. The bureaucracy that is the VBA is controlled by the “old guard” and new ways of getting the job done won't be entertained. The VBA employee who makes waves does so at his own peril.

The slackers, those employees who demonstrate great incompetence and terrible attitudes can't be fired. Just as in most government jobs, poor performance isn't a reason to get someone off the payroll.

Of course, it isn't as much the employee as it is the process that really hurts. I've reported many times that the process of getting a claim adjudicated within VBA is so complex a task as to leave even an experienced bureaucrat breathless. There are literally hundreds of steps involved, each more complex than the last and at each step there's an opportunity for error.

I'm getting mail from more attorneys by the day. Most of the lawyers who are beginning to practice VA law are experienced in disability law and their practices have revolved around the Social Security Administration's SSDI process. As these lawyers get up to speed with the VA way of doing things, we're going to begin to see some epic battles.

Although the SSDI process is lengthy and leaves a lot of room for improvement, nowhere in the SSA do you find the sheer arrogance that is demonstrated by the VBA. At the SSA telephones are usually promptly answered. Employees are usually courteous and polite. A claimant's records are available for review, usually in a local office. In my experience with SSA, the claimant and the attorney are treated with respect.

Lawyers who are expecting that same courtesy and respect from the VARO are in for a rude awakening. In time, they'll force change at the VBA. The passage of the law allowing lawyers to represent Veterans was a long time coming and change won't happen overnight. But change will come...these lawyers aren't used to being denied and the VBA will soon enough realize that these guys aren't amateurs playing a game.

These lawyers are professional, trained, skilled litigators who are serious advocates. This is the real deal and VBA had best get used to it.

Hi Jim:

I was wondering if you could help me with the real VA definition of the term "regulation of activities" when they are dealing with a claim on Diabetes. My Veterans service rep says it has to do with a person's restricted diet and required exercise program because of their Diabetes problems. An email to my local regional office said that it means that a physician instructs a patient not to exercise because of the severity of his or her Diabetes. An email from (another columnist) awhile back stated that it means a person has to change their insulin injections from day to day according to his or her daily activities. Several other people, and doctors in the VA had no idea what it means. I also have talked to a multitude of fellow Diabetic Veterans on long bus rides to the hospital, and no one seems to know what the VA means by this term.

A person would think you could get a straight answer from a regional office, but I will never again trust anything that they say. Thanks.

Answer:

Your comment, "A person would think you could get a straight answer from a regional office" may be my big smile of the day. The moment that you get a straight answer from VBA is the moment I retire and start that rose garden I've been promising myself. Like "military intelligence" and "jumbo shrimp", to use the words "straight answer" and "regional office" in the same sentence seems an oxymoron.

All of the guesswork from all those others you quote is wrong. In the regulation that addresses diabetes we read;

TITLE 38 - PART 4 - SCHEDULE FOR RATING DISABILITIES

Subpart B_Disability Ratings

Sec. 4.119 Schedule of ratings - endocrine system

7913 Diabetes mellitus (100% Rating)

"Requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated."

So, it's clearly defined in the parenthetical qualifier as "avoidance of strenuous occupational and recreational activities". It isn't diet, insulin or prescribed exercise.

How are "strenuous occupational and recreational activities" defined? Your guess is as good as mine. This is where the fun begins. This fuzzy definition may work in your favor. Any time VBA leaves a definition open ended you may argue that it means what you believe it means above and beyond any VBA definition. If your doctor tells you that you shouldn't sit at work and use a computer, you might argue that he's just told you to avoid a “strenuous occupational activity”.

Jim:

I'm a returning Iraq War Vet, deployed from Camp Lejeune, NC. Injured while deployed, I was medically retired from the Marine Corps July of 2007. Now I'm in the queue with the VA, and my situation is sticky to say the least. Upon retirement, my family and I moved to Austin, TX, where I filed my C+P claim. We've since moved to FL, and about to move again to GA. I was told at the VA hospital by the doc that administered my C+P exam to not inform the VA that I moved until after I receive my disability claim, because they would shuffle my paper off to the state that I moved to and be at the bottom of their pile again. So, I haven't told the VA that I moved, and now I'm looking at purchasing a house early in 08, and I want to use a VA home loan. I really don't think my claim will be back by then, and I really don't want to start the C+P process again. Any suggestions? I'm about to call my Congressman in Texas to ask for help in this situation. The way I see it, moving should not mean a 6 month penalty in my claim procedure. Is it realistic that a veteran recently separated will know right off the bat where they will end up, geographically?

Answer:

That could be answered either way. If the address you used originally for the claim and exam is a "permanent" address...like your parents home...you may continue to use that until you have your own permanent address and no harm is done. It's doubtful that applying for a VA home loan with a different address will even be noticed by the compensation & pension group.

All I'd worry about is mail forwarding. If you're confident that you'll get your mail promptly delivered and forwarded, I'd probably leave it as is. If you don't feel confident of mail forwarding, I'd go ahead and notify VA in writing of my change of address, using registered mail and return receipt requested.

Having said all that, strictly speaking, we are supposed to notify VA of a change of address. But that's more to ensure mail delivery than anything else. There are some parts of the process that are "timely" and a missed message from VA may hurt your application for benefits. It's necessary to note that notifying one division of the DVA that your address has changed isn't enough. You must make separate notices to each part of the DVA that you may conduct business with.

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Larry Scott  --

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