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JIM STRICKLAND'S MAIL BAG: VOLUME #19 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;

In my case I was awarded 10% for 3 seperate conditions. Sinusitis 10%, 10% migranes due to blunt head trauma (heamtoma), and 10% for GERD/Hiatal hernia. Do you think that with these conditions I could try to get a more better rating or in the long run they may try to take some?

Reply;

Yes to both questions. Reducing a benefit doesn't happen often except in cases where a veteran is at the 100% level. The dollar jump from 90% to 100% is significant and it's one way to control the budget. But at any level, the VA can reexamine you to look for "improvement" in your condition. In theory, VA is supposed to ensure that all disabled veterans are compensated appropriately for their condition. This should work both ways...a vet who gets worse should be noticed by VA and given a raise and a vet who has a significant improvement may be adjusted down.

However, if a vet gets worse, he must jump into the adversarial system and prove beyond a doubt that he's deserving. If VA says he's better, they offer minimal proof and lower the rating.

I advise every vet who has a condition, no matter how serious, to get reasonably frequent check ups of the condition, continue any treatments or medicines and make sure there's a record. I've written about “Permanent and Total” before here http://vawatchdog.org/07/nf07/nfFEB07/nf021907-7.htm

I doubt you'll come under any scrutiny or any attempts to lower your rating. So far as raising the ratings...sinusitis and GERD probably won't go over 10% unless you can show that it's really bad. That will be an uphill journey.

Your head injury is more worrying to me. I'll suggest that you be very careful to continue seeking treatment for any symptoms. If your head injury was in combat, or even if it wasn't, be sure to gather your records so that you have your documentation for the future. Think and prepare for ten or twenty years down the road.

A head injury may not produce symptoms all at once. Over the years if the migraines are worse or you have some other things...forgetfulness, an issue with your temper, blurred vision and so on you'll want to be sure your medical records document a steady record of treatment over time. As soon as you believe it's worse, file for an increase. It's easier to get started early than to wait.

Many vets make a mistake of shying away from treatments and doctors and then 10 or 15 years later ask for increased benefits. VA often responds by asking what happened during that time and then denying because there was no evidence of a steady worsening of the SC condition.

So, stay on top of your TBI condition with your VA caregivers and keep good, steady records as you go forward.

Jim;

I would like to get your opinion what I need to do on my pending appeal. I filed for a increase in benefits on a one claim, and opened 3 new claims. All claims were denied. I filed a notice of disagreement. I also submitted a form that requested my claims be review by a DRO . I further submitted a letter stating why I disagreed with the first decision. I went claim by claim stating why I disagreed. I also submitted new medical evidence from private doctors, witness statements, service treatment records, internet articles pertaining to my claims, and current VA examination. I cited 38CFR.s which I through would apply to my claims. In the evidence page, the evidence I submitted was listed however not the 38CFR.s pertaining to the claims. In the claims portion of the SOC, the DRO ignored most of the new medical evidence, witness statements, the 38CFR that I submitted, and did not address any of them.

It is clear that my case was not reviewed properly, nor any research or reading of my rebuttal was done, as evidenced in the little time he took to make a decision. I submitted my disagreement letter to the VA on the 03/03/08, the Regional Office received it on 03/05808, the SOC letter is stamped 03/13/08, and I received the letter on 03/15/08. This whole process took less then 12 days, including weekends. I had stated in my rebuttal that I believed I was not given a proper C&P examination on one of my claims and cited 38CFR 4.42 subpart b. This was also not addressed in the SOC letter. Furthermore I addressed mistakes that were made in the first letter of denial, such as stating that I was a doctor on one of the medical reports. This same mistake was then repeated in the SOC letter.

I have been so called "mis/non-represented"? by the DAV. They have absolutely not done a thing for me. I have had to do all the research, writing rebuttals my self, I have difficulty getting them on the phone or been able to meet with them in person.

I would like you to advise me if, or how I should address these matters in a letter of rebuttal to the DRO, or should I not write or say anything at all before my hearing before the BVA?

Reply;

I believe it's time that you retained a lawyer.

The law changed last year on how we use lawyers. Your DAV representatives opposed the change and spent millions lobbying to keep access to lawyers from veterans. DAV lost, veterans won and you should be very happy about that.

To retain a lawyer today, you must have filed and been denied. Then, you touch base with a lawyer who is accepted to practice before the VA. The lawyer doesn't have to be local...these are federal issues so lawyers don't need your state's license. The lawyer will review your case with you. If he thinks you have a case, you become a client. He'll request all your records from your VA. All the VA Regional Offices have set up some focused people to deal with lawyers. Eventually the lawyer will get your files and proceed with doing what lawyers do.

Then the games begin.

If you win, the lawyer will be paid out of proceeds from retroactive pay. His fee is set by the VA. The VA will deduct his fee and pay him directly.

If you lose, you owe nothing. If you win, he gets paid. How about that for an incentive for the lawyer to win? If we could just do that with DAV Service Officers I bet they'd answer your calls.

Jim;

Thanks for all that you do! Appreciated you hooking me up with Ed Ball on my hearing disability claim, he is another godsend. Claim is filed, and now doing the hard part, the waiting. Some days I feel like it is a no-brainer claim, while on other days I am sure it will get denied. Either way I am in for the long haul and will appeal (i hope not) this time if necessary. Thanks to you and Ed I have my ducks line up the best I can.

Your comment on developing a guide to benefits....I would vote for that. Especially the claims process and tips on filing a good claim, appeals (I hope not), etc. You already have a ton of good stuff in columns, but you have to wade through it to find stuff.

Also could you discuss the role of the Veterans Organizations VSO (VFW, DAV, etc) at the Regional Office in your column? They are too far away for me to drive there and sit down with them. Talked with them on the phone and sent an e-mail.

Heard through the grapevine to go with Vet org xxx at the RO, but so far I get the feeling they are just "pushing paper" through the system. My guess they are just as overwhelmed with claims as the VA is.

Had some knowledgeable local folks proof my claim, including Ed, so okay on that part. Well take care and again, thanks for all that you do!

Reply;

Yeah, some day I'll get to developing a comprehensive guide. Maybe in my spare time. Ha!

If you'll take a few minutes and browse through my archived work you'll see I have few kind words for any of the VSOs. I do recommend that if a veteran doesn't feel capable of taking on the task as a DIY project that they touch base with a County Veterans Service Officer (CVSO)...like our friend Ed. Your instincts are correct about the others. All they're doing is filling out paper for you. They act as intermediary between you and the VBA. That's the sum total of their work. Use caution when you hand your life over to them.

Jim;

Just curious is there info out about how well our lawyer friends are doing with the VBA. Are they making any kind of dent in the mess at VARO’s? Enjoy your articles. Keep up the good work. God Bless.

Reply;

It's too early for any valid measurements. The cases I personally know of are favorable. I'm sensing that there's more of an effort to resolve issues at a local level rather than an immediate push to BVA and that's good. Overall though...I don't see meaningful improvement for years. The problem has gotten too large for any quick solution.

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posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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