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JIM STRICKLAND'S MAIL BAG: VOLUME #24 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...

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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'm confused and frustrated by my VA claim and the help I am receiving from my State Service Officer. I hope you can help me. My most recent letter from my State Service Officer: "I have received a copy of the Department of Veterans Affairs (VA) most recent appeal decision letter. It appears that they have continued denial of you claim for service connection for arthritis. I have enclosed a copy of the Compensation and Pension medical examination which took place January 2008. You now have the option to waive any remaining waiting period and ask that your appeal proceed to the Board of Veterans Appeals (Board).

I do not believe that you will get resolution of the appeal, in your favor, at this level and that your best chance would be to continue to the Board. However, having said that, given that you do not have a medical opinion in your favor and two medical opinions against service connection then it will be difficult to win the appeal at the Board. We have discussed the need for a favorable medical opinion and I suggest that if you decide to pursue this that you do so as soon as possible. We can send your appeal to the Board and forward a favorable medical opinion , should you receive one, to the Board. "

My confusion begins with the fact that at the C&P exam the Doctor told me she couldn't find any pain complaints in my medical records that did not include a cause for the pain such as falling or twisting. I told her I was sure there were occasions in the records and she promised to check the records again. I came home and went through my records and found a spot where the record actually says “unexplained pain”. I called my State Service Officer asking her how to get back to the doctor to prove that point. She said that I couldn't get back to the Doctor, I'd have to wait. My point is that when the denial letter came one of the first sentences was "The records were checked before and after the exam." It feels like a "Good Old Boys" club and I'm not a member. Whatever I say to my representative shouldn't be repeated to the VA. Should I stop using the State Service Officer?

I've also noticed that my claim may be approved if I can prove my disease was aggravated by my time in service. At least 3 of my siblings also have arthritis. I don't know if I should tell the VA that or not. I obviously was born with the disease.

Should I hire an on-line doctor such as (the doctors who advertise on the Internet)?

Should I waive my remaining waiting period and proceed to the Board of Veterans appeals immediately?

I also understand that because my Notice Of Disagreement was filed before June 20, I can't hire a lawyer until my claim is denied at the Board. Is that the way you understand the new law?

One more--ultimately, who is responsible for lost records? I have 4 years missing starting from my discharge (forward).

Reply;

I think that your State Service Officer is trying to be kind and has gently and courteously explained to you that you have no case. I also think your State Service officer has offered excellent advice.

I'll treat you like an adult, not being quite so gentle, and I'll be very blunt though you may not care to hear it.

From what you told me, you have no case.

If you were not diagnosed and treated for arthritis or a well founded joint injury while on active duty, it's almost impossible to make a connection to your military service.

Further, you tell me, "At least 3 of my siblings also have arthritis...I obviously was born with the disease." I doubt you were born as an arthritic infant but I don't doubt that you may be genetically predisposed to the condition of arthritis.

Arthritis is a condition that occurs to many of us who are blessed to live into our 50s, 60s and beyond. I have arthritis myself and it's a frustrating problem. Most arthritis is "degenerative arthritis" and it means our joints are wearing out.

If you're to make a connection to your military service, I can assure you that a single simple reference to "unexplained pain" is very likely not going to be enough. You would need a series of ongoing complaints of joint pain, diagnosis and clinic visits for joint pain and then treatments for joint pain over the years of your service. Then, soon after honorable discharge you need a record of civilian complaints, diagnosis and treatment for joint pain to continue any service connection.

If you believe there are missing military records and VA has attempted to find them, you could make a case that your complaints of pain are in the missing records.

However, you say records are missing from your discharge forward. The VA can't be held accountable for non-military records. If your military records don't reflect treatment for joint and arthritic pain, you don't have a service connection.

Yes, you could seek an opinion of an expert civilian physician. However, that's very expensive and if you don't have any records of a service connection, that physician isn't going to say that there is
one. There doesn't seem to be any real point to paying for an opinion that's likely to work against you.

You can attempt to retain an attorney now. As soon as you have a denial from the local VARO, you are then able to file a NOD and retain a lawyer. However, unless you have more evidence than you've told me about, I don't think a lawyer will accept your case. Lawyers are subject to sanctions if they file frivolous cases and as I don't believe your case has merit, I wouldn't refer it to any of the attorneys I know.

Finally...and perhaps most important...you told me, "At least 3 of my siblings also have arthritis...I obviously was born with the disease.", and in that same thought you said, "I don't know if I should tell the VA that or not."

That's sometimes referred to as fraud. When you apply for benefits, you're attesting that everything you say is true to the best of your knowledge and belief. Withholding information that you know could influence your case is much the same as making stuff up. To do such a thing is wrong on the face of it.

It's apparent that you don't believe that there is a valid service connection and you're contemplating to game the system by withholding pertinent facts. Gaming the system to achieve undeserved monetary goals deprives other veterans of their benefits and it takes up a lot of time at the VARO. No matter how groundless your applications for benefits must be, your VARO will give it as much attention as it does those veterans who really need help.

Unless and until you have some sort of proof that your military service has caused or contributed to your arthritis today, I would urge you to withdraw any applications for disability benefits.

Jim;

I just discovered your site and have to agree that the DAV does not represent vets very well. My DAV rep was never available when I walked in he was always in meetings etc. and he never returned phone calls. I finally just went in and saw who was available. He was actually a nice guy who was very helpful but not as complete on his recommendations as you were. When I submitted my additional proof requested by the VA I submitted it through the DAV. I first went in and finally got to see the rep assigned to me. He barely glanced at my letter to proof read and had very little to say. He just looked at me with a blank stare and gave me no insight as to what would happen. I went home and refined my letter then hand carried it to him but this time he was not available. I left it there with a note to please call me. He never did. Apparently they attached some type of letter to mine and said that they did forward it to the VA. I have no idea what the letter said. They never sent me a copy.

When I called the following week I found out I had a new rep and when I got to talk with her she said my letter was already in the VA's hands. I explained I had requested a phone call to discuss the letter after he had read it and her words were thus "Do you know how much mail we get we can't read every letter that comes in." At that point I realized my mistake and called the VA and they assured me by phone they had received my letter but I have no proof of it. I assume they really did because in their letter to me they said without new evidence they could not reopen my case and since I have a CP scheduled I assume they got that new evidence. Ultimately no matter the outcome of this initial phase I consider the DAV approach a flop. Of the three reps I actually saw only one was helpful and seemed genuinely sincere but still I had to research everything myself. My new rep wouldn't get the time of day from me with her attitude. When I ended my conversation with her I just kind of silently hung up I was so shocked by her "I'm too busy don't bother me" attitude. I will never ever let her touch my case again.

I was wondering if you could answer a couple of questions. I already have a C & P scheduled for April 15th. How can I verify that they are going to examine me for all the claims I submitted? After submitting my claim the VA asked for new evidence as 2 of these claims were previously denied. I submitted a letter detailing where this information could be found. All if it was contained in service records and VA records. The DAV rep said I did not need to provide records as the VA would pull them for themselves. Was this a mistake? How can I verify that the DAV even forwarded my letter? If I don’t get satisfaction at this level should I get a lawyer? FYI I have service connection for my ankle at 0% and knee at 10%. I am going for an increase in these areas. I am trying to establish service connection for the cervical and lumbar areas, this was previously denied and I didn’t know how things worked 10 yrs ago.

I am also going for hearing loss and tinnitus; my service records document the hearing loss. This time my VA primary care has opined that the lumbar and cervical areas are service related. The VA audiologist did the same for my hearing. Things have changed significantly for me as I had to quit doing construction a year ago and have not even been able to work in my back up field (computers) since Dec 07. Oh let me say this. The DAV was a lot more efficient and helpful in the early 90’s and VA was really inefficient. That seems to have flip flopped. At least here in Florida the VA has done a good job and their medical care is outstanding. Any suggestions would be greatly appreciated.

I have one additional question about the exam. I was reading in the general exam guidelines that they are to opine as to whether or not my claim is service connected and to what degree. Very likely, most likely, etc. Do you recommend soliciting their opinion in the CP exam and trying to prove my case to them for service connection if they are iffy on the subject?

Let me just say again my treatment at the VA medical facility has been first class and way above civilian hospitals. I have had only one Dr who could use a little better bed side manner but he even he was not so bad. Everyone else has been exemplariness in their attitude and treatment. The VA itself has not given me any cause for complaint and has always been courteous and attentive to me when I went in to their offices.

Please feel free to post any of this email that you want to, anonymously of course. Thanks again for your time and suggestions.
 

Reply;

I try to be fair and completely honest in my writing. I rely on my own experiences and what my readers tell me about theirs. My personal experience with DAV was incredibly bad and I get no compliments about them from readers...although compliments would be welcomed and published.

In your situation, the die is cast. Unless you're aware of a significant issue that will negatively affect your case, I'd advise that you do nothing. Changing any direction once the process has begun, unless for an enormous problem that you can pinpoint, will certainly cause delays and may cause a negative outcome.

You won't be able to verify anything about your C & P exam until it's over. There's really no way to determine what the VA Veterans Service Representative will request of the examiner. The exam's focus isn't determined by the examiner, it's determined by the VA VSR as he fills out the request.

I'll caution you that you shouldn't get irate with the examiner if you don't believe they're doing what they should. They follow the instructions provided by the VARO. The examiner doesn't make the disability decision, that's done at the VARO. So, no matter what happens, go through the drill as offered and deal with the results later.

When you get your letter, whether it be a denial letter or an award letter, will be the next point where you can reasonably assume control of your case. If you're awarded what you want, please write and tell me what a good job DAV did for you. If you are denied or if your rating is lower than you believe you deserve, you may then consider an appeal with an attorney assisting you.

To be successful in a VA claim requires patience more than anything. Other than preparing and submitting a perfect claim at the start, there is no other way to speed things along. If that original submission isn't perfect and you're well into the process, in most instances you should let it proceed to conclusion and then move into the appeals process. It's my belief that to do that will result in a speedier ultimate and more favorable outcome. If you are to influence your examiner, the best way is to voice that quietly. The examiners are used to the know-it-alls who come armed with copies of regulations and so on. As you can imagine, they aren't thrilled when someone tries to tell them how to do their jobs.

As you have the opportunity, you might tell your examiner, "I believe that this is service connected because..." or, "It would seem to me that since my first complaint about this was in my military service and then these other things happened and here we are today."

Some examiners are jerks and won't listen to anything. If you get one of those, just be very careful saying anything. However, if you can, establish a collaborative relationship and let the doc know that you really appreciate his help, listening to you and so on. Charm and intellect sway them more than a vet pretending to be tough and showing off about how you know the law.

I'm betting you'll do just fine.

Jim;

I learned the hard way that VSO's sometimes don't always make correct choices on our claims..so thats why I went to the DAV..at first the DAV was very helpful with my claims and I learned from them what terms and paperwork to use that the VA understands. But the DAV is always swamped with people I did some homework and submited all my claims...the DAV's hard work got me 30 p/c I got 60 more p/c on my own..and now I have a pending 100 p/c IU claim. All Vietnam service connected. When I get that then I'm enrolling my spouse with the VA and applying for base PX acess. I also keep her inform what I am getting and why. And to fight them in case anything happens to me. I have a lawyer who has military service and I told my wife to get his help. The only time I go get help from the DAV is on appeals. I want to make sure I don't miss datelines and use the correct forms. One thing you can't do with the VA is show hostility. My cousin, and army vietnam vet went in with the "I'm crazy with ptsd attitude and I better get 100 p/c..screaming and hollering" he got ejected from the clinic by the police. He is barred from the va and was told if he came back with that attitude they were going to have him commited. I try to stay cool, be nice to all and thank them for their help and when anyone ask if I am in pain or discomfort I say yes, all the time. I never say I am feeling fine or I'm doing ok. I feel bad all the time. I had one VA doctor was reading outloud what a previous doctor had put in my med file. on the computer..He said "Mr XXXX is a pleasant man who wants our help and endures a lot of pain etc.." So I know these guys write in their personal opinions on us. People just have to be patient, do some homework and play their game.

Reply;

Thanks for sharing that. I wish every veteran would read your letter and heed your advice. The veterans who act as you do are receiving excellent health care and monetary disability benefits that are equal to what they deserve. The veterans who are trying to get what they want by being aggressive and demanding are getting far less. Figuring out the system isn't rocket science and the smart vet plays by the rules.

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posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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