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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Jim;

I need your help. My dad served in the Army during World War II for 4 years, 3 1/2 in the south Pacific theatre. He talked about New Zealand, New Guinia (sp), and Australia. Unfortunately, I don't have a lot of information on where he served. According to his service records, he was only treated for flat feet and sinuses.

In the late 80's he became ill. He turned yellow so we knew he was jaundiced and was diagnosed with Hepatitis (don't ask me which kind). When he didn't respond to treatment, exploratory surgery was performed and we were told that he had cirrhosis of the liver (80%) and cancer growing in the bile duct. I can remember being told that he had to go to the doctor and that fluid was drawn from his abdomen - enough to fill a 2 liter bottle. He took radiation treatments but was told in April of 1992 there was nothing more to be done except make him comfortable for the time he had left. He died on June 11, 1992.

At the time of the surgery and discovery of the cirrhosis, we told his doctor that he did NOT drink. He abhorred alcohol due to the fact he had an alcoholic brother. I recall the doctor telling us that he could have been exposed to something that had been eating away at his liver for years, possibly as far back as when he was in the service. Fast forward to 2009. My mothers funds to live on are diminishing rapidly and I have been trying to get her some benefits from his service. The VA is saying that his death is not service related. When I told them what the doctor said at his original diagnosis, they said to please produce his medical records for them to review. According to the local hospital and doctors offices, medical records only have to be kept for 7-10 years, depending on who you talk to.

Now all his medical records are destroyed and I am up against a brick wall. My local office says they can try to get her the pension, which would help tremendously. However, I have been doing research online and see where there are articles about the VA now including certain cancers that for disability for World War II veterans. The VA denied our claim for death benefits, claiming his death was not service related, aid and attendance due to previous numbers as to my mothers worth and entitlement to accrued benefits. I have filed a notice of disagreement and now have to file a VA form 9 to schedule a hearing. I must have this into the VA by August 30th. My mom is 89 yrs old. Her net worth has dropped dramatically due to the economic fallout of last year. I pulled her out of the assisted living facility she was in and she is now living with me. This is cheaper because the cost of the ALF has increased greatly since she first went in in 2005.

Can you help me, provide me with information to use to fight for her rights? Our country is willing to bend over backwards for illegal aliens but the widow of a WW II veteran has to fight tooth and nail to get any benefits. Is this right? I don't think so.

Reply;

My condolences for the loss of your father. I've read your letter carefully. You may not care for my response.

Honorable military service provides many future benefits in return for the hardships we faced during our active duty. It does not guarantee an income for life.

The Veterans Administration is tasked by law with providing numerous services for veterans. Among those services are education (GI Bills), guaranteeing home loans and often enough providing health care for millions of veterans.

On occasion, the VA may also provide, to qualified veterans, a pension or compensation award in the form of a monetary payment. Pension is provided to veterans who are totally disabled and also very low income. To be eligible for pension is to have an income and net worth so low as to fall far below the established poverty line. This is strictly enforced by a national "means test".

Disability compensation may be provided to veterans who were injured or fell ill while in service to their country. A man who was gun shot in combat or a woman who severely injured her back during active military service are good examples of veterans who may qualify for disability compensation.

What the VA does not do is to provide money for veterans or their dependents because they fall on to hard times. The VA is not a source of relief for individuals who are in financial crisis.

That your father developed a cancer is regrettable. However, at his advanced age it's hardly unusual to develop such things and then fall sick and pass away.

You state that during his service he was treated only for flat feet and sinus troubles. I'll presume that after service he went on to live decades with no issues that a reasonable person would connect to his military service.

The VA does not accept conjecture when establishing a service connection for the purposes of awarding a service connection for disability. Like any other disability program, VA requires evidence. Many Vietnam veterans today receive benefits for various cancers because of their exposure to the herbicide Agent Orange. They are awarded such benefits because there is objective evidence that they were exposed and that the chemical has a strong and predictable influence on the development of such cancers.

You offer no such evidence that your father was exposed to anything that may have had any influence on his death. The thought that, "he could have been exposed to something that had been eating away at his liver for years, possibly as far back as when he was in the service" isn't nearly enough to establish a service connection.

For that to carry any weight you would have to define what that "something" was, when he was exposed to it and in what quantity. Then you would be required to have an expert physician state clearly that his cancer was more likely than not caused by the exposure event.

If every veteran was allowed to blame any condition on the premise that they may have been exposed to something in military service and therefore receive a monetary award, the line would be impossibly long and our taxes would reach new heights never before dreamed of.

The fact is that you have no evidence to support any service connection for his condition. He passed in 1992, some 17 years ago. There was never a claim for a service connected disability made by him during his life nor for almost 2 decades after his death.

Now you need some money and because the VA won't give it to you, you hold VA at fault claiming that the surviving dependent spouse's "rights" are somehow clouded by activities that the country takes to deal with illegal aliens. While emotional, the 2 topics aren't at all related. There is established law that governs VA and if there were no illegal aliens in the country, that law wouldn't be different.

In my opinion, you have no case for any benefits. If you file the VA From 9 that will take you to the Board of Veterans Appeals. The BVA is highly adversarial and replete with lawyers to argue against you. It often will take years to even get before the BVA, I know veterans who are into their 3rd and 4th year in line for a hearing.

I'd advise that until such time as you can provide objective evidence of your allegation that you withdraw your claim. That will free up the VA a tiny bit so that a veteran who may just be returning home from Iraq or Afghanistan may be served.

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Jim;

Quick question: I always get a copy of the records when I have VA appointments; what form – and or how – may a patient challenge the material the doctor wrote in the notes?

Reply;

If you believe a physician has erred in your medical record, you should first speak directly to the physician. If that doesn't help, you have the right to enter a response into the record...the caregiver has a right to leave the record as is. You work through Release of Information which is the gateway to medical records at VA.

A C & P exam isn't a medical record...there is no treatment involved or intended. If you believe a C & P exam is flawed, you dispute that as a part of the appeals process.

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