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JIM STRICKLAND'S MAIL BAG: VOLUME #9 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...

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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;

Can you confirm that that VA formulary approves only Levitra and not Cialis? Thanks.

Reply;

That's correct. Most VA doctors are happy to write a prescription for Cialis that you can take to a civilian pharmacy and pay for out of pocket.

I'll note that this isn't only a VA policy. Most civilian insurers don't pay for ED medications at all and those that do rarely pay for Cialis.

Jim;

I am still waiting word from my NOD for TDIU. I did receive a letter from them stating that if I had any further information to send it. I sent a letter last week reemphasizing my current condition. The letter also stated to me that I needed to get in contact with my representative if I haven't yet. So on Monday I did just that. The person at the DAV that I went to see and who is to handle my NOD says that the RO that has been assigned to my case is pro-vet, so much so that they recently barred him from handling PTSD cases because he was cranking out too many awards. I don't want to deal with the DAV because of their past dealings with my case, in which they told me that I would not receive anything and did nothing to help me, which was when I ran across your web site and went for it on my own. But if I have to deal with them, then I will, as I will do whatever it takes to receive my benefits.

Lastly, I am in the finalizing process of my wife's claim as well. Yes, she is a vet also. Her case has to do with an in-service stressor, or perhaps an ongoing of stressor(s), that led to her current conditon diagnosis of Depression, PTSD, and a separate issue of back problems. I am having to handle my wife's claim because she is not up for the fight. I have completed her statement, which is roughly 44 pages - but it's a smooth read as I have split it into different segments/chapters, which makes it easy to read. Though it covers personal accounts concerning our life, I would love for you, Sir, to read it, or at least skim through it. I want to know whether I placed too much or too little or to just leave it as it is and send it in. If you have time and would not mind, would you please look at it for me? It would be very much appreciated, and it would help me to determine what my chances are of winning on the first round. Either way, it would be a pleasure to hear from you again. Thank you.
 

Reply;

It's good to hear that you seem to be doing well. If DAV is involved, that's fine...as long as you remember and remind them who the boss is. You've learned to do it yourself and then tell them what is happening...not asking them.

I've been straight up with you, no reason to change now. Right? Your 44 pages is 41 pages too long. That will hurt you much more than it will help you. As important as intricate details are to you, they aren't to others. Everything you write will be read by more than just one person at VA. Nobody has time for that 44 pages which means your message will be scanned over and not really read. I have statements of complex cancers, heart disease and numerous surgeries spanning many years that are summarized in 2 pages. Only facts and dates count, opinions and thoughts have no weight. Get it down to 3 pages and I'd read it to proof it for you.

Remember...I'm not trying to be mean or cranky. This is good advice. The system won't take as much time as you want and you'll be shortchanged.

Jim;

I am a 70% female veteran. I just recently put in a claim to reopen a previous claim and to increase in a claim. If I am getting my spouse or boss to write a lay statement to support my claim or if I am writing one, How does it need to be written. Just don't want to make any mistakes.
 

Reply;

A "Statement In Support Of Claim", otherwise known as a Buddy Statement will usually only have any impact if the author has some sort of special knowledge of the causative event.

For example; if you were injured in an accident while on duty but official documentation of the event was lacking, an eyewitness that can verify your account will carry a fair amount of weight.

Buddy Statements from family members, pastors, teachers and friends later in life often carry almost no weight at all. For example, a spouse may testify that they have observed the consequences in your life of an alleged event and they know that you suffer greatly. However, if they weren't observers of the original event, they don't actually have any true knowledge of it other than what you've told them.

They might say, "I know that her back injury that she acquired in service has ruined her life." But since they can't attest that they saw the injury as it occurred, they're relying on your account. Unless it was an event of combat, your personal accounting of an otherwise poorly documented event has almost no weight.

Special consideration is given to your remembrances of events of combat if your record reflects that you were a participant in that action. Other than that, without medical records, ships logs, unit action records and so on, your story of occurrences may be completely ignored.

Mental health issues may benefit by a Buddy Statement if the writer sticks to cold, hard facts...not opinions. For example, "In the last 12 months, from {date} to {date} I have personally observed that she has been unable to perform activities of daily living such as; personal grooming, personal hygiene, preparing her own meals, washing her clothes, etc." or "I have observed that she has become much less able to leave her house and in many instances will not venture outside her door for 2 weeks at a time."

You don't want someone to say, "I think her problems are because...". Unless they are qualified as an expert witness (such as a physician) their opinions carry little weight.

Like any other adversarial court system, witness statements are taken with a large grain of salt by the VA. If you have a pastor and your spouse write nice and sympathetic things about you and your condition, the guy at VA who reads it is thinking, "Well, of course that's what they say. What else would a spouse or pastor say?"

The reality is that the bad guy who is in jail for shooting someone still has a mom that loves him and she would write a glowing reference for him.

If it's your boss at work, she should also just stick to facts. For example, "It is noted in her personnel file that in the last year she has had 10 absences from scheduled work to attend VA doctor appointments. Because of such frequent absence, she is on probation..." or "Her back problem has caused her to be unable to perform the duties of her job description. She is unable to sit for long periods of time {one hour} without expressing discomfort or pain. She is no longer able to lift, push, pull or otherwise move an object that weighs over 5 pounds. She can not reach, hold or grasp objects as required to fulfill her responsibility." You get the idea.

Jim;

i have injuries from active duty army which are extremely painful and have been fighting the VA for years just to get an ounce of a normal life again. there is a medicine that works but they are so strict with it i only get a tiny bit of relief each month. well, long story short, i went to once again another neurologist appointment. when i got there the "doctor" not only forced me to take a medicine that i am allergic to and is in my records as such, but i also told him somewhere in the line of 10 times during our meeting. he laughed at me and called me names that were degrading saying i didnt know anything about neurology at all etc.. and it isnt the same kind of medicine im allergic to. now i have have my injuries since 1992 and ive studied alotttttttttttt about headaches and medicines that are meant for them ,everything from narcotics to accupunture etc.. and the man tries telling me i dont know what im allergic to and i dont know what im talking about. hell, right on the sign on the wall in the hospital there is a sign that says " let us help u manage ur pain, the patient knows more about their pain than any doctor can" now does what he did to me sound anything like that moto on our va walls. i am very lucky i know my body and know what it can handle and what it cant. i am also very glad that im wise enough to wait to take it until someone was around so in case if something happened my 4 year old daughter wouldnt be hurt by my incapacitation in some way. im very glad i am like that because i did try his medicine just to make sure i did know what myself well and guess what I HAD AN ALLERGIC REACTION! just as i told him 10x. can i sue him for negligence and abusive behavior? he humiliated me in front of another doctor laughing at me calling me names, berating me. etc.. also in front of my fiance and my daughter. im offended and now i have just another medicine that i am allergic to to add to my long list of things that dont work. why cant the va just give me the one medicine that actually works without an arguement. i am willing to have regular blood work to test the levels in my blood, and i am also willing to let my fiance be the holder of my meds so that i cant take any more than prescribed at that point in the day. my daughter is suffering from my poor health and there is an answer but they refuse to use it as an option at the doseage the original neurologist had me working on. and sadly he retired and i cant even contact him to have him discuss my case with the pa im now forced to work with who barely knows anything about anything. if u can help me and my family in any way with this even if its just so he cant do it to anyone else again id be forever greatful.

Reply;

I don't believe there is any basis for a lawsuit. Even in a civilian setting, you must prove harm before any suit. I don't see harm. In any case, it's nearly impossible to "sue" the government or its employees.

Although I've heard reports of docs trying to humiliate patients, calling them derogatory names and such, I've never witnessed such behavior. You seem to have a simple disagreement with a physician. You claim to know more about medicine than an M.D. Unless you have those M.D. Initials behind your name, that's a tough path to follow and won't earn you much sympathy. Were I you I'd leave all that talk behind and seek a realistic solution to your problems.

The VA isn't going to give you what you think you need. You will receive what your treating physicians believe will work best for you. If I were you, I'd go back with a more humble attitude and work with them, not against them. They aren't the cause of your problems, they're the solution.

Jim;

I'll try to make this brief. My brother served 2 tours of duty in Vietnam, during his 1st hitch. He suffers from what I consider to be PTSD, and Malaria. The VA refuses to treat him because after returning to Paris Island, he decided to go AWOL, and was subsequently discharged from the USMC. Am I reading this correctly, that he is not eligible because it occurred during his 1st enlistment, but if it had happened on a second or third enlistment he would probably have been eligible? Seems a travesty that someone who served honorably in combat with excellent ratings, would be denied treatment for being "unable to adjust" when he returned stateside.

Reply;

A Veteran may be eligible for benefits no matter his discharge. In the case of OTH, it's simple. He should formally explain to VA that his infraction was minor and seek approval. If he's denied, he can appeal. Even if there is a dishonorable discharge, the VA has the authority to review the circumstances and offer benefits.

Veterans who have OTH paper should begin the process to modify that by applying to their branch of service. There are many former JAG lawyers advertising on the Internet who can help.

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posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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