Volume 60

Jim Strickland's Mailbag: Volume #60 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.

09.18.08

Question:

Jim,

First let me say that thank you for what you do and I pray the Lord blesses you abundantly for all the help that you've been for fellow veterans to get what they rightfully deserve. I have a question about diagnosis of arthritis. While on active duty I began to have pains in both shoulders after PT. I always had plenty of Motrin in the medicine cabinet from various bumps and bruises and it worked well to control the pain. I thought I was always sore simply from working out hard...I never once considered arthritis. However, I began to have difficulty laying on my sides in bed and eventually I bought an extra soft mattress which relieved my pain.

I told a med tech during an annual Preventative Health Assessment in 2003 that I had shoulder pain, but that Motrin pretty much controlled it. That's the only time other than during my separation physical that I mentioned the problem and where it is documented in my medical records. Three years after separation I had a shoulder injury at work that required an MRI. The MRI showed that I have degenerative changes in the acromioclavicular joint with mild subacromial spurring and downsloping of the acromion. The radiologist stated that the downsloping shape of my acromion could predispose me to shoulder impingement syndrome. I have read that a diagnosis of arthritis within one year of separation is considered presumptive to military service. Does that fact that I only mentioned my shoulder problems during examinations and did not actually go to a doctor to attempt to get a diagnosis prevent me from claiming arthritis? I am concerned that the VA would counter that my arthritis occurred well after separating.

Answer:

At first glance, I think you have a good case. You have the 3 elements that are required to make a case for disability benefits. You served honorably and you have evidence of that. Your Service Medical Record (SMR) has notations of shoulder pains and your separation physical also notes complaints of shoulder pains. You now have a solid diagnosis of physical problems in the shoulders confirmed by MRI and an interpretation of that by a physician.

The 2003 examination confirms that the problem from your military service continues. That you had a work related problem will give VA an opportunity to say that the injury occurred then, not as a result of your service. I would argue that the work related event only was an aggravation of the service connected injury and led to the diagnosis.

The impingement syndrome combine with arthritic change can be quite painful.

The pain can restrict your ability to flex and rotate your shoulder joint. That pain will lead you to "guard" that joint and lack of use may lead to muscle weakness and atrophy. Ultimately you can lose much of your ability to use your arms to push, pull, and lift even a modest item of any weight...a gallon of milk, for example. Your ability to reach overhead to accomplish personal grooming (combing your hair, etc.) may be compromised. Household chores like painting, reaching into overhead cabinets and so on may be difficult or impossible.

Although the VA does not measure disability using modern thinking about "quality of life" issues, I believe that you should note all of that in your application for benefits. Your ability to participate in some sports or exercise activities may suffer. If you're a fisherman, your ovehead casting won't be much fun if you know it's going to be painful. If you're a golfer or enjoy bowling or if you play some tennis, those activities may be history.

There is no such thing as a minor shoulder injury. Any injury that affects a major joint will affect the trunk of your body and the associated limb, in this case, all the way to your fingers.

I've advised you to download and complete VA Form 21-526 and complete it and mail it to your VARO using certified mail, return receipt requested.

The form you need is here: http://www.vba.va.gov/pubs/forms/VBA-21-526-ARE.pdf

Once you have accomplished that it's time to gather your records together from any and all sources. Don't depend on VA to do that for you. Make good clean copies for them and save your originals for yourself.

VA will very likely challenge the origin of the condition and tell you it is not service connected. Therefore, you need to begin to contact a physician who will write a nexus letter for you. The nexus letter must have a statement from the physician that he has examined all your records to include the SMR. The physician must state that he agrees with the current diagnosis. Then the statement must go on to say that the physician believes that having looked at all that stuff, it is more likely than not that the current condition had its origin during the period of military service.

If you get all this in promptly, your denial letter will come pretty quickly. All of this is only to prepare for the appeal. I've gotten into the habit of a mindset that we aren't winning anything without an appeal so every bit of what we do is setting up our case for someone who will seriously consider it.

That's OK. If you understand the the first denial letter is only another step in the process, it won't come as a shock to you. I'd hazard a guess you'll win this one at the DRO appeal level.

Question:

Jim,

Would it be possible to get rated, for a disability claim (PTSD), without going through any C&P for psychological evaluation exam?

Answer:

In theory, yes. In reality, it's very unlikely.

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

§ 3.326 Examinations.

For purposes of this section, the term examination includes periods of hospital observation when required by VA.

(a) Where there is a claim for disability compensation or pension but

medical evidence accompanying the claim is not adequate for rating

purposes, a Department of Veterans Affairs examination will be

authorized. This paragraph applies to original and reopened claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child. Individuals for whom an examination has been scheduled are required to report for the examination.

(b) Provided that it is otherwise adequate for rating purposes, any

hospital report, or any examination report, from any government or

private institution may be accepted for rating a claim without further

examination. However, monetary benefits to a former prisoner of war will not be denied unless the claimant has been offered a complete physical examination conducted at a Department of Veterans Affairs hospital or outpatient clinic.

statement from a private physician may be accepted for rating a claim without further examination.

You'll probably not get past; "medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized" and "Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination."

Guess who determines that your medical evidence is or is not "adequate for rating purposes"? Hint; Not you.

Question:

Jim,

Hi, I am a veteran with a combine rating currently at 80% disabled due to my back (60%) and both knees (L knee 40%) ( R Knee 20%) and R foot (10%). As of April my Left knee and back condition has deteriorated. I have been working for a company for the past 14 years. However, I am no longer able to work. I have seen three specialists, all agree that I need a total knee replacement and my back condition has worsened due to degenerative disk disease. My company does pay disability coverage at 60% (Long term) of my base pay. I cannot claim Workers Comp, the only thing that I am entitled to is Social Security disability or Veteran benefits. My first Question is: If I collect Social Security disability the company will offset my pay, but if I collect Veteran benefits at 100% rating under Individual un-employability does the company have a right to offset my pay that I am currently receiving from them? My second question is: I have a letter from my doctor stating, I am unable to work due to my back and knee condition which are service connected injuries, should I attempt to appeal my rating decision or is there another way of obtain 100% disability rating without applying for Individual un-employability based on my doctors letter and I have full support from all 3 specialists? Any advise would be greatly appreciated Thank you

Answer:

The company's (employer's insurance) right to offset anything is in your contract with them. Most disability insurers do have a clause that will prevent you from double-dipping. The VA won't be involved with that in any way, they will pay you what they determine you are eligible for and the rest is between you, your employer and whoever the private company is that pays the company's disability insurance. That won't matter if your rating is schedular or IU. It's there in the fine print somewhere.

If you can't work due to SC conditions, you should notify VA. As you are at 80% combined, you are eligible to apply for IU. While the letters you have from civilian doctors will be important to support your claim, the VA will consider other factors. Most importantly, they will have you go to a Compensation and Pension Examination that will be conducted by one of their own examiners. The report that the VA examiner gives may outweigh reports from civilian doctors. The reasoning VA will give is that their examiners are trained in how to conduct an exam for a disability rating where most civilian caregivers aren't.

You may make your claim to VA by writing them a letter. That's pretty simple. I've set up a site that has a sort of template you can follow to write your letter and once you've done that the process is started. The site is work in progress and won't be released until mid-September so it will probably look cluttered but the "How To Write A Letter" part is complete enough for you to use. Click here: http://tinyurl.com/6ahefg to get started with your application. Scroll down until you find the section on letters.

Question:

Jim,

I love your articles and constantly remind my veteran friends to check out this website. I know the VA can reexamine someone at anytime, but if you are over 60 years old do they bother with you or save the reexaminations for younger folks so that they can declare them improved and save more money? Keep up the good work! (USMC Veteran)

Answer:

Haven't you heard? The word is that 60 is the new 40. You're now one of the youngsters at 60.

My dad is retired USMC...an E-9 Iwo Jima survivor. He's 84, I'll be 60 next month. I'm still a kid to him and he won't ever let me forget he's the senior NCO around here. He'd probably drop me for 100 if he weren't afraid I'd be too sore to cut his grass for him.

The VA does reexamine those over 60. The 100% rating is the key. If you're 100% they want to knock that back if they can. There is some language about how they should be cautious with those over 55 and at age 72 if you are 100% IU they aren't supposed to send out the yearly employment verification forms.

Of course, if you've held a 100% P & T rating for 20 years they can't reduce it so re-exams go away then.

I see it this way; The game with the VA is on their field. They own the ball, the uniforms, and the referees. They make the rules and can change the rules in the middle of a play. They are allowed to field as many players as they want at any given time, you're restricted pretty much to one...you. They don't have to tell you when a game is to begin and they can start without you and win before you know to show up.

Once you accept all that and quit fighting it, it gets easier.

Your battle with VA isn't over until they send your family the little brass plaque with your name on it. Even then, it's likely your name will be misspelled and your heirs will have to appeal.