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JIM STRICKLAND'S MAIL BAG: VOLUME #7 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...

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

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 tried to refile my claim with the VA and tried to get help through the DAV but have gotten nowhere and I am hoping that you can point me in the right direction. I am a OIF veteran with 20% disability for a couple of ruptured disks in my back. I would like to note that I had a Disc-o-gram done last year that showed that there where two disks in my back messed up. I am seeing my doctor on Tuesday and will get a copy of those results. The doctor I am seeing is having me get another MRI done to try and see what is wrong with it. I believe that it is this second disk that has caused the most problems for me because it has caused therapies such as cortisone injections not work.

This problem with my back has caused tremendous pain and although I am able to work and be functional overall it has severely impacted my life. It has limited the jobs I can take and made it to where I can not do much more then work which I do have to miss from time to time. This injury was a result from activities while I was in the military and during my PCS transfer back home. I am not asking for complete disability, however because of this injury I will be in a bad situation if I loose my job and have to find one that will accommodate me.

Also note that I usually put down that my injury was caused in 2006 although most doctors have agreed that my injury was present before that and it was aggravated at that time, during my PCS move. I would like to increase my percentage but I do not know what to do. I thought this would be an easy task but it has proven to be harder then I thought. Any help would be greatly appreciated. I really can not tell you how great full I am for your advice and direction. Thank you.

Reply;

You should go ahead and file for an increase. It isn't hard to do for yourself if you're willing to spend some time researching and writing. I like the DIY method because nobody cares about your claim like you do. As you proceed, there will be frustrations, denials, errant responses from VA and you'll wonder if they have any idea just what the hell they're doing. They don't!

This also may take as long as a year or two before it's done the way you want it. The VA is a mess. All that you can do is practice the patience of a saint along with the tenacity of a junkyard dog. If they deny, appeal. And then appeal again.

Below is an example of how to begin...Start drafting your letter in your word processor. I advise that you try to craft it to look as much like the VA format as you can. Be sure to note your reference (C-File, SSN) numbers at the beginning.

I recommend a formal business letter structure using a maximum of courtesy, no BIG FONTS or colors. Do it in the same style that they write in. Describe in your letter to them just what you've described to me. Don't try to get too fancy with legalese, keep it brief and honest. The verbiage below is an example of how I like to address these issues to VBA.

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

DATE

VARO ADDRESS

REFERENCE: YOUR NAME
C-FILE # YYYYYYYYYY

Dear Sir/Madame:

Please accept this document as my claim for disability benefits as outlined below.

In my records you will note that I have certain service connected conditions that have been variously rated over time. Today I claim that my condition has worsened and that I am more disabled as follows:

I suffer pain each day that markedly interferes with my routine activities of daily living. I am unable to walk any distance at all without significant pain. I am totally unable to ascend more than a single flight of stairs. I can not walk a distance of more than 100 feet on flat ground because of pain. I am unable to carry any load (groceries, etc.). I am unable to sleep at night because of pain. I suffer daytime somnolence because of my interrupted sleep. I am fatigued each day because of the chronic nature of my pain. My job and my family life have suffered due to my chronic fatigue that is a result of this painful condition.

Due to the increased severity of the above listed conditions I believe that I am entitled to an overall combined disability rating of at least 70%. I will appreciate your consideration and your prompt and favorable adjudication.

Respectfully submitted,

YOUR NAME
ADDRESS, etc.
**************************************************************

As you develop this letter, using your own words, add any facts that are relevant at short bullet points. The more the better as long as they are strictly about the condition. It doesn't help to talk of unfair treatment, financial needs, family problems or whatever. List any and all side effects of medicines you take.

Now I'm going to toss in a few links so you can see the verbiage of a VA disability claim as well as the structure of ratings. I doubt you'll have any problems interpreting the hierarchical structure that VA uses as it goes from HEADER to PARAGRAPH to SECTION and SUBHEADER and so on. It's all pretty logical once you're used to it. Use as much of the verbiage as you think fits. I don't usually want to include huge chunks of the rules...they already know that stuff.

Here are a few links...do a little homework and studying to see how your claim fits.

This is a sort of overall administrative direction...
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=1b0
c269b510d3157fbf8f8801bc9b3dc&tpl=/ecfrbrowse/Title38/38cfr3_main_02.tpl

Here you'll find a lot that directly applies to your conditions...4.45 The joints., 4.46 Accurate measurement., 4.59 Painful motion., etc.
http://www.access.gpo.gov/nara/cfr/waisidx_04/38cfr4_04.html

Worksheets C&P examiners should follow...
http://www.vba.va.gov/bln/21/Benefits/exams/index.htm

This is the M21. It's the Bible used by raters to practically apply the rules to you. Look through for your situations and see where you fit.
http://www.warms.vba.va.gov/M21_1MR.html
 
If you'll use the above and do a good initial letter to VA, half your task is accomplished. They'll get back to you soon with the usual notifications and scheduling of C & P exams. In the meantime, it's to your advantage to schedule treatments for any and all conditions that you can to polish up your medical records. Get your painful back evaluated as often as possible. The more records, the better.

You should also request that VA copy you your entire file so you may look that over for mistakes or things they've missed. I strongly recommend that you use registered mail, return receipt requested for all communications. I never use a fax machine, never make phone calls or hand deliver stuff. Registered mail provides the best record of delivery.

There you have it. This stuff isn't rocket surgery and there's no big mystery to it. A bright guy with a word processor can do this better for himself than anyone else. I'll be here for questions as you have them.

Jim;

"You Da Man".

I love your columns. Just over a year ago, I applied for SCD after being out of the Air Force for 15 years. I was awarded 50% (several issues) and have a reconsideration claim for several of the awards that were SC, but 0% compensable. Question: I had a Highly Selective Vagotomy, as a result of Peptic Ulcer Disease (PUD). After the surgery, I was hospitalized for difficulties with swallowing, as this is a common occurence after a Vagotomy surgery. I had an esophagus dilation, etc. while in, and my rating decision (20%) for Dumping Sydrome, post Vagotomy, reflects me being hospitalized for swallowing difficulties, post vagotomy. Anyway, I've continued from time to time having difficulties swallowing breads, pastas, etc. I was also granted 10% for tender abdominal scar due to the surgery. Question: Can I file a secondary claim for swallowing difficulties due to vagotomy surgery and have you ever heard of this type of problem? Please advise.

Reply;

Thanks for your kind words sir. It's good to hear that some of my ramblings may have helped. You've had some rough surgery and procedures. I'm a former 91D20, a surgical tech and I've assisted on a lot of stuff like that you've endured. Man, the dilation alone is more than most folks could stand! Those esophageal bougies are instruments designed for CIA torture! I think I'd rather be waterboarded! Yes, you can file for post-operative issues that are secondary to the primary claim. The VA refers to these as "residuals" that are left over after surgery or treatment procedures. Other common residuals are things like leaking after prostate surgery, shortness of breath after lung surgery and so on.

Here are links to the rules & regs that cover some of this.

http://www.access.gpo.gov/nara/cfr/waisidx_04/38cfr4_04.html

http://a257.g.akamaitech.net/7/257/2422/12feb2004
1500/edocket.access.gpo.gov/cfr_2004/julqtr/38cfr4.114.htm

When a distinct symptom or syndrome isn't directly addressed here the VA allows and encourages a substitution to something that is close. I've tried to group the stuff below in a pattern that makes some sense...the 1st link is the big page, the 2nd takes you to a sub category and then the paragraphs are taken from there. Poke around in all of that to find the verbiage that fits your experience. When you file for an increase try to use their language but don't just copy and paste the regulation. Use their lingo in your more personal description of your own issues. They already have a copy of the rules, they aren't impressed with guys who just throw it all in for them. While you were hospitalized and during your recovery period it's likely that you should have/could have been temporarily rated as 100% disabled. If that didn't happen, you may want to consider a plea to have that done retroactively. It ain't exactly a cakewalk to achieve that but it is sometimes done. There you go...good luck. If you have questions as you proceed, don't hesitate to ask.

Jim;

I received a prescription from the VA for ciprofloxacin a antibiotic, and when I got the local paper the Mijer store's here listed this as a drug that they would give to anyone free, also I know it is one of the drugs that wall mart will sell you for only $4.00 now as the va charges $8.50 to veterans for copay and a $16.00 office call. could you check and see if the VA is charging for a drug that the veterans could get for free???

Reply;

You're probably correct. Like most insurers, the VA pays a negotiated rate for all supplies that it dispenses. Then for some veterans, there is a set co-pay that is decided by their priority group assignment. If you are in a priority group that calls for a co-pay of $8.50 for any and all prescriptions, the fact that a civilian store is selling it for less won't affect your co-pay. The other side of that coin protects you from sudden increases in pricing. If a drug manufacturer raises the price that VA must pay for a given drug, your co-pay doesn't rise with it. Wal Mart sent a shock wave through the industry when they set a $4.00 price for many prescription drugs. They had a reason for doing that though...it wasn't out of the goodness of their hearts. They know that any customer who comes to a Wal Mart store for a prescription will buy other things while they're there. They can even sell the drug below their cost (known as a “loss-leader”) and make up the difference while you shop for other things. Once you're in the habit of being a Wal Mart shopper, they've got you for almost all your shopping. For a smart shopper this is a real bonus. If you have an $8.50 co-pay on a medicine you can get cheaper elsewhere, ask the doc to write a prescription so you can go outside the VA. If the medicine is less expensive through VA, go for it. With a little studying, you benefit even more!

Jim;

My C&P Examiner scared me so bad, I farted. The examiner, a female, went down the list of my service connected disabilities, and ask if they hurt and how they impacted my ability to work. I focused on the PTSD and the chronic bronchitis, about the affect of it on my health, how the medications were affecting me with dizziness and tremors, and the PTSD and all that it entails, and that I'm not sleeping and when I do, it's for a short time and then I'm groggy and act like I'm hung over due to the meds. She checked my breathing, my reflexes and my ears. She startled me when she told me I could get my socks back on I farted. It was just a short noise maker, but none the less, I couldn't help it. Glad it didn't stink.

Reply;

Thanks for sharing your C & P exam experience. I'd recommend that you wait a month and then request a copy of the examination report. If your examiner didn't make note of your brief gastrointestinal condition, you may have grounds for an appeal if you're ever denied. (I can't make this stuff up!)

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

posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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