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JIM STRICKLAND'S MAIL BAG: VOLUME #26 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 recieved a letter in the mail from the VA stating that they are going to stop my benifits because I did not report to my scheduled C and P review appointment. I have 100 percent Individual unemployability and a temp rating of 70 for PTSD. I was under the impression that I would get 12 months of marginal employment before I would lose this benifit. I have not worked in two years and I submitted my income verification form on time when I recieved it. I never recieved a letter scheduling my appointment. I still take meds for depression and to help me sleep and anxiety meds as well. I have just now started to be able to get on track with my life and I get this blow to the head. What can I do as I honestly never recieved a date for an appointment. I did get the letter stating I would be getting one and that is it. Im really sick over this and panicing. I cant believe sthis is happening. They said my benifits will stop in June. Please help.

Reply;

The Veterans Benefits Administration may reexamine you at any time according to the following;

Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION
§ 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.


This will apply even if your rating is considered Permanent and Total. Language used by VBA provides a number of caveats that may be applied to allow the VBA to order even a "protected" veteran to be reexamined. For example;

"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."

and,

"In the cases of veterans over 55 years of age, reexamination will be requested only under unusual circumstances."

As you can read, the VBA has authority to order reexamination under a wide range of possibilities to "ensure that a disability is accurately rated", including "unusual circumstances" that are open to be defined by the VBA.

The veteran has very few protections to an existing rating unless and until that rating is held for 20 or more uninterrupted years. If ordered to attend an examination, the veteran must go to it without fail. The following is the language used to describe actions that may occur if you miss an examination;

Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION
Adjustments and Resumptions
§ 3.655 Failure to report for Department of Veterans Affairs examination.

(a) General. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.

In your situation, the VBA is addressing a "running award". The following applies and according to the letter you wrote to me, your VARO has strictly followed the rules.

(c) Running award. (1) When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued or, if a minimum evaluation is established in part 4 of this title or there is an evaluation protected under §3.951(b) of this part, reduced to the lower evaluation. Such notice shall also include the prospective date of discontinuance or reduction, the reason therefor and a statement of the claimant's procedural and appellate rights.

Fortunately for you, the VBA offers you an opportunity to easily correct the situation. In the paragraph (c) the language continues on to say;

(c) (1): The claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination or to present evidence that payment for the disability or disabilities for which the reexamination was scheduled should not be discontinued or reduced.

(c) (3): If notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred. The reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment. When a claimant fails to report for such rescheduled examination, payment shall be reduced or discontinued as of the date of last payment and shall not be further adjusted until a VA examination has been conducted and the report reviewed.

You received your notice that you missed your exam in the last week of March 2008. You have 60 days to notify your VBA that you are willing to attend a rescheduled Compensation and Pension reexamination.

You should write to them at your earliest convenience as follows;

DATE
REFERENCE: (Your Name, Your Case File Number, Your Social Security Number)

Dear Sir/Madame;

I have received your letter that notifies me that I missed a scheduled C & P examination. Although I received the earlier letter that notified me that a C & P examination was to be scheduled, I did not receive any letter or other notification that such examination had actually been scheduled for me.

I am willing to attend a rescheduled C & P examination as early as that can be arranged for me. I have no reason to want to miss such an examination.

I will await your notice that a C & P exam has been rescheduled and I will attend that.

During this time it is my request that you do not modify my current level of disability compensation.

Respectfully submitted,

Your Name
Your Signature
Your Address
Your Home Phone Number
Your Cell Phone Number
Your Email Address

After you have completed this letter you must mail it using certified mail, return receipt requested. This is the only way you should ever correspond with your VARO. You should not FAX it over, hand deliver it or drop it in the mail. This is too important to you to leave anything to doubt. If you mail it as certified and return receipt requested, you have proof positive of the delivery.

You'll note that this letter is very brief and focused. There is no reason to try to explain to VBA any reasons or excuses you may have for missing the examination beyond stating you didn't get the letter.

In some follow up correspondence, you told me that over the years you have missed a few appointments. You gave me the excuses for why you had missed those appointments.

One of the most important of the many Golden Rules that govern our relationship with the VBA is that we do not ever miss appointments at a health care facility. If you can't make an appointment, you must call a few days in advance to reschedule for another time. The VHA makes this easy for you by providing toll free numbers for rescheduling of your health care appointments.

If you simply don't show up for your scheduled appointment you've just deprived another veteran of an opportunity to use that time to solve their own health care issues. If you're recorded as a chronic “no-show” that will reflect poorly on you for future care and appointments.

Jim;

I am a Viet Nam vet, with service connection for PTSD and Diabetes type 2. Came down with Hypertension at same time as Diabetes. Va says I can't get service Connection for hypertension. Can you give advice .Thanks

Reply;

It's a common misconception that diabetes and hypertension (high blood pressure) are related. They aren't. That your hypertension was diagnosed at or about the same time as your diabetes is coincidence.

Type II (Adult Onset) diabetes is proven statistically higher in veterans who served in Vietnam. Thus, the DVA cedes that there may be a correlation (a nexus) between exposure to agent orange and adult onset diabetes and service connection is awarded. Interestingly, DVA does not say that AO is the problem, only that it may be.

The onset of high blood pressure is statistically the same for adults whether they served in the military, served in Vietnam or never served. Therefore, there is no service connection ceded by DVA.

The argument continues to this day whether exposure to agent orange actually precipitates all of the conditions that are on the DVA presumptive list. http://www.vba.va.gov/bln/21/benefits/Herbicide/

A quote often attributed to Mark Twain says, "There are three kinds of lies: lies, damned lies, and statistics." The power of numbers can be used to prove just about any theory a believer wants proven. Some researchers believe that there is no scientifically proven link to agent orange and the many complaints and illnesses attributed to even slight exposure. http://fumento.com/reasonagent.html

There are others who say that the high blood pressure may be caused or contributed to by PTSD. While it seems logical that psychological stress would be a precursor to hypertension, there is little supporting evidence. Many people (doctors, police officers, etc.) who have extremely stressful occupations seem to thrive on the stress and anxiety and they don't have high blood pressure.

For the purposes of VA disability claims, hypertension may be addressed in a couple of ways. First, if a veteran was treated for hypertension while on active duty, VA is more likely to award a service connection. Treatment, once begun, is rarely ever interrupted. When you take your first pill of blood pressure medicine, you've just signed up for a lifetime of treatment because high blood pressure is rarely "cured", rather it's "controlled". If you were treated on active duty, you were likely discharged with a medication regimen and service connection is established.

Then there are conditions that may be more readily recognized as contributing to or aggravating high blood pressure. If a veteran is treated for a service connected condition that causes pain, the VBA is more likely to agree that chronic pain may cause or aggravate hypertension and then award a rating for hypertension as a secondary condition.

Finally, all VBA disability ratings are awarded with the intent of financially compensating the veteran for a loss of productivity and earning capacity because of a disability. Simply having a condition doesn't always equate to having a disability.

For example, having a diagnosis of diabetes, taking one pill each day and suffering some inconvenience and lost time monitoring your blood sugar may result in a 10% rating. If you're relying on multiple daily insulin injections, needing to visit a diabetes nurse or clinic each week and suffering significant complications, you may have a 100% rating.

If your hypertension isn't more disabling than requiring one or two pills each day for control, even if you were awarded service connection, you may only be rated at 0 (zero) % disabled.

Jim;

I want to thank you for your columns on VA Watchdog, and say that I appreciate your candid answers to the questions you are presented with. I was wondering if you could take my rant, and turn it into something worth reading on the web site. This is information that seems simple enough, but is all to often overlooked.

So I noticed that the 2008 BVA decisions are available to search now, and I decided to look for this year's IVDS (Inter vertebral Disc Syndrome ) claims. Out of over 130 claims, the first 10 or more were denials. All of these claims were denied simply because the vet didn't meet the criteria!

I can't stress this enough; before filing a claim, know what your symptoms are and be sure they have been recorded by a medical professional. Then you need to know where your symptoms stack up with regard to the rating criteria set forth in 38 CFR 4. If your symptoms match up with the rating criteria for 20%, then don't expect a 40% rating. It's not going to happen. If you don't have medical documentation of your symptoms, you won't be getting a rating. It's that simple.

When you file a claim, the VARO sends you a duty to assist letter that must contain the evidence necessary to substantiate your claim. Sometimes they get it wrong, but you should know the criteria already. If they get it wrong, you may have grounds to get them on a legal/procedural error later, but it should not impede your claim...because you already know what is required to win. If you are already in the process, and you get low-balled or denied, then you will get either a SOC, or a SSOC, depending on what level of appeal you are at. Again, these letters spell out exactly what is needed to win your claim.

If one of these letters states you need X,Y, and Z...then you better get your butt out there and materialize X,Y, and Z. If it states that you don't meet the criteria, then that's it. If you expect more, then you're in for disappointment. If you know where you stand in the rating regs, then you will not be disappointed. If you know that you meet the criteria for a 60% rating, but that evidence isn't in your records, then guess what you need to do.

I know a lot of vets think the VA is out to get them. Sometimes it seems like that to me. But, if they were really out to get you, would they give you the bloody information needed to win your claim?! They are a bureaucratic entity that is overloaded, and to a large degree, inept. That means that we have to do our homework, and make it nearly impossible for them to foul up our claims. Yes, there will still be bumps in the process, but if know your stuff, you'll get a lot further.

Reply;

Your advice is solid and realistic. I get tired of hearing about the big bad VA. Many people seem to have this expectation that they shouldn't have to prove anything at all. Many have waited 30 years with no complaint and suddenly need some extra income and they heard from a buddy that VA is giving it away. If you make a claim, be prepared to prove it.

Jim;

Is it true that if you apply of VA Disability and you have been to VN you will automatic be placed in Priority # 3 ??

Reply;

No.

If you have a condition that is on the presumptive list, (presumptive that your condition was caused by or contributed to by Agent Orange exposure) you'll have fairly smooth sailing to a Service Connected rating. If you don't have a service connected condition and if you don't qualify through a means test, you'll be a Priority Group 8 veteran. The VA isn't currently accepting PG 8 patients. Write your Congressman to let him know how you feel about this.

Details are at these links...

http://www.va.gov/

http://www1.va.gov/health/index.asp

http://www.va.gov/healtheligibility/
 
http://www.va.gov/healtheligibility/Library/pubs/EPG/

http://www.va.gov/healtheligibility/Library/pubs/EnrollmentRestriction/

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

posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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