VA Watchdog Stuff...
cups, hats, shirts...
click on item to order
and support the site.






Be sure to get all four
VA Watchdog dot Org
RSS feeds --
Daily VA
News Flashes
House CVA
Veterans' News
Senate CVA
Veterans' News
VA Press
Releases
 

Download your
free copy of the
2007 VA benefits
handbook here...

Printer-Friendly Version

JIM STRICKLAND'S MAIL BAG: VOLUME #23 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 was on VAwatchdog and read the article about the VA's one stop PTSD program. I wanted to let you and Larry both know how poorly designed this program is. This program not only goes into PTSD, but it is also being used in the Military Sexual Trauma program. I was a part of it for 3 weeks.

The program is designed so that each week the veteran faces the issues that he/she has had suppress in order to deal with. The VA's conselors' move at a very fast pace and will not stop because of an individuals particular difficulty(ies). The program is designed to make you write out your issues and subsequently read them aloud, either directly to the therapist privately, or aloud to the group. This is designed to make you face it, realize it, and deal with it. Each week you move onto a different issue. If you have any residual emotions not resolved from the prior week(s), you have to move on. The program does nothing to give the veteran a new, proper behavior to be "learned". He/she are left

with an open wound and with nothing to fill it or how to deal with it. The veteran becomes so agitated, stressed, left with questions and uncertainty and is left with no road to healing because the correct behavior or responses are given or taught to replace the bad ones. There is no support for dealing with the upheaval of emotions. There is no individuality in this program. From my perspective, it is a very flawed program.

The program only turned me into the ugliest monster I have ever seen. The therapist was actually the head of the PTSD/MST department. Ultimately, she came across as being uninterested in the veteran, but as insuring the programs success to no end. Our therapist gave us the "after 12 sessions you'll be totally cured" speech over and over again. We were required to give her total trust because she demanded it, not that she earned it. This immediately raised red flags to many of us in the group. Immediately, we were left with the question of how could the VA possibly deal with physical, emotional and sexual issues, that has transgressed over decades, and possibly resolve it in 12 weeks. To many of us, this smelled like a VA attempt to railroad PTSD claims into the ground and revoke compensation.

Humbly, I submit, that this program is a very dangerous one. Each persons PTSD/MST must be dealt with on an individual basis, not as a group pushed along on an artificial timetable. This program needs to be exposed for what I think it is: an attempt to stream line treatment to reduce VA's responsibility towards veterans. Jim, if I could ask you to share this with Larry, I'd appreciate it. I think he should know. I will continue to see what comes from the VA and if I can share anything useful with you, I certainly will. Thanks again for all you do.

Reply;

Thanks for sharing your experience. Budgeting and cost effectiveness are always a necessity, no matter the business. However, when cost cutting means that a veteran will be cheated of a desirable outcome, it's gone too far. In health care the budget should be designed to support a good result from treatment, not the other way around. The original story is here;
http://vawatchdog.org/08/nf08/nfMAR08/nf032408-3.htm

Jim;

I recently won an appeal for my claim for service connected Disability for a low back condition. I originally filed the Claim in July 1982 but, the VA only paid me back to March 2002 which is when I came up with "New and Material Evidence", to reopen the claim. How do I get the VA to pay me back to the original date of receipt of the claim?

Reply;

It will be next to impossible.

There are very few ways to get that done. If you filed in 1982 and you were denied, you had a year to file a Notice of Disagreement and appeal. If that NOD and appeal were denied, you could have appealed one level up to the Board of Veterans Appeals (BVA). If that were denied, another step up to a court, and so on. If you didn't appeal, the decision becomes final. Then 20 years later, you reopen the case and you have uncovered New & Material evidence and you win. Unless you can prove that in 1982 the VBA made a "Clear and Unmistakable Error" (CUE) in the first adjudication, you very likely have no case. If there existed evidence that you didn't present at the time, that probably is not CUE. If neither you nor VBA knew about the evidence at the time, their decision was correct...based on the evidence then. If you had presented that evidence in 1982 and VBA refused it or missed it, you might have a case for a CUE claim.

A CUE claim is the most difficult of them all. You should have attorney representation. There are at most a small handful of lawyers in America that have any CUE experience.

Jim;

You've given me some straight advice before & I appreciate it. I'm 100% P&T. Does any income I may get from investing some of my savings in stocks/bonds etc effect my disability income...I'm pretty sure its OK but I'd like your take on it?

Reply;

Your disability compensation is not affected by your income...unless you are classified as IU...100% disabled due to Individual Unemployment. Then it's "earned income" that is looked at. Earned Income is that income from "gainful employment". So, if you have employment and you are IU and your employment earns you more than poverty level wages, you have something to think about.

Investment income shouldn't have any effect on compensation. Disability pension and A & A benefits are means tested. Those of us with a service connected disability compensation award don't have a means test.

I had a fellow write not long ago worried about his casino winnings. He feared that his windfall at the slots would have a negative impact on his disability compensation. He didn't believe me when I told him it wouldn't and even got a little argumentative. I finally offered that maybe he was correct and that he should immediately divest himself of those winnings by giving it all to the newly established ~Jim Strickland's Harley Davidson Foundation~. I haven't heard back from him.

Jim;

Reading your articles on VAWatchdog and slowly but surely learning just how to go about filing a disability/comp claim.

I've got a question: OK, I've read through John D. Roche's 'The Veteran's Survival Guide' and he mentioned formal and informal claims. According to what I gather from his book, he recommends filing an informal claim due to the fact that it is one of the best tools that a Veteran can use as it defines an intent to apply for benefits under the laws administered by the VA. The VA must then formalize the application by sending the Veteran the appropriate form. Sounds to me like this immdediatley puts the ball into the VA's court and triggers the 'Duty to Assist' among other specifics on their part. Have I got that right, or am I totally deluded? ;>) Thanks again for the great info.
 

Reply;

Totally deluded? Probably not. But, I hadn't heard that one before and I don't agree. In my experience, a claim is a claim. The formal v. the informal is a detail of paper. Let's look at the regulations...

§3.150 Forms to be furnished.

(a) Upon request made in person or in writing by any person applying for benefits under the laws administered by the Department of Veterans Affairs, the appropriate application form will be furnished.

§3.151 Claims for disability benefits.

(a) General. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (38 U.S.C. 5101(a)). A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit.

§3.155 Informal claims.

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought.

Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

How should you interpret the gobbledygook above?

In 3.150 VA says there's a form.

In 3.151 VA says that you must complete a form to make a claim.

In 3.155 VA says that if you make an informal claim (defined as almost any communication w/o a form) they will send you the form. And further, if you return in within a year, the start date of any benefit is the same.

I don't see it as triggering a Duty To Assist different than any other trigger. The duty to assist happens in either case. And, duty to assist really doesn't amount to much unless and until you're bogged down in appeals at higher levels...then it's a nice legal point for your lawyer to argue. I advise that a claimant not depend on any "duty to assist" and be ready to gather all their evidence for themselves. If one depends on VA to help them...it's sort of like asking the nice folks at the IRS to go ahead and calculate your taxes for you.

I try to avoid letting your claim get to a point where you have to think of such legal concepts as the duty to assist. If you've read my stuff you probably know I like to overwhelm with perfect evidence early on. If a Vet files the application and soon after sends VA medical records, nexus letters (if necessary), any relevant records about duty stations or combat and in-depth details of the claimed condition...medications, therapy and so on...you are likely to achieve a fair settlement straight away.

We have to remember that many VA claims are settled at the first pass. It's sometimes hard to believe but it's true. If there's any sort of flaw in the original application the nightmares begin. I hear from Vets every day who filed a claim and did nothing else. They thought it was the job of the VA or their VSO to bird dog all that paper and they are always shocked when they don't prevail. I say go for the full frontal assault straight away and you'll be enjoying your benefit while others are trying to make VA assist them.

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

posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

Don't forget to read all of today's VA News Flashes (click here)

Click here to make VA Watchdog dot Org your homepage

email Larry

(go back to VA Watchdog dot Org Home Page)

Military Medical Malpractice 
Legal Network               

VA Watchdog Stuff...
cups, hats, shirts...
click on item to order
and support the site.