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JIM STRICKLAND'S MAIL BAG: VOLUME #18 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 often read your reports. I really want to thank you for your work. You are a great help to veterans, but also to us doing work for the DVA. You express criticism of the VA in a very fair way. More than anything I appreciate your support of our staffs when you tell the veteran to speak courteously and calmly—that is of great help to all of us.

Reply;

Thanks for your kind words!

Like so many, when I first tangled up with VBA I didn't understand how it worked. Most of us don't and we really don't want to know, we just want what we feel we deserve. To top all that off, by time we get to you, we're sick and broke.

But...that isn't your fault. I try to stress that you don't make the rules but you have to abide by them. Yelling at or even worse, cursing a DVA employee isn't helping anyone.

I continue to feel sure that the VSO interface between the veteran and the VBA is maybe THE biggest of our problems. That there are no national standards to do that job is a shock. A VSO should be well enough educated to tell the veteran what will happen and how long it may take. That rarely happens.

That VSO should also be required to turn down any application that has no merit. That never happens.

It's why I feel a veteran is often much better off dealing directly with VBA and not a VSO. My DIY method is producing positive results ... on both sides of the fence.

For now though, we have to work with what we have. I learned as a medic in the Army that if you're handed chicken lips, it's up to you to figure out how to turn it into a nice chicken salad. That isn't always easy but a little courtesy and respect along the way isn't going to hurt anyone!

Thanks again...keep up your good work!

Jim;

Last summer I corresponded with you about my personal problems with having a claim resolved at VA. Briefly – I served from 1966 to 1988 and volunteered for Desert Storm and most recently Iraqi Freedom (Casualty and Mortuary Affairs).

While on active duty I had a heart attack and stint placement. Within a year of my discharge I had a second heart attack and triple bypass – May 07. I filed for a claim for 1st MI in 2006. While waiting on the results I had my second MI and had a C&P that combined both MI’s and Coronary Artery Disease.

I was called back to have a SECOND C&P February 2008. The attending doctor stated the results of this C&P were the same. He also stated the nexus to Type 2 Diabetes was 50/50.

I was told I was denied Peripheral Neuropathy even though my medical records indicate lower extremity pain is a constant complaint. I went to a private specialist and had test performed and the results were SEVERE NEUROPATHY. VA told me I initiated my claim in November 2007! I wrote them a sprawling reply with documentation for the THIRD time and a VA Service Representative said she would take care of it.

I was told today that my claim is at the decision board. It has taken 19 months so far to get to this place. I submitted the paper work for this claim THREE times and had TWO C&P exams for the same complaint.

Sir, I am not a whiner and I would serve my country in a heart beat if called but doggone it I have limits. Do I have to start the process all over again with the Neuropathy and associated maladies of Agent Orange and MI disabilities? I would like to see about receiving CRSC but its difficult at best if a veteran can’t get a nexus for DMII/Neuropathy/MI/PTSD/Hypertension et al.

I don’t know what you could do and I only send you this to keep you posted to your offer for assistance. Thank you for letting me rant. (Signed) Your Brother In Arms.

Reply;

I hear you loud and clear. This is the most frustrating process most of us will ever have to confront. A lawyer recently told me that the VBA is making the Social Security disability claims system appear to be a smooth running machine. That's a shame.

Here's how I see your claim...,

As a Vietnam veteran, your Type 2 Diabetes is presumptive. That you have diabetes and RVN service means that the service connection is automatically established (presumptive) and you do not have to prove a clinical cause. The only thing the VARO should do is assign a rating according to just how disabling the disease is. That's usually 10% to 40%.

Coronary artery disease or CAD is often seen as a disease that is secondary to diabetes. Thus, you should be able to establish that as you have Type 2 Diabetes, service connected, your CAD is more likely than not caused by or contributed to by the Diabetes. That is beyond a 50/50 estimate.

The hypertension isn't very likely to be rated unless it was diagnosed on active duty or within one year of discharge. The peripheral neuropathy should be claimed as secondary to the (established) service connected diabetes. The PTSD is another issue entirely and deserves its own attention in the claim for benefits.

The concepts above are no-brainers. However, you're dealing with the VBA. Today's VBA is a mess and it gets worse daily. That your claim has only been in the pipeline for 19 months makes it about average. I'm currently warning people that if they file a claim in March of 2008, it will be 2 years before they can hope for their first adjudication.

At the 2 year mark, 75% of those adjudicated cases will be blatantly and stunningly wrong. This means an appeal that will likely take another 2 years. Many of those will also be wrong and require an
appeal of the appeal. Thus, I'm advising 2 years at minimum, maybe 5 years to reach a reasonable adjudication. Then, within 2 to 3 years VA will contact you for reexamination, even if you are "Permanent and Total" and they will attempt to lower your rating.

Were I you, the first thing I would do is sort out my dates of filings. I would want a reference that I could use to tell myself and the VBA the date I am sure I filed a claim for;

(1) Type 2 Diabetes
(2) CAD
(3) Peripheral neuropathy
(4) PTSD

I would then sort out my paperwork to provide evidence for future use that would prove those dates of submission. This is why I always recommend registered mail, return receipt requested. Once you have established that your claims are filed as above and you are satisfied that you have done your part, I'd do nothing more for 6 months, maybe more.

Even though you're told your plea is being adjudicated by "the decision board", I don't know what that means. Unless you have appealed to the Board of Veterans Appeals (BVA) there is no "decision board" that I'm familiar with.

The usual course of events is for your application and evidence to go to a room stacked floor to ceiling with the thousands of other files your VARO is behind on. A Veterans Service Representative (VSR) eventually gets your file, makes some initial notes and gets things rolling. Then it waits to get to a rater. That rater sees some 5 each day and makes his determination of awards and denials.

There is nothing to move your file through the pipe faster. There are maybe 400,000 claims waiting with yours and hundreds more are added each day. When the decision is made, you'll get a letter. That's when you may begin to appeal the flawed decision you'll undoubtedly get.

I'm not trying to be funny when I tell you that your wait time so far is less than the average today. You haven't reached a 2 year mark yet.

There are 2 traits that will get you through this to a successful award...(1) The patience of a saint and (2) The tenacity of a junkyard dog. Dealing with VBA is not an event or a series of events...it's a
job for life. The reality is that there is no way to speed things up.

Jim;

I'm a newbie on a computer, so I hope you can make this out. I just located your website and very happy that I did. I'm a WW2 Navy veteran and 50% service connected on my ears (big guns). When I was discharged in 1946 at the age of 19, I was pre-hypertensive with a reading of 130/90. A few years later I found out I had hypertension and I have been taking medication since. Another condition I have is skin cancers. I have been treated for these since back in the sixties. We occupied Nagasaki about a month after the bomb dropped. Do you know of anyone winning a claim for atomic radiation. Are my chances of winning slim or none? Thank you.

Reply;

It will depend on your claimed condition. However, the VA has long recognized that veterans who occupied Hiroshima and Nagasaki did suffer radiation effects.

Click here http://www.research.va.gov/news/press_releases/r
adiation-0199.cfm  and the link will take you to a DVA statement about that.

The hypertension may depend on the quality of medical record you can use as evidence to show that you had a higher than average blood pressure in the service or at discharge. Ordinarily hypertension is a challenge as so many of us are hypertensive with or without militaryservice. It's been a few years though. I'm fortunate to have my SMR from the late 60s. If yours is available from the 40s, that's great news.

If you can show that it was there at age 19 and you've been treated since, it may well be service connected and compensable.

The skin cancers, knowing your Nagasaki experiences, may be easier to claim. If your treating physician would attest that your active duty exposure to a radiation hazard more likely than not caused or contributed to your skin cancer later in your life, that should be compensable.

The nexus of radiation exposure to various cancers is pretty well established. My personal belief is that it will be many generations before we completely understand the long term effects of radiation, Agent Orange and so on. Were I you, I'd file for both. I believe that it's probable that your military service did result in those conditions.

Jim;

I always read your articles and I find you to be OUTSTANDING! I was a Veterans Service Officer at one time. I am a vet with IU and also S/C for flat feet with a 0% award for flat feet. Recently they have become more symptomatic to the point where I am pursuing the possibility for surgery. I recently visited a Private Podiatrist and was evaluated by him. He stated that my condition and present symptoms were not yet to the point of surgical intervention. I also took to him the printout from the 38 CFR, Part 4 for the Diagnostic Code 5276 for Flat Feet of which states Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities:symptoms require an award for an 30 % evaluation (Bi-Laterally).I asked the Doctor if my feet show the same symptoms of which he stated "YES". I asked if he would be willing to state this in a Memo and he did. I submitted this to the VARO for an increase for my 0% Flat Feet and was given a C&P examination just yesterday. Well, the exam did not go to well, when the Doc stated that I do not have Flat Feet. Additionally he kept studying my ankles (I am also S/C for both ankles) and his demeanor was somewhat irritating and questionable. I also showed him the statement from the Private Doctor and he stated that there was no validity to the Private note. I also stated that my original evaluation also diagnosed flatfeet secondary to my S/C Bi-Lateral ankles some years back. Well the examiner became somewhat mean and I disagreed with and I stated to him "So Doc,you're telling me that I do not have flat feet and he stated no! I then asked him well what do I have?He stated that I have Plantar Facitis and it has nothing do with my S/C feet and ankle conditions. I became agitated and disagreed with him and he became mean. I then asked who is his supervisor! He stated the name and then STATED as he pointed to my records that "YOUR 50% S/C FOR A MENTAL CONDITION (PTSD) AND HE WENT ON TO SAY THAT "IF I WERE YOU I WOULDN'T RATTLE THE CAGE. I WAS SO HURT TEARS CAME TO MY EYES AND I HAD TO LEAVE.WHAT SHOULD I DO? I WAS SO HUMILIATED AND HURT. I FELT SO DISCRIMINATED AGAINST.

Reply;

I have to question why you bothered? If you have IU you're already at 100%. Getting more ratings won't increase your money unless you qualify for Special Monthly Compensation (SMC).

You may want to answer, "Jim...I want to be 100% schedular instead of 100% IU. Schedular is somehow a safer, better rating." That's a common misconception. Both schedular and IU ratings of 100% may be permanent or temporary. Either one may result in the veteran being reexamined for improvement and then issued a proposal to reduce the rating if improvement is detected.

However, any time you file an unnecessary claim, you're putting your existing benefits at risk. A fresh examination may lead to an examiner or rater thinking you've improved enough to reduce your rating. It wouldn't be the first time.

If the veteran who holds a schedular rating is reexamined, the VBA must prove that an improvement in the condition(s) has occurred before the rating can be reduced. If a veteran who holds a 100% IU rating is reexamined, VBA must prove that the rated conditions have improved and that the veteran is employable. Yes, a veteran who is 100% schedular rated may work at gainful employment while an IU veteran may not. However, if you're trying to adjust your rating to achieve schedular 100% so that you may seek and hold gainful employment, you're gaming the system and in my eyes you don't deserve either. I agree with the physician examiner. I would have left that sleeping dog lie and been happy with my IU rating.

Later, you did reply to my suggestion that you should leave it alone. You were very upset with me that I would suggest any possibility that you may not need or deserve an increase in your compensation. In a long diatribe you let me know that you needed and deserved at least 150% and more.

You're one of the reasons the VBA is some 400,000 cases behind in their work. To write to me explaining how you need at least 150% compensation and if necessary, you'll get there on your flat feet has left me in a daze. You'll use the resources intended to address the issues of at least 4 other veterans and I fear you'll probably achieve your target, no matter the expense.

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posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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