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IT'S TIME, ONCE AGAIN, TO GO DIGGING THROUGH JIM'S

MAILBAG -- 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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Question:

I need help with my Appeal back to the Board of veterans' Appeals can you help?

Answer:

You provided me with a copy of the recent Board of Veterans Appeals (BVA) decision addressing your claim for PTSD related to your combat experiences as a member of a Marine Corps recon patrol in Vietnam for 14 months in 1971-1972. You have claimed combat assaults, combat with fixed bayonets, night missions, near death and close call experiences while in service in Vietnam. Your claim was denied. The BVA decision says that you served on a ship in the early 1970s and did not put boots on the ground of Vietnam and that you did not serve in combat.

You also claim that while in Korea you were given some sort of psychotropic drug without your knowledge, and that you ended up in the hospital. There is no notice in your Service Medical Record (SMR) of any hospitalization for you at any time during your service.

You have alleged that as you watched, a ship's crew member was crushed between two vehicles in April or May 1972; however, such an incident is not contained in the deck logs for the the ship you served on. You've also stated that you witnessed a helicopter explode on deck during a landing off the coast of Vietnam in 1972. The ship's deck logs do not indicate, however, the loss of any helicopter during the months you claimed. You claim to have witnessed a friend being stabbed in the heart and dying during a fight exacerbated by racial tensions on board your ship. However, with regard to your report of a friend being stabbed, there is no indication in records of the ship that such an incident occurred.

In spite of numerous notifications by the Regional Office and the BVA, you have not provided any of the evidence that has been requested of you to support any of your allegations of stressors that would have caused PTSD.

The BVA has informed you that "a noncombat veteran's testimony alone does not qualify as credible supporting evidence of occurrence of an in-service stressor as required by 38 C.F.R. § 3.304(f)."

The decision of the board is clear. It is unlikely that you can be successful with an appeal unless and until you are able to present VBA with evidence that you served in combat. That will be a steep challenge as all records indicate that you did not serve in combat. It appears that you have no corroborative evidence of any sort that would support any of your many allegations.

If records were lost or unclear, you might be able to argue that point in your favor. However, it seems that there are no gaps in your records, ship's logs are complete and available and the records of the ground units you claim to have served with in combat are also available. There is no record of your service in these ground units.

Were even one of the events you cite verifiable, you would stand a chance of winning an appeal. However, it would appear that you either are unable to provide the required evidence or you have been unwilling to take the necessary steps to search out your evidence.

At this stage of your plea for benefits, you need attorney representation. However, unless you are able to present evidence that supports some part of your claim, I doubt that an attorney will accept your case. I won't make a referral based on what you've given me.
 

Question:

Jim,

After reading your paper on C&P exams I have a question. Isn't the examiner required to have your C-file and/or medical records present at the exam? My husband recently had a C&P to connect his heart condition as secondary to his diabetes. We were told a few years ago by one of our VSO's that the examiner is required to have the C-file present. This examiner did not have anything except the paperwork from the regional office requesting the C&P. She told us that her instructions were that she was NOT to review the C-file nor medical records. She was not to do an evaluation nor give her medical opinion. She said that this was the strangest request for a C&P that she had ever seen. We did have letters from 2 VA doctors stating that his heart condition was secondary to his diabetes as well as the medical reports from his attack and the heart cath that was needed. She read the paperwork and stated that she would include it in her report. We also gave her a copy to the Title 38 regulation which shows that the rating my husband should receive is 60% because his condition fits this reg. I printed a copy of the exam worksheet which she did not have.

So I have searched the internet to see if I can find the regulation that shows what is required of the examiner to have at the C&P. Do you have any idea where I can find this? Any help you can give would be greatly appreciated.

Answer:

Excellent question! The VSO who told you that the C-File is required was wrong.

The rater who requests the C & P may have it done either way, with or without the medical records available. Remember, doctors don't make disability decisions, raters make those decisions based on very structured ways of looking at data. The rater requests only the data he needs and the examiner follows those instructions. The rater who makes the disability decision will consider the information from the examiner only as a piece of the pie.

There's a logic to this.

If the rating decision is the degree of disability, the medical file is of little use. For example...if a Veteran presents with a condition of a knee joint, the cause and past treatment of that condition is not particularly relevant. The rater already knows why the knee is injured, when it was injured and the treatment it has received. He now wants to know to what extent. Looking at records and old x-rays has no bearing on whether or not that knee is working today and to the degree of measurable disability.

In this example, the rater may ask about flexing the limb, side to side movement, pain on movement and pain to touch. The Vet may be asked to walk on the limb to judge gait or limping and that's the info that's needed. That data is sent to the rater who adjudicates the file
and assigns a disability rating.

In the instance you tell me about, I can make a couple of guesses. If your husband is a Vietnam Vet and was diagnosed with Type 2 Diabetes, that is "presumptive" as a service connected condition because of exposure to Agent Orange. He should be Service Connected at 10, 20 or higher %.

Then he develops a heart condition and here's where it can get tricky. If he was diagnosed with Type 2 and is SC for that and then later develops coronary heart disease, it is very likely that the rater has already established the nexus (diabetes=heart condition) in his own mind and is only seeking the degree of disability from the heart condition.

Still with me? It is usually assumed that diabetes precedes heart disease. Service connected diabetes will lead to a service connection for vascular disease. If your husband had a history of heart disease prior to his diagnosis of diabetes and if he had other risk factors like smoking, the VA may find that there is no service connection. If heart disease precedes diabetes, it wasn't caused by it, thus no benefits for the heart condition.

If your husband is not a Vietnam vet but was diagnosed with Diabetes during his service and later developed heart disease, he is likely going to see a SC for the heart problems.

In another example, the rater may be very specific and request that the physician review everything and render an opinion. For example...a Vet injures his back in 1972. He's seen in clinic a couple of times but goes back to duty. He's discharged 3 years later with only one other report of back pain. He goes 10 years without a problem and suddenly his back is just gone. He needs surgery, loses his job and so on...a disaster. He claims it's service connected but VA sees the events in the records as acute and transitory. The examiner may be asked to read it all and comment with expert medical opinion if the original event could have a connection to the current event.

If that examiner says 'yes', there are benefits. If the examiner sees the original injury was to a different part of the back, far removed from today's problems, no service connection is established.

I'll bet that your husband's doctor or examiner focused on issues like shortness of breath, level of activity that can be achieved and so on? If so, she was instructed only to provide the degree of current disability because the rater with that file has already decided it's SC secondary to diabetes.
 

Question:

Jim, I am contacting you in regard to my husband. In 2002 He was diagnosed with serviced connected prostate cancer. He was given a rating of 100%. He had a radical prostatectomy. Two months later his PSA started to rise again, which of course, indicated that the cancer was back and had metastasized. He was started on radiation and during the treatments his PSA continued to rise. They stopped the radiation and started him on chemo and hormone therapy. His last hormone injection was in 2005. At that time his PSA was undetectable. In 2004 the VA gave him a 100% P&T rating saying that no future exams would be scheduled. By the way, we lived in (State #1) at the time. We moved to (State #2) in the spring of 2005 to be close to kids and grandkids. About a year ago we got a phone call from QTC Management that he was scheduled for re-exam.

The VA started proceedings to lower his rating, because they said the cancer was gone. We were told that the cancer would come back in the future, because the hormones just deterred it for awhile. In January of 2007, his PSA became detectable again. This is during the time the VA was re-rating him. We got a letter last week of their decision to definitely lower his rating down to 60% due to the fact that his cancer was better. The 60% was for incontinence.

Yesterday, October 9, 2007 he was told by the VA urologist that the cancer was back and now has to see their oncologist soon to see what the next course of action will be. My question to you is; how do we handle this with the VA when they are now going to lower his rating to 60%, because his cancer was "better". By the way in 2002 when he was originally diagnosed with cancer, his Gleason score was 8. The VA in (State #1) said that they would have never rescheduled him for another appointment to begin with. Isn't this supposed to be a government thing not a state wide issue? With what my husband and our family is going through we should not be going through an appeal process at this time.
HELP!!

Answer:

What you are experiencing is routine...frustrating and painful but routine. If you will please spend a few minutes reading through the archives of my work, you'll see where I've written about this in the past. In the VBA, nothing is “Permanent and Total” even when they use those very words.

You've also pointed out a major issue that has been argued many times...there is a lot of inconsistency from Regional Office (RO) to Regional Office. One RO may be generous with benefits and the neighboring office may be much less generous in their rulings. Filing a claim at a given RO seems to be like choosing a slot machine in Las Vegas...you never know which machine may be lucky that day.

Prostate cancer (and many other cancer) patients are given a 100% rating during treatment. It should have indicated that it was temporary "future exams are scheduled" in that original award letter. To receive a “no future exams” award with a diagnosis of prostate cancer is most unusual in my experience.

The thought process is that during treatment the Veteran will be sick...too sick to hold gainful employment and temporarily deserves that 100% disabled rating but that after treatment, he'll likely be “cured” of the cancer.

The cancer is usually undetectable and the Vet is not totally disabled. If there is a "residual" left from treatment, it is compensated at a lower rate. In your case you say that the residual is incontinence.

We always must remember that a VA disability award is given for a "disability", not because you have a "condition". If your condition is not disabling, there is no compensation.

In the VA system "Disabling" or "Disabled" is defined as how much the condition theoretically could cause you to lose in earnings in the workplace. That's the reason for percentages. Whereas, for example, another big disability system...SSDI run by the Social Security System...only grants 100%, no percentages or degrees. In that system you're either able to work or you aren't.

When you get the letter proposing a reduction, you have 30 days to "timely respond" and advise that you want a hearing and you want the payments left as they are. VA will get around to telling you that if you leave the payments at 100% and you lose a year down the road, you must repay the difference...usually as deductions from future payments. If you don't want a personal hearing and if you don't want to risk the payment offset, you can respond in 60 days and in written argument, tell VBA why your payments should stay at 100%. Or, of course, you can do nothing and let the VBA action happen.

It's my experience that the request to leave payments as they are is often ignored and they will reduce your payments anyhow. If you win your appeal, those will be paid back to you. You may want to prepare yourself for the reduction, just in case.

Ultimately, you will win this as you have proof positive his cancer has recurred and therefore it was never really gone. You should get as a NOD to your VARO with a letter signed by a doctor. In my archives are articles on how to get a good doctor letter from a VA doc.

While this is bouncing back and forth in appeals, you should be prepared for the financial hardship of a reduced payment for as much as a year or more. Your case is a no-brainer...he will prevail, but it can now become very confusing while letters cross in the mail.

Finally...once again, if you read my articles in my archives you'll see I'm not a supporter of the VSO services provided by the DAV.

When you faxed that letter to DAV all that will happen is that an intermediary will resend it to the VA on your behalf. It may rest at DAV offices for a day or a week or more before that happens. You could have sent it directly to the VA yourself and been sure of what happened to it.

I am not a fan of fax machines. Even though you got a comforting message from your machine verifying delivery, on the other end the copy paper may have jammed and it's unreadable. I advise my readers to only use registered mail, return receipt requested. That way you have a signature on a card that tells you your clean copy was delivered to the VA.

Re-exams are a way of life once you have a 100% disabled rating. Until you've held your 100% rating for 20 years and more, you can anticipate that you may receive a letter ordering you to report for re-examination. Below are some of the regulations controlling this.

§ 3.327 Reexaminations.

(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (b) and (c) of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated.
(Authority: 38 U.S.C. 501)

(b) Compensation cases —

(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.
(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled:

(i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

§ 3.343 Continuance of total disability ratings.

(a) General. Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered
pending reexamination after a period of employment (3 to 6 months).

§ 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference "Rating continued pending reexamination ___ months from this date, §3.344." The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

[26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, 1993]

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Larry Scott  --

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