Veterans' Advocate Jim Strickland answers questions from VA Watchdog dot Org readers.

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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...  And, be sure to use Jim's:  A Military Veterans Guide To Disability Compensation and Pension Benefits -- A Compendium of Resources and Knowledge For The Disabled Veteran -- click here...   JIm's series for new vets, "Welcome Home," is also featured on Military.com. And, you can follow Jim on TWITTER here ...

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by Jim Strickland

NOTE:  Letters in my Q&A columns 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.

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Dear VA Watchdog dot Org Reader;

I'll take a moment to update you on a case I reported to you recently. It's posted here http://www.vawatchdog.org/09/nf09/nfjul09/nf070109-3.htm

I'm pleased to tell you that we won that one.

I'll also make this an object lesson and a learning opportunity for both DIY (do-it-yourself) veterans and advocates. I believe that this case is unique in a number of ways and if you're seriously interested in the VA disability compensation process, this is a great case study.

Mr. John Nettles, Esq. original filing was in February 2008. This adds up to about 19 months for adjudication. As you know, I tell clients and advocates that a case will take about 1 to 2 years to settle and an appeal is almost always required. This case was textbook, a good example of how the system doesn't work very well for veterans.

John notified me August 10th 2009 with these (and other) comments;

"Today I got a letter from the Columbia VARO telling me that they conducted a 'special review' of my file on July 23, 2009. As a result, they determined that an error was made in previously giving me a 30% rating for coronary artery disease, and have changed that to 100% because I have an AICD.

It seems that their examiner failed to include that fact in his report from the recent C & P exam conducted for them. I am considered to be '. . .totally and permanently disabled due to [my] service-connected disabilities.' And get this, kiddo, obviously for you: 'We apologize for this oversight in the prior decision.' And, 'Action has been taken to expedite actions to correct prior actions.' (No doubt SC educated—probably Clemson--but you get the gist.)

Of course, the decision is retroactive to my original claim date, and a generous contribution to my bank account has already been made."

It's important to note, whether for your own case or for those who you may advise;

* Unique (photographic) evidence was used to establish RVN "boots on the ground" service for the presumptive nexus to DMII.

* The NOD was promptly filed with very little delay and new and material evidence was submitted soon after the filing.

* As we believe to be typical, his C-File wasn't ever actually read by anyone. While the Columbia RO blames the oversight on the C & P examiner who didn't note the existence of an AICD device, Mr. Nettle's C-File is full of references to that fact. Any reasonable person who spent 10 minutes looking over the C-File would have noted the AICD and that alone is an instant 100% rating if service connected.

* This is the first written apology I've ever seen from an RO.

* We continue to wonder about a literacy requirement at VA when we read such as "Action has been taken to expedite actions to correct prior actions.”

This is a particularly interesting case to the advocate. Mr. Nettles filed for DMII based on his RVN service. Qualifying service is the first of the 3 cornerstones to building a case. (1) Qualifying service, (2) Evidence of an in-service event (3) Evidence of a current disability connected to (2).

VA denied because of lack of proof of (1) qualifying service. The evidence of service (TDY orders) was not unreasonably (by VA standards) argued by VA to be less than concrete. Further evidence was provided by a photograph and buddy statements and was accepted.

Most alarming is that the medical evidence of his AICD was ignored. The presence of an AICD that is service connected is an absolute for a 100% rating. There was no dispute about the service connection of the AICD, it simply didn't exist in any references by VA.

Was ignoring the AICD implant oversight, ignorance or with malicious intent? We'll never know the answer.

The warning flag for all of us is that this is not atypical...VA routinely ignores obvious facts in the rush to denial.

The DIY veteran and the advocate must be prepared to take whatever time is necessary by whatever means required and repeatedly make the point to VA that they are in error and must correct the mistake.

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Jim;

I would like to respond to the reply you gave to the daughter of a veteran who passed and was seeking answers as to why they were denied VA benefits. In your reply to the daughter, in the paragraph for "No funeral Assistance", you stated that assistance (is) provided by the military and the (VA). This is not entirely true.

I am a member of a group called " Southeast Texas Veterans Service Group". We are an all volunteer, non-profit group whose only function is to pay honor to our fallen brothers and sisters by giving a service that consist of a Chaplain, a bugler, and a rifle team. I am the coordinator for our team 1 members. In order for our services to be rendered to the veteran and family we must receive a request for military honors from the funeral director, not the family directly. Once this request has been made to me I then form a team in which we meet at the cemetery grave site or chapel. The funeral director also contacts the military to see if they can have active military service men and or women from the branch of service which the veteran served. Depending on the rank and time in service determines how many active military people will be sent. Normally it is two to three military people. Their function at the funeral is to play taps, fold and present the flag to the family member. If the veterans rank was above E-8, and if the military has enough military personnel on hand, full military honors are then given. The VA has nothing to do with this assistance as you stated to the daughter. The VA will supply a marker for the veterans grave site, but nothing else.

We proudly wear the uniform again as when we do have a service, we are under the orders of the DOD and must abide by the military regulations as if we were actually in the military.

I hope I have helped you to get this cleared up as I do not want the VA to contact you stating you gave false information to someone seeking help.

I read your articles every morning while having my coffee and they are very informing to us all. Please keep up the good work.

Reply;

To say, "The VA has nothing to do with this assistance" isn't quite on target.

I should have been clear that the honors are often provided by the military (DOD) or a service group like yours. However, some expenses (for eligible veterans) and often the cemetery itself are provided by VA.

VA may provide VA National Cemetery Burials, headstones and markers, Presidential Memorial Certificates & burial flags.

VA often provides for burial of unclaimed, indigent veterans.

The National Cemetery Administration is one of the 3 major divisions of the Department of Veterans Affairs. They have a great deal to do with assisting many veterans. You can read more here http://www.cem.va.gov/ 

I wouldn't worry too much about VA contacting me to tell me to cease disseminating false information. They aren't paying that close attention to any of us.

(Follow-up: After you received my reply, you emailed again and said, "My apologies sir. You are indeed on top of the ball. Keep up the good work.")

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Jim;

Dear Jim
As always I hope you are doing well and thank you for your service and the things you do for Veterans,, Now on to the point of this letter,, about 2 mo. ago I wrote and asked your opinion about an 8 wk. in-house PTSD treatment Program, you advised me that from all you knew that it was a good program, well opted for the out patient program, that consisted or 12 wks.

Jim please be advised that it is not what it seems and can cause a lot more damage than you or I have considered,, First, let me explain a little about the 2 different programs,, the best (safest) one of the 2 is the ACT (Acceptance and Commitment Therapy, ACT is a 12 week program that can be done in Individual or group sessions, and it approaches (only my opinion) true therapy.

The next is a program called COGNITIVE PROCESSING THERAPY (CPT),, Both are good programs, however the paper work tells the veteran that participation could "RESULT IN AN ADVERSE AFFECT ON YOUR SERVICE CONNECTION",, this is verbatim from the therapist, He actually had the audacity to tell this group that he had nothing to do with the rating nor could he make any comments either way, however he can say after the program is completed that you no longer have SYMPTOMS of PTSD, but you still have PTSD, figure that one out, The following is only an example, Veteran A has spent 5 to 10 yrs getting his PTSD rated to, for instance 50%, now he takes this 12 sessions and all of a sudden he no longer has "symptoms" for PTSD, magically he has been, so to speak cured,

This is the normal VA at work, Veteran B goes in and has his initial evaluation, signs the consent to treat form and tells his therapist that he has Suicidal Indentions,, the consent for tells you up front that the next thing that happens is they notify the police, and notify your family, some of that may be well and good, but where is the patient, Doctor relationship,,, Veteran C goes in and is a Nam Vet and tells the therapist about an incidence that happened 30 or 40 yrs ago that can be classified as a war crime or that he witnessed a war crime,, I don't think you have to be told who they will contact next,, This question is actually on the pre-screen sheet that the veteran has to fill out to attend orientation,,

All of this can be verified by contacting the CAVHS Mental Health Clinic at North Little Rock Ar. I am not here to condemn the VA, or to find fault I have had some of the best Doctors in the country working on me and I believe in them,, However in any institution there are always that 10% that can make life very difficult for the people they come in contact with, for whatever gain they hope to achieve.

I will end this by saying this, we as veterans can do just a few simple things to improve our situations,, First, read VA WATCHDOG like it was your second Bible, Second, stay informed, and lastly, always, always ask questions, and then QUESTION some more,,,,,, as always your friend and fellow Vet...

By the way Edit this thing any way you need to, I am not an English or composition expert.

Reply;

No editing is necessary. You've said it all very well sir. thanks for sharing.

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TOPICS: veterans, veterans' benefits, VA, Department of Veterans' Affairs, Jim Strickland, Veterans' Advocate,