Jim Strickland's Mailbag: Volume #05 for 2008
NOTE: Letters in my mailbag 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.
02.12.08
Question:
Jim,
I just started to put together my initial VA compensation claim. I was exposed to TCE/PCE (trichloroethylene/perchloroethylene) at my former duty station. I have stage 3 bladder cancer, a history of TIAs, hypertension, elevated prolactin, and BPH. None of these illnesses are documented in my service records and all occurred years after separation form the Marines. Except for the elevated prolactin, all of the other illnesses can be linked to exposure to TCE in the water. I understand the need for nexus and will ask for a medical opinion from my doctors. I have no family history of bladder cancer going back several generations, but I do have a family history of hypertension and stroke. I’m unsure of whether I should file a claim for the urinary conditions and forget about the TIAs and hypertension (family history). Can you advise?
Answer:
You have a very steep hill to climb. The TCE/PCE issue is nationwide and in many communities.
To prevail in a filing of a disability claim at the VA one must prove, to a high degree of certainty, that the condition(s) were caused by or aggravated by military service and that the conditions are disabling to a degree that they are likely to interfere with gainful employment. Simply having served in the past and then later in life developing a medical condition is not enough to win a monetary benefits award.
To my knowledge, there is no accepted direct causative link between any cancer and the TCE/PCE contamination. To prevail in a claim, you would be required to submit scientific evidence from expert witnesses that directly linked your condition to those chemicals. The witness would have to certify that to his/her knowledge and belief, knowing that you were exposed to carcinogenic chemicals, that it is more likely than not that your condition was directly caused by said exposure.
Even before you submitted that evidence, you'd have to prove that you were in fact exposed, the period of time you were exposed, the route of exposure and the precise amount of exposure. Having been stationed in an area that is known to have a ground water contaminant problem isn't always enough to presume exposure.
I'm personally aware of only one kidney or bladder cancer case that won a settlement and that was connected to Vietnam service and Agent Orange. A prominent expert physician wrote a very good nexus letter that swayed the minds of the Veterans Court and that finally won the day. That case was years in the system before it was resolved. The other conditions you mention...hypertension and BPH and elevated prolactin and TIA's are not likely to be accepted as connected to exposure to those contaminants.
Hypertension and BPH are each part of the normal process of aging. Almost every American male will develop each whether or not he has served in the military. If the hypertension is controlled by medication, even were it to be service connected, it would be rated as 0% (zero percent) and not compensated. Hypertension is not often seen as disabling.
Benign Prostatic Hypertrophy (BPH) probably would not be found as a disability as it is not disabling. The word "benign" is indicative of a condition that is not harmful to you.
Elevated prolactin is an interesting finding, again not disabling and noted as a part of the aging process in many males. Just having a condition is not the same as having a disabling condition. This is particularly true in conditions that are a normal and usual part of aging.
The TIA's are worrisome as precursors to a more serious brain event but are often viewed as another part of aging and usually connected to untreated hypertension, hypercholesterolemia, obesity and a history of tobacco abuse. If you ever used tobacco and if you do not have a documented record of hypertension or hypercholesterolemia in your active military service, it's very unlikely that TIA's would be found as service connected.
Unless the Transient Ischemic Attack (TIA) left you with a residual defect that would interfere with gainful employment, simply having had a TIA would probably not be adjudicated as disabling. People recover completely from a TIA event, thus the word "transient". If there is no residual disability, there will not be any disability compensation. If a person didn't recover completely from a TIA, the event is no longer a TIA, it is recorded as a stroke.
Finally, you summed it up when you wrote; "None of these illnesses are documented in my service records and all occurred years after separation form the Marines."
In my opinion, it is highly unlikely that you have cause to file for a service connection for VA disability compensation for any of your stated conditions.
Question:
Jim,
It was nice to read that the U.S. Senate worked to get a tax rebate to include disabled Veterans.
I am wondering what the Senate’s idea of a disabled Veteran is. Is a Veteran below 100% considered disabled and will be getting a tax rebate. The elderly on Social Security will be getting a tax rebate and I am happy for them. I am wondering what the Senate’s idea of elderly is, 60, 65, 70, etc?
Is a Veteran like me who is rated at 40% by the VA eligible for the tax rebate? Is a person like me who is drawing SSD and is a young 61 eligible for the tax rebate? Maybe a Veteran who is 40% by the VA and is drawing SSD at the age of 61 will get a tax rebate, what do you think?
Is a Veteran who is receiving a Non Service Connected Pension (NSCP) eligible to receive the tax rebate? If so, does that Veteran realize that the VA will take back the amount of the tax rebate because the Veteran has income besides the NSCP? Unless the tax rebate is an exception to the rule.
I was receiving a NSCP when I got 10% for my hearing. The 10% went back for like 6 months. So I got the back pay and the VA divided that amount by 12 and took the money out of my monthly NSCP payments. But then again is a Veteran who is receiving NSCP considered a disabled Vet?
Now if a Veteran is considered service connected of any percent and receiving Social Security or SSD will that Veteran receive two tax rebates? That should not be a problem as those making over $75,000 will receive some sort of tax rebate. Now if a Veteran is 100% service connected and still able to work and is earning $75,001 will that Veteran receive a tax rebate(s) and then what amount? I really, really, really enjoy reading you column.
Answer:
To my thinking, this is more of the usual for Veterans; it's far too little, way too late. A $300.00 rebate is spit in an ocean. This is pure, unadulterated politics at its worst and any veteran who says "Thanks" is beyond help. I've had a couple of Vets tell me what a great thing the travel pay raise was and how we should be ever so grateful to our superiors who bestowed this gift upon us. It's sad to see that happen.
If a politician wants to show gratitude to Veterans, a good place to begin would be to fix the VBA so it consistently operates by its own laws. The VHA was transformed from a national
disgrace to a health care system that provides much of America's best health care at a cost below that of any other system. The Secretary of the Department of Veterans Affairs should make history by remodeling the VBA to meet a similar standard of quality and service. Anything less will not receive my applause or approval.
Question:
Jim,
I was awarded 10% for Tinnitus in 2002 due to acoustic trauma, but denied the claim for hearing loss said no acoustic trauma for hearing loss. the VSO at time told me if my hearing got worse to let him know and he would refile the claim, he is no longer with the DAV. I don't if I should refile or if I can. the DAV dosen't return my calls. Thank you.
Answer:
We at VAWatchdog are fortunate to have a friend who is an expert on hearing issues. In keeping with our commitment to provide our Veteran readers with the best services available,
I've gotten in the habit of forwarding requests about hearing to him as I believe he will have a lot better answer than I will. This link will introduce you to Ed Ball.
I'm confident that Ed will be able to advise you.
Question:
Jim,
We're working on preparing for our DRO hearing on the 19th. We called our DAV VSO to give them a heads up that we would be coming to a hearing. (This is about a Carcinoma secondary to Agent Orange, a "reconsideration of the case".) The DAV VSO talked about it a little bit he told us that we were just going to lose anyway, so why bother driving the 4 hours to get there? That just makes me mad, I thought I should tell you.
Answer:
I'm familiar with your case and I'm aware that you have an excellent nexus letter from a prominent physician that is clear that the cancer is more likely than not caused by exposure to Agent Orange. Your experience with DAV is not at all unusual. I'm sorry to report that I receive many complaints like yours each week. You're well prepared to proceed and you should. Even if you're denied at this hearing, you've laid very good groundwork for an appeal to a higher authority by a qualified lawyer.
