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THE LATEST EDITION OF JIM STRICKLAND'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...

   Learn More about how to get a VA Loan today -- Click Here

-------------------------

Question:

During a visit to my PCP for prescription refills, he used his desktop computer to order same. In a subsequent rating decision VA states that during a physical examination performed that visit no evidence of problems were found. No exam of any type was done. I believe that in skipping over the physical exam portion of the screen, all skipped entries failed to the default answer of normal, no problem noted. under 38 U.S.C.A. § 5107(a) Does the VA’s statutory duty to assist claimants require them to provide answers to questions such as this?

Answer:

This is a great question. There is often criticism of the default entries in VistA. VistA is the electronic medical record used by VHA. Your question requires a relatively complex answer, the issue goes way beyond what your provider may be required to do.

Click here to learn more about VistA;
http://www1.va.gov/cprsdemo/

I sometimes find fault in my own record. In our clinic, we always see a nurse before we see the doctor. She does BP, weight and the questionnaire that is required that month. I frequently see a note in my record stating that I was given literature about not smoking or avoiding illicit drug use or caring for my diabetes and I'm never handed any of that. The nurse knows me, she knows I'm an ex-smoker and that I don't use illicit drugs but even so, she must complete the screen to satisfy the computer.

This is one of the faults of an electronic record. While an electronic record is a really good idea, in some cases it doesn't make clinical sense to have the defaults...not every visit will require a "physical exam" so it wastes a lot of time trying to tick off each entry.

The "duty to assist" doesn't seem to extend to a routine visit to your PCP. He isn't developing your claim but rather is only making an assessment of your current condition. That duty to assist you in developing your claim also doesn't extend to the VA answering your questions about how they maintain the VistA system. The fact is that the duty to assist is very limited. If you provide the VBA with notice that you have records, where those records are stored and if you give them permission to access those records, that about ends their obligation in practical terms. They will try to fetch those records for you and that seems to be about all there is.

Read more about the “Duty To Assist” here;
http://www.veteransdisabilityla
wyersite.com/duty_to_assist.html

We always have to remember that VA clinicians aren't involved in or aware of the disability awards process. This is particularly true of the residents and fellows we see at VHA medical centers and hospitals. These young doctors in training may have superb clinical skills but they aren't educated in the issues you face in dealing with that other branch of the Department of Veterans affairs, the Veterans Benefits Administration.

Your VHA clinical records are only one small piece of the puzzle that a rater will use when determining your disability award rating. Much of the weight in making a disability determination is given to the opinion of the C & P examiner.

In any clinical setting, whether VA or civilian, as a patient you have rights. One of those rights is that you should have fair, accurate and complete information recorded with any visit. You have an absolute right to review your record and to view and retain copies of your record. There are exceptions, usually concerning records of psychiatric treatments where in the view of the therapist it isn't in your best interests to see your records.

If you ever have concerns about your records, under the HIPAA rules, you have a right to ask for a modifying or corrective entry to be made. If the clinician happens to disagree with you, you have a right to enter your own statement into your record. If you do that, your statement must be accurate and truthful or the administration of the facility may argue with you and they have a right to do just that.

Read more about HIPAA here;
http://en.wikipedia.org/wiki/Health_Insur
ance_Portability_and_Accountability_Act

Read more about the specific rule that allows you to amend your medical record here;
http://frwebgate.access.gpo.gov/cgi-bin/ge
t-cfr.cgi?YEAR=current&TITLE=45&PAR
T=164&SECTION=526&SUBPART=&TYPE=TEXT

Whether you are in a civilian setting or a VA setting, it's largely up to you to review your records to ensure accuracy. This isn't an issue that's confined to a VA clinic, I've seen SSDI cases that have gone off track because a civilian caregiver's notes are unreadable or incomplete. I'd recommend that you give your medical records the same scrutiny that you give to your checking account, those credit card statements and your telephone bill. It's a lot easier to fix an error while it's fresh than to face it as a surprise years down the road.

I've talked about this often and it's worth reviewing again. The guy who makes the disability ratings award decision is a part of the Veterans Benefits Administration (VBA). He isn't connected to that branch of the Department of Veterans Affairs (DVA) that provides your health care, the Veterans Health Administration (VHA).

The person making the decision is a “rater” or “ratings officer”. A rater is not a physician and isn't required to have a background in medicine.

When the rater has your file and that file is fully developed, he will make a decision about your application for benefits based on the information he has in front of him. He will weigh the information and according to regulations and laws, he'll make the decision as to how disabled you are and what your award rating should be.

To arrive at his decision, he must first establish that you served. Your DD 214 is reviewed along with any other proof you have of where you were and what you did while on active duty. Your Service Medical Record (SMR) is scrutinized and any information that's in there that is relevant to your application is noted. Then he'll look at your medical history from both the VA hospitals and clinics you've been to as well as any civilian history of diagnosis and treatment that you've provided to the VBA.

Finally, he's going to look at the report from the Compensation and Pension (C & P) examiner who was there with you during the C & P exam which was requested by that rater.

That examination is most often handled by a contract employee who is with a company known as QTC. You can learn about QTC by clicking here http://www.qtcm.com/
 
There are significant concerns about ill advised ties between QTC management and the VBA. Read more of the controversy by clicking here http://vawatchdog.org/07/nf07/nfNOV07/nf112107-1.htm

Let's assume you claim you injured your back in a fall on the deck of your ship in 1970 and that in 2006, your back had kept you out of work and you lost your job.

Your rating process will begin at the beginning. Is there a record of your injury? Did you attend a sick call, receive treatments, get ordered to bed rest or light duty? If your fall was associated with an accident or in combat, does the ship's log record the event? Do your remember any of your shipmates who assisted you and have you attempted to contact them to provide you with a statement in support of your claim? That form is available by clicking here;

http://www.vba.va.gov/pubs/forms/vba-21-4138.pdf

If you have any or all of the above, terrific! You're off to a good start. If you have little or none of the above, you're facing an uphill battle. How does that guy who has to rate you know you're telling him the truth? It's hard to believe, I know...but, there are Veterans who make false claims. The rater can't simply accept your word that an event occurred without some evidence. That is, unless you were involved in combat...then he has a lot of leeway to simply take your word.

Then, after that initial injury, did you have other medical contacts for diagnosis and treatment? Did that back injury continue to bother you? Can you show that you sought treatment while you were still on active duty? If there are records of clinical visits weeks, months and years later that focus on that original injury, your record is substantial and the rater will give that a lot of consideration. If not, if you were injured in 1970 and didn't make another appointment for care until 2005, you have a problem. How does that rater know you didn't just bruise your back in 1970 and then injure yourself in 2004 on a job or in some recreational activity?

You've probably grasped that the rater needs to see a “golden thread” that links all of this together. You must establish that the event actually occurred, that it was serious enough to stay with you over the years and that today, your old injury is interfering with your ability to earn a living.

Beyond that, the rater who has your file on his desk will lend weight to each segment we've reviewed according to the usual processes that are followed by the VBA system.

Proof that there was an event is important. No event usually equals no rating.

The continuity of treatment after the event gets a lot of attention. It doesn't matter much to the rater if your continuing treatment was civilian or provided by the VHA. If you weren't receiving any treatment over the years since your claimed injury, he's got to wonder why. If you show a steady pattern of visits to a provider for treatment related to that original injury, the rater will count that as proof of a service connected condition.

Finally, the C & P exam can outweigh everything else in your record. If you walked into the exam room, shook hands firmly and then proceeded to act brave, bright and chipper, you have a problem. If the examiner asked yo to perform the rituals of bending over to touch your toes, flex side to side, lift, push or pull an object and you performed all that with no evident pain or restrictions, he's going to report that your back is just fine and there is no physical evidence of a back injury.

The lesson to be learned here is that no matter how you may want to interpret the complex regulations that drive the VBA, you can't rely on any of that to help you. The rater that is making your decision is on a quota system. He is expected to close about 5 files each work day. He feels the pressure to do a good job and wants to meet that requirement of the duty to assist but he isn't going to spend any time arguing those details with you. Most of the work of ensuring that your medical record is accurate and that it's in the folder as it should be is up to you. If you leave those details to the VBA and rationalize that you can do that because you know it's the law, you won't win your case.
 

Question:

My Husband was in Nam, and he has PCT (porphyria cutanea tarda) due to exposure to Agent Orange. About 4 1/2 years ago he was granted a 30% evaluation by the Regional Tiger Team. The date was November, 2002. He also put in for bladder cancer, which was denied - he had 3 surgerys to remove tumors - they now think that my husband has to have his bladder removed. Also, we just received a letter saying that they propose to severe the benefits he is receiving. Any information would be appreciated.

Answer:

The VA can and will reduce or eliminate a Veteran's benefit. This is often because the assigned condition is seen as temporary and after treatment the Veteran is viewed as improved.

I'm a bit surprised to know that he was awarded a benefit for PCT in 2002. PCT is one of the "presumptive" benefits. The general rule for PCT is that the Veteran must have filed a claim for PCT within one year of his last date of exposure to Agent Orange. That would have been some 30 plus years ago.

You may read more about Agent Orange benefits by clicking here http://www.vba.va.gov/bln/21/benefits/herbicide/

and here
http://books.nap.edu/openbook.
php?record_id=11242&page=11
 
I'm going to go out on a limb here and guess that somehow he came up with PCT (skin blisters, lab blood work showing liver problems, etc.) and applied for his benefits. This was in 2002. He was granted 30% for the PCT and later filed another claim for the bladder cancer.

During the process of looking at his claim for bladder cancer, it would appear that someone reviewed his PCT claim and saw an opportunity to remove that benefit. The reason may be that he's improved significantly (no more skin problems or improved lab work for his liver) or that the reviewer recognized an error on part of VA in granting it in the first place.

Fighting this is a very serious issue. Usually the letter will tell the Veteran that he has 30 days to reply if he doesn't want the benefit to immediately disappear and 60 days to ask for a personal hearing. If the Vet doesn't respond in 30 or 60 days, the action will occur automatically. Once that has happened, it is even more difficult to restore the original benefit.

I would advise that your husband should act as soon as possible. If he acts in a timely fashion, he may be able to successfully call off the action.

To lower or eliminate a rating, VA must show that there has been substantial improvement in the condition the rating was awarded for. This is often difficult for VA to prove if the Vet fights it.

There is also some small opportunity to appeal the denial of benefits for bladder cancer. I would challenge that denial based on the fact that the Vet was already diagnosed with PCT and I'd try to establish a direct link between the PCT and the bladder cancer, both attributable to Agent Orange exposure. Just because a condition isn't on the presumptive list doesn't mean that a service connection can't be established.
 

Question:

WILL ANYTHING THAT IS BEING DONE BY CHANGING BENEFITS AND CARE HELP VIET NAM VETERANS .............IS THE VA GOING TO CHANGE THE AWFUL WAY THEY CALCULATE DISABILITY PERCENTAGES

Answer:

I don't see any substantial changes coming anytime soon. The recent recommendations by the committee that studied VA issues are being mostly ignored. Change must come through Congressional action. Our Congress is way too busy getting reelected or trying to stay out of jail to worry about us.

Similar to making change to the IRS or the Social Security system, change at the VA will be a huge and complex undertaking and I don't see anyone who is currently in power that can do that.

For now, we'll just have to work with what we've got. During all this, you should get political and let your elected representatives know how you feel. Far too many Veterans want change but aren't willing to do the necessary work to make it happen.
 

Question:

Jim, I need You!

I've had it with the VA! I've waited for almost a year to receive benefits for PTSD linked to service in Iraq. I have been through hell the last few months. I couldn't find work, my wife and I have struggled and still are. Here's the kicker.. After calling and writing the VA for my claim status for months, they notified me today that since I took and early out (cash Payment) 15 years ago that I would have to repay 17K or I would not receive any of my benefits until 2008/2009. I can't wait that long! I am rated at 50% for PTSD and I have not filed other claims. I have been denied educational benefits twice, yet the VA told me again last week that I rate them.

I there "anyone" out there that can help me get some funding? I have nothing! NOTHING! I need help guys.

Answer:

Our emails began in late August 2007. We had numerous emails during the next month to sort out this issue for you. This all boiled down to a true patriot getting burned by a VA error.

You served honorably many years ago. At that time you were persuaded to take an “early out” and you received a separation bonus equal to some $17,000.00.

You returned to civilian life back then and were successful in your career. Then came 9/11. Full of your commitment to our country, you promptly reenlisted. You served in Iraq where you felt the full impact of a vicious war. You did your duty and were once again discharged. This time though, you suffered a severe PTSD reaction.

The VBA sent you through the various evaluations to determine the severity of your PTSD and granted you a 50% rating. Then you were notified that you would be required to pay back that $17,000.00...the VBA would be withholding your monthly disability checks until they had recouped their money.

I did some research and discovered the error that had been made by VBA. Below, between the lines, is my email to you providing instructions as to what you needed to do.
_________________________________________________________________

Review the following from the M21 manual...~The Bible~ that guides them. You may want to read through this a couple times or more...VASpeak can be tricky until you get the hang of it.

M21-1MR III.v.4.B.6.h states:

"A veteran may have combined disabilities with one or more attributable to service prior to receipt of readjustment pay or separation pay under 10 U.S.C. 1174, and subsequent Inservice. In this event, do not reduce the compensation payable for the service-connected (SC) disability resulting from a subsequent period of service for the purpose of offsetting readjustment or separation pay.

Example: A veteran has a combined evaluation total of 40 percent based on one disability, attributed to a period of service for which he/she received separation pay under 10 U.S.C. 1174, evaluated as 30 percent disabling, and another disability, attributed to a subsequent

period of service, evaluated as 20 percent disabling. In this case pay the veteran the amount for the 20 percent disability, and withhold the remaining amount until an amount equal to the full amount of separation pay received under 10 U.S.C. 1174 has been recouped."

Similarly M21-1MR III.v.4.B.8.f states:

"Do not make any deductions from disability compensation for SSB received if the veteran subsequently incurs or aggravates a disability during a later period of active duty which is the basis for VA compensation."

The second paragraph is your winner.

This is a frequent misunderstanding, particularly with a vet who served...let's say 9 years on 3 enlistments in a row.

During year 8, he commits a crime and is subsequently given a bad conduct or dishonorable discharge. Years later, a disability that was incurred during combat during the 2nd enlistment begins to act up and he needs help. Somebody tells him, "You don't have an honorable discharge. You don't get benefits."

The truth is that he has 3 discharges, 2 honorable and one not. Each time you reenlist, you are discharged first. Anything that occurred during the periods of honorable service can be

easily claimed for VA benefits. So...begin writing your letter to the VARO that gave you your information.

Look on that letter for the address. Try to style your letter to resemble theirs as best you can. Somewhere on there it says, "If you reply to this, reference these numbers" so go ahead and do all that.

Then write your letter as this example below:

DATE

Dear Sir/Madame:

I am in receipt of your letter of DATE in which you tell me that I will receive disability benefits rated at 50% for my PTSD.

You further tell me that because of a bonus I received during my enlistment the years of ______ to _____ that I must pay that money back before I am allowed to receive my disability benefits.

I respectfully disagree with your conclusion that I must pay back any money and ask that you consider this document as my Notice of Disagreement (NOD). I request that this NOD be expedited to be reviewed as soon as possible by a Decision Review Officer (DRO).

If the DRO determines that it is necessary, I request an immediate personal hearing with said DRO to discuss the facts of this urgent matter.

In support of this NOD I cite from,

M21-1MR III.v.4.B.6.h:

"A veteran may have combined disabilities with one or more attributable to service prior to receipt of readjustment pay or separation pay under 10 U.S.C. 1174, and subsequent service. In this event, do not reduce the compensation payable for the service-connected (SC) disability resulting from a subsequent period of service for the purpose of offsetting readjustment or separation pay.

Example: A veteran has a combined evaluation total of 40 percent based on one disability, attributed to a period of service for which he/she received separation pay under 10 U.S.C. 1174, evaluated as 30 percent disabling, and another disability, attributed to a subsequent period of service, evaluated as 20 percent disabling. In this case pay the veteran the amount for the 20 percent disability, and withhold the remaining amount until an amount equal to the full amount of separation pay received under 10 U.S.C. 1174 has been recouped."

Further, M21-1MR III.v.4.B.8.f states:

"Do not make any deductions from disability compensation for SSB received if the veteran subsequently incurs or aggravates a disability during a later period of active duty which is the basis for VA compensation."

My periods of honorable service were separated by ____ years. My current 50% rated disability was clearly incurred during my second period of honorable service to my country and should not be affected by my first period of honorable service.

The delay in receiving my earned disability payments has caused significant hardship to myself and my family. I sincerely appreciate your prompt attention and favorable adjudication. Thank you.

Respectfully submitted,

SIGNATURE
NAME
ADDRESS
SSN
TELEPHONE NUMBER
EMAIL ADDRESS

You fill in any blanks I've missed. Enclose copies of your DD214's, discharges and anything else you think may help. Get this to them in registered mail, return receipt requested. Do Not fax or hand deliver, even if you live next door, only use registered return receipt mail.

Put it in a large heavy brown mailing envelope so that if you have 5 or more pages, it doesn't get crushed and creased. You are playing hardball and want it to look professional. When you type and print, only use Arial or Times New Roman fonts at 12 or 13 points. No fancy script, no colors, no BIG LETTERS. You want a professional clean look and a very polite letter.

With luck, a DRO will look at this soon (within 90 days) and decide immediately in your favor. It may take 6 months but still be in your favor. You're a good American, a true patriot and I salute you sir. I'll continue to have your back as you go forward.

Jim

You followed my advice, wrote and mailed that letter. Then we waited. I received an email from you last week. You were notifying some friends and I that the VBA had received your NOD and responded.

Your email is below, it speaks for itself.

“For those of you that do not know me, I'm not one to quit. Secondly, as a Disabled veteran 'No' from the VA is unexecptable. I've battled for nearly two years to deal with the Separations Pay issue. It's Done!!!

I've got my benefits, Not by listening to what couldn't be done but by doing what needed to be done.

I found a group of people that explained to these clowns that if you received a Separation Pay for an earlier period of service and DID NOT apply for the benefits in that time frame - YOU DO NOT HAVE TO REPAY THE VA!!! I have this in writing from the VA now. From this point on let's let Vets know their rights. There were many that told me "that is the way it is". NO IT AIN'T!!!

Thanks Jim Strickland for the information that helped me really stick the Shock and Awe to the Crummy *#2&%**!!! Let's stay on these guys to do their job - SERVE VETERANS!!!”

-------------------------

Larry Scott  --

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