Jim Strickland's Mailbag: Volume #61 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.
09.23.08
Question:
Jim,
First and foremost....THANKS AND GOD BLESS! Alone I am sometimes afraid; With a Veteran by my side...I am FEARLESS. Thanks so much for your encouragement, comfort, support and all the information that you are providing to America's deserving Veterans.
My application is in. My service injury is well documented. I am waiting for a prominent Vascular surgeon to complete my Nexus letter. SSA/SSDI has granted me "totally disabled" and I am receiving monthly SSDI benefits. (Documented service injury...Nexus letter...Documented disabled for Pulmonary hypertension) patiently waiting and praying for my award letter.
My question is this: I became totally disabled (per SSA) July,2006. My Service-related disability claim was filed in September, 2007. I may be dreaming here (but your column has gleefully allowed me to do that) but what are the chances/what is the process for getting Retro pay back to the day I was disabled? I HAVE NOT filed for any type of retro pay at any time.
Entered military in 1980... chest xray was clear. Summer 1981 pain swelling redness lower leg..casted Several times in the following months Spring of 1982 Pre-Scuba physical "NPQ" due to x-rays showing calcified densities in chest (pre MRI VQ and CT days) Honorably discharged in 1984 No documented pain etc in chest or leg since.
July 2006 Large Multiple bilateral Pulmonary embolisms and M.I. hospitalized for 10 days. Went to vascular surgeon...had exam and leg doppler done. Old scarring in veins of leg noted.
Recommended Lifetime anti-coagulation to prevent further clotting. September 2007...SSD granted "total disability" back dated to July 2006 for Pulmonary Hypertension, history of multiple Pulmonary Embolisms, history of myocardial infarction, degenerative joint disease and gastroesophageal disease.
After receiving SSD award letter in September 2007 I applied for Service-related disability. Was pleased with my application...then God's grace allowed me to stumble across your site a few months ago which immediately made my Nexus letter a PRIORITY. (THANKS JIM!) Service Medical records in route to prominent Vascular Surgeon and Nexus letter coming. (I realize now that this is what will enable me to win the award) I also know that Pulmonary Hypertension is schedular 100% and all the benefits that come with it and the prayerfully P&T no further examinations designation.
I received a letter from VA October 2007 stating I had a year from the date of that letter to submit evidence. I unknowingly (before your site) sent a VCAA Notice response to proceed with my case without further evidence. I plan to submit the Nexus letter before the year end date this Oct 2008. I pray it gets there before they rate my case. I fear that if I don't I will be stuck in the Appeal process line. I WILL be awarded...Now or Eventually... Happy email coming to you then ;)
The VA had written letters to say I needed this and that and I promptly got them what they needed. In a follow up call the case worker said my claim went to the ratings Board on 30 July 2008. I hope that this is enough of a picture to help you guide me to any "retro" course if available or at least illicit any concerns or recommendations about my present case.
Once again...Thanks again and God bless
Answer:
If I were a betting man, I'd have to bet you'll lose the VA case.
The Service Medical Record, as you've described it to me, is inadequate to make a connection. You've had no issues related to your service since 1984.
The lower leg issue may have been unrelated to anything but a sprain and calcified densities are essentially not abnormal findings...particularly back then. That you were NPQ due to that seems to me to have little to no significance today. That there was no record of continuing problems after discharge is significant and unfavorable to you.
Then in 2006 you have PE and MI. Well, how does that connect to sprained leg and normal (routine) chest x-ray? To suffer PE and MI happens to a lot of people, vets and non-vets alike.
I can't imagine a physician trying to write a nexus letter to connect those dots. He would have to show evidence as to why he believed those events were connected to military service and I'm not sure that's in there.
The SSA disability system and the VA system are vastly different. SSA only determines that you're disabled and can't work. The VA system insists that you provide evidence to show that you had an event in service that has caused today's disability that will prevent you from working. I don't believe you can show that.
Again, I hate to bring bad news but unless there is something I'm missing, you won't be approved. Based on the info you've provided me, I would not have recommended that you apply for VA disability compensation.
Question:
Jim,
im still waiting almost 2 yrs for my R,0 to make a decision on my heart attack claims i had in service as they have gave me wrong medicine fo last yr now i have congestive heart failier i got 2 senator trying to help va pays no atteation to anyone now i have had vfw file a 1151 claim for the med mix up and now i got have a helper to get around i fell down 5 times in va hospital got staff, infection on my knee leg its killing me what i do with them va crookes??
Answer:
Since you already have filed a disability claim with your VA Regional Office, you have VFW filing an 1151 claim for you and you have your 2 Senator's offices involved, I can't offer any more advice.
It's apparent you have a lot going on with your VA. The more you have going on and the more complex your claim is, the longer it will take to resolve it. When you add the VFW and your Senators into the mix, it may take even longer. I'd hate to try to give you any advice that would confuse the issues you have even more. As they say, "Too many cooks spoil the broth".
Good luck.
Question:
Jim,
i am using an advocate here at home. however, i think he has steered me the wrong way.
i have been recieving %50 for the past 15 years. things have become more difficult. when he put in my claim, he also included IU . the IU could be claimed if my claim yeilded a 70%.Now, he told me that i would still be able to work up to eleven months out of the year without worry. as long as it was not gainful. I would still need to attempt work in order to meet my financial obligations, so i agreed.
after reading several articles, it sounds like if it were be awarded........I would be under close scrutiny. I've read of several veterans losing percentage ratings for having a part time job.
I am very concerned about this. I just visited for my evaluation today. do I have to accept the award, or can i refuse it without reprecution? of course i want my rating increase, but not the unemployability.
Any help is appreciated.............
Answer:
Your email presents a number of serious issues. I urge you to carefully consider the quality of the advice you're receiving. It sounds as if you've already realized that so think of this as support to continue questioning whether or not you're being led into a problem you don't need.
You aren't eligible for Individual Unemployability and should not have filed for it. Filing for IU as you file for an increase presumes you will get the increase. It gives the Ratings Veteran Service Representative (RSVR) extra work to do that isn't appropriate at this juncture.
You're asking for the keys to the new car before you've had the financing approved.
It's apparent that you should first apply to increase your benefit, then, if you qualify, VA will notify you that the option of IU is open to you. This is a minor point but I try to play strictly by the rules.
It sounds as if you're still able to work. If that's the case, I question the ethics of applying for IU. The IU benefit is meant to protect veterans who have a single or multiple service connected conditions that interfere with "substantially gainful employment".
If you're able to work and you're being encouraged to apply for IU and to continue to work, you're gaming the system. Gaming the system hurts us all. I don't believe that you want to do that and it's unprofessional for a VSO would tell you to.
Substantially gainful employment is defined as the vet's earned income not exceeding the federal poverty threshold. That will vary year to year but it's safe to say it's around $10,000.00 or so. If the veteran earns less, the veteran is only marginally employed and marginal employment does not qualify as substantially gainful employment.
Once you have an IU benefit, you must submit an annual employment certification document that details any earned income. The VA also uses the annual income verification match (IVM) program to check for any earnings. The IVM uses IRS and SSA records to see if you have worked.
It's true that if you are receiving IU you may work to a point of earning up to the poverty threshold and in theory you won't be penalized. The reality is that any income is likely to raise a red flag and bring about extra scrutiny. That is, if you simply return your annual employment certification document and state that you haven't worked, it gets filed into your folder. If you state you have worked, your folder is going to be opened for review.
Any time your folder is opened for any sort of review, the first objective of the individual looking at it is to check for opportunities to reduce your rating.
If you earn income and don't report it, you're in for more problems than you thought possible. That income verification match program is effective.
Sure, if you were to receive an increase and the IU benefit, you could refuse the IU part of it. I'll be a bit surprised if you are awarded the IU benefit but stranger things happen every day at this desk. Dealing with the VA brings surprises all the time.
To "unapply" for the IU would be simple. You can write VA a letter and inform them that you have secured substantially gainful employment and thank them for their trouble. They'll discontinue the benefit and while that might cause some eyebrows to raise, I can't imagine anyone penalizing you for being honest.
If you receive an increase but not the IU, you have one year to seek work and if you aren't successful, appeal for the IU. If you are denied across the board, you should appeal the increase in benefits using an attorney and ignore the IU for now. If you are awarded both, you may then decide if you really want to turn down the IU, perhaps first trying to find a good job but keeping the IU as a safety net.
Question:
Jim,
I served with an Infantry Brigade 1966-1967, combat veteran, wounded in action. I recently started receiving compensation from the VA and also ordered copies of my records. The VA had denied compensation for my back because they say wasn't service connected. I ordered copies of all my records ( it took them 6 months) so that I could go over them and see if that was true. While in training at I had fallen into a ravine and hurt my back and was sent to the dispensary for treatment. I also received a blow to the head from a butt of a rifle while in training giving me severe headaches. I have PTSD and I'm receiving 30% and that is all that the VA is paying.
While looking at my records I found a form that stated that I had gone to the VA in 1968 and was told that I had no benefits or compensation coming, that is what is written in that form -- stamped and signed. We were never told of any benefits or compensation by anyone when we were let go by the Army. I ets'ed out of the Army in 1967.
My question is does the VA or the Regional Office ever go back to when you went and asked for benefits and compensation-- mine would be 40 years back? By the way one of VSO's told me that I should be careful in dealing with the government because they could make things bad for me, even though I have a congressional letter attached to my files from a Congressman's office. Some friends of mine that are Judges have looked at my files and all agree that the VA should be made to retro pay because of all of the evidence that I have.
I would like to hear from you if possible.
Answer:
You have a complex situation.
Yes, VA does go back retroactively to compensate if there was an error on the part of VA. This is usually referred to a a CUE claim...Clear and Unmistakable Error on the part of the VA.
It is the hardest claim to prove and the VA fights these with everything they've got. There are legal theories involved that I barely grasp. For example, if the VA simply made a mistake in some way, you don't have a claim. You must show that somehow VA broke a law that was in place then and that had they obeyed the law, the outcome of your claim would have been different.
You don't want to mess with these without a lawyer who is familiar with them. Even then, many lawyers who practice VA law won't touch them. Then it takes time. You can count on 3 or 4 years, maybe more.
There are many fine lawyers advertising on VAWatchdog who you could call to ask for a review of your case or I could refer you to one.
I wouldn't listen to friends and acquaintances about their opinions of anything that has to do with VA unless they have some expertise in dealing with VA. The VA doesn't operate like most other institutions do and any time someone tells you to do something about VA, they're probably wrong unless they understand how the system works. Even if you know lawyers and judges, unless they work with VA, they don't have a clue about how hard it can be to make the VA move an inch.
