Jim Strickland's Mailbag: Volume #57 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.
09.09.08
Question:
Jim,
I just recently(one day) received my paperwork back from VA which they had forever checking and checking it twice on the benefits which I had filed for. The first one of course was PTSD. I was diagnosed at the VA Hospital along with Diabetes Mellitus Type II. None of this was believed and I was DENIED ON ALL COUNTS except for HEADACHES which they rated at 0 percent. What is that,another way to put the screws on a Veteran. I am a Vietnam Veteran and they were talking about the Combat Infantrymans Badge which I received and they acted as though I was Never in Vietnam. I still have not received any info.on the Agent Orange testing which they performed so brilliantly on me,,for what. I can give them all kinds of Stressors if they need to help them decide anything which would benefit me in the slightest. This VA thing is a big JOKE, No wonder a lot of Veterans don’t waste their time with the process It sounds to me like they forgot to ask for the paperwork from the VA Hospital or they do not believe their own Doctors. Well this disgruntled Veteran is done. I am going to fire off a letter to the Congressman, because something is STILL WRONG WITH THE VA. I believe there were 7-items which I had applied for and because I was denied on the first two, they all were. You can’t have one without the other. WHERE DO I GO FROM HERE?
Answer:
Don't bother your Congressman. Chill out, calm down...this is typical. Everybody is getting denied in the face of the most obvious evidence. You've just reached the point in your claim where you appeal with a lawyer's help. I've referred you to an attorney and he'll take your claim from here.
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 had no help with dav vfw how do you file 21-526? I have nurophty in my feet and ptsd
Answer:
It couldn't be easier! Are you pretty well able to use your computer? If you are, you're set.
Let's begin by having you click here: http://www.vba.va.gov/bln/21/Topics/claims.htm
and take a few minutes to read that page. OK...good, now you understand the process a bit more. Let's get to work.
Click here:
Now print the form. Follow the instructions carefully and fill it in.
Now go here:
and determine the address of the VA Regional Office for your territory.
Put your completed form in an envelope. Make sure you signed and dated it and keep a copy for yourself.
Now...this part is important so don't deviate here.
Mail it using Certified Mail and Return Receipt Requested. Don't fax it or hand deliver it or FedEx it, do the Certified Mail. Any other communication you'll have should be done that same way. It goes to the VARO and the process is under way.
Question:
Jim,
one last question about hearing compensation.
Stopped in at the my VA med center today and got a copy of my hearing test and doctors opinion to the regional VA on her findings. She stated that I do have severe hearing loss and tinnitus and that it could have been form combat sounds, however, because I did not complain about it after military service she does not feel it is service connected. So question is will the claim officer disallow my claim because I did not notice it or report it after discharge in 1967? Or is this something that can take time to develop.
Answer:
I don't understand why providers say such things. Most providers at VA Medical Centers don't have any real clue about the disability compensation process.
If you were in combat or had other "acoustic trauma" as a young man, it's likely that it wasn't very apparent then. As you aged it got worse. That is a typical path for hearing loss and is seen all the time.
There is no time limit for filing. While it can make a favorable difference if there is documentation in the Service Medical Record or within one year of discharge, you can file later in life.
However, if you are denied, don't sweat it. Return here to learn about the appeals process. Today an appeal of a flawed decision is just a part of the process and isn't a major obstacle.
Question:
Jim,
can I requested a reopened claim for temporary 100% rating during the period of convalescence for SC and if so, what are the procedures for reopened claim?
History: I didn't complete my appeal by submitting VA F 9 in which my appeal period has expired.
inquiry: Filed appeals through DRO dated 01/22/07: however; DRO overlooked surgeon physician's statement specifying outpatient treatment time for temporary 100% rating during the period of convalescence for SC. - at VA regional office in my state;
Gulf Veteran
Answer:
The answer is "yes", you may ask to reopen the case and keep the original date of filing. About all you need to do is to write a letter to the VARO stating that you wish to reopen the case and why. Drop that in the mail using certified mail, return receipt requested and they'll respond.
Unfortunately, that's the easy part. It doesn't mean that they'll allow it.
If you've been denied up through the DRO process your claim has been given a pretty good look. I use the DRO process often and I haven't had any issues such as an overlooked document. As a rule, the temporary 100% ratings are pretty specific and are only awarded for that specific period of time unless there is compelling evidence otherwise. Most often, at the end of that period of time there is a repeat C & P exam or the medical record is reviewed to determine whether the patient should be continued at 100%.
A statement by a physician is not an absolute at the VA, physicians only give input, decisions are made at the VARO. The Ratings Veterans Service Representative (RSVR) may glance at it and decide it doesn't have enough weight to affect the decision to reduce the rating.
That you didn't timely file a form 9 is given a lot of weight. VA takes timeliness very seriously...yours, not their own.
Your option seems to be that if you are convinced that you truly have an issue that is worthy of the effort, you should proceed to ask for reconsideration. If that is denied, it's time to lawyer up. At this point, you really can't retain a lawyer until you have the next denial.
If and when that happens, there are many fine attorneys advertising on VA Watchdog.
Question:
Jim,
i recently got a rating for copd at 30 percent,not knowing that i could claim for sleep apnia as it can aggravate the copd condition,do i need a nexus to establish that the presence of sleep apnia in connection with copd should be considered as separate and rated separately?.What im having a hard time understanding is that i have three sleep studies all stating and documented in my va medical records.its there(obstructive sleep apnia),theres no doubt,but my service rep at american leigion is telling me i should get a nexus from a doc since theres nothing in my medical records from the military service that i ever had sleep apnia while on active duty.,on one hand im thinking im hearing that my sleep apnia should be rated as secondary to the copd/emphasema.the only thing a nexus will do is establish that i had it in the navy which theres no doc i know on the planet that will make that statement.(do you know one)the other belief i have is that i see no reason to put alot of energy to get a nexus from a doc for the sleep apnia being secondary because its already well established .(i think i might also be misguided.)i(im lost) can you provide any guidance?????
Answer:
I hope I can shed a little light on a complex question.
What you're trying to do is have your sleep apnea rated as service connected secondary to the already SC COPD.
Let's discuss how these things work by using another condition that may be easier to understand.
Adult onset diabetes (DMII) is a common problem among vets and civilians. As we age our bodies don't produce or utilize out natural insulin as well as when we were younger. In the veteran population, it's recognized that exposure to Agent Orange statistically increases the chances that one will develop DMII. DMII is on the "presumptive list" of conditions that are rated as service connected for most Vietnam veterans.
DMII is well known to cause or contribute to other conditions. This is so well documented that as soon as you're diagnosed with DMII you'll probably get a talk about the issues associated with it if you don't control it. The first thing you'll hear of is how DMII contributes to vascular (blood vessel) disease and can lead to heart attack, stroke, peripheral artery disease and erectile dysfunction.
If you are diagnosed with DMII and subsequently develop coronary artery (heart) disease, you may file the heart condition as being service connected secondary to the DMII. One thing connects to the other...there is a clinical nexus.
You have a diagnosis of Chronic Obstructive Pulmonary Disease or COPD. That means you have difficulty breathing due to damage that was caused to your lungs at some time. That you have a rating of 30% for that means that it is ceded by the VA to have been caused or aggravated by your military service.
Now you need to prove that the sleep apnea is a separate condition caused or aggravated by the COPD. A letter from a physician would be a big help. That letter would have to state very clearly that in the doctor's opinion, having examined your medical records, he or she believes it is more likely than not that your sleep apnea is caused by or aggravated by your COPD.
That seems a reasonable assumption. The next thing to do is to search the medical literature to see if anything is there to support that. On the Google search engine when we use the search words <sleep apnea COPD> we get over 400,000 hits.
We first read, "Sleep is the period of greatest physiologic disturbance in chronic obstructive pulmonary disease (COPD) and the time of greatest danger to these individuals." But this article doesn't conclude that any relationship exists.
http://ajrccm.atsjournals.org/cgi/content/full/167/1/3
In another article the author says, "In conclusion, COPD without daytime hypoxemia was not a risk factor for sleep apnea or nocturnal hypoventilation in this study."
A third article tells us that the health risks for patients who have both conditions are significantly higher than those who don't but it doesn't conclude that the 2 conditions are related or causative.
The results of the search aren't encouraging to support your claim. That doesn't necessarily mean that you shouldn't proceed to file but it does mean that a nexus letter from a physician is likely to be required to win the award. You should speak to your physician about whether or not he or she would consider such a statement and go from there.
