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The Veterans Voice
"Fighting for Our Veterans-Supporting Our Troops"
Proudly Serving All Branches & All Eras Since 1999
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Jim Strickland 2012 Mailbag
Jim Strickland 2012 Mailbag
NOTE:  Letters in my Q&A columns are reprinted just as they come to me.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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Write Jim directly by clicking on his e-mail address
jim912@gmail.com


Temporary ratings

  Jim: Hello, I was awarded an 80% rate in April 2012 and then in September of the same year I got a letter saying even though I was rated 80% they would pay me at 100% because one of my claims was not a final decision. I would assume I have a schedule 100 rating? This is very confusing to me. My main question is how long will I stay with this temporary rating and do people on temporary 100 % normally get brought down to their initial rating often? The condition I have in question is actually not improving at all but I didn't know how all of this works...thanks for the help.

Jim's Reply:
  It sounds very much like you have a temporary 100% TDIU (Individual Unemployability) benefit. If you were rated at 80% and being paid at 100%, it's a pretty sure bet you have a TDIU 100% rating, not a schedular 100% rating.

This means you will have a "future exam", often as long as 5 years after the initial rating. Your original award letter may make mention of a future exam.
 
Veterans often keep the temporary 100% TDIU rating for years. During a future exam the examiner may then talk about whether the condition is likely to improve. If it's determined that measurable or sustained improvement is unlikely, the veteran may then be rated at permanently and totally disabled (P&T). A P&T rating may be either a 100% schedular or a 100% TDIU rating, there's very little difference.

VA Compensation: Service Connection and Unemployability (TDIU)

Hello Jim,

I have recently medically retired from the Army and have been awarded a permanent 1oo% service connected disability.

Today, I went to VA for a VocRehab counseling and was told my the counselor that based on my documentation and response to the questions that he considers me "Individual Unemployability. I asked him if this would stop my VA compensation and he said no; that this would be an additional amount I would receive. Is this correct? I have 30 days to appeal this if I feel it does me a disservice. I was hoping that I would choose one of the five tracks of the VR&E services. I am looking to maximize my benefits to adequately support my family. The VA compensation I am currently receiving (3 months now) is not enough.
Thanks for your response.

Jim's Reply:

I can't understand why you were told that. You are apparently already rated at 100% by the Schedule For Rating Disabilities, usually called a 100% schedular rating. A veteran can't hold a 100% schedular rating and a 100% TDIU (unemployability) rating simultaneously. It makes no sense to replace one with the other.

It's my experience that the VA's VocRehab program is one of the least successful and most complex programs that VA offers. In over a decade of advocacy, I can't recall any veteran who has had a positive experience with VocRehab.

  Interestingly, I just received a lengthy survey from a VA contractor asking me to grade my "recent" experience with VocRehab. It took me a minute to realize that they were speaking of my own application to VocRehab that happened about 20 years ago. I'd forgotten that I'd applied and of course I'd been denied. That tells us a lot about how well the program is run.

  Unless there are some pressing reasons to use VocRehab, I usually suggest that vets are better served by using their GI Bill benefits.

  Maximizing your compensation will be a challenge since you're already at 100%. Without knowing a great deal more about your ratings, I can't offer any help except to say that reaching ratings over and above 100% is a steep uphill climb unless you're very, very ill.

Obstructive Sleep Apnea: Is it Service Connected?

Jim: My husband was in the Army from June 1976-Feb 98. He received 70%. Then in August of the same year I told my husband something has got to be done about the snoring. I have put up with it about 20 years. He was given the sleep study test and was diagnosed with severe sleep apnea. He stopped breathing over 530 x during the night. We turned the paper work in over 2 or 3 years ago. Sent back in for an appeal. Came right back denied. I can't believe this has happened to him. When he enlisted they promised they would take care of him for the rest of his life. This is so unfair. He has had at least 3 or 4 machines and they refuse to compensate him. It is so unfair for these young guys to get compensated for everything they don't even know what it is. Back then the soldiers were not allowed to go to sick call. They had to work. Some of these soldiers these days are just getting over. Who gets 100% at age 25. They know how to play the system. So what would I have to do to help my husband about this case that keeps getting denied? Thank you.
Jim's Reply:

  The issue is whether or not the Obstructive Sleep Apnea (OSA) is service connected or not. Service connection more or less means that military service caused or contributed to a disabling condition. OSA happens to many (maybe most) of us as we get older. I use a CPAP myself and I know my OSA isn't service connected.

We do not get disability payments for diseases of aging. Arthritis, OSA, adult onset diabetes and a lot of other things are just how life works as we age.

  If he was diagnosed with OSA over one year after his ETS, there is almost no chance of service connection because he won't be able to prove that the OSA was caused by service.

We can't expect the government to care for everything that happens to us years after leaving the military. If the VA just gave the OSA benefit to everyone because they thought they deserved it, we'd all be seeking it.

VA should be providing him with his CPAP machines and supplies since he has another rated disability. Although he won't be compensated as if OSA were a disability, it shouldn't cost anything for the equipment.

  For what it's worth, I believe the 50% rating for OSA is a huge mistake. OSA simply isn't a disabling condition when a CPAP is prescribed and used as directed. Again, I have OSA and have used CPAPs for years and I have no disability from OSA at all.

  I don't know of any soldiers these days who are "just getting over". The thousands of veterans I've worked with in the last decade have been sick and deserve their benefits.
Jim



Agent Orange and Ischemic Stroke

  What recourse does a veteran have when they do obtain a nexus letter from the Chief of Vascular Surgery at the VA who states that "it is just as likely as not " that the atherosclerosis that caused the ischemic stroke was caused  by my exposure to tactical herbicides while I was stationed at Udorn RTAFB in 1973 - 1974.   

Then the VARO sends the claim to the Director of the VA C&P clinic who also states the same finding that "it is just as likely as not......" and accompanies that with a link to the IOM's 2012 study which also relates strokes to exposure to A.O. at the same level of confidence as they did for IHD and Type II diabetes (which are  both now on the presumptive list). He also indicated that the VA had conceded to my exposure.  But instead of complying with the Benefit of the Doubt rule, the VA then sent  my case to another VA C&P examiner who refuted the other two VA doctor's findings and even went as far  as to say that the director of the C&P clinic did not have the level of expertise necessary to make a decision in a case as complex as mine.  So guess whose word the VARO went with? 
Jim's Reply:
  How VA chose to apply IOM and other statistics to agent orange exposure and vascular disease has never made much sense.
 
VA cedes that exposure to dioxin is connected to IHD (Ischemic Heart Disease...the equivalent of coronary artery disease) but not to other vascular diseases. Arterial vascular disease (atherosclerosis, hardening of the arteries) is a systemic disease of all arteries.
 
Although the disease may present in one bodily region (the heart, the legs, the arteries leading to the brain) it will be present in other parts of the body as well.
 
That in 2010 IHD became a service connected and agent orange presumptive condition at the direction of Secretary Shinseki surprised many. VA relied on the report: Veterans and Agent Orange: Update 2008 to make the ruling.

The claims made after the IHD nexus was approved caused huge delays and budget overruns at VA for years to follow.
 
Although the IOM 2012 report may have provided more evidence to support ischemic stroke to agent orange, there hasn't been any legislative activity to support that and VA won't be using that to adjudicate claims like yours.

The statements you obtained, "it is just as likely as not" isn't very effective. It is interpreted to mean that there is maybe a 50/50 chance that there is a service connection. The statement that usually prevails is, "It is more likely than not..." which indicates that there is a preponderance of expert opinion that favors the claimant.

  I generally recommend that the veteran obtain an IMO (Independent Medical Opinion) from a civilian expert physician to appeal a claim like yours.
 
The civilian IMO physician is probably going to use recent data to support that it is more likely than not that the ischemic stroke was caused or contributed to by agent orange exposure. The civilian IMO expert's opinion is very hard for VA to refute.

Finally...VA never uses the benefit of the doubt rule. While the rule is there, it isn't a hard science as to when or how it should be used.
 
If forced to answer whether or not you were given the benefit of the doubt in this decision, I'm confident VA would say that you were. They would argue that you were given every opportunity to prove your alleged service connection and that you failed to do so. It's a matter of semantics and perspective, and we never rely on VA to give the benefit of the doubt.
  Your best hope is an appeal guided by a veterans law attorney along with an IMO.
Jim

Flat feet and back problems

Jim: I enlisted in Jun 74 and was honorably discharged in 10/81. I currently have a 10% disability for the ringing in my ears. The ringing has been there since, but did not file a claim until 6/14. When I was getting my medical records together the DAV worker noticed that at my ETS medical review revealed "flat feet" was noted. A claim was filed. Approximately 1 1/2 years ago I underwent a decompression lumber laminectomy as I was previously 6'2" and was then just 6'1". My legs were in terrible shape. I was unable to stand or walk. After surgery my legs are very weak and my balance isn't very good, when going from a sitting to standing position. My question is did the flat feet condition have any relationship to my back surgery?
Reply: There probably isn't any relationship between flat feet and your back problems. If you would like to pursue such a claim, your first step will be to obtain an Independent medical Opinion for an expert physician. If the expert physician agrees that it is more likely than not that there is a cause and effect relationship between your feet and your back, you may then have a well grounded claim.Otherwise...I think it's a reach.
Jim


Disability Ratings for IHD/CAD
Jim:  I am a Vietnam Blue Water Veteran. I was just awarded 30% disability for my IHD/CAD. Over the years I've had 6 heart attacks, I have 16 stents and a triple bypass. Should I appeal the award?

Jim's Reply:
First up; You're fortunate as a blue water vet to be service connected for your IHD. The IHD rating isn't presumptive for blue water vets. You must have had a strong nexus statement or evidence of going on shore.
  In any case, the VA doesn't rate IHD by the number of stent procedures, surgeries or how many bypass grafts you may have had. VA looks at the function of your left ventricle (LV).
  The LV is the main pumping chamber of your heart. The efficiency of the LV is measured by how much blood it can pump during a heartbeat. The norm is right around 50% to 55% or so. The measurement is called the Left Ventirular Ejection Fraction or LVEF.
  The LVEF is usually measured by echocardiogram, nuclear medicine studies or it may be estimated by METS. (MET is defined as the amount of oxygen consumed while sitting at rest and is equal to 3.5 ml O2 per kg body weightx min. The MET concept represents a simple, practical, and easily understood procedure for expressing the energy cost of physical activities as a multiple of the resting metabolic rate.)
  So no matter how many things may have happened to your heart over time, if it is within normal limits at around 50%, you'll get a 0% or 10% rating. The Schedule For Rating Disabilities tells us:
7005 Arteriosclerotic heart disease (Coronary artery disease):
  With documented coronary artery disease resulting in: Chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventriculardysfunction with an ejection fraction of less than 30 percent...100%
  More than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent...60%
  Workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray...30%
  Workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required...10%
  The good news is that your heart isn't sick enough to rate at 60% or 100%. The bad news is that for all you've been through, your rating may be accurate at 30%. If you believe that your rating should be higher, you should appeal.

Reduction in Rating for Prostate Cancer
Jim: I have had prostate cancer since May of 2011. I have been receiving 100% s/c disability benefits since June of that year. I have used watchful waiting/active surveillance in responding to my condition. I have been 0% s/c for erectile dysfunction since 2002. Last August, the DVA proposed reducing my s/c disability for prostate cancer to a rating of 10% seemingly based on difficulties urinating. They stated in the Rating Decision that they based their decision upon an improvement in my condition which was not fully explained. This also occurred even though the C and P physician/examiner indicated that the cancer remains active. I have not undergone any treatment for this condition, and I have not had my prostate removed. Is the DVA basing its proposed decision on the residuals of some sort of treatment which they mistaken believed I underwent last year ?
Jim's Reply: No, DVA is not basing its proposed decision on the residuals of some sort of treatment they believe you received. You are eligible for the 100% rating as long as your cancer is active. The VA makes this error way too often. I see it about once each week. The Schedule For Rating Disabilities doesn't make any allowances for active surveillance of prostate cancer. When a veteran chooses "watchful waiting" the VA often gets confused. Their standard is the usual diagnosis, treatment (surgery, radiation, chemo) and a cure or remission with many residuals of treatment. If you have received a notice of a proposal to lower your benefit, you must formally appeal as soon as you can. That isn't difficult, you simply fill out a form, tell VA that your cancer is active and that you've not received any treatment. That usually takes care of the problem. Go online to this form:  http://www.vba.va.gov/pubs/forms/VBA-21-0958-ARE.pdf and fax it to this number 844-822-5246.
  If you have erectile dysfunction, you should be rated at 10%...you can seek an increase for that as you appeal the proposal.
How to respond to lowering of disability rating
Jim: I am going crazy right now and I can’t even stop thinking about  how the VA is starting to bully me by lowering my right hip chronic strain rating from 40% to 10%. What is your kindly advice?
Jim's Reply: If a decision was made to lower a rating and you disagree, the option is a formal appeal. You can tell VA in plain language why you disagree and what you believe your rating should be. Be sure to look up your disabling condition in The Schedule so you know how and why VA arrives at a rating. Search online:
http://www.benefits.va.gov/warms/bookc.asp 
Find this form to disagree http://www.vba.va.gov/pubs/forms/VBA-21-0958-ARE.pdf
Fax the form in here:  844-822-5246.

Depression Secondary to Chronic Pain
Hello, I am currently rated at 40 percent, due to arthritis in my knees, neck and back. A few years ago, I was told that the depression I have been suffering from is made worse or could be a result of the chronic pain and reduced mobility from the disability that I have. I filed a claim for that and it was denied. What can I say, I was depressed. I did not file an appeal. Is there any way I can try again to get the depression I have included?
Jim's Reply:
Yes, you can file a new claim most any time you'd like. You'll need some new evidence to support your claim that you suffer depression secondary to chronic pain.
  Your new evidence should be in the form of an Independent Medical Opinion (IMO). You're going to need the IMO from a civilian psychiatrist or psychologist. That person will have to review your medical records and then come up with an expert opinion that supports your claim. You're welcome to try getting an IMO like this from your VA care people, but I'm not confident you'll get that sort of support.
  Unless you have an expert IMO that clearly states that it is more likely than not that your depression is secondary to your service connected chronic pain condition, I'd predict that the outcome would be another denial.

Denied Disability Claim for Sleep Apnea
Jim, I retired in 2011 with 22 active duty yrs of service. I then applied for VA disability and received a 90% rating. They denied my Sleep Apnea when I originally applied for disability on the grounds that there was no complaints or history of sleep apnea in my military records. I then sent them records from my primary care Doctor showing previous complaints during my active duty. They sent me a denial saying I do have sleep apnea but still didn't have any links to my military duty. I have now filed a (NOD) notice of disagreement. I added a statement from myself stating I joined the military without sleep apnea, I had and showed complaints of sleep while I was in the military after coming back from an Iraqi Freedom tour. I added a copy of the positive results from a sleep apnea study from the hospital. I also included a witness Statement from my Primary Care Doctor who treated me stating the dates of my previous complaints of trouble sleeping. It's been almost 5 yrs fighting with the VA on this claim and I'm not sure if I should hire a lawyer with all the evidence I got and let a judge decide. What do you suggest? Thank You.
Jim's Reply:
The VA is scrutinizing Obstructive Sleep Apnea (OSA) claims very carefully these days. They deny most claims. I suppose the reason is obvious; many veterans apply because of the relatively high 50% rating. To properly comment on your situation I'd have to know the date (month/year) you were discharged. Then I'd need to know the date of the first diagnosis of OSA that appears in any medical record. That you joined the military w/o OSA has no bearing on the claim. All of us were presumed healthy and fit to serve then. What will matter most is whether or not your service medical record shows any mention of OSA and the date of the diagnosis of OSA once you became a veteran.

Caregiver Benefits: Did move from one state to another cause a change?
  I recently moved from Louisiana to Arkansas when I spoke to my VA reps I was told nothing would change. I am 100% T& P and unemployable. It is mainly based off my PTSD. My wife is my caregiver through the caregiver program and receives a stipend. The Arkansas VA says I should not be in the program. I really don't care about the stipend check. They have told me the caregiver program does not affect my other benefits.  They are federal. I am worried they are going to change my disability rating. Do I need to worry? Or is my T&P rating really separated from the caregiver program? I was also wondering if my wife will receive any benefits if I was to pass away from natural causes? I have read where she is after 10 years but was told by the WW2 rep that it has to be combat related. I have been permanently & totally disabled at 100% since 2005.
Jim' s Reply:
I don't know who those "VA reps" are but they got it sort of correct.
  Your 100% P & T benefit won't change because of a move. The 100% rate won't have anything to do with the caregiver program. Most caregiver programs will re-evaluate the beneficiary if the circumstances change.That sounds like what happened to you with the move.
If you were to pass away, she would be eligible for the DIC benefit.
2015 Mailbag