Monday, June 18, 2007

Part 4: VA Disability Claims Advice

  • Do NOT wait to file! Let me stress the importance of NOT waiting years to file for disability by describing what the VA requires to grant service connection for a disability.

· First, for most conditions, you should be able to show that it existed while on active duty, or was diagnosed within one year from the day you got out.

· Second, you must have medical proof that you currently have the condition.

· And finally, you must show nexus, or proof of “connection,” which is best done by medical opinion (See "medical opinion..." below) from your doctor that your claimed condition is indeed the same condition that you suffered with while in service… Since some veterans wait years to file, many can show little or no evidence of treatment for the claimed disability over those years since discharge. By the VA’s rules, they can deny service-connection to that veteran for lack of proof that the current condition began in service. The rationale is that the problem might not be the same one shown in the veteran’s medical records.

· (For instance, you show a knee injury in your service medical records 5 years before discharge and you also checked the “knee problem block” on your last several active duty medical exam questionnaires. Its now 5 years after discharge, and you have little or no post service medical evidence to show that the knee has continued to be a problem. YOU KNOW or believe that it is, because it’s been painful for 10 years. All well and good, BUT, the VA needs medical proof and opinion that states as much. Also, if continuity of treatment evidence is unavailable, personal affidavits from workmates, friends, relatives, etc. ARE acceptable as evidentiary documentation that can be submitted).

  • Appeal—and DON’T QUIT! Keep in mind that if your initial VA decision is not to your liking then you should appeal it. My experience with the VA disability claims process is that it is nearly 100% faulty. In other words, if you receive a VA decision letter, chances are they screwed you.

· A common VA decision error is to underrate conditions, but worse than that is their notorious disregard of their “duty to assist” the veteran by explaining exactly WHY a claim is not considered service-connected, and more importantly, to explain WHAT is needed to show that service-connection. Instead, they will only state that no evidence was submitted or that it is insufficient, or that the condition is not shown in the vet’s service medical records. OR, they state that there is no current diagnosis of the claimed condition. HINT: The VA will NOT normally provide it for you, especially here in the Philippines! Usually all that is needed to counter ALL this so called lack of evidence is a medical opinion from YOUR doctor (see "medical opinion..." below).

· The claims process is broken with a huge backlog that is getting bigger. Much of this backlog is due to the VA’s poor decision-making process, which results in errors and subsequent appeals. The VA in Manila brags that it has only a 15% error rate, but that is untrue. Evidently, they ONLY count the errors brought to their attention by complainants, and don’t count what they consider to be “minor” ones. I can tell you without a doubt that nearly every decision turned out by that office contains errors, so that in my opinion they have a near 100% error rate! Personally, I have little confidence in them and can find important problems in virtually every decision letter they send out. No wonder their backlog is so big. Once veterans learn that nearly every decision is suspect, THEY WILL challenge EVERYTHING, which only adds to the backlog.

· As I said though, appeal and DON’T quit. As long as you can survive the lengthy appeal process, as long as you have the evidence and medical opinion, you WILL most certainly prevail.

Reopening Closed Claims. A claim is considered closed 1 year after the VA’s decision unless the veteran has appealed it within that year. Reopening it means providing “new and material” evidence that is pertinent to the VA’s “reason for denial.” Many vets think that they have to find “old” pre-existent evidence from the time of their service, but this is not necessarily true, although it could be. The most common form of new and material evidence consists of your doctor’s medical opinion (see below).

  • Medical Opinion is CRUCIAL!

· This opinion should be written by YOUR physician to state that he/she believes based on current diagnoses and treatment, assessment of service medical records and all subsequent medical records that the current condition in question more-likely-than-not IS service-connected or was caused by or made worse by a currently service-connected condition. It sounds kind of complicated, but truly its not.

· A common mistake by veterans is to use the VA doctors’ medical opinion ONLY. This is dangerous, since the vet is now at the whim of the VA. Remember, when it comes to the ratings process, the VA IS THE ENEMY! When you throw yourself at their mercy, keep in mind they HAVE NONE! Costly though it is, GET YOUR OWN MEDICAL OPINION from your OWN doctor. It will certainly be even MORE costly when you leave it up to the VA to provide the opinion. Consider the expense an investment. Do NOT hope that the VA will do right by you, because they almost assuredly will NOT!

  • Use the Internet. Knowledge is power! Therefore, go on line to the 38 CFR (US Code of Federal Regulation Sections 0-17 specifically parts 3 and 4) and become familiar with it, specifically with parts 3 and 4. It is the procedural manual the VA uses in adjudicating disability ratings for veterans. It includes all the possible disabilities, the codes assigned to those ratings, the various levels of severity, and a whole host of other valuable information including every part of the claims adjudication process. Use this info to first figure out what level you should be awarded for each disability, and then when you get your initial ratings you can compare what they give you to what they should have given you.

Also, you can print out the ratings descriptions and show them to your doctor to see if he thinks you meet the next higher level of ratings severity.

· It is useful to know that the VA almost always underrates the veteran on his initial application and they actually seem to expect the veteran to challenge them for the higher level. This is best done by having your doctor use the criteria language verbatim from the ratings level charts in part 4 of the the 38 CFR.

· As part of the initial appeals process, an entirely different rater will evaluate your claim, and by regulation, this new rater MUST take your doctor’s evidence to heart and give you, the veteran, the benefit of the doubt. (Well, that's the theory anyway).

  • “Perseverance Works in Favor of the Veteran” should be your motto. The VA system rewards those that won’t take “No” for an answer.

Stay tuned for part 5. Also see parts 1, 2, and 3.


Anonymous said...

"As I said . . . DON’T quit. As long as you can survive . . ."

This is all excellent advice but not all that easy to actually do. It seems the bureaucratic monster is designed to suck the life out of us. No matter how assertive, courageous, and intelligent we may be in other aspects of our lives, dealing with the VA will leave us feeling fearful, humiliated, stupid, and emotionally drained. I emailed a buddy about my own recent contacts with them and he responded with the same feelings, saying he's getting a pittance of $135 a month, and could surely get more if he had the emotional energy to jump through the VA's hoops. But he can't, and won't do it.

PhilippinesPhil said...

I know EXACTLY what your pal is talking about. Its why I'm writing this ongoing series on how to deal with the system. It seems to be designed to wear you down until you either quit or die. Still, I've helped literally hundreds of veterans over the past four plus years and I can assure you that the system is beatable. Just get some help from someone like me... Believe me, this stuff is NOT rocket science...

Anonymous said...

I'm in the process of appealing the va decision, according to dav they don't have a dav rep in the philippines, is there an attorney in the philippines who can represent me who is knowledgeable about va regulations?

PhilippinesPhil said...

There used to be a DAV Rep here but it wouldn't surprise me that he also has dropped out as I have. As far as I know there is only one trained and certified service officer still active here, and that would be Peter Scalzo who works out of Angeles City under the VFW. The problem is that he is probably more disabled than most of the veterans he assists and he is swamped. Its another reason that there should be NO VA here at all. The VA is extremely adversarial and works mightily against disability claims, as you are probably finding out, and without a knowledgable advocate you will most likely be ground into the dust of their denial machine. Here's an angle: the VA, under their "duty to assist, duty to inform" mandate, must provide a claimant access to an advocate; so, if their is no advocate available then the claim SHOULD be transferred to a Regional Office where an advocate IS available. Last I heard, trying to get an appointment with the ONLY claims advocate in the Philippines involves waiting for about two months, in which case you might as well say no advocacy is available. I suggest you contact your senators and congressman and inform them of this unacceptable situation, and ask why you are being punished for your choice of living in the Philippines. If you were living in Thailand for instance, your claim would be processed in Pittsburge where you WOULD have a veteran's advocate available. Do you see what I mean? Ask your representative why they chose to expand THIS VA here to the tune of millions of dollars without spending a dime on advocacy? Its another example of our federal government wasting our tax dollars. Just some thoughts. Good luck to you...