Jim Strickland's Mailbag: Volume #59 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.
09.16.08
Question:
Jim,
You mentioned on the board that C&P exams are not in the Vets files. I'm sorry to correct you but the last two C&P exams have been in my files. After each one I went in 1 week later and asked to have a copy and was given my copies. Did someone make a mistake? I don't know and really don't care as long as I have the reports to counter any false statements.
Answer:
Steve is VA Watchdog reader who doesn't miss much. I depend on all of our readers to be quick to point out any errors I may make.
Yes Steve, someone did make a mistake. I did.
In this case I advised you that your C & P exams weren't a part of your medical record in VistA and that you would need to query the VA Regional Office to get a copy of yours. I was relying on my personal experiences of few years ago. As it happens, I was correct...if this were still 2002. Times change and a quick search pointed it out to me that in this case, I hadn't changed with the times.
I recalled that there were changes made to VA software making it easier for the VARO to access your medical records that are stored in VistA. It seems reasonable that if that's true, the C & P exam may be made a file in VistA and not just a paper file as I remembered it.
I went to the VHA Software Document Library: http://www.va.gov/vdl/
Then to the Financial Administrative section: http://www.va.gov/vdl/section.asp?secid=3
There it is, just what I was looking for Compensation Pension Records Interchange (CAPRI) http://www.va.gov/vdl/application.asp?appid=133
Finally, into the user manual
An improvement had been made, just as I expected.
"The Compensation and Pension Record Interchange (CAPRI) project is an information technology initiative to improve service to disabled veterans by promoting efficient communications between the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA). Previous attempts to automate this process were hindered by the "roll and scroll" nature of the VHA computer interface of the Automated Medical Information Exchange (AMIE) II.
CAPRI also provides innovative improvements for the medical centers by integrating highly detailed Compensation and Pension Rating examination results into the veterans' medical records. Previously, these reports were not retained online in medical center computer systems but were archived onto paper."
As near as I can determine, the upgrade came about around 2005. My invitation to the coming out party must have been lost in the mail as nobody from VHA/VBA asked me if this would be OK. That happens a lot.
So...I stand corrected by our brother Steve. As always, there isn't a lot that makes me happier than when one of you can catch me in an error. That tells me that you're reading this stuff, you're paying close attention and you care enough to write. It doesn't get much better than that.
Thanks Steve.
My apologies if this slip caused anyone any inconvenience.
Question:
Dear Jim,
The VA in 2005 notified me of outstanding warrant dated 1985, I went back before a judge he vacated the warrant and proceeded to Nullified and sealed the case with the following statues to the date before the arrest and prosecution dated 1984. The wrote to the Congressmen that they might remove the warrant if I unsealed the records for them.
Criminal Procedure Law CPL 160.50 & CPL 160.60
Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of section 160.50 of this chapter, _or by a youthful offender adjudication, as defined in section 720.35 of this chapter, or by a conviction for a traffic infraction or violation sealed pursuant to section 160.55 of the criminal procedure law, _the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he _or she _occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so adjudicated to pursue or engage in any lawful activity, occupation profession or calling. *_Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution_*
(1) restoring the individual to the legal status he or she had before the arrest occurred. (Section 160.60 accomplishes this by providing that, upon termination of a criminal action in an individual’s favor, “the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.”); and
(2) allowing the individual to respond to inquiries eliciting information about the sealed case without being forced to disclose – *_or being subjected to legal penalty for not disclosing – the information that has been sealed by law. (Section § 160.60 accomplishes this by providing that,_* *_“Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or conviction._*
The VA has offset the total 683.00 with no hearing held for over two and years, this include 145.00 from my Social Security which accepted the certificate under the same public law.
So you tell me what's my next move?
Answer:
I've replied to you a couple of time since the original email you sent to me. I've learned that your issue is based in what is called the Fugitive Felon rule, sometimes called the Fleeing Felon law.
In brief, this is a rule that says that the VA can not pay you your benefits while there is a warrant for your arrest outstanding. The name of the rule is misleading. The veteran doesn't have to be either a fugitive or fleeing or even know that there's a warrant issued, the warrant itself makes you a fugitive in strict VA language.
The VA will suspend your benefits from the date of the warrant until such time as the warrant is satisfied. That usually means that you're arrested or you appear to satisfy the terms of the warrant or you're incarcerated. To the VA it makes no difference if the warrant is justified. If a warrant is issued and you don't satisfy it immediately, even when charges are dropped or you appear in court to pay a small fine or any other remedy, the time that the warrant was in effect is all that counts for the purposes of paying your benefits.
For example, if you were given a ticket for the simple possession of a small amount of drugs and given a court date to appear before a judge to take your punishment, probably a fine, and you didn't show up, a warrant is likely to have been issued. The sheriff who is responsible for delivering these documents may have delivered it to the wrong address and since you didn't see it, you figured the issue was long forgotten.
Then two years later, you get a notice from your VA that they are terminating your benefits as you are a fugitive felon. You are offered 30 days to request a hearing, 60 days to reply and at the end of that 60 days you will not get your regular deposit of your benefits money. Panicking, you call the VA toll free number and in 3 minutes or less, they have misinformed you as to what you should do. You may call a lawyer or two but most criminal lawyers have no idea of what to do with the VA and many VA certified lawyers don't know about the fugitive felon rule.
So, you remember that old ticket and call the police department. They tell you to come on down where you are promptly arrested, booked and jailed for the night. Eventually you get in front of a judge who slaps your wrist, gives you time served and community service as your sentence.
"Thank God that's over." you think to yourself. You call the VA again to find out that they still plan to reduce your benefit. You get notice telling you to send in proof that the warrant was satisfied and that's the date that your benefits will be reinstated. Then you're informed that the "overpayment", now known as your "debt" is going to be "recouped" out of your future payments.
"I didn't know about the warrant!" you cry to the VA, "How can you punish me so harshly when all the judge did was slap my wrist? YOU CAN'T DO THIS TO ME!"
But the VA can do that to you and they do it efficiently and regularly.
Your legal problems are of concern to VA. The VA is part of a vast network of federal agencies who all communicate, for better or worse, with each other. It may be slow but eventually a notice of that warrant lands on the desk of someone at VA and the dominoes begin falling.
As with most things VA, the first notification tells you exactly what you must do if you don't want this action to occur. As always, VA is concerned with your "timely" actions. You have 30 days from the date of the letter to write to them (not call them) and notify them that you want no action to be taken until you've had a personal hearing. Your letter to the VARO that notified you must be precise in stating that you want a hearing. That's all it needs to say. It must be delivered with certified mail, return receipt requested.
That little letter gives you time to think. It interrupts the flow of the process and the VA hates it when you do it so it must be the right thing to do.
Then you take care of your issues with the court. You plead with that judge that you recognize the error of your ways and you ask that he null, void, vacate and seal the original warrant back to the date it was issued. You make it so it never existed. To satisfy the warrant isn't enough, it has to disappear entirely. The judge can do that, but you should have a lawyer at your side to help you with that one.
Then you go to your hearing and you tell VA that the warrant is gone. If the judge didn't respond to your request, you have a problem. You explain to the VA hearing officer why you believe you should not see a reduction. Later, you'll get the decision. If favorable, great. If not, you timely file a Notice of Disagreement and ask for consideration of a waiver of your debt. That is given over to a Committee on Waivers and they will consider the hardship that you may be under if you are required to repay the debt.
Let's go back to the reader's letter above. He wrote to me over two years after his reduction was confirmed. Money has been withdrawn from his benefit since then. He did none of the things VA told him to do. In later correspondence he told me that he asked for a hearing but VA messed it all up. In their final notice, VA says they were there waiting for him and he didn't show up. You know how that one will work out.
In our last communication I told him that he should write a nice letter asking for consideration of a waiver of any remaining debt by the Committee on Waivers. He replied that I had it all wrong and that he and his friend had been studying the relevant law and cited a bunch of cases to me.
I get a lot of that. People write to me and ask, "Jim, what should I do?" As you know, I don't give legal advice, I tell readers what I would do were I in their shoes in that situation. Those same folks write back to me, usually copying and pasting 5000 or so words of legalese and then tell me how wrong I am. Some are even a bit angry because I don't agree with them. They write to me in hopes I'll support some inane approach to gaming the system and stepping outside of the rules.
Here's the bottom line. I'm not a lawyer. In the practice of law, I'm not on the playing field. I'm pretty good at figuring out the practical side of the rules and regulations but my depth of knowledge of the law isn't as good as that lawyer who graduated at the bottom of his class with the lowest BAR test score in the history of the state. The most clueless lawyer in town has a degree in law and a license. I don't.
If you don't have a law license, you're much better off to leave the law to the professionals. It's much the same as doctoring, plumbing, electrical work or airplane flying. At first glance it may look pretty easy. But when you place one stitch in the wrong place or pull back on the controls at 1500 feet during your landing approach when you should have pushed...or get a simple word in the wrong place in a legal brief, you're pretty much what we call "screwed".
This reader is going to ignore me and that's OK. He's one of many who will tell me I'm wrong and I have no doubt that I'm often wrong. My readers are pretty quick to point out mistakes and take no small delight in doing it.
However...in this as in so many instances, I'll point out that I'll have my compensation benefits deposited just like clockwork next month, just as I did last month. I play the game by the rules. The VA makes the rules, right or wrong. Those readers who point out how wrong I am as their benefits disappear and they feel the handcuffs being tightened, well...OK, I wish you the best of luck as you make up your own way of dealing with VA.
Question:
Jim
I just received a letter from the VA informing me they are going to re-evaluate my PTSD disability (I receive 100%). Can you enlighten me on this procedure? They say it will be done at a VA medical facility. I'm taking a copy of the letter to my shrink's secretary tomorrow. I just had my appointment with him 2-weeks ago. I wouldn't think he would order it, would he?
Answer:
C & P exams for rating PTSD are best handled by being straight up truthful. Just remember two things...the doc has very little to do with your rating. Examiners don't set ratings, Ratings Veterans Service Representatives (RSVR) do that. Also remember that is is likely that soon after your exam you'll get the letter of "proposal to reduce" and they'll want to take you to 60% or lower.
Don't panic. Just let me know and we'll walk through what you'll have to do to keep your 100%. This is happening a lot...the budget you know. Do your C & P and get back with me when you get the next letter after.
Question:
Jim,
You were saying that all the Regional VA's are not together on what percentage compensation they give. Is that due to regional attitudes toward veteran's? I know that my Midwest area is very patriotic and caring about the vet's.
Answer:
There are regional differences at VA just as there are in everything. All VA's operate under the same rules but for some reason, leadership at the RO level, whatever, some just come out different. Both GAO and OIG have studied the issue with no real answers being given.
It also depends on the veteran. You're writing to me from Ohio. I hear as many or more complaints about Ohio as I ever have about any other and Ohio ranks at the bottom of the list in paying compensation. I've written numerous articles about Ohio...they're in the archives of my work.
You believe that your state is very caring about vets and others in your state would point out that if you moved elsewhere your compensation would likely be higher.
