Jim Strickland's Mailbag: Volume #56 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.
09.04.08
Question:
Jim,
First of all, I really enjoy your site. I filed a claim for an increase last Aug and they are still playing games with me. I'm pretty sure if they ever decide my claim it will not be for what I want, but something less. Didn't the rules just change as for hiring lawyers to dispute claims? Can you hire lawyers at any stage of the claims process or just certain stages, or not at all? Thank you and have a GREAT day.
Answer:
Yes, rules changed in June of 2007. You may retain an attorney after you have had a denial. The attorney is hired on a contingency fee basis and will not charge you unless and until your claim is awarded.
A Special Note From Jim Strickland:
"While I was out of my office, many of you wrote to me and received my 'away message'. I've been catching up with those emails as I get back to answering your questions. Some of the emails that haven't been answered seem to have fallen through the cracks. If you wrote to me and didn't get a reply or if I haven't responded to you, please write again. I apologize for any inconvenience. As many of you know, I try to answer my mail quickly and I don't like thinking that I may have missed yours. Thanks! Jim."
Question:
Jim,
I have been diagnosed with diabetes. I'm a Vietnam veteran and I was in and out of country for TDY assignments. I delivered classified paper documents to special operations people who I'm sure were CIA. Although I wasn't stationed at a base in Vietnam, I have copies of my TDY orders.
I have been denied my service connection for diabetes by VA. They've told me that TDY orders aren't enough to prove I was there with my boots on the ground. Now what?
Another concern I have is that when I filed for my compensation, I went to the VA regional office as it isn't far from me. The VA representative I spoke to gave me a form to complete (21-526) and asked me who I wanted to represent me. I didn't understand that but he explained that I had a choice of representatives, either the DAV or the VFW. He told me quietly that I should choose the DAV as he didn't care for the VFW reps at the VARO. I signed a form giving them my power of attorney and that was that. I left the form with the VA guy and had a C & P exam and got this denial letter about 2 weeks ago.
In the year since I filed my claim, I've been contacted by DAV twice. Each time was a mailing of a solicitation to join the organization. It was my understanding that they would somehow represent me and help me with this claim.
Answer:
After you emailed me we discovered we were practically neighbors. We met for coffee and a review of your file. As it happens, you were a financial courier delivering classified documents chained to your wrist with a few guys who accompanied you. The documents were probably cash payments locked in your briefcase. The guys you delivered to were no doubt CIA. The guys who accompanied you were your bodyguards and ensured that whoever you met on the ground in Vietnam had the right key to unlock your handcuff.
You searched for records beyond the TDY orders and the National Archives and Records Administration people wrote to tell you that, "TDY orders are special orders. They are routinely disposed of after their administrative purposes have been served." You told the VA that and gave them a copy of the TDY orders as well as the letter from NARA. They still insisted that the fact you had orders for a special assignment to Vietnam and special orders to return a short time later doesn't mean you went.
You sometimes have to sit down and catch your breath after thinking of the lengths that some guy will go to so he can deny you your benefits. If you think on it too much at any given moment, you'll make yourself dizzy.
You have the orders to go, you have the orders to return, but he's going to determine you weren't there.
Just what in the HELL ever happened to; Title 38: § 3.102, Reasonable Doubt. "It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant."
I try to be as empathetic as I can to the poor guy who works at VA. I know many who work really hard to get the vet the benefits deserved. But this is the sort of bone headed decision that just begs for veterans to be pissed off all the time. There is nothing fair or equitable about this and it has irritated me to no end.
In any case, we've discovered a great picture of you at the airfield you landed at. Standing next to you are the guys who are listed on the orders with you. As it happens, two of the guys are still buddies of yours and we have them writing their Statements In Support of Claim...the "Buddy Letter". As a rule, a buddy letter is a tool I'm not very fond of. This time though, this is just too sweet.
All of the men in the picture have their boots firmly on the ground...the prerequisite for presumptive herbicide related conditions like DMII. How about that?
You wanted 10% for your DMII. That's all, just what you deserved. You didn't ask for a gold mine but they did you you a shaft.
Interestingly enough, in our delightful coffee fueled conversation, I discovered you have heart disease...diagnosed after your DMII. You've had a series of small strokes, all signs of a progressive issue with...guess what...DMII.
There'll be the ED of course and your arms and legs have already been diagnosed as having a peripheral neuropathy you thought was caused by Agent Orange and that diagnosis was ceded by VA in the denial letter. Well, it wasn't caused by AO. The AO presumptive peripheral neuropathy has a time limit. Your peripheral neuropathy is more likely than not secondary to your DMII.
You aren't able to work. The SSA has already awarded you your SSDI benefit based on the strokes caused by DMII that was caused by your boots on the ground service in Vietnam and subsequent exposure to dioxin.
You would have been happy with 20%. Now it's going to be 100%. You're guaranteed to be 5 times happier.
Yes, there's a moral to our story.
If any veteran thought he was being treated fairly from the outset, the VBA would be about 1/100 as busy as it is now. This is exactly, precisely the reason the VBA is so far behind it'll never catch up. This was one of the more glaring bits of rampant ignorance I've seen out of a VARO this week but I see it every day. Every decision has to be appealed for just these sorts of reasons. The VBA Ratings Veterans Service Officer who adjudicated this case did not follow the law. That is a fact that can't be argued. Read the above § 3.102, 'Reasonable Doubt' paragraph again if you don't understand. That is the law. The RSVR broke it.
So, it will be appealed. The appeal will take more time. It will be reviewed by a higher paid VBA employee. More benefits will be awarded costing VBA more money. Rework and rework and more rework. If you were a custom motorcycle builder and each time you completed one and gave it to the customer he had to bring it back four times for rebuilding...at your expense...how would your balance sheet look at the end of the month?
OK, the word for the day is "Appeal".
Pass it on.
(BTW, I ranted to a point I almost forgot. Your experience with the constant help and brilliant guidance you got from DAV is typical. Don't go feeling all special and important because you were singled out to be ignored. They ignore everyone. They're very busy drafting documents that agree and support the conclusions of the VBA. Like how we dummy vets don't need to use lawyers because DAV will be there to help us. Oh crap, I think my head just exploded...more on this later.)
Question:
Jim,
I have looked at the service members military and medical files and verify and proof that his injury was combat related".
My question is, "How exactly is COMBAT RELATED defined?" If a veteran was injured during hand-to-hand combat TRAINING during the Vietnam Era (1973), would that be considered towards CRSC?
I searched your website but did nto get any hits on my specific question. No hurry. Any input is greatly appreciated..God BLESS .
Answer:
You bet training is "combat related". DoD says a combat-related disability may come from:
* Actual combat (AC): i.e., Purple Heart (PH) injuries or conditions verified as happening during actual combat operations
* Simulating War (SW): i.e., Special Forces training exercises, combat confidence course or lanes training, or other training which is used to prepare for combat
* Hazardous Service (HS): i.e., aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty
* Illness or injuries incurred by Instrumentalities of War (IN): i.e., tanks, grenade simulators, military planes, and other equipment unique to the military
Hand-to-hand would fall into the SW category. Don't forget those guys with hearing and tinnitus. From actual combat (AC) to SW and HS they easily qualify and if they never got past working in the motor pool where their ears were damaged by all that noise, they'll qualify as IN. If working on a tank isn't unique to the military, I don't know what is.
I think if you get creative, almost anything is CRSC.
How did it ever come to pass that there should be an offset anyhow? You serve 20, you get injured 2 or 3 times trying to keep from getting killed in some God-forsaken country, you collect a meager retirement check, you get a little disability and they deduct that from your retirement?
If we had known then what we know now, would anyone have joined?
Question:
Jim,
Briefly could you explain to me how my va compasation is offset by my military retirement. What percentage must I receive to have full retirement and full va compasation? If the compasation is coming out of my retirement, what is the benefit?
Answer:
The compensation is offset in equal amounts. It's more complex than that but it's a start. I'm afraid that "briefly" isn't possible.
The best way for you to understand it is to learn about CDRP and CRSC.
Click here:
https://www.hrc.army.mil/site/crsc/index.html for info on both.
Click here:
for a more detailed description.
...and here:
http://usmilitary.about.com/cs/generalpay/a/conreceipt.htm for a very good explanation.
Question:
Jim,
I recently had a C & P exam for a facial scar and chondromalacia for the left knee. I was given service connected for both claims be 0% compensation. The face scar was given a length of 3 cm but no width measurement. It is over 1 cm wide. On my left knee the Doc did a range of motion. I had a range of motion to 110 degree with pain in motion. I also noticed that the decision was made without all evidence that I gave them. Should I do a board of appeal, ask for reconderation, or for a decision review officer to review the claim with my evidence that was not used and any new evidence....Thanks
Answer:
I prefer to keep it local if at all possible. The DRO process has worked well in my experience. I do hear from others that it isn't as smooth for them but I'm yet to be disappointed.
I have come to believe that your folder isn't really looked over until you are at the DRO level. At the Ratings Veterans Service Representative level, they are under a lot of pressure to meet a quota. Most RSVR's are smart and want to do a good job. But when they are told to decide 5 cases each day and each case may have a folder 6 inches thick, they're going to be forced to take shortcuts. Going for a quick denial is the shortest cut of all. Go for the DRO and if that doesn't work and you're still convinced you have a claim, ask a lawyer to look at it for you.
