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;

I wanted to say thanks for all your shared knowledge. You may remember me, I wrote to you a several months back as I started in the VA system. I was discharged with 20% from the Army and was facing a left BK amputation. I had my surgery in May and am doing great with my prosthetic. I received my initial rating from the VA for 80% (before the amputation) and had several things deferred. After the surgery I applied for temp 100% and the amputation. Over the past weekend I received my final rating,100% temp housebound for 6 months, and 100% SC with two SMC K-1 starting the day the housebound ends. I am very thankful for the rating and being taken care of by the VA after the Army dumped me with nothing. I know that there are many problems in the VA and I have seen some myself (10 months for my final rating) but am just so thankful for this rating and what it means for my family and myself. Thank you for all the advice you give.

One question if I may is in the text of the rating it states “No examination will be scheduled in the future for your permanent and total disabilities” dose this mean I am P&T? Or are they just talking about some of my problems, I know the VA has a weird way of saying things. If I am P&T will they send some other paper that will state this?

Again thanks for all your help

Reply;

Nice work. You've done very well for yourself navigating the maze of the VA. It may not have seemed too bad for you since you did it yourself and by the book.

Your attitude has been one of positive determination, no whining allowed. You've made the best of a tough situation. I often say that when life hands us a sack full of chicken feathers, we might just as well get to work and figure out how to make a great chicken salad. You did it.

The VA-speak is routine. It annoys me daily but that's the least of the things about VA that annoys me.

In an award letter VBA communicates to you that your award is either temporary with an expectation of measurable improvement or that it's permanent and VA doesn't see where improvement is likely.

In your files at VA you have a "Future Calendar". If they believe improvement is likely (a temporary award) they will create a future date in your calendar for an examination to evaluate your condition.

If they believe improvement is not likely, there is no exam created in the future in your calendar.

So, your letter that reads, “No examination will be scheduled in the future for your permanent and total disabilities” means that VA considers you permanently disabled.

Now...here comes the fun. Does that mean that VA will never examine you because your condition is permanent?

No, of course not. In VA-speak the word "permanent" doesn't mean what it usually means to the rest of us. Note that the letter tells you that "No examination will be scheduled in the future...". That phrase does not mean that they won't conduct an exam...only that one isn't scheduled.

(In VA-speak 2 + 2 won't add up to 4 either but that's another story.)

Your rating isn't "protected" until you've held it uninterrupted for 20 years.

Why would they reexamine you? Often enough it's because when you pass the 10 year mark your dependents become eligible for the DIC benefit no matter the cause of your death. VA doesn't want to be paying DIC to your dependents should you die, so all too often at 9 1/2 years you'll get a notice for a re-exam quickly followed by a proposal of adverse action. You'll find that you've improved so much VA proposes to lower your 100% rating to 60% or even lower.

Even after 20 years VA can lower your rating if they can prove that some sort of fraud was involved at the time you were rated.

I like to keep veterans informed with the facts and there you are. In this case, P & T doesn't mean Permanent & Total, at least not in the way you would like to believe.

It's rare that VA will send you a letter that clarifies any of that. But you'll need such a letter for your state or county benefits. Your state may offer veterans who are P & T benefits like licenses at no cost out of pocket or tax breaks. The agency involved will tell you their requirements for a document to satisfy their rules. Often enough the document must be written on VA letterhead and it must state that the veteran is Permanently and Totally disabled due to a service connected injury or illness. They will usually require the date of the award, that your name and home address be on the document and so on.

In my state (Georgia) I discovered that state employees are as confused about what "No future exams" means as you would expect. That didn't make any sense to them and to get the DV plates for my car, I needed much more than my award letter.

The easiest way to get such a document is to write out the details and send a letter (via certified mail) to your VA Regional Office asking for it.

There is even more about all this in my new A to Z Guide to Veterans Disability Benefits at http://jimstrickland912.com

As you have some time, stop there to visit, read and keep up with any changes to the complex disability regulations.

Good luck sir!

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Jim;

I have submitted a claim for PTSD. It was approved at 30%. I did a NOD and I have just gotten my PTSD disability increased from 30% to 50%. On my NOD I also requested it to be back dated to 1983 when I originally submitted a claim. When that one was denied I dropped it until I just resubmitted in 2007. I have been told by various individuals, including my advocate from the Legion, that there is no way the VA is going to go back to 1983. I have done some in depth reading and research and it seems it revolves around this "clear and unmistakable error" (CUE).

I am not very legal savvy and I rely on my uncanny common sense. If I have been approved for PTSD now, I submitted a claim in 1983 that was denied; why would/could it not be back dated to when I originally submitted my claim. Even though I did not appeal it with in the first year I still feel that if it was denied then and I have PTSD that I should get back pay. The VA did not do anywhere near an adequate job in evaluating and assessing my situation in 1983.

I will be continuing the appeal process with my CVSO for back dating my claim. Can you provide any guidance or advice?

Reply;

You're in luck. I've just published an on-line guide that has an extensive section about CUE. Click http://jimstrickland912.com to get to the guide.

Unless there was CUE back then (very hard to prove) the law is clear that from the date of denial you have one year and only one year to file a disagreement and appeal. If you don't timely NOD, the case is then permanently closed and can't be reopened...but by CUE.

Read up and if you believe that there was a CUE committed, then you should take it to a lawyer for review. There are many fine lawyers who advertise on VA Watchdog dot Org

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Jim;

This is probably pretty pety but the ship I was stationed on during the Vietnam war was fired on by shore batteries and hit a mine outside of Da Nang, Vietnam. I have sent copies of the deck logs for these two instances to the Navy but they keep saying that the ship did not get the Combat Action Ribbon during the Vietnam war so it does not deserve the CAR. I have tried to explain that this is retroactive, but they keep saying the same thing. Are they correct that hitting a mine does not constitute earning the CAR? I have tried contacting the veterans administration and my Congressman but I get no reply. The ship will be sunk in 2010 and if she earned it I believe she should get it. If I am incorrect please tell me. Thanks for your time.

Reply;

I have no expertise in such things. I deal with VA benefits only. The VA would tell you the same thing...this is a DOD matter. I'd agree it sounds like you're correct but I think DOD will be the way you get answers.

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Jim;

As a 100% disabled vet of Korea, Vietnam and beyond, I have attempted to contact our only state rep numerous times and have NEVER been contacted. He has now [allegedly been involved in an incident].  I am trying to support a candidate running to replace [the person allegedly involved in the incident] and need to know how to acquire access to his Veteran issues voting record. Knowing that his words do not equal his actual vote I believe he is very vulnerable. Please advise me how to proceed to find the actual confirmable vote facts. Thanks and keep up your great work.

Reply;

Thank you for your service, sir. You've reminded me that I need to include a section on how to track our congressional representatives in my new A to Z Guide at http://jimstrickland912.com I hope you'll stop by there and visit often.


Try clicking these below...

http://www.congress.org/

http://projects.washingtonpost.com/congress/

http://thomas.loc.gov/home/rollcallvotes.html
 
http://en.wikipedia.org/wiki/Denny_Rehberg

http://www.sourcewatch.org/index.php?title=Denny_Rehberg

http://www.opencongress.org/people/show/400335

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