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JIM STRICKLAND'S MAIL BAG: VOLUME #13 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 recently was discharged from the Army after 10 years with a Other than Honorable chapter 10. But I have 2 previous honorables from my reenlistments. I have 4 deployments 2 Kosovo and 2 Iraq, with a sustained injury in Iraq and Bronze Star. My question is how can I get treated at a VA hospital without them giving me negative feedback because of my OTH. I was opperated by a military doctor, I have PTSD and everything is bad. What can I do to get the help I deserve?

Reply;

Chapter 10 discharges are generally given for Hardship and Dependency issues. The characterization of service is usually Honorable or General (under Honorable Conditions). So, if you received an OTH, maybe there's something you aren't sharing with me?

In any case, you may apply to the VA for health benefits. So long as your discharge isn't dishonorable, you shouldn't have any big issues getting into a VA health facility.

You are also eligible for VA disability benefits. Here's how that works...

If an injury or illness (called a "condition" by VA) occurs during any period for which you have an honorable discharge, your application for benefits is treated much the same as anyone else's. That is to say you'll run into the same stuff and nonsense everyone else does. You can expect delays and so on.

So, you have 3 enlisted periods, 2 with honorable papers. You should think back to where you were when any given condition first showed up. If you have PTSD, can you relate it to combat during your first or second enlistment? If so, you're qualified to receive full VA disability benefits as well as to be treated at a VA health facility.

Even if you have a disability that originated during your OTH period, you should apply for benefits. The VA is empowered to overlook that discharge (unless it's dishonorable) and they often do.

You should also begin the process of upgrading your discharge. This isn't always easy and a lawyer is your best bet.

As to getting into a VA hospital without them giving you negative feedback because of the OTH, I don't believe that's an issue. To the best of my knowledge, most of the people at the hospital don't know

and don't care. To them, you're just another veteran patient. I worked in hospitals all my adult life and we treated everyone exactly the same with no regard to whether it was some rich guy or some poor prisoner in handcuffs. About all anyone sees in your record is whether or not you have a copayment for pharmacy or whatever.

If you care to share some details with me, I can tell you how to start the process of getting benefits. I don't care about your discharge one way or the other unless you took a shot at someone I like or if you're a serial killer.

Jim;

Thanks for your web site and your very informative articles. In December 2006, I filed for disability involving meniere’s disease and anxiety disorder. In January 2007, March 2007 and June 2007, I received a denial letter in each of the months, for a total of three denial letters in 2007. However, I still have not received a SOC. I currently have disability for hearing loss 0%, and tinnitus (also claimed as otaglia and vertigo) 10%. In addition, I filed a NOD and I requested a hearing before a DRO in March 2007, still no word on the DRO hearing.

My question is in two parts, first, should I have received a SOC already, due to the denials in January 2007, March 2007 and June 2007? Second, should not my meniere’s disease, which involves hearing loss, fullness in the ear, tinnitus and vertigo, already have a nexus via my current VA granted disabilities of hearing loss 0% and tinnitus (also claimed as otaglia and vertigo) 10%? The VARO worded my grant as “Tinnitus (also claimed as otaglia and vertigo) 10%. I do not understand the VARO, it would appear to me that the vertigo was previously included as a grant along with tinnitus, or, am I totally wrong? (signed) Vietnam era vet

Reply;

Hmm, not much of the VBA response makes any sense to me. How sure are you that your request for DRO hearing/de novo review was received? If you requested a Statement of the Case (SOC), yes, you should have had it by now. Are you sure your request for an SOC was clear? Do you still have your registered mail receipts to prove delivery?

Hearing loss & tinnitus are separate conditions, rated separately. I'd suspect Meniere's disease/syndrome should be too. I had a bout of Meniere's and had no hearing or tinnitus disorder. I believe you have 3 conditions. There may or may not be a clinical nexus.

You understand that with your 07 denial in June 2007 (if after the 20th) you can hand your appeal over to a lawyer on a contingency fee basis?

I can offer you 2 expert paths to choose from...

I have a friend who is a CVSO, an expert in hearing issues. With your permission I'll pass your query on to him to assure that you get a smarter answer than what I may give. Or...I can refer you to an expert lawyer I like.

As it stands today, if you're positive that the VARO received your properly worded NOD and request for DRO de novo review, not much more can be done except wait unless you choose to try to modify your filing after communicating with my CVSO expert (not a bad idea) or turn it over to a lawyer for review and possible action (also not a bad idea).

The bottom line here is that in recent months I'm seeing some very odd adjudications coming out of VBA across the country. The error rate is huge. That a VSR or a rater won't understand the difference between hearing loss, tinnitus and vertigo doesn't surprise me at all. Their workload is atrocious, training is spotty, supervision is inadequate and their computerized decisioning systems wouldn't support a grade school classroom.

I recently fought with a VARO over an Agent Orange lung and brain cancer that VA ceded as service connected but originally rated at 0% because he was "improved". They finally rated him at 100% but scheduled future exams (a temporary rating) to check for continued improvement. The veteran died in hospice care 9 days after he was assigned a permanent rating.

After you've observed a VARO rate a brain cancer with dementia as a temporary condition, you become pretty jaded to anything else they may do.

Jim;

I appreciate your attempts to humanize the people behind the phone and behind the decisions in the VA claims process. I had the unique experience of having an uncle who worked for my regional VARO while fighting the VA for years to prove my claim. If I had known then what I know now on what it takes to win a claim it would have been a much shorter process.

More to the point: my uncle was a rating decision officer who is a veteran himself and deeply cared about veterans in general. I'm one of the unfortunate few who slipped through the cracks because of missing medical records. Not because of the usual fire story, but just because the Naval Hospital I was treated at changed their records system around shortly after I was discharged and my treatment records never got sent to the appropriate place. He fretted endless about cases like mine and desperately tried to ensure that all who deserved their benefits got them but constantly fought to get a good job done while the demands for quotas increased and the endless piles of incoming claims increased faster.

It's easy to fall into the mindset that the bureaucracy is out to get you, because it certainly seems that way sometimes. But we're dealing with people who overwhelmingly do care but have to do their job within the rules that we the People have established through our Representatives.

Please keep up the good work of helping veterans understand the confusing system that is the VA claims process. I appreciate your honest and pragmatic assessments of what must be done to succeed. I wish I had such good advice much earlier in my years of battling the VA for benefits I was clearly entitled to, though until recently lacked the medical records to prove. Most of the mistakes you point out are mistakes I've made in the past and you are always on the ball with pointing out why they are mistakes.

I'd like to propose a separate website, with the various contingencies, for returning veterans to be able to click on and immediately get the advice they need for their specific situations. While your commentary is indeed useful, trying to access it in an easy to access manner is a bit difficult.

Just an idea from a fan. Keep up the good work. It's much appreciated.

Reply;

Thank you for your eloquent and kind letter.

I have the good fortune of being able to communicate with a number of VBA employees and they are as human as the rest of us. My thought process and writing is heavily influenced by my health care career. I know the realities of what happens behind the closed doors whether it's in an emergency department or a VARO. As they say about making law and sausage, you really don't want to know all that goes on back in there.

It gripes me when I get email from the Tin Foil Hat Club about how terrible the VA Fat Cats are. As a pragmatist with a strong curmudgeonly side, I tend to try to speak the reality of it all.

Interestingly, today I've received a handful of mail from VBA employees who thanked me and then reminded me that were it not for the fakers, whiners and wannabees, the time to process our claims may be more reasonable. I've touched on that before and will do more to address it in the future. Those guys who have been out for 20 years and realize they missed the benefits boat suddenly begin to remember things impossible to prove because they didn't happen that way. I hear estimates that almost half the claims are bogus but must be given the same meticulous attention as the next one.

Larry and I have tried to find time to do just what you've suggested and put together and post a Guide To Benefits. In fact, I ~will~ get that together by March of 2008. Oops. That was my goal from March of 2007. My bad. I know that today reading through my jumble of archived articles isn't an easy solution. I will get to it sooner than later. Larry and I will come up with a method that will allow you easy and as always, free access to suggestions to guide you through the VBA jungle.

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

posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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