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JIM STRICKLAND'S MAIL BAG: VOLUME #21 FOR 2008 --

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...

To find an answer to a specific VA benefits question, use the VA Watchdog search engine... click here...

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

by Jim Strickland

NOTE:  Letters in my mailbag are reprinted just as they come to me. Spelling and grammar are left as is and only small corrections are made to improve readability, ensure anonymity or delete expletives that may offend some readers. This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits.

Jim;

I have received some info. from the VA that I do not understand. Can you help me out? I requested, "Certification Of Permanent And Total Disability", VA form 21-0172, on Jan 28,2008 to aid in my income tax prep. The reply was – "(You are) not permanent and total. (You have) an Unemployable Review 04-01-08. (You) will be permanent and total if (you) continue to be unemployable, on 07-01-2014."

What does this mean?

On November 24, 2006 I filed a "Veterans Application For Increased Compensation Based On Unemployability", VA form # 21-8940. On March 29,2007 I received a letter from the VA, with a decision on my claim for an increase in my service connected compensation received on November 27, 2006. It showed an "increased disability compensation awarded". PSTD increased from 50% to 70%, asthma increased from 10% to 30%, effective Nov. 27, 2006. "We granted entitlement to the 100% rate effective Nov. 27, 2006, because you are unable to work due to your service connected disability/disabilities." "No examination will be scheduled in the future. Your overall or combined rating is 80% Effective November 27 2006."

My wife has been accepted for CHAMPVA. According to the VA "to be eligible.....of a veteran who is permanently and totally disabled from a service connected disability." We both are entitled to and are using Armed Forces Commissary and Exchange privileges. “Honorably discharged veterans evaluated as 100% disabled due to service-connected disability; ....... may qualify for entitlement to this additional benefit."

So! What is an "Unemployable Review"? Will it require a actual examination? Or is it a record review?

How concerned should I be? Do I need to begin collecting data, etc. to show my condition has not improved? I also receive SSDI, and have been for several years. I attend group sessions at the Vet Center every week. And have twice had my primary care doctor at the VA request an appointment with the Mental Health Dept., but to no avail. What can or should I do?

Reply;

The term "unemployable review" is a new one on me. Someone at your VARO is getting creative with denying you the assistance you deserve.

Your request for VA Form 21-0172 is one that many veterans may need to make. This form satisfies an IRS requirement found in the 2007 Instructions for Schedule R (Form 1040) to figure the credit for the elderly or the disabled. As defined by the IRS, A person is permanently and totally disabled if both 1 and 2 below apply;

1. He or she cannot engage in any substantial gainful activity because of a physical or mental condition.
2. A physician determines that the condition has lasted or can be expected to last continuously for at least a year or can lead to death.

Click the link below for more on this.
www.irs.gov/pub/irs-pdf/i1040sr.pdf

You are permanently and totally (P & T) disabled. I run into variations on this theme every day. The fact is that few people within the VBA understand how this actually works. The language is confusing to a point that one needs a secret decoder ring to sort it out.

This link below takes you to what is a very good reference and explanation of the IU benefit; http://www.va.gov/OCA/testimony/svac/05102720.asp  Scroll down the page to the paragraph on "Additional Benefits".

In your award letter, the phrase "no future exams are scheduled" means P & T. However, the scheduling of your future requirements of anything in your VA folder is controlled on a computerized calendar. As you might expect, the program is complex and the computers belong in museums. There are few VBA employees who can pull up a screen and interpret what your future calendar says or means.

For example...pulling up your screen likely shows that you are "calendared" to be mailed a form that you'll complete and return to verify that you aren't working each year through 2014. I imagine in 2014 you'll turn 62 or 65? I can't recall off the top of my head the exact age that you're no longer required to complete that form. That VA Form 21-4140 is here; http://www.vba.va.gov/pubs/forms/VBA-21-4140-1-ARE.PDF 
and it tells you; "You are receiving compensation at the 100 percent rate based on being unable to secure or follow a substantially gainful occupation as a result of your service- connected disabilities. If you were self-employed or employed by others, including the Department of Veterans Affairs, at any time during the past 12 months, compete Section I of this form. If you have not been employed during the past 12 months, complete Section II of this form. You must complete the required items fully and accurately and return the form to the VA office shown above within 60 days. If you do not return the form within 60 days, your benefits may be reduced."

That particular calendar piece is similar to the piece that shows "future exams". As you know, if you are scheduled for a future exam, you have a temporary rating and VBA believes that you are more likely than not to show improvement in your condition and they will propose to lower your rating accordingly.


Whoever denied you your letter opened your future calendar and saw something scheduled. They assumed that if anything was scheduled, you couldn't be P & T. It's a very common mistake for a VBA employee, untrained, unsupervised and not proficient with computers to make exactly this error. I see it daily with denials to CHAMPVA and C-35 DEA.


The recent rapid hiring of under-qualified employees is causing many more errors like this. VBA has stated that the placement of 3000 or more new hires will enable them to catch up. The fact is that as they aren't being trained very well, they're creating more work and the system will continue the backwards slide for years to come. This results in further damage to the VBA as the mistakes must be corrected. Correcting these errors is rework. Rework is much more expensive and time consuming than getting it right the first time. Your VBA is burying itself in rework. I've addressed this before;
http://www.vawatchdog.org/nfNOV06/nf110706-1.htm

Unfortunately, all you can do is write a letter to your VARO to appeal this error. I strongly advise against calling them...that usually makes it worse. You should write a good letter that asks for immediate review by the center manager. Briefly explain it as I did above. Remain courteous and respectful...they already know that they're idiots and telling them again isn't required. Use certified/registered mail with return receipt requested and then wait. Again, please don't call or do anything other than a letter. The letter should resolve the issue eventually. If you miss tax filing periods, the only thing to do is later amend the return.

Here is an example of how to write a letter to your VARO. Using your word processor, type it up to look as much like theirs as possible. You should be able to copy and paste the text below into your word processor and then make some minor adjustments to get it looking good. Use only white paper, no BIG FONTS or BOLD stuff, no colors for emphasis.

***************************************

DATE
VARO ADDRESS
REFERENCE: (YOUR NAME AND YOUR C-FILE NUMBERS)

Dear Sir/Madame:

I received your letter regarding my request for documentation of my disabled status. (Copy enclosed)

In your letter, you declined to provide me with the documentation I requested because you tell me I'm not "permanent and total". You go on to say that I am due an "Unemployable Review 04-01-08" and that I won't be considered permanent and total until 07-01-2014.

To my knowledge and belief, this is not correct. Please accept this letter as my Notice of Disagreement (NOD) to your conclusion.

My original award letter clearly states that I'm not scheduled for future examinations. My dependent's eligibility for CHAMPVA benefits has been established. It is clear I'm entitled to and my dependents and I are using our Armed Forces Commissary and Exchange privileges.

I have seen that 38 CFR Book B, Part 3, 3.340 will tell us that; (b)“Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person."

That I am not scheduled for future examinations seems to satisfy the requirement that my condition is not likely to improve.

Further, sub (b) says; "Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote."

Again, the determination in my award that "no future examinations are scheduled" confirms that there is no reasonable expectation that my condition will improve to a point where I, as an average person, will at some time reestablish myself in a substantially gainful occupation.

On October 27th, 2005, DVA Undersecretary For Benefits Daniel L. Cooper gave testimony to The Senate Committee on Veterans Affairs.

Mr. Cooper explained that, "A total disability rating based on IU can result in eligibility for additional benefits for a veteran's dependents and survivors. Educational benefits for the veteran's spouse and eligible children are available under the Survivors' and Dependents' Educational Assistance Program (title 38, United States Code, Chapter 35). The Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) provides reimbursement to eligible dependents for most medical expenses, provided that they are not also eligible for health care benefits provided by the Department of Defense. To be eligible for both of these benefits, the veteran's IU determination must be considered permanent. Permanency for eligibility to Chapter 35 and CHAMPVA requires that there not be a future examination scheduled."

(Reference: http://www.va.gov/OCA/testimony/svac/05102720.asp  )

While I do understand that each year I'm required to provide confirmation (VA Form 21-4140) that I have not held gainful employment, I don't believe that is the same as an examination.

I again request that I be provided with the document VA form 21-0172 as I originally requested so that I may use that for my tax preparation. If you don't feel that you are able to provide said requested document, please provide me with a Statement of the Case (SOC) as promptly as possible so that I may prepare further appeal.

Thank you very much for your kind assistance to resolve this issue.

Respectfully submitted,
SIGNATURE
YOUR NAME, ADDRESS, ETC.

***********************************************

Enclose a copy of their letter. Mail this off to them using certified mail, return receipt. Please don't fax or overnight it.

This should do the trick. However, it may well happen that they want to be stubborn. I doubt it but this is the VBA we're dealing with. Be patient. It may take a week, it may take a year.

As soon as you hear back from them, let me know what happens. If this doesn't resolve it for you, we go to Plan B. We'll figure out what Plan B is when we need it!

Jim;

After reading your latest article and talking with my representative I came to the realization that I too am part of the problem and as of today I have cancelled all my open claims (that would have propelled me over my existing 100%). My symptoms will still be there if and when I need to notify VA. I don't believe that I will get bad enough to need SMC, but if I do, thanks to you I know the steps I need to take and I also know that any payment will be retroactive to the date I file if it is found out I do qualify.

“If I'm not part of the solution, then I'm part of the problem.”

Reply;

You're a thoughtful guy. Our concern for our brothers and sisters...and particularly those newest, youngest veterans who are now joining us, can take two forms; Action and words.

Your actions speak 1000 times louder than any words ever will.

Jim;

I am extremely worried about the 2 newly introduced Bills in Congress on 2/28/08. These are S-2674 introduced by Senator Burr (R) in conjunction with HR 5509 introduced by Representative Buyer (R). I am 170% disabled and receive SMC 'S'. These Bills if passed would not only put me in a state of unimaginable and continual stress but could well lead me to file bankruptcy.... and who knows what other repercussions down the road. I, like many other Vets, have come to rely on our rates of Compensation not only to meet our obligations, pay our bills and ensure some degree of 'Quality of Life'. These could diminish or disappear overnight at the VA's whim.

What do you think will happen to these Bills? It may take some time for these to go through the process before such a Bill finds its way to the President's desk. At the moment there are no co-sponsors but that could easily change. What do you think the likelihood is that these may go forward? I feel certain that Bush would sign such an anti-Veteran Bill before leaving office. I believe McCain would also continue the Bush strategy and he too would sign this Bill so as to continue to fund the war at the expense of Veterans. Would you please elaborate on this most important matter. Nam Vet, '63-'67

Reply;

I'm not too worried about this.
 http://www.vawatchdog.org/08/nf08/nfFEB08/nf022908-1.htm

Attempts to offset a VA disability award with Social Security awards and so on have been tried before and rejected. I seriously doubt this is going anywhere. I see the need for change at VA but I'm cautious considering change too quickly. In my health care career, I had a highly valued mentor teach me, "The worst enemy of good is better."

That isn't to say what we have today is good but we must be very careful that we don't make it any worse. Changing the direction of a beast like DVA is not unlike teaching an elephant to dance. One misstep and you have a lot more trouble than you had considered. To ensure that these sorts of things never become law, I encourage you and all other veterans to stay alert and let your Congressional Representatives know how you feel.

Jim;

I am a retired Veteran and 50% for ptsd. worked at the Post Office for 14 years but recently due to stress from the job, the VA doctor and 3 social workers told me to retire. They all wrote me letters as such. I am wondering in your expirence if I will have any problems getting to 100% or at least to the point where I can get unemployale ? I submitted my paperwork to Social Security and to the Post office. What do you think about my chances with the documentation from the VA doctor and counselors ? Thank you for your expertise and opinion.

Reply

I believe that you will be challenged by VA to prove that you are unemployable.

As a rule, to be awarded 100% Individual Unemployability (IU) requires that you are already at 60% (for a single condition) or 70% (for multiple conditions, one of which is at least 40%). The VA may consider an application from a veteran who doesn't have either 60% or 70% but that is unusual.

Then you must be able to prove that you are unemployable. That is most often shown by a veteran seeking employment and being denied employment along the way. If a veteran has been terminated form a job because of the service connected condition, that is an indicator of unemployability.

Retirement sends a different message to VA...and probably to Social Security too. They may interpret this as you simply not wanting to work any more. Social Security disability is often more difficult to get than is a VA disability. The individual must be out of work at least one year or have a condition that will prevent employment for a year and isn't expected to ever get any better.

However, the fact that you were encouraged to retire due to your health is a consideration that both agencies will take a look at. A lot of this may depend on the strength of the letters written by your health care team. If those letters are very strong and accurate, you may have a chance at winning both awards.

If you are denied on your original applications (and I think that's likely to happen) you should then seek the services of an attorney who is qualified to practice both Social Security Disability law as well as VA law for each appeal.

Finally, both of these are long processes. It's very likely you'll be tied up for at least 2 years, maybe twice that long, waiting for decisions before you get to those final appeals decisions. You should start today to make a plan to address how you'll live with no income during the lengthy process.

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

posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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