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VETERANS' ADVOCATE JIM STRICKLAND HAS SOME YEAR-END

THOUGHTS -- "Although I'm a grouchy and curmudgeonly sort

by my nature, I wanted to end the year on a high note."

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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As the year 2007 comes to it's end, I thought I'd take a moment to reflect on a few of the Veterans I've been honored to know in the past 12 months. It's a privilege and a great joy that I'm able to connect to so many fine people and sometimes lend a hand.

Although I'm a grouchy and curmudgeonly sort by my nature, I wanted to end the year on a high note. My intent was to dig deep into the cellar of my inbox and root out the success stories.

It seemed to me it would be a kind and gentle thing to do; sharing with you the happy days of winning deserved benefits for those who have had the courage to don the uniform, accept the harsh duty of serving in the military of our great nation and in the process, sustaining lasting physical and mental wounds.

I've failed.

I don't have any big success stories in dealing with the VBA. I'll end the year knowing that my brothers and sisters who served so bravely are continuing to struggle with a government that views them as so much cannon fodder, a disposable piece of broken equipment to be used up and thrown away.

No matter the eloquence of slick politicians as they address us, the stark reality is that our government's obligation “To care for him who shall have borne the battle and for his widow and orphan” has not been met. It was 1959 when President Lincoln's words became the motto of what is now the Department of Veterans Affairs. Each year since then, the DVA has fallen farther behind in its duty to serve.

The DVA presents a tightly closed door to the neediest of Veterans. The wounded, sick or injured Veteran who seeks help must go to the division of the DVA that deals with disability compensation benefits, the Veterans Benefits Administration.

Before any monetary help is parceled out, the Veteran must stand up to that most adversarial agency of our government, the VBA. The Veteran seeking assistance is guilty until proven innocent at VBA. He or she is seen as guilty of overstating pain, injury, conditions of battle, time of service and even the status of discharge. More than anything, the Veteran is looked down on by VBA as if we were wanting something for nothing...we're beggars looking for a handout.

The arrogance of the organization is steeped in its tradition and runs to its very core. The BVA doesn't have any requirements to serve the Veteran in a timely fashion. If deserved benefits are delayed by one or two years, it's routine. There are countless examples of benefits delayed for 5 and more years, mired in bureaucratic red tape. There are no negative consequences to any VBA employee, manager or director in any instance that this occurs. VA Regional Office managers routinely receive year end bonuses of $15,000.00 or more no matter that the Veterans in their service area are suffering dehumanizing, degrading personal financial losses because of VBA delays. As the GAO was reporting that benefits claims fell behind for the 3rd year in a row, VBA management was busy back slapping and celebrating hefty bonuses.

If a Veteran doesn't timely respond to a notice from VBA however, the consequences are immediate and near impossible to reverse. If you fail to return a questionnaire within 60 days or you can't make it to a C & P exam, your benefits will be suspended with little notice and you'll spend months, maybe years to reinstate them.

VBA doesn't have to answer your questions. If you call to ask the status of your appeal, you're most likely to hear no more than a rude reply that it's being worked on. If you write to your VARO, it's most often the case that you won't ever receive a reply. If you've called your Congressman's office and they inquire, they will receive a soothing form letter telling them that “all is well, these things just take time”.

If the VBA queries you and you don't respond, the game ends. You lose.

I'll close 2007 thinking of the stunningly poor service given by VBA to Veterans like these following;
 

In North Carolina, early in the year, the Veteran Marine was diagnosed with lung cancer. He was a Vietnam Vet and it's established that his crippling, fatal disease is service connected because of exposure to Agent Orange. His cancer soon invaded his brain and he was quickly becoming paralyzed and unable to care for himself. He lost bowel and bladder control and frequently fell to the floor.

The letters came from the VARO to assure him that his condition was only temporary and that he was not permanently and totally disabled. His spouse was not allowed to receive any additional benefits as the VBA was sure that on his calendared reexamination in 2009, there would be measurable improvements. Some 10 months after his diagnosis, he was dead.

In Florida, the Veteran soldier suffers from PTSD and severe psychoses that are connected to his service. He's often housebound and bedridden due to side effects of his anti-psychotic medicines. He's been rated as 100% IU for over 3 years and was told that in October 2007 he would be notified to report for reexamination to assess his “temporary” condition. These reexaminations are conducted with the express intent of looking for a way to reduce your benefit.

The notice for reexamination never came. In November he received a letter from his VARO that his family was now eligible for CHAMPVA benefits and that they were welcome to apply. As CHAMPVA benefits are reserved for dependents of Veterans who are 100% permanently and totally disabled, it was apparent that his file had been reviewed and no exam was necessary to award him this deserved benefit. When he started the process of application to CHAMPVA, he was suddenly notified that a mistake had been made and he was given a one week notice to report for reexamination or he would lose his benefits.

His fragile mental health was sent spiraling down and when we last spoke, he was terrified and in tears for fear of losing everything.

In Illinois, the young wife of the Iraq war Marine Veteran wrote me in an attempt to understand why her Veteran husband was rated at only 30% disabled. After 2 grueling combat tours, he was a shell of his former self and afflicted with nightmares, unbridled anger, an inability to face the daily challenges of life and speech that was slurred from his powerful medications.

Unable to hold a job, he had crawled into a hole and often refused to shave, bathe, change clothes, groom himself or even play with his young children. Although he had confessed to random thoughts of suicide, he wasn't being scheduled for any particular aggressive therapy and no proactive services were being offered to him by VBA or his clinic. With 2 young children at home, she was unable to work and had to take care of her Veteran too.

All she asked was that the VBA help them with a little more money before they become homeless. Some treatment for the Marine would be fine too but their first thoughts are to simply survive.

In California, the Vet had been diagnosed with an Agent Orange related lung cancer. His wife had a good family plan health insurance from her work and he took his treatments at a civilian facility long before he gave the VBA any thought. After months of radiation therapy, chemotherapy and a diagnosis of a stage 4b terminal cancer, he finally got around to applying for his deserved benefits.

His VARO soon gave him the award of a service connection that ceded that his lung cancer was related to his exposure to Agent Orange while he served in Vietnam. Although he had lost his job, was on a continuous doses of morphine and other narcotics for pain, couldn't breathe without his daily nebulizer breathing treatments, had developed diabetes and hypertension and was mostly housebound...his VBA awarded him a 0% (Zero Percent) rating.

Their logic was that his disease, those tumors occupying that large space in his lungs, had “stabilized” and soon he would show improvement. Later, VBA would relent and award 100% but only as a temporary condition. He was soon reexamined and VBA saw improvement enough to attempt to lower his rating from 100% to 60%. That he had become dependent on tanks of oxygen in his home and increasing doses of narcotics to control his pain didn't have much effect on the VARO decision makers. He's appealed and has waited months for any final word.

In Missouri is the female Veteran who injured her back in training. She wrote to me to ask why she had been denied a raise in her benefits to the level of 100% IU. There was a lot of evidence to support her injury and the VBA had granted her 30% years ago. She'd had spine surgery by the VHA that was well documented to have been only partially successful. After years of work and dealing with her worsening pain, she'd been fired from her job as she couldn't perform the tasks required to keep up. Attempts to find employment were futile...she was on a lot of pain medicine and couldn't pass the sorts of employment drug screening that so many employers require today. She remains unemployed.

She went to civilian doctors and obtained MRI exams that VA wouldn't provide. The MRI reports were clear that she has suffered progressive worsening of her condition. Her VA doctor recommended to her that she apply for IU.

After 3 years of waiting, innumerable visits to physicians and physical therapy, now wearing a back brace and in intractable pain and dependent on narcotics, she's been notified that her condition doesn't warrant any increase, there will be no unemployability award and she is now scheduled for reexamination in 2009 as the VBA anticipates that there will be improvement in her condition.

According to her VARO, she's fine and needs to get up and go to work.

Across America I've received dozens of letters from Navy Veterans who served off the coast of Vietnam. They recall the days when clouds of misting Agent Orange drifted across their deck as they provided support for the fighting on shore. They remember going ashore with mail and other supplies to deliver those goods to troops on the ground. Both air and water craft that had been used in the delivery of that deadly herbicide were stored above and below decks and today, these proud sailors are dying of prostate cancer, lung cancer and diabetes...all diseases presumed to have a connection to exposure to Agent Orange.

But, your VBA has drawn a line in the sand. No matter what the federal courts have ruled, no matter what common sense and reasonable judgment would tell us, these vets aren't going to get what they earned because of an arbitrary decision by VBA that they didn't have boots on the Vietnamese soil thus there was no exposure to Agent Orange.

I've failed today. Out of the hundreds, maybe a thousand or more emails I've received in 2007, I can't bring you any good news from your Department of Veterans Affairs.

We had a single moment of hope in 2007 as Secretary Nicholson resigned after a disastrous tenure blighted by computer data theft. His brief reign at DVA may go down in the books as one of the worst ever. He accomplished nothing while the VBA got ever more behind in adjudication of benefits claims. We had a brief hope that finally a secretary might be appointed who would make the change called for by GAO, The Veterans Disability Benefits Commission and many others.

That hope was quickly dashed however. There will be no sweeping reform. The swift confirmation of another favored insider, Dr. James Peake, was one of those backhanded slaps to our faces we've learned to expect from our VA.

Peake was the chief medical director and chief operating officer of QTC Management Inc., providing Compensation and Pension examination services for the VBA. Former VA Secretary Anthony Principi is Chairman of the QTC board.

The VBA pays untold millions of dollars to QTC and even the VBA is often forced to admit that many of the exams are worthless, full of error, inadequate, rushed by poorly trained and unsupervised examiners who provide a great disservice to the injured Veteran.

In any other arena, these sorts of back and forth ties would have the popular press screaming for RICO indictments. In our world, the world of the Veteran and the DVA, it goes unnoticed. Another day, another slap to all Veterans.

Thank you sir, may I have another?
 

After all that though, we did win one. We won a single momentous, historic battle in 2007.

This victory gives us hope that we will watch as VBA experiences the shock and awe of a legal onslaught, a tsunami of actions by the only friends a Veteran will have while facing the VBA.

On June 20th 2007 Veterans won the right to approach the Veterans Benefits Administration with an attorney advocate at their side. Prior to June Veterans were only allowed to use the services of a Veterans Service Officer as they faced off on a battlefield with the VBA. No matter how well meaning some VSO's may have been, they were largely untrained and had few skills beyond helping you to complete some forms. Many were volunteers and only worked a few hours each week, eagerly accepting the glory of their positions and basking in the light of self importance.

It was disheartening to watch the process of legislation of the act that would allow Vets to retain a licensed, skilled, motivated attorney. Most of the Veterans Service Organizations, those very people who say they represent our interests, sided with the DVA and worked against their own Veteran membership.

Led by the 800 pound gorilla that is the Disabled American Veterans (DAV) group, the VFW and many others fell into lock step and marched along, beating a loud drum to announce that we Veterans didn't need lawyers. They were nearly successful in knocking the legislation off the tracks with back room lobbying and expensive marketing to our elected lawmakers.

We won.

Today hundreds of lawyers across America are jumping into the fray. These are good lawyers. These are men and women, licensed and certified professionals who have been advocating for Americans with disabilities in other courtrooms for years. Their practices are often limited strictly to people with disabilities. Their paycheck depends on their success in representing their clients.

Unlike the DAV or VFW Veterans Service Officer, these lawyers aren't on a salary that pays them for losing. If you don't win, these lawyers don't get paid. Unlike the DAV, you won't be encouraged by your lawyer to fork over money for a “lifetime membership” or buy a colorful hat with a cute little pin on it. All your attorney wants to do is win, it's not a game to them.

The lawyer won't accept your case if it's not justified. Attorneys are strictly held to canons of ethics by their governing bodies. If a lawyer is known to file a frivolous claim that has no merit, they may be harshly punished. The VSO isn't held to those rules or any rules at all. There is no standard across America that defines a qualified VSO...take a short quiz and you're in.

I've already set up a pattern of referring to attorneys who I've concluded are going to work hard for us. I've surprised myself in making a referral sooner in the process than I thought I would. It's paying off. I'm hearing of decisions that are being won by lawyers soon after they've taken the case. I expect that in 2008 I'll refer many more than I'd anticipated.

I also know that your VARO is in for a surprise. As I write this these lawyers are in meetings training themselves and each other in the intricacies of VBA law. They're networking and talking to each other and to me. Law schools are beginning to design curricula to train lawyers in VBA law. The machine is rolling.

At your VARO there will be the shock and awe of 10, then 20 and then 40 lawyers who won't accept being turned away by the gatekeepers at VBA. Unlike your local good ol' boy VSO, the lawyer who advocates for you will be quick to discover how to use the courts to force that door open.

I've said it before; these lawyers aren't used to being treated discourteously. They won't accept delaying and stalling tactics. The dynamic of the process at VBA will change at your VARO as 2008 marches along and that's a huge win for veterans, one of the best ever.

There is hope. If we won that one, we can win more. Maybe my 2008 won't be quite as gloomy and filled with the stories I told you of earlier.

I'll be here in '08, fighting by your side, covering your back and cheering for those lawyers who want to stand up for America's heroes.

Merry Christmas and a joyous New Year to all my Brothers and Sisters.

May God bless every one of you.

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Larry Scott  --

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