Jim Strickland's Mailbag: Volume #64 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.
10.07.08
Question:
Jim,
Hope you can provide me with any help or guidance. I am going for a C&P exam after 40 years for Spondilolosysthisis (a back slippage of the vertebra). This occurred in the service and I was discharged with 10 percent disability. The problem is now more disabling because of pain and discomfort. It there anything you can offer to more to help increase the disability percentage.
Answer:
Your benefit will depend on a balance of factors. The records of how long it's been there, how much documentation of treatment you've had over the years and the C & P exam.
You have to show that the disability today is the same one of many years ago. The VBA plays a hard game with back injuries. They often say that you did injure your back in service but today's pain is degenerative arthritis associated with aging, not the service connected injury. If you have a fairly steady record of treatments, complaints, medicines, etc., that makes it easier to prove the connection. If you were injured 30 years ago and haven't seen a doc about your back since then, you're going to be challenged by VBA.
The C & P exam is given a lot of weight. The examiner should ask you to remove your shirt so he/she can see any curvature or muscle wasting. You may be asked to walk to look for a limp. The act of removing your shirt is a test. They will look for signs of discomfort, particularly facial grimacing or utterances of pain.
You're being observed as early as when you park your car. I usually recommend you have a driver. You'll be distracted thinking of the exam and it's safer to have a driver. As you enter the waiting area, you may be under observation. If you bound in like a teenager, the examiner will wonder why you're there.
The biggest mistake we make is to be macho. It's in our nature. When the examiner introduces herself to you she may ask, "How are you today?" Your knee-jerk reaction is probably, "Never better doc, I'm doing good." So...if you're all that good, why are you there?
The most important part of the exam is a measurement with a device called a goniometer. This is a thing that looks like a kid's protractor in elementary school. It's use to measure how far you can bend and flex.
It's pretty apparent that the more you can bend and flex, the less disabled you are. You may be asked to perform active flexing and bending...you do it yourself. You may also be subjected to passive flexing and bending...they push you forward to see how far you'll go.
I will never advise anyone to stretch the truth or misrepresent their degree of disability. However, I've known of veterans who just try too hard. This isn't a PT test where you want to do your best. This is a test to measure and record your worst moments.
I've been advising a vet for the last year or so about his back injury. he was a test pilot and ejected numerous times. He was in a helicopter crash in Vietnam and he's had 6 back surgeries over the years. He's largely confined to a wheelchair because of his back.
His C & P was about 3 months ago. Just before going in he had taken his morphine and put on a new fentanyl patch. He did the very best he could to show how flexible he is. His rating came back last week at 20%. He deserves 100% and we already have the appeal started.
If he had allowed the examiner to see him at his worst, he may not have been able to stand out of the wheelchair. He wouldn't have been faking or exaggerating, his pain would have restricted him to a point the examiner would have seen the reality.
If an examiner attempts to passively flex or bend you, if that causes pain you should ask them to stop. You aren't required to put up with pain.
Stop by my new site: http://tinyurl.com/5wxapm and look around. There are some things there I believe will interest you.
Question:
Jim,
I had a C&P done (April2000) for S.C. increase for cervical/lumbar strain that was rated at 0%. Still rated at 0%, because they stated this disability is not specifically listed in the rating schedule therfore it is rated analogous to a disability in which not only the functions affected, bur anatomical localization and symptoms, are closely related. Had another C&P (July2008) I was in a MVA while in the military back in 1987. At the time they did cervical x-rays which the E.R. doctor wrote down as WNL. Sent home for bed rest. No follow-up appt. was ever done at any clinic on the base. The lumbar injury happened while I was on a field opperation, where they did not even take any x-rays. After the service I continued to have problems in both areas and recieved treatment. I have documentation. Sent all this in for increase. Va sched. me for C&P. (July 2008) This is what the (physican assistant) noted:
Diagnosis: Cervical strain, recurrent
-Degenerative disc disease not caused by or aggravated by cervical strain and cervical radiculopathy. Problem associated with diagnosis: cervical strain.
Diagnosis: Lumbar sprain, recurrent
-Degenerative disc disease not caused by or aggravated by lumbar strain and lumbar radiculopathy. Problem associated with dignosis: lumbar strain.
I have noted no effect of SC condition on occupation and daily activities because the SC condittion has resolved. She does have major effect from her NSC condition.
Was a medical opinion requested? No
If she did not request a medical physicans opinion, then how does she know the conditions ever completley resolved themself? No MRI was ever done to see if any dics were injuried back when the injuries happened. The injuries I believe started the disc disease. My x-rays still show muscle spasms with reversed lordosis, after all these years. I have severe loss range of motion that she noted. How do I appeal when the VA when the evidence they use from C&P is used against me by stating the disability has resolved and blame it on something else like getting older (old age) Your current spine symptoms are soley related to your degenerative disc disease which is not considered serviced connected. Yet the decision goes on to tell you what your flexion degrees needs to be in for the next compensable percetage.
Answer:
If you have applied for a disability benefit and denied or if you don't believe the rating assigned is appropriate, you should appeal. All of the instructions you need to prepare your appeal all given to you with the award or denial letter. To appeal a flawed claim is just another step in the process today.
If you aren't confident of your abilities to do the appeal yourself, you should consult an attorney. There are many fine lawyers who advertise on VA Watchdog. Give one a call and let them assess your case.
Question:
Jim,
I truly truly appreciate the advice you gave me on handling my DRO hearing etc. I feel great about how my case is unfolding. I felt like sharing this with you. If it is something that you see as worthwhile...feel free with my permission to share any or all of it.
US VS THEM
By submitting a claim for VA Disability benefits you are essentially re-enlisting in the service. There will be a lot of people in front of you holding a lot of hoops for you to jump through. They are in charge...it's their home court...it's their game...You MUST play by their rules. You will do What ever...Where ever and How ever they see fit. YES SIR!
You're a Veteran...You've been there...Done that...got the hat, the T-shirt and the tattoo to prove it. Bottom line...Play by their rules or go home. Lace up your boots...gather your friends...then patiently and diligently play their game. The key here is to know who is on your side and who isn't. I truly believe the VA is on OUR SIDE.
I liken the VA to a Drill Instructor. You may believe that he or she is a mean son of a gun who hates puppies and hates their mother but I truly believe that Drill Instructors and the VA are on OUR SIDE. They are there to prepare you and help you reach your objective and accomplish your mission.
Much like Drill Instructors at the start of an obstacle course...VA representatives are waiting with a million hoops. It may not have seemed like it at the time...and it may not seem like it now...but Both the VA and the Drill Instructors want to congratulate you at the end.
It is NOT...I repeat NOT an "US VS THEM" game...it is an "US VS IT" game. The "Enemy"...the "IT" in this situation is the VA RULES...REGULATIONS and most importantly the VA LAWS
that must be followed..upheld...and obeyed. The VA representative's job is to ensure that VA LAWS are enforced and followed.
You've served Honorably...You've been injured in the service...You are now disabled and deserve compensation. I liken it to the man or woman who worked hard and deserve a new car.
If you file a claim with no proof here...no connection there...incomplete info here...no facts there...if you don't give the VA Representative what he needs to follow the letter of the law...
then you are like the man who shows up at the dealer with $400 in his pocket, $15,000 in the bank, $8,000 in his dresser drawer and an IOU for $2,000 that his brother in law owes him.
YOU AIN'T GETTTIN THE CAR...YOU AIN'T GETTIN THE CLAIM!
When you file a claim...A VA Representative stands in front of a big CLAIM's Machine...he inputs what YOU GAVE HIM...and if you GAVE HIM WHAT HE NEEDS...TO FOLLOW THE LETTER OF THE LAW...Then a favorable claim comes out the other side. If it doesn't then the fault lies in what you gave him...not in what he did with it. GOOD LUCK... GIVE THE VA WHAT THEY NEED TO FOLLOW THE LETTER OF THE LAW...BE DILIGENT...BE PATIENT THEN ENJOY THE BENEFITS THAT YOU DESERVE. Semper Fi, Mike :)
Answer:
That says it all about as well as I've heard it said. You can argue with it if you wish but when Mike came this way not all that long ago, his case wasn't going smoothly; the train had come off the tracks. Being the bright guy he is, he caught on pretty quickly that the rules are all that count. If you ignore the rules or attempt to shortcut the rules or think that you're pretty special and the rules don't apply to you, we advocate types have a scientific name and classification for you. We refer to that as "Screwed", as in "You're screwed buddy."
Congress makes law. The POTUS signs it. It's on the books and the VBA interprets it. The courts handle disputes about law. The guy at the VBA has a boss. That boss has a boss. They are all told to follow the law or lose their jobs.
OK, I'll grant you that many of the laws don't make sense. The law that has the speed limit set at 45 MPH about 1 1/2 miles from my house is an absurd law. The road is wide open, very little traffic and there is no reason under the sun that 45 MPH makes any sense.
I tried explaining that to the cop who radared me a few weeks ago. He said I was doing 62. "So what?" I said, "This road should have a 65 MPH limit on it. I'm an excellent driver. I've never had an accident. It's a bright sunny day and I'm the only car out here. I'm driving an economical car that gets great mileage. My tires and brakes are in good condition. I have my registration and insurance card. You can't do this to me!"
A few weeks later, as he set my fine at $150.00, the judge explained it to me like I was a 3rd grader, "It's the law Mr. Strickland. NEXT case."
That cop isn't my enemy. I pay attention to what the VA wants me to do. I now drive that road at 45. Simple, easy...I can live with that.
