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 to Z GUIDE OF VETERANS DISABILITY COMPENSATION BENEFITS" 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;


You know, a rope has two ends, if you sever a portion of that rope at either end it becomes shorter! Such is the trickery of the VA and its attempt at self preservation and reduction of the backlog. For this sort of thing to take place there has to be a side deal between the VBA and the advocasy. Keep your eyes and ears open, and follow your nose. Something is beginning to stink.

I am a strong veterans advocate. I have become aware of something sinister going on in the last few months. I refer veterans to our state VSOs for filing a 526 for initial claims, then I help in the development and perfection of the claim.

As never before and of late, I am seeing veterans turned away and discouraged from filing a claim, especially Vietnam era vets, in fact, they have all been Vietnam vets, "boots on the ground." The reasons given are, "you have no diagnosis of PTSD," and yes, I'll admit that we don't have the diagnosis yet, but we are working on it. They are calling it a frivolous claim.This vet had a CIB and two tours, "boots on the ground", Vietnam service and the CIB is clear on the 214.

In another case, the vet had a CIB, a purple Heart, Parachutist badge, Air Metal, Vietnam Service Medal W/ 2 Bronze Service stars, Bronze Star Medal w/ V Device, Vietnam Campaign Medal w/60 Device. His request was to file a claim for PTSD, he was also turned away, Reason, no diagnosis yet.

Another vet had an eighteen month tour of duty in Vietnam, the vet filed a claim in 2007 and was denied. The claim was for Diabetes and Multiple Myeloma, reason given, no diagnosis! I obtained the medical records and on his 2007 AO exam letter there it was, "You have diabetes and Multiple Myeloma!" I escorted the vet to his VSO. We were told by his VSO that,"OK we will ask for reconsideration, but your retro will only have an effective date of the diagnosis, not the date that the claim was filed!" There is another AO exam dated 2009. The explanation, "the AO letter is not a diagnosis, it is for the explicit purpose of your entry into the AO registry." The actual diagnosis according to the progress report of the actual exam and under the title, "Diagnosis," "Diabetes and Multiple Mylenoma!" What gives here? This veteran and his six year old son have been eating out of a garbage can for the last two years!

One more, The Vet served with the 101st ABN, one tour. Was granted 30% for PTSD. Denied retro effective date of date of original claim filed. The reason, "the effective date only goes back to the date of the actual diagnosis, not to the date that the claim was initally filed!

Reply;

This is one of a dozen or so similar reports I've received in recent weeks. I'm disturbed by the direction this is taking and the negative impact it's having on veterans.

I haven't yet been able to pinpoint the source of this call for inaction by VSOs but it's too widespread to be coincidence or a series of isolated incidents. Someone has put the word out and the word is spreading through the usual networks.

That word seems to be that if a veteran doesn't have a current diagnosis of a condition, he or she can't file for it. Vets are being told, particularly in the realm of filing for PTSD, that to file without a firm diagnosis is "frivolous" and that there may be punitive measures taken by VA for such filings. In many cases, that's the last the VSO will see of that individual. Veterans who suffer PTSD often have symptoms of paranoia and feelings of mistrust. If an authority figure counsels them that they may suffer the wrath of the VA, that veteran may shy away from filing and treatment.

I'm also aware that many veterans are being told that they aren't able to file for the condition of Ischemic Heart Disease. Once again, some are told that without a firm diagnosis in their medical record VA won't accept the application for benefits and others have been told that "VA isn't ready yet" to accept such applications.

Let's set the record straight right now. Any veteran may file for any condition at any time. Once the claim is filed, the veteran will be required to show evidence that there is a medical diagnosis consistent with the condition the veteran has claimed.

There is no restriction at all that will prevent a veteran from filing 1 or 100 conditions. Once filed, the veteran may not prevail for any number of reasons. Upon examining the application for benefits VA may summarily reject it as being totally without merit. I never recommend filing claims that are baseless. That wastes resources within our VA and they do that nicely without our help.

The VA does not have to be "ready" to accept your claim for ischemic heart disease. When the Secretary announced that ischemic heart disease would become a presumptive condition, he did not also announce the details of how that would be rated, etc. The lack of any guidelines has created confusion in the ranks. Many veterans and Veterans Service Officers and even VBA staffers don't yet have a grasp as to just what ischemic heart disease actually is.

Nonetheless, I recommend that if you are a Vietnam veteran and you have ever had symptoms of any sort of heart disease, file right away. Symptoms might be as subtle as shortness of breath on exertion, DMII, a stroke or TIA (mini-stroke), any degree of chest pain, a pacemaker or AICD, stents in your heart's arteries, congestive heart failure or difficulty walking short distances.

There is no waiting period required or even suggested by the Department of Veterans Affairs. General Shinseki invited you to file your claim for ischemic heart disease without any qualifying statements as to when or how. If the system needs time to sort out details about how they'll adjudicate these new cases, fine. While we wait for them to get their act together, our effective dates will be carved in stone.

The system only works when you file. Your effective date, the date that your benefits will be retroactive to, won't be set until you file. If you're waiting for a welcome mat to be set out along with some milk and fresh baked cookies to greet you, you're going to be very disappointed. If you wait 6 months to file, you'll likely lose 6 months of retroactive benefits.

I have to point out that you seem to have erred in the statement, "the effective date only goes back to the date of the actual diagnosis, not to the date that the claim was initially filed".

Just so everyone is clear on this point...the effective date of your claim is the date that it is received at your VA Regional Office. It is not the date of the diagnosis of your condition. For example, if the Vietnam veteran is diagnosed with DMII in May of 2007 but waits until July of 2009 to file a claim for the benefit, the effective date of his claim is July 2009.

There are some few circumstances that may impact the effective date but in most routine applications for benefits, unless you file, you haven't made a claim and if you haven't made a claim, you don't have any effective date.

The bottom line: If you or anyone you know have been informed that you must have a firm diagnosis of a condition prior to filing a claim, you have been seriously misinformed. If you or any of your brothers and sisters have been turned away and not allowed to file your claim for ischemic heart disease, the person who turned you away has committed a grievous error.

If you're aware of any of the above shenanigans by a VSO, please take a moment to let me know. We need to bring this to a screeching halt ASAP.

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Jim;

Although you may have covered this subject previously, I thought I would forward a recent experience I had.

A friend had attended a meeting with a large tax accounting firm that pointed out that even though an individual is receiving disability pay from the VA, the individual is entitled to reduce their retired military pay taxable income by a percentage equal to their VA rating. If never claimed this before, the individual was only entitled to file amendments for the previous 3 years but could in all future years claim this exclusion. The firm has been doing this for individuals for over ten years.

I found this to good to be true and made an appointment and was told I was owed approximately $20,000 for the past three years (80% rating) and essentially would owe a very small amount in future years.

I told them to go ahead and prepare the amendments but decided to research for myself. After exhaustive searching which included finding other accounting firms throughout the country offering the same assistance, I came across a 1999 IRS Tax Commissioner’s Ruling called the Holt decision. The ruling stated that you cannot take disability exclusion unless your retirement was for disability rather than years of service.

I contacted the firm who researched and found out that they had erred in never discovering the ruling. As a result, they are in the process of notifying all of their clients who they have advised to do this for over ten years to let them know amendments must be prepared and the IRS must be repaid. Since there are other firms in the country who offer the same advice, I thought you might care to be aware of this if not previously known. I have attached the Holt ruling.

Reply;

If it sounds too good to be true, use caution. Whether you're being offered the deal of a lifetime on a vehicle purchase of a tax break, keep in mind that as a group, veterans are frequent targets of scams. While this may have been a legitimate mistake by a reputable tax accounting firm, they should have found this long ago.

Thanks for sharing!

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Errata/Correction

I made a mistake in a Q & A piece that ran a short time ago.

It's here http://vawatchdog.org/09/nf09/nfoct09/nf100609-1.htm

This was an interesting and challenging exercise in VA math, the use of the bilateral factor and the Combined Ratings Table.

As I marched through all the steps, I had to beg assistance from a close friend who is a Ratings Veterans Service Representative (RVSR). He's one of the good guys who adjudicates your claim fairly and assures that benefit of the doubt always goes to the veteran.

I'm proud of our friendship. We don't always agree but there is a strong mutual respect. We each understand that we are doing our very best to serve our brothers and sisters in arms.

He walked me through each step a number of times...I'm no genius so he was, thankfully, patient as it took me a while to get it. Math stymied me in my school days and it still does.

In any case, we discovered that he too had made a minor error. It had no effect on the outcome but we corrected it for the sake of doing it right.

Now 2 others have written me to note another error. Another RVSR has dropped a note and a retired VSO from DAV also informed me of my mistake.

In the final analysis, rounding up or down of numbers when applying the bilateral factor is done (in VA math) after one completes the calculations with the bilateral factors. I had rounded each number at each step as I went along.

Once again, the error had no effect on the outcome in this case but it could have in another and may have changed a ratings outcome.

I always appreciate being corrected. Veterans and others who read my work are sharp and don't allow me to get by with much that isn't perfect.

It was interesting to see how these 2 individuals told me of my error.

The RVSR who wrote to me confessed that many of his colleagues had issues with these calculations and that they often checked one another's math. His note was professional, courteous and helpful. It was a fine example of what I always hope for and sometimes receive from our DVA.

The retired DAV VSO used the opportunity to break out his slings and arrows and give me a piece of his mind. He jumped at the opportunity that this mistake of mine had given him and used the opening to slam me personally and denigrate my work in general.

He opened by accusing me of excessive "DAV bashing".

In his rant he went on, "I think you presume to know everything and of course you do not. My impression is that you are pompous and think your way is the only way. It sounds like you don't see the value of the DAV. If that is true, then you are very very short-sighted."

I tried to explain I reported what others told me and what I observed. It's my opinion that DAV does not represent the average veteran. The recent history of the DAV's staunch opposition to allowing veterans to choose to be represented by lawyers is a good example of their paternalistic attitude. DVA and DAV told us we shouldn't be allowed to decide for ourselves how to handle our affairs with the VA...they would do it for us and we would do as they said. Thankfully, DAV lost that battle and today thousands of you are represented by skilled attorneys who work very hard for you.

I also believe that the DAV's network of VSO's is nothing more than a very broad net cast about to entice veterans to join DAV. I fell for that one years ago. It was hinted to me that a DAV Life Membership would allow me privileges at the Regional Office and that my claim would receive special attention because of my status. That didn't work very well as I ultimately fired DAV as my representative and took the reins of my claim to win my deserved benefits.

Then he changed course. "I have the advantage of knowing the DAV service program from the inside. I retired from the DAV NSO corps in 1999. I do agree with some criticisms of the DAV. I no longer tell vets to go to the Columbia, SC DAV NSO, having seen the downturn in quality of representation."

But, in spite of his reservations about that office, "I supported the office for several years after I retired amidst the criticisms I heard from fellow vets." This VSO confesses that even when he knew there was poor service to veterans, he defended the DAV way of doing things.

To my way of thinking he's telling me that support of his organization is more important than doing the right thing for the veterans he serves. His loyalty was to the origin of his paycheck.

"I always had difficulty returning phone calls promptly, sometimes not at all", he explains to me. But he goes on to rationalize how that was OK because, "I was just trying to complete my work."

He explains that, "...while the current corps of NSO's is not doing the job that we did, the DAV is still the VSO that does the most for the veteran community. I can't say why NSO's don't return calls now that they don't spend all the hours in the office that we did." Then he waffles again to agree with me, "OK. I DO agree with the rampant criticism of the DAV NSO's."

Of course, his generation of VSO was pretty good, it's the "current corps" that fails.

("These kids today...")

In the final analysis his diatribe defends an organization that generates more complaints in my mailbox than the DVA itself.

I support the DAV efforts of transportation, social networking, stand downs and so on. I sincerely believe that DAV should get out of the business of representing veterans. I believe that the time has long passed that Veterans Service Organizations should be allowed to provide representation to veterans as they interact with the DVA.

The NSO/VSO system has failed us. There are no national standards of training, education or skills. The VA web site lists over 100 "Organizations Chartered by Congress and/or Recognized by VA for Claim Representation". http://www1.va.gov/vso/index.cfm?template=view&SortCategory=4

None of these organizations has the same standard for a VSO's qualification as the next organization.

You may be fortunate to stumble upon a very well educated and experienced VSO who will be very helpful to you. It's just as likely you'll come across the new volunteer who has the title of Post Service Officer but no training and very little support from the parent organization.

A network of Veterans Service Officers should be made available for those veterans who need help. Those VSO's should be paid for and organized under the existing networks of state and county systems that are widely available today. National standards of qualifications should be in place for each state so that all representative agents are accredited and highly qualified to do the task assigned to them.

In my view there is no room for a VSO who is ultimately more loyal to his employer than to the veteran client who sits in front of him. This is why I am relentless in my promotion of DIY. If you believe that any VSO cares about your claim as much as you do, you've made a mistake much more profound than my math error.

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