Page 1 Jim's Mailbag 2008 by qingyunliuliu

VIEWS: 2,046 PAGES: 273
                                                                   t   TOC       u                                                                        Page 1


Welcome ................................................................ 2                  Jim's Mailbag 2008 ............................................. 146
A & A ........................................................................ 4            Jim's Mailbag 2009.............................................. 155
Acronyms ............................................................... 7                  Jim's Mailbag 2010 .............................................. 172
Agent Orange ....................................................... 9                      Jim's Mailbag 2011 .............................................. 187
Alimony & Child Support .................................. 13                               Larry Scott ............................................................. 192
Appeals................................................................... 20               Leo Dougherty ..................................................... 193
Be A VAWatchdog ............................................... 28                          Links Gallery ......................................................... 203
Beneficiary Travel ................................................ 29                      Letter Templates.................................................. 205
Benefits Updates ................................................. 35                       Lung Conditions .................................................. 206
Bilateral Factor ..................................................... 36                   Marijuana ............................................................... 207
Buddy Statements .............................................. 38                          Medicare w/ VA Benefits ................................... 209
BVA ........................................................................... 40          MMWR .................................................................... 213
Casualties ............................................................... 42               Nehmer................................................................... 214
CHAMPVA .............................................................. 43                   Nexus Letter.......................................................... 215
Comments ............................................................. 44                   Pension ................................................................... 220
C & P Exams ........................................................... 45                  Pharmacy ............................................................... 221
DADT ....................................................................... 51             Progressive Advocacy ........................................ 223
DIC ........................................................................... 52          Promises Broken .................................................. 224
DRO Process .......................................................... 54                   Prostate Cancer .................................................... 225
Education ............................................................... 55                PTSD ........................................................................ 232
Evidence ................................................................. 56               Records ................................................................... 236
Fiduciary Appointments ................................... 60                               Scams, Fraud & Deceit ....................................... 238
Fleeing Felons ...................................................... 86                    Search The Internet ............................................ 240
FOIA ......................................................................... 87           SSDI & VA Compensation.................................. 242
Friends .................................................................... 88             Student Loans ...................................................... 248
Fun ........................................................................... 89          TDIU ......................................................................... 249
Guestbook ............................................................. 91                  The Church Connection .................................... 260
Hearing Impairment ........................................... 92                           Thom Stoddert..................................................... 261
How To File A Claim ............................................ 94                         VA OIG ..................................................................... 263
How To Raise A Benefit % ................................. 98                               VHA .......................................................................... 264
IHD ........................................................................... 99          We Honor Veterans ............................................. 271
IME ........................................................................... 101         Your Web Site ....................................................... 273
Jim's Mailbag 2006 ............................................. 106
Jim's Mailbag 2007 .............................................. 126                             t       TOC    u                                         Page 2

Welcome to VAWatchdogToday dot Org.                       If you must remain anonymous because you’re a
                                                          government employee, that’s fine. If you’re a veteran
We hope you’ll accomplish two goals here.                 we suggest that you have no need to fear retribution
                                                          by VA. I’m a good example of that. I’ve been annoying
(1) Learn how to work with VA to accomplish your          the folks at VA for years and I have nothing for them
benefits claims goals with a minimum of fuss.             and I get respect from them. We would prefer our
                                                          veteran friends to not become anonymous cowards.
(2) Understand the political and                          There are enough of them on the Internet already.
legal issues that affect you.

If you also happen to be entertained by                   02/19/2011
what you find here, so much the better.
                                                          Is your problem seemingly unsolvable?
Above every page you’ll find buttons that are             You may write directly to the VA Central
clickable links to major topics. We are continually       Office or “Headquarters” to seek help.
revising these pages to keep up with any changes in
rules or processes that may have an impact on you.        Department of Veterans Affairs
                                                          810 Vermont Ave. NW
We will publish headlines of news topics,                 Washington, DC 20420
editorial opinions and articles that we feel
are important to you. There are 3 pages                   You should address your letter to
dedicated to news and headlines.                          the appropriate department;

We encourage veterans to handle                           Veterans Health Administration
their own cases and claims.                               Veterans Benefits Administration
                                                          National Cemetery Administration
You are not required to have a representative             Inspector General
when you deal with your VA. We are promoters              Board of Contract Appeals
of the DIY process and we believe that in the             Office of Small & Disadvantaged Business Utilization
majority of instances, you can handle all the details     Center for Minority Veterans
required to prevail in your well grounded claim.          Office of Employment Discrimination
                                                          Complaint Adjudication
We encourage veterans to participate in the political     General Counsel
landscape and to help other veterans do the same.         Board of Veterans' Appeals
If you aren’t voting and if your Congressman              Special Assistant to the Secretary for
doesn’t hear from you, you have no voice.                 Veterans Service Organizations Liaison
                                                          Center for Women Veterans
Standing on the sidelines anonymously
complaining through a site on the Internet is             If you elect to correspond to VACO, your
pointless. There are any number of places you             message will be read. Whether or not it gets
can go on the Internet and remain in the shadows          quick and positive attention is up to you.
and bitch about how wrong everyone is.
                                                          Don’t write seeking help with problems that are
This isn’t one of those sites.                            routine. If you write to say that your claim was
                                                          wrongfully denied or that it’s taking too long to get
Please feel free to comment. We’ve provided you a         your benefits, your message will only be diverted
page for just that purpose. Speak up. I promise you       back to the regional office. Otherwise, if you have
that your comments are going to be read by people         a legitimate issue and can’t seem to get past the
who can make things happen. They are listening            paperwork, try a message directly to VACO.
when you speak here. Sign your name to it.
                                                          The rules are no different than any other                                t     TOC    u                                           Page 3

correspondence with VA. Be brief. Stay focused             email to me will solve the issue very quickly.
and state your issue clearly. Be courteous and
respectful. Use certified mail, RRR only.                  This Is Not Legal Advice.
                                                           Jim Strickland is not an attorney. You should
Include copies of any evidence you think may be            always seek the advice of an attorney who
relevant. Don’t throw in copies of laws or regulations     is qualified in veterans' law before you make
you think may apply, they already know all that.           any decisions about your own benefits.

If at all possible, keep it to a single page...two at      Traditions
the very most. If you can’t explain your problem           Larry Scott, founder of the original VAWatchdog
in that much space, you need to have someone               dot Org said it best when he posted:
to help you whittle it down to the basics.
                                                           This is NOT a VA hate site. We believe the VA offers
That’s it. It’s that simple. You may be                    the best healthcare in this country. And independent
pleasantly surprised at the response.                      studies by such prestigious organizations as the
                                                           Rand Corporation prove it time and again. This site is
                                                           designed to keep an eye on those who fund and run
                                                           the VA... the politicians and the political appointees
VAWatchdogToday dot Org Mission                            who don't have to worry about healthcare.
& Values Statement
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a positive difference in the lives of American             policy, regulation and veterans benefits changes
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tradition of VAWatchdog dot Org founder Larry              veterans issues. And, what you won't find here
Scott, we will accomplish this goal by providing           is as important as what you will find. You won't
guests information that is relevant and useful to          find rumors, rants or conspiracy theories here...
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and unerring courtesy in our communications.
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We use third-party advertising companies to serve          Look in that column of links to the left, above.
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Fair Use Policy                                            You may write to me about anything, any time. I
We believe that materials published within                 try to answer every email, often within hours.
this web site are either in the public domain or
covered by the "Fair Use"doctrine of the United            Jim Strickland
States Copyright laws. If you believe that we have         <>
infringed upon your property in any way, an                              t      TOC      u                                          Page 4

A soldier will fight long and hard                          her to be in bed. They must be based on the actual
for a bit of colored ribbon.                                requirement of personal assistance from others.
Napolean Bonaparte
                                                            (b) Basic criteria for the higher level aid
                                                            and attendance allowance. (1) A veteran is
Aid and Attendance                                          entitled to the higher level aid and attendance
                                                            allowance authorized by §3.350(h) in lieu of the
Title 38: PART 3                                            regular aid and attendance allowance when
§ 3.352 Criteria for determining need for aid and           all of the following conditions are met:
attendance and “permanently bedridden.”
                                                            (i) The veteran is entitled to the compensation
a) Basic criteria for regular aid and attendance            authorized under 38 U.S.C. 1114(o), or
and permanently bedridden. The following will               the maximum rate of compensation
be accorded consideration in determining the                authorized under 38 U.S.C. 1114(p).
need for regular aid and attendance (§3.351(c)(3):
inability of claimant to dress or undress himself           (ii) The veteran meets the requirements for
(herself), or to keep himself (herself) ordinarily clean    entitlement to the regular aid and attendance
and presentable; frequent need of adjustment of             allowance in paragraph (a) of this section.
any special prosthetic or orthopedic appliances
which by reason of the particular disability cannot         (iii) The veteran needs a “higher level of care” (as
be done without aid (this will not include the              defined in paragraph (b)(2) of this section) than is
adjustment of appliances which normal persons               required to establish entitlement to the regular
would be unable to adjust without aid, such as              aid and attendance allowance, and in the absence
supports, belts, lacing at the back, etc.); inability of    of the provision of such higher level of care the
claimant to feed himself (herself) through loss of          veteran would require hospitalization, nursing
coordination of upper extremities or through extreme        home care, or other residential institutional care.
weakness; inability to attend to the wants of nature;
or incapacity, physical or mental, which requires           (2) Need for a higher level of care shall be considered
care or assistance on a regular basis to protect the        to be need for personal health-care services provided
claimant from hazards or dangers incident to his or         on a daily basis in the veteran's home by a person
her daily environment. “Bedridden” will be a proper         who is licensed to provide such services or who
basis for the determination. For the purpose of             provides such services under the regular supervision
this paragraph “bedridden” will be that condition           of a licensed health-care professional. Personal
which, through its essential character, actually            health-care services include (but are not limited to)
requires that the claimant remain in bed. The fact          such services as physical therapy, administration of
that claimant has voluntarily taken to bed or that a        injections, placement of indwelling catheters, and
physician has prescribed rest in bed for the greater        the changing of sterile dressings, or like functions
or lesser part of the day to promote convalescence or       which require professional health-care training or
cure will not suffice. It is not required that all of the   the regular supervision of a trained health-care
disabling conditions enumerated in this paragraph           professional to perform. A licensed health-care
be found to exist before a favorable rating may be          professional includes (but is not limited to) a doctor of
made. The particular personal functions which the           medicine or osteopathy, a registered nurse, a licensed
veteran is unable to perform should be considered           practical nurse, or a physical therapist licensed to
in connection with his or her condition as a whole.         practice by a State or political subdivision thereof.
It is only necessary that the evidence establish that
the veteran is so helpless as to need regular aid           (3) The term “under the regular supervision of
and attendance, not that there be a constant need.          a licensed health-care professional”, as used in
Determinations that the veteran is so helpless,             paragraph (b)(2) of this section, means that an
as to be in need of regular aid and attendance              unlicensed person performing personal health-
will not be based solely upon an opinion that the           care services is following a regimen of personal
claimant's condition is such as would require him or        health-care services prescribed by a health-care                              t      TOC    u                                          Page 5

professional, and that the health-care professional       From The VA...
consults with the unlicensed person providing the
health-care services at least once each month to          The A & A benefit is one of the more misunderstood
monitor the prescribed regimen. The consultation          of all. The best information comes directly
need not be in person; a telephone call will suffice.     from the VA web site. It's sometimes hard
                                                          to find so I'll paste in in here for you.
(4) A person performing personal health-care services
who is a relative or other member of the veteran's        The basics:
household is not exempted from the requirement
that he or she be a licensed health-care professional     The documentation that should be provided
or be providing such care under the regular               must be perfect. Statements from physicians,
supervision of a licensed health-care professional.       financial statements, etc. must have everything
                                                          required and more if you expect smooth sailing.
(5) The provisions of paragraph (b) of this               No shortcuts are allowed and a shortcut is a sure
section are to be strictly construed. The higher          way to see a speedy (or not so speedy) denial.
level aid-and-attendance allowance is to be
granted only when the veteran's need is clearly           Caution: Don't confuse A & A or Housebound
established and the amount of services required           benefits with Special Monthly Compensation
by the veteran on a daily basis is substantial.           (SMC). Each of those benefits may add more
(Authority: 38 U.S.C. 501, 1114(r)(2))                    money to a severely disabled veteran's award
                                                          but each benefit has its own pathway.
(c) Attendance by relative. The performance of
the necessary aid and attendance service by               From the VA:
a relative of the beneficiary or other member
of his or her household will not prevent the              What are Aid and Attendance and
granting of the additional allowance.                     Housebound benefits?

                                                          * Aid and Attendance (A&A) is a benefit paid in
Update: 10/15/2009                                        addition to monthly pension. This benefit may
                                                          not be paid without eligibility to pension. A
My friend John Crotty is a CVSO in New York. John         veteran may be eligible for A&A when:
looked over my writing on the A & A benefit and was
kind enough to let me know of a new twist to A & A:       1. The veteran requires the aid of another
                                                          person in order to perform personal functions
"Hi Jim, Today’s Q&A on A&A caught my eye                 required in everyday living, such as
as I’ve been educating myself on this since               bathing, feeding, dressing, attending to the
my last communication with you on A&A.                    wants of nature, adjusting prosthetic devices,
                                                          or protecting himself/herself from the
The new 21-2680 [Jun 2008] is much much better for        hazards of his/her daily environment, OR,
the Vet than the old one which left a lot of wiggle
room for the VA to read in or out of the Veterans         2. The veteran is bedridden, in that his/
real disability status. On the new form items 21          her disability or disabilities requires that he/
thru 27 are yes and no. A phone call or letter to         she remain in bed apart from any
the doctor explaining what the VA needs to hear           prescribed course of convalescence or treatment, OR,
has been very effective to produce success."
                                                          3. The veteran is a patient in a nursing home
Thanks John!                                              due to mental or physical incapacity, OR,

Click here for that VA Form 21-2680.                      4. The veteran is blind, or so nearly blind
                                                          as to have corrected visual acuity of 5/200
                                                          or less, in both eyes, or concentric                              t      TOC     u                                        Page 6

contraction of the visual field to 5 degrees or less.
                                                           * Whether the claim is for Aid and Attendance or
* Housebound is paid in addition to monthly                Housebound, the report should indicate how well the
pension. Like A&A, Housebound benefits may                 individual gets around, where the individual goes,
not be paid without eligibility to pension.                and what he or she is able to do during a typical day.

A veteran may be eligible for
Housebound benefits when:

1. The veteran has a single permanent
disability evaluated as 100-percent disabling
AND, due to such disability, he/she is
permanently and substantially confined
to his/her immediate premises,


2. The veteran has a single permanent
disability evaluated as 100-percent disabling
AND, another disability, or disabilities,
evaluated as 60 percent or more disabling.

A veteran cannot receive both Aid and Attendance
and Housebound benefits at the same time.

How to Apply for Aid and Attendance
and Housebound:

* You may apply for Aid and Attendance or
Housebound benefits by writing to the VA regional
office having jurisdiction of the claim. That would be
the office where you filed a claim for pension benefits.
If the regional office of jurisdiction is not known, you
may file the request with any VA regional office.

* You should include copies of any evidence,
preferably a report from an attending
physician validating the need for Aid and
Attendance or Housebound type care.

* The report should be in sufficient detail to determine
whether there is disease or injury producing physical
or mental impairment, loss of coordination, or
conditions affecting the ability to dress and undress,
to feed oneself, to attend to sanitary needs, and to
keep oneself ordinarily clean and presentable.

* In addition, it is necessary to determine
whether the claimant is confined to the
home or immediate premises.                             t      TOC    u                                        Page 7

Giving money and power to government is like             CFR Code of Federal Regulations (VA
giving whiskey and car keys to teenage boys.             regulations are contained in Title 38 of
P.J. O'Rourke                                            the Code of Federal Regulations.)

Acronyms                                                 CHAMPVA Civilian Health & Medical Program
                                                         of the Department of Veterans Affairs
A & A Aid and Attendance
                                                         CHF Congestive Heart Failure
ADL Activities of Daily Living                           CMOP Consolidated Mail Order Pharmacy;
                                                         A contracted provider and supplier of
AMI Acute Myocardial Infarction (Also Acute              medicines prescribed to the veteran
Coronary Syndrome - Heart Attack)                        by various health care providers.
AMIE Automated Medical Information Exchange
                                                         CO Central Office
AO Agent Orange (Herbicide, Dioxin)
                                                         COBRA Consolidated Omnibus Budget
ARPERCEN Army Reserve Personnel Records Center           Reconciliation Act of 1985

AWOL Absent WithOut Leave                                COLA Cost-0f-Living Adjustment
                                                         COVERS Control of Veterans Records System
ARNP Advanced Registered Nurse Practitioner              C & P Compensation and Pension (C&P
BDN Benefits Delivery Network                            Exam, C&P Division of VBA)

"A Marine of the 1st Marine Division draws a             CPRS Computerized Patient Record System
bead on a Japanese sniper with his tommy-gun
as his companion ducks for cover. The division is        DD 214 A discharge document providing confirmation
working to take Wana Ridge before the town of            of military service and many details of service.
Shuri." S.Sgt. Walter F. Kleine, Okinawa, 1945.
                                                         DIC Dependency Indemnity Compensation;
                                                         A monthly Benefit paid to eligible
BVA Board of Veterans Appeals; An organization           survivors of certain veterans.
outside the RO established to adjudicate cases where
veterans have disagreed with the findings of the RO.     DoD Department of Defense

CAD Coronary Artery Disease                              DRO Decision Review Officer; The DRO is a
                                                         senior individual with authority to review
CAT Computerized Axial Tomography                        and revise adjudications made by others.
(CAT Scan, Radiology Imaging)
                                                         DVA Department of Veterans Affairs; The proper term
CAPRI Compensation and Pension                           for VA. In common use either term is acceptable.
Records Interchange
                                                         ED Erectile Dysfunction; The inability to achieve and
CBOC Community Based Outpatient                          maintain an erection suitable for sexual intercourse.
Clinic; A facility generally providing access            EP end product (claims control)
to outpatient health care needs.
                                                         FUBAR Fouled Up Beyond All Recognition
CDC Centers for Disease Control
                                                         IU Individual Unemployability
C-File Claims File or Claims Folder, the materials
and evidence gathered about you and your claim           KG Kilograms                             t     TOC   u                                            Page 8

KM KiloMeter (Often; Click or Klick)                    RO Regional Office; VA has 57 Regional Offices
                                                        throughout the US and other territories.
KM/H KiloMeters per Hour
                                                        RVSR Ratings Veterans Service Representative,
Knot Aviation and maritime unit of velocity             the decision maker to your claim

LT Lieutenant                                           SGT Sergeant

LTC Lieutenant Colonel                                  SMR Service Medical Record

M21-1MR A guide for use by VBA staff to                 SNAFU Situation Normal, All Fouled Up
determine outcomes of your claims
                                                        TAC Tactical Air Command
MRI Magnetic Resonance Imaging An advanced
medical imaging technique that allows                   USAF United States Air Force
physicians to peer deep into joints, organs and
other places within the body that traditional           USAFE United States Air Force in Europe
x-rays won't display. It doesn't replace all other
techniques but often supplements a diagnosis            USMC United States Marine Corps

MST Military Sexual Trauma; Sexual assault or           USN United States Navy
rape upon a member of the military by a member
of the military whether male or female.                 WO Warrant Officer

NAS Naval Air Station                                   VA Veterans Administration; More proper is the
                                                        current term: Department of Veterans Affairs
Nexus A word meaning connection; In the VA
disability claims process a nexus letter is often       VARO VA Regional Office
required to prove that a condition is connected to
an event in service and is thus service connected.      VBA Veterans Benefits Administration, one of the
The nexus letter is usually best if written by a        business units of the DVA, gatekeeper to benefits
physician who has knowledge of the veteran's            VISTA (VistA) Veterans Health Information
history and current condition. The author of the        Systems and Technology Architecture
nexus letter must be qualified by training and
experience to render the required opinion.              VSC Veterans Service Center; The more modern
NPRC National Personnel Records Center                  and proper term for Regional Office.

PCP Primary Care Physician or Practitioner or           VSCM Veterans Service Center Manager;
Provider; The health care professional who              The manager or director of the RO.
is generally responsible for overseeing and             VSO Veterans' Service Organization
coordinating the veterans health care.
PIES Personnel Information Exchange System              VSO Veterans Service Officer

PFC Private First Class                                 VSR Veterans Service Representative, a VBA
                                                        employee accountable for early work on your claim
P & T Permanent and Total; Referring to a disabling     WIPP (WIP)work in progress
condition as being totally disabling as well as
permanent in nature. The P & T designation is
required to be eligible for some benefits.
POA power of attorney                               t     TOC    u                                          Page 9

Yes, there is a story about Agent Orange, and we          Agent Orange & Korea
knew that it harmed our troops and we knew how
long it was to get the medical community to accept        12/03/2010
that, the military to accept it, the VA to accept it.
Christopher Shays                                         Will Pleasants of Kannapolis, NC is a proud
                                                          Member of American Legion Post 342, Salisbury,
                                                          NC and VFW Post 3006, Salisbury, NC.

Have you discovered a broken link? A typo?                Will wrote to share this helpful bit of data:
Please report it to me <>
                                                          "I was denied Agent Orange Benefits after serving
                                                          in Korea in 1968. I was denied because my Unit,
There is so much information available about              the 2nd Military Police Company was NOT on the
Agent Orange it's not possible for me to list             infamous "Presumptive Units List" of units DOD
it here. Below are some of the thousands of               said was exposed to Agent Orange. I found out
resources I use to keep up with this constantly           many of my Brothers that served in Korea in the
changing landscape of knowledge about                     2nd Military Police Company were also denied
America's use of the chemical Dioxin.                     benefits and many were suffering the effects of
                                                          Agent Orange. Many have already passed.
If you want more, much more, click on
one or all of these 4 links here:                         I began a campaign to get the 2nd Military Police
                                                          Company added to the 'Presumptive Units List.'
Link One                                                  After a year plus work, digging up documents from
                                                          40 plus years ago and support from Senator Burr's
Link Two                                                  staff I received the below e-mail from the DVA C&P
                                                          Office to Brooks Tucker of Senator Burr's staff.
Link Three
                                                          It would be appreciated if you could help get
Link Four                                                 the word out to those that served and may need
                                                          medical care they have so far been refused,
The Orange Stripe
                                                          After this was sent to me, several of my fellow MP's
                                                          that had claims pending up to 4 years were approved
The Alvin L.Young Collection On Agent Orange              for Agent Orange exposure in Korea in 1968-69. As
                                                          I said, they had been fighting the fight for 4 years
                                                          after being denied benefits due to the Company
                                                          being left off the Infamous Presumptive Units List."

                                                          This is that email confirming his success;

                                                          Brown, Justin (VACO)
                                                          Subject: VA Inquiry regarding Agent Orange
                                                          Presumptive List for Units in Korea

                                                          Attached is the response to your inquiry. Also, I have
                                                          received your request for a briefing and will get back
                                                          to you as soon as possible. Please let me know if you
                                                          have any additional questions and have a great week!

                                                          C&P Service has determined that the 2nd Military
                                                          Police Company of the 2nd Infantry Division should                              t       TOC      u                                         Page 10

be added to the list of units that operated at or near       Vietnam, you don't have to prove either exposure
the Korean demilitarized zone (DMZ) between April            to dioxin or the origin of any of these conditions
1968 and July 1969. DoD has acknowledged that                should you be diagnosed with one of them.
tactical herbicides, such as Agent Orange, were used
along the DMZ during that time frame. Although DoD           For all other conditions, you must be able to
information served to establish the initial list, research   provide proof of exposure as well as a nexus to
conducted by JSRRC (Army and Joint Services Records          the cause. This is known as a 'direct connection'
Research Center) and C&P Service continues to                as opposed to a 'presumptive' connection.
periodically add units to the list. M21-1MR contains
the list and is updated as units are added. A proposed       * Chloracne (Must occur within one year
regulation has been published in the Federal Register        of exposure to Agent Orange)
that would create a presumption of tactical herbicide
exposure for Veterans who served in one of these             * Porphyria Cutanea Tarda (Must occur
units during the time frame of herbicide use.                within one year of exposure)

The 2nd Military Police Company of the 2nd Infantry          * Acute or Subacute Peripheral Neuropathy (The term
Division should be added to the list because an              acute and subacute peripheral neuropathy means
official history of that unit, dated February 10,            temporary peripheral neuropathy that appears within
1969, shows that the unit, "Maintained control of            weeks or months of exposure to an herbicide agent
traffic and Korean Nationals crossing Freedom and            and resolves within two years of the date of onset.)
Libby Bridges." A map of the Korean DMZ shows
that Freedom Bridge is approximately one mile                * Type 2 Diabetes
from the DMZ. This places the unit near the DMZ
and indicates that its members likely responded              * Non-Hodgkin’s Lymphoma
to incidents occurring even closer to the DMZ.
                                                             * Soft Tissue Sarcoma
You can reach out to Will by emailing
him <>                                  * Hodgkin’s Disease

Will Pleasants                                               * Multiple Myeloma
American Legion Post 342: Finance Officer
Rowan County American Legion Baseball: Treasurer             * Prostate Cancer

The moral of the story: One veteran,                         * Respiratory Cancers (Including cancers of
working hard and acting in good faith, can                   the lung, larynx, trachea, and bronchus)
make a difference to other veterans.
                                                             * Chronic Lymphocytic Leukemia
Thank you Will. We salute you sir.
                                                             * Spina Bifida

Agent Orange Basic Knowledge                                 * *VA may provide benefits for children with birth                              defects who were born to female Vietnam veterans.

Agent Orange
(The Presumptive List)

The AO "Presumptive List" is the grouping of
conditions that VA has ceded are somehow connected
to exposure to Agent Orange during Vietnam
service. If you had 'boots on the ground' service in                            t      TOC    u                                           Page 11

Agent Orange Registry/Health Exam                       If I were asked to give what I consider the single most                         useful bit of advice for all humanity it would be this:
exposures/agentorange/registry.asp                      Expect trouble as an inevitable part of
                                                        life and when it comes, hold your head
                                                        high, look it squarely in eye and say,
Brown Water Navy                                         ‘I will be bigger than you. You cannot defeat me.’
                                                        Ann Landers
My friend Roy Adams is the Service Officer at VFW
Post (5025) in beautiful Crossville, Tennessee.         Also see Apportionment & Obligee,
                                                        Obligor & Apportionment below
Roy reminded me that official information about
the Brown Water Navy, those men who served
so bravely and well, is hard to come by.                Here is the 5301 code that many believe frees
                                                        them from child support and alimony.
I was up to the task and put together
some data and links here.                               VETERANS’ ADVOCATE JIM STRICKLAND
                                                        EXPLODES THE “5301” MYTH
Thanks Roy.
                                                        “State court jurisdiction is not preempted
I couldn't do what I do without all my brothers and     by any federal statute. Courts can establish
sisters here helping me to put it all together.         child support orders even if the non-
                                                        custodial parent received veteran’s disability
This section is for you and all my friends              benefits as his sole means of support.”
in Crossville. Thanks for your service.
                                                        Divorce is messy. Lawyers who practice family law
A little history...                                     see some of the ugliest confrontations between
                                                        people possible. There’s no way to predict what one
It's often accepted that there are 3 waters             spouse will do or say to extract revenge on the other.
the Navy sails in; blue, green and brown.
                                                        That it will get down and dirty is a given.
The difference to the Vietnam veteran is one            When children and money are involved, it’s
of generous benefits v. no benefits at all.             likely to become nastier by a country mile.                             The veteran wrote to me about his child
                                                        support obligation and how it will be seen
Brown Water Navy Wiki                                   by the family court system in the calculation
                                                        of his child support obligation.
Images of Brown Water
                                                        “Jim: I am currently service connected for multiple
Brown Water, Red Blood                                  medical condition with a combined rating of 80%. I
                                                        am drawing $1547 per month for self and spouse.
Riverine Warfare
                                                        I retired (from work) 01/02/09 and had my annual
YouTube Tribute                                         income cut by approximately 32%. Prior to my
                                                        retirement, I was paying child support for 1 kid in
                                                        the amount of $826.15. Based on my new retirement
                                                        income, I started working with the State Bureau of
                                                        Child Support Enforcement to have my child support
                                                        recalculated based on my retired pay. Before the
                                                        they could help me, the mother had me served
                                                        with court papers relevant to the modification of                                t     TOC    u                                          Page 12

an existing 2002 Child Support Order. During a             serve. The judge presiding in the courtroom must
court hearing, the attorney for the child’s mother         carefully read the law and then interpret what he
raised the issue that my VA Compensation Monthly           believes to be the intent of Congress when the law
Check of $1547 was not included in calculating             was formulated. If you’ve followed legal matters
the new child support monthly payment.                     you’ve read of the expressions of “the letter of
                                                           the law” as opposed to “the intent of the law”.
My question is ‘Can a State Family Court use my VA
compensation as income to calculate a new monthly          To try to interpret law only by using the precise
Child Support payment?’ I have read USC Title 38           language or letter of the law is a mistake that
concerning VA compensation and it appears to               far too many lay readers will make. Lawyers
me that my VA compensation can not be attached             and judges understand that while the literal
for Child Support. Do you have any information             interpretation is important, the intent of the
on VA compensation being used as income to                 body of lawmakers is even more important.
calculate Child Support payment amounts? I really
need help with this matter ASAP. Thank You.”               In the examination of 5301 we must try to determine
                                                           what the Congress intended at the moments the law
When he refers to “USC Title 38 concerning VA              was proposed and passed. Once a law is passed, the
compensation” I know he’s speaking of Title 38,            members of Congress will change, society at large
Part IV, Chapter 53 § 5301, Nonassignability and           will change and even the office of the president may
exempt status of benefits. I’ve heard a lot about          see a new shift to the left or right. The law that was
this “5301 rule” over the last two or three years.         passed is still there, unchanged for years to come.

This is a complex and lengthy piece of                     Language is a poor way to communicate. Words
legislation, you can read it for yourself here             don’t have the precision of numbers. If you add 2 +
                                                           2 it’s going to equal 4 this year and on into the next
We’ll refer to it as “5301” for the sake of brevity.       century. Knowing that words have subtleties that
                                                           can’t be seen as clearly as a mathematical equation,
In plain English language, 5301 seems to tell              enforcers of our laws must look deep between the
us that there are almost no circumstances that             lines to determine the intent of a particular statute.
anyone can collect a veterans disability payment
for any debt he might owe. It does say that any            I asked a learned friend, a lawyer who I trust to know
federal debt may be exempted (IRS, school loans,           these things, for his opinion. His reply was brief and to
etc.) but that all other creditors are forbidden to        the point; “As I expected, there are a number of cases
demand any amount of the disability compensation           already on this point. In sum, the courts are consistent
money. This applies whether before or after it is          in finding that the statute protects veterans from
received by the veteran. In other words, it can’t          ‘creditors’ and related ‘process’ and ‘spouses’ using
be garnished like a paycheck. Once it’s in the             ‘marital property laws’ are not ‘creditors.’ Whether you
veterans hands it can’t be touched so long as it’s         agree with it or not, that is how 5301 is interpreted.”
identified as money from a Department of Veterans
Affairs (DVA) disability compensation payment.             In an article written by Attorney Zenell Brown
                                                           the author points out that the Supreme Court
Before we travel farther down the path of 5301, we         addressed the issue in Rose v. Rose 107 S.Ct. 2029
should talk briefly about how federal laws are made.       (1987)
In a nutshell, a bill is introduced by a Congressional
Representative that proposes a law. It passes before       Attorney Brown notes that, “The Court held that
committees in the House and in the Senate and              state courts can establish child support orders
eventually finds its way to the desk of the President.     even if the non-custodial parent received veteran’s
Published in the Federal Register it then becomes law.     disability benefits as his sole means of support.”
                                                           He goes on to tell us, “State court jurisdiction
As it becomes law, the courts then apply it to             is not preempted by any federal statute.”
everyday circumstances of the citizens they                               t       TOC    u                                             Page 13

If I were asked to give what I consider the single most     Before the they could help me, the mother had me
useful bit of advice for all humanity it would be this:     served with court papers relevant to the modification
Expect trouble as an inevitable part of                     of an existing 2002 Child Support Order. During a
life and when it comes, hold your head                      court hearing, the attorney for the child's mother
high, look it squarely in eye and say,                      raised the issue that my VA Compensation Monthly
 'I will be bigger than you. You cannot defeat me.'         Check of $1547 was not included in calculating
Ann Landers                                                 the new child support monthly payment.

                                                            My question is 'Can a State Family Court use my VA
Alimony and child support                                   compensation as income to calculate a new monthly
                                                            Child Support payment?' I have read USC Title 38
Also see Apportionment & Obligee,                           concerning VA compensation and it appears to
Obligor & Apportionment below                               me that my VA compensation can not be attached
                                                            for Child Support. Do you have any information
Here is the 5301 code that many believe frees               on VA compensation being used as income to
them from child support and alimony.                        calculate Child Support payment amounts? I really
                                                            need help with this matter ASAP. Thank You."
EXPLODES THE "5301" MYTH                                    When he refers to "USC Title 38 concerning VA
                                                            compensation" I know he's speaking of Title 38,
"State court jurisdiction is not preempted                  Part IV, Chapter 53 § 5301, Nonassignability and
by any federal statute. Courts can establish                exempt status of benefits. I've heard a lot about
child support orders even if the non-                       this "5301 rule" over the last two or three years.
custodial parent received veteran's disability
benefits as his sole means of support."                     This is a complex and lengthy piece of
                                                            legislation, you can read it for yourself here
Divorce is messy. Lawyers who practice family law
see some of the ugliest confrontations between              We'll refer to it as "5301" for the sake of brevity.
people possible. There's no way to predict what one
spouse will do or say to extract revenge on the other.      In plain English language, 5301 seems to tell
                                                            us that there are almost no circumstances that
That it will get down and dirty is a given.                 anyone can collect a veterans disability payment
When children and money are involved, it's                  for any debt he might owe. It does say that any
likely to become nastier by a country mile.                 federal debt may be exempted (IRS, school loans,
                                                            etc.) but that all other creditors are forbidden to
The veteran wrote to me about his child                     demand any amount of the disability compensation
support obligation and how it will be seen                  money. This applies whether before or after it is
by the family court system in the calculation               received by the veteran. In other words, it can't
of his child support obligation.                            be garnished like a paycheck. Once it's in the
                                                            veterans hands it can't be touched so long as it's
"Jim: I am currently service connected for multiple         identified as money from a Department of Veterans
medical condition with a combined rating of 80%. I          Affairs (DVA) disability compensation payment.
am drawing $1547 per month for self and spouse.
                                                            Before we travel farther down the path of 5301, we
I retired (from work) 01/02/09 and had my annual            should talk briefly about how federal laws are made.
income cut by approximately 32%. Prior to my                In a nutshell, a bill is introduced by a Congressional
retirement, I was paying child support for 1 kid in         Representative that proposes a law. It passes before
the amount of $826.15. Based on my new retirement           committees in the House and in the Senate and
income, I started working with the State Bureau             eventually finds its way to the desk of the President.
of Child Support Enforcement to have my child               Published in the Federal Register it then becomes law.
support recalculated based on my retired pay.                              t       TOC     u                                             Page 14

As it becomes law, the courts then apply it to              is not preempted by any federal statute."
everyday circumstances of the citizens they
serve. The judge presiding in the courtroom must            Importantly, and I believe this is at the heart of
carefully read the law and then interpret what he           the discussion about the obligations of a parent,
believes to be the intent of Congress when the law          Brown says, "It was the Court's position that
was formulated. If you've followed legal matters            Congress intended that these benefits provide
you've read of the expressions of "the letter of            for the veteran as well as his dependents."
the law" as opposed to "the intent of the law".
                                                            It's not much of a reach to understand that when
To try to interpret law only by using the precise           Congress enacted this 5301 law, the intent was to
language or letter of the law is a mistake that             protect the veteran and his family from unscrupulous
far too many lay readers will make. Lawyers                 creditors if and when the veteran were to fall on hard
and judges understand that while the literal                times. In the eyes of Congress and the courts, the
interpretation is important, the intent of the              family unit remains just that even after divorce when
body of lawmakers is even more important.                   children are involved. The veteran's obligations to the
                                                            family aren't relieved because of divorce or disability.
In the examination of 5301 we must try to determine
what the Congress intended at the moments the law           The article goes on to say that in some few states
was proposed and passed. Once a law is passed, the          there is considerable controversy about interpretation
members of Congress will change, society at large           of the 5301 law and that overall it's, "ripe for litigation".
will change and even the office of the president may
see a new shift to the left or right. The law that was      In the case of a child support order, arguing the
passed is still there, unchanged for years to come.         5301 rule seems to be moot. While the DVA will not
                                                            support garnishment or attachment of a disability
Language is a poor way to communicate. Words                compensation payment (arguing that DVA doesn't
don't have the precision of numbers. If you add 2 +         want to become a collection agency for the children's
2 it's going to equal 4 this year and on into the next      and family services divisions of every state) DVA will
century. Knowing that words have subtleties that            easily allow " apportionment" of that same money.
can't be seen as clearly as a mathematical equation,        For a custodial parent to apportion a sum of the
enforcers of our laws must look deep between the            disability compensation payment is a simple matter
lines to determine the intent of a particular statute.      of writing a letter to the Regional Office that controls
                                                            the veterans file and providing a copy of an order
I asked a learned friend, a lawyer who I trust to know      for child support and some financial information.
these things, for his opinion. His reply was brief and to
the point; "As I expected, there are a number of cases      The veteran is then notified of the apportionment
already on this point. In sum, the courts are consistent    request and given the usual opportunities for appeal.
in finding that the statute protects veterans from          In my experience, VA quickly defaults to the needs
'creditors' and related 'process' and 'spouses' using       of the child and the custodial parent and begins to
'marital property laws' are not 'creditors.' Whether you    assign the requested amount within a short time.
agree with it or not, that is how 5301 is interpreted."
                                                            Once apportionment is established, that amount
In an article written by Attorney Zenell Brown              of money is forwarded directly to the custodial
the author points out that the Supreme Court                parent. This path of providing for the family of the
addressed the issue in Rose v. Rose 107 S.Ct. 2029          veteran has a unique pitfall of its own that most
(1987)                veterans won't discover until it's far too late.

Attorney Brown notes that, "The Court held that             When a child support obligation is ordered in a state
state courts can establish child support orders             family court, the usual standard is that the money
even if the non-custodial parent received veteran's         is delivered to the state agency of child support
disability benefits as his sole means of support."          enforcement. Whether the money is to be withheld
He goes on to tell us, "State court jurisdiction            from paychecks or mailed in by the obligor, the                                 t         TOC    u                                            Page 15

money must be accounted for by the state agency                 parents work hard to remain in the lives of
responsible. Non-custodial parents are sometimes                their kids and to provide the financial support
shocked to discover that cash given directly to                 that the children often desperately need.
children for special events, birthdays and the like,
aren't counted toward the child support obligation.             It isn't always that way though. The laws of the
If the state doesn't track it officially, it didn't happen.     states have become harsh and unforgiving for the
                                                                obligate parents because of the history of those who
In the case of the custodial parent who writes                  will stop at nothing to dodge their responsibilities.
to the DVA asking for an apportionment, if that                 Over the last few years the pendulum has swung
parent prevails, the DVA sends a check directly                 far over to the side of stiff requirements and rigid
to the parent obligee. That money thus bypasses                 enforcement of family court orders. Magistrates and
the state agency and isn't accounted for. Then                  judges have almost no leeway in establishing the
later, the state may notify the obligor parent                  amounts of an obligation as they're only allowed
to say that s/he hasn't met the requirements                    to use the data from a financial report to establish
and enforcement actions will occur soon.                        the numbers of the dollars owed each month.

Once it's discovered that the apportionment                     Even divorcing spouses who want to make their
money wasn't counted, I know of no cases                        own agreements are often not allowed to do so. The
where that money has been forgiven and                          courts know that in months or years, these sorts of
credited to the obligated parent.                               arrangements have little chance of lasting. Today's
                                                                family courts are overcrowded with couples who
Recent efforts by some veterans groups                          want to publicly argue the smallest details down to
to require states to reinterpret the 5301                       the nth degree. As the courts are becoming more
law fall mostly on deaf ears.                                   crowded with shouting ex-spouses, they're more
                                                                disinclined to hear it and so they simply set the orders
In March of 2009, Iowa House File 170 was                       and then pass it on to the appropriate enforcement
excluded from further consideration by the                      bodies. Some states today will only hear pleas for
legislature. The bill would have excluded (per                  modification of family court orders every two years.
5301) veterans disability compensation payments
in calculations of the amount of the court                      The bottom line is that for the foreseeable future,
ordered child support or alimony obligation.                    a veteran who has a child support or alimony
                                                                order should not depend on the remote possibility
By not giving House File 170 further consideration,             that the 5301 law will offer any relief. Any veteran
the Iowa legislature reinforced the way the family              entering into a divorce should be represented
courts are currently enforcing alimony and child                by an experienced lawyer who will guide the
support obligations. The veterans activists movement            veteran to a reasonable conclusion and an order
to revise law to help them avoid a child support                than will likely be based on the payment of a DVA
or alimony obligations has backfired and led to                 disability compensation amount as income.
a stronger support of the current decisions.
                                                                The best divorce agreement and subsequent                      alimony and/or child support order is one
0090313/NEWS10/903130377/1001/NEWS                              that has been carefully considered long
                                                                before coming to face the judge.
(Also DOA was Iowa House File 66, "Veterans
organizations wouldn't have to pay anything                     Divorce and the financial burden that will come
for a class A liquor license, regardless of how                 along with having children will be painful.
much liquor they sell." Connected? Hmmm?)
                                                                Just how painful it will be and how long
Most of us who divorce when there are children                  the hurt lasts is largely up to you.
in the mix want to do what we can to care for
those kids. The great majority of non-custodial                             t        TOC    u                                         Page 16

Apportionment                                              (a)(1) All or any part of the pension, compensation,
                                                           or emergency officers' retirement pay payable on
Apportionment requires VA Form 21-0788, which              account of any veteran may be apportioned.
can be found at
VBA-21-0788-ARE.pdf and submit it to the Regional          (i) On behalf of his or her spouse, children, or
Office that has jurisdiction over the veteran’s claim.     dependent parents if the veteran is incompetent
                                                           and is being furnished hospital treatment,
Apportionment is very similar to wage garnishment.         institutional, or domiciliary care by the United
The VA will hear requests for apportionment from           States, or any political subdivision thereof.
spouses or other dependents to whom the veteran
may be required to pay child support or alimony.           (ii) If the veteran is not residing with his or
                                                           her spouse, or if the veteran's children are not
The veteran will be allowed an opportunity to              residing with the veteran and the veteran is not
appeal an application for apportionment. The               reasonably discharging his or her responsibility
timeliness and other requirements are strict and           for the spouse's or children's support.
the veteran must pay close attention to the details
outlined in the apportionment proceeding notice.           (2) Where any of the children of a deceased veteran
                                                           are not living with the veteran's surviving spouse,
The veteran who receives notification that an              the pension, compensation, or dependency and
apportionment request has been made must                   indemnity compensation otherwise payable to
act quickly. The veteran may ask for a personal            the surviving spouse may be apportioned.
hearing to dispute the apportionment as well as            (Authority: 38 U.S.C. 5307)
ask that no deductions be made to the veteran's
compensation payment until appeals are exhausted.          (b) Except as provided in §3.458(e), no
                                                           apportionment of disability or death benefits
The most common reason for apportionment                   will be made or changed solely because a child
is child support arrears. The veteran must                 has entered active duty with the air, military,
recognize that in many states, any money                   or naval services of the United States.
collected through apportionment and delivered
to the obligee (custodial parent) may not actually         (c) No apportionment will be made where the
satisfy the state as a child support payment.              veteran, the veteran's spouse (when paid “as wife”
                                                           or “as husband”), surviving spouse, or fiduciary
Many states require that payments must be                  is providing for dependents. The additional
recorded directly through the state's child support        benefits for such dependents will be paid to the
enforcement authority or it will be classed as a           veteran, spouse, surviving spouse, or fiduciary.
"gift" and it will not be applied toward arrears.
                                                           (d) Any amounts payable for children
Learning as much as you can about                          under §§3.459, 3.460 and 3.461 will be
apportionment is your best defense.                        equally divided among the children.

Begin by clicking http://www.warms.vba.                    (e) The amount payable for a child in custody of and then read;                         and residing with the surviving spouse shall be
                                                           paid to the surviving spouse. Amounts payable
Part 3 - General Claims Process                            to a surviving spouse for a child in the surviving
SubptV - General Authorization Issues                      spouse's custody but residing with someone else
and Claimant Notifications                                 may be apportioned if the surviving spouse is not
Chapter 3 - Apportionments                                 reasonably contributing to the child's support.

Apportionments                                             (f) Prior to release of any amounts the relationship of
                                                           the claimant and the dependency of a parent will be
§ 3.450 General.                                           fully developed, and the necessary evidence secured.                               t         TOC    u                                         Page 17

(g) The provisions of §3.460 are applicable where the         Without regard to any other provision regarding
surviving spouse is entitled to a higher rate of pension      apportionment where hardship is shown to exist,
under the circumstances described in that section.            pension, compensation, emergency officers'
                                                              retirement pay, or dependency and indemnity
§ 3.452 Situations when benefits                              compensation may be specially apportioned
may be apportioned.                                           between the veteran and his or her dependents or
                                                              the surviving spouse and children on the basis of
Veterans benefits may be apportioned:                         the facts in the individual case as long as it does not
                                                              cause undue hardship to the other persons in interest,
(a) If the veteran is not residing with his or her spouse     except as to those cases covered by §3.458(b) and (c).
or his or her children and a claim for apportionment          In determining the basis for special apportionment,
is filed for or on behalf of the spouse or children.          consideration will be given such factors as: Amount
                                                              of Department of Veterans Affairs benefits payable;
(b) Pending the appointment of a                              other resources and income of the veteran and
guardian or other fiduciary.                                  those dependents in whose behalf apportionment is
                                                              claimed; and special needs of the veteran, his or her
(c)(1) Where an incompetent veteran without                   dependents, and the apportionment claimants. The
a fiduciary is receiving institutional care by the            amount apportioned should generally be consistent
United States or a political subdivision, his or her          with the total number of dependents involved.
benefit may be apportioned for a spouse or child,             Ordinarily, apportionment of more than 50 percent
or, except as provided in paragraph (c)(2), for a             of the veteran's benefits would constitute undue
dependent parent, unless such benefit is paid                 hardship on him or her while apportionment of less
to a spouse (“as wife” or “as husband”) for the               than 20 percent of his or her benefits would not
use of the veteran and his or her dependents.                 provide a reasonable amount for any apportionee.

(2) Where a married veteran is receiving section
306 or improved pension and the amount                        From Jim's Mailbag
payable is reduced under §3.551(c) because of                 posted 02-11-10
hospitalization, an apportionment may be paid to
the veteran's spouse as provided in §3.454(b).                Obligee, Obligor & Apportionment
(Authority: 38 U.S.C. 501(a); 5307; 5503(a))                  A Cautionary Tale For All Veterans

(d) Where additional compensation is payable
on behalf of a parent and the veteran or his or               Not unlike the Department of Veterans Affairs,
her guardian neglects or refuses to contribute                the Family Courts of each state are overwhelmed
such an amount to the support of the parent                   by the number of cases they face. In years past
the additional compensation will be paid                      couples would separate and divorce and any
to the parent upon receipt of a claim.                        obligations imposed upon them by the court
Cross References:                                             in a divorce decree was largely unenforceable.
                                                              Often enough one or the other would move
Institutional awards. See §3.852.                             across a state line and law enforcement agencies
Disappearance of veteran. See §3.656.                         didn't have much authority to pursue any of
Reduction because of hospitalization. See                     the issues that were there. The problems of a
§3.551. Penal institutions. See §3.666.                       divorced couple were a civil issue, not a criminal
                                                              problem and the police just weren't interested.
[26 FR 7266, Aug. 11, 1961, as amended at 27
FR 6974, July 24, 1962; 40 FR 21724, May 19,                  Family Courts evolved from this lack of authority
1975; 44 FR 45940, Aug. 6, 1979; 66 FR 48560,                 and simultaneously each state began to develop
Sept. 21, 2001; 68 FR 34542, June 10, 2003]                   its own Child Support Enforcement divisions within
                                                              the authority of the state government. The gaps
§ 3.451 Special apportionments.                               were filled in over the years until each state had a                                t     TOC    u                                         Page 18

set of laws that were all pretty similar to the other.     nothing more. The Court follows a formula to
Federal law stepped in to ensure that interstate           determine the monthly obligation and that pretty
enforcement was emphasized and enforced.                   much ends the discussion. If the obligor shows
No longer could a non-paying parent simply                 income of (x) and the obligee shows an income
walk across a state line to avoid prosecution.             of (y) the amount will be determined to be (z)
                                                           and no more is needed to be heard. Next case!
Today the general rule is that no matter where the
obligor (the parent ordered to pay) goes, he or            Each state today requires that most child support
she is followed by the rules of the state that issued      be paid to the state agency that enforces such
the divorce decree and/or where the benefiting             things. This process allows the state to ensure
children are residing. The obligee (the parent             timeliness and accounting of all payments. The
who receives and administers the child support             good old days of divorcing parents managing
payment) need only to inform the state that has            to help each other along are mostly a memory
jurisdiction that the obligor has failed to meet on        and rigid enforcement is all that's left.
obligation and that office has an effective network
to enforce the law beyond any other state borders.         Every obligor must understand that to miss the
                                                           payment to the state office so that the state may
History shows that parents ordered to pay support          distribute the money is a black mark against
were easily able to avoid such and the culture             the obligor. Without the approval of the Court,
of "deadbeat dads" became a much maligned                  payments made directly to the obligee that bypass
subset of men in our society. To this day such             the state are determined to be "gifts" and they do
parents are held up to public scorn and some               not fulfill the requirement of the divorce decree.
communities have weekly roundups of published
names and photos in local newspapers that                  This may be a deadly trap for the disabled veteran.
ridicule offenders for being such scofflaws.               Little known to veterans is a process known as
                                                           "apportionment". For more on apportionment
The pendulum has swung far in the other direction          click
over the last 40 years or so. Today, if a magistrate
of a family court orders child support it may be an        While a disability compensation payment can't
amount "impuned" by that Court and the obligation          be garnisheed by debtors, all an obligee must do
is what is owed based on what the court believes           is notify the Regional Office of jurisdiction that a
the obligor should earn, not what their earnings           veteran is not meeting alimony or child support
actually are. Loss of income by losing a job is rarely     payments and the veteran will be notified that the
seen as a good reason to lower an obligation and           adverse action of apportionment is about to begin.
even illness often won't sway a judge to modify            The veteran has some of the usual rights to appeal
the excessively high number owed each month.               and to a hearing and so on but absolutely no right
                                                           to any assistance by the VA. VA will not defend the
Family courts have developed a reputation                  veteran and if the obligee can reasonably show
today of being similar to a debtor's prison of             a current decree and order of support as well as
old. If you fall behind, you go to jail. While in jail     arrearage, the apportionment will proceed.
the obligation continues to build. It's apparent
that the inmate can't work to earn money to pay            I received the following message a short time
the obligation and if the unfortunate obligor              ago. The veteran has granted permission that
is incarcerated at the end of the year, a COLA             I use all documents as they are printed so that
obligation may kick in and when he or she is free,         he may help others to be alert for the pitfalls of
their monthly obligation is higher than before.            apportionment. VAWatchdog dot Org offers our
                                                           sincere thanks to David Holmes for his generous
Veterans aren't exempt from any of this and Family         courage, time and effort to get this word out.
Courts have no reasons to show any sympathy
to any veteran, disabled or not. The mission of            "Dear Jim,
the Court is to protect the interests of the child,        For many years my child support was deducted from                            t         TOC    u                                            Page 19

my v.a. benefits and it was not applied correctly          no reason to be involved in this veterans issues other
by the child support agency. When the v.a. and my          than to follow its scant rules about apportionment
senator started asking question the child support          and none of that is designed to help the vet. No
agency filed a court case against me in the name of        matter where you walk, there will be traps.
my childs mother, she was deceased. What they did
was to pose as a dead person to cover up their errors.     Pay particular attention to where
I will try to send an attachment. I won the case."         you tread in the Family Court.

As you read through the 2 attachments provided             Postscript...
here you should note that the VA has no obligation
nor any particular right to send apportioned               David has helped me develop all that
money to anyone other than the individual who              above and would like to add;
requested the apportionment. Even if the obligee
had requested that the money apportioned be                "Thanks Jim, keep in mind that in my case it was
delivered to the state child support enforcement           a court order that I receive an adjustment for my
agency, it's highly doubtful VA would have complied.       Veterans benefits to my child in 1997. What a Veteran
                                                           should learn from this is that the CSEA pays no
The veteran agreed to the apportionment. In having         attention to court orders. If you are a single parent
done that he assumed that his obligation was               because of death as in my case any mistakes the CSEA
satisfied and that the custodial parent or obligee         made will fall back on you. I reported this fraud to
would receive the correct amount each month and            many Federal and State officials, need I tell you they
that it would be simpler accounting on his part.           care not. I encourage each Veteran to send this article
                                                           to their State and Federal officials to stop this injustice
The state agency later disagreed.                          because this is not an isolated case nor the worse
                                                           one." INSERT LINK TO HAMILTON V HOLMES JPG
The veteran makes the point that the lengths
the Family Courts and the state child support
enforcement offices will go to may be reprehensible
in any final analysis. After the death of the
obligee, the state made the decision to proceed
with collections against the veteran even
though he had actually overpaid his obligation
to the now deceased custodial parent.

These two documents, (MAIN OBJECTION PDF
for interesting reading for all veterans who
may be divorced or contemplating a divorce.
While the topic here has been child support,
these same rules may apply to alimony.

There is a lesson to be learned here. No matter
what you're told by others and no matter what you
may wish to believe, your status as a veteran or as
a disabled veteran holds no special immunity or
promise of preferential treatment in most legal
and financial arenas. As you enter into any financial
agreements, whether in a divorce court or elsewhere,
it's up to you to know what you're signing up for.

In this case the Department of Veterans Affairs had                               t      TOC    u                                               Page 20

Rather go to bed with out dinner than to rise in debt.     instructions and fail to meet the time limits, you
Benjamin Franklin                                          will lose your right to appeal. In addition, by
                                                           failing to meet deadlines and/or time limits, you
                                                           could lose years’ worth of VA compensation.
                                                           In general, a claimant has ONE YEAR from the
How To Appeal A Denial                                     date of the notice letter which accompanied the
                                                           adverse rating decision (NOT the date of the rating
This information is provided courtesy                      decision) to notify VA of an intent to appeal. To start
of; Katrina J. Eagle, Attorney at Law                      the appeals process, a claimant must file a written
Overview of the VA Appellate Process                       document called a "Notice of Disagreement" with
                                                           the VARO that sent the decision. The requirements
                                                           for a Notice of Disagreement (known as a "NOD" in
The VA Regional Office ("VARO") is only the first          VA-speak) are straightforward but must be complied
of several levels within the VA and the federal            with to avoid losing the opportunity to appeal.
court system that have authority to review a
veteran's claim for benefits. A claim denied by the        An NOD must be (1) in writing, (2) identify the rating
VARO can be appealed to the Board of Veterans'             decision by date, (3) express a disagreement with
Appeals (the “Board”). A claimant can appeal an            the specific issue(s) denied in the rating decision
unsatisfactory result from the Board to the U.S.           and (4) indicate a desire to appeal the decision.
Court of Appeals for Veterans Claims (the “Veterans        Nothing else is required and saying anything more
Court”). Either the claimant or the VA can appeal          can actually increase the chances of creating a
a Veterans Court decision to the U.S. Court of             problem. The NOD should be dated and signed
Appeals for the Federal Circuit. Finally, either the       by the claimant and mailed to VA by certified
claimant or the Secretary can appeal a decision of         mail, return receipt requested, with a copy kept
the Federal Circuit to the United States Supreme           as the first document in a new "appeals" file.
Court. The Department of Veterans Affairs provides
a simple overview pamphlet for you here.                   VA will acknowledge receipt of the NOD by
                                                           letter. In the letter will be further instructions
While the appeals process can appear complicated           and a description of options for proceeding.
and lengthy at first, remember the alternative to the
process is allowing the VA to have the last word on a      One of the next decisions to be made is whether to
claim. Actually, this was how the process worked until     ask for a Decision Review Officer ("DRO") review of
1988, when the U.S. Court of Appeals for Veterans          the adverse rating decision or continue directly to
Claims was created. Before 1988, the furthest a            the Board of Veterans’ Appeals. A DRO is a senior VA
claimant could appeal an adverse decision was to           rating specialist who should have more experience
the Board (the highest adjudicative body of the VA).       in rating claims. You can also request a hearing or
Whatever the Board said, that was it. And, because         an informal conference with the DRO before the
the Board had the last word, veterans’ advocates           DRO makes a new decision. The advantage of a
often say that, until 1988, the VA operated in             DRO decision is that because the claim remains
“splendid isolation.” So, although the current process     at the VARO that originally decided it, a DRO
is not perfect and can take a long time to work, at        decision is usually made much quicker than a Board
least veterans have an opportunity to go to federal        decision. However, if the DRO does not change the
court if the merits of a claim support such an effort.     decision, a claimant still has the opportunity to go
                                                           to the Board, but has delayed Board review while
So, the VA has sent you a notice letter and rating         waiting for the DRO. Deciding whether to select
decision informing you that your claim(s) has been         a DRO review or not is not an exact science, but
denied. The notice letter includes information             DROs generally are better at changing decisions
regarding your options for appealing the                   containing factual errors and not legal issues.
decision. You should first read all this information
very carefully because if you do not follow the                              t        TOC    u                                            Page 21

If no DRO review is selected or if the DRO review           types of decisions (e.g., grant, remand, or deny).
does not produce an acceptable result, the DRO
will issue a Statement of the Case (“SOC”), which           If a claimant is not satisfied with any denial made by
basically reiterates the reasons for the initial denial     the Board, he or she can appeal that denial to the U.S.
but also provides VA laws and regulations relevant          Court of Appeals for Veterans Claims. It is important
to the veteran’s claim(s). The VARO will also send          for claimants to understand that the Veterans Court
the claimant a VA Form 9 along with the SOC. This           is just that, a court. The Veterans Court is NOT part
form must be completed and returned to VARO                 of the VA. Thus, the rules change at this point so
within the time specified, which is usually SIXTY           that whatever "duty to assist" existed earlier in the
DAYS from the date of the SOC. If it is not, the            process, actions before the Veterans Court are strictly
decision becomes final and the appeal is over. By           adversarial. An unrepresented claimant is on his
filing the VA form 9, this notifies the VARO of the         or her own in presenting a legal case against the
veteran’s intent to continue the appeal to the Board        VA Office of General Counsel. Note, however, that
of Veterans’ Appeals. Once the VARO processes the           the important benefit of a successful appeal to the
VA form 9, it will (eventually) forward the veteran’s       Veterans Court is for your case to go back to the VA
VA claims file folder to the Board for its review and       on remand, all the while, preserving the date you
reconsideration of the veteran’s issues on appeal.          first filed your claim with the VA (AKA the effective
                                                            date), which can translate into a large retro-benefit
The Board of Veterans’ Appeals is the highest               awarded to you when the VA eventually grants
adjudicative body of the VA. It’s located in                the claim you’ve been appealing all these years.
Washington, DC. The Board currently is comprised
of four decision teams, divided along geographical          It is absolutely critical to file a Notice of Appeal with
lines, and consists of 56 Board Members and                 the Court within 120 DAYS of the date stamped on
240 staff counsel. The Board can consider new               the Board decision. The Notice needs to be filed
evidence that was not considered by the VARO,               with the Court, NOT the Board, NOT the VARO,
but only if the veteran waives consideration                and NOT with any VSO or other representative. If
of the new evidence by the VARO. In addition,               the Court does not receive the Notice of Appeal
the Board can seek its own medical opinions                 within the 120 days, the appeal will be rejected
in cases involving complex medical issues.                  and the Board decision will become final.

Once a claim arrives at the Board of Veterans' Appeals,     The Veterans Court is a court of review (i.e., it is NOT a
the Board will send the claimant a "90-day letter"          trial court), and as such, it reviews what the Board did
requesting any additional evidence the claimant             and decides whether what the Board did was right or
may have. As the name suggests, a claimant has              wrong. The Veterans Court does NOT make decisions
90-days to respond to this request or the Board             on the merits of a veteran’s claim. The Veterans Court
will proceed on the record without any additional           reviews the Board's decision for compliance with the
evidence. This 90-day limitation has lost most of its       law, regulations and rules that apply to the case. This
relevance as Board decisions now take more than             means that a claimant will not prevail at the Court
two years. But it is still a limit that claimants must      (or the Federal Circuit or Supreme Court) by simply
observe to submit additional evidence on appeal.            arguing that the VA made a "mistake," a "wrong
                                                            decision," or was "unfair." Cases appealed to the
A claimant also has the opportunity to request a            courts must identify specific legal errors by the Board.
hearing with a Board member, either in person or
by videoconference. Some time after the hearing             If a claimant is unhappy with the Veterans Court
or when the file comes up for review without a              decision, he or she can appeal to the Federal Circuit
hearing, the Board will issue a written decision. The       Court of Appeals. The Federal Circuit is the appellate
Board can grant the entire claim, remand part of            court that also reviews government contracts and
the claims to the VARO for further development,             patents and copyright cases. It is a very formal and
and/or deny entire claims. If you appealed more             sophisticated court that does not have much patience
than one issue to the Board, then the Board’s               for ill-conceived appeals. Any veteran contemplating
decision can (and often does) consist of all three          an appeal to the Federal Circuit should seek opinions                              t         TOC    u                                             Page 22

from several attorneys about whether the case has            must be filed within 60 days of the mailing of the SOC
any legal chance of success. The Federal Circuit’s           or within remainder of 1-year period of mailing of
jurisdiction is limited to reviewing legal errors by the     notice of Rating Decision, whichever period ends later.
Veterans Court. It cannot and will not consider cases
arguing that the Veterans Court or the VA made a bad         Necessary Information To Include on VA form 9
decision in weighing the facts of a veteran’s case.          (Per 38 CFR § 20.202 (2007)):

Finally, a claimant can appeal a decision of the             a. Identify the Rating Decision by Date
Federal Circuit to the United States Supreme                 b. Identify Issues / Claims Denied in Rating Decision
Court. This is a very specialized type of Court              c. Set out Factual Issues on Appeal and
and there are numerous rules and requirements                summarize specific arguments for each
about how to prepare such an appeal. Any veteran             – KISS (Keep It Simple Stupid)
getting this far in the process simply must consult          d. Set out Legal Issues on Appeal and summarize
with experienced counsel to have any realistic               specific arguments for each – KISS!
chance of being heard by the Supreme Court.                  e. Box 8 of the VA form 9 – do you want a BVA Hearing?
Hopefully, this overview has been helpful in                 If it’s a factual issue involving credibility of the
identifying the major points in the appeal process           veteran, then consider requesting the BVA hearing.
for a VA claim. The articles that follow provide
more details on specific parts of the process.               Keep in mind that you can request a “Video-
                                                             conference Hearing” even though it’s not included
                                                             as an option on the VA form 9. If a legal issue is
Let the Appellate Process Begin!                             at the crux of the appeal, then it is more efficient
                                                             and effective to pass on BVA hearing and set
Keys to Getting the Appeal Out                               out detailed argument in a written brief.
of VARO and to the BVA
                                                             2. Once the VA form 9 is submitted
1. VA form 9: The Substantive Appeal
                                                             VARO certifies appeal to the BVA (usually by internal
Once veteran files VA form 9, the Board of Veterans’         VA form 8) and sends the veteran-claimant a “90
Appeals (“BVA”) assigns a docket number. Advise              day letter” which tells the veteran he or she has
the veteran NOT TO SUBMIT ANY MORE EVIDENCE                  90 days (or until BVA makes a decision) to change
TO VARO – NO EXCEPTIONS!! Otherwise, the VARO                representation, submit additional evidence
is required to issue another Supplemental SOC                or argument, or change request re a hearing.
(“SSOC”), more delays ensue, with no change in the           Even after 90 days, veteran may still be able to
outcome of case and, or the original adverse decision.       do any of these by requesting an extension for
                                                             “good cause” – see 38 C.F.R. § 20.1304(b)(1).
BVA assigns a docket number in numerical order,
and uses it to decide order of case review on first-         3. Analyzing a BVA Decision for Procedural
in, first-out rule. If your veteran-claimant qualifies,      Errors; i.e., how to identify when the VA failed
submit a Motion to Advance Case on BVA’s Docket.             to comply with VCAA notice requirements
Examples of valid reasons for such a motion: if
the veteran-claimant is seriously ill, under severe          The Veterans Claims Assistance Act of 2000
financial hardship, 75 years or older, or other specific     requires the VA, upon receipt of a complete or
sufficient cause shown (per 38 CFR 20.900 (2007)).           substantially complete application for benefits,
                                                             to notify the claimant of any information, and any
Note: the filing of the Substantive Appeal (aka              medical or lay evidence, not previously provided
“Formal Appeal”) and the earlier NOD are the only 2          to the Secretary that is necessary to substantiate
MANDATORY actions required of a claimant to perfect          the claim. The VCAA is now codified at 38
an appeal to the BVA. Like the NOD, the Substantive          U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2007).
Appeal must be filed with the VARO that issued the
adverse Rating Decision. The Substantive Appeal                              t     TOC    u                                           Page 23

First notice element = notice of info or                 BVA decision is NOT appealable to the Veterans Court.
evidence needed to substantiate the claim;
                                                         What if it’s a multi-issue BVA decision, with one issue
Second notice element = notice of info                   is denied, but others are granted or remanded?
and evidence, if any, that claimant must                 Determin e whether any of the issues are “inextricably
provide in order to substantiate claim;                  intertwined”. If so, then the Veterans Court may
                                                         conclude, after the appeal is filed that the denied
Third notice element = notice of info or evidence        issue must be readjudicated with the remanded
that the VA, in accordance with duty to assist, will     issue, thus relinquishing its jurisdiction to consider
attempt to obtain on behalf of claimant; and,            the denied claim. Note that the “inextricably
                                                         intertwined” test is not particularly objective. Thus,
Fourth notice element = duty that VA request             if uncertain as to the reviewability of a partial
that the claimant provide any evidence in                remand, then advocate should file a protective
their possession that pertains to the claim.             Notice of Appeal (NOA) with the Veterans Court.

Timing requirement = notice must be                      The NOA must be received or mailed using the U.S.
provided upon receipt of complete or                     Postal Service within 120 days of the date of the BVA
substantially complete application.                      decision. The 120-Day Clock starts ticking when:

4. Analyzing a BVA Decision for the                      1. BVA mails decision to last known
following types of substantive errors:                   address of veteran; and,

? BVA findings of material fact that                     2. If veteran has representative, BVA sends
are “clearly erroneous”:                                 copy to rep by any means so that reasonable
                                                         to reach rep approximately same time
? Whether constitutional provisions, VA                  as BVA decision reached veteran.
statutes, regulations, or M21-1 provisions
were violated or misapplied                              BVA has Presumption of Regularity on their side.
                                                         How to overcome it: clear evidence to the contrary.
? Failure to comply with a BVA or CAVC remand order
                                                         If you missed the 120-day deadline to file the NOA,
? Failure to reopen a claim supported                    the only truly successful way the Veterans Court will
by new and material evidence                             excuse it is if the Board’s decision was sent to an old or
                                                         an incorrect address – and you can prove that it was.
? Failure to consider a claim or legal theory            Equitable Tolling (a legal term that meant there were
reasonably raised by the record                          other ways the Court might have excused a veteran
                                                         missing the 120-day deadline) no longer exists.
? Failure of BVA to State its Reasons or Bases for
its Findings of Fact and Conclusions of Law              Pursuant to Rule 3(c) of the Veterans Court’s
                                                         Rules of Practice and Procedure, the following
? BVA Findings on Medical or Vocational Issues of Fact   information must be included on a timely-
Unsupported by Competent Evidence in the Record          filed NOA to be considered compliant:

? The BVA’s Failure to Explain Why It Rejected           1. The most recent name, address, and telephone
Positive Evidence Supporting the Claim                   number of the person(s) making the appeal and
                                                         the appropriate VA claims file number; and,
5. Keys to Filing an Appeal to the CAVC
                                                         2. Reasonable identification of the actual Board
The BVA decision must be “final”, which means it         decision (e.g., the date of the Board decision
must be a denial of a claim for benefits. If the BVA     and the issue(s) it denied) being appealed and a
remands a claim for benefits to the VARO, then the       statement that can be reasonably construed as                              t        TOC    u                                             Page 24

seeking Court review of that Board decision; and,           c. Regarding Issues Applying Law to Fact

3. If filed by a representative, other than one             The Veterans Court will give some deference to
making a limited appearance, be accompanied                 BVA determinations involving mixed issues of fact
by a notice of appearance and its attachments.              and law. The Court will not put themselves in the
                                                            position of the VA and decide what they would have
Keys to a Successful Appeal to the US CAVC                  done given same set of facts and law. Thus, here the
                                                            Court applies a deferential standard of review, and
1. Know the organization of the Veterans Court:             will not set aside a BVA decision unless it is “arbitrary,
                                                            capricious, an abuse of discretion, or otherwise not
The CAVC is the federal court that hears appeals            in accordance with law.” See 38 U.S.C. § 7261(a)(3)(A)
from the BVA. The CAVC is “young” in that it is only
20 years old; it was created in 1988, when Congress         d. Issues Beyond the Veterans
passed Veterans’ Judicial Review Act. The CAVC              Court’s Power To Review
consists of seven judges who are appointed by the
President to fifteen-year terms. Chief Judge William        i. In most cases, the Veterans Court does not have
P. Greene, Jr. has sat at the helm of the CAVC since        the authority to resolve issues that were not resolved
August 2005. The CAVC is an appellate court, so             by the BVA prior to the appeal to the CAVC. This limit
it hears no new testimony, conducts no trials, and          on its power to review is based on two principles:
considers no new evidence. Instead, it considers
the BVA decision, the administrative record that was        1. The Veterans Court is an appellate court
before the VA, and the briefs of the parties before it.     with limited jurisdiction. Pursuant to 38 U.S.C.
                                                            § 7261(a)(3), the Court is prohibited from
2. The Veterans Court’s Scope of Review                     making factual findings in the first instance.

a. Regarding Applications of Law                            2. As a reviewing court, the Veterans Court’s role is
                                                            to determine the propriety of the action taken by the
Pursuant to 38 U.S.C. § 7261(a)(3), the Veterans            BVA, judged solely on bases invoked by the agency.
Court has the authority to set aside pure issues            This is a fundamental rule in administrative law.
of law as unlawful if the Court finds them to be,
among other things, “arbitrary, capricious, [or]            ii. The Veterans Court may not review findings of fact
an abuse of discretion,” “in violation of statutory         made by the BVA that are favorable to the claimant.
right,” “not in accordance with law,” or “without           Similarly, recent case law seems to indicate that the
observance of procedure required by law.” See               Veterans Court must accept a BVA or RO ruling that
Horowitz v. Brown, 5 Vet.App. 217 (1993).                   resolves in the claimant’s favor an issue that is partly
                                                            factual and partly legal in nature. See, e.g., Williams
When reviewing pure issues of law, the Court                v. Principi, 15 Vet. App. 189, 198 (2001) (holding that
reviews the VA’s resolution of the issue de novo,           the Court could not review a favorable BVA ruling on
with no deference to the BVA’s view of the law.             the appropriate effective date for award of benefits).

b. Regarding Adverse BVA Findings of Fact                   iii. The Veterans Court is prohibited from
                                                            reviewing the propriety of the schedule of ratings
The Court reviews BVA findings of fact under a              for disabilities as specified by Congress or as
“clearly erroneous” standard; see 38 U.S.C. § 7261(a)       promulgated by the Secretary of the VA. BUT, the
(4). This means that the Veterans Court will NOT            Veterans Court does have authority to review the
substitute its own weighing of the facts for how            BVA’s interpretation of the rating schedule. See
the Board weighed the facts, unless the Board’s             Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004)
weighing was “clearly erroneous”. In other words,
the Veterans Court gives great deference to the             iv. The CAVC does not have jurisdiction to review
Board’s ability to weigh facts and evidence.                the VA Secretary’s exercise of authority under 38
                                                            U.S.C. § 503(a) to grant equitable relief to claimants                             t         TOC   u   Page 25

due to administrative error on the part of the VA. The
distinction here is the Secretary’s authority to grant
relief based on principles of equity from his authority
to award benefits based upon statutory entitlements.

To err is human, but to really foul things up
requires a computer. Farmers Almanac                            t         TOC    u                                            Page 26

Draft beer, not people.                                    American Colonel Gerald O'Hara took part in the
Bob Dylan                                                  operation and now serves as the chief of public affairs
                                                           for the U.S. Army. "It's been a success story," said
                                                           O'Hara. "Kuwait is a success story. And I feel, and so
Around the world                                           should all the other veterans from the many countries
                                                           that participated, should feel a sense of pride that
Veterans Day 2010                                          they took part in that operation 20 years ago."

We share many of the problems as our British,              watch·dog (wchdôg, -dg)
Canadian, Australian and counterparts from almost          n.
every other country on the planet. They've been            1. A dog trained to guard people or property.
exposed to dioxin, Gulf War syndrome and similar           2. One who serves as a guardian or protector
issues. Like us, they're often in battles at home now,     against waste, loss, or illegal practices.
struggling for the benefits they were promised. I'll
publish more of their issues that reflect our own.         Would you like to contribute your news? Want your
                                                           voice to be heard above the roar of the crowd?

03/09/2011 Major who lost legs in IED bashes               Do you have information that other vets need to
veteran benefits A study commissioned by the               know to protect themselves? How about hints and
veterans ombudsman took aim at existing lump-              tips to assist veterans to improve their odds of
sum payments, which can be up to $276,000 for              awards of their well deserved and earned benefits?
the most severe injuries. It concluded that the
one-time payments — a hallmark of the New                  It’s as simple as dropping us an email. <jim912@
Veteran's Charter — short-changed low-income     > will bring it to my desk.
soldiers and the most severely disabled veterans.
                                                           But first, please read the following carefully.

03/06/2011 Veteran thrown into new battle Soldier          I will not share your email address or your name with
who fought Taliban while fighting cancer now               anyone without your permission. This is a courtesy
being nickel-and-dimed on disability pension               and a policy of mine. However, if you write to me and
Dornan, a 25-year veteran of the Canadian Forces,          tell me something is going on and you want it all to
volunteered to deploy to Afghanistan in 2002               be “off the record”, establish that first. I may not agree
where he bravely fought the Taliban, all the while         with you and this way we’ve both saved some time.
taking a brutal regime of oral chemotherapy to
control his incurable cancer. Today he is fighting         For a quick shout-out, go directly to comments.
a third battle — for his dignity and what Canada
owes him: A veteran's disability pension.                  You may correspond about anything that’s
                                                           on your mind. However, just so you know, if
                                                           you expect to be published or if you think
03/05/2011 Give the military veterans their due            you have something we should report on,
February 1986. Since neither could continue                you have to stick to a few simple rules.
in service because of physical disability and
blindness, both the major and the havildar                 We rarely get involved in employee-employer
would be discharged from the army on medical               disputes. If your boss mistreats you and you aren’t
grounds some time in 1987. That meant                      getting along at your job, you need to find a new job.
another battle, a lifelong one, with life itself.          Most workplaces have avenues for disputes to be
Comment                                                    handled. Use those. There is really nothing we can do.

                                                           Don’t email us from work. This is particularly true if
03/02/2011 Kuwait Celebrates 20 Years of Liberation        you’re using a government computer. If you’re an                               t     TOC    u                                          Page 27

employee of VA, why are you surfing the Internet?         Affairs Canada for a pension that he and veterans
Have you heard about the backlog? Emailing us from        groups say he is entitled to because of his illness.
work will get you fired and cause me a headache. Use      Comment
your computer at home or even at the local library.
                                                          03/02/2011 Kenya: Mau Mau Ask Queen to Help
Be prepared to document what you tell us. We              Find Kimathi's Remains Over 2,000 former freedom
will respect your need to remain anonymous if             fighters who met yesterday under Mau Mau War
you seek that agreement in advance. But if you            Veterans Association said England's Queen Elizabeth
want to report some misdeed at your place of              II could help them to locate Kimathi's grave. The
work or another locale, you should be able to             former freedom fighters urged fellow fighters
provide dates, names of those involved and copies         to remain united as they wait for compensation
of any relevant paperwork. Details, details and           from the Kenyan and British Governments.
then some more details are what work here.                Comment

Use your scanner to email PDF documents                   02/28/2011 Veterans in Gulf syndrome protest
to us. Faxing is so 1980’s.                               On Monday it is 20 years since then US president
                                                          George Bush senior declared a ceasefire as Allied
Don’t rant. I have a one second fuse for your             forces advanced to within 150 miles of Baghdad.
irrational rant. One second and my mind goes              Comment
elsewhere and your rant won’t ever be read. You’re
really angry. OK, I get that. Me too some days.           02/28/2011 Former solider still fighting for support
Anger and rants and 4000 word diatribes don’t             20 years after Gulf War horror The 49-year-old,
solve anything. I don’t need you to tell me what          who served as a lance corporal with the Queen's
the big picture problems are, I need you to tell me       Royal Lancers for a decade, suffers from a range
specifics and then what you believe needs to be           of different medical complaints which fall under
done to fix the problems. “Fire ‘em all...” isn’t the     the umbrella term 'Gulf War Syndrome'. But the
solution. Be realistic or you won’t be noticed.           Ministry of Defence (MoD) does not recognise
                                                          the condition and he has to fight for money to
Watch your language. I’m not a prude. I can cuss you      acknowledge each of his illnesses, including post
down in a contest if we wanted to go there. It isn’t      traumatic stress, extreme fatigue, gut pain and
necessary though and it’s a waste of energy...and         hormone deficiencies. Dave, who receives a partial
my time. Be courteous and respectful at all times.        war pension, says he should receive support for the
                                                          full range of symptoms. He said: "I feel abandoned
Have you written an article or editorial or               and let down by the Government and MoD.
opinion piece? Think it’s pretty good? I’d like           Comment
to see it. We may run it and you’ll contribute
to improving the lives of other veterans.                 02/28/2011 Ex-soldiers face charity confusion Military
                                                          veterans are left to find the help they need to resettle
We want to hear from you. You’ll be                       into civilian life among a bewildering array of more
an integral part of the effort.                           than 2,000 charities, campaigners have said.
Jim Strickland 03/02/2011 Veteran with cancer battles
Ottawa for pension Kingston man exposed to                02/28/2011 Veterans warned of service fee scams
uranium while serving in Yugoslavia in 1996 Steven        Veterans are being taken for thousands of dollars
Dornan served two terms in Bosnia while in the            for services that in some cases are unnecessary or
Canadian military, but is now fighting a different        offered free by veterans organizations, said Waychus.
kind of battle on two fronts. Dornan, 45, is battling
cancer that doctors say resulted from exposure to
uranium while he served as a weapons inspector in
the former war-torn Yugoslavia in 1996. The Kingston,
Kings County, resident is also battling with Veterans                               t          TOC    u                                            Page 28

watch·dog (wchdôg, -dg)                                        work or another locale, you should be able to
n.                                                             provide dates, names of those involved and copies
1. A dog trained to guard people or property.                  of any relevant paperwork. Details, details and
2. One who serves as a guardian or protector                   then some more details are what work here.
against waste, loss, or illegal practices.
                                                               Use your scanner to email PDF documents
Would you like to contribute your news? Want your              to us. Faxing is so 1980's.
voice to be heard above the roar of the crowd?
                                                               Don't rant. I have a one second fuse for your
Do you have information that other vets need to                irrational rant. One second and my mind goes
know to protect themselves? How about hints and                elsewhere and your rant won't ever be read. You're
tips to assist veterans to improve their odds of               really angry. OK, I get that. Me too some days.
awards of their well deserved and earned benefits?             Anger and rants and 4000 word diatribes don't
                                                               solve anything. I don't need you to tell me what
It's as simple as dropping us an email. <jim912@               the big picture problems are, I need you to tell me> will bring it to my desk.                 specifics and then what you believe needs to be
                                                               done to fix the problems. "Fire 'em all..." isn't the
But first, please read the following carefully.                solution. Be realistic or you won't be noticed.

I will not share your email address or your name with          Watch your language. I'm not a prude. I can cuss you
anyone without your permission. This is a courtesy             down in a contest if we wanted to go there. It isn't
and a policy of mine. However, if you write to me and          necessary though and it's a waste of energy...and
tell me something is going on and you want it all to           my time. Be courteous and respectful at all times.
be "off the record", establish that first. I may not agree
with you and this way we've both saved some time.              Have you written an article or editorial or
                                                               opinion piece? Think it's pretty good? I'd like
For a quick shout-out, go directly to comments.                to see it. We may run it and you'll contribute
                                                               to improving the lives of other veterans.
You may correspond about anything that's
on your mind. However, just so you know, if                    We want to hear from you. You'll be
you expect to be published or if you think                     an integral part of the effort.
you have something we should report on,
you have to stick to a few simple rules.                       Jim Strickland

We rarely get involved in employee-employer
disputes. If your boss mistreats you and you aren't
getting along at your job, you need to find a new job.
Most workplaces have avenues for disputes to be
handled. Use those. There is really nothing we can do.

Don't email us from work. This is particularly true if
you're using a government computer. If you're an
employee of VA, why are you surfing the Internet?
Have you heard about the backlog? Emailing us from
work will get you fired and cause me a headache. Use
your computer at home or even at the local library.

Be prepared to document what you tell us. We
will respect your need to remain anonymous if
you seek that agreement in advance. But if you
want to report some misdeed at your place of                                t      TOC    u                                           Page 29

Beneficiary Travel
                                                            Mileage rates for veterans and VA employees
Who is eligible for travel?                                 are determined under separate authorities and
Veterans rated 30% or more SC for                           take different criteria under account. Title 38
travel relating to any condition                            United States Code (U.S.C.) 111 and 38 Code of
Veterans rated less than 30% for travel                     Federal Regulations (C.F.R.) 70.1 – 70.50 are the
relating to their SC condition                              authorities for Beneficiary Travel. 41 C.F.R. Chapter
Veterans receiving VA pension                               301 provides guidance for employee travel.
benefits for all conditions
Veterans with annual income below the maximum               Can mileage reimbursement or special mode
applicable annual rate of pension for all conditions        transport be withheld from a travel eligible veteran?
Veterans who can present clear evidence that                Travel benefits may be withheld when it is
they are unable to defray the cost of travel                clinically determined that travel allowance would
Veterans traveling in relation to a Compensation            be counterproductive to care, treatment, or
and Pension (C&P) Examination                               therapy being provided and such determination
Certain veterans in certain emergency situations            is recorded in the patient’s medical record. In
Certain non-veterans when related to care                   addition, the chief of the service or a designee
of a veteran (attendants & donors)                          must review and approve the determination
Beneficiaries of other Federal Agencies                     in writing in the patient’s medical record.
(when authorized by that agency)
Allied Beneficiaries (when authorized by                    What are the deductible amounts? Is the
appropriate foreign government agency)                      monthly deductible cap for each facility or is
Return to the Top of the Page                               it for travel to all VA facilities for health care?
                                                            Who is required to pay the deductible?
Are OEF/OIF veterans, combat veterans,                      Public Law 110-387 required VA to reduce (and
spinal cord injury (SCI) or any other “special”             freeze) the deductible amounts to those originally
group of veterans eligible for travel based                 specified in 38 U.S.C. § 111(c)(5). Therefore, effective
upon their inclusion in that group?                         January 9, 2009 the Beneficiary Travel deductible
With the exception of veterans traveling to a VA            was reduced to $3.00 per one way trip; $6.00 for a
or VA authorized transplant center in relation to           round trip; with a maximum deductible of $18.00
VA transplant care, veterans in a “special” group           per calendar month. The $18.00 is the total monthly
are not eligible for VA travel benefits based solely        deductible amount for travel to all VA facilities.
on their inclusion that group. “Special” group”             Regardless of the deductible amount withheld per
veterans must meet travel eligibility criteria              trip, deductible requirements end after 6 one-way (3
in the same manner as any other veteran.                    round) trips in a calendar month. Should a veteran
                                                            be going to multiple VA facilities, and the veteran
What travel can the Department of                           notes this when applying for Travel reimbursement,
Veterans Affairs (VA) provide?                              it is incumbent upon the facility providing the
VA has authority to provide eligible beneficiaries          care and travel to contact any other VA facilities
reimbursement for mileage, special mode                     to determine if the deductible has been met.
of transportation (when medically justified
by a VA health care provider), and in certain               The only exemptions to the deductible are:
circumstances, taxi or hired car.
                                                            Veterans traveling in conjunction
What are current mileage rates for travel? Why are          with a C&P examination,
rates different for veterans and VA employees?              Non veteran donors,
Effective November 17, 2008 VA reimburses 41.5              Veterans requiring a special mode
cents per mile for ALL veteran travel, including            of transportation, and
C&P exams and when VA has determined that a                 when it is determined that the imposition
deficiency lab, EKG, x-ray etc. exists in relation to a     of the deductible would cause a severe
C&P exam (“Convenience of the Government”).                 financial hardship (see “Waivers”)                              t         TOC    u                                          Page 30

All other eligible veterans, including those                 requirements, as well as communication guidelines
receiving care for service connected conditions,             to other VA facilities when it is necessary to send
are required to have the deductible applied.                 veterans with this requirement to Tertiary Care, other
                                                             VA facilities, or non-VA providers for treatment.
Who is eligible for a waiver? How do you
determine if a veteran is eligible for the waiver?           How much discretion does a facility have if a
Waivers of the deductible can be made when the               veteran does not meet eligibility standards
deductible causes a “severe financial hardship” to           and extenuating circumstances exist?
the veteran. Per 38 CFR § 70.31(c), a severe financial       There is no authority to provide transportation
hardship occurs when the veteran is in receipt of            at VA expense for veterans who do not meet
a VA pension; his or her income for the year prior           eligibility requirements, except in the case of
to application, or projected income for the year             Organ Transplants (VHA Directive 2001-027).
of application (current year) does not exceed the
appropriate VA pension level; or in the case of an           Is there anything we can do to obtain
SC veteran, income is at or below the appropriate            travel for ineligible beneficiaries?
“Means Test” thresholds for the year prior to                When a veteran does not meet eligibility for
application or projected for the year of application.        Beneficiary Travel, other sources, including
                                                             the DAV network, family and community
How is it determined that a veteran requires                 should be aggressively pursued.
“Special Mode” transportation? What
eligibility requirements must be met?                        VA Form 3068, “Reduced Rate transportation” is also
Special mode of transportation includes ambulance,           available for field use. This form can be presented to
ambulette, air ambulance, wheelchair van, and other          transportation carriers for possible reduced rates for
modes which are specially designed to transport              veterans needing to travel in relation to VA health
certain disabled individuals. Special mode DOES              care. It is mainly used for bus transportation; however
NOT include public transportation such as taxi,              it may be accepted by other carriers. In addition, VA
bus, subway, train, airplane, or privately owned             facilities should be pro-active in assisting the veteran
conveyance with special adaptive equipment and/              explore possible VA options that would give him/
or capable of transporting disabled persons.                 her eligibility for Beneficiary Travel. These include:

In order to be eligible for special mode of                  Service Connection
transportation, two criteria must be met. The                Is the veteran potentially eligible? Refer
veteran first has to be administratively eligible for        to the Directory of Veterans Service
transport at VA expense. This includes meeting the           Organizations, a VBA Representative, your
basic criteria, as well as being “unable to defray           Regional Office, or the VA web site.
the expenses of travel” as defined in 38 CFR 70.10           A&A/Housebound
(c). Unless these criteria are met the veteran is            For veterans not receiving these benefits, is their
not eligible for special mode of transportation.             income at or below the income thresholds for
                                                             these benefits? VHA Directive 2004-026, “Income
Once administrative eligibility is established, a            Thresholds Used in Identifying Veterans Exempt
VA clinician must then determine that a special              from Extended Care Service and Outpatient
mode of transportation is medically required to              Medication Copayment and in Determining Eligibility
transport the veteran for VA health care. Unless one         for Beneficiary Travel” provides details on how
of the forms of special mode of transportation is            veterans not receiving A&A/housebound may still
required and documented as such, this method of              be determined eligible for Beneficiary Travel.
transportation is inappropriate. Should it be clinically     “Hardship” review
determined at one VA facility that such transportation       Is veteran unable to pay the cost
is required, this should be accepted at all VA               of their transportation?
facilities, unless there is reason to think a veteran’s      Has veteran lost their job?
condition may have changed. Local procedures                 Does it appear that their future income will be less?
should be established to determine special mode              Return to the Top of the Page                             t          TOC    u                                            Page 31

Does VA have authority to provide transportation for         facility is closer to the veteran’s actual residence
Fee Basis or visits when an eligible veteran chooses         and that VA facility can provide the care, then
to use private health insurance to pay for care?             Travel reimbursement will only be to that point.
VA has authority to pay for transportation of veterans
traveling to VA authorized non-VA health care when           Which facility is responsible for travel when a veteran
a deductible (if applicable) is met. If VA is not paying     is referred to a Tertiary Care facility, or another
for the care, travel at VA expense will not be provided.     facility that can provide the needed care on an
                                                             outpatient basis? For inpatient treatment? What
What if a veteran chooses to go to his                       about veterans who do not meet eligibility criteria?
“preferred” facility instead of the closest                  For outpatient treatment, the VA facility that is
VA facility that can provide the care?                       providing the care, or in the case of non-VA care,
Veterans have the choice to go to any VA facility            the facility that authorizes the care is responsible for
they choose for care. However, travel can only be            arranging and providing travel to eligible veterans.
authorized to the nearest facility that can provide the      Therefore, should a VA facility refer a veteran to
needed care. Therefore, should a veteran choose to           another VA facility for care, the second facility is
go to another facility than that closest to his home,        responsible for providing travel, as they will be
they are responsible for any costs beyond that for           providing the care (as well as authorizing it). For
transportation to the nearest facility. This includes        non-VA (FEE Basis) care, the VA facility that authorizes
mileage and special mode of transportation.                  and pays for the treatment is responsible for travel.

How do we determine mileage for                              When it is necessary to transport an inpatient
reimbursement purposes?                                      between VA facilities (Inter-facility Travel), the
VA has not established use of a single reference.            releasing VA facility is responsible for travel.
Mileage can be determined using authoritative                Therefore, the initial transportation will be the
guidance such as Rand McNally or MapQuest;                   responsibility of the first facility, and return transport
or zip code to zip code as determined at                     is the responsibility of the second facility. The only
the local VA health care facility, whichever                 exceptions to these rules are for transportation in
gives the greater benefit to the veteran.                    relation to VA transplant care and for transportation
                                                             to a VA Parkinson’s Disease, Research, Education
What if a veteran has a PO Box and                           and Clinical Centers (PADRECCs). In such cases,
physically lives elsewhere?                                  the referring facility is responsible for round-trip
Beneficiary Travel is intended to assist veterans with       transportation for either inpatient or outpatient care.
transportation from their place of residence to the VA
health care facility that can provide the needed care.       Who is responsible for transport of veterans
With the implementation of the Health Insurance              in a community nursing home (CNH)?
Portability and Accountability Act of 1996 (HIPAA)           For veterans in a CNH at VA expense, the placing
veterans now have the option of having their official        VA facility is responsible for travel. Should a CNH
mail sent to any place they choose. However, this            veteran be placed in another VA Clinic of Jurisdiction
does not imply that Travel should be paid from that          (COJ), the initial placing facility will be responsible
point. Similarly, a veteran’s home address could be          for travel (and CNH payment) for the first 90 days.
in another state but he or she is currently staying in       After that time, the receiving COJ will be responsible
the area. Therefore, Travel should not necessarily be        for costs incurred, including travel for VA placement
paid from the distant address. In order to determine         of the veteran. Veterans in a CNH at private expense
appropriate travel reimbursement it is necessary             must meet eligibility requirements for VA payment
that a veteran establish a current place of residence.       of non-VA emergency care as well as Beneficiary
A veteran may be asked to provide documentation              Travel in order to receive transport at VA expense.
establishing their address. Should a veteran refuse
to provide this information, they are only authorized
travel to the nearest VA facility that can provide the
required care, not necessarily where the veteran
chooses to seek care or treatment. If another VA                            t       TOC    u                                           Page 32

What authority does VA have to transport                 items should be requested and authorized in
veterans in emergency situations?                        advance of travel. Reimbursement should not be
Transport from a VA facility to a community facility     provided solely because the veteran chooses to
for emergency treatment: When a veteran develops         stop or take a less direct route to the VA facility.
an emergency while receiving care at a VA facility
and the facility cannot provide the needed care,         Does VA have authority to pay ferry fares;
transport to a community provider and back to            bridge, road, and tunnel tolls; luggage fares;
the VA facility can be authorized at VA expense in       or parking in association with VA travel?
accordance with 38 U.S.C. § 1703(a)(3), regardless       Reimbursement for these and/or other accessories
of the veteran’s Beneficiary Travel eligibility.         of travel may be provided upon presentation of
                                                         an appropriate receipt. The beneficiary should
Transport from any point other than a VA facility        be informed prior to their travel to save their
to a community facility for emergency treatment:         receipts. They should also be informed of any travel
If the emergency episode of care is approved for         restrictions (e.g., amount of luggage authorized).
VA payment, then transport from the point of             Reimbursement is based on a case-by-case basis and
emergency to the non-VA facility can be authorized       the individual needs and condition of the beneficiary.
at VA expense. However, once medically stabilized
at the community provider, the veteran must              Does VA have authority to transfer veterans to where
meet Beneficiary Travel and medical eligibility          they “grew up”, or where their family resides?
criteria for further transportation at VA expense.       VA has limited authority to provide travel for such
                                                         requests. Such transport may be approved for travel
Can VA pay for transport of an attendant,                eligible veterans if the cost to the government is less
donor, or other non-veteran?                             than to the originating home of record. Otherwise,
VA has the authority to pay for transportation and       only veterans receiving inpatient care at a VA facility,
associated incidental costs (lodging, food, etc.)        or non-VA facility at VA expense, in a terminal
at VA expense of certain non-veterans when:              condition (estimated less than 6-months to live) can
                                                         be transferred to a suitable health care facility in area
It is clinically determined by a VA provider             other than where they lived upon entering the VA
that due to the veterans mental or physical              facility. In addition, such transfer can occur only from
condition that an attendant is required                  one VA facility to another, or when VA is paying for
when transporting the veteran, or                        care at a non-VA facility, and future care will be at VA
The non-veteran is the donor or potential donor          expense. Veterans receiving care on an outpatient
of tissue, organ, or parts to a veteran receiving        basis are not eligible for such transportation.
VA, or VA authorized non-VA health care, or
In the case of an Allied Beneficiary, travel and         How should travel be determined if a veteran
reimbursement has been authorized by the                 changes residence while undergoing VA health
appropriate foreign government agency, or                care, especially if they are an inpatient?
Travel and reimbursement is authorized by                If the beneficiary’s residence changed while receiving
another Federal Agency when VA care is                   care or services, payment for the return trip will be
provided to a beneficiary of that agency.                for travel to the new residence except that payment
Return to the Top of the Page                            may not exceed the amount that would be allowed
                                                         from the facility where the care or services could have
Is VA required to pay for lodging and                    been provided that is nearest to the new residence.
meals associated with VA travel?
VA may provide reimbursement for the actual              For example, if during a period of care or services
cost up to 50% of the government employee rate           in Baltimore, a beneficiary changed his or her
for meals and/or lodging, when appropriate. The          address to Detroit, payment for the return trip
need for such costs should be determined on a            would be limited to that allowed for traveling
case-by-case basis and based upon the veteran’s          to the new residence from the nearest facility
medical condition, distance required to travel,          to the new residence in Detroit where the care
and any other extenuating circumstances. Such            or services could have been provided.                              t      TOC     u                                          Page 33

How should Beneficiary Travel at CBOCs or other            Code of Federal Regulations (CFR)
outlying VA facilities be handled when there isn’t a       Purpose and Scope – 38 C.F.R. § 70.1
Travel Office or agent cashier agent cashier on station?   Definitions – 38 C.F.R. § 70.2
Each “parent” facility must develop local guidelines       Determination of Secretary – 38 C.F.R. § 70.3
in order to provide Beneficiary Travel benefits to         Criteria for Approval – 38 C.F.R. § 70.4
eligible veterans at remote facilities under their         Eligible persons – 38 C.F.R. § 70.10
jurisdiction. These must include procedures to             Application – 38 C.F.R. § 70.20
capture appropriate documents and signatures in            Where to Apply – 38 C.F.R. § 70.21
order to meet the requirements of the program as           Payment Principles – 38 C.F.R. § 70.30
well as those of other involved services (e.g., Fiscal).   Deductibles – 38 C.F.R. § 70.31
                                                           Reimbursement or Prior Payment – 38 C.F.R. § 70.32
How long do beneficiaries have to                          Administrative Procedures – 38 C.F.R. § 70.40
submit a claim for travel?                                 Recovery of Payments – 38 C.F.R. § 70.41
Without a Special Mode of Transportation:                  False Statements – 38 C.F.R. § 70.42
A claimant must apply either in person or in               Reduced fare requests – 38 C.F.R. § 70.50
writing for payment of Beneficiary Travel within           Return to the Top of the Page
30 calendar days after completing travel that does
not include a special mode of transportation.              Are veterans who work at a VA facility and
                                                           receive their care there eligible for Beneficiary
With a Special Mode of Transportation:                     Travel reimbursement when they have a medical
For Beneficiary Travel that includes a special             appointment? What about volunteers?
mode of transportation, a claimant must                    Eligible employee veterans and Compensated Work
apply for payment of Beneficiary Travel and                Therapy (CWT) patients shall be provided mileage
obtain approval from VA prior to travel.                   reimbursement in the same manner as other travel
                                                           eligible veterans when they have a scheduled
Emergency treatment:                                       health care appointment on the same day they are
If there has been an emergency treatment and               working. As always, in order to qualify the veteran
the claimant applies for payment of Beneficiary            must meet Beneficiary Travel eligibility. In the
Travel (without prior approval) within 30 calendar         case of an employee, sick or annual leave should
days after the travel is completed, the application        be used to cover the period of the appointment
will be considered timely submitted.                       if the appointment is during their tour of duty.
                                                           CWT patients should have appropriate approval
Eligible within 30 days of travel:                         for absence from their CWT program. In cases of
If a person becomes eligible for Beneficiary               unscheduled visits, if the employee or CWT patient
Travel after the travel takes place, payment               is seen as a veteran (vs. employee), then they
may be made if the person applies for travel               may be reimbursed for one-way travel the same
benefits within 30 days of the date when the               as other veterans. The following must be met in
person became eligible for travel benefits.                order to be eligible for such reimbursement:

NOTE: The date of an application for Beneficiary           The purpose for which the veteran reported
Travel is the postmark date, if mailed; or the             is one for which travel at VA expense would
date of submission if hand delivered.                      have been normally authorized, and
                                                           The visit is satisfactorily completed
What are the VA authorities for Beneficiary                Volunteers are not employees and are
Travel, and where can copies be obtained?                  therefore eligible for Beneficiary Travel
The following are current legislative, regulatory and      reimbursement whether or not they volunteer
VHA Manual guidelines for VA Beneficiary Travel:           on the same day as their appointment.

United States Code (USC)                                   Are veterans who travel together all entitled
Payments or allowances for Beneficiary                     to Beneficiary Travel reimbursement? What
Travel – 38 U.S.C. § 111                                   about those veterans who take the DAV                            t          TOC   u   Page 34

system or other “free” transportation?
In order to be eligible for travel benefits when
transporting to VA care or treatment, a veteran must
actually be incurring an expense. Should one or more
veterans travel together in a private vehicle, only the
owner of the vehicle is actually incurring expenses
and therefore is the only person entitled to travel
reimbursement. However, should multiple veterans
share a vehicle where passengers must pay for their
transport such as a taxi or where one veteran pays
another veteran for transport, then all are entitled
to travel reimbursement either at the mileage
reimbursement rate or actual expense, whichever is
less. Such persons must provide a receipt to indicate
an incurred expense and to receive reimbursement.
Veterans who take non-pay transportation such
as DAV transportation, VA Network transportation
systems or other no-cost city, state, or area systems
are not incurring cost and therefore are not
entitled to Beneficiary Travel reimbursement.

38 CFR Parts 17 and 70
RIN 2900–AM02
Beneficiary Travel Under 38 U.S.C. 111
Within the United States                           t         TOC   u                                        Page 35

Benefits & Documents Updates                              01/28/2011 VA - Health Care - Services
                                                          and Aids for Blind Veterans
SUBJ: Procedures for Rating Infectious Diseases
Presumed to Be Related to Gulf War, Iraq, and             01/28/2011 VA - Health Care -
Afghanistan Service under 38 CFR § 3.317(c).              Veterans Prosthetic Appliances
This letter provides guidance on rating disability        01/28/2011 VA - Health Care - Respite Care
and death claims for service connection based upon
specified infectious diseases that are presumed to be     01/27/2011 Herbicide Exposure and
related to Gulf War, Iraq, and Afghanistan service.       Veterans With Covered Service in Korea
GW veterans, you'll read this on                          AGENCY: Department of Veterans Affairs.
VAWatchdogToday first!                                    ACTION: Final rule. Summary of Precedent
No other source on the Internet has the                   Opinions of the General Counsel
information you need right now like we do.

March 2011 Compensation & Pension Bulletin

In this issue...
Henderson v. Shinseki

Combat-Related Special Compensation (CRSC)
Paragraph for Veterans Granted Service Connection
for Disabilities Secondary to Agent Orange Exposure
Further Information on VA Form 21-
4140, Employment Questionnaire
Expedited Processing for Claimant’s
Experiencing Extreme Financial Hardship

03/15/2011 C & P Bulletin 02/2011

03/15/2011 Fast Letter 11/02

Advisory Committee on Disability Compensation;
Notice of Meeting The Department of Veterans
Affairs (VA) gives notice under Public Law 92-463
(Federal Advisory Committee Act) that the Advisory
Committee on Disability Compensation will meet on
Monday, February 14, 2011, at the Saint Regis Hotel,
923 16th Street, NW., Washington, DC from 8:30
a.m. to 3 p.m. The meeting is open to the public.

AFFAIRS 38 CFR Part 3 RIN 2900-AN64 Clothing
Allowance Proposed Rule SUMMARY: The
Department of Veterans Affairs (VA) proposes
to amend its adjudication regulations
regarding clothing allowances.                                t          TOC    u                                        Page 36

Bilateral Factor                                                skeletal muscles, the ratings for
                                                                the disabilities of the right and left
CAUTION! Very tricky VA math at work                            sides will be combined as
ahead, wear protective headgear.                                usual, and 10 percent of this value will
                                                                be added (i.e., not combined)
The reader wrote to ask;                                        before proceeding with further
                                                                combinations, or converting to degree
I recently applied for an increase to my disabilities.          of disability. The bilateral factor will
Everything was going great and the Cleveland; Ohio              be applied to such bilateral
VA Regional Office granted my increases. According              disabilities before other combinations
to the VARO, I went from a 70% rating to 80%                    are carried out and the rating
during the first round of awards. The VARO                      for such disabilities including the
divided my request for increase into two rounds of              bilateral factor in this section
appointments and awards. While waiting for the                  will be treated as 1 disability for the
second award, I was sure the VARO would increase                purpose of arranging in order
to 90% due to the disabilities still being reviewed.            of severity and for all further
When I got my second award letter they had changed              combinations. For example, with
a few numbers to suit the calculation and insisted I            disabilities evaluated at 60 percent,
was going to remain at 80%. I looked over everything            20 percent, 10 percent and 10
they did and requested a re-comp of the rates.                  percent (the two 10’s representing
                                                                bilateral disabilities), the order
My individual rates are 30, 30, 10, 10, 10, 10, 10, 10, 10,     of severity would be 60, 21 and 20.
10, and 10. Six of the 10% ratings are bilateral and            The 60 and 21 combine to 68
thus require an additional Bilateral Factor. In the letter      percent and the 68 and 20 to 74 percent,
from the VARO they explained that my six bilateral              converted to 70 percent as
conditions became 47%, plus a Bilateral Factor of 4.7           the final degree of disability.
to make the final percent 51.7% rounded up to 52%.
                                                                    (a) The use of the terms “arms”
This is where they (VARO, Ohio) do the funny math.              and “legs” is not intended to
They explained to me in this letter that my rates               distinguish between the arm, forearm
are 52, 30, 30, 10, 10, and 10, which equates to                and hand, or the thigh, leg, and
82% rounded to 80% for a final disability rating.               foot, but relates to the upper extremities
                                                                and lower extremities as a
What happen to the six 10’s? Shouldn't they have                whole. Thus with a compensable
become 60% plus a Bilateral Factor? How does                    disability of the right thigh, for
anyone get a Bilateral Factor of 4.7 from 60?                   example, amputation, and one of
                                                                the left foot, for example, pes
I answered;                                                     planus, the bilateral factor applies, and
                                                                similarly whenever there are
It's no surprise to you that you've hit upon                    compensable disabilities affecting
one of the trickier parts of VA math.                           use of paired extremities
                                                                regardless of location or specified type of impairment.
Let's begin with the Bilateral Factor rules:
                                                                    (b) The correct procedure when
38 CFR Book C Schedule for Rating Disabilities                  applying the bilateral factor to
Subpart A - General Policy in Rating                            disabilities affecting both upper
§4.26 Bilateral factor.                                         extremities and both lower
                                                                extremities is to combine the ratings
   When a partial disability results                            of the disabilities affecting
from disease or injury of both                                  the 4 extremities in the order of their
arms, or of both legs, or of paired                             individual severity and apply                                 t   TOC   u   Page 37

the bilateral factor by adding, not
combining, 10 percent of the
combined value thus attained.

    (c) The bilateral factor is not
applicable unless there is partial
disability of compensable degree in
each of 2 paired extremities, or
paired skeletal muscles.

You had 6, 10% conditions. Using the
CRT that adds up to 47%. (The 6,
10's aren't 60%, you must use the CRT

10 + 10 = 19 (2 tens)

10 + 19 = 27 ( 3 tens)

10 + 27 = 34 (4 tens)

10 + 34 = 41 (5 tens)

10 + 41 = 47 (6 tens accounted for)

The bilateral factor of 10% would then
be 4.7 to = 51.7 rounding up to 52.

52 + 30 = 65 (Round up to 70) (The first 30)

70 + 30 = 79 (Round up to 80) (The second 30)

I don't understand how anyone arrived at 52,
30, 30, 10, 10 and a setting of Bilateral
Factor usage, the 10's would be the first
ratings addressed just as as I did. However, the
resulting number is the same. You're at 80%.

You're now eligible to apply for 100% IU.                                t       TOC    u                                           Page 38

The soldier above all others prays for                       should describe the material and relevant facts as to
peace, for it is the soldier who must                        the veteran's disability observed within such period,
suffer and bear the deepest wounds and scars of war.         not merely conclusions based upon opinion."
Douglas MacArthur

                                                             38 C.F.R. § 3.303(a) provides that each disabling
Buddy Statements                                             condition for which a veteran seeks service
                                                             connection, "must be considered on the basis
Lay Evidence Can be an Important                             of ... all pertinent medical and lay evidence."
Part of a Veteran’s Claim
                                                             It is clear that the statutes and regulations require
Leo Dougherty                                                at least the consideration of lay evidence if that lay
                                                             evidence is pertinent to the claim. However, 38 US
For many years, veterans and their advocates held            Code 5107(a) states, “Except as otherwise provided by
the generally accepted opinion that the submissions          law, a claimant has the responsibility to present and
of family or “buddy” statements were worthless               support a claim for benefits under laws administered
as evidence in veterans’ claims for disability.              by the Secretary.” This means the burden of proof
However this stance, long employed by the VA, is in          rests on the shoulders of the veteran and this includes
contradiction to the law. Over the past several years,       assuring that lay evidence meets the requirements
case law has supported that such statements must be          assuring such statements deserve probative weight.
considered by the VA in making decisions on claims.
                                                             Two important court opinions have clearly made it
This does not mean that such statements are a                necessary for the VA to consider lay evidence but
panacea for veterans nor should such statements be           only after such evidence has met the requirements
considered as a replacement for factual evidence.            to assign probative weight. Both opinions come
                                                             from the Federal Circuit Court of Appeals.
The authority for lay evidence comes from 38 US
Code 1154(a), which states in part, “The Secretary           The first is Buchanan v. Nicholson decided in June
shall include in the regulations pertaining to service-      2006. Buchanan stated that lay evidence can, in and
connection of disabilities (1) additional provisions         of itself in some instances, be sufficient to establish
in effect requiring that in each case where a veteran        service connection. The opinion established that the
is seeking service-connection for any disability             VA has the right and the responsibility to establish first
due consideration shall be given to the places,              that lay evidence is credible and, if credible, whether
types, and circumstances of such veteran's service           the lay evidence is competent. If lay evidence
as shown by such veteran's service record, the               passes both these tests then probative weight
official history of each organization in which such          should be assigned. How much weight to assign is
veteran served, such veteran's medical records,              the province of the VA but that determination can
and all pertinent medical and lay evidence . . .”            be part of a notice of disagreement and appeal.

The Code addresses the issue of lay evidence                 On July 3, 2007 the Federal Circuit Court of Appeals
again in 38 US Code 5107(b), which sates in part,            again addressed the issue of lay evidence in Jandreau
“The Secretary shall consider all information                v. Nicholson, affirming the case law established in
and lay and medical evidence of record in a case             Buchanan. The Jandreau case concerned lay evidence
before the Secretary with respect to benefits                that the VA determined was insufficient “when the
under laws administered by the Secretary.”                   determinative issue involves either medical etiology
                                                             or a medical diagnosis. The Federal Circuit said, “Lay
Lay evidence is also addressed in the Code of                evidence can be competent and sufficient to establish
Federal Regulations. 38 C.F.R. § 3.307(b) states in          a diagnosis of a condition when (1) a layperson is
part, ". . .the factual basis for establishing a chronic     competent to identify the medical condition, (2) the
disease may be established by medical evidence,              layperson is reporting a contemporaneous medical
competent lay evidence or both.... Lay evidence              diagnosis, or (3) lay testimony describing symptoms                                 t      TOC   u   Page 39

at the time supports a later diagnosis by a medical
professional. Contrary to the Veterans’ Court, the
relevance of lay evidence is not limited to the third
situation, but extends to the first two as well.” A
footnote stated, “Sometimes the layperson will
be competent to identify the condition where the
condition is simple, for example a broken leg, and
sometimes not, for example, a form of cancer.”

This is important case law for veterans and it
can mean the difference between a favorable
award of benefits and a denial. If there is medical
evidence, the veteran should do everything he or
she can do to develop that evidence and provide
it to the VA. If there is something missing that a
military buddy or family member can fill in, such a
statement can tip the scale in the veteran’s favor.

It must be remembered that the VA has the right
and the responsibility to determine if a statement
is credible and, if credible, is competent. If it is
not credible the VA will reject it but if it is credible
the VA will have to decide if it’s competent. If it’s
determined competent but the VA assigns little
or no probative weight to the statement, the
reasons and bases for the determination should
be carefully reviewed to determine if the lay
evidence should become part of an appeal.

Leo Dougherty is a veteran who served in the
US Navy from 1965 to 1969. He is an accredited
claims agent and member of the National
Organization of Veterans Advocates.

The word user is the word used by the computer
professional when they mean idiot.
Dave Barry                                t         TOC    u                                             Page 40

This is a court of law, young man, not a court of justice.     combat assaults, combat with fixed bayonets, night
Oliver Wendell Holmes                                          missions, near death and close call experiences while
                                                               in service in Vietnam. Your claim was denied. The
                                                               BVA decision says that you served on a ship in the
The Board of Veterans Appeals (BVA)                            early 1970s and did not put boots on the ground
                                                               of Vietnam and that you did not serve in combat.
The Board of Veterans Appeals (BVA) is the VA
department responsible for reviewing your                      You also claim that while in Korea you were
appeals of Regional Office claims decisions.                   given some sort of psychotropic drug without
                                                               your knowledge, and that you ended up in
You may initiate a BVA appeal by filing a Form 9.              the hospital. There is no notice in your Service
                                                               Medical Record (SMR) of any hospitalization
One of the most useful of all VA web sites, the BVA            for you at any time during your service.
site catalogs its decisions by year. You may search
those decisions to better understand how your                  You have alleged that as you watched, a ship's
appeal or case may appear to these decision makers.            crew member was crushed between two vehicles
                                                               in April or May 1972; however, such an incident is
The decisions search engine is simple enough to                not contained in the deck logs for the the ship you
use. You decide what your search term(s) will be               served on. You've also stated that you witnessed
and enter them. You choose the year that you                   a helicopter explode on deck during a landing off
want to search and you press the search button.                the coast of Vietnam in 1972. The ship's deck logs
                                                               do not indicate, however, the loss of any helicopter
For example, if you believe that your liver                    during the months you claimed. You claim to have
cancer was caused by your exposure to carbon                   witnessed a friend being stabbed in the heart and
tetrachloride during your military service, you                dying during a fight exacerbated by racial tensions on
may want to first enter "carbon tetrachloride"                 board your ship. However, with regard to your report
(without the quotation marks) into the search                  of a friend being stabbed, there is no indication in
field and leave the year set to 2010.                          records of the ship that such an incident occurred.

Now it's time to start reading. Go through the                 In spite of numerous notifications by the Regional
decisions you find and when you read one similar               Office and the BVA, you have not provided
to your own case, print it out for future reference.           any of the evidence that has been requested
                                                               of you to support any of your allegations of
Once you've exhausted the 2010 archives,                       stressors that would have caused PTSD.
begin again with 2009 and so on.
                                                               The BVA has informed you that "a noncombat
Then try different search terms. You may                       veteran's testimony alone does not qualify as
want to try typing in your condition alone                     credible supporting evidence of occurrence of an
and then with another term. Keeping the                        in-service stressor as required by 38 C.F.R. § 3.304(f)."
search terms simple usually works best.
                                                               The decision of the board is clear. It is unlikely that you
I need help with my Appeal back to the                         can be successful with an appeal unless and until you
Board of veterans' Appeals can you help?                       are able to present VBA with evidence that you served
                                                               in combat. That will be a steep challenge as all records
Answer:                                                        indicate that you did not serve in combat. It appears
                                                               that you have no corroborative evidence of any sort
You provided me with a copy of the recent Board                that would support any of your many allegations
of Veterans Appeals (BVA) decision addressing your
claim for PTSD related to your combat experiences              If records were lost or unclear, you might be
as a member of a Marine Corps recon patrol in                  able to argue that point in your favor. However,
Vietnam for 14 months in 1971-1972. You have claimed           it seems that there are no gaps in your records,                             t          TOC   u   Page 41

ship's logs are complete and available and the
records of the ground units you claim to have
served with in combat are also available. There is
no record of your service in these ground units.

Were even one of the events you cite verifiable, you
would stand a chance of winning an appeal. However,
it would appear that you either are unable to provide
the required evidence or you have been unwilling to
take the necessary steps to search out your evidence.

At this stage of your plea for benefits, you need
attorney representation. However, unless you are able
to present evidence that supports some part of your
claim, I doubt that an attorney will accept your case. I
won't make a referral based on what you've given me.                                t       TOC   u   Page 42

“Naturally the common people don't want war;
neither in Russia, nor in England, nor in America, nor
in Germany. That is understood. But after all, it is the
leaders of the country who determine policy, and it
is always a simple matter to drag the people along,
whether it is a democracy, or a fascist dictatorship,
or a parliament, or a communist dictatorship. Voice
or no voice, the people can always be brought to the
bidding of the leaders. That is easy. All you have to do
is to tell them they are being attacked, and denounce
the pacifists for lack of patriotism and exposing the
country to danger. It works the same in any country.”
Hermann Goering


The number of wounded is usually updated
weekly on Tuesday by the Pentagon

Vietnam Casualties

New Names Added to Vietnam Memorial

American War and Military Operations
Casualties: Lists and Statistics

Statistical information about
casualties of the Vietnam War
vietnam-war/casualty-statistics.html                              t   TOC   u   Page 43

A great war leaves the country with three armies -
an army of cripples, an army of mourners,
and an army of thieves.
German Proverb

CHAMPVA Policy Manual

Provider Newsletter

Federal Benefits for Veterans, Dependents
and Survivors_Chapter 11 Dependents
and Survivors Health Care

Busting Myths About VA Health Care Eligibility

On Line Application & More Information
champva/champva.asp                                t         TOC   u   Page 44

Political speeches are like steer horns.
A point here, a point there, and a lot of bull in between.
Alfred E. Neuman


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Respect for all is a principle driver of this site. You're
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show them the respect you would expect in return.

The People want to hear what
you have to say, go for it.                                t    TOC    u                                          Page 45

Military justice is to justice what                       a driver, you're under a lot of stress today
military music is to music.                               and it's best for you to be relaxed.
Grouch Marx
                                                          Don't ever think about embellishing or overstating
                                                          anything. These people are often expert in their jobs
Compensation & Pension Examinations                       and they'll know. If you don't usually use a wheelchair,
                                                          don't use one today. If your neck or back isn't
You have an absolute right to a good and adequate C       ordinarily in a brace and your arm isn't usually in a
& P examination. All too often, the examiner doesn't      sling, don't try to impress anyone with such gadgets.
stick to the rules he or she should follow closely.
                                                          Don't present yourself as happy and healthy.
I've personally had examinations by                       You don't ever want to fake it but you do
professionals who were concerned about my                 want the examiner to understand your
health and went way beyond what they had                  problems. If you're greeted with, "Hello, how
to do to ensure a perfect examination.                    are you today?" and you answer with, "I'm
                                                          great doctor, I feel fine." it's game over.
I've also encountered examiners who appeared
to be totally dumbfounded by the world around             If you're feeling so good, why are you there?
them and they hardly noticed I was there.
                                                          Do carry copies of any records you believe may be
You have to prepare for either extreme. The following     relevant. Do offer them to the examiner. Don't be
will tell you how to get the best exam and what           surprised or offended if the examiner doesn't want
to do if you don't feel your exam was adequate.           them. The examiner is under orders by the Regional
                                                          Office and will only do what those orders say to do.
It's your job to understand how the C & P exam
should progress. Nobody can or will do this for you.      As your exam begins, be polite, courteous,
                                                          respectful and go with the flow.
Before you have a C & P
the instructions for yourself.                            You may ask for a friend or spouse to accompany
                                                          you during the exam. The examiner may decline
Read this page of the A to Z Guide                        your request. If declined, don't make a fuss...go
carefully. Now, read it again.                            with the flow. It's not a big deal at this point.

Then, go the the VA Disability Worksheets. Find           During the exam you should attempt to do as the
the category that fits your claim. Read until you         examiner asks you to do. However, when asked to
understand what the examiner should be doing.             do tasks that may cause you pain or fatigue you
                                                          excessively, you may politely decline. For example,
Next, go the the C & P Service Clinician's Guide          "Please flex your arm upwards and place your hand
                                                          behind your head." "I'm not able to do that doctor, it
                                                          hurts me too much and causes my arm to be numb."
Commit to memory as much as you can of the
general guidelines that will apply to you.                Should the examiner attempt to do a maneuver for
                                                          you, you may decline...again, politely and without
The rest is easy.                                         any rancor. Simply state that there is too much pain.

Get to the exam early. When you arrive, remember          If asked to walk and it tires you, make it
that the people nearby may be employees of the C &        clear that you become fatigued easily.
P department. Don't say anything about your exam.
Don't speak with anyone you don't need to speak to.       The bottom line is that you should attempt to
                                                          comply so that you will get an adequate exam
Have a driver. Even if you don't usually need             but you aren't required to hurt yourself.                               t      TOC    u                                        Page 46

Your exam probably will take from 5 to 25         what?
minutes. You may have additional imaging
studies (x-rays) or lab work ordered.                      You may write it up and ask for a new exam
                                                           right now or you may wait for the decision and
From the moment you arrive until you're far                use "inadequate exam" as your appeal point.
off the campus, don't speak unnecessarily.
Keep it in mind that courtesy, a respectful                There isn't any way to say which path an individual
attitude and giving the examiner and staff the             should follow. The variables will depend on
benefit of the doubt will be in your favor.                the other evidence you have and so on.

Once your exam is complete, make notes for                 The key to success in appealing an inadequate
future use. Who was your examiner? What                    exam is that you must be able to define and
happened during the exam? What was said?                   tell the VA why the exam was inadequate and
Was the examiner interrupted by telephone                  unfair to you. Simply making the statement
calls or staff with questions? How often?                  isn't enough. As with everything else VA,
                                                           you must prove every word that you say.
You won't remember these details next
week, make written notes now.
About 2 to 3 weeks after the exam, you may
return to any medical facility and seek out the            Your examination will most likely be
Release of Information (ROI) department. Your C            conducted by a contractor. The usual
& P exam is stored in the VistA records system.            contractor is a company called QTC.

Ask ROI for a copy. If they stall you, smile and           Read more about QTC here.
politely suggest that you can wait all day and go
get a coffee. Don't allow ROI to tell you they'll mail     The examiner does not make the
it to you...they have no intention of ever mailing         decision about your rating!
anything to you. Be courteous but be persistent.
You have a right to see that C & P exam.                   QTC Management
                                                           Hon. Anthony J. Principi
EXCEPTION...if your C & P was for mental health,           (Former VA Secretary)
you may need your mental health provider to                Executive Chairman
release that to you. The rules protect mental
health records...even from the veteran.                    "QTC is the largest private provider of
                                                           government-outsourced medical and disability
Now you have your C & P report in hand.                    examination services in the nation. "

Do you have an adequate or an
inadequate examination?

If favorable to you, you'll accept it as adequate.
If unfavorable, you should begin to use your
notes to write out why it's unfavorable.

You must provide details. If the regulations
require a goniometer for measurement and
you know that there was no goniometer
used, you have a point of appeal. have had an inadequate                             t      TOC    u                                           Page 47

TITLE 38 PART 4 SCHEDULE FOR RATING DISABILITIES         The depth of the examination is determined by
                                                         order of the VSR or the RSVR and is included in
Subpart B                                                the request for examination. The examiner has no
                                                         authority to go beyond what is requested. Frequently
Sec. 4.70 Inadequate examinations.                       the examiner will not have your medical records
                                                         or any other history available. That is often the
If the report of examination is                          case when the VSR only wishes to determine the
inadequate as a basis for the                            degree of function of a joint, as in a knee injury.
required consideration of service
connection and evaluation, the rating                    In that instance, the examiner won't consider
agency may request a supplementary                       that the history or treatments over time is of any
report from the examiner giving                          particular importance. She or he will only be
further details as to the limitations of                 looking for the physical effects that are observable
the disabled person's ordinary                           and measurable at that moment. The knee may
activity imposed by the disease, injury,                 be flexed and rotated so that the examiner can
or residual condition, the                               record those motions for comparison to the norm.
prognosis for return to, or continuance                  If there is scarring, crepitus (joint noise), swelling
of, useful work. When the best                           or redness, all of that will be noted in a report.
interests of the service will be advanced
by personal conference with                              In other cases, the VSR or RSVR may request that
the examiner, such conference may                        the examiner give the medical record a very
be arranged through channels.                            thorough review to determine whether or not a
                                                         condition originated in the time of military service.
Note: The VA may claim an examination is inadequate      A claimed back injury may have a reference of a
for the purposes of rating and the veteran may make      similar injury in the SMR of 30 years prior to the
the same claim. If you believe your examination          date of the claim. The examiner will be asked for an
was less than perfect, you may appeal that.              opinion that will state that the condition of today
                                                         is or is not likely to have resulted from the injury
                                                         in the SMR or if it is a condition that is of different
The C & P Exam                                           origin and likely happened long after the ETS.

The Ratings Veterans Services Representative (RVSR)      This is sometimes referred to as a "nexus statement"
is a primary decision maker of the outcome of your       and may connect the condition you allege today
claim for VA disability compensation benefits. Once      with an event that happened many years ago.
the veteran has filed for the compensation benefit
a folder or file is created and     It's important to know and remember that the
added to the file for consideration by the RVSR.         examiner does not make the decision of an award of
                                                         disability compensation. The report that the examiner
The condition claimed will likely have some past         makes will be considered by the RSVR along with
evidence in the form of a Service Medical Record         all the other accumulated evidence in the file.
(SMR) or records of diagnosis and treatment from
civilian providers. No matter the amount of evidence     As you ready yourself for your examination, you may
you have, it's likely that the Veterans Service          take copies of any notes or other documents that
Representative (VSR) or the RSVR will request that       you believe are relevant. Then you may offer those
a VA contractor perform a C & P exam on you.             to the examiner. Don't be surprised or offended
The examiner is usually a physician or registered        if the examiner refuses to accept or review such
nurse practitioner or a physician's assistant.           paperwork. If their orders don't include that as a part
                                                         of their assignment, they aren't allowed to accept it
The examiner will not treat you or order any             and won't be able to do anything with it in any case.
medications. Lab work, x-rays and other such
studies may be ordered by the C & P examiner.            Whether or not you should carry copies of files with                              t       TOC    u                                         Page 48

you is often the topic of intense debate. Examiners        The examiner should follow guidelines that are
are not generally required to review your records or       established on worksheets. If you're sure that
and files you may have with you. Their assigned task       your examiner didn't follow those guidelines
is to provide a snapshot of the moment. How far does       and your claim is later denied, an inadequate
that joint move? Do you walk with a normal gait?           examination may be a point of appeal.
How large is the scar that troubles you? They only
report on the degree of the disability at that moment,     VA may require a C & P exam at any time. "Where
not anything about how it may have happened.               there is a claim for disability compensation or
                                                           pension but medical evidence accompanying
However, it often pays to be prepared and take             the claim is not adequate for rating purposes,
anything with you that you think is relevant. Offer        a Department of Veterans Affairs examination
it to your examiner. If it's refused, don't argue with     will be authorized." You may not refuse a C & P
that and move on. If the examiner accepts and uses         exam or reexamination. "Individuals for whom
your paperwork, then you may have advanced                 reexaminations have been authorized and scheduled
your case a bit. Be prepared and go with the flow.         are required to report for such reexaminations."

Be cooperative with your examiner. Your goal is            Although you may feel that you have provided
to have the examiner write a report that agrees            more than adequate evidence from private
with your own conclusion about your condition.             physician sources, VA will usually insist on a C
Expressing hostility, complaining about how terrible       & P exam by one of their own examiners.
you're being treated or otherwise acting out your
frustrations isn't going to help your cause.               Failure to report for Department of Veterans
                                                           Affairs examination may result in an interruption
If you're asked to perform maneuvers that cause you        or even termination of your benefits.
pain, for example; actively extending your arm out
straight in front of your body, you should politely        Also See;
inform the examiner that the nature and severity
of the pain will prevent you from completing that          IME Exam
act. If the examiner attempts to assist you with the
motion and you are positive that it will cause you
pain, you should again politely tell the examiner          C & P Exam
that you can't allow that due to the harm it may
cause you. It isn't the time or place to argue about       Random thoughts on C & P, some of this may be
it, a courteous explanation is all that's needed.          a repeat...because it needs to be. I get a lot of
                                                           questions about C & P so let's review some basics;
Your examiner may or may not welcome family
or friends to accompany you as you're being                * The C & P exam is only one step in the
examined. You do not have absolute rights to               process. You generally do not win or lose
be accompanied unless you've established that              a benefit because of a C & P exam.
beforehand with the VA Regional Office that
scheduled your exam. If you would like to have your        * The C & P examiner does not decide your
spouse in the room with you, ask the examiner for          case. He or she makes a report to the Regional
approval. If the examiner denies your request, don't       Office and that report goes into a file and a
argue the point. It isn't one you're going to win          Ratings Veterans Service Representative looks
and it may cause the cancellation of your exam.            at all the evidence to decide your case.

As you are examined, pay close attention to what           * Yes, you should take copies of pertinent records
the examiner does during the process. Later, if you        and reports with you. You should not be surprised if
don't agree that you had a complete examination            the examiner declines to accept or review them. The
of the relevant issues, you'll want to be precise          examiner is given an order of what to do in an exam. If
in detailing all you can about your exam.                  that order says that he or she is to measure the range                             t          TOC    u                                         Page 49

of motion in your right knee, that's all that will be        So I have searched the internet to see if I can
done. The history of your right knee isn't important to      find the regulation that shows what is required
the order. Don't push it if your papers aren't accepted.     of the examiner to have at the C&P. Do you
                                                             have any idea where I can find this? Any help
* Be nice. No matter how you feel about your                 you can give would be greatly appreciated.
exam, keep it to yourself. These people are
human and they are at work and if you mouth                  Answer:
off about your dissatisfaction you may not
get the break they could have given you.                     Excellent question! The VSO who told you
                                                             that the C-File is required was wrong.
* Know what to expect. If your knee is being
examined, study up on what the range of                      The rater who requests the C & P may have it done
motion is supposed to be and what yours really               either way, with or without the medical records
is in your own eyes. Use this guide to learn                 available. Remember, doctors don't make disability
how the C & P examiner works. Use these links                decisions, raters make those decisions based on
to learn what the examiner will look for:                    very structured ways of looking at data. The rater
                                                             requests only the data he needs and the examiner                                follows those instructions. The rater who makes
Benefits/exams/index.htm                                     the disability decision will consider the information
                                                             from the examiner only as a piece of the pie.
guide/cliniciansguide.doc                                    There's a logic to this.

* Don't be late, don't miss your exam.                       If the rating decision is the degree of disability,
If an exam is ordered, just do it.                           the medical file is of little use. For example...if a
Jim,                                                         Veteran presents with a condition of a knee joint,
                                                             the cause and past treatment of that condition is
After reading your paper on C&P exams I have a               not particularly relevant. The rater already knows
question. Isn't the examiner required to have your           why the knee is injured, when it was injured and the
C-file and/or medical records present at the exam?           treatment it has received. He now wants to know to
My husband recently had a C&P to connect his heart           what extent. Looking at records and old x-rays has
condition as secondary to his diabetes. We were told         no bearing on whether or not that knee is working
a few years ago by one of our VSO's that the examiner        today and to the degree of measurable disability.
is required to have the C-file present. This examiner
did not have anything except the paperwork from              In this example, the rater may ask about flexing
the regional office requesting the C&P. She told             the limb, side to side movement, pain on
us that her instructions were that she was NOT to            movement and pain to touch. The Vet may be
review the C-file nor medical records. She was not           asked to walk on the limb to judge gait or limping
to do an evaluation nor give her medical opinion.            and that's the info that's needed. That data is
She said that this was the strangest request for a           sent to the rater who adjudicates the file
C&P that she had ever seen. We did have letters              and assigns a disability rating.
from 2 VA doctors stating that his heart condition
was secondary to his diabetes as well as the medical         In the instance you tell me about, I can make a
reports from his attack and the heart cath that was          couple of guesses. If your husband is a Vietnam
needed. She read the paperwork and stated that               Vet and was diagnosed with Type 2 Diabetes, that
she would include it in her report. We also gave             is "presumptive" as a service connected condition
her a copy to the Title 38 regulation which shows            because of exposure to Agent Orange. He should
that the rating my husband should receive is 60%             be Service Connected at 10, 20 or higher %.
because his condition fits this reg. I printed a copy
of the exam worksheet which she did not have.                Then he develops a heart condition and here's
                                                             where it can get tricky. If he was diagnosed with                               t        TOC   u   Page 50

Type 2 and is SC for that and then later develops
coronary heart disease, it is very likely that the rater
has already established the nexus (diabetes=heart
condition) in his own mind and is only seeking the
degree of disability from the heart condition.

Still with me? It is usually assumed that diabetes
precedes heart disease. Service connected diabetes
will lead to a service connection for vascular
disease. If your husband had a history of heart
disease prior to his diagnosis of diabetes and if he
had other risk factors like smoking, the VA may
find that there is no service connection. If heart
disease precedes diabetes, it wasn't caused by
it, thus no benefits for the heart condition.

If your husband is not a Vietnam vet but was
diagnosed with Diabetes during his service
and later developed heart disease, he is likely
going to see a SC for the heart problems.

In another example, the rater may be very specific
and request that the physician review everything
and render an opinion. For example...a Vet injures
his back in 1972. He's seen in clinic a couple of times
but goes back to duty. He's discharged 3 years later
with only one other report of back pain. He goes 10
years without a problem and suddenly his back is just
gone. He needs surgery, loses his job and so on...a
disaster. He claims it's service connected but VA sees
the events in the records as acute and transitory. The
examiner may be asked to read it all and comment
with expert medical opinion if the original event
could have a connection to the current event.

If that examiner says 'yes', there are benefits. If
the examiner sees the original injury was to a
different part of the back, far removed from today's
problems, no service connection is established.

I'll bet that your husband's doctor or examiner
focused on issues like shortness of breath, level
of activity that can be achieved and so on? If so,
she was instructed only to provide the degree of
current disability because the rater with that file
has already decided it's SC secondary to diabetes.                              t       TOC    u                                         Page 51

“Why can't they have gay people in the army?               02/20/2011 Military 'don't ask, don't tell' repeal
Personally, I think they are just afraid of a              training under way All four branches of the U.S.
thousand guys with M16s going,                             military have begun the required training necessary
"Who'd you call a faggot?"”                                as part of the repeal of the ban on gays and lesbians
 Jon Stewart                                               serving openly in the armed forces, and expect to
                                                           have it completed before the end of summer.
                                                           02/20/2011 Few problems expected when Air
02/20/2011 Same-sex marriage bills have mixed              Force Academy begins admitting openly gay
results Americans in general are becoming more             cadets Air Force Academy officials say they can't
accepting of same-sex partnerships, The Washington         discuss their preparations because they're waiting
Post said. Government-sanctioned gay marriages             for guidance from Air Force higher-ups. But the
or civil unions were hardly imaginable when the            academy superintendent told cadets, faculty and
movement began about four decades ago.                     staff in late January that "we will get this right."

03/08/2011 'Don't ask, don't tell' repeal training in
full swing Writers over at the blog, a
self-described underground site for gay, bisexual and
transgender active-duty troops, have posted training
documents from all four services for the impending
“don’t ask, don’t tell” repeal. All four services (and
the Coast Guard) have now started their general
population training on what to expect once gay
troops are permitted to serve openly in the ranks.

02/13/2011 GOP's Gary Johnson: Obama Too Slow
Ending "Don't Ask, Don't Tell" WASHINGTON
-- Former New Mexico Gov. Gary Johnson, a
libertarian considering a presidential bid, said
this week that President Obama has helped
advance gay rights -- but not quickly enough.

02/13/2011 Pentagon finalizes plans for implementing
repeal of 'don't ask, don't tell' The Pentagon
released a memo Friday that finalizes how the
department will begin adopting its policy to the
new law, how it will train troops with regards to
gays and lesbians serving openly and how it all will
be communicated to Congress and the public.

02/13/2011 Pawlenty Draws Fire Over ‘Don't
Ask, Don't Tell' Comments Former Minnesota
Gov. Tim Pawlenty's remarks that he would
reinstate the military's ban on openly gay and
lesbian service members have set off a bit of a
firestorm. At an event in Iowa Pawlenty said if
he was elected president in 2012 he would pull
funding for the repeal of "Don't Ask, Don't Tell."                              t       TOC    u                                           Page 52

OFFICE OF SURVIVORS ASSISTANCE "We are                     The widow may seek the help of a Veterans Service
your advocate to ensure fairness, equity and               Officer through an organization her veteran held
appropriateness of all survivor benefits and to            a life membership to. Again, in my experience,
serve as the liaison for inter- and intra-agency           the VSO is of little help and will often repeat
collaboration and coordination on survivor issues."        just what the VA has said, "Don't bother."

<>                                 Any veteran who receives any benefit from VA should
                                                           frequently update dependents on the paperwork and
                                                           routines necessary should the veteran die. Having a
Veterans’ Benefits: Dependency and Indemnity               will isn't a substitute for a complete understanding of
Compensation (DIC) for Survivors                           what the widow is likely eligible for and how to apply.
                                                           Along with the will the responsible veteran should
Dependency and Indemnity Compensation (DIC)                have all the necessary forms and other supporting
                                                           documents available so that survivors won't find
The most frequently requested information regarding        themselves lost in a maze of VA bureaucracy.
a survivor's benefit concerns DIC. As is so often
the case, the VA web site is a rich source of data         At first glance, survivors benefits seem
about the benefit. Most of what you'll read here is        complex. At the most basic level, they aren't.
culled directly from the VA site and presented in a        There are a few simple rules to keep in mind
format that may be easier to read and understand.          and for most of us, that's the end of it.

Over the years I've received hundreds of                   What is DIC?
inquiries regarding DIC benefits. Of all of these
there is a single problem that is at the front of          DIC is a monthly benefit paid to eligible survivors of a:
most of those questions. That is that during his
life, the veteran never spoke with the widow               Military service member who died
about the VA or any benefits he received.                  while on active duty, OR

For most of us such a thing seems incomprehensible.        Veteran whose death resulted from a
However, in many families the veteran is the one           service-related injury or disease, OR
who deals with the bills, the bank accounts and the
financial structure of the family. He may not share        Veteran whose death resulted from a non service-
any information at all about VA for any number of          related injury or disease, and who was receiving, or
reasons. (I'm using "he" as in my experience, the          was entitled to receive, VA Compensation for service-
great majority of the issues I've seen have been           connected disability that was rated as totally disabling
those of the male veteran. I recognize that a survivor     for at least 10 years immediately before death, OR
may be a male widower of a female veteran.)
                                                           since the veteran’s release from active duty and for
When the time comes that the veteran passes on,            at least five years immediately preceding death, OR
the survivors are often left completely unaware of         for at least one year before death if the
any of the activities that may have been ongoing           veteran was a former prisoner of war
with the VA. The widow will find all the paperwork         who died after September 30, 1999.
in an old desk drawer and view it as unreadable
with the legalese and technical mumbo-jumbo.               Who are eligible survivors for DIC?

All too often the survivor will heed the advice            The unremarried surviving spouse if he or she:
they find on a letter from VA and they'll call the
toll free number to inquire of any benefits that           validly married the veteran before January 1, 1957, OR
may be owed them. The usual response from
VA is to tell the widow she shouldn't bother               was married to a service member
with all that, there are no benefits to be had.            who died on active duty, OR                            t       TOC   u   Page 53

married the veteran within 15 years of discharge
from the period of military service in which
the disease or injury that caused the veteran’s
death began or was aggravated, OR

was married to the veteran for at least one year, OR

had a child with the veteran, AND

cohabited with the veteran continuously
until the veteran’s death or, if separated,
was not at fault for the separation, AND

is not currently remarried.

The surviving child(ren) if he or she is:

unmarried AND

under age 18, or between the ages of
18 and 23 and attending school.

(Note: Certain helpless adult
children are entitled to DIC.)
The surviving parents may be eligible
for an income-based benefit.

What is the application process?

First-time applicants should complete VA Form
21-534 (Application for Dependency and Indemnity
Compensation, Death Pension and Accrued Benefits
by a Surviving Spouse or Child) and submit it the
VA regional office serving the applicant’s area. The
process is simpler on requests for restored DIC.                                 t        TOC    u                                                Page 54

Government is not reason; it is not eloquent; it is force.     reviews, I believe that this is the first time that
Like fire, it is a dangerous servant and a fearful master.     any individual in the system will actually sit
George Washington                                              down and read your folder completely.

Decision Review Officer (DRO) Process

As you know, there are a number of complex steps
that the Veterans Benefits Administration (VBA) will
follow to adjudicate your claim for disability benefits.
Your claim is received, checked to determine your
eligibility, evidence is gathered and put in place
in your folder, you are given a Compensation and
Pension examination, you are notified a number of
times of your opportunity to submit more evidence
and the folder is perfected by a Veterans Service
Representative (VSR). Eventually your claim is ready
for adjudication and it marches on to the desk of the
Ratings Veterans Service Representative (RSVR).

The RSVR is under tremendous pressure to turn out
a given volume of work. This VA employee operates
on a quota that doesn't allow the time that would be
necessary to do a thorough reading of your entire
folder. This is one of the points in the process where
serious mistakes often occur. You may receive a denial
of your application for a benefit or an extremely lower
rating than you believe you deserve at this stage.

Upon receiving your award letter and discovering that
the decision is flawed, you have one year to appeal
that decision. This appeals process allows you to
have your case sent to the Board of Veterans Appeals
(BVA) for a complete review by a higher authority.

There are other divisions of time built into the appeals
process. If you respond within 60 days of the date of
the award/denial letter, you may ask for a Decision
Review Officer (DRO) review and hearing. The DRO
process is often much faster than a BVA process as
the folder is kept "local" at the Regional Office (RO).

The DRO is a senior employee with greater training
and experience and significant authority to make
independent decisions. The DRO process is a "de
novo" review. This means that the individual who
is reviewing your claim has not been previously
involved in the review of your file and brings
no bias or preconceived ideas to the task.

In my own experience with numerous DRO                         t    TOC   u   Page 55

Welcome To The GI Bill Web Site
The Home For All Educational Benefits Provided
By The Department Of Veterans Affairs                              t         TOC   u                                       Page 56

Evidence                                                     Eventually he walks away mumbling about
                                                             calling his lawyer and his Congressman. As
You're at the VFW having a beer, seeing some                 he leaves, he yells that you're not a “real”
friends when a stranger stops in. He sits near               Veteran...a real Veteran would understand.
you, orders a beer and you strike up a friendly              He gives you a one finger salute. You're befuddled
conversation. You discover you may have                      from the encounter but you grab another beer
known some of the same people 35 years ago.                  and turn your attention back to your friends. Just
As you talk, the stranger gets a little pushy.               then, a stranger walks in and sits near you...
He insists he knows you and remembers you well.              Evidence. All you wanted was evidence that he was
There were football pools on base back then and he           being truthful and you were ready to give him money.
won a big one. His PCS orders had come down, he              Without evidence, you couldn't believe his story.
was in a rush to make his travel deadlines and the           A quick search on the Internet to define the word
guy who was holding the winner's money avoided               “evidence” brings us, “Any information that tends
him. He shipped out without his winnings. He says            to prove something, facts that indicate whether or
he remembers you as the one that held that money.            not something is true; proof. Information that tends
“You owe me!”, he insists, “With interest.”                  to prove a fact. A fact presented before a court
He gets louder. You search for memory of a                   such as a statement of a witness, an object, etc.,
football pool. You may have bought in once or                that bears on or establishes a point in question.”
twice, but you weren't much of a gambling man                In the case of the wife providing evidence for her
then or now. You never won anything and you                  husband, she was offering “Hearsay” evidence.
weren't accountable for any of the money.                    Some of the definitions include, “Statements offered
He starts to get in your face. “You owe me money.            by a witness, based upon what someone else has
I want it right now.” You decide you only have one           told him/her, and not upon personal knowledge or
choice; You tell him, “Prove it. If you'll provide me        observation. Such evidence is generally considered
the evidence of your claim, I'll write you a check.”         inadmissible. Evidence based on what someone has
Now he's upset. How dare you challenge him                   told the witness and not of direct knowledge.”
like that? “Hey. Are you calling me a liar dude? I           Although there are thousands of mentions
don't need to prove a damn thing to you. I know              of evidence in all of the millions of words
what I know. It was you. You know it was you and             published around VA disability awards, a strict
I know it was you. You owe me money, man.”                   definition of precisely what VA must have to
You aren't about to give away your money to a                award you a disability benefit is elusive.
guy with such a crazy claim. But now some doubt              Our goal is to support an award of a service
creeps into your mind. Maybe you did something               connected disability rating from VBA.
but you don't remember it? It was a long time                From the VBA Internet site we have:
ago. Could it have happened just like he says?               _________________________________________
You tell the guy, “I want to give you the benefit of the     38 CFR Book B - Adjudication, Ratings and
doubt. If I owe you, I'll pay you. But you have to prove     Evaluations; Service Connection
that I owe you or there's no way I'm writing a check.”       §3.303 Principles relating to service connection.
He opens his cell phone and he calls his wife. He            (a) General. Service connection connotes many
explains the situation to her. He hands you the              factors but basically it means that the facts, shown
phone and the wife informs you she recalls him               by evidence, establish that a particular injury
telling her that this is what happened 35 years ago.         or disease resulting in disability was incurred
She remembers he was angry that he didn't collect            coincident with service in the Armed Forces, or if
his winnings. She testifies he's right. You owe him.         preexisting such service, was aggravated therein.
You end the call and hand his phone back and                 This may be accomplished by affirmatively showing
tell him that isn't good enough. She wasn't there,           inception or aggravation during service or through
she never saw you or anyone else involved with               the application of statutory presumptions.
this and she can't really back up the story.                 ________________________
“Are you calling my wife a liar dude?” The                   __________________
guy is clearly impatient with your utter                     That tells you that you must have facts to
stupidity and unbelievable arrogance.                        prove that your injury or illness has some cause                               t       TOC    u                                           Page 57

and effect relationship with your service.                  mental retardation, learning disabilities, and
Truth. A fact is true. “The meaning of the word truth       borderline intellectual functioning only ;
extends from honesty, good faith, and sincerity
in general, to agreement with fact or reality in            licensed optometrists, for purposes of establishing
particular.”             visual disorders only (except, in the U.S. Virgin
The Social Security Administration oversees                 Islands, licensed optometrists, for the measurement
another disability program; Social Security                 of visual acuity and visual fields only);
Disability Insurance or SSDI. Although there are
differences between the VBA and SSA disability              licensed podiatrists, for purposes of establishing
programs, each will rely on a foundation of medical         impairments of the foot, or foot and ankle,
documentation to support a claim of disability. The         depending on whether the State in which the
SSA speaks in somewhat plainer English to make it           podiatrist practices permits the practice of podiatry
simpler to understand and provides this for us:             on the foot only, or the foot and ankle; and
Evidentiary Requirements
                                                            qualified speech-language pathologists, for purposes
                                                            of establishing speech or language impairments
Medical Evidence                                            only. For this source, “qualified” means that the
                                                            speech-language pathologist must be licensed
Under both the Title II and Title XVI programs,             by the State professional licensing agency, or be
medical evidence is the cornerstone for                     fully certified by the State education agency in
the determination of disability.                            the State in which he or she practices, or hold
                                                            a Certificate of Clinical Competence from the
Each person who files a disability claim is responsible     American Speech-Language-Hearing Association.
for providing medical evidence showing that he
or she has an impairment(s) and how severe the
impairment(s) is. However, the Social Security              The SSA also provides good advice about
Administration (SSA) will help claimants get                the details an applicant should submit
medical reports from their own medical sources              about their condition by saying;
when the claimants give SSA permission to
do so. This medical evidence generally comes                Evidence Relating to Symptoms
from sources who have treated or evaluated
the claimant for his or her impairment(s).                  In developing evidence of the effects of
                                                            symptoms, such as pain, shortness of breath, or
Acceptable Medical Sources                                  fatigue, on a claimant's ability to function, SSA
                                                            investigates all avenues presented that relate
Documentation of the existence of a claimant's              to the complaints. These include information
impairment must come from medical professionals             provided by treating and other sources regarding:
defined by SSA regulations as "acceptable medical
sources." Once the existence of an impairment is            the claimant's daily activities;
established, all the medical and non-medical evidence
is considered in assessing impairment severity.             the location, duration, frequency, and
                                                            intensity of the pain or other symptom;
"Acceptable medical sources" are:
                                                            precipitating and aggravating factors;
licensed physicians (medical or osteopathic doctors);
                                                            the type, dosage, effectiveness, and
licensed or certified psychologists. Included               side effects of any medication;
are school psychologists, or other licensed or
certified individuals with other titles who perform         treatments, other than medications, for
the same function as a school psychologist in               the relief of pain or other symptoms;
a school setting, for purposes of establishing                            t      TOC      u                                         Page 58

any measures the claimant uses or has used                The VBA is required to give full consideration to
to relieve pain or other symptoms; and                    anything you submit as evidence. You may submit
                                                          any document, statement, photograph, ship's log,
other factors concerning the claimant's functional        duty roster, newspaper reports, calendars, tape or
limitations due to pain or other symptoms.                video recordings or most anything else you can think
                                                          of as evidence in support of your claim and the VBA
Just the facts.....                                       will consider it. In just the last 5 years, the amount
                                                          of information to support your claim that is freely
All too often a Veteran may submit a claim                available on the Internet has increased exponentially.
for back pain and only say, “I have back                  Were you a Marine involved in recon back then?
pain.” That accomplishes very little and                  Want to see the reports and even some maps of
gives a rater almost no information when                  your patrols? Look here
compared to the 7 bullet points above.                    caah/history/facultypages/EdMoise/marspec.html
                                                          Did you serve on the U.S.S. Boyd between 1942 and
The vagaries of collecting good evidence for use in       1945? Click here to see what you were doing and
the VBA claims process is well recognized. In GAO         when
report GAO-07-562T          The best evidence is that which was produced
d07562t.pdf we learn, “For years, the claims process      at the time of the event that you claim caused or
has been the subject of concern and attention by VA,      contributed to your condition. If you were wounded
the Congress, and veterans service organizations, due     in combat, the medical record of your treatment
in large part because of long waits for decisions and     is as good as it gets to establish that something
large claims backlogs...In fiscal year 2006, it took an   actually did happen. If there is no medical record
average of 657 days to resolve appeals. Several factors   for any reason, a record of your assignment at the
may be affecting VA’s claims-processing performance       time, records of that unit's history of combat and
(such as) continued increases in the number and           physical or mental scars that are apparent and
complexity of claims being filed, and difficulties in     easily connected to the event will do just fine.
obtaining the evidence needed to adjudicate claims        The Veterans Claims Assistance Act (VCAA) under 38
in a timely manner, such as military service records.     U.S.C. § 5103A, requires the VA to make "reasonable
When a veteran submits a claim to any of the Veterans     efforts to assist a claimant in obtaining evidence
Benefits Administration’s (VBA) 57 regional offices,      necessary to substantiate the claimant's claim."
a veterans service representative is responsible for      New sections 5103A(b), (c), and (d)
obtaining the relevant evidence to evaluate the claim.    specify that the VA must:
Such evidence includes veterans’ military service         (1) make reasonable efforts to obtain relevant,
records, medical examinations, and treatment records      non-federal records that the claimant
from VA medical facilities and private medical service    identifies and authorizes the VA to obtain;
providers. Once a claim has all the necessary evidence,   (2) continue to try to obtain existing service medical
a rating specialist evaluates the claim and determines    records and additional records in control of other
whether the claimant is eligible for benefits.”           federal agencies (unless it is discovered that the
You're providing an attestation of truth in your          records do not exist or are unobtainable); and
statement to VBA each time you sign a document.           (3) provide a medical examination and/or
Look for the not-so-fine print that says, “I CERTIFY      opinion if the VA finds the veteran has a current
THAT the statements on this form are true and             medical disability or symptoms and there is
correct to the best of my knowledge and belief.           evidence to suggest that the current symptoms
PENALTY: The law provides severe penalties which          or disability may be related to an event, injury,
include fine or imprisonment, or both, for the            or disease which took place in service.
willful submission of any statement or evidence           Although the VBA has a Duty To Assist you in
of a material fact, knowing it to be false.”              developing your claim, that duty is limited by
Most of us know what the truth is. We aren't all so       resources. If you don't hunt down your own evidence
sure what evidence the VBA demands. In a nutshell,        and you wait for the VBA to do it for you, you'll wait a
the VBA only requires that you provide them with          long time and you won't achieve the desired results.
convincing evidence that your claim is true.              Many Veterans rely on “Buddy Statements” to                             t      TOC   u   Page 59

support their claims if records are missing or
incomplete. These Statements In Support of Claim
pdf may or may not be useful to you depending
on the details that a buddy is able to provide.
If your buddy was with you and he has received
awards or benefits, has documentation
of his role at the time and attests that you
were in that fighting hole with him, you
probably have a good piece of evidence.
If your buddy statement is from a guy
who heard about you but wasn't actually
a witness, the statement is weaker.
If your statement is from your wife, girlfriend,
mom or pastor...unless they were witnesses, don't
bother. The VBA doesn't really care that your
neighbors like you or that your minister has heard
your stories or even that your wife still loves you.
A little thought up front in the process will
prevent years of frustration. Submit your
applications for benefits to VBA perfectly
composed and completed and then provide
necessary evidence and you'll have a winner.
As Sgt. Joe Friday always said, "Just the
facts, ma'am." He was right you know.
Legal Issues Related to Proving “Service
Connection” for VA Disability Compensation:
Statutory Presumptions                              t         TOC    u                                           Page 60

A nickel ain't worth a dime anymore.                         loving spouse assist you if you should become
Yogi Berra                                                   incompetent to manage your resources. VA would
                                                             rather pay one of their "good ol' Boy" network friends
                                                             than to allow you to choose your trusted partner.
The Fiduciary Page                                           Once that's done, you have no right to object.

The cases I've investigated have been as egregious           If you think it can't happen to you, you're living in a
and flagrant in the violation of laws that are on the        fantasy. Ask Vicki about that stranger who knocks
books as any other VA actions I've witnessed to date.        on your door and tells you, "I'm from the VA and I'm
Veterans are routinely told that they have no voice,         here to help you." She will tell you it can happen to
they can't use an attorney, there will be no personal        anyone and that you should be very, very afraid.
hearing, long held Powers of Attorney by loving
family members are not recognized by VA, the vet has         03/15/2011 More VA Fiduciary Follies
no right to see any accounting of his/her finances...
the list goes on. Money that is not derived of VA            For two years, Jacqueline Bracey has been fighting
sources is routinely seized and not accounted for.           to collect more than $100,000 in veterans benefits
                                                             left in her brother's bank account when he died.
The Waco Regional Office has generated more
complaints than any other. There are now allegations         Bracey said for years her brother told the family
by a veterans family of a scheme to write wills              that his guardian was stealing money from him,
for dying veterans that will leave the veterans              but she thought that was the mental illness
estate to administrators and fiduciaries. The legal          talking. She got suspicious when the guardian
actions that will occur soon are centered in Waco.           didn't send regular accounting records to the
It doesn't take much of an imagination to wonder             family the way a previous one had, she said.
just what VA Waco is encouraging and why.
                                                             "The frustration really is not knowing the process, not
Most startling of all is that the Department of              being included, not knowing where to turn, who to
Veterans Affairs own Office of the Inspector General         call to even just find out something," she said. "You're
(OIG) has pointedly refused to investigate allegations       going from office to office, building to building. You
of wrongdoing and corruption within these VA                 call this 1-800 number, that 1-800 number. They
Regional Offices. Their recommendation? The                  might keep you on hold for 30 or 40 minutes only
veteran should call the VA toll free number to seek          to tell you they don't have access to that file when
assistance. This begs the question; Other than issuing       you give them his information. We have been hitting
huge reports that are promptly placed on shelves             brick wall after brick wall. If something happens to my
to gather dust, just what does the OIG actually do?          mama, nobody gets that money but the VA. She is 80
                                                             years old, and we have been waiting for two years."
VA has so far remained mute. Other than the recent
reports by OIG and GAO that soundly condemn the VA           If any of this sounds familiar to you it's because I've
fiduciary appointment program as being dangerous             been one of the very few people concerned enough
and out of control, there is no news from VA.                to report it to you. Since 2009 the VAWatchdog
                                                             dot Org and now the VAWatchdogToday dot
You'll find the details here. Actions in the courts will     Org have reported details of this nationwide
begin in February. I'll update this as it develops.          scandal perpetrated by VA to you.

This may be the single most important veterans               This particular case is only one more in the long line
issue you can follow this year. VA has drawn a               of cases reported on these pages that have exposed
line in the sand. It's clear that they have declared         the VA fiduciary appointment program for what it is.
you have no rights. No right to fair treatment, no
right to representation, no right to control your            Can a full blown Congressional investigation and
money...even that money derived from sources                 appropriate criminal charges come soon enough?
other than the VA. You have no right to have your            How long will Congress allow this "little ponzi                            t       TOC    u                                          Page 61

scheme" run by the VBA Regional Offices to carry on?     your client's medical examinations, names of
                                                         physicians, dates of examinations, and whether
The weakest members of our ranks are being               there are conflicting opinions. For an example
bullied and scammed on a daily basis and our             of a brief that demonstrates that its author's
Washington, D.C. leaders look the other way.             excellent grasp of the facts in his client's case,
After all, who wants to listen to a guy diagnosed        see the statement of facts in the brief in Lewis v.
with a mental health problem? Like this veterans         Shinseki, No. 08-0245. Some brave counsel know
sister you and everyone else believes, "that             their cases so well, they argue without any notes.)
was the mental illness talking" and pay the
complaining vet no attention. ~Jim Strickland~           This is a link to audio recordings of oral arguments.

Read (03/01/2011) Revised Fiduciary                      02/23/2011 The oral arguments are
Accounting Requirements Does anyone                      complete. Maybe we should take a step
believe any of this is strictly adhered to?              back to review what's at stake here.

Comment                                                  The case isn't all that complex from the veterans
                                                         perspective. He wants the right to have his
02/23/2011    Freeman v. Shinseki at CAVC Audio          fiduciary appointment as well as the way the
                                                         fiduciary has conducted himself reviewed by
(You need Windows Media Player or a                      an entity other than the Regional Office. He is
similar media player like VLC to listen.)                asking that whoever has authority (jurisdiction)
                                                         be the sort of body that can offer a remedy to
Comment                                                  any complaints he may have. In my own layman's
                                                         mindset this is his right to due process of law.

02/21/2011 Case Number 10-1462 Freeman                   That seems simple enough until the Secretary
v. Shinseki Wednesday 02/23                              gets involved. Of course Secretary Shinseki isn't
                                                         personally involved. There are a couple of hundred
CAVC Home                                                VA attorneys who juggle these things around but
                                                         each one represents VA and so they Represent
(When you arrive at the CAVC site, you may have to       Secretary Shinseki. Petitioner Freeman alleges that
enter 10-1462 to see the docket) General Docket,         the Secretary goes from court to court, venue to
United States Court of Appeals for Veterans Claims       venue and spins a different tale for each one. VA will
                                                         tell one court that they have no jurisdiction because
Oral argument before Judges Hagel, Moorman,              another court has to rule and then turn around to
and Lance is set for Wednesday, February 23, 2011,       say that court doesn't have jurisdiction and so on.
at 10:00 a.m. in the Courtroom at Suite 900, 625
Indiana Avenue, NW, Washington, DC 20004.                In Freeman v. Shinseki, the petitioner is asking
                                                         CAVC to determine who actually can review
The schedule of oral arguments at CAVC is here.          some of the terrible decisions that are being
                                                         made regarding the appointment of a fiduciary.
What happens during oral arguments at the CAVC?          That's all, it isn't any more difficult than that.

The Guide to Oral Arguments is here. Learn what          VA seems to have taken the position that no court has
veterans attorneys must do when arguing for              any right to review anything. In very simple terms, the
you in front of the CAVC. (For example: Counsel          Regional Office manager represents the Secretary.
are encouraged to listen to the oral argument in         Any decision made by the RO manager carries the
Ramsey. An audio file of the argument is available       weight of the Secretary. The RO manager delegates
on the Court's Website,,           fiduciary duties to Field Agents or examiners
under "Oral Arguments," "Audio," "2005." Know            who make decisions regarding who is appointed
your client's claim. Know the circumstances of           a fiduciary. There is seemingly no management                              t         TOC    u                                             Page 62

control over how this field operative is doing the           that will avoid endless remands and put thousands
task for the Secretary and Freeman says he has right         more vets on an already overcrowded hamster
to question the appointment and the process.                 wheel. If it's found that other federal or state courts
                                                             should be involved, the floodgates will open and
VA says no he doesn' rights at all. Or,                every veteran in America who has a dysfunctional
if the veteran does have rights they aren't                  fiduciary will have an attorney by his side.
defined well enough for the veteran to act.
                                                             Keep your fingers crossed. Let's hope that whatever
I've listened to the case twice since posting it. I've       the decision, this is decided for the benefit of
briefly interviewed parties who are involved. It's my        the veteran, not for the interest of the VA.
opinion as well as that of others that VA presented
a shallow and ill prepared argument that was                 Jim Strickland
on the edge of being embarrassing to VA. When
peppered with questions like "How does charging
3% of the veterans funds to pay a fiduciary benefit          02/22/2011 VA Hires Convicted Felon
the veteran?" the VA lawyer stuttered and seemed             to Manage Veterans' Money
to lose focus on just how to reply. He was often
caught off guard by straightforward questions                They have served and sacrificed for our country.
and didn't seem to believe in his own case.                  But now a NewsChannel 5 investigation is raising
                                                             questions about a federal program that's supposed
On the other side of the room, the message came              to help thousands of veterans and their families.
through loud and clear. I heard attorneys Eagle and          The program is run by the U.S. Department of
Rosinski tell the judges that VA had been playing a          Veterans Affairs or VA and handles more than
shell game long enough. They asked the panel of              $700 million dollars in taxpayer money.
judges to tell VA that this should always be about
the best interests of the veteran, not about how             Keyser wondered, "Why would they (the VA)
the pea was to be shuffled around by the VA.                 assign a convicted felon to handle my money?"

The bottom line is this: Freeman v. Shinseki shouldn't       Court records show Hammonds pled guilty less
be a difficult decision. Veterans deserve that this          than two years earlier to 8 counts of tax fraud,
distinguished and experienced panel at the CAVC              admitting that he'd falsified tax records to help
return a swift and firm decision. There are veterans         adult entertainment mogul Jerry Pendergrass hide
who have waited long enough. In Texas there is               millions of dollars from the federal government.
an elderly veteran who I first communicated with
over one year ago who wants to know where his                Not only did VA appoint a convicted felon as a
$80,000.00 has gone. He's over 80 years old, frail and       fiduciary, he was dead. Yes, a dead felon appointed
very sick. His wish is to be out of the crushing control     as a fiduciary. I couldn't make this stuff up if I tried.
of the VA fiduciary system before his death. He may          Comment
not make that goal if the CAVC delays this decision.

The question to be answered is, who has jurisdiction?        02/18/2011 VA must pay $20,000 for failure to
The answer isn't as important as you may think.              inform veteran on benefits A Newburgh law firm
When we consider whether it be CAVC, a federal               has convinced a federal judge to sanction the
court outside the CAVC or even the courts of the             Department of Veterans Affairs for waiting more than
state the veteran resides in, it may not matter. The         two years before explaining what benefits a veteran
point is that CAVC needs to make the call so that VA         should be receiving, the firm announced this week.
can't change the game as it pleases them to do so.           Katrina J. Eagle, director of the Veteran Service Group
                                                             at Finkelstein and Partners, said the $20,000 sanction
It appears to me that CAVC must have the right to            was believed to be the first ever imposed on the VA.
review VA law, rules and regs. If they find it so, we        Comment
urge that they will make swift and sure decisions                                t       TOC    u                                             Page 63

02/19/2011 Editorial: Keep pushing VA to handle              01/21/2011 Looking For Work?
backlog A judge...ordered the VA to pay his legal
costs and a $20,000 sanction for civil contempt,             Could you use some extra money? Would you
believed to be the first time such an action was             like to work from home? Does the idea of a
taken. Katrina J. Eagle, director of the Veteran Service     job with no accountability, nobody to report
Group at Finkelstein and Partners, said she hoped the        to and no required interaction with pesky
court's sanction would help other veterans receive           clients and customers appeal to you?
more timely service from the VA. The VA now has
about 785,000 pending compensation and pension               If all the above plus the chance to get your
claims, many involving veterans returning home               hands on large sums of other peoples money
from war. Pressure must be kept on the VA to work            would be your idea of good work...
through these claims. If it takes judicial sanctions
to get the attention of the federal government to            Why not become a VA fiduciary?
make sure the VA backlog is addressed, so be it.
Comment                                                      The possibilities for personal enrichment
                                                             and growth are boundless.
02/14/2011 UPDATE..The Fiduciary
Follies Bob Slydell Op/Ed                                    There is no education requirement. You don't have
                                                             to prove any skills in finance or accounting. If you can
Slydell provides a compacted explanation of                  show that your criminal history hasn't led to a prison
what is happening in the flagrant abuses of                  sentence that lasted more than a year recently, you
due processes by VA and the army of lawyers                  are just the kind of person VA wants to have on board.
assigned to work against the veterans interests.
                                                             If you are interested in becoming a professional
                                                             fiduciary, submit your resume with cover letter here.
02/14/2011 The Fiduciary Fiasco; Further
developments in what appears to be more                      VA is planning on many more veterans being
of a Mixed Martial Arts contest than a debate                declared incompetent in the future. They're
by learned counsel of the government in the                  advertising for fiduciaries on their web site.
interest of helping this senior citizen veteran.             This is a growth industry at your VA and here
                                                             is your opportunity to get on board early.
Up for grabs; Which court has the right
to hear the arguments? Why is the                            If you're a fiduciary yourself, maybe the
government making conflicting claims?                        chances will be less that you'll be one of those
                                                             declared incompetent! Do what you can
Is the (former) VA appointed fiduciary a VA                  now to avoid your own Scarlet Letter. Join up
employee or an independent agent? This                       with the few, the proud and have your very
was a case for the state, did the feds grab it               own cadre of helpless veterans to abuse!
illegally? Will it return to its original venue?
                                                             More information about the VA
Is there anyone at the VA or within the VA OGC who           Fiduciary program is here.
cares about the veteran and his son or are they only
fighting to keep his money because they can?
                                                             01/24/2011 The VA Fiduciary Chronicles, Continued
Read the latest filings within the courts and
keep up with one of the current legal dramas                 Dear Jim; Last July my husband was awarded 70%
that will have an impact on every veteran. If any            PTSD, 10% Tinnitis, and granted P & T IU, with your
veteran thinks this case isn't about every veteran,          wonderful assistance. We were quite happy with
their naivety is astounding. You could be the                the decision and took no further action other than
next target that the VA decides it will help.                apply for CHAMPVA for me, which was granted.
                                                             Last week my husband received a strange call                                 t   TOC    u                                        Page 64

purporting to be from the VA and told him that a          Fiduciary Appointment program. VA has authority
letter was coming from them. We just received             to name a veteran as incompetent to manage their
this letter and I am almost frantic but making            own finances and to sieze funds and appoint a
every attempt to hide my fear from my husband             fiduciary to manage the veterans financial affairs.
since this has him quite angry and anxious .              There is a reason and a purpose for this. There are
                                                          some veterans who are not capable of handling
They are declaring him incompetent and proposing          their money. This may be due to mental health
the appointment of a fiduciary and assigning him          or physical problems. The laws that require VA to
a rating of 100% for PTSD. They say they made this        protect the veteran are well intentioned and when
decision based on a claim received by them on             followed correctly will have a positive outcome
September 27, 2010. We did not file any paperwork         for those veterans who require such assistance.
after his decision was received August 1, 2010.
                                                          However, the law is often not followed. Like so
I have no idea what claim they are talking about.         many of the other issues that originate from within
                                                          the VBA, the fiduciary system is out of control. VA
The VA says that since the doctors have stated he         does not deny this and reports are available from
can't handle his own finances he must be deemed           GAO and many others that sharply criticize the
incompetent and a fiduciary appointed. He has             lack of management of the fiduciary program.
been receiving VA compensation for approximately
7 years with no financial problems. He also receives      Often enough, veterans suffer severe consequences
SS disability, with me named as his payee.                because of the abusive attitudes of those appointed
                                                          to help them. Not long ago I published an email
Both forms of compensation are direct deposited in        from a veteran who was despondent because
to joint checking accounts, shared by my husband          of the dire financial circumstances that have
and I. He maintains one of these checking accounts        apparently been caused by his abusive fiduciary.
on his own, writing me a check for the majority
of the VA compensation for household bills if
needed or deposits that same large percentage             "We want the VA out of our lives" has been the
in to our joint savings account. He also makes his        recurring theme for months at the VAWatchdogToday
car payment from this account himself. I oversee          dot Org. The above email arrived this morning and
his actions, but he takes the responsibility for          is one more in the long line of actions by the VA
the account and has done so successfully.                 fiduciary system that makes no sense at all. The
                                                          veteran and his spouse have excellent financial
We have maintained an excellent financial                 histories. She has a good job. It is apparent that
history, with excellent credit ratings. Our bills         she is his best advocate and that they have a solid
have always been paid on time and there                   marriage (for 18 years) that works well for them.
is no evidence of mishandling of money.
We have a sizable savings account.                        With the enormous claims backlog and all the issues
                                                          that VA faces today, why would they want to spend
I am familiar with the nightmare that is the VA           the time and taxpayer dollars to invent a problem
fiduciary system and will do whatever is necessary        where it is readily apparent that no problem exists?
to prevent this action from taking effect. In the
decision letter they say we have a right to a hearing     This is VA paternalism gone obscenely mad. The
and to present evidence of his competency.                message from your VA is clear; "If you don't have
                                                          problems we will create them for you. We will do this
(Signed) Concerned Vets Spouse                            because we can. We are from the VA and it is our job
                                                          to help you. We will help you even if it kills you."
                                                          As of this moment veteran William and his loving
Since late last year we at VAWatchdogToday dot Org        wife Janet Garrison are friends of the VAWatchdog
have been telling you of our concerns about the VA        dot Org community. This twice wounded                              t       TOC    u                                           Page 65

Vietnam veteran (1968-1969) is not alone as he             other strict rules that are in place to protect the
faces the enemy that his VA has become.                    veteran, VA has used its heavy hand to declare
                                                           that VA does not have to follow existing law.
The Notice of Disagreement is next up. I will report
every step of this to you so you may follow along.
                                                           01/27/2011 "...the Court finds the
Jim Strickland                                             Secretary in contempt..."

                                                           01/28/2011 Finkelstein & Partners Announces
01/20/2011 Recap: "We want the VA out of our lives".       Major Win for Nation's Veterans

In the latter part of 2010 I was made aware of what        In Landmark Order, U.S. Court of Appeals for
appeared to be serious abuses of veterans by the           Veterans Claims Finds VA in Civil Contempt
wrongful application of the VA Fiduciary program. As I
investigated I was fortunate to meet the loving wife of    Newburgh, NY - Men and women of our nation's
a veteran who had been declared incompetent by VA.         armed forces have made great sacrifices in their
                                                           service to our country. Now, thanks to a landmark
Vicki Olson was advocating for her husband and             case argued by Finkelstein & Partners' Veterans
met the usual brick wall at VA. Her dedication and         Services Group, they'll no longer sacrifice their
tenacity eventually saw her husband released               health, well-being, or quality of life waiting for
from the fiduciary control that had been forced            the benefits to which they're entitled. For the first
upon him. Investigations into the allegedly corrupt        time in the history of the Department of Veterans
actions of the VA appointed fiduciary are ongoing.         Affairs (VA), the U.S. Court of Appeals for Veterans
                                                           Claims found the VA in civil contempt for failure
Simultaneously, I began to hear from other veterans        to expeditiously handle a veteran’s claim after the
about their fiduciary appointments. It wasn't long         Court had issued a previous decision on the case.
until attorneys who represent veterans were made
aware of these injustices that seemed to have              Renowned veterans law attorney Katrina J. Eagle,
been not just tolerated but encouraged by VA.              Director of Finkelstein & Partners' Veterans
                                                           Services Group, represented the petitioner, Mr.
The lawyers agreed to investigate and then accepted        Cleveland Harvey, in this landmark case. Mr.
the cases. Lawsuits by the veterans are now filed          Harvey is a Vietnam-era veteran who served
and the legal process has begun. These are not             our nation honorably in the U.S. Army.
frivolous actions. These are serious attorneys who are
making great sacrifices of time to advocate for you.       Read the case here;
                                                           UNITED STATES COURT OF APPEALS FOR
Veterans who obviously did not need any help               VETERANS CLAIMS NO. 10-1284
managing their finances have been forced into the          HARVEY V. SHINSEKI
appointments of fiduciaries. These were veterans who       On Petition for Extraordinary Relief
had loving relatives who had properly assisted the
veteran for years and who had amassed significant
savings. Their finances were in very good hands and        21:45 01/31/2011
even though there was significant evidence of that
fact, VA imposed fiduciary control and seized tens         Dear Jim,
of thousands of dollars of the veterans money.

There has been no hint of due process in these             I Have written and complained about the Fiduciary
cases. Even though the law requires VA to provide          my life is completely in shambles I am in debt up
hearings, make proper notice to the veteran and            to my ears, my VA fiduciary's says he is protecting
family, seek qualified medical examinations prior          my money, at Thanksgiving my wife did everything
to a finding of incompetence and to follow many            she could to bring the spirit into our home, we had                                 t          TOC    u                                         Page 66

know food Christmas the same thing I asked my                    A preeminent veterans attorney who is a fierce
Fiduciary for a wall mart card of course denied, I feel          veterans advocate will be visiting the Burns face
less than human not to mention a man I have lost                 to face and acting pro bono if it is determined
everything under this department cars etc they                   that he will need representation. More on this as
are the worst type of thieves the government has                 it unfolds. Scheduled federal and state cases are
turned their backs to this wrong doing, I would rather           going forward as the veterans legal community
die than continue to live under their authority I am             brings these abuses into the judicial system.
100% percent disabled they have stripped me of all
that I had to hold too my pride, they are arrogant               One spouse of a veteran who had a fiduciary
degrading and humiliating death seems to be my                   (she fought and won) is completing college
only way out no one else will help I am exhausted                soon and has decided to become an accredited
from trying and cannot go on much longer                         agent to represent veterans in her career.
                                                                 You'll hear more from Vicki Olson soon.

I contacted the veteran directly. I also contacted               A salute to all of you who have helped veteran
VACO directly that same day. The veteran has given               Mr. Burns in his moment of desperation. He
me permission to tell you that he is Mr. Cleveland               now has reasons to want to
Burns. He is 62 years old. He lives in California.
He served in the USMC beginning in 1965. Mr.
Burns is rated 100% due to PTSD and residuals of                 01/25/2011 Update: Case Number 10-1462
injuries received while he was on active duty.                   William E. Freeman v. Eric K. Shinseki (When
                                                                 you arrive at the CAVC site, you may have
He is in dire financial straits. His fiduciary is alleged to     to enter 10-1462 to see the docket)
have withheld most of Mr. Burns monthly award so                 General Docket, United States Court
that he can "save the money" for some future cause.              of Appeals for Veterans Claims
There is scant documentation of where Mr. Burns
money is today. Mr. Burns is swimming in debt with               Oral argument before Judges Hagel, Moorman,
little food on his table for he and his diabetic spouse.         and Lance is set for Wednesday, February 23, 2011,
                                                                 at 10:00 a.m. in the Courtroom at Suite 900, 625
                                                                 Indiana Avenue, NW, Washington, DC 20004.
Many of you have asked how you may help.
Mr. Burns has told me that the Walmart gift                         01/19/2011 Secretary's Memorandum of Law
cards you've sent are arriving. On receipt                       in Response to the Court's November 23, 2010
of one of the cards Cleveland told me;
"Hello Jim, I can never express the joy I feel today                01/21/2011 Amicus Curiae's opposed Mot to strike
, I was shocked I recieved a card and letter from a              references in respondent's 1-19-2011 memo of law
brother yesterday andI cried with my wife tears of
joy not so much a much 'needed assistasnce but the               01/25/2011 Update Case Number:11-76 Billy C. Brown,
help I prayed for I SEE today. I ALMOST GIVE UP JIM...".         et al v. Eric K. Shinseki (When you arrive at the CAVC
                                                                 site, you may have to enter 11-76 to see the docket)

If you would care to help, email me at jim912@                       01/21/2011 Assigned case to Judge Kasold and I'll provide the address. A simple                 (PTD) (Document Petition for extraordinary
note expressing your support will help.                          relief that appears locked is here )

VACO has promised an emissary will visit Mr. Burns               01/19/2011
to review this case. That will occur 02/08/2011.
Leadership of VACO has shown significant concern                 The Rules Are Clear...why won't VA follow the law?
over issues like this as I've described them. I thank            In almost every case where veterans have written
VA leadership for allowing me to express my                      to me for help there has been no medical opinion
concerns as well as for the immediate response.                  considered, no presumption to favor competency                             t        TOC    u                                          Page 67

and no due process. At what point was it that VA           fiduciary and mail it back. She refused to sign it
decided to throw the rule book out the window?             since I provided all the financial information...she
                                                           would be liable for any misrepresentation if she
38 CFR 3.353 - Determinations of                           signed it. He's died since then with no pension.
incompetency and competency.
 (c) Medical opinion. Unless the medical evidence          my husband was given 100% for just ptsd from va
is clear, convincing and leaves no doubt as to             ,we were doing ok and he also gets social security for
the person's incompetency, the rating agency               him and our 13 year old son,which i am the trustee
will make no determination of incompetency                 for .we have been marriad for 14 years and have
without a definite expression regarding the                a good marriage,your typical marriad couple, we
question by the responsible medical authorities.           were told about this benifit through va called aid
                                                           and attendance because i take care of my husband i
 (d) Presumption in favor of competency. Where             do not work outside the home,so we got approved
reasonable doubt arises regarding a beneficiary's          for it from va and they paid us for six months then
mental capacity to contract or to manage his or her        all of a sudden there was a hold put on the extra
own affairs, including the disbursement of funds           money because va seen reason for incompetency,
without limitation, such doubt will be resolved in
favor of competency (see 3.102 on reasonable doubt).       Jim;
                                                           well they found my husband incompetent to handle
 (e) Due process. Whenever it is proposed to make          his own finacial affairs and sent a field investigater
an incompetency determination, the beneficiary             to our home and all along we thought well thats ok i
will be notified of the proposed action and of             will be put in charge because i am in charge of social
the right to a hearing as provided in 3.103. Such          security,well by the time the investigater had made
notice is not necessary if the beneficiary has been        his pitch to us that were here to help you and to make
declared incompetent by a court of competent               your life easier ,he decided on his own that i could
jurisdiction or if a guardian has been appointed           not be in charge and that we had family probloms
for the beneficiary based upon a court finding of          and that i had bad credit ,more or less insulted both
incompetency. If a hearing is requested it must be         of us and our marriage,we had to have a fiduciary and
held prior to a rating decision of incompetency.           that he would give us one of the best he had and not
                                                           to worry bla bla bla,well we have been in hell ever
I've received dozens, probably hundreds of letters         since my husband has been hospitalized once already
from veterans and spouses begging for assistance.          from a mental breakdown,because our bills started
They have requested hearings and they are                  out being paid late every month she started refusing
consistently denied. The message is, as        to give us money when we ask for it,she would say
a veteran, have no right to due process of law.            things like if we keep asking for money every month
                                                           we are not showing a good pattern of paying our
Jim;                                                       bills on time,she says and does things and then
I've held durable POA (for my uncle) for several           turns it around like we are causeing her probloms
years. He was awarded the veterans pension ($1644)         ,she has mailed checks to a couple of our creditors
per month a little over a year ago (I filled it out...     and they have jsut so called got lost in the mail
he signed it). My uncle appointed me the fiduciary,
which they ignored and gave to the assisted living         i have complained i have even had my lanlord file
facility he was living at. His pension stopped coming      complaints on her also a couple of my creditors
after his April payment. VA sent the annual EVA            have ,i have went to out va reps office and written
form to the fiduciary, who filled it out...she left a      a statement asking to be put in charge,and let
lot of it blank. At this time, the business manager        them know what she is doing and still have not
left the nursing home, and a new one started. The          heard anything from va,my husband called the
new employee (suddenly the new fiduciary) didn't           fiduciary office and spoke with his so called case
know what to do, and just sent me the incomplete           worker about this and he was told he has no rights
form. I filled it out, and asked her to sign it as his     at all to any info concerning his own money,                             t          TOC    u                                            Page 68

Jim Strickland, Here is fun story for you look into. I       every month. We had savings. She named me as
am the Caregiver for a dependent of a Vet. and the           fiduciary. I asked for booklets that tell rules. I was told
first of this month found no check from the fiduciary.       there were none. I asked for help with my accounting.
The Nashville office made James M Hammonds of                I didn't get any help. I got lots of threatening letters.
Financial Investigations Inc. Fiduciary in Aug. of 2008.     (Then for no reason) they removed me as fiduciary.
Sept 3rd of this year I called his office to find phone      They refused to acknowledge my guardianship ,
out of order. So I google him and wow what comes             the same guardianship that they threatened me
up is sick. In 2007 (year before making him fiduciary)       that I had to get. I don't know who has my dads VA
Mr. Hammonds pleads guilty of 8 counts of fraud.             money. They have not told me how many hundreds
Fraud against U.S.A. to the tune of 3 million. Since Mr.     it will cost for someone else to manage. My dad
Hammonds Co defendant skipped town Sentencing                is in moderate alzheimers. He loves to go places.
was held off till this year. 5-24-2010 Mr. Hammonds          The Va called this "emotional spending" and they
is sentenced to six months Federal Pen and year of           don't tolerate that. I also took my dad on two trips
probation. He taken into custody by Federal Marshall         to seek alzheimer treatment for my dad or trials to
in the court room. 5-25-2010 Mr. Hammonds passed             get him in for treatment. Not acceptable. The VA
away in Bowling Green KY (which is the closest               rep rolled his eyes at about everything that I said.
federal processing center to Nashville) and is laid to       My mother was not declared incompetent. She has
rest in Cleveland TN. My question is this since this         been married to my dad for nearly 60 years. The
was covered in newspapers and on TV news how                 VA told me that my mom was not entitled to my
does the Nashville TN fiduciary office miss this. My         dads money. We all want my dad to live his life to
next question is even better, who wrote and signed           the fullest with his wife of nearly 60 years. We want
Mr. Hammonds name to the June 2010, July 2010,               the VA out of our lives. Please help. (Carolyn S. IN)
August 2010 Checks??? Sept. 10th Field Examiner
Travis Haywood calls us and informs us "Mr                   Jim,
Hammonds no longer wishes to be fiduciary and                My brother who was a Disabled Veteran had his
they are giving it over to his Secretary" guess he           disability check taken away from him and put under
used his wee-gee board since Mr. Hammonds                    Fiduciary control (in Waco). I was told even though
was laid to rest May 28th. Let me know what you              I had power of attorney that I could not see any of
think? I have sent the links to news story and other         my brothers financial assets and he also was not
things that I found in one hour on line that fiduciary       allowed to see any financial history by his VA rep.
unit missed before making a Felon a fiduciary.               He died this year and my sister and I were claimed
                                                             to be heirs. But when I checked the Bank (Bank of
"We want the VA out of our lives."                           America) where the checks came from for Room
                                                             and Board, they told me the account was under the
The veteran who is the target of the VA fiduciary            Fiduciary person’s name and my brother’s SS# was
program is often the least able to understand what           not listed with the bank. I have been appointed as
is being done or to defend himself. They are the             an heir and administrator of his estate. But so far, I
weakest of our brothers and sisters, ideal for the           cannot find out how I would get a list of his assets.
bullying tactics of greedy fiduciaries. Is abuse of these    I did go to the bank that the checks were coming
veterans by an out-of-control VBA fiduciary program          from, but they told me everything was under Carlene
epidemic throughout the country? You decide.                 Wallace's name and SS# and that they could not help
                                                             me track my brother's funds. (Kay in Waco, Texas)
I am a registered nurse. I left my job 4 years ago           Jim,
to take care of my dad, William. I went to the VA to         The caregivers of these veterans (the VA has placed
seek a medical guardianship for my dad. Well, the            a fiduciary over them) are writing up wills on the
fiduciary nightmare was about to begin. We had a             veterans, having them sign over all of their assets
rep come to our house and redo our lives in about            to either the caregiver, or their family members.
an hour. She told us no more debit cards, cash or            There are over 6 homes in the Waco area, all of
checks. She said no more eating out for my parents,          the owners are kin in some fashion, or they work
no weekend trips for them, etc. We had the bills paid        with each other. The attorney for the Bank (who                             t        TOC      u                                       Page 69

oversees the funds for the veterans) sits on his ***       documenting misuse activities. The review and
until the veteran dies and then makes a dash to            potential investigation of misuse allegations by
find a living heir and recommends they "settle".           F&FE staff represent an important monitoring
This has happened in every case. Each time, the            strategy to ensure the appropriate use of beneficiary
caregiver and the lawyers walk away with more              funds. Misuse allegations of beneficiary funds may
money than the rightful owners. I have phone               come, for example, from the beneficiary or their
records and court documents to prove everything            friends and relatives. VBA policy requires staff to
I'm telling you. Proof is not the problem, getting         review, and if necessary, investigate allegations
someone to take notice and do something about it           of misuse of benefits against a fiduciary."
has been my problem all along. (Vicki Smith, Waco)
                                                           If VA OIG reports that "review and potential
Jim,                                                       investigation of misuse allegations...represent
My husband and I are struggling with a fiduciary and       an important monitoring strategy to ensure the
a VA system we do not know how to handle. (My              appropriate use of beneficiary funds", why then did
husband has) had a lot of money come up missing.           the VA OIG decline to investigate or order the Waco
The VA finally forced the payee to send us 6 months        Regional Office to investigate numerous complaints?
worth of bank statements a few months ago. None            Rather than complying with their own policy as
of them make any sense. The payee kept telling my          they recommend above, the form letter tells the
husband that he needed my husband's social security        complainant to call the infamous toll free number.
check each month to put in savings for truck repairs
and to pay income taxes. Mr. DeCook (the fiduciary         Jim,
payee) sent an incomplete form as an accounting of
yearly funds along with the bank statements. All of        My name is (redacted) and I'm the President
the funds are accounted for on that form but there         of the (redacted bank). I am also a veteran.
were also fake entries of funds that we did not receive.
There was an amount for almost $1000 for truck             I have a customer who has a stepfather and the
maintenance and an amount of $1500 for wedding             stepfather gets VA benefits. The VA claims the
expenses. Our wedding was not anywhere near that           stepdaughter has been taking advantage of him and
much. My aunt made my cake. The photographer was           not taking proper care of him. I have known this gal
a friend of mine who provided the service for free. My     for several years, I have made loans to the stepfather,
friends and co-workers gave us a night in a hotel in       and am well acquainted with both of them. I am
a town forty miles away as a honeymoon. Of course,         extremely confident she would never to anything to
by coincidence (?), Mr. DeCook's (fiduciary) daughter      upset or take advantage of her stepfather. He raised
got married that same month, or roundabouts, so            her since she was a child and she loves him dearly.
I'm sure he has $1500 worth of wedding receipts
but they are not ours. (Jeannie B. St. Louis)              Anyway, the VA office in Wichita, Mr. McGivern
                                                           decided she was taking advantage of him and took
                                                           her to court and got her removed as his trustee,
GAO-10-241, February 26, 2010 VA's Fiduciary               got a nasty attorney from Topeka appointed as
Program: Improved Compliance and Policies                  the trustee, she has submitted a bill for $6,700 to
Could Better Safeguard Veterans' Benefits "...we           prosecute the VA's case and the VA is going to make
conducted 32 file reviews based on a judgmental            him pay for this out of the VA funds he has saved.
sample of cases where either VA suspected that             ($17,000) when I had to send it to the new trustee.
fiduciaries were inappropriately using beneficiary
funds or fiduciaries were seriously late in submitting     There is not a doubt these are all bogus
one or more annual financial reports that                  allegations but I don't know how to fight
documented how beneficiary funds were spent."              these bastards. You have any suggestions?

VA-OIG report March 31, 2010 09-01999-120:                 Yes. I do have a suggestion that just may work. I
"VAROs are not consistently or timely reviewing            suggest we show our support and appreciation
and investigating allegations of misuse or properly        for the highly skilled, dedicated attorneys who                              t         TOC    u                                            Page 70

have engaged VA while they do their jobs.                    It is my opinion that at the very core of this issue is
                                                             VA paternalism and the subsequent denial of due
Ms. Katrina Eagle, Esq., President of NOVA &                 process. VA is once again towering, with clenched
Director, Veterans Services Group, Finkelstein               fists, over every veteran to tell you that you have no
and Partners & Mr. Douglas Rosinski, Esq., of                right to due process and that you really shouldn't
Ogletree, Deakins, Nash, Smoak & Stewart,                    bother with that. VA always knows what's best for you.
P.C., are fierce advocates for veterans.
                                                             In all of these cases, VA has declared veterans
Mr. Rosinski is the attorney who took your VA to             incompetent without adequate medical
task during the lost laptop fiasco. The result cost          evidence or any hint of due process.
VA millions of dollars to right the wrongs inflicted
on veterans. The National Organization of Veterans           If you think it can't happen to you, you're wrong. And
Advocates during Ms. Eagle's tenure currently has            once it does happen, as you'll learn this week, you
two petitions at the Federal Circuit challenging 1) VA's     have no right to appeal, nobody to turn to for help.
failure to implement the 2008 law allowing widows/
widowers to substitute in for deceased spouses on VA         Be afraid. Be very afraid. That may be Big
claims and 2) the ridiculous PTSD rule allowing ONLY         Brother knocking on your door right now.
VA docs to confirm a PTSD diagnosis for certain vets.
                                                             So many questions. So few answers from your VA.
These attorneys have a long history of taking on only
the most meritorious issues...and they win. When the         Ask yourself...
courts rule that VA fiduciaries do not and never did
have authority to take over savings accounts and are         What is the authority for VA to ignore a valid power
otherwise enriching their own lives at the veterans          of attorney? I don't know of any legal means.
expense, there will be a tidal wave of conversion/theft
cases the likes of which VA has never seen. It's also        How can a VA fiduciary take control of savings,
likely there are a lot of VA employees with potential        etc., that have nothing to do with payments
exposure to civil conspiracy claims...the close              from VA? Statute requires that the fiduciary is
relationships between some VA employees and their            strictly limited to VA benefits payments.
appointed fiduciaries smacks of wrongdoing. With
a potential of 3 billion dollars in play every lawyer in     Why are attorneys and accredited agents required
America will start looking for a vet with a VA fiduciary.    to be certified by VA HQ to prevent scamming vets
This is going to cost VA a lot of your taxpayer dollars.     out of 20 percent, but people who control much
                                                             more in VA & non-VA money may simply walk in out
I have every confidence that your VA will soon               of a corn field, fill out a form and get designated as
take notice of the lack of any semblance to the              fiduciary? Is this a good-ol'-boy system gone wild?
rules of law and the utter and complete disregard
for any sliver of due process that is the trademark          Why Waco? My email inbox is deluged with
of the VA Fiduciary Appointment Program.                     complaints about the Waco system of fiduciaries.
                                                             Waco is now the epicenter of lawsuits filed by
The time has come to end the corruption,                     Eagle & Rosinski. Is there something in the water
the arrogance and the "We are above the                      there or is there more to the story? Read on...
law!" mindset of your Regional Offices. If the
Secretary refuses to act, the courts will.                   Did the VA Regional Office in Waco really hand over
                                                             $100,000.00 of an elderly veterans own money
We hope you'll follow along this week as we go in            to a VA appointed fiduciary? "...the covert and
depth to study the pending litigation that is now            baseless seizure of over $80,000.00 in a savings
in the courts. I'll develop and refine the details as        account unrelated to any VA benefit payments..."
the week of 01/17/2011 - 01/21/2011 progresses.
                                                             Was the VA appointed Federal Fiduciary a
Why is this important to every veteran? Due process.         furniture salesman ("Cabinet Specialists")                            t         TOC    u                                         Page 71

with minimal education and no degree or                    to participate in the appointment process, or the
training in financial management?                          subsequent seizing of Mr. Brown’s funds. Mr. Brown
                                                           and Mr. Wortham first became aware of the VARO’s
How was the decision made that Marcus Brown was            actions when their access to Mr. Brown’s financial
competent to provide Federal Fiduciary services?           accounts was denied by his bank. The Secretary
"Credit Report Not Obtained. No character witness          violated numerous statutory requirements to
is required. The fiduciary reports no past convictions     appoint a cabinet maker as a federal fiduciary
that required imprisonment of one year or more.            based on a single ten-year-old examination
Recommendations: APPOINT MARCUS BROWN AS                   report, ignoring that during that 10-year period
PAYEE AND LEGAL CUSTODIAN FOR BILLY C. BROWN."             the purportedly financially “incompetent”
                                                           veteran managed his finances to accumulate over
In the previous 10 years the veteran and his son           $90,000.00 in a federally insured savings account."
had managed his money so well that there was               Source; PETITION FOR EXTRAORDINARY RELIEF
an accumulated sum of almost $100,000.00 in                IN THE NATURE OF A WRIT OF MANDAMUS
the bank in the veterans name. What did the VA
appointed fiduciary decide to give the veteran
each month? "MARCUS BROWN WILL SEND                        Jim Strickland, 01/17/2011 @ 7:00
$360.00 MONTHLY FOR THE VETERANS NEEDS..."                 AM Eastern, Developing

Where did the money go?
                                                           Fiduciary Forms Program Guide
FOR VETERANS CLAIMS                                        Fiduciary STAR Reviews
William E. Freeman v. Eric K. Shinseki                     Effective with the call up list for January 2010
No. 10-1462                                                (work product codes completed in December
AMICUS CURIAE’S RESPONSE TO THE                            2009), the newly assigned Fiduciary STAR staff,
COURT’S NOVEMBER 23, 2010, ORDER                           located in Nashville, TN, will start conducting
                                                           national quality reviews for Fiduciary cases. All
"Jim, I have evidence" Has Waco VARO knowingly             Principal Guardianship Folders (PGFs) requested
allowed owners of care facilities and VA appointed         for national quality review should be sent to the
Federal Fiduciaries to draw wills for incompetent          STAR Nashville office at the following address:
veterans leaving the veterans estate to themselves?        3322 West End Avenue
                                                           Suite 730
"I do not intend to correspond with Douglas                Nashville, TN 37203
Rosinski (Plaintiffs Attorney)." {Signed}
Marcus Brown, VA Appointed Fiduciary                       Below are quotes of statements from readers
                                                           who have contacted me pleading for help.
Why did VA appoint Marcus Brown as Federal
Fiduciary? "NO QUALIFIED FAMILY MEMBERS ARE                Do I believe them? Yes. There are too many of
KNOWN." _ "Petitioner Richard O. Wortham is Mr.            them and they are too consistently alike for me
Brown’s son. In January 2005, Mr. Brown appointed          to think that they are anything but the truth.
Mr. Wortham his attorney-in-fact under Texas state
law. Ex. B (civil petition), Ex. A (Durable Power of       When I investigate, the truth is even more evident.
Attorney). This appointment has not been questioned        The VA Fiduciary Program is out of control, operating
or challenged in any court. In November 2009,              in a rogue mode with little or no oversight.
almost five years after Mr. Brown appointed Mr.
Wortham his attorney-in-fact under Texas state             “Well , the fiduciary nightmare was about
law with the described powers, the Waco VARO               to begin. We had a rep come to our house
appointed a “federal fiduciary” over Mr. Brown’s           and redo our lives in about an hour.”
finances. Neither Mr. Brown nor Mr. Wortham were
notified of the fiduciary appointment, permitted           “I have guardianship of my dad and his estate. I                              t        TOC      u                                         Page 72

was approved by my mother, sisters, brother , the           me, chooses to pay 500 dollars a month instead. My
state of Indiana. We want the VA out of our lives.”         father has been fighting for over 8 years now just to
                                                            access the benefits provided to him, but because
“I feel like I am being harassed by these new               they waited so long and owe him so much back pay
workers who have never even met me or been                  it seems the local va is just trying to ignore him.”
to the home of my brother. These people are                 11/09/2010
starting to ask me to accour his sheltered workshop
checks, his social security and anything else               11/09/2010 Update
he might have. Do these people have the right
to ask anything other than his VA benefits? Is              In the last couple of weeks I've received
there anything I can do, short of giving up?”               another handful of pleas for help from veterans
                                                            and their families who are apparently being
“i am a former marine i served in iraq with 2nd mar div     abused by the VA fiduciary machine.
i am recieving 100% disability for ptsd and hearing
loss my problem is that the va wont release my retro        I do not contend that every VA fiduciary
pay becuase they are saying that i am incompotent           appointment is a wrongful action. However,
ive been waiting on the va to contact me since may          far too many appear to be just that.
of this year is there anyway to get my money? i sent
a letter to the regional office in june stating that i      The misuse of the VA fiduciary authority,
had a fidutiary in mind i havent heard anything from        whether the misuse is rooted in incompetence
the reno since. ...they are just sitting on my money        or something more criminal, is ruining lives. The
its unfair becuase i have alot of debt and i promised       evidence in most of these cases seems clear.
i would pay them months ago ...i get the runaround
everytime i call that 1800 827 1000 number”                 Loving family members who are perfectly capable
                                                            of assisting their veterans at little or no expense
“I, unbelievably, was handed an internal document           to the veteran are being ignored in favor of
that states I have done nothing wrong with my               expensive industry (banking, law) appointees
son's finances and yet the last page still says to take     who are flagrantly violating both the intent of
his money and hand it over to an attorney in San            a fiduciary appointment as well as laws.
Antonio, TX, where we are temporarily living. This
gentleman handles over 50 veterans' funds and               I'll be focusing on the problem more in coming days
I know my son has to pay him close to $300 per              and weeks. If you are a veteran or an interested
month. This guy uses a gmail address as his point of        party to a veteran with a fiduciary problem, I
contact - he really doesn't seem all that legit to me.”     want to know of it and I ask that you check back
                                                            to this page for any news I may be able to offer.
“My father is a vietnam veteran who was deemed
100% disabled, and due to various reasons ( ptsd, and       For now, the articles below are the best I can offer.
other social problems ) was deemed unable to handle
his affairs. I was to be appointed as the feduciary         Jim Strickland
for him. The field examiner came to my home, did a
interview, and deemed my fit and able to perform the
function. I missed one call from him, never received        Veterans' Advocate Jim Strickland looks at the
any other communication, and about 3 months later           dark side of the VA's fiduciary program. Or:
(the time frame he told me it could take to finalize        "I'm from the VA, and I'm here to help."
paperwork) my father was contacted by a local case
manager who was appointed as his feduciary. I               I wasn’t particularly surprised at
have had to loan my father over 40,000 dollars over         the email when it arrived.
the past 8 years, and his case manger refuses to
reimburse him, even thou all expenses are, in her
words justified, approved and properly documented,              “Jim,
but, because it would "look bad" for her to repay                                 t     TOC    u                                          Page 73

  My name is (redacted) and I'm the President               compensation and pension benefits from the
of the (redacted bank). I am also a veteran.                Department of Veterans Affairs (VA) have mental
                                                            impairments that prevent them from managing
  I have a customer who has a stepfather and the            their finances. VA’s Fiduciary Program selects and
stepfather gets VA benefits. The VA claims the              oversees third parties, called fiduciaries, to help
stepdaughter has been taking advantage of him and           manage and protect beneficiaries’ funds.”
not taking proper care of him. I have known this gal
for several years, I have made loans to the stepfather,     That doesn’t sound too evil, does it? After all,
and am well acquainted with both of them. I am              some veterans who are incapacitated may need
extremely confident she would never to anything to          some help managing money and personal
upset or take advantage of her stepfather. He raised        affairs and if they don’t have a trusted family
her since she was a child and she loves him dearly.         member, society is obligated to provide some
                                                            sort of help. In this case it would be appropriate
  Anyway, the VA office in Wichita, Mr. McGivern            that help would come through the VA.
decided she was taking advantage of him and took
her to court and got her removed as his trustee,            Hold that thought for a moment. If it’s true that VA
got a nasty attorney from Topeka appointed as               appoints fiduciaries to “help manage and protect
the trustee, she has submitted a bill for $6,700 to         beneficiaries’ funds”, why did Richard Wortham
prosecute the VA's case and the VA is going to make         of Mesquite, Texas write to me in January 2010?
him pay for this out of the VA funds he has saved.
($17,000) when I had to send it to the new trustee.         Mr. Wortham tells me, “Hi Jim, The VA assigned a
                                                            fiduciary for my dad without notifying me until it
  There is not doubt these are all bogus                    was done. He has $75,000.00 in his account at the
allegations but I don't know how to fight these             nursing home where he lives. Some of the money
bastards. You have any suggestions?”                        in that account was his own personal savings
                                                            that he had transferred there from his bank. They
                                                            have recently transferred all of his money back
The bank president is referring to a particularly           to his bank but his fiduciary has total control.
brutal program that VA is using more often
in recent times. This legal maneuver by VA                  (As his son) I hold his durable power of attorney
is known as a fiduciary appointment.                        and I do have control of his social security. Is
                                                            there any way to get the fiduciary reversed?
In a nutshell, if you’re a veteran with PTSD or another     Also, what happens to the money in his bank
mental health problem, your VA can swoop down on            when he dies? Does the VA keep it?”
you before you understand just what is happening
and declare that you are incompetent to manage              Good question, Richard. As you’ll see, the way VA is
the riches that VA has so generously given you. Once        managing his money for him, there won’t be enough
the declaration of incompetence is made, VA will            left to worry about. The burn rate of your dad’s hard
appoint the “fiduciary” to help you with that money.        earned savings is rising to the “Wildfire” setting.

For those of you who might not have heard                   The nightmare is only now beginning for Richard
me say it before, there are three great lies.               and his veteran dad. Rick continues the story later;
(1) Of course I’ll respect you in the morning               “Jim I have a durable POA for my dad and I was
darling. (2) The check is in the mail. (3) Hello,           completely overlooked to handle his affairs. I have
I’m from the VA and I’m going to help you.                  been caring for him for the last eight years he has
                                                            been in VA nursing home in Bonham, Texas. I get
As you’ll soon understand, if you hear (3),                 him out on week-ends...(we think he was) declared
don’t walk, run. Run like the wind.                         incompetent by his doctor...without notifying me.

The GAO explains the VA fiduciary program                   Me and Dad have a attorney but he doesn't know
like this; “Many individuals receiving monthly              how to go about getting fiduciary turned around. I                              t          TOC    u                                             Page 74

live in Mesquite Texas. The appointed fiduciary is a          judge was involved, nobody from VA bothered
Marcus Brown and he is charging Dad 350.00 a month            to speak with any family members. The veteran
to give Dad 25.00 a week of his own money. He also            father hardly remembered the brief visit from
has had checks made out in his name from Dads                 the stranger from the VA who told him what we
accounts. We just want to be back in charge of Dads           can only presume was, “I’m here to help you.”
funds. Dad can’t care for himself but he does know
about his money and is upset they have done this.”            Son Rick eventually got through to Mr. Larry
                                                              Clary of the Waco Fiduciary Department and
In an email on 02/02/2010 Richard writes, “Jim, I             sent multiple copies of the POA, his dad’s will,
have done exactly as you told me (our family lawyer           the documentation that Rick has control of
helped us write a letter) and hopefully it will get their     dad’s Social Security payments and so on.
attention. The fiduciary Marcus Brown has denied
to pay Dads attorney fees with his funds so I may             Mr. Clary made it very clear none of any of that
have to do this out of pocket ok though I will. Also          mattered. The fiduciary appointment would be in
he has put a block on both of Dads accounts one               place 3 years before it would be given consideration
monthly installments the other his own personal               for any modification. It seems that VA isn’t required
life savings. We are furious over this. Will keep you         to respond to a NOD concerning the appointment
posted thanks for all your help and advise. Rick”             of a fiduciary or the declaration of incompetence.

Rick’s story goes on. He offers us evidence that dad          Rick wrote letters (with help from the family attorney)
was admitted to the VA nursing home he’s in over              and sent them via certified mail. In February, a letter
8 years ago. Since that time Rick has managed all             to NOD the fiduciary appointment. In March, another
his dad’s affairs with the aforementioned durable             letter was sent to the Waco Regional Office requesting
POA. Dad has a healthy sum of money in the bank               review and action and marked as “2nd notice”.
that his son Rick has helped him to manage all these
years. Rick has visited his father so often that he           (NOTE: Letters are available here for viewing or
knows everyone in the VA nursing home facility from           download. Letter #1 is here ... Letter #2 is here.)
housekeepers to managers and they know him.

The bottom line; Rick has a responsible and                   In each case, the Letter was copied to Nancy
caring relationship with his dad. This is just                Canonico Esq., WACO Regional Counsel
how life should be, a son caring for his dad.                 (674A4/02), Department of Veterans Affairs, 4800
                                                              Memorial Drive, Building 12 Waco, TX 76711.
In some odd way in January 2010, the VA suddenly
determined that dad was “incompetent”. It took                An April 2010 email from Richard to me read; “We will
the Waco VA Regional Office 8 long years to                   do whatever it takes to get my Dads funds back into
notice dad was in a VA nursing home and they                  his control my son spoke with a (VA Certified) attorney
then decided that action was necessary. Without               in Plano that told him there’s a big scam going that
notifying his closest relative (remember the loving           the field agents are convincing the nursing homes
son with the POA?), the Waco VA sent in Field                 to encourage the veterans to put their funds in the
Agent Allen Staggs to interview the veteran.                  VA account system then fiducierys are appointed to
                                                              oversee multiple veterans @ 350.00 a veteran invest
Mr. Staggs, knowing an incompetent veteran                    their funds as they please whether the investment
when he sees one, decided that the appointment                gains or loses monies without the veterans approval
of a $350.00 per month VA fiduciary was                       or knowledge. If a veteran passes away they keep all
the perfect answer. He fielded this one to                    funds for the good of the veterans administration
Mr. Brown and that sealed that deal.                          Somthing really wrong with all of this he also said
                                                              the only way to recover posession of funds was
The veteran didn’t understand what was going                  to take him out and care for him myself. We are
on until his son noticed that he had no access                considering this as a last resort I’ll be standing by to
to pay dad’s bills. There was no hearing, no                  do whatever just let me know Jim and thank you.”                              t        TOC    u                                           Page 75

                                                            with an awful lot of money stashed away with the
In May there was “still no reply from VA” The Regional      help of his loving family. This was irresistible.
Office in Waco and VA General Council, Waco VA
elected to ignore the veteran and his family.               In April, May and June Rick and his dad noticed
                                                            that the bank account was becoming drained.
By that time, the Wortham family                            More calls were made, more letters written and as
was at the end of their rope.                               you’ve guessed by now, nobody from the Waco
                                                            system has contacted Rick or his veteran father.
On Monday May 10th 2010 Richard wrote
me again, “Jim, We are going to get Dad out                 Earlier this year we heard it through VA Watchdog
of VA To come live with us. Will they turn his              dot Org. The GAO said the VA fiduciary program
monies back over to him at that time? can                   was in “disarray” and that “staff said that they
you find out still no reply from VA thanks”                 did not always comply with VA policies”.

By June the situation has become unbearable       
for them all. Rick writes to tell me, “Jim We have          nf10/nfmar10/nf033010-3.htm
decided to take Dad out of the VA nursing home
and allow him to live with us and care for him as           More recently we hear that a VA appointed fiduciary
his primary caretaker we no longer will need a              and his wife stole millions of dollars from disabled
fiduciary over him and his monies I have consulted...       veterans they were supposed to be helping. http://
attorneys and they think this may be the only way 
to be able to demand they put my Dad back in
charge of his savings and monthly allotments.”              This story isn’t much different. rick told me there
                                                            was no hearing to determine dad’s competence,
I’m sorry to tell you this Richard, that                    “per Mandy Brooks his case worker no notice and
won’t do the trick either.                                  not sure he was even determined (incompetent)
                                                            per his case his VA Doctor Shandra”
You see, the VA system has a lock on terms
like “bulletproof” and “Teflon jacket”. They’ve             By all appearances, the VA Field examiner made
found that you and your dad are easy prey                   the declaration of incompetence himself with
and once they’ve tasted the amount of money                 information gathered during a single, brief meeting.
to be made from him, they won’t let go that
easily. The $350.00 per month multiplied a great            Here is how it is Rick.
many times over adds up to real money.
                                                            Just because you and your dad have a loving
That Mr. Brown charges $350.00 per month flies in           relationship and just because you have a solid
the face of the law that generally caps such fees at 4%     history of taking care of him and his money
as well as the intent of the fiduciary appointment:         as a good son should do and just because he
                                                            now lives with you in your home is no reason
§13.64 Fiduciary commissions.                               for Mr. Marcus Brown to give up that $350.00
                                                            each month. That wouldn’t be right you see.
Generally, a VA appointed fiduciary is to
be encouraged to serve without fee.                         It’s the VA coming to help you and they always
                                                            know what’s best for we veterans, don’t they?
                                                            This is how your VA cares for you and your
The son was able to “serve without fee” and with            seems almost...paternalistic doesn’t it? http://www.
the veteran father amassing $75,000.00 in his bank
account, by all appearances he was doing a pretty
good job. But that wasn’t enough for VA. The                July 6 2010; Rick writes to me, “Dad @ home now
Waco RO found the veteran alone and defenseless             living with us still persuing for him to be back                              t       TOC    u                                           Page 76

in control of his funds sent formal request with           A GOOD IDEA GONE VERY, VERY BAD
Dallas VA Jim Pearston counselor still searching
for VA attorney if you can help Thanks Rick”               Veterans' Advocate Jim Strickland looks at
                                                           the dark side of the VA's fiduciary program.
July 27th 2010 and the veteran is home living              Or - "I'm from the VA, and I'm here to help."
with his son and family. No attorney has
volunteered to take the case. The family attorney          Vicki Olson tells me that all she wanted to do
involved early on wasn’t certified by VA and               when she met her veteran Mike was “wash his
changed jobs soon after this all started.                  clothes and pursue the American dream.”

There is no response yet from the Waco VA. The             Vicki knew Mike had some issues left over
veteran no longer enjoys the care he had at the            from his wartime experiences. He was rated
nursing home. The stress on the family has been            as 100% disabled and VA had labeled him as
enormous. The veterans funds dwindle down.                 incompetent. His mother had been named as
                                                           his payee and helped him manage his funds.
The family remains convinced that Mr.
Brown continues to use Mr. Wortham’s                       Mike was doing better and in 2003 and he married
money for his personal investments.                        Vicki. He was approved by all the authorities to
                                                           adopt her child. Mike and Vicki saw this as another
The GAO and OIG continue to issue reports that             opportunity to keep doing better in mainstream life
VA routinely brushes off as they would a gnat.             in America and applied to VA at that point for release
                                                           from the oversight of the VA fiduciary program.
Due process anyone? Hello, anyone?
                                                           The VA denied the application to release him
There was a question posed at the                          from the fiduciary oversight but they did change
beginning of all this. I owe an answer.                    his payee to Vicki and the newlyweds saw that
                                                           as progress. The program wasn’t too tough to
I’m sorry Mr. Bank President. I have no                    deal with and the Field Examiner was local and
suggestions about how to fight the bastards.               mostly available when they had any needs.

The best advice I have is that I gave earlier.             In 2008 VA centralized the program to the Regional
If at any time you have a knock on the                     Office. Now Field Examiner Nancy Grabman was
door and a voice tells you, “Hello, I’m from               in charge. On the first home visit, Ms. Grabman
the VA and I’m going to help you.”                         insisted that they sell a motorcycle that had been
                                                           owned in whole by them long ago...Vicki held the
Don’t walk.                                                title to the bike and any expenses were minor.
                                                           But...Vicki complied and there went the bike.
                                                           This was the beginning; “I’m here from
-------------------------                                  the VA and I’m going to help you.”

Next up, Thursday, July 29, 2010: Why does the             Field Examiner Grabman began to send out warnings
VA want so badly to appoint and keep a fiduciary           regarding unauthorized purchases, notices about
for Vicky Olson’s disabled veteran spouse? Was it          access to Mike’s money and “protection clauses”.
retaliation that caused her removal as his appointed       This had never been the case before so Vicki and
representative? Do the fiduciaries and field examiners     Mike were unsure of what was expected of them.
enjoy bullying everyone who they deem incompetent          Vicki asked for some written guidelines so they
or only the few dozen people I hear from?                  would know the rules. Vicki was told that “The rules
                                                           are subject to change and each case is different.”

PART 2 OF 2 -- VA'S FIDUCIARY PROGRAM:                     It seemed VA was telling them; “We make the                             t      TOC      u                                      Page 77

rules but we don’t have to tell you. At any time         She goes on,
we may change the rules and you are expected
to know them. It isn’t our responsibility”.              “Jim, Bills that have never been late (many in my
                                                         name per VA policy) are now facing disconnects
Does any of this sound familiar?                         and cancellations. We have asked for bank
                                                         statements, but have not received one. The VA
In December of 2008, the Olsons were verbally            has me paying the monthly Tri-Care premium,
informed they had exceeded the guidelines of             but the bank denied paying his child’s co-pay. We
a purchase authorization amount. They didn’t             have requested funds for car repairs that were
understand the issue as they hadn’t received anything    ignored. Our complaints were not ignored; an on-
in writing to tell them of any such guidelines. Vicki    line argument occurred with Springmier, and we
was verbally reprimanded by VA during a field visit      ended up hiring an attorney. This whole process has
in 2009. An audit was conducted in February of 2009      threatened every civil liberty that my husband and
and didn’t uncover or record any violations. The audit   many other disabled veterans fought to defend.
and its findings received approval by VA 02/25/2010.
It took almost a year but the audit was clean.           It doesn’t seem to matter to me that they violated a
                                                         few of mine; all I wanted to do was wash his clothes.
During this time, 02/01/2010, Vicki tried to contact     Today, I fight for my disabled husband and the return
Grabman regarding a loan payoff and to seek              of our American Dream. I watched an ABC news
permission to purchase a washer and dryer                program today. It was a story about the epidemic
that they needed. When Ms. Grabman didn’t                of service member suicide. It was a reminder of
return the call, Vicki tried twice more. Then on         everything Mike has overcome and everything the VA
02/19/2009 Vicki filed a complaint with the call         is denying him. How can they promote readjustment;
center. Vicki was desperate for some help, the FE        therapy, sobriety, and family/social ties when Mike
wasn’t returning her calls and she complained.           has been following that path for the last 13 years.

Suddenly, she was hearing from Grabman again.            Mike and I were doing well considering our
Grabman was calling day and night, weekends              challenges. That was until VA stepped in to help
included. She was demanding short notice                 us. His mental and physical health has since
inspections and visits and the Olsons felt compelled     deteriorated and I’m not doing very well myself.
to file a written complaint 03/15/2010. All during
this time Grabman had continued to refuse to             Most frustrating is the total lack of response
address the request for a washer and dryer.              from VA. It’s been made obvious that we have
                                                         no rights at all. There isn’t one person at VA
Then it happened...Vicki was to be punished for          who will hear us when we seek their attention.
being uppity. She shouldn’t have complained,             I feel like I’m in prison. Please help us Jim.”
not even if the complaint was justified. A field
visit occurred on 03/23/2010 and by 04/07/2010           Vicki and Mike have been forced to hire a lawyer. The
a new payee...a VA appointed fiduciary, had              lawyer’s efforts have not been effective to date.
signed papers taking charge of Mike’s money.
                                                         (Below, the letter from the lawyer
Vicki told me,                                           to the bank fiduciary)

“Documents were signed by a new payee on
4/7/10. I must have really messed up in this one             May 9, 2010
month to get this kind of immediate action from              Ms. Joana Springmier, Trust Officer
the VA. These documents list intent to name                  Greenfield Bank
Joana Springmier of Greenfield Banking Co. as                1920 N. State Street
Mike’s Legal Guardian. We pay her 4% of comp.,               Greenfield, Indiana 46140
but Springmier takes her direction from the VA.”
                                                             Re: (Redacted)                               t         TOC      u                                           Page 78

Dear Ms. Springmier:                                          living expenses and advise him accordingly.

  I represent Michael J.(Redacted).                               Very truly yours,

  According to the April 15, 2010 correspondence                  GROSSMAN & LITCHIN LLP
to you from S.E. Draves, Veteran Service Center                   KCL:kmk, Enclosures
Manager, you were appointed fiduciary over Michael
(Redacted) Department of Veterans Affairs benefits.
                                                              Vicki continues;
  Unfortunately, in your April 26, 2010 e-mail
correspondence to Mr. (Redacted) you indicate                 “The VA has not liked that I have gotten outside
that you are a fiduciary for the Veterans                     forces involved. The VA and bank have been more
Administration, not Mr. (Redacted).                           responsive to letters sent to vendors. The bank
                                                              did not appreciate the view I placed on review
 Once the funds reach your bank, you                          boards(ie: yellow,,etc.)
become the fiduciary for Mr. (Redacted) ,
not the Department of Veterans Affairs .                      I drew this V.P./Trust Officer out and have
                                                              documentation that she takes her direction
  Mr. (Redacted) forwarded bills to you, but you              from the VA even though she draws a
have been delinquent in paying those bills. For               4% commission from the veteran.
instance, the (Redacted) send you their utility
bill immediately upon receipt. You will note that             This is one dirty little secret that the VA does
City Utilities sent them a Final Notice Prior To              not want exposed, and given current views
Disconnection as a result of your failure to make             on bank-government relations, neither does
timely payments. The (Redacted) sent you a copy               the banking industry. They do not want to see
of the invoice for their motor vehicle insurance.             the headlines that disabled veterans provide
You failed to pay that invoice on time, which                 additional bailouts for the banks involved.
resulted in the enclosed Notice of Cancellation.
                                                              These direct deposit accounts represent assets and
  In addition, on June 19,2010 Mr.                            big money for the banks; they do not like that I have
(Redacted) requested you to pay for                           pointed out this connection that most would not
his daughter's insurance co-pay.                              think of. The VA, due to the attention we have drawn,
                                                              have taken the threat that the veteran would rather
  Without citing any applicable law, you refused              starve than be under fiduciary quite seriously and
to pay the dependent's co-pay insurance.                      recognize that that would also play out badly for
                                                              them. We did not make this threat until after we were
  Prior to your appointment, these bills, as well as all      sure we had public opinion and our local news story
other bills, were being paid on time by the (Redacted)        out. In short, the VA does not know what to do with
                                                              someone who will bite the hand that feeds them.”
  Your failure to make timely payments of the
(Redacted) necessary and ordinary living expenses             You aren’t alone Vicki.
have created undue hardship, and may affect their
credit rating. (Mr. (Redacted) has a copy of his credit       Vicki 07/14/2010
report if you care to see it. I am not certain you
have legal authority to access it on your own.)               “Jim, I know I ain’t alone, that’s what scares
                                                              me. How about having the Regional Director
  I request that you contact me if I have inaccurately        noting (documented) a lack of due process. I
stated any fact in this letter, and specifically indicate     can send you that, as he tried to justify the intent
which facts I have misrepresented. If I do not hear           of guardianship as having never been followed
from you, I will proceed under the basis that you             through with State filing. Like that is supposed to
failed to timely pay Mr. (Redacted) legitimate                make this threat ok or not abusive. It seems that                                t     TOC    u                                         Page 79

any way you look at it the "incompetent" disabled          the VA stating a final decision had been made
veterans have no civil rights with the VA.”                and that I was my husband fiducairy and they
                                                           were releasing his back benefits. Today, I get a
It’s a bit of an afterthought at this point, but           letter from a lawyer stating I was being sued by
Vicki...just how incompetent is your husband?              the bank who had been appointed as fiduciary
                                                           because they were the fiduciary and not me.
Jim, See the attached document. That
should answer your questions.                              05/30/2009 (A veteran writes to me...)

(The mentioned document is available                       Jim, I have many questions for you beginning
here for viewing or download.)                             with where can I find a manual about fiduciary
                                                           rules that are easy for a lay person to read? Is
A good friend, a VA employee who is loyal to VA            there such a manual? Are there advocates to
and to the veterans he serves, wrote to let me             help a family or veteran work with the Fiduciary
know I’d reported on what were likely isolated             department? How can you get them to call you
incidents and that my stories don’t reflect the            back when you have problems? Do you hear of
real state of the VA fiduciary program.                    others who are having difficulty dealing with this
                                                           system? Where are the checks and balances when
The email excerpts below represent a                       it comes to both the fiduciary unit/field examiner/
few of what I have in my mailbox.                          court appointed fiduciaries. It seems to me that
                                                           they have more leeway and the ability to not to
03/19/2009 (A veteran writes to me...)                     disclose information to the veteran and his family
                                                           who have the right and deserve to know. It seems
I started searching (the VA Watchdog dot Org)              to me that this can get out of hand and no one is
website and found it absolutely valuable in helping        helping the veteran deal with this huge system.
me to get through all the steps regarding taking care
of my husband's affairs. Here's where I need your          08/14/2009 (A veteran writes to me...)
help. I've read some of the articles about fiduciary
appointments, but I think I have a good one for you.       Jim; I'll get right to the point. I am writing on
                                                           behalf of my 23 year old son who served in Iraq
I followed the military's instruction to apply for VA      with the Oregon Guard in 2005. I believe that his
benefits when my husband was medically retired             fiduciary may be "misappropriating" his funds and
in October 2008. When it was determined by the             I would like to help him find someone who can
VA that my husband was mentally incompetent to             check into this. He continuously asks to see copies
oversee his finances, it was also determined by the        of his accounting...she says that she will provide
VA that a fiduciary would be necessary and since           him with a copy and then she changes her mind.
I was the spouse that would be me. Well, a field           This is only the tip of the iceberg. If you have any
representative came to our house and did some              information that I can pass onto my son, it would
paperwork processing. Two days later, he called me         be greatly appreciated. Your site is impressive and
to tell me that I could not be my husband's fiduciary      thank you for all the hard work that you folks do.
because my credit score wasn't 750. I proceeded to
tell him that was because of the several month lapse       10/29/2009 (A veteran writes to me...)
in pay from the stoppage of military retirement to
waiting for VA benefits which had not begun that           Hello, I am my brothers VA appointed custodian for
our bills fell behind and my score dropped even            his VA funds and court appointed conservator for his
further because he (the field rep) made an inquiry. He     other monies, such as social security. My brothers
proceeded to tell me that he was appointing a bank         field examiner seems to have a problem with me
to oversee my husband's benefits and that that bank        being his conservator. I receive no monetary benefit
was going to charge a 5% service fee!!!!! (yikes!!).       from the VA or court for handling my brothers
                                                           money. My brother lives on the same property I
To my surprise, two weeks ago, I got a letter from         live on. This field examiner even went so far as to                               t         TOC    u                                          Page 80

instruct one of the clerks in the court to stop my bid        We have never met or had any type of personal
to become my brothers conservator. However it did             contact with Springmier, except the "official" one
not work for her and I still was able to become his           line letter of where to send our bills. All business
conservator. Last week I sent 8 faxes to the regional         has been on-line. I cannot tell you exactly what
office in Columbia, S.C. to request a golf cart for           Mike is paying her (our estimate $130.00 month)
my brother and she said she did not receive any               because we have not seen where any of his comp.
of them. I then was able to contact someone else              has gone since April. The VA claims that they are
at the regional office and send them the same fax             doing us a favor, we are having $300 per month into
and they got it immediately. So what is up with this          savings, but we have no proof or bank statement.
lady? I am beginning to think that she is funneling
conservator-ships into the hands of certain people to         Springmier is not available to us and we were told
empower them monetarily. Others after all receive             by Grabman (verbal) that ‘she is one of the best Trust
compensation for handling veterans monies, I don't.           officers that the VARO uses, and successfully manages
Can you give me some good advice, please?                     over 30 disabled veterans accounts."’ Apparently
                                                              she is available to the VA and not the Veteran.
12/10/2009 (A veteran writes to me...)
                                                              As the VA knows, we have not been able to find an
Dear Mr Strickland, A little over a year ago I was            attorney to represent a VA issue. We approached the
appointed fiduciary and custodian of my then                  attorney about the banks responsibilities as fiduciary.
boyfriend. He is an OIF veteran who is 100% combat            I pointed out that it may be apples and oranges, but
connected disabled with a host of problems, PTSD              that Cushman v. Shinseki shows that the disabled vet
being the most notable to the VA. We didn't feel he           has an entitlement to these funds that is protected by
needed a fiduciary, but after fighting with the VA over       the constitution as property. This was the approach
his case we didn't have to energy to continue the             that the attorney took with the bank, and there has
fight against him being deemed unable to care for             been no response from either the bank or VA.
his own affairs. And since I was willing, we decided
to go ahead and submit to them on this detail.                The attorney has let me know that when I
                                                              have taken care of all administrative appeals
Three weeks ago I was sent a threatening letter and           he will pick up our case in civil court, he
needless to say, when I was appointed fiduciary               has looked at all my documentation.
I was given incomplete and down right wrong
information about how to do the job and what was              We were given no chance to appeal or any type of
expected. I have been clearing up this issue, but I           hearing in this matter, it was decided 13 years ago
have a simple question because the information I get          when deemed incompetent. Once incompetent the
from them always seems to be off the mark a bit.              VA does not recognize the vets "state of mind in these
                                                              matters" (again verbal). Basically, the veteran is crazy
My veteran and I were married at the end of                   and cannot make these decisions for himself. As FE
November of this year. I was told that now that               Grabman informed me (verbally) "I no longer have to
we are married I no longer have to provide                    deal with you, please put Mike on the phone." This
them with a penny by penny accounting for                     was on 4/15/10 when we were notified of the changes
his benefits. Do you know if this is correct?                 dated 4/7. It was all done so quickly and without
                                                              our knowledge that my head is still spinning.”
Vicki continues Mike’s story;
                                                              Vicki’s most recent email to me;
“I watched an ABC news program today. It was a
story about the epidemic of service member suicide.           “Money being "conserved" for the veterans use is
It was a reminder of everything Mike has overcome             not being released for anything that people save for.
and everything the VA is denying him. How can they            Our banker hung up on Mike when he asked why
promote readjustment; therapy, sobriety, and family/          she would not make authorizations (like car repairs)
social ties when Mike has been following that path            that fall under $1,000. Keep in mind, that $70 per
for the last 13 years (and yet they treat him like this).     month is taken out for CAR REPAIRS, seperate from                             t       TOC   u                                        Page 81

the savings they are forcing on us. We still have not     an incompetency determination, the beneficiary
received so much as a bank statement. We sat and          will be notified of the proposed action and of
guessed at what this woman makes from disabled            the right to a hearing as provided in 3.103. Such
veterans; we were told that she handles over 30           notice is not necessary if the beneficiary has been
veteran files and multiplied this by the amount           declared incompetent by a court of competent
we pay, for a total of about $4,000 per month.            jurisdiction or if a guardian has been appointed
                                                          for the beneficiary based upon a court finding of
As time goes on, the VA is no longer hearing my noise,    incompetency. If a hearing is requested it must be
and this is where I need your help Jim. We believe        held prior to a rating decision of incompetency.
that the VA is waiting for my voice to be quieted,        Sarah Wade, Coordinator, Family Issues and Traumatic
and then intend on denying Mike competency. They          Brain Injury, Wounded Warrior Project http://
will then actively seek his total legal guardianship.
Please help me tell the VA that I married a wonderful     =59828&Newsid=567&Name=%20Sarah%20%20Wade
man, not an abusive government agency. The mail           Parents and spouses who over time have surely
just arrived, no word from the VA today 7/28/10.          proven their dedication to their loved one, too
                                                          often encounter a VBA system marked by its
I have been sitting here reading the post comments        rigidity, intrusiveness, and unreasonableness
from part one, and considering the sample letters         when it conducts oversight of those caregivers
included in my part. Then I start thinking about          in their role as the veteran’s fiduciary.
how to make a change. The answer I come up
with is UNITY. Please feel free to release my e-mail      Let me illustrate my point by way of examples:
address, if it can help to help reach others and
share not only our ideas; but also our experience,          * A VBA field examiner imposing a summer-
strength, and hope. We have the chance to speak           vacation expenditure limit for a profoundly
up now, before the multitude of newly qualified           wounded warrior, his wife and two children;
PTSD disabled veterans get pulled in. I want                * A mother/caregiver having to explain to a VBA
to be hated and feared too!!!! THANK YOU.”                examiner why she allowed her wounded-warrior son
                                                          to spend “too much” money on Christmas gifts;
Hello, I’m from the VA and I’m going to help you.           * The spouse/caregiver of a traumatically brain-
                                                          injured veteran having to get permission from
Is the fiduciary system running on sheer                  a VBA field examiner to purchase a couch;
incompetence, an utter lack of caring and respect           * A devoted mother-caregiver to her
for what the PTSD afflicted veteran suffered              minimally-conscious son being required to
to get to this point or is there a conspiracy to          pay back money for toilet paper purchased
defraud hapless, helpless veterans of the right           for the home with the veteran's funds;
to due process as well as their money?                      * A family’s being questioned about
                                                          expenditures for gasoline when the wounded
Are the most fragile and the weakest of our ranks         warrior does not drive or own a car, but the
singled out for the bullying of the fiduciary only        fuel was used to transport the veteran;
because of their complete lack of defenses?                 * Several instances of mothers, who are full-
                                                          time caregivers to wounded veterans, being
A few facts, some opinions and then you decide:           required to pay rent to the veteran rather
                                                          than residing in the home for “free;”
Title 38 - Chapter I Part 3 - 3.353                         * A field examiner denying a mother-
                                                          caregiver’s request to replace the (now-
Determinations of incompetency and competency.            wheelchair bound) veteran’s eight year-old
                                                          high-mileage truck that she uses to transport      him in a rural, snowy part of the country; and
tency-competency-19775480                                   * A mother-caregiver having to relinquish
                                                          her role as a fiduciary because she had had
(3)(e) Due process. Whenever it is proposed to make       to declare bankruptcy after leaving her job                             t          TOC    u                                           Page 82

to care for her wounded warrior son.                         We stopped the illegal shredding of your
                                                             most important documents, maybe you can
Hon. John J. Hall, Chairman, Subcommittee on                 convince OIG to bring this to a halt too.
Disability Assistance and Memorial Affairs
From October 1998 to March 2010, the VA OIG’s
Office of Investigations reports that it conducted 315       This was only to be 2 parts. I’ve received notice a
fiduciary fraud investigations, resulting in 132 arrests     couple of hours ago from a Texas reader that goes;
and monetary recoveries of $7.4 million in restitution,
fines, penalties, and administrative judgments.              “I (have investigated the fiduciary scam here
One of these cases involved the submission of false          before) and found that there are several homes in
financial reports by a fiduciary who attempted to            the Waco area whose owners are either kin or they
conceal her embezzlement of nearly $1 million                are friends, they all keep veterans in their homes,
from 33 disabled veterans whose accounts she                 they are registered with the state, and are paid
managed. The funds embezzled by the fiduciary                by the VA for each veteran, AND, they are writing
were reportedly used to support her gambling habit.          up wills on these veterans, giving their money to            their families and themselves. I have...wills in my
nt.aspx?OSID=10342&Newsid=567&Name=Hon.%                     possession. One veteran had approximately 1 million
20John%20J.%20Hall,%20Chairman,%20Su                         dollars in his estate, another had over $300,000. I
                                                             have proof of the kinship, copies of the wills and
Overall, there is no rational person on our planet who       contact information on the families involved. I'm
wouldn’t declare that the Department of Veterans             looking forward to speaking with you soon.”
Affairs is broken and wobbling badly on its axis.
                                                             And speak with me soon she shall.
There are moments that it spins completely,
insanely out of control. The backlog of a million            Can this be true? Can a Waco/Houston fiduciary
claims is one moment. The politics surrounding               really be earning $350.00 per month for his
additions to the Agent Orange presumptive list               small services to Rick as well as other veterans?
is another moment. The fiduciary process and                 Is it the water they drink there? I’ll let you know
the total and complete lack of any accountability            the facts as I find out what’s wrong in Waco.
by any of the players is another moment.
                                                             A HOW-TO GUIDE ON SOLVING
These are not isolated incidents. There is no                PROBLEMS WITH A VA FIDUCIARY
official who can point to all of the evidence and
not conclude that there is a distinct pattern                Steps To Take When A VA Fiduciary Assignment
of abusive and often criminal behavior that is               Is Determined To Be Inappropriate
accepted within the fortress-like walls of your VA.
                                                             by Jim Strickland
There is no argument to say that the system
works, clearly does not. It causes
more harm and wastes more money than if                      Introduction
there were no fiduciary program at all.
                                                             The Department of Veterans Affairs maintains a
Now what?                                                    program to assign individuals to safeguard the
                                                             interests of the financial affairs of veterans deemed
The OIG seems your only hope. Write to the VA                incompetent to do so for themselves. This program
OIG and let them know your story of neglect                  is often referred to as the fiduciary program.
and suspicious activities that are known to
you. Overall the VA OIG is an impotent paper                 A fiduciary is, “the highest standard of care at either
tiger and has no bite but with enough of                     equity or law. A fiduciary (abbreviation fid) is expected
you telling your story, you never know.                      to be extremely loyal to the person to whom he owes                             t      TOC      u                                          Page 83

the duty (the "principal"): he must not put his personal
interests before the duty, and must not profit from his    nfapr10/nf040110-6.htm
position as a fiduciary, unless the principal consents.”                       VA FIDUCIARY AND WIFE STEAL $2 MILLION
                                                           FROM INCOMPETENT VETERANS -- A 26-count
The GAO explains the VA fiduciary program                  indictment charged the couple with conspiracy,
like this; “Many individuals receiving monthly             misappropriation by a fiduciary, making materially
compensation and pension benefits from the                 false statements to a federal agency and tax fraud.
Department of Veterans Affairs (VA) have mental    
impairments that prevent them from managing                nf10/nfjul10/nf070110-1.htm
their finances. VA’s Fiduciary Program selects and
oversees third parties, called fiduciaries, to help        Articles published on VA Watchdog dot Org
manage and protect beneficiaries’ funds.”                  have made the point that not only are some
                                                           fiduciary appointments not appropriate, they
In many instances, the assignment of a fiduciary is        may be termed as abusive and the motives for the
entirely necessary and appropriate to protect the          appointment may be questionable. See below:
veteran. It is incumbent upon VA to investigate
the action thoroughly and fairly and to make a                VA'S FIDUCIARY PROGRAM: A GOOD
responsible appointment with the safety and                IDEA GONE VERY, VERY BAD -- PART 1 of 2
well being of the veteran always in clear focus.           -- Veterans' Advocate Jim Strickland looks at
                                                           the dark side of the VA's fiduciary program.
§13.64 Fiduciary commissions.                              Or: "I'm from the VA, and I'm here to help."
“Generally, a VA appointed fiduciary is to          
be encouraged to serve without fee.”                       nf10/nfjul10/nf072810-3.htm
                                                             PART 2 OF 2 -- VA'S FIDUCIARY PROGRAM:
It is unfortunate that this isn’t always what              A GOOD IDEA GONE VERY, VERY BAD
happens. Recently, VA has been criticized          
as falling far short of their mandate.                     nf10/nfjul10/nf072910-6.htm

GAO has reported the VA fiduciary program is               The veteran is often ill equipped to resist these
in “disarray” and that “staff said that they did           appointments. Attorneys often find VA to be non-
not always comply with VA policies”. VAOIG has             responsive to any inquiry regarding the appointment
reported similar findings. VA appointed fiduciaries        and the fiduciaries are often equally non-responsive.
have been found stealing from the veterans they
were supposed to be guarding. See below:                   For these reasons a team of advocates volunteered
                                                           to work together to develop a plan of what we
  GAO: VA'S FIDUCIARY PROGRAM IN DISARRAY,                 consider best practices for advocates to follow as
BENEFITS NOT SAFEGUARDED -- Fiduciary                      they work to assist the veteran who suffers from the
Program managers and staff said that they                  wrongful assignment of a VA appointed fiduciary.
did not always comply with VA policies due, in
part, to a lack of time, resources, and staff.             This document is the result of the                            teamwork by those advocates.
                                                           Following the points below is not a guarantee
  VAOIG AUDIT FINDS VA'S FIDUCIARY PROGRAM                 of success. However, we believe that the
PUTS VETS' FUNDS AT RISK -- Inspector General              advocate who patiently works to apply the
found that VBA's Fiduciary Program is not                  principles of this methodical approach will
effectively protecting the VA-derived income               find that there will eventually be a response
and estates of incompetent beneficiaries.                  that will prove positive for the veteran.
                                                           Methods                               t     TOC    u                                             Page 84

                                                          requesting a personal hearing and so on.
If a fiduciary already has been assigned:
                                                          2. Send letter to fiduciary requesting
1. Write a formal letter (everything sent certified       professional qualifications for being appointed
return receipt and copies maintained) to the              fiduciary and challenging assignment.
fiduciary, identifying yourself, your relationship
to the veteran (relative, POA, etc.) and requesting       3. Upon first questionable action - immediately
a response to your concern or concerns in 14-21           write all the letters described above.
days. (See sample letter at the end of the article.)
                                                          4. If no response in 30 days -file a petition
2. If no response/poor response; send another             with Veterans Court seeking protection.
letter attaching a copy of the first and informing
the fiduciary that you are copying VA regional            5. Letters directed only to the fiduciary from
office and VA Regional Counsel (see listing at            an advocate are most likely to get a response.
bottom of page) because he/she did not respond            An attorney who is not certified to practice
to first letter and request response in 14 days.          before VA is acceptable to write such letters.

3. If no response; send third letter copying VARO         Fiduciaries are often governed by state law--
and VA General Counsel and VAOIG. Also file               typically trust as a part of trust or agency law. The
a complaint with state bar (if lawyer) or other           particular hammer with a fiduciary is they can be
professional licensing organization (for CPAs,            personally liable if they have misused funds, so
bankers). If all else fails, send a copy to the State     they will be very, very sensitive in that regard.
Attorney General or Secretary of State's office.
                                                          A strong letter--”this is to put you on notice”,
4. If more than 4% of the monthly deposit is being        and cc the appropriate governing agency,
removed or health and safety is being jeopardized,        bank trust department is likely to bring that
contact local law enforcement and register a              fiduciary to call the VARO very quickly.
complaint. When filing such a complaint, stress
that you believe this is a case of theft, conversion,     Copy notices to VA Regional Counsel in the case of
or fraud. A report of this sort is evidence of            whatever documents are sent to the VARO. Regional
concern that may be useful in later civil action.         Counsel is who the local VARO will first turn to.

5. File a Petition with the Court of Appeals for
Veterans Claims seeking protection. An attorney           Overall
familiar with the petition process is optimal for
such action but the Court has often accepted              Consider how the determination of incompetence
simple letters as “petitions” and has even arranged       was made. Consider due process violations.
for representation in meritorious cases.
                                                          Title 38 - Chapter I Part 3 - 3.353
6. Ultimately, make the fiduciary as an individual or
corporation the target of legal action. Bypassing         Determinations of incompetency and competency.
the VA places the fiduciary in a position of proving
their compliance with any applicable local laws 
that may govern their practice. The fiduciary is          petency-competency-19775480
ultimately responsible to their ward, not to the VA.      (3)(e) Due process. Whenever it is proposed to make
                                                          an incompetency determination, the beneficiary
If a fiduciary is proposed or newly assigned:             will be notified of the proposed action and of
                                                          the right to a hearing as provided in 3.103. Such
1. Immediately file a Notice of Disagreement              notice is not necessary if the beneficiary has been
with fiduciary assignment. This should                    declared incompetent by a court of competent
be written as a standard sort of NOD and                  jurisdiction or if a guardian has been appointed                                      t    TOC    u                                        Page 85

for the beneficiary based upon a court finding of               restored. Mike Olson was ecstatic that VA had
incompetency. If a hearing is requested it must be              made it clear that he was rated competent and
held prior to a rating decision of incompetency.                that no further fiduciary action was planned.

Conclusion                                                                  Prominent veterans attorney
                                                                and advocate Katrina J. Eagle, Esq. (Director,
By following this simple plan, we believe that                  Veterans Services Group, Finkelstein & Partners)
the veterans advocate will achieve a productive                 was present to represent Mr. Burns.
dialogue with the VA and the fiduciary.                                     Ms. Eagle tells me that she is somewhat
                                                                satisfied with the appearance of VA to review
                                                                issues. She now waits for the actions promised.

-----------------------------------------------------------                 Mr. Burns offers his thanks to all of you
                                                                who supported him with your words and gifts. For my
Update                                                          part, I want to thank the executives of VACO for their
                                                                            genuine concern for the health
                                                                and well being of this veteran. I sense
My articles addressing the issue of the VA                      positive change at our VA, slow but sure.
fiduciary appointment (see inset above)
brought a blizzard of email to my desk. From                               This is a good start.
highly sophisticated law offices to spirit-broken
veterans, I’ve received a lot of comments.

One surprise I had was that some states allow
(encourage?) the state’s Department of Veterans
Affairs to establish a fiduciary department. The federal
DVA will then assign the fiduciary appointment to the
state who assigns an employee to act as fiduciary.

I’m currently investigating what appears to be
a particularly abusive case in Florida and the
evidence against the state’s appointed fiduciary
is mounting. There is very little published about
the relationship of the federal VA to the state VA
and any exchange of money that may occur as
in the traditional VA fiduciary appointment.

These are the sorts of things your VA (state and
federal) likes to keep off your radar whenever possible.

I’ll report that to you as I learn more. Make a note
that working with an incompetent state employee
acting as a VA fiduciary may prove to be more
complex than dealing with a civilian appointee.

As of the weekend after the two part series ran, our
veteran's wife and heroine of Part 2, Vicki Olson,
notified me that she received a call on Sunday from
VA that her veteran's competency was suddenly                                t    TOC    u                                            Page 86

Fleeing Felons ( Fugitive Felons)                         Nunc pro tunc is a common legal term, Latin for "now
                                                          for then." Refers to acts done after the time they
                                                          should have been done, but given retroactive effect.
01/31/2011 "Fleeing Felon" Status? Just
nunc pro tunc it! Fight Back                              You can explain a little background on why
                                                          quashing needs to be nunc pro tunc to early
Dear Jim,                                                 date so that the PD can explain to the judge.

On November 7, 2007 I was notified by VARO                Pretty simple, VA views that any period after
Providence I had been in Fugitive Felon status            enactment of the governing statute (The fugitive
since December 27th, 2001. In July of 2008, I was         felon statute became effective in 2002, but why not
fortunate in retaining an Attorney McLaughlin (w/o        have a little margin?) when a warrant was effective
fee) to represent me on appeal, per 38 CFR 14.630.        is counted against the vet, whether or not he knew
                                                          about it or could do anything about it (as in your case).
I turned to VA WATCHDOG. In August 2010 an order of
nunc pro tunc was prepared by my public defender          Any quashing that does not work retroactive
and handed down by a Taunton District Court judge         still allows VA to keep any withheld funds
(MA). I forwarded this to the RO Providence office        and generally give you a hard time.
under Mr. McLaughlin's direction, immediately.
                                                          This is usually a very informal matter that any
I am in receipt of a letter (01-25-11) notifying          lawyer or PD can take care of for you.
me of a favorable decision by a DRO's findings
in a Fugitive Felon case dating back to mid-              Once you have that order quashing the warrant
1998. The decision came down from the                     effective 1/1/2001, have some certified copies
Philadelphia VARO this past week.                         made and give one to the SSA folks and if and
                                                          when VA raises the issue, have one for them.
Again I offer my most sincere thanks for
your good works at WATCHDOG TODAY.                        That should do it. This is the only effective way
                                                          I'm aware of to deal with the fleeing felon rules.
Before you begin, do your homework carefully...

Read 38 C.F.R. § 3.665 Incarcerated beneficiaries
and fugitive felons—compensation.

Read Two Experiences

Read Fast Letter 08-29

Now that you understand your status as
a fleeing felon, you have work to do.

We'll assume that as in most instances, the
court has no interest in pursuing this or to try
to have you extradited for appearance.

You must find a friendly Public Defender or retain a
lawyer in the court that the warrant is issued from.

You must then ask the PD or your lawyer to move the
judge to quash the warrant nunc pro tunc to 1/1/2001.                            t       TOC    u                                         Page 87

Knowledge is of two kinds.                               If there are any fees charged for searching or
We know a subject ourselves,                             copying the records, please supply the records
or we know where we can find information upon it.        without informing me of the cost if the fees
Samuel Johnson                                           do not exceed $5.00, which I agree to pay.

                                                         If you deny any part of this request, please cite
The Freedom of Information Act                           each specific reason that you think justifies your
                                                         refusal to release the information. Please notify me
Having problems getting answers to your                  of appeal procedures available under the law.
questions? Can't find your records? Would you like
to force the system to hear you? FOIA may help.          If you have any questions processing this
                                                         request, you may contact me at the following
How to submit a FOIA request Where to                    telephone number: (123) 456-7890
submit a FOIA request Fee Information How to
appeal a FOIA request FOIA Reading Room                  Sincerely,

The Freedom of Information Act is one of the more        Sign it
effective tools available that makes the system
work for you. Learn how to use it properly.              Your name and address

VACO FOIA Offices, Requester Service
Centers & Public Liaisons


Annual FOIA Reports

Sample Letter

Date   Certified Mail, RRR

Department of Veterans Affairs
810 Vermont Avenue, NW
(005R1) VACO
Washington, DC 20420
January 5, 2011

ATTN: Freedom of Information and Privacy Act Officer

Dear FOIA Officer:

Under the Freedom of Information Act, I am
requesting access to report/spreadsheet
(here you carefully and specifically name
the documents you are looking for).

If this already available online, please
point me to the correct url.                              t      TOC   u   Page 88

But if the while I think on thee, dear friend,
All losses are restored and sorrows end.
William Shakespeare


Friends of disabled American military veterans are
unique. Dedicated to the cause, they incorporate
needs of veterans into their daily lives.

They may promote and sell products that are
somehow related to honorable military service or
their organization may exist as a non profit or not-
for-profit business that gives generously to veterans
who need a little help. The friends who are on this
page are all people who I've personally contacted
in the usual course of running this web site.

I may have purchased their products or I
might have contacted them to say hello and
offer a compliment on their work. In any case,
I trust them and I endorse what they do.

You can give them your trust too.
They've earned it. Jim S.

Banner ads are important to web site publishers.
Posting our banner on sites and linking to
us increases our search engine rankings
and helps to drive visitors to our work.

The following are my preferred horizontal banners.
One is an animated GIF and the other a static GIF.
If at all possible, please use the animated banner.

 If you would like to exchange with me, I'll be
happy to post yours around my site in exchange.
I'll be generating a tall "skyscraper" banner
soon as well as an assortment of other sizes and
shapes that will fit your web site. Please link mine
directly to                              t       TOC     u                                          Page 89

HOW TO SIMULATE BEING A SAILOR:                             14. Have your neighbor come over each day
                                                            at 5 am, blow a whistle so loud Helen Keller
1. Buy a steel dumpster, paint it gray inside               could hear it, and shout "Reveille, reveille,
and out, and live in it for six months.                     all hands heave out and trice up."

2. Run all the pipes and wires in your                      15. Have your mother-in-law write down
house exposed on the walls.                                 everything she's going to do the following
                                                            day, then have her make you stand in your
3. Repaint your entire house every month.                   back yard at 6 am while she reads it to you.

4. Renovate your bathroom. Build a wall across the          16. Submit a request chit to your father-
middle of the bathtub and move the showerhead               in-law requesting permission to leave
to chest level. When you take showers, make sure            your house before 3 PM.
you turn off the water while you soap down.
                                                            17. Empty all the garbage bins in your house and
5. Put lube oil in your humidifier and set it on high.      sweep the driveway three times a day, whether
                                                            it needs it or not. (Now sweepers, sweepers, man
6. Once a week, blow compressed air up your                 your brooms, give the ship a clean sweep down
chimney, making sure the wind carries the soot onto         fore and aft, empty all trashcans over the fantail.)
your neighbor's house. Ignore his complaints.
                                                            18. Have your neighbor collect all your mail for
7. Once a month, take all major appliances                  a month, read your magazines, and randomly
apart and then reassemble them.                             lose every 5th item before delivering it to you.

8. Raise the thresholds and lower the headers of            19. Watch no TV except for movies played in the
your front and back doors so that you either trip or        middle of the night. Have your family vote on which
bang your head every time you pass through them.            movie to watch, and then show a different one.

9. Disassemble and inspect your                             20. When your children are in bed, run into their
lawnmower every week.                                       room with a megaphone shouting that your
                                                            home is under attack and ordering them to their
10. On Mondays, Wednesdays, and Fridays,                    battle stations. (Now general quarters, general
turn your water heater temperature up to 200                quarters, all hands man your battle stations.)
degrees. On Tuesdays and Thursdays, turn the
water heater off. On Saturdays and Sundays tell             21. Make your family menu a week ahead of time
your family they use too much water during                  without consulting the pantry or refrigerator.
the week, so no bathing will be allowed.
                                                            22. Post a menu on the kitchen door informing your
11. Raise your bed to within 6 inches of                    family that they are having steak for dinner. Then
the ceiling, so you can't turn over without                 make them wait in line for an hour. When they finally
getting out and then getting back in.                       get to the kitchen, tell them you are out of steak, but
                                                            they can have dried ham or hot dogs. Repeat daily
12. Sleep on the shelf in your closet. Replace the closet   until they ignore the menu and just ask for hot dogs.
door with a curtain. Have your spouse whip open the
curtain about 3 hours after you go to sleep, shine a        23. Bake a cake. Prop up one side of the
flashlight in your eyes, and say "Sorry, wrong rack."       pan so the cake bakes unevenly. Spread
                                                            icing real thick to level it off.
13. Make your family qualify to operate
each appliance in your house - dishwasher                   24. Get up every night around midnight
operator, blender technician, etc.                          and have a peanut butter and jelly
                                                            sandwich on stale bread. (midrats)                             t        TOC    u                                      Page 90

25. Set your alarm clock to go off at random during        be another week before they can leave the house.
the night. At the alarm, jump up and dress as fast
as you can, making sure to button your top shirt           (Thanks to...Chris P.)
button and tuck your pants into your socks. Run
out into the backyard and uncoil the garden hose.

26. Every week or so, throw your cat or dog in the
pool and shout, "Man overboard port side!" Rate
your family members on how fast they respond.

27. Put the headphones from your stereo on your
head, but don't plug them in. Hang a paper cup
around your neck on a string. Stand in front of the
stove, and speak into the paper cup "Stove manned
and ready." After an hour or so, speak into the cup
again 'Stove secured." Roll up the headphones
and paper cup and stow them in a shoebox.

28. Place a podium at the end of your driveway.
Have your family stand watches at the podium,
rotating at 4-hour intervals. This is best done when
the weather is worst. January is a good time.

29. When there is a thunderstorm in your area, get
a wobbly rocking chair, sit in it and rock as hard as
you can until you become nauseous. Make sure to
have a supply of stale crackers in your shirt pocket.

30. For former engineers: bring your lawn mower
into the living room, and run it all day long.

31. Make coffee using eighteen scoops of budget
priced coffee grounds per pot, and allow the
pot to simmer for 5 hours before drinking.

32. Have someone under the age of ten
give you a haircut with sheep shears.

33. Sew the back pockets of your jeans on the front.

34. Every couple of weeks, dress up in your best
clothes and go to the scummiest part of town. Find
the most run down, trashiest bar, and drink beer until
you are hammered. Then walk all the way home.

35. Lock yourself and your family in the house for
six weeks. Tell them that at the end of the 6th week
you are going to take them to Disney World for
"liberty." At the end of the 6th week, inform them
the trip to Disney World has been canceled because
they need to get ready for an inspection, and it will                     t      TOC   u   Page 91

Guestbook                                t       TOC     u                                          Page 92

Join in the new game that's sweeping the country.            MORE on Hearing Loss:
It's called "Bureaucracy" Everybody stands in a circle.
The first person to do anything loses.”                      Ed Ball is a Veterans' Service Officer in Sidney, Ohio.
                                                             I want to thank Ed for allowing
                                                             me to pass this on to you.
Hearing Impairment
Hearing loss affects more veterans than most can             nfMAY07/nf050207-7.htm
imagine. From the first day of basic training we were
subjected to noises that most civilians will never hear.     Ed's advice below:

The Veterans Administration has strict regulations           ---------------
governing hearing loss and disability compensation.
The veteran who wants to see a benefits award                Larry,
must be prepared to fight and appeal.
                                                             As a result of filing numerous tinnitus and hearing
§ 4.85 Evaluation of hearing impairment.                     loss claims, ("and getting the veterans awarded more
(h) Numeric tables VI, VIA*, and VII.                        times than not - audiograms/speech discrimination
                                                             didn't support moderate to severe hearing loss"), I've
The VA uses a strictly defined criteria to determine the     been amazed by the number of veterans that seem
degree of hearing loss. An examination for hearing           to think since they can't prove exposure to traumatic
loss must be conducted by a licensed audiologist             acoustic events in their military career, they just won't
and include controlled speech discrimination test            file. (Combat veterans - hearing loss is conceded as
(Maryland CNC) and a puretone audiometry test.               happened in service by VA, rated based on current
                                                             audiogram and speech discrimination figures.)
The results of the tests are then calculated according
to a system of tables to arrive at a percentage
of the disability attributed to hearing loss.                Noise Induced Hearing Loss;

The veteran who is applying for a hearing          
loss benefit should consider the degree of
tinnitus that he or she may have that often                  Given the medical evidence supports the claim based
accompanies acoustic trauma and hearing loss.                on the 1000 to 4000 hz frequency range along with
                                                             indicators for speech discrimination for disability
Also to be considered are any psychological or               purposes, recommend folks talk up their exposure to
mental health and safety considerations that                 noise in the military when visiting their doctors for
sometimes result from hearing loss. If the veteran           hearing exams and make sure it's noted in the exam.
believes that hearing loss and tinnitus have caused
or aggravated anxiety, anger, depression, PTSD               (i.e., (+) Severe noise exposure in military) or if
or otherwise contributed to a loss in the quality            the veteran has copies of his/her medical service
of the veteran's activities of daily living, those           records, and can show audiograms periodically
facts should be recorded for consideration.                  since released from active duty, they may be able
                                                             to get a medical opinion to support their claim.
Dr. Peter Weber has written an excellent
Knol that addresses many scientific and                      Veterans must be able to show two key factors:
technical details about hearing loss here.
                                                             1. Traumatic Acoustic Event
                                                             2. Disability incurred in Service

                                                             As the VA has a "Duty to Assist" will their raters                             t       TOC   u   Page 93

look up the impulse noise levels? I don't believe so,
that's why I provide all the information up front.

Hope this helps,

Ed Ball
Veterans Service Office
133 S. Ohio Ave.
Sidney, Ohio 45365
(937) 498-7283                                t       TOC    u                                           Page 94

The following 2 links are going to be                        restrictions on the type of benefits you may receive.
the best reading you'll do today!
                                                             (2) You must have an current injury or illness
Some Tips for Filing a VA Disability Claim                   (condition) that can be attributed to your service.
Filing a first claim for disability compensation             This means that you should have a clear diagnosis
can be a stressful experience.                               in a medical record prepared by a qualified health
                                                             care provider, preferably a physician. The more
5 More Claims Tips                                           precisely defined the condition is in the record,
These "Best Practices" Can Ensure                            the better it is for your application for benefits.
Smooth Sailing For Your Claim
                                                             (3) You must have evidence to support your claim. The
                                                             strongest evidence is that of an event that is recorded
How To File A Claim                                          in a Service Medical Record (SMR) and a detailed
                                                             description of the cause of the injury or illness leading
At any point after a veteran has completed military          to the condition, as well as how it was treated and any
service and he or she believes that military service         residual effects of the event. If the condition is related
has caused an injury or illness (called a "condition"        to a non-combat related event, documentation of
by the VA) or that a preexisting condition was               the accident or incident that caused a condition
aggravated by military service, the veteran may              (such as a broken bone), documentation of an
file an application for disability compensation.             admission to a military or other hospital, a record
                                                             of treatment and follow-up care. Not everything is
There are no time limits or restrictions except in           required for every claim, but the more supporting
a few very limited circumstances. As a rule, the             evidence, the better chance of an award.
veteran may seek disability compensation for any
condition they reasonably believe was caused                 (4) Your medical evidence must be clear enough
or aggravated by their service at any time.                  to prove to VA that your current condition is
                                                             connected to the in-service event - this is called
The initial filing of a claim for disability benefits is     "service connection" or "nexus." Without a
simple. The veteran may file the appropriate forms           service connection, all the evidence in the world
himself or he may seek representation and assistance         of a current medical condition and an event in
from an accredited Veterans Service Officer who will         service will not result in an award of benefits.
likely work for a Veterans Service Organization. At this
stage of the process, the veteran is not allowed to pay      I suggest that you consider another set of
anyone to represent them. In practice, this means that       requirements before you file a claim for yourself. You
a veteran who wants to have someone representative           should be well organized and prepared to deal with
him or her will likely use the services of a VSO, as         the requirements of a lot of paperwork, copying of
very few attorneys work on preparing initial claims.         files and searching for evidence. It helps if you are
                                                             familiar with the way to conduct a search for records
More about representation follows later. For                 on the Internet, use a word processor, own or have
the purposes of this chapter, we will assume                 access to a scanner and copier and you're confident
that veterans who read on are interested                     that you have the patience to deal with details. The
in filing the claim for themselves.                          VA process, even at its best, is slow, prone to error,
                                                             and requires constant attention. A veteran who
Prior to filing your claim you should consider               can organize his or her information and keep good
some of the basic elements that are required                 records of interactions with VA during the claims
to obtain an award of benefits.                              process is much better positioned to be successful.

(1) You must be eligible. In other words, you must           If you believe that you meet these requirements, you
have served and possess a discharge that is other            should proceed to apply for your deserved benefits.
than dishonorable. If your discharge is other than
honorable but not dishonorable, there may be                              t          TOC    u                                         Page 95

You should file your claim as soon as possible after          so you may keep those for your records. Be sure you
you decide that you are eligible to apply for benefits.       keep a good copy of the completed form for yourself.
This is because the date of filing (when the claim
form is received by VA) establishes the start date            It should be mailed to the VA Regional Office (VARO)
of your award. You do not need to wait to file your           in the state where you live (or the closest VARO
claim until you have gathered all the supporting              if you live in a state with more than one) using
evidence. You'll have plenty of time to submit your           Certified Mail with Return Receipt requested. I
evidence after you file. Waiting until you gather             strongly recommend that this is the only way that
every last piece of evidence only costs you money             you should ever send documents such as forms and
because VA will only pay you from the date of the             evidence to the VARO. I do not recommend using a
claim, no matter when the condition began.                    fax machine, any sort of email or even hand delivery.
                                                              Certified mail will provide you with signed evidence
You may file an informal or a formal claim. An                of delivery just in case a document goes missing.
informal claim may be as simple as a brief letter
to the VA stating you wish to file a claim. The VA            Once you've mailed off your 21-526 application
will accept that and then ask you to complete the             and you have the receipt proving delivery in
VA Form 21-526 to formalize your claim. If you are            hand, you should begin in earnest to gather the
reading this, there is really no reason to file an            evidence you'll need to support your claim. VA
informal claim because eventually you have to                 will eventually notify you that they have received
complete the formal claim form anyways. Also,                 your application and over the next few weeks and
there are often disputes over informal claims and             months you will receive letters that will remind
you risk VA later not recognizing your claim.                 you to submit any and all evidence possible.

The much preferred method to file a claim is to               It's worth noting that the letters you'll receive will
complete a VA Form 21-526. The link will take you             often be repetitive and they'll make you wonder
to the 23 page form on the VA web site. This is a             if VA has received anything you've sent in already.
PDF document and that requires that you have                  Not to worry, the letters are computer generated
the free PDF reader installed on your computer.               and are part of the requirement that VA has to assist
                                                              you in developing your claim. You should keep
As of this writing, the Form 21-526 on the VA site            everything you receive from VA in case you run into
is "fillable". This means that you may complete the           a problem about whether or when something was
form by using your computer to type information               or was not sent to you. If you get into the habit of
into the required places. After you've done that and          putting everything you send to and receive from VA
finished the form, you may print it out for mailing           in a file in by date, you will have no trouble finding
to the VA Regional Office that will serve you. If             whatever information you may need in the future. If
you aren't comfortable doing that, you may print              you've used certified mail and return receipts, you
out copies to complete in ink and mail to VA.                 should save each one of the certified receipts and
                                                              return receipts with the documents that they go
If your computer refuses to cooperate with you,               with. Also, if you have the receipts, VA received your
you may go to any VA facility such as a regional              documents and they'll get around to them in turn.
office, VA medical center or clinic and they will
provide you with one. You may also call 1-800-                If you do not receive any letter from VA in about
827-1000 to ask that a form be mailed to you.                 two months, you may want to send another copy
                                                              of your claim and a copy of the certified mail
Before you begin, carefully read through the                  and return receipts, along with a cover letter
instructions. While the form isn't difficult to               explaining to VA that you sent in the form before,
complete, understanding what will be required                 but have not received any acknowledgment.
before you begin will save you time and frustration.          This will usually prompt a response.

Once you've completed and signed the form, it's time          You are probably going to receive a notice or a call
to mail it in. The VA doesn't want all those instructions     about a compensation and pension exam. Even                              t          TOC    u                                          Page 96

if it's short notice and it may be inconvenient for           Evidence
you, you should make every effort to get to the
exam as soon as possible. If you just can't make it           A gold standard for disability compensation
on the date scheduled, notify VA at your earliest             evidence is the Service Medical Record (SMR).
convenience. If you don't show up for an exam                 If there is clear documentation that an event
or if you're extremely late for a scheduled exam,             occurred, the circumstances surrounding the event,
the VA may default to a denial of your benefits               subsequent treatment records of how the injury
and you then have a real issue to confront.                   or illness was addressed at the time and then a
                                                              record of any follow-up care or treatment, that
Now you wait. You may wait six months to a year               evidence will be given significant consideration
before any progress is made. During this time it's            and weight by the VBA personnel charged with
important that all you do is wait. Don't call the VA to       evaluating the evidence and deciding a rating.
ask why it's taking so long, don't write angry letters
to your Senator or Congressman. Any action you take           Other evidence that will be considered may
now, other than submitting supporting evidence, is            be records of the history of a unit engaging
likely to slow your claim down. The VA is estimated           in combat or other hazardous operations,
by various sources to be a year or more behind in             ship's logs and flight records or individual
the processing of some 400,000 to 800,000 claims.             awards such as Purple Heart medals and other
Yours is in line with those and if you have done your         commendations for meritorious action.
job well with your application and evidence, your
claim will eventually have its turn to be rated.              Statements from individuals are often called "buddy
                                                              letters" and are often called into play by veterans with
The only time I recommend that you ask VA to                  little or no other documentation of events that they
speed up your claim is if you are truly critically ill        claim led to the condition that they claim is disabling.
or your doctors do not believe you will outlive               These statements will have a wide variation of
a long wait. In that case, VA may prioritize your             usefulness depending on the credibility of the author.
claim for processing after you've notified them.
The notification of your desire to have your claim            If the person who writes the statement was an
prioritized should be sent as a brief letter via              eyewitness to an event and was an officer or senior
certified mail and should include a statement from            NCO with leadership or command responsibility,
a physician as to the seriousness of your condition.          the statement may be given a great deal of weight.
                                                              Statements by a spouse, friends, family or others
If it sounds simple to file a claim for disability            without direct knowledge of the alleged causative
compensation benefits, it's because it is. Winning            event may not be seen as credible and are ignored.
your claim after you've filed is another matter entirely.
If you do this part of the process well, you've just          In complex cases where there may be reasonable
markedly increased your chances of a good result.             doubt of the cause and effect relationship of an event
                                                              and a later disability claim, the VBA is known to lend a
But your task isn't complete. If you aren't confident         great deal of weight to expert testimony. The "nexus
you can do all that, you should seek a representative.        letter" is a document prepared by an expert, usually
Even if you do ask a representative such as a VSO to          an M.D. physician, that states that in the opinion of
help you, the VSO will want you to be involved in your        the expert that the claimed disability is more likely
own claim. You may be told that, "This isn't a spectator      than not the result of the documented event.
sport!" Your VSO will do a much better job for you if
you're actively helping to gather evidence an getting         Almost anything can be submitted as evidence.
good copies of evidence to the VSO for review.                Photographs, maps, letters to loved ones
                                                              and recordings have all been considered
                                                              as evidence to document events.                             t          TOC    u                                          Page 97

How To Gather Evidence                                       a VSO is a mistake that may cost a great deal later.

The VBA has a 'duty to assist' the veteran in                Similarly, military records are often lost or misplaced.
gathering evidence. The wise veteran will ignore             The veteran should gather and copy and organize for
this and act as if there were no such requirement.           safekeeping all records that are available and begin
                                                             the search for those not immediately available.
As the veteran begins to complete the VA
Form 21-526 the efforts to secure copies of                  For military records the National Personnel Records
all available records should also begin.                     Center (NPRC) is a good place to begin. The
                                                             NPRC is the repository for most military records
The VBA will ask the veteran to provide the                  and if your records aren't there, they explain
names, addresses and telephone numbers of all                other opportunities for you to find them.
treating physicians and other health providers.
Along with this request will be forms the veteran            A formal request to the VARO is in order if you've
must complete to allow for the release of medical            ever had any previous interactions with VA. Ask for
information to the VBA by the provider.                      a copy of your file or folder to be delivered to you.

While it's important to accurately prepare and return        The Internet itself becomes more valuable each day.
these forms to the Regional Office (RO), it's more           Navy ship's deck logs can be an invaluable source of
important that the veteran does not rely on the VBA          records to provide evidence that supports your claim.
to complete the task of gathering that information.          Records of battles and troop movements through
                                                             hazardous areas may be just what the VA will require
While the VBA has a required "duty to assist" in             to validate the injury that caused your condition.
the gathering of evidence, that duty does not
guarantee that any extraordinary effort will                 The Freedom of Information Act (FOIA) is a tool
be made. After trying once or twice without a                that you may need to use if you participated
result, the VBA Veterans Service Representative              in covert activities or if you had a high level
(VSR) who has the task of retrieving such data               of security clearance. Government agencies
is under little or no obligation to continue.                all provide a relatively simple guide that
                                                             assists the veteran to obtain documents that
There are numerous barriers to releasing confidential        may be available to use as evidence.
health records today. An overall misunderstanding
of the HIPAA Privacy Rule has left many providers            For example, the Army provides the FOIA Service
reluctant to release records even to the patient. Some       Center and the Records Management and
providers now charge for copies of records and in            Declassification Agency. Other branches of the
many busy provider's offices, sending records to             federal government can be accessed using the
the VBA for a patient who may have moved away or             Google search engine as in this example. The
otherwise have an inactive file simply isn't a priority.     Naval Postgraduate school maintains Navigating
                                                             the Military Internet with dozens of links and
The use of 3rd party vendors to operate a hospital's         helpful instructions to research your FOIA.
or provider's medical records function has become
a popular alternative in the health care arena. The
records you believe held at the civilian hospital
where you were a patient 5 years ago may be
in a facility in another state archived by a firm
that handles 100 different hospital accounts.

To ensure that all critical records are available for
the adjudication of the claim, the veteran must
accept the task of retrieving and documenting the
records to VBA. To leave this task to the VBA VSR or                                t       TOC   u                                        Page 98

The object of war is not to die for your country             70% and they receive back a "Notice of Proposal To
but to make the other bastard die for his.                   Reduce Benefits" to 20%. The usual reason given
George S. Patton                                             by VA is an "improvement" of the rated condition.

How To Increase An Existing Rating

The veteran who has an existing condition or
conditions that are rated and compensated
as service connected may experience a
worsening of the condition with time.

At any point along the way, the veteran who believes
that the existing rating is too low may ask for an
increase. To request or file for an increase is a simple
procedure. The veteran need only to write a letter to
the VA Regional Office and clearly state that he or she
believes that an increase in the benefit is appropriate,
why you believe that an increase is proper and then
provide evidence to support the claim for an increase.

The usual process will begin. The veteran
will be notified by letter that the VARO has
received the veteran's request and evidence
will be requested. A Compensation and Pension
examination will be scheduled, medical records
reviewed and a decision will be made by a
Ratings Veterans Service Representative.

If your request to increase your rating is denied,
all the usual appeals processes apply so if
you feel strongly about your case, you should
proceed to the appropriate type of appeal.

I'm often asked if there is a risk to requesting an
increase in an existing rating. The answer is always,
"Yes". Your VA is always on the lookout to ensure that
you are "appropriately" rated. This means that your
percentage of disability rating should match your
physical condition as closely as possible at all times.

Your VA practices this theory to enforce the
lowest rating possible. Any time you request
an increase brings your file under scrutiny of an
individual who has as the first order of business
to review it for any errors that may have caused
you to receive a rating higher than you deserve.

I've seen numerous instances of veterans who
request that their rating be increased from 50% to                             t         TOC    u                                        Page 99

“We pretended there was no problem with Agent
Orange after Vietnam and later the Pentagon                 your heart muscle with oxygen-rich blood. Plaque
recanted, after untold suffering by veterans.”              narrows the arteries and reduces blood flow to
Jim McDermott                                               your heart muscle. It also makes it more likely
                                                            that blood clots will form in your arteries. Blood
Ischemic Heart Disease                                      clots can partially or completely block blood flow.
                                                            When your coronary arteries are narrowed or
There is some recent question of just what                  blocked, oxygen-rich blood can't reach your heart
is Ischemic Heart Disease? Is it the same as                muscle. This can cause angina or a heart attack.
Coronary Artery Disease and Atherosclerosis?      
The short answer is yes. The following is Work In
Progress (WIP) but may help you if you are denied           CAD Definition, By Mayo Clinic staff: Coronary
your benefit because your record isn't specific to IHD.     artery disease develops when your coronary
                                                            arteries — the major blood vessels that supply
Read The IHD Questionnaire                                  your heart with blood, oxygen and nutrients                             — become damaged or diseased. Cholesterol-
uploads/21-0960A-1_IHD_DISABILITY_                          containing deposits (plaques) on your arteries
BENEFITS_QUESTIONNAIRE.pdf                                  are usually to blame for coronary artery disease.
                                                            When plaques build up, they narrow your coronary
Define Ischemia; In medicine, ischemia is a                 arteries, causing your heart to receive less blood.
restriction in blood supply, generally due to               Eventually, diminished blood flow may cause chest
factors in the blood vessels, with resultant                pain (angina), shortness of breath or other coronary
damage or dysfunction of tissue.                            artery disease symptoms. A complete blockage                       can cause a heart attack. http://www.mayoclinic.
What is ischemia? Ischemia is a condition in which
the blood flow (and thus oxygen) is restricted to a
part of the body. Cardiac ischemia is the name for
lack of blood flow and oxygen to the heart muscle.

What is ischemic heart disease? It's the term given
to heart problems caused by narrowed heart
arteries. When arteries are narrowed, less blood
and oxygen reaches the heart muscle. This is also
called coronary artery disease and coronary heart
disease. This can ultimately lead to heart attack.

Ischemia often causes chest pain or
discomfort known as angina pectoris.

What Is Coronary Artery Disease? Coronary artery
disease (CAD), also called coronary heart disease,
is a condition in which plaque (plak) builds up
inside the coronary arteries. These arteries supply                             t         TOC   u   Page 100

Coronary Atherosclerosis, Definition: Coronary
atherosclerosis is an inflammatory disease
characterized by the accumulation of white blood
cells, cell debris, fatty substances (cholesterol and
fatty acids), calcium, and fibrous tissue (plaque or
atheromas) on the walls of the coronary arteries
that supply the heart muscle. As plaque slowly
increase in size over many years, the artery narrows
in places (stenosis), and blood flow to the heart
is reduced. Cholesterol-containing plaques are
highly dangerous even without narrowing of the
vessel because the fibrous cap can be softened
and rupture suddenly during acute heavy exercise
or activity (e.g., extreme athletic effort, shoveling
snow). This can cause bleeding from the blood
vessel wall, resulting in blood clot formation that
may obstruct the vessel. The stenosis may become
so significant that the blood supply is inadequate to
meet the needs of the heart (myocardial ischemia),
and the affected part of the heart muscle no longer
functions normally. Myocardial ischemia typically
results in chest pain (angina pectoris), but may
also cause no symptoms (silent ischemia). Total
blockage of a coronary artery results in a heart attack
(myocardial infarction). http://www.mdguidelines.

411 - Acute and Subacute Forms of
Ischemic Heart Disease, Other
414 - Ischemic Heart Disease, Chronic, Other Forms
414.0 - Coronary Atherosclerosis
414.00 - Coronary Atherosclerosis; of
Unspecified Type of Vessel, Native or Graft
414.01 - Coronary Atherosclerosis;
of Native Coronary Artery
414.02 - Coronary Atherosclerosis; of
Autologous Biological Bypass Graft
414.03 - Coronary Atherosclerosis; of
Nonautologous Biological Bypass Graft
414.04 - Coronary Atherosclerosis; of Artery
Bypass Graft; Internal Mammary Artery
414.05 - Coronary Atherosclerosis; of
Unspecified Type of Bypass Graft
414.06 - Coronary Atherosclerosis; of Native
Coronary Artery of Transplanted Heart
414.07 - Coronary Atherosclerosis; of Bypass
Graft (Artery) (Vein) of Transplanted Heart
414.8 - Ischemic Heart Disease,
Chronic, Other Specified Forms
414.9 - Chronic Ischemic Heart Disease,
Unspecified; Ischemic Heart Disease NOS                             t         TOC    u                                               Page 101

How important is a good Independent Medical Exam?           In many cases the veteran will not agree with
Read this from a recent BVA hearing. This extract           the results of this C & P examination. The veteran
from BVA is clear that an Independent Medical               may also find the he or she may need a "nexus
Opinion carried significant weight for the veteran.         letter" that will provide a degree of expert
****************************                                medical opinion to link or connect an active
                                                            duty event to a disabling condition of today.
Board of Veterans Appeals Docket Number 08-26 895
                                                            The veteran is often told to seek an Independent
“The Board finds the private medical opinion and            Medical Examination (IME) or opinion from a neutral,
conclusions of Dr. J.W.B. to be highly probative as         unbiased, expert physician. In many cases the veteran
they are definitive, based upon an interview and            doesn't need a complete physical examination
clinical assessment of the Veteran, a review of many        but may need an expert physician to review
service and post-service medical records, and are           existing records to offer an opinion of causality.
supported by a medical rationale. Accordingly, the
opinion is found to carry significant probative weight.     When the veteran finds that they need such medical
Among the factors for assessing probative value of a        expertise it's often a challenge to find such a service.
medical opinion are the physician’s access to the file      Most practicing physicians aren't expert in the proper
and the thoroughness and detail of the opinion.”            methods of conducting disability examinations
                                                            and their practice isn't set up to work with patients
Judge Kramer.                                               who only seek nexus letters or records reviews.

Judge Kramer then went on to compare and contrast           The veteran (or advocate) who seeks an IME or
the IME physician's 18 page opinion to what he              records review or nexus letter must be sure that
called a “mischaracterized” 1 and ½ page opinion            the physician is well grounded and experienced
by a VA doctor that overlooked several complaints           in the language used in disability examinations.
by the veteran in service medical records.
                                                            The medical doctor/examiner who will produce an
If there is any doubt of your claim based on                opinion or any record to be used in a VA disability
medical opinion, don't delay. Get the IME.                  adjudication should be familiar with the C & P
                                                            Service Clinicians Guide, the Schedule For Rating
                                                            Disabilities and the Index To Disability Worksheets.
Independent Medical Examinations
                                                            The IME examiner should understand the importance
When you allege that you suffered an illness or an          of establishing a cause and effect relationship
injury while on active duty military service and that       between an event in the military and a disabling
has caused or contributed to a disabling condition          condition today. When establishing and explaining
today, and then make a claim for compensation,              a nexus or causal relationship, such verbiage as
you must provide evidence to support your claim.            follows here may make or break a case for you.

In some simple claims the evidence is readily               1. “is due to” (100% sure)
available and it will be simple to evaluate.
                                                            2. “more likely than not” (greater than 50%)
The VA will provide evidence of the injury or illness
(called a "condition" by VA) and the seriousness            3. “at least as likely as not” (equal
of that condition by demanding that you are                 to or greater than 50%)
subjected to a Compensation and Pension (C
& P) medical examination. The C & P exam will               4. “not at least as likely as not” (less than 50%)
usually be conducted by VA contracted health care
professionals who have varying levels of expertise in       5. “is not due to” (0%)
the medical discipline that covers your condition.                               t    TOC    u                                          Page 102

The veteran or advocate who wants to obtain              For your reference I'll include his data and
an IME, records review or independent nexus              an abbreviated curriculum vitae here.
letter must understand some of the rules
that these examinations are subject to.                  Jerry W. Bush, M.D.
                                                         686 South 8th Street
The IME physician will establish a price after he or     Griffin, GA 30224
she has evaluated the amount of time involved in
providing you a given service. Payment is to be          Email: <>
made in advance of any work be done. The IME             Telephone: 678-603-9941
physician generally does not accept or bill for any      Fax: 770-233-6229
insurance and if you believe that you have any such
coverage, you must pay the examiner first and            Education
then work toward reimbursement for yourself.             M.D. Degree University of Alabama
                                                         School of Medicine 1983
The IME physician is a neutral party. You are asking     B.S. Pharmacy Auburn University 1979
the physician to provide you with an honest              B.S. Law Saratoga University (Correspondence) 2003
opinion based on the evidence you present.
The IME physician is not obligated to agree with         Certifications
you and if such a disagreement should occur,             Board Certified Internal Medicine
there is no refund of any fees to be made.               Certified Medical Review Officer
                                                         1999 (Recertified 2004)
There are no treatments provided during an IME. The      Certified Independent Medical Examiner 2000
IME doctor will not write prescriptions for you nor      Certified Medical Expert in Pharmacology/
see you for future appointments for medical care.        Toxicology (State and Federal Courts)

You must provide legible and well organized copies       Areas of Practice
of all pertinent records to the examining physician      Veterans Federal Tort Claims Act
prior to any examination if you are having such.         Medical Consultations.
The IME physician is not responsible for retrieving      Expert Medical Consultant
any records that may support your case.                  Independent Medical Examinations
                                                         Veterans Disability Consultations
You should agree in writing exactly what
work product you are paying for as you enter             Dr. Bush has Provided Expert Witness Testimony
into the agreement. If you need a physical               in Cases in Many States and Internationally
examination with a report about your broken
hip, that's what your agreement should state.
You should ask and the doctor should advise
you as to when you may expect your report. This          More on how a good IME report should look.
should be written as a part of your agreement.           (Jim Strickland)

In the past I've had my own Independent                  VA has its own culture. It is deeply ingrained and
Medical Examination and records review. I                hasn't changed much in years. There are phrases
also asked the IME examiner for a nexus letter.          that will trigger positive responses and phrases
In my opinion this was an invaluable step to             that may be meaningless. In IME reports it is more
gaining the benefits that I'd applied for.               important than ever that the physician would
                                                         remember to use these phrases appropriately.
I was given the name of a physician who
practices in Atlanta, Georgia and my exam was            For example; It is important that early into
scheduled and completed in a timely fashion.             the reporting you state that "I have reviewed
                                                         the medical reports and military records                               t     TOC     u                                               Page 103

that have been made available to me."                      We hope that the IME physician is able to conclude
                                                           with a statement like, "It is my opinion that it is
While this is no longer a requirement to say               more likely than not that the veterans current
that, it was for so long that some of the 'raters',        condition of DIAGNOSED CONDITION is a result of
those individuals charged with making the final            the EVENT OR EVENTS that are documented to have
decision, will still want to read that phrase.             occurred on or about DATES/CIRCUMSTANCES.

The physicians Curriculum Vitae (CV) is appropriate        As you know I caution veterans and lawyers that I
as an attachment, not as a part of the report itself.      recommend IME services not only for the physician's
                                                           medical expertise but also for honesty and that
A cover letter of introduction as a front page             the IME physician is clearly a neutral observer.
of the report, on your office letterhead, gives
a professional appearance to the package.                  I caution all veteran clients and their advocates that
                                                           the IME physician may not be able to agree with
It should be brief; "Date, to whom it may concern, I am    your conclusions. The IME physician is not paid to
Dr. Marcus Welby. I have been requested to perform         tell you what you want to hear to win your case.
(IME, IMO, report, nexus letter, etc.) on veteran Mr.      The IME physician is neutral and will only report
John Doe. Following this cover letter you will find that   what he/she observes in the totality of the exam.
report as well as attached a copy of my curriculum
vitae and any other relevant documents. Signed, etc."      If you haven't provided all the records or if you
                                                           do not have the condition you claim, that is what
Your CV and the cover can be "boilerplate" and             the IME physician will conclude and report.
that may save you some production time. I know
physicians are very busy but timely reporting back to      If that is the case, I'm told that it's then important that
your veteran/attorney client is extremely important.       the IME doctor conclude, as heor she is able to, with
                                                           verbiage like "It is at least as likely as not" and so on.
Your reporting should follow a distinct pattern
for VA. They strongly prefer stepwise reports.             You'll recall that in the C & P Examiners
                                                           Guide the phrasing is said to be;
There should be a COVER LETTER and then the
INTRODUCTION. "I have reviewed, etc."                      1. “is due to” (100% sure)

Then the FINDINGS; "Upon review I have noted               2. “more likely than not” (greater than 50%)
that the condition originated DATE and EVENT. The
sequence of events for treatment are SURGERY DATE          3. “at least as likely as not” (equal
TREATMENT DATE etc." Then the current condition of         to or greater than 50%)
the patient either from your own exam or from data
you glean from records; "Veteran Mr. Doe is currently      4. “not at least as likely as not” (less than 50%)
unable to ACTIVITIES OF DAILY LIVING etc." "PAIN. etc."
                                                           5. “is not due to” (0%)
This is where you convince the decision maker that
you know this patient's condition well. These are          (This may be a good time for you to
your expert clinical observations and nothing else.        review the Clinicians Guide...VA relies
                                                           heavily on the words used there)
You must conclude CONCLUSION with a strong finish.
This has been stressed to me often in my meetings          It's also important that the physician does
with experts. I'm told that the CONCLUSION is more         not interject an opinion as to any rating
important than ever and I was shown examples of            the veteran may be eligible for.
cases that fail because the IME physician reporter
doesn't use the appropriate conclusive verbiage.           The examiners guide addresses that as;                                t       TOC    u                                          Page 104

"The examining clinician must avoid expressing an            2. Symptoms or signs: Don’t use symptoms (pain)
opinion regarding the merits of any claim or the             or signs (tenderness) for a diagnosis if a more exact
percentage evaluation that should be assigned for            diagnosis is known. If a disease appears to exist
a disability. An opinion should not be given to the          but an etiology cannot be determined, you may
claimant regarding insurability, degree of disability,       say, for example, “fatigue of unknown etiology”.
incurrence or aggravation by military service, or
the character and sufficiency of treatment during            3. Opinion for further studies, evaluations, or
military service or subsequently thereto. When               laboratory tests: If further studies, evaluations or
asked about employability, the examiner should               tests are necessary, perform them before making
not state that an individual veteran is or is not            a final decision. Otherwise the examination is
individually unemployable, but should describe in            incomplete and will be returned as inadequate.
full the effects of the conditions being examined on
functioning, and how that relates to employment."            4. Change the previously established service
                                                             connected diagnoses: Don’t change previously
Only the veterans representative (lawyer,                    established diagnoses, unless you carefully
VSO, etc.) should ever opine on the eligibility              explain the discrepancy and adequately
of the veteran for benefits and the physician                substantiate the new diagnoses.
must stay on course with medical facts.
                                                             The observations of individuals who are not
Those "Do and Don't Do" lists in the examiners               medical experts will not carry much weight. We
guide must be adhered to carefully.                          often use what we refer to as "Buddy Letters",
                                                             statements in support of claims that are from
1. Definite diagnosis: Give a definite diagnosis             our parents, pastors, friends or spouses.
or use the previously established diagnosis.
                                                             The VA discounts many of these reports with,"Well,
2. No Diagnosis found: If no diagnosis is found for          what are those people going to say? A spouse or
any claimed condition, state this. For example,              parent will testify to what they think should be said
state “Lower back pain: There is insufficient                even though they may have no expertise in the
evidence to warrant a diagnosis of an acute or               condition nor did they witness the causative event."
chronic low back disorder or its residuals.” Explain
in detail the reason why a diagnosis cannot                  The decision maker will not appreciate inclusions
be established for the condition claimed.                    of VA regulations copied from the Internet or
                                                             other sources. One rater told me that this even
3. Diagnosis of Unknown Etiology: If a disability            annoys them to a point that they may discount
does exist but a definite diagnostic name                    other submissions because the report has
cannot be given to it, state this. For example,              become too bulky. The VA rater already has all
state “Muscle strain of unknown etiology”. (See              the law at his desk and wants no reminders.
Gulf War Examination Worksheet concerning
“undiagnosed illnesses” in Gulf War veterans.)               The IME physician should report medical
                                                             findings, nothing more. Reporting pertinent
4. Support each diagnosis: Support each diagnosis            law is the task of the attorney.
with subjective (history) and objective (physical) data.
                                                             Supporting scientific medical documentation of
5. Effect on daily activities and work: Comment              the opinion may be valuable. A recent article from
on the disability’s effect on the veteran’s                  a science or medical journal that may not be widely
daily activities and his ability to work.                    available is often given considerable weight.

1.13 Diagnoses don’ts (also see diagnoses do’s)              Make the IME reports compact and streamlined
                                                             will help the doctor with timeliness. If the doctor
1. Non-committal diagnosis: Don’t use phrases                uses a template for a cover letter and a pre-
such as “differential diagnosis” or “rule out”.              printed CV that will cut out some effort. Using a                            t    TOC   u   Page 105

structured outline and not including any legal or
regulatory data will also speed things along.

IME reports should be reduced to strictly
focused reports of what the physician observes
and then a strong, definitive conclusion.                             t       TOC     u                                          Page 106

Legal Assistance For Military, Veterans and Families       you make any decisions about your own benefits.

The Most Current Edition of Jim's Mailbag                  07/17/2006 Benefits Basic Training
Is Now Hosted At Stateside Legal
                                                           Let’s do some basic training regarding your VA                                 disability benefits. If you want to apply for benefits
                                                           or to increase your rating, it’s to your advantage to
                                                           understand how to make the system work for you.

Jim’s mailbag 2006                                         Are you eligible for VA disability benefits?

Jim's Mailbag, later called Questions and Answers, was     If you served on active duty, were honorably
a popular feature at the original VAWatchdog dot Org.      discharged and were injured, ill, in combat, exposed
                                                           to chemical or other hazardous materials or suffer
I met Larry Scott on-line in early 2006. As with most      negative psychological effects from your service
veterans who found the VAWatchdog dot Org,                 to your country, you are probably eligible.
I was seeking information about how to secure
the benefits I knew I'd earned. Larry had opened           When should you apply for benefits?
the site in 2005 and had already amassed more
information than most could imagine then.                  There are two schools of thought here. The first says
                                                           that before filing you should obtain copies of all
As we went along, Larry invited me to lend a hand and      your medical records, get those records organized,
write some of what I'd learned to share with others.       prepare your supporting statements (any narratives
                                                           you may have from doctors or friends), choose a
I was flattered. Larry brought me down to earth            representative and then file. The thinking here is
by letting me know that my writing was just OK             that if you’re well prepared at filing you’re more
but that since it appeared that I knew how to spell        likely to win your case without a denial and appeals
and punctuate, he'd allow me to go public on his           process. The second approach is to file right now,
site. Since then Larry has been a friend, coach,           immediately, and then sort it all out as you go along.
mentor and often enough, a Drill Sargent.
                                                           I’m for filing today, as soon as you can. When
Today the latest questions from veterans and my            you’re awarded your benefits, they’ll begin the
answers are hosted at the Stateside Legal web site. I'll   day that your VA Regional Office (VARO) receives
be posting some of the best of the past Mailbags here.     your application. If you delay you’re losing money.
                                                           Although the exact statistics are impossible to
You can use the "site search" to look for the              be sure of, it’s accepted that the great majority
topics that interest you or just read through              of original filings will be denied even if you’re
all of it. I promise you'll learn something                well prepared. You can begin the process today
valuable about your VA benefits.                           by completing the appropriate form on line.

You may run across broken links. If the URL                How do you choose a representative to guide you?
is posted, copy and paste as you usually
would. I'll update links as I have time.                   The quick answer is: Carefully! When you choose
                                                           a Veterans Service Organization (VSO) to speak
Letters in my mailbag are reprinted just as they           for you, you sign over a limited power of attorney.
come to me. Spelling and grammar are left as is            Reversing that is a cumbersome process if you
and only small corrections are made to improve             aren’t happy later on. You should ask other Veterans
readability, ensure anonymity or delete expletives         who it was that helped them. Interview two or
that may offend some readers. This is not legal            three representatives and get a feel who you’re
advice. You should always seek the advice of an            comfortable with. The quality of your VSO is regional
attorney who is qualified in Veterans law before           and will vary widely from state to state. You should                               t         TOC    u                                          Page 107

never be encouraged to join the organization or               other VA Regional Offices (VAROs) that make it
pay any fee or dues when you ask for help. If that            seem my file was transferred across country, dozens
comes up in your conversation, walk away.                     of statements that VA is sorry it’s taking so long
                                                              and if I’ll be patient they’ll get to me eventually
I’m hearing a lot of positives from Vets who use a            and follow-ups to things I’ve never requested. I’ve
County Veterans Service Officer (CVSO) or State               been scheduled for a personal hearing on a federal
Veterans Affairs department. A reader of my column            holiday and sent the papers of another Veteran. It’s
and a CVSO himself writes, “we are the development            all part of the routine, don’t let any of it upset you.
side of the National Service Organizations or VSO's.
We have veterans sitting across our desks, and we             My application for benefits has
aide them in understanding claims processing,                 been denied…now what?
and their obligations to produce the evidence and
proper documentation needed to substantiate                   VA never really denies benefits, they only set up
their claims, and where to go to seek further                 the appeals process. When they write and tell you
assistance.” Search the Internet for your state or            “No!” all they mean is, “That was a good try Ace.
county offices, in my state we’re fortunate to have           We’ll give you your benefits eventually but first you
many well trained, experienced and motivated                  have to provide me with enough stuff that I don’t
representatives in the Georgia Department of                  get in trouble at a performance review when I’m
Veterans Service. A real plus here, as my CVSO friend         asked why I gave you a high disability rating.” In
writes is, “it doesn't cost our veterans a dime, it's all     your denial letter they will provide a detailed list
taken care of in close proximity of their homes.”             of why they denied you. That list is your outline for
                                                              what you must provide them in your appeal. You
One last thought…you can go it alone. There’s                 and/or your representative must file a Notice of
no real requirement that you be represented by                Disagreement (NOD) within one year of the denial
any agency. If you’re willing to spend the time on            to keep this application open. File your NOD ASAP.
research, writing, copying records and such, you may
do well. Before you decide to take this approach,             Much like your own basic training or “boot camp”, this
look over the Holy Grail of the disability process,           brief introduction to filing for VA disability benefits
CFR38. The average applicant is much better off with          is only scratching the surface of the challenge that
a good representative who can make some sense of              may lie ahead of you. In that same vein though, if
the thousands of legal terms compacted in there.              you approach this as if it were your military mission
                                                              you’ll do fine. You’re a part of the system, learn how
I filed and suddenly I’m getting                              to work within it, it isn’t going to change for your
numerous incomprehensible mailings                            convenience. Never give up. Persistence pays and if
from VA. What’s this all about?                               you aren’t in the battle, you can’t win. Don’t make
                                                              the mistake of letting anger and frustration drive
A reader with over 30 years inside the VA system              you. That moment when you lose your cool and vent
writes to tell us, “I…have seen countless vets get            to someone’s face is the moment you lose respect
shortchanged by a system they couldn't understand.”           and credibility. And the game. Stay rock steady, stay
She points out that even though you’ve submitted              the course, be professional, you’ll be the winner.
everything you possess, from civilian medical records
to narrative statements, you’re likely to receive a           08/28/2006 The Funeral
"duty to assist" letter which makes it sound like either
the VA never got any evidence, or, that the evidence          Marine Sgt. John P. Phillips’ friends, family and
submitted was not enough to grant the claim. She              fellow warriors said goodbye to him yesterday in
tells us, “Vets need to be reassured that this letter is      a small town in South Carolina. During his second
largely pro forma and that nobody with any decision           tour in Iraq, the explosives expert was burned badly
making authority has looked at their claim yet.”              when an IED caught his unit and dumped flaming
                                                              gasoline on him. That was almost 6 months ago
It’s my personal experience that she’s correct. I’ve          and he was being cared for at the well known and
opened my mail and had letters postmarked from                highly respected Burn Unit at the Brooke Army                                t    TOC     u                                          Page 108

Medical Center in San Antonio, Texas. Sgt. Phillips        understand exactly what it is that they’re trying to get
was expected to survive, he’d even married his             across to me. There’s a lot of fear of homosexuality,
sweetheart there in his hospital room, but bad burns       that much is obvious. I’ve always thought that anyone
are always tricky and he died a few days ago.              who spends more time talking about homosexual
                                                           lifestyles than homosexuals do may have a bit more
I didn’t know him, had never heard of him and under        of a problem than they want to admit…but, I can’t get
other circumstances I’d have probably read his             the military funeral connection. It’s probably just me.
obituary with the same thought I give any military KIA:
It’s a shame, I’m sorry for the family’s loss but war is   So the Westboro folks decided to make other’s
always hell. He knew the risks and rewards, we all did.    lives as miserable as their own and as you may
                                                           have guessed, some ex-military biker types
Things are different now. A military funeral anywhere      thought that can’t be condoned and out of all
within driving distance becomes a beehive of activity      that comes today’s Patriot Guard Riders.
in my email inbox. Leaders spring to action laying
out itineraries, weather reports, communicating            PGR’s mission is to attend military funerals, only at
with family of the deceased, talking to the chief          the specific request of the family, and to ensure that
of police in the community where services will             if there are protesters from Westboro around, the
occur and contacting the state highway patrol.             family won’t see them. There’s more to it than that
Volunteers are posting in the thread that runs for         but at the core of every Mission by PGR is always the
days and becomes pages long, any and all necessary         undercurrent of thought of how to handle a protest.
tasks for the safety and well being of riders is
being addressed and any needs are being met.               As the funeral was planned for Sgt. Phillips, the
Trucks and vans and cars and trailers are assigned         South Carolina Captain, Randy "Steam" Stevens
different routes and provide support to riders.            and his team kicked into action. Two days prior
                                                           to the funeral, the Westboro Baptist Church
This is all occurring because of the Westboro Baptist      announced their plans to picket the church.
Church in Topeka, Kansas. Some time ago, the
leaders and congregation of Westboro decided that          The morning of the funeral was typical for August in
our American warriors were dying because of the            South Carolina. At the Citgo station in St. Stephens,
government and military policy of “Don’t ask, don’t        riders were rolling in as early as 8:00AM and already
tell” and homosexuality. They celebrate these deaths       feeling the effects of the coming heat and humidity.
by picketing military funerals, making a spectacle of      Randy was in action meeting and greeting, warning of
themselves, screaming as much hatred as possible           the effects of dehydration and lack of sleep; many had
toward the deceased and family and generally               been riding much of the morning and night before
denying any final respect or dignity to our heroes.        to get to a town they’d never heard of prior to a few
                                                           days ago. We heard it over and over, “Water, water…
They espouse their warped beliefs on a web site            drink lots of water.” it was going to be a long, hot day.
called “godhatesfags dot com”. The icon they
chose is an upside down American flag. Some                It surprised me to hear Randy wasn’t ex-military.
of the more intellectually stimulating reading             It’s not a requirement to join PGR but most are.
material available at their site includes, “Typical        Randy is actually a gentle and soft spoken sort, in
Fag-Ass American Soldiers”, “America. A sodomite           addition to selling insurance in a small town, he has
nation of flag-worshiping idolaters”, and “The US          a morning radio program of mostly commentary,
Constitution - An agreement with Hell”. They post          political and otherwise. But, like the rest, he’s a
schedules for upcoming picketing operations                patriot of the fiercest kind and a motorcyclist for
and “Photos of Epic Events” where their attempts           over 30 years. His leadership skills were evident as
to torture bereaved families are archived. Many            he called together the mandatory pre-ride meeting
of their banners and fliers are emblazoned                 of the 225 motorcycle’s riders and passengers.
with the words, “Thank God For IED’s”.
                                                           “DO NOT, under any circumstances, engage Westboro
I’ve read their stuff over and over and I still can’t      in any way, shape or form. DO NOT look at them, DO                             t      TOC     u                                           Page 109

NOT acknowledge them, DO NOT come close to them.          think we all assumed that they had trouble navigating
TURN YOUR BACKS to them…they WILL NOT come                the streets of that small city. There were just too many
past us.” was Randy’s strongest message. Safety, yes.     huge motorcycles and police cars in the streets.
Drink water and hydrate, OK. Keep your engines as
quiet as possible, understood. But some of the more       There’ll be a next time. The Westboro fanatics are the
intolerant Veterans really just wanted to kick some       scariest kind. Wack-jobs, to be sure and so wrong in
butt and take a few names. Nothing intense really,        their thought processes it hurts to consider it but they
just to slap a little sense into those idiots. As Randy   are True Believers. They’re cut from the same cloth as
explained though, it was just what the Westboro           the Islamic radicals and the Jim Jones and Heavens
folks would hope for…free publicity for their cause.      Gate cults. They won’t ever consider that they may
                                                          be wrong, their zealotry knows no boundary.
The police agreed. We had outstanding support
from the police but with a couple hundred WW2,            One of the reasons Marine Corps Sgt. John P.
Korea, Viet Nam, Gulf, Afghan and Iraq combat             Phillips died was to defend America’s freedoms.
Veterans on high horsepower machines, all                 He died fighting insurgents and whether you
fueled with adrenalin, they knew the potential.           agree with the war or not, this war and every
                                                          other American war comes back to the basic
Our ride was heart rending. We stood outside              principle of America fighting to keep itself free.
the church, hundreds of flags waving as friends,
family, Marine Corps brothers and sisters and             He died defending the right to freedom of
acquaintances of the young sergeant came to us            speech. That’s the one that gives the Westboro
shaking our hands and thanking us for our efforts.        congregants the right to stand at his graveside
                                                          and scream obscenities at his family.
Later as we rode with the funeral procession to
the cemetery, citizens of the small community             He died to ensure that the PGR has the right to gather
were standing in their yards and on the streets           in public places and to practice our freedom to not
waving flags, saluting or simply standing                 listen to Westboro’s hate filled rhetoric. We missed
there silently, tears streaming down their                seeing the Westboro people this time. There’ll be a
cheeks and hands placed over their hearts.                next time and we’ll be there, quietly waiting, ready
                                                          to stand guard and defend whenever we’re called.
There were hundreds of mourners at the
cemetery. By noon it was miserably hot. It      
could have been said to be unbearable but
on this day, it was just the way it was.                  09/05/2006 CFR 38

No funeral is pleasant. Military funerals have their      The United States Code of Federal Regulations Title
own customs and it’s a severe shock to the system         38: Pensions, Bonuses, and Veterans' Relief, is a sort of
of the unaccustomed when the rifles fire the 21           Bible to the Department of Veterans Affairs. Written
Gun Salute…the sound crashes head-on into your            and modified over the years by different generations
senses and the smell of burnt powder stays in             of highly skilled Federal Bureaucracy Lawyers who
your nostrils and when Taps is played, it sends the       are well trained in the field of gibberish, “CFR 38”
message that another heroic life is truly ended.          is the club used when VA decides to take you out
                                                          on the ice and bludgeon you with the fine print.
Even warriors cry. Bikers in leather who will
soon fire up machines weighing in excess                  Just for fun, today we’ll look at some of my personal
of 800 pounds and powered by over 100                     favorites. Let’s get started with my number one
horses cry. Those who understand combat                   favorite, probably the least used sub-paragraph in 38.
and death and war cry hardest of all.                     Get a firm grip on reality before you join me on this
                                                          journey and consider yourself cautioned: This can be
The Westboro Baptist Church protesters didn’t make        more hazardous to those of you with heart disease or
it. We heard they were in town, we never saw them. I      high blood pressure than a new ride in Orlando. Don’t                               t       TOC    u                                           Page 110

blame me for any residual PTSD after reading this.          considered 40 percent efficient. Proceeding from
I’m depressed enough myself just writing about it.          this 40 percent efficiency, the effect of a further 30
                                                            percent disability is to leave only 70 percent of the
~~~~~~~~~~~~~~~~~~~~~~~~~~~                                 efficiency remaining after consideration of the first
~~~~~~~~~~~~~~~~~~~~~~                                      disability, or 28 percent efficiency altogether. The
                                                            individual is thus 72 percent disabled, as shown in
§ 4.3 Resolution of reasonable doubt.                       table I opposite 60 percent and under 30 percent.

It is the defined and consistently applied policy of        I confess I’m no math genius. My wife keeps the
the Department of Veterans Affairs to administer            checkbook at the Strickland Ranch and only under the
the law under a broad interpretation, consistent,           most urgent of circumstances am I allowed to write a
however, with the facts shown in every case. When           check. I haven’t been allowed to balance a checkbook
after careful consideration of all procurable and           since about 1997 or so when my errors resulted in
assembled data, a reasonable doubt arises regarding         a near financial collapse for our personal fortunes
the degree of disability such doubt will be resolved        and came close to taking a large bank down with us.
in favor of the claimant. See §3.102 of this chapter.       Having said that, I’m better at math than the team of
[40 FR 42535, Sept. 15, 1975]                               Moe, Larry and Curly (financial planners at the Hoo,
                                                            Dunnit & Howe investment firm), designers of the
Go ahead and read it again and take a moment                Combined Ratings Table, a sort of secret ritual that
to catch your breath. Did you laugh out loud and            VA delights in cruelly inflicting upon us. I only copied
startle your wife and the kids, did you begin to cry        in about 100 of the words in 4.25, there are nearly
and lay your head down sobbing quietly and again            600 of them plus the usual eyeball-popping chart. If
freaking out your family or did you run to get the duct     your sleep is ever disturbed, throw out those low-
tape to wrap your head in so it wouldn’t explode?           bidder generic pills that VA sent you from the latest
In over 3 decades of going to the mat with the VA           CMOP and concentrate on trying to reasonably define
for my own claims and other’s, I haven’t once seen          the meaning of, “The individual is thus 72 percent
4.3 applied at all, much less “consistently”. In every      disabled, as shown in table I opposite 60 percent and
instance my evidence such as definitive statements          under 30 percent.” I promise you’ll sleep in no time,
from expert medical doctors, attestations from              although I can’t promise the character of your dreams.
peers and command officers, reams of medical
records with unequivocal diagnoses of well defined          ~~~~~~~~~~~~~~~~~~~~~~~~~~~
health issues and their medical nexus to my active          ~~~~~~~~~~~~~~~~~~~~~~
duty service has been denied and discounted as
if it didn‘t exist. I’ve presented evidence that was        § 4.46 Accurate measurement.
solid enough to convict a criminal in a Southern
California Courtroom and it wasn’t given any                Accurate measurement of the length of stumps,
credibility whatever by VA. Their definition of             excursion of joints, dimensions and location of
“reasonable doubt” is defined as “Whatever I feel           scars with respect to landmarks, should be insisted
like I want to do today. It’s good to be the King.”         on. The use of a goniometer in the measurement
                                                            of limitation of motion is indispensable in
~~~~~~~~~~~~~~~~~~~~~~~~~~~                                 examinations conducted within the Department
~~~~~~~~~~~~~~~~~~~~~~                                      of Veterans Affairs. Muscle atrophy must also
                                                            be accurately measured and reported.
§ 4.25 Combined ratings table.                              [41 FR 11294, Mar. 18, 1976]

Table I, Combined Ratings Table, results from the           I know of many Veterans who have disabilities
consideration of the efficiency of the individual as        similar to my own that involve the loss of range
affected first by the most disabling condition, then        of motion of a limb. I’ve had maybe a half-dozen
by the less disabling condition, then by other less         Compensation and Pension exams in the last 20 years
disabling conditions, if any, in the order of severity.     and seen countless orthopedic surgeons and physical
Thus, a person having a 60 percent disability is            therapists. I have never seen an “indispensable”                               t          TOC    u                                          Page 111

instrument to accurately measure the degree of                 he nearly froze to death (I hear it got a bit chilly in
limited motion as required. In the couple of instances         the winter there) before he could be evacuated to
where I’ve mentioned it to an examiner, they looked            medical care. His Purple Heart is testimony to his
at me as if I had suddenly started babbling some               heroic service. He volunteered at the local VA hospital
lost variant of an ancient Chinese dialect. The                when he was able to, served with DAV, worked with
absence of this important tool that is seemingly               local ROTC kids and a lot more, when he could.
a priority requirement for VBA has never been                  Lately he can’t do so much of that, his injury to his
questioned. In evaluating my claims, VBA has always            leg caused him to walk with a bad limp for over
used the measurement that was most favorable                   half a century and that affected his back. After back
to denying my claim. My personal measurements                  surgery, hypertension, chronic pain, and allergies
of limited range of motion have been eyeballed                 to medicines finally slowed him down, he asked for
by an assortment of concerned professionals and                an increase in his modest VA Disability Benefit.
the results of each report have varied by up to 50
degrees. My last orthopedic examiner never actually            VA wrote him back and asked for a little history under
looked up at me from the computer where he was                 § 4.41. They need to have him provide them with
typing in my complaints. I won’t recognize him in              dates of medical treatment for his injury to include
the hallway in the future, I only saw his back. (His           the exact name of the hospital, dispensary or any
strategy, perhaps?) There was no reason to disrobe,            other facility where he was treated for his combat
no reason to flex my painful joints as it was all there        inflicted gunshot wound 56 years ago along with his
in the computer and only needed to be refreshed                rank and division, regiment, battalion and company.
for the current date. Interestingly, on later review           The VBA also demands statements of those who
of my records (I always do that) his evaluation and            knew him at the time and those statements must
summary of my condition was the most accurate I’d              include their name, rank, service number, company,
ever received. I like him…I wish I knew who he was.            etc. and what they were doing at the time of the
                                                               injury and how they knew of his injury and where
~~~~~~~~~~~~~~~~~~~~~~~~~~~                                    they were. Then he should gather up the personal
~~~~~~~~~~~~~~~~~~~~~~                                         statements of the treating medical personnel, nurses,
                                                               corpsmen, medics, etc. and they should elaborate
§ 4.41 History of injury.                                      how they treated him 56 years ago. It gets easier,
                                                               all that’s left are pharmacy reports of prescriptions,
In considering the residuals of injury, it is essential to     insurance exam reports and any and all other medical
trace the medical-industrial history of the disabled           records that exist for the last 56 years leaving out
person from the original injury, considering the               no dates. And then, they may consider giving him
nature of the injury and the attendant circumstances,          a modest increase in his disability benefits.
and the requirements for, and the effect of,
treatment over past periods, and the course of the             He has a wartime combat service connected injury
recovery to date. The duration of the initial, and any         caused by an enemy bullet. He has a Purple Heart. The
subsequent, period of total incapacity, especially             medical nexus of shattered thigh and a pronounced
periods reflecting delayed union, inflammation,                limp to a bad back 56 years later is crystal clear even
swelling, drainage, or operative intervention, should          to a beginning student of basic first aid techniques.
be given close attention. This consideration, or the
absence of clear cut evidence of injury, may result in         What was it that § 4.3 said? “When after
classifying the disability as not of traumatic origin,         careful consideration of all procurable and
either reflecting congenital or developmental                  assembled data, a reasonable doubt arises
etiology, or the effects of healed disease.                    regarding the degree of disability such doubt
                                                               will be resolved in favor of the claimant.”
I’m currently working on the disability claim of a
Korean War Veteran. About 56 years ago he was                  Yeah, right. If you believe that…
shot in the right thigh. The bullet shattered bone,
severed arteries and left him hospitalized for about
3 months. Incapacitated after being wounded,                   09/25/2006 Benefits Basic 09/25/2006                             t          TOC    u                                         Page 112

Compensation and Pension                                     their schedule along. If you must reschedule, do it
Examination (C & P, C and P)                                 far in advance. Be careful that you don’t telegraph a
                                                             message to them that this isn’t important to you.
Benefits Basic Training exercises may sometimes
seem repetitive if you’re a regular reader. Some of          How you present yourself the day of the exam is
the material is repetitive. There’s a lot of crossover       vital to what the examiner will write about you.
in various disciplines such as medical records and
medical examinations. I’ll try to keep it interesting, I     Be aware that you are presenting yourself at an
get good feedback with these ‘Boot Camp’ articles.           appointed time to be evaluated for a disability. This
If you know this stuff already, great. If it’s new           provider won’t treat you or prescribe medications
to you, I’m glad you stopped by. Comments and                or listen to stories. Your exam may start earlier and
questions…and corrections too, are always welcome.           you won’t even be aware of it. On the way to your
                                                             appointment, you may stop in to a fast food place
You’ve filed your claim for benefits. Within weeks           near the hospital for a quick lunch. Bounding from
you’re notified of an appointment at a Veterans              your car and getting in line, you order up a combo
Heath Administration Medical Center advising you to          meal and remark to the guy next to you that you’re
report for a Compensation & Pension (C&P) exam.              about to face an ordeal but you’re sure you’ve got it
                                                             beat…you elaborate a bit on your more-than-usual
Now what? What is this C & P exam and                        pronounced limp to your new friend, grab your lunch
how important is it to your claim?                           and soon you’re off to the designated meeting place.

If you’re like many Veterans, your medical records           You never realized the lady behind you in
may be sketchy and have gaps leaving unanswered              that line was your C & P examiner. She saw
questions concerning details of your claim. Records          you looking hale and hearty about 2 hours
may have been lost, you may have been treated                ago and now you’re moaning and groaning,
at a field hospital and sent back to duty with little        barely able to walk your back hurts so bad.
formal record of that event. The C & P exam is one
way of determining if your claim is valid and that           There are a couple of lessons to be learned here.
there exists, in the opinion of the examiner, the            First, never fake it. Don’t try to convince these folks
objective medical evidence to support the diagnosis,         of symptoms you don’t have. This isn’t their first day
the severity and the nexus to a service connected            on the job and there have been many attempts to
event causing or aggravating your condition.                 deceive them before you came around and they see
                                                             right through it. Then be aware your exam may begin
In the final analysis this may be the most important         in the parking lot or entryway into the hospital.
step you’ll take in providing the Veterans Benefits
Administration (VBA) with enough evidence                    Always have a driver, even if you wouldn’t ordinarily
to award you your benefit in a speedy fashion.               need a driver, you may be nervous about your
This C & P examiner doesn’t make the decision                upcoming test and more likely to cause an accident.
about your claim, that’s still up to a Ratings               If you sometimes use a wheelchair or other assistive
Specialist in VBA. That Ratings Specialist is likely         device for mobility, use it now. This isn’t the time
to grant a lot of weight to this report and it’s             to show how brave or tough you are and how you
your duty to be prepared for your C&P exam.                  can do without your prescribed assistance. The
                                                             examiner should see you at your worst, not at your
This bears repeating, I‘ve said this before; don’t           best. I’d caution you again that you never want to
miss this exam. If the timing is inconvenient, make          deceive these folks but you do want them to see
it convenient. Be early by at least an hour or more.         the reality of your problems. If the examiner asks
Don’t be 15 minutes late and complain about the lack         you to partially disrobe and you usually need help
of parking, they’ve heard it all before. The examiners       getting shoes or shirt off and on, ask for assistance.
don’t accept walk-ins like at some specialty clinics
and if one or two people ahead of you didn’t show,           When you’re called in for your meeting with
they’ll appreciate you being early so they can move          the provider, the first question you might                               t         TOC    u                                           Page 113

hear is, “How are you today?” If your response                How is your condition being treated? Details of
is an automatic, “I’m fine doc, never better!”                treatment - type, dose, frequency, response, side
you may have made a fatal mistake.                            effects are necessary. Here the most overlooked
                                                              details are side effects of treatments. Do the
You have about 40 minutes or less for this person to          medicines make you nauseous? Do you become dizzy
hear your history as you want them to understand              or sleepy? Does a medicine make your mouth dry?
it. Don’t waste their time with idle talk. Be as brief as     Have you lost or gained weight? Without these details
you can and make points relating to your condition.           the Ratings Specialist isn’t likely to favor your award.
Go in with notes in hand that you made a day or two
prior to the exam. Have a copy of those notes to leave        Are there periods of flare-up of your joint
with the doctor. Don’t bring your entire medical              problems or is it usually a constant problem? If
record with you. If you have some papers that may             there are flares, what are their severity, frequency,
not have ever been seen before and they’re directly           and duration and what are precipitating and
relevant to your condition, bring copies, not originals.      alleviating factors? Do periods of a flare of your
                                                              disease result in additional limitation of motion
Often enough the examiner is only interested in you           or functional impairment during the flare-up?
today and won’t even look at your record. Those
immediate impressions will be recorded and used               You get the idea. It’s up to you to provide
in the process of making the decision to award                detailed and precise comments to the C & P
or deny your application for disability benefits.             examiner that are in a language VA likes to
                                                              use. It’s handy that VA has provided all that
Prior to the meeting, understand what the examiner            language for you in detail at the provided link…
is going to look for. There are some 57 Disability            it makes it seem like an open-book test.
Examination Worksheets that are in use today by VA
C & P specialists. They cover almost every imaginable         Before you write to tell me you shouldn‘t have to do
bodily malfunction in great detail. From acromegaly           all this, yes, I agree it should be the responsibility of
to thyroid disease the VA has nicely cataloged all            the C & P examiner to provide these details as they ask
the signs, symptoms and lab reports for us. To                you questions and write their notes for your record.
view these worksheets, follow this link http://www.           In a perfect world, it probably is incumbent upon                    them to see that all this gets done in the fashion that
                                                              will satisfy a Disability Ratings Specialist. That’s what
Let’s assume you injured a joint of the shoulder,             they get paid for. It’s not a perfect world though and
elbow, wrist, hip, knee, or ankle while on active             reality dictates that you’re in a fight for these benefits
duty and you’re making a claim based on that                  with a very tough and experienced opponent.
injury. You know it hurts, it’s kept you awake
at night and it’s interfering with your ability               You have to play by their rules. Learn the drill and
to accomplish tasks at home and at work.                      learn the language and go in prepared. When you go
What do you tell the doctor about that?                       in prepared with notes and knowing what to say and
                                                              what not to say, you make their task of awarding that
You must provide them with details exactly as                 disability benefit to you easier for them. Do their work
they want to hear them and as they apply to your              for them up front, overwhelm them with the details
condition. It’s not enough to say, “It hurts a lot doc”.      of your personal disability and they’re much more
                                                              likely to process your claim quickly and favorably.
You’ll want to describe pain, weakness, stiffness,
swelling, heat and redness, instability or giving
way, "locking," fatigability, lack of endurance, etc.
Fatigability is often overlooked by the Veteran patient;      09/11/2006 Depleted Uranium, DU,
does the pain cause you to tire out easily or do you          Radioactive, Nuclear, Atomic
find you can’t complete some tasks because you’re
‘just worn out’ due to pain? That’s an important detail.      Depleted uranium (DU) has caught your attention
                                                              and generated some mail for me recently. Veterans                             t         TOC    u                                          Page 114

are hearing more buzz about their risks and want            being shot and killed on American college campuses
to know who to turn to for meaningful information.          by uniformed young American troops and terms like
More than anything else, Veterans want to know              “body bag” and “napalm” entered our lexicon as we
if they should be concerned or if they can believe          heard the daily reports of enemy and American KIA.
what Department of Defense (DOD) and the
Department of Veterans Affairs, (VA) are telling them.      We had never fought a war like this before, there
                                                            were no front lines and we couldn’t see the enemy
Depleted Uranium is a by-product of the process             in a country that had few spaces that weren’t
of creating nuclear energy or making weapons. Its           lush, thick jungle. We wanted a war that was more
radioactivity is low and brief exposure probably            conventional and an enemy we could see so we
isn’t as hazardous as a dental x-ray. It’s a super hard     decided to turn the landscape into something we
material that makes it ideal for weapons designed to        understood…a treeless clearing that would expose
penetrate heavy armor or in the obverse, building           the enemy and force the fight to be on our terms.
heavy armor that’s impenetrable to conventional
weaponry. The health hazard comes in not from               In 1961, the United States began spraying herbicides
brief exposure but from breathing fumes or inhaling         to defoliate the jungles of Vietnam. Agent Orange
microscopic fragments when DU is used as intended.          was the most heavily used of the rainbow of dioxin
Sucked into your lungs it stays there emitting its          laced defoliants. It’s said that American pilots
radioactive particles…forever. Imbedded shrapnel            quipped, "Remember! Only you can prevent forests!",
in human tissue is a no-brainer, retaining “souvenirs”      while they flew over hundreds of thousands of
from the battlefield and taking the stuff home              acres spraying thousands of 55 gallon drums of
secretively is a known issue too…soldiers have done         AO. In 1969, the extensive use of herbicides was
that since before the Romans conquered their world.         halted after a National Institute of Health report
                                                            concluded that dioxin caused stillbirth in mice. It
Today, DOD & VA are telling us that we needn’t              was in about 1971 that the last gallon or two of AO
worry, we should be happy! They’re aware of all             was used. Today dioxin use is banned worldwide.
the potentials and have a handle on everything.
Hmm, there’s that strange and annoying feeling              It was about 1978 that the VA began to receive
again…it’s like I’ve been here before.                      claims from Veterans who said that their health
                                                            problems were as a result of their exposure to AO
I’m a curmudgeon and a cynic and I’m proud of it. I         while serving in RVN. In 1979 Congress enacted
have a reliable built-in detection system that alerts       Public Law 96-151 and ordered VA to conduct
me if someone is trying to be less than straight-           a study to determine if exposure to AO had
up with me. This isn’t a complex system, it’s been          caused health issues for the RVN Veterans.
perfected over the years by paying close attention
to the historic behavior of the individual or entity        We Viet Nam era Veterans have a collective memory
sharing information with me today. If they weren’t          that tells us that soldiers, sailors, Marines and
open and truthful back then, I doubt they will today.       airmen were hardly ever instructed in the safe
                                                            use of dioxin compounds and at the same time
One of the many advantages of being 57 years old            we were assured that it wasn’t going to hurt us.
is that I remember the 1960s well. There was a little       Military service carries risk and there’s a strong
conflict going on in a small country on the other side      macho component that makes us shrug off danger,
of the globe no one had ever heard of. America was          particularly if our leaders are promising us that
sending in advisors to assist the good guys in their        we’re safe. So, many of our 17, 18, 19 year old
fight against the evil of communism because for some        troops lit a cigarette (provided in our rations…they
reason the French had pulled their military out.            were good for you) and strapped on a backpack
                                                            sprayer of AO and went out to kill some jungle.
In a flash we were up to our eyeballs in a fight most
of us didn’t understand and the happy days of the           Accurate records of exposure are non-existent. We
early 60s were suddenly replaced with images of our         aren’t even sure if we used 19 million gallons or 21
country torn in two. Young American students were           million gallons. Until the late 1980s there was still                              t        TOC    u                                         Page 115

debate as to whether there was even a problem.              who served where DU may have been used?
At a 1983 convention, the American Medical
Association (AMA) offered a resolution calling for a        In answer to you who have asked me, “Can
public information campaign on dioxin to "prevent           we trust the information we’re getting about
irrational reaction and unjustified public fright." The     our exposure to Depleted Uranium?”, the
AMA said that, "The news media have made dioxin             answer is a very firm, “No, you can not.”
the focus of a witch hunt by disseminating rumors,
hearsay and unconfirmed, unscientific reports…"             Once again, our government is reactive, not
                                                            proactive and more concerned with partisan
Problem? With Dioxin and Viet Nam troops?                   politics than aiding a Veteran. If you have been
What Problem? We see no problem. It’s                       exposed or if you have been in any arena, combat
only those whining Veterans again.                          or otherwise, where you may have been exposed,
                                                            you must seek out and demand information to help
Today we know that we were lied to. There’s                 yourself. Don’t wait until this becomes another
no other way to phrase that and make it more                Agent Orange debacle. Don’t act surprised as your
palatable. Our government failed us by refusing to          health deteriorates twenty years from today and
act in a timely fashion to collate records, contact         some doctor tells you it’s caused by DU exposure
Veterans, establish information centers and                 and “If you’d only gotten treatment earlier…”.
health screening programs and to recognize and
adequately compensate those who were harmed.                You have to become politically aware and active
                                                            and let your representatives at every level know
If you’ll take a walk through a VA Medical Center with      you aren’t going to be silent. Demand a registry,
me today you’ll soon become aware of the enormity           demand federal screening programs and don’t
of it all…the halls are blanketed with Veterans being       accept anything less than the best. You gave your
treated for cancers, diabetes, nerve diseases and more      best, it’s now time some of that is returned to you.
and they are all “presumptive” to be related to AO
exposure. More come forward or die quietly every day.
                                                            10/06/2006 Doctor Letter, Nexus,
None of those Veterans had any prior notification           Medical Record, Template
of anything they could do to help themselves.
Although there are numerous AO programs                     We’ve addressed how you must take a lot of personal
available today for RVN Veterans, they continue to          responsibility for providing evidence to support
be passive; the Veteran has to seek them out and            your claim to the Veterans Benefits Administration
ask for help, VA does not seek out the Veteran to           (VBA) in which you claim the conditions exist for
notify them of programs available to assist them.           you to be awarded disability benefits. We know
Are you aware that a large group of Korean Veterans         it’s usually easier for you to seek out medical
may have dioxin exposure? No, probably not…the              records rather than hoping VA or your Service
VA isn’t shouting that from the rooftops either.            Officer will do it for you. We know that you must
                                                            gather copies of your medical records together and
The DOD says, “The voluntary Veterans Affairs               review them yourself to ensure there aren’t errors
Depleted Uranium Medical Follow-up program                  that would undermine your plea for benefits.
remains the most important source for identifying
potential untoward health effects…”. “Voluntary”            The point comes when you’ll need a “Doctor Letter”.
means that you have to hear about it from a friend          This letter is above and beyond the data provided
or stumble across it on the Internet, much like             in your records or the report that a Compensation
the Agent Orange Registry in current use, VA isn’t          & Pension (C&P) examiner might write. The primary
going to the trouble to urge you to participate.            care provider who sees you and coordinates your
                                                            care is a very important voice in your benefits
How many of you knew (until you read that                   claim. A letter from this provider will carry a lot
sentence above) that VA is conducting a                     of weight and could make a difference in your
Medical Follow-up Program for those of you                  speedy and just award. This is true for a civilian                                t       TOC    u                                          Page 116

primary care provider as well as your VA provider.           You’ll be writing this from the perspective
                                                             of the provider. This can get a bit tricky so
There is the constant rumor in VA circles that primary       pay close attention to your work and have a
care physicians aren’t allowed to assess or report           friend or family member proof it for you.
their opinions about your disability. Like so many
other of the “rules” and “law” we get quoted to us,          The opening may be addressed as follows and does
that one isn’t correct. VA employees often discourage        not have to be addressed to VA. The first paragraph
their physicians from becoming involved in writing           or two are routine and serve to establish credentials
lengthy letters because it’ll put them behind schedule       and knowledge. The body contains some details and
and may cause extra work for the employees that              the end brings us to the provider’s conclusions.
have to support the providers. VA docs don’t often
have access to transcriptionists and typing pools            Date : 01/01/ 2006
and dictation stations so if they’re to provide you a
letter, how does it get done with a minimum of fuss?         Subject: Medical history of
                                                             John or Jane Doe
That’s pretty easy…you do the letter yourself. You           The Doe’s Address
then ask your provider to review it with you and
sign it. We’ve covered some of this before and as            Reference: C-File # and/or SSN
I’d noted then, most providers are happy to sign a
well written, truthful and to the point document.            To who it may concern:

Before you yell at me…this is a perfectly legitimate         I am the primary care provider for John Doe. In my
process. You aren’t putting words in the doctor’s            capacity as a primary care provider at the Eastern
mouth and you aren’t asking your provider to make            Regional Central Western Veterans Administration
any statement that isn’t true and verifiable. All            Clinic, I have cared for Mr. Doe since 01/01/2001.
you’re doing is greasing the skids so that the process
of getting good information about your medical               While I’ve provided care for Mr. Doe, I’ve become
condition to the VBA is a smoother one. In fact, you’re      familiar with his medical history, past and present
making a contribution of your labor to VA and saving         ailments and I’ve reviewed pertinent parts of his
them time and money. This is legal, it assists you in        military record that document his injury, disease and
gaining benefits, saves the VA some tight budget             clinical conditions related to the events that occurred.
dollars and is non-fattening, a winner all around.
                                                             I am aware that Mr. Doe was (injured, got ill,
Having said all that, don’t tell any of the staff you’re     sustained harm) during his active duty military
asking your doctor to sign a letter for you. They’re         service on or about 01/01/1976. The results of this
likely to try to convince you he can’t do that or            (injury, illness) have been long lasting and his
she doesn’t have the time or that it’s against the           condition has worsened as he has gotten older.
law. Wait until you’re comfortably in a private
setting and ask if you may address the issue of              For the past (state a period of time your condition
some forms with him. Let her know how important              has worsened) Mr. Doe has suffered (increasing
this is to you and promise to make it quick.                 pain, inability to walk, shortness of breath,
                                                             name your symptoms here) and continues
Here are a few of the basics to get a good document          to undergo treatment by me and specialty
written. I’ll assume that you’ll produce a neatly            clinic (ortho, neuro, podiatry) physicians.
typed, spell checked document that looks as
professional as you can get it. Don’t play with fancy        Mr. Doe’s treatments and medications are as follows;
fonts or scripts, no attempts at letterhead designs
are necessary or desirable. Brevity is best, keep it all     Name a treatment (Example; Physical
short and sweet and direct. Stick with basic business        Therapy, how often, etc.)
style formats and it’ll be received a lot better.            Name a medication (Side Effect)
                                                             Repeat until you have it all listed.                              t         TOC    u                                          Page 117

I have observed that Mr. Doe has challenges with             who affixes a signature to this will want it to be
functions of daily living and requires assistance in         point-on to your condition and isn’t likely to sign
grooming and hygiene such as combing his hair or             it if you’ve over-inflated your problems. At the
bathing. Mr. Doe is not able to prepare meals for            same time, don’t leave out the smallest detail. Your
himself although he is able to feed himself. He is           pain is very important and you should describe it
unable to participate in housecleaning activities            in very certain terms. Is it aching, stabbing, deep,
and requires someone to do his laundry and dishes            all the time or burning? Does pain cause you to
and generally keep his environment clean for him.            lose sleep? Are you angry or losing your temper
Mr. Doe is sometimes able to complete bladder                because of the level of pain? How does pain affect
and bowel activity unaided but there has been                your family or your ability to get along at work?
an increasing frequency of soiling accidents.
                                                             Not all providers will welcome this. A lot depends
Mr. Doe has chronic pain due to his injury and               on your relationship with your provider. They’re
requires (name medicine) which often has a side              human too, if you’ve been a “good patient”; on time
effect of dizziness and nausea. His pain level is often      for appointments, compliant with medications and
quite high with reports of 8 on a scale of ten.              treatments and friendly with the doc and the staff…
                                                             you’re much more likely to succeed here than if
Mr. Doe has hypertension that requires (name                 you’re one of the complainers and fault finders.
medicine) and this medicine can have the side effects
of a slower heart rate or dizziness as well as frequent      Maybe it’s time to think about it before you
and urgent urination. Mr. Doe must always be near a          need that letter…where do you fall in those
restroom in case of an urgent need to use that facility.     groups? If you can’t honestly say “good patient”,
                                                             you may be working against yourself.
Mr. Doe gets very fatigued because of the pain that is
caused by any strenuous activity. Mr. Doe is unable to       10/11/2006 Reasonable Doubt
lift more than 5 pounds consistently and can not push
or pull more than 10 pounds consistently. Standing           I’m depressed. Maybe. Or not. Maybe I’m just really
for long periods of time (more than 10 minutes) will         frustrated. Probably I’m just pissed off. I get that way
make him become weak and dizzy. He is unable to              sometimes; pissed off at the world. Really down deep
reach overhead or to bend at the waist to retrieve           to the bone pissed off. A couple weeks ago a young
fallen items. Either action will upset his equilibrium       dentist told me to stop clenching my jaw or I’d soon
and may cause him to become dizzy and fall.                  break a tooth. “Get a bite block”, he says. Like he has
                                                             any clue what causes my jaw to be tight that day. He
I have examined Mr. Doe’s chart and medical record           got lucky, my jaw didn’t clamp down on him when he
and it is my opinion that there is a medical nexus           had his hand crammed in my mouth. It was tempting.
between Mr. Doe’s active duty service connected              So I’m not depressed, maybe I’m just mad as hell and
injuries and his disability of today. It is also my          I don’t want to take it any more. That must be it.
opinion that Mr. Doe is totally and permanently
disabled, can not hold gainful employment and                Here’s a sampling of mail this week…(Names
is not a likely candidate to be rehabilitated.               have been removed and I’ve corrected a
                                                             misspelling/typo here and there, otherwise,
Signature Block Date                                         these are quoted accurately for intent.)

Address of Clinic/Hospital                                   “I am a 100% disabled Vietnam Vet with Lung
                                                             Cancer from exposure to Agent Orange. I don’t
You’ll obviously have to modify the above to fit             have long to live and need VA’s help.”
your personal situation but the outline as you see
it is effective. Get it signed, make some copies and         “Well, my case was denied and the
submit it as evidence to support your claim. The             C&P did not bear any weight.”
points you should remember are that you don’t
want to exaggerate your condition…the doctor                 “My son applied for chapter 35 benefits and all                              t          TOC    u                                           Page 118

hell broke loose. On Sept 22 I received a letter              in favor of the claimant. See §3.102 of this chapter.
from my VARO saying that they sometimes re-                   [40 FR 42535, Sept. 15, 1975]
exam certain disabilities to make sure they are
evaluated correctly and that I will be getting a C&P          § 4.10 Functional impairment.
Exam shortly. I’ve been told that if I don't show up
for this exam they will reduce my payments even               The basis of disability evaluations is the ability of the
though I am permanent and total and have a letter             body as a whole, or of the psyche, or of a system or
saying I would not have future medical exams.”                organ of the body to function under the ordinary
                                                              conditions of daily life including employment.
“My husband has non small cell lung cancer                    Whether the upper or lower extremities, the
and was diagnosed terminal in December of                     back or abdominal wall, the eyes or ears, or the
2000 and given 6 months to live. He is on his                 cardiovascular, digestive, or other system, or psyche
6th year and has given 26 cycles of chemo and                 are affected, evaluations are based upon lack of
two different radiation treatments. He filed with             usefulness, of these parts or systems, especially
the VA over a year ago and received service                   in self-support. This imposes upon the medical
connected with 0% rating from the VA. My VSO                  examiner the responsibility of furnishing, in
says there‘s nothing we can do, it’s the law.”                addition to the etiological, anatomical, pathological,
                                                              laboratory and prognostic data required for ordinary
“I'm 62 with a 50% disability a 40% and 10%.                  medical classification, full description of the effects
Equaling 70%. Additionally I am on IU. This                   of disability upon the person's ordinary activity. In
was approved effective July 2004. They sent                   this connection, it will be remembered that a person
me a form in March to ask me if I'm working,                  may be too disabled to engage in employment
which I'm not. My question is when do I not                   although he or she is up and about and fairly
have to worry about another C&P exam.”                        comfortable at home or upon limited activity.
                                                              [41 FR 11292, Mar. 18, 1976]
To care for him
who shall have borne the battle                               If you read any of that above, you
and for his widow, and his orphan                             understand my anger tonight.

Abraham Lincoln                                               “When after careful consideration of all procurable
March 4, 1865                                                 and assembled data, a reasonable doubt arises
                                                              regarding the degree of disability such doubt
“President Lincoln’s words have stood the test of             will be resolved in favor of the claimant.”
time, and stand today as a solemn reminder of VA’s
commitment to care for those injured in our nation’s          What is ‘reasonable doubt’? Let’s do a Google
defense and the families of those killed in its service.”     search and scratch up a few definitions. Keep in
(From the VA web site, ‘The Origin of the VA Motto’           mind that Commander Bradley S. Barton, Esq. of the                              Disabled American Veterans wants you to believe
celebrate/vamotto.asp )                                       that the disability claims process at VA is a “largely
                                                              administrative claims process, which is designed
Title 38: Pensions, Bonuses, and Veterans' Relief             to be open, informal and helpful to veterans.”

§ 4.3 Resolution of reasonable doubt.                         Reasonable doubt is defined as;

It is the defined and consistently applied policy of          “The degree of certainty beyond which the
the Department of Veterans Affairs to administer              Commonwealth must prove its accusations
the law under a broad interpretation, consistent,             in order to obtain a criminal conviction.”
however, with the facts shown in every case. When
after careful consideration of all procurable and             “Reasonable doubt refers to the level of certainty
assembled data, a reasonable doubt arises regarding           that the judge or jury needs to have before
the degree of disability such doubt will be resolved          finding an individual guilty. The judge or jury                              t          TOC    u                                           Page 119

must be satisfied that no reasonable person                   had a handful of C & P exams performed on me and
would doubt that this person is guilty.”                      in every instance a device known as a goniometer
                                                              is required to be used to accurately measure my
“The standard of proof that must be met to prove a            ability to raise and flex my arms. I’ve never seen a
criminal case. If a jury has reasonable doubt about           goniometer and when asked, most examiners have
the defendant's guilt, they must acquit that person.”         no idea where they could find such a tool. The reports
                                                              that an examiner gives rarely have in them the
“Burden of proof is the obligation to prove allegations       language the ratings specialist wants to see to grant
which are presented in a legal action. The standard           a disability benefit. The examiner and the rater may
of proof is the level of proof required in a legal action     say the same thing but each uses a slightly modified
to convince the court that a given proposition is true.       verbiage and the result is a denial of benefits.
In common law jurisdictions the standard is one of
two types, either it is on the balance of probabilities       There you have it. That’s why I’m really
(BOP) or it is beyond a reasonable doubt (BARD).”             tight-jawed and pissed off.

And finally…                                                  I’ve been lied to. We’re being lied
                                                              to. The lying will continue.
“Reasonable Doubt was rapper Jay-Z's debut
album, released on June 25, 1996. Though                      I don’t like a liar very much. I take it awfully personal
commercially and critically successful, the album,            when someone is peeing on my boots and telling me
and Jay-Z, were overshadowed by the Death                     that it’s raining. It’s another flaw of my already flawed
Row vs. Bad Boy rivalry that was then current.”               personality…I have a hard time forgetting or forgiving
                                                              someone who has lied to me. Lying to me insults my
(I didn’t care for the album that much if truth be            intelligence and leaves me feeling abused and forever
known…Jay-Z did much better work early in his                 cheapens everyone associated with the process.
career before fame took a lot of the sharp edge of
his style. But that’s another story for another day.)         I was reminded a day or so ago by a reader
                                                              of the 3 great lies. You know them, “The
Want more? Click here                      check is in the mail.” “Of course I’ll respect
com/search?hl=en&lr=&defl=en&q=define:                        you in the morning honey.” “We’re from the
Reasonable+doubt&sa=X&oi=glo                                  government and we’re here to help you.”
                                                              Here’s another great lie for you…
So all a Veteran must accomplish to win his or her
just award is to provide a bit of reasonable doubt            If a reasonable doubt arises regarding the degree of
to our warm and fuzzy, friendly and fair minded               disability such doubt will be resolved in favor of the
benefactors and we get our deserved benefits.                 claimant and it will be remembered that a person may
But, if this is an “open, informal and helpful” and           be too disabled to engage in employment although
non-adversarial system, why am I reading all                  he or she is up and about and fairly comfortable
those lawyerly words like, “guilty”, “accusations”,           at home or upon limited activity proving VA’s
“conviction”, “jury”, “acquit”, and “criminal”?               commitment to care for those injured in our nation’s
                                                              defense and the families of those killed in its service.
“This imposes upon the medical examiner the
responsibility of furnishing, in addition to the              Those words above are culled from the chapter
etiological, anatomical, pathological, laboratory             and verse pushed into your face by an entity
and prognostic data required for ordinary medical             that finds you guilty from the start and requires
classification, full description of the effects of            that you prove your innocence as you kneel
disability upon the person's ordinary activity…”              before them. “Tie her and then throw her in the
                                                              river, if she drowns, she is probably innocent.”
If the medical examiner is required to do all that, why       The good but slightly disturbed citizens of
are so many C & P exams essentially worthless? I’ve           Salem left a fine legacy of logic for VA to use.                             t          TOC    u                                          Page 120

Maybe all of those “free” grave markers VA so readily        appear as if from thin air and as the group approaches
provides us should read, “I Told You I Was Sick”.            exit 8, mile marker 8 in South Carolina, the occupants
                                                             of the cage notice something else; most of these
An “open, informal and helpful to veterans” process?         bikes are flying flags. American flags and POW/
I know better, Commander Bradley S. Barton, Esq. of          MIA flags and Marine Corps flags and Army flags
the DAV. I know better and so do all my brother and          are everywhere. Teddy Bears bungee strapped to
sister Veterans who have experienced the nightmarish         luggage racks are holding on tight to their little
quality of a trip through VA’s version of Neverland.         flags and some huge machines have mounted on
Earlier I quoted a Vet who said, “I'm 62 with a 50%          them engineering marvels that support tall heavy
disability a 40% and 10%. Equaling 70%.” He added a          wooden poles with flags that appear to be over 6 feet
50 and a 40 and a 10 and he came up with a 70 and he         long. The gunshot sounds those flags make as they
didn’t bat an eye because that’s how VA does math.           whip and crack in the cold wind at 75 MPH can be
                                                             heard even over the constant roar of the engines.
And tonight, that really pisses me off.
                                                             The bikes slow and exit and congregate at Joker
10/26/2006 Escorting the Vietnam Wall,                       Joe’s. First there are 40 or maybe 50, then 70 and
South Carolina, Motorcycling                                 then suddenly the lines of motorcycles at the pumps
                                                             topping off fuel, checking tires, ensuring that all
October 24th 2006, 9:00 AM --                                fluids are just right becomes surreal. Why are all
                                                             these people here? Didn’t anyone tell them it was
Joker Joe’s Truck Stop at exit 8 northbound on that          going to be way too cold to go for a motorcycle ride
stretch of Interstate 95 from Georgia crossing into          today? What could possibly motivate the now 200
South Carolina was cold. I’d seen patchy frost since         or so motorcycles and their riders and passengers
I left Savannah and I was hearing reports of 39 and          to put themselves through this? There are enough
40 degrees. On a motorcycle the wind chill factor            law enforcement officers here to protect and serve
makes it seem much colder. Even with leather jackets,        a mid-sized city. The South Carolina Highway
heavy chaps, gloves, fairings and windshields, the           Patrol is there in force on 2 wheels and 4. Sheriff’s
cold is a constant threat that causes a rider to be less     deputies and locals and even off-duty officers
alert and critical reaction times to slow down. The          riding with their exclusive police-officer-only club,
“cages”, a biker’s euphemism for cars and trucks,            The Blue Knights are fired up and waiting to roll.
don’t notice the cold as they’re passing within
inches of the motorcycle at 75 MPH. They have their          With little or no direction, all these people are falling
Starbucks French Roast-Half Mocha-Soy Latte Grande           into a well disciplined formation, lining up for the
in one hand and a cell phone in another with some            mission as if it were a familiar task. You’ll hear that
XM radio coming through the 8 speaker sound                  word “mission” at these sorts of gatherings a lot, it has
system and just as they didn’t notice the chill in the       a recognizable and comforting sound to it. They’ve
air, they aren’t really aware of that biker bent over        taken care of their physical self, seen that their high
the handlebars of his ride over in the other lane.           powered and dangerous machines are fueled and
                                                             ready to go, they’ve called everyone at home to let
As they cross the Savannah River Bridge into South           them know where they are and that all is OK so far
Carolina, the driver of that car can’t help but notice 4     and they wait. The medics and chase trucks and repair
more motorcycles entering the highway and noisily            teams keep quietly to themselves, hoping that they
accelerating up to and past the speed limit. Another         have an uneventful day. They wait for leaders to issue
minute flashes by and that car’s passenger comments          commands in the pre-mission briefing and they drink
on the number of motorcycles that have just exited           bitter coffee and smoke a last cigarette and they make
the South Carolina rest area and are now assuming            small talk with people they had never seen before
their places in a 2-up, side-by-side formation on I-95       this morning and likely won’t see again after today.
north. It’s an eclectic group of about 40 bikes now,
Harleys and Hondas, BMW’s and Triumphs…baggers
and crotch-rockets and trikes and they’re all reaching       At the front of this busy truck stop is the reason
steady speeds of 80 MPH and more. More motorcycles           that all these citizens are here this morning. The                             t        TOC    u                                          Page 121

tractor-trailer truck, that American flag painted 18       ahead of us and that other motorcycles are waiting
wheeler parked over there is carrying a replica of         there to join us. At this entrance there are 3, the next
the Viet Nam Memorial Wall. It’s about ¾ the size          ramp shows a dozen and so it goes. Within an hour
of the real thing that’s located in Washington, D.C.       of departure the line of bikes stretches ribbon-like
It’s made of “faux granite” rather then the good           to the horizon to the front and rear. I’ve given up
stuff. It can be assembled and reassembled and             trying to guess how many bikes are in our formation.
packaged up in its trailer and hauled just about
anywhere in America, enabling tens of thousands            About 2/3s of the way we took a break for refueling.
of Americans who will never be able to experience          It was supposed to be about 20 minutes and turned
The Wall in Washington to participate in that              into an hour and 20 minutes. That too was a familiar
singular experience of seeing some 58,000 names            feeling. The grumbling and bitching and griping
of our fallen brothers and sisters inscribed there.        about the delay and questions as to what was going
                                                           on were all too well known to us. Hurry up and
Today the “Mobile Memorial” is on it’s way to              wait was a theme we knew and could deal with.
Columbia, South Carolina for display. Bikers have been
invited, mostly through word of mouth, to saddle up        It startled me a bit when I noticed the first gathering
and escort that truck from exit 8 right into Columbia.     of people at an overpass. As we rode under they
It’s 100, maybe 150 miles one way for us. That’s not       were waving, smiling and had draped an American
far under ordinary riding circumstances. It becomes a      flag above us. Southbound truckers were blasting
challenge in an event like this one. The South Carolina    their air horns and flashing lights at us. Along the
Highway Patrol is escorting the truck, the Blue Knights    side of the highways entire families had pulled over
are falling in behind it and we’re to pull in behind       and were waving…some children saluted. Many
them, 2 by 2. Police on bikes and in patrol units and      had their right hands over their hearts for our flag
command vehicles and even helicopters will guard           displays. As we pulled into Columbia and traffic came
and guide us as we go. Refueling stops are assigned        to a crawl, many just sat in their cars and passed on a
in advance and signals from police car sirens will         thumbs-up as they yielded their right-of-way to us.
be used to keep us informed as to departures. With
a final briefing and a prayer (Praying is still legal in   We had departed at 10:00 AM and it was now 2:30
truck stop parking lots in South Carolina.) for safety,    PM and we had finally delivered The Wall to its spot
we start our engines and proceed on our mission.           at the cemetery. We were then escorted over to
                                                           the Columbia Harley Davidson dealer’s new shop
The Highway Patrol has closed most of that part of         and treated to lunch and coffee and we shook a
I-95 for our entrance. As we sort out riding positions     few hands and quickly went our separate ways.
and come up to the designated speed of 70 MPH,
we experience the rubber band effect any soldier           Why? Why would a bunch of senior citizen Veterans
knows all too well while in a long formation. Finally      and active duty military and civilians with no military
though, after a few minutes of jockeying for our           experience and young police officers subject
positions, we settle in and we’re headed north . We’re     themselves to a day like this? In particular why
riding at 75 and 80 MPH surrounded by strangers            would the wives and even some of the children sit
and it feels like home. The majority of us here today      behind their rider and freeze in that blowing wind
are Veterans and we’ve done all this before, falling       and go hungry and not have access to a bathroom
into rank and keeping the distance between us just         for hours on end? There were no speeches, no
right and trusting your partners. Those who aren’t         dignitaries or politicians, no commemorative
Veterans fall in with us, there are no issues here         buttons or pins or even any acknowledgement
today, we’re all marching to a single cadence.             at all that you’d done such a thing. Anonymity
                                                           was it on this ride, just people doing a job.
The ride moves along quickly, first Interstate 95 over
to Interstate 26 and then up to Interstate 77 toward       We had nothing to think of but why we were all
the cemetery where The Wall will be on public display.     there. The biggest challenge of the day was riding
As we pass other entrances to the Interstate highways,     that fast with tears streaming off the side of our
we see that the Highway Patrol has them blocked well       face as we each contemplated our task that day.                              t          TOC    u                                          Page 122

We knew the answer to “Why?” when we started early            that was actually designed and physically built
that morning and as we rode farther and farther with          by Vietnam veterans with public donations.”
that red and white and blue truck in the distance
ahead, we knew that our discomfort and sacrifice              Reading that made me sad. I’m not sure I
was nothing compared to our fallen heroes who had             care how yesterday was funded and I saw
sacrificed it all for their country in that foreign land.     no commercial benefit for the sponsors.

For a brief time yesterday we were responsible                I’m also informed that there were estimates of
for their memory, we held in our hearts and in                some 1000 motorcyclists passing by the truck
our souls the very spirits of those fallen ones               carrying The Wall at its destination in Columbia.
whose names were inscribed on the faux granite                As a rider I had no chance to get anything close
riding endlessly in the darkness of that truck. It            to an accurate count and my photos of the event
was our responsibility, our duty, and our distinct            are all static, shot from parking lots during breaks.
privilege to honor them as best we knew how.                  I’ll post a few here today and if I get any candid
                                                              shots from other sources, I’ll repost with those.
So we did. Mission accomplished.
                                                              The Great State of South Carolina and the city of
A footnote:                                                   Columbia deserve a lot of applause for hosting all this.
                                                              Patriotism continues to run rampant in the deep south
Researching to prepare for the ride I found a                 and citizens still love any opportunity to stand up and
number of these “mobile” replicas of The Wall. I              wave a flag. And finally, Harley Davidson obviously has
rode with the “Dignity Memorial Vietnam Wall”                 a commercial interest in all of this activity. They had
yesterday. More information can be found here                 hundreds of potential customers in that brand new                         showroom yesterday and they’ll probably make some
                                                              money. So what? The entire event was conducted
There’s also “The Moving Wall” with information here          solemnly and with all due dignity and I can’t help and the American                but think that some 58,000 souls were happy to see
veterans Traveling Tribute at           those new Hogs and the Hondas and Yamahas too.
                                                              It’s the American way to honor, respect, remember
I was surprised to hear a few comments from The               but always move forward! I’m ready to do it again.
Moving Wall leadership that indicated that they
thought that there was a sort of competition
for rights to be “The Original” and they made it
apparent they didn’t think much of others infringing          11/07/2006 Rework, Claims, Denials
on their territory… “The Moving Wall is a replica
of the Vietnam War Memorial in Washington, DC                 Rework, repeating a task more than once to correct
that serves as a solemn reminder of the more than             poor workmanship is a curse to any industry. If the
58,000 lives lost between 1956-75 in that region of           cost of producing a widget is (x) and the finished
Southeast Asian. The Moving Wall is the only replica          product is rejected by quality inspectors at the end
of the Vietnam Veterans Memorial in Washington.               of the process, the cost of reworking, correcting
DC. Other traveling memorials are merely replicas             defects or scrapping the product altogether
of The Moving Wall. The Moving Wall remains the               may increase cost by a factor of 2 or more.
only one that is made by the same Vietnam veterans
who silk-screened the first name onto the first panel         William Edwards Deming, Ph.D. was a professor,
at the beginning of 1983.” “The Moving Wall is not            author, lecturer, and expert in statistics and quality
a generic name for any of the traveling replicas              control in manufacturing processes. He is widely
that copied The Moving Wall, but is a name that               known as an important influence on the Japanese
was given specifically to the nation's first and only         manufacturing industry as it was being rebuilt
traveling Vietnam Veterans Memorial during its                after WWII. He stressed that quality should be built
fourth display back in February 1985. The Moving              in at the first step in any process, eliminating the
Wall is the only traveling Vietnam veterans memorial          need for inspection, rejection and rework. During                            t        TOC    u                                        Page 123

his time, many American industries, most notably          Office (GAO) report of testimony before the
automobile manufacturers, ignored his philosophy          Subcommittee on Disability Assistance and
while the Japanese embraced his teachings.                Memorial Affairs, Committee on Veterans' Affairs,
The results a half century later are evident.             House of Representatives, Cynthia A. Bascetta,
                                                          Director, Education, Workforce and Income Security
The foundation of Dr. Deming’s method of process          notes that, “VA still lacks a systematic method
control is relatively simple; improving product quality   for ensuring the consistency of decision-making
beginning at the first step of the process reduces        within VA as a whole…”, and later Ms. Bascetta
expenses while simultaneously increasing production.      says, “As you know, in January 2003, we designated
Deming said, “Defects are not free. Somebody              VA’s disability program, along with other federal
makes them, and gets paid for making them.” All           disability programs, as high-risk. In part, we
industries and businesses deliver a product. Rework       designated VA’s program as high-risk because of
of a defective product is not free, it is an expensive    concerns about consistency of decision-making.”
way to convey a good or service to a client, customer
or a patient. From fast food hamburgers to heart          (This report is here http://www.gao.
surgery, there’s a measurable goal to be achieved and     gov/new.items/d05655t.pdf )
an outcome that either meets the stated goal or fails.
You want your cheeseburger hot and fast and your          The GAO document goes on to inform us that,
bypass operation should improve your life…if either       “During fiscal years 2003 and 2004, respectively, the
the product or the service fail to meet their goal and    regional offices made about 715, 000 and 598,500
require rework, you become a very unhappy customer        decisions involving disability compensation claims…
and the expenses of the business rise dramatically.       veterans submitted Notices of Disagreement in
                                                          about 13.4 and 14.5 percent of all decisions involving
The product of the Veterans Benefits Administration       disability ratings, and of the veterans who filed
(VBA) is the adjudication of a fair and equitable         Notices of Disagreement, about 34.9 and 44.4 percent
decision regarding, and if justified, the award of        went on to submit appeals to the Board. Assisted by
appropriate benefits to a deserving Veteran. If           240 staff attorneys, the Board’s 52 veterans law judges
a VBA decision is defective, it must be reworked          decide veterans’ appeals on behalf of the Secretary.”
or “appealed”, compounding time and expense.
The substantial expense of rework at VBA is paid          Reading deeper into this lengthy document we
for by the American taxpayer. There are other             discover, “In some instances, the Board may find
expenses that are associated with rework of a             that a case is not ready for a final decision and
flawed decision by VBA, such as the financial harm        return (or remand) the case to VBA for rework,
that time and again occurs when a Veteran must            such as obtaining additional evidence and
wait months or years while rework takes place.            reconsidering the veteran’s claim. If VBA still does
                                                          not grant the requested benefits after obtaining
The process of obtaining an award of benefits             the additional evidence, it returns the case to the
for a disability begins at the Veteran’s “Veterans        Board for a final decision. Of the appeals involving
Affairs Regional Office” or VARO. There are 57            compensation cases decided during fiscal year
VAROs that process disability claims. When the            2004, the Board reported that it granted requested
Veteran disagrees with the decision of the VARO,          benefits for at least one issue in about 18 percent
the Veteran has the right to appeal that decision to      of the cases, denied all requested benefits in about
the Board of Veterans Appeals (BVA). If that decision     23 percent of the cases, and remanded about
is thought flawed by the Veteran, it may then be          58 percent of the cases to VBA for rework.”
appealed to the U.S. Court of Appeals for Veterans
Claims. In some instances a Veteran who disagrees         It’s troubling when we look at the decisions
with a decision of that court may appeal to the           of the court and find, “Of the 3,489 cases
U.S. Court of Appeals for the Federal Circuit and         decided on merit during fiscal years 2003-
then to the Supreme Court of the United States.           2004, the court reversed or remanded in
                                                          part or in whole about 88 percent of the cases.”
In a May 5th, 2005 Government Accountability                               t       TOC    u                                          Page 124

Thus, in 2004 VBA fell behind in its work when              mathematician so you should go ahead and
compared to 2003 and adjudicated 598,500 claims             continue crunching the numbers if you have the
out of 57 offices. Of these, Veterans filed a Notice        heart for it. I don’t need any more evidence to
of Disagreement (NOD) in almost 90,000 of these             understand that at least one third to one half
claims. Some 39,000 of those were submitted to              of the work done by VBA is pricey rework.
BVA on appeal and given a look by one of their 240
VA lawyers and/or 52 law judges. Approximately              I started looking at this for personal reasons. I’m
23,000 of those were remanded to their respective           100% IU. It took me about 3 years at the local
VARO for rework. That’s about 1600 appeals and 400          level to win my claim. In July of this year my wife
remands per VARO in 2004 out of the nearly 10,500           applied for her CHAMPVA benefits and at about
decisions each VARO was responsible for in 2004.            the same time my son applied for his Chapter
                                                            35 college education benefits. Earlier this week,
A remand is rework of rework. The work has was              my wife received a letter denying her CHAMPVA
done once at the initial filing, again at the BVA level     application because her sponsor was not Totally
when it was considered by one of the 240 lawyers or         and Permanently Disabled. About the same time
52 judges and a third time at remand to the VARO.           my son got a letter that his benefits were denied
                                                            because his parent was not 100% disabled.
A GAO report in 2002 said that, “VA reported an
accuracy rate of less than 70 percent for regional          In addition to noting my 100% status, my award
office disability decisions when it tested a new            letter states that, “No future examination will be
quality assurance program in fiscal year 1998.”             scheduled.” On the same page it says that my
                                                            dependents are authorized Chapter 35 education
You’ll find this report here http://www.                    benefits retroactive to the date of my award.
                                                            In a statement before the Senate Committee
This 2002 GAO document establishes that, “an analysis       on Veterans Affairs on October 27th 2005, The
in 1997 of about 50 decisions in which the Board            Honorable Daniel L. Cooper, Under Secretary For
had granted benefits previously denied by regional          Benefits, Department of Veterans Affairs said, “A total
offices…concluded that most of these Board decisions        disability rating based on IU can result in eligibility
to grant benefits had been based on the same                for additional benefits for a veteran’s dependents
evidence that the regional offices had considered           and survivors. Educational benefits for the veteran’s
in reaching their decisions to deny benefits.”              spouse and eligible children are available under the
                                                            Survivors’ and Dependents’ Educational Assistance
In a May 2005 statement to the U.S. Senate                  Program (title 38, United States Code, Chapter 35).
Committee on Veterans Affairs, Rick Surrat, Deputy          The Civilian Health and Medical Program of the
Director of Disabled American Veterans (DAV) told           Department of Veterans Affairs (CHAMPVA) provides
the members that although recommendations to                reimbursement to eligible dependents for most
improve the process of claims processing had been           medical expenses, provided that they are not also
made in 1995, based on Blue Ribbon Panel and                eligible for health care benefits provided by the
other government funded commissions in 1993                 Department of Defense. To be eligible for both
forward, “The recommendations received little               of these benefits, the veteran’s IU determination
serious consideration.” by VA. Mr. Surrat went on           must be considered permanent. Permanency for
to say that, “…lack of emphasis on quality resulted         eligibility to Chapter 35 and CHAMPVA requires that
in high error rates, inconsistent decisions, and            there not be a future examination scheduled.”
the appearance of arbitrariness in VA’s decisions,
which led to a relatively high number of appeals            Based on that statement from a man who knows
and necessitated more rework of claims.”                    the rules, it’s abundantly clear that my wife’s
                                                            and son’s benefits were wrongly denied.
If you’ve followed my fuzzy math this far, you
probably have your #2 lead pencil out and                   I began to investigate what caused the problems
you’re adding all this up along with me. I’m no             and I initiated my now necessary appeals processes                              t         TOC   u   Page 125

to obtain benefits. I found that although my VARO
does not use the term “Permanent and Total” for
some reason, the CHAMPVA office in Colorado
seemingly requires that exact phrase be used.
Although I can’t be sure with my quick investigation,
it seems that the Chapter 35 Dependents
Educational Assistance folks use a form that lists
my disabilities and since they don’t total to 100%
(I’m IU, remember? I don’t have to be 100% to be
100%.) they automatically deny all IU applicants.

This results in rework on top of rework. My initial
claim was as clear as it could possibly be. Over 3 years
none of my evidence changed appreciably from
the day I first requested IU benefits. Nonetheless,
it was some 36 months of form letters, denials,
appeals and more denials before a Decision
Review Officer finally assessed my entire file and
immediately awarded the correct benefit.

The Military Construction and Veterans Affairs
and Related Agencies Appropriation Bill,
2006, recommended nearly $154,000,000.00
be given to VBA for administrative
expenses. You’ll find that report here,

In an age when our country is at war, unprecedented
VA budget cuts are proposed, there is a rapidly
increasing utilization of VA health services by an
aging baby boomer population and we are caring for
thousands of recently severely injured Veterans, the
excessive cost of rework by VBA is unconscionable.

To successfully serve the next generation of Veterans
our VA will require leadership capable of getting the
VA to do the job of delivering the correct benefits
award decision in a timely fashion to the Veteran.
A decision must be accurate the first time so that
successful appeals, remands, appeals to a higher court
or any other rework will be reduced to less than 1%.

A dramatic reduction in appeals or ‘rework’,
may even encourage VA to downsize some
of those 240 lawyers and 52 judges and
spend much of that $154,000,000.00 where
it belongs, caring for a disabled Veteran.                             t          TOC    u                                             Page 126

Any fool can use a computer. Many do.                        I've just got another one of your postal cards telling
Ted Nelson                                                   me to go before the doctors and be examined. I've
                                                             been getting these cards about every new moon
                                                             since I applied for an increase of my pension two
Jim’s mailbag 2007                                           years ago. I've been examined, poked in the ribs,
                                                             sounded in the lungs and made to bend over the
Jim's Mailbag, later called Questions and Answers,           back of a chair and perform all sorts a monkey
was a popular feature at the original VAWatchdog dot         shines in my shirt tail, till I feel I otter have a salary
Org. Today the latest questions from veterans and my         with an agent to go ahead and stick up bills.
answers are hosted at the Stateside Legal web site. I'll
be posting some of the best of the past Mailbags here.       To begin with, you sent a couple of doctors up to Skin
                                                             Creek, and it took em half an hour to find out that
You can use the "site search" to look for the                the reason why they couldn't find any circulation in
topics that interest you or just read through                my left leg was because it was made of wood. The
all of it. I promise you'll learn something                  next time you sent me a little cuss with glasses down
valuable about your VA benefits.                             to Swampville, and after fumbling me over long
                                                             enough, he put my truss on hind side afore and said
You may run across broken links. If the URL                  the pad was intended to brace up my spinal column.
is posted, copy and paste as you usually                     Three or four times after that you sent me odds and
would. I'll update links as I have time.                     ends of doctors who couldn't tell the difference
                                                             between an epileptic symptom and a boiled clam,
I'll update as often as I can so please check back soon.     and the last time you sent me before a full board of
                                                             surgeons down to the county seat. They came to this
Letters in my mailbag are reprinted just as they             conclusion, nigh’ as I could catch on, that something
come to me. Spelling and grammar are left as is              was wrong with my bladder. Now I have my opinions
and only small corrections are made to improve               of a doctor who don't know the difference between
readability, ensure anonymity or delete expletives           a man's bladder and his bollix. Perhaps this is all
that may offend some readers. This is not legal              right. It may be fun for the doctors. It was fun for
advice. You should always seek the advice of an              me for a while, but now that you order me back
attorney who is qualified in Veterans law before             again to the first two doctors up to Skin Creek, and
you make any decisions about your own benefits.              probably expect me to start on the same old circus
                                                             over again, I'm going to kick like a brindled steer.

01/02/2007 THE MORE THINGS CHANGE,                           Last summer, because of the friskiness of a pair of
THE MORE THEY STAY THE SAME                                  colts, my wooden leg got tangled and all chewed
                                                             up to cinders in a mowing machine. I 'plied to the
The letter below was forwarded to me from a                  Surgeon General for a new leg, but he said that I'd
reader. It drives home the fact that not much has            only had the old one three years, and I'd have to
changed for the wartime Veteran. On this first               wait two years more before the government could
day of 2007, I'm amazed at the similarity to a Vet's         afford to make a hole in the surplus by getting me
woes in 1888. I may just copy this and send it to            a new one. So I'm waiting and in all this interesting
my VARO over my signature the next time I hear               panorama of examinations, I've been hobbling
from them. I'm convinced it's authentic. The link to         around on one leg, and doing my best to prove that
an original Internet posting of this soldier's letter        one of Uncle Sam's veterans, with one leg in the grave
is here                   and the other damn near in, is better than a corpse by
                                                             several percent. But honking' around in this way ain’t
Redwood, April 23, 1888                                      first class fun for a man with a steady job. I've stood
                                                             it for a good while without grumbling and I suppose,
Mr. Black, Commissioner:                                     furnished a lot of fun for the doctors, while paying my
                                                             own expenses. Meanwhile my natural leg, the one I
Dear Sir,                                                    brought away safe from the wilderness, has took to                               t       TOC          u                                                                             Page 127

the rheumatism till I'm almost sorry I did not drop it        actually in the grave and the other damn near it,
where I did the other one. And about the only hope            your getting down more hay than you'll have time
my good leg can give me now, is to serve as a sort of         to cock up. You'll make about as much at that game
rudder when I'm sliding downstairs on my rump.                as the Surgeon General will by veto’n wooden legs.

Now, Mr Commissioner, about the matter of                     Respectfully with a damn good memory,
increasing my pension, you may do just as you
damn please. If you think that loosing one leg in the         Unsigned
wilderness in 1864, shot through the belly by a bullet
at Antietam in 1862, and if you think that the pension I      ................................................................................................
have been getting is full pay for a set of busted insides
that haven’t been in running order in more'n twenty           footnote:
years and never will be on this side of New Jerusalem,
all right. If the government says so, I'm a silent partner.   BLACK, John Charles, (1839 - 1915)
But I'm a going to tell you just between us, that
when the Minnie ball went through me at Antietam,             Representative from Illinois; born in Lexington,
it played mischief with some of the important                 Holmes County, Miss., January 27, 1839; moved to
parts, and it played for keeps. It cut something all to       Danville, Vermilion County, Ill., in 1847; attended the
thunder. I don't know whether it was my liver, or my          common schools and Wabash College, Crawfordsville,
lungs, my gizzard or my guts and your pet doctors             Ind., but was not graduated until after the close of
don’t seem to know as much about it as I do.                  the Civil War; served in the Union Army from April 14,
                                                              1861, to August 15, 1865; entered as a private, and was
The plain fact is, and that’s what I am driving at, I'm       successively sergeant major, major, lieutenant colonel,
physically broke up and busted from my single heel            and colonel; brevetted brigadier general for service in
to my chin whiskers and I got busted up at Antietam           the storming of Fort Blakeley on April 9, 1865; received
before my leg was lost, and the record says so. They          the Congressional Medal; studied law in Chicago, Ill.;
wanted to discharge me for the first ball through             was admitted to the bar in 1867 and commenced
my body at Anteitam, and I wouldn't let them. I was           practice in Danville, Ill.; appointed United States
bound to stick till we busted the Rebellion or till the       Commissioner of Pensions by President Cleveland
Rebels busted me, with more bullet holes through              and served from March 17, 1885, to March 27, 1889;
my carcass, and I did. And now you’ve made me do as           elected as a Democrat to the Fifty-third Congress and
much marching from pillar to post in this hide-and-           served from March 4, 1893, to January 12, 1895, when
seek game with the doctors as would have took me              he resigned; United States attorney for the northern
from the wilderness to the end of the war. If I wasn't        district of Illinois 1895-1899; department commander
good enough to march then, I'm damned if I'll do any          of the Loyal Legion of Illinois 1895-1897; department
more of it now, so you don't need to pay any more             commander of the Illinois department, Grand Army
doctors charges for me. You've been actually paying           of the Republic, in 1898; commander in chief of
the doctors on the average about ninety six dollars           the Grand Army of the Republic in 1903 and 1904;
a year for staving off my claim, and that’s more than         member of the United States Civil Service Commission
you'd have to pay me if you’d granted my increase             1904-1913 and served as its president; resigned and
at first sight. You stalled me on my getting a cent of        returned to Chicago, Ill., where he died August 17,
that ninety six dollars and now I am going to stall           1915; interment in Spring Hill Cemetery, Danville, Ill.
the cussed doctors on getting any more of it. If I go
before any more doctors for an examination you've
got to do something more than send me a postal
card. You'll have to haul me before 'em with a derrick.       Q: Who is eligible and who should apply for a
                                                              Veterans Administration Disability Benefit?
Now I don't want to be sassy. I ain't built that way.
But Mr. Black, if you expect to blossom out as a Vice-        A: You are eligible if you were active duty and
President of the United States by bucking against             have an honorable discharge. You should file an
the honest claim of an old veteran with one foot              application to receive a VA disability benefit if you                             t         TOC    u                                         Page 128

were in any way physically injured, psychologically         Service Organizations (VSOs) to assist you. The level
traumatized, or became ill during the period of             of service you will find at these organizations will
your active duty service. This applies to all events        vary widely from organization to organization. I
whether or not you were in combat or on duty                always recommend that you get to know a County
at the time. You should also apply for disability           Veterans Service Officer (CVSO) first. I've found
benefits if you have a pre-existing condition               that these people are very well trained, highly
that was aggravated by your military service.               skilled and very dedicated to getting the Vet all he
                                                            deserves. Shop around a bit until you find a Veterans
Q: When should I apply for my benefits? I've been           Service Officer who you feel comfortable with.
advised to wait until I have enough of a medical
record of diagnosis and treatment to justify applying.      If you have computer skills, a lot of patience and you
                                                            can dedicate the time it will take to research your
A: You should apply today, right now. Don't                 own evidence, then you can probably do a good
delay. Read the rest of this article through and            job of following through on your own. Filing for
then immediately begin the process. I will upon             your benefit is not rocket science. The details of all
occasion, for some special circumstance, advise             you will ever need to know are available to you via
that a Veteran should get his ducks in a row prior          your high speed Internet access and Google. Before
to filing an application. However, the date you file        I'd suggest that you choose to handle it all yourself
your application and it is received by your Veterans        though, I'd caution you that the process is frustrating
Administration Regional Office (VARO) is the date           and cumbersome. Much of what you are required
your benefits will be dated to when you are awarded         to do makes little sense. VA will lose papers, ignore
your rating. We also know that many applications, no        you as if you don't exist and be at odds with your
matter how well prepared you are, will be denied any        every move. You'll have to study legalese and spend
benefits and you will have to appeal. It makes little       hours reading results of previous cases that have
sense to delay filing while you gather records or visit     been won and lost. Your office must be organized as
doctors to verify diagnoses. Every day you delay is a       well as any professional office and your documents
day of retroactive benefit money that you will lose.        must be kept neat and orderly. Having said all that,
Apply this very moment, build your case as you go           I'll also say that there is nobody that will care as
along. Start by completing VA Form 21-526 and get           much about your benefits application as you do. I
it to your Veterans Administration Regional Office          took all of my filing away from my representatives
today by registered mail-return receipt requested.          when I finally figured out they didn't know or care
                                                            who I was and I did it myself. I've won every benefit
                                                            I've applied for and I know who to thank for it.

Q: How do I apply? Don't I need a lawyer or someone         I believe that VA prefers that the Veteran who
to help me? This seems awfully complex.                     has some skills do it themselves. I know for a
                                                            fact that in some regional offices there exists an
A: You have a lot of options. You may begin the             animosity between the VA staff and some VSO
process on-line all on your own. The VA has a useful        staff. If you're unlucky enough to be represented
web site and service called VONAPP. You can get to it       by a person who isn't thought very highly of by
by clicking here       VA staff, you've got problems you'll never be
main.asp . You can apply for a disability benefit and       aware of. I've had much better response directly
get the ball rolling very quickly. You may also simply      from VA since I started doing it all myself.
write a letter to your VARO and tell them in plain
English that you are applying for disability benefits.      You still can't go out and retain an attorney to
In your letter you must be sure to tell them what           assist you like any other (non-Veteran) American
you are applying for and why, as in; "I am applying         can. Thanks to intense lobbying by DAV and other
to receive disability benefits for my broken arm." VA       Veterans Service Organizations, Veterans remain
will then write you to tell you what else you must          second class citizens. When the Veterans Benefit
do. You can download and print VA Form 21-526 and           Improvement Act of 2006 (S.3421) passed on
mail it in. You may also ask any number of Veterans         December 8th 2006 it wasn't totally favorable to                              t        TOC    u                                          Page 129

the Veteran. You'll have to wait until June 2007            how it is today and it won't change for you because
before you may retain an attorney and even then             you're sensitive to their tactics. I coped by getting
you can't use an attorney until your original filing        angry. Every letter I received that was so obviously
has been denied by VA and you're ready to file a            wrong, I got angrier and more determined to win
Notice Of Disagreement (NOD) to appeal the original         what was rightfully mine. My advice; one way or
decision. This ensures that the VSO will continue to        the other, deal with it. It's well worth your trouble.
have the ability to recruit Veterans into joining its
ranks through membership enticements that hint              Q: I can't find my records. The VA says
of preferential services for dues paying members.           they don't have them and my application
Once the original filing is denied by VA (and the           is going nowhere. Now what?
majority are) the VSO will have your membership
dues and pass you off to an attorney to get the task        A: You'll always want to start at the National
done correctly. The lawyer will then inherit a case         Personnel Records Center in St. Louis. Click
that someone else started and then make necessary           here for a connection to their site http://www.
corrections for the refiling. This will add ever more
time to the process. Although we won a victory
in getting this passed at all, we lose the original         If your records are truly lost, you are in for a
intent; To allow a lawyer to complete the process           tough battle. Orenda Herron is a reader who is
start to finish and hopefully reduce the backlog of         also a Volunteer Field Service Officer and wrote
appeals by getting it right the first time. The only        in with this to say, "It is imperative to inform
people who benefit greatly today are the VSOs.              Veterans they should file their documents at
                                                            their court house for safe keeping. Ask the Court
Now we're hearing that the entire bill may be               Clerk to put the document on file. While the
overturned and we'll be right back where we                 vet is still at the Court House, he/she should
started. The DAV and other "Veterans Service                get at least three COURT CERTIFIED COPIES of this
Organizations" want to keep us right where we               document." Orenda makes a very good point. The
are without the right to choose for ourselves.              Veterans Benefits Administration continues to be a
                                                            paper file organization. Many of our files are nearly
Q: I want to file for a disability rating because I was     a foot thick and weigh 5 to 10 pounds. In the most
injured. But I'm overwhelmed at the amount of               modern of VBA centers, stacks of files are still pushed
documentation I'll need. Just the thought of all that       around in grocery carts from station to station. If
digging for paperwork and waiting on replies from           you're a new Veteran or if you know a new Veteran,
VA really puts me off. I got out of the military and        protect your future by beginning to retrieve and
don't want to do things the military way any longer.        secure your files today and advise the new Vet to do
It sounds as if you're telling me that the VA is even       the same. A lost DD214 or a couple of pages missing
worse and that the system is extremely adversarial.         from your service medical record may not sound like
How am I supposed to be able to deal with all that?         much today but could make a world of difference
                                                            a few years from now. If you're filing for benefits,
A: I hear this almost every day. I've seen Veterans         don't rely on VA to get it all for you. You're going to
who get a letter from VA that disagrees with what           be better protected doing the legwork yourself.
they submitted become angry, crumple up the paper
and throw it across the room. They then vow, "Never         Q: I have a service connected disability rated at
again!" and say they won't deal with VA. These are          70%. I've been unable to work and I've filed for
the same guys who could field strip their weapon            100% Individual Unemployability. I've been waiting
in a blinding rain, carry a wounded buddy out of            about 1 1/2 years now with no resolution from VA.
harm's way with little thought of their own safety and      I had the option with COBRA of carrying insurance
sleep beneath an artillery piece as it rained hellfire      from my last job but it became very expensive
down on the enemy 2 miles away. I can promise               and I just couldn't afford it. I get good care from
you that in many instances, you'll just have to deal        VA and have no complaints but I do worry about
with some nonsense from VA. So what? It isn't right,        nights and weekends if I should become ill. My
many of us are working hard to change it but it's           VA hospital is a couple hours away and they don't                              t        TOC    u                                         Page 130

have an Emergency Room but rather an Urgent                 of the person you're speaking to, that person's title
Care Center. What should I do if I become very sick         and the time and date of your conversation. Write
when VA may not be available for me? Will they              it down it's a sure bet that you won't remember it
pay for a civilian hospital's emergency services?           later. If they tell you it isn't authorized, ask them
                                                            what to do. They can't ignore you, plain and simple.
A: Yes. No. Maybe...sometimes. It just depends. Here's
the scoop as near as it can be determined as well as        Being prepared is your best option. While you're
what you should do. In an emergency, a situation            at your primary care clinic for your next routine
that you feel may be immediately life threatening,          visit, ask your care team what to do in the event of
don't play around. Call 911 immediately and get             an emergency. If they aren't sure about billing, go
to the closest hospital emergency facility. Get an          to the administrative offices and ask until you get
ambulance to take you. It's a well know secret in           an answer. I've used an emergency room twice in
health care that walk in patients are seen last. If you     the last 6 or 7 years. Each time I called my primary
roll in on a stretcher you move to the front of the         care clinic first and each time my doctor told me
line. Don't drive yourself to be macho and please           I should go to that civilian hospital and he made
don't ask a friend to drive you. In over 3 decades of       an appropriate note in my medical record. The VA
health care experience, I can not remember one time         paid for my very expensive visits but not before I
that having a friend drive a person to the hospital         received some bills and threats to go to collection
emergency room was a good idea. Let's review...if           agencies. I handed all that over to the right people
you have chest pain, if you have been shot, if you're       at my clinic and the problem was solved.
bleeding profusely or have the symptoms of a stroke
or any other major medical emergency, call 911 and          Q: I know VA gets its medical equipment from
ride the ambulance wherever they take you. If you           the lowest bidder. Some of the VA hospitals are
live you can sort out the billing later. Otherwise...       really old and crowded. It worries me that I may
                                                            not be getting the best of care available when
Don't go to a VA Medical Center with that sort of           I know VA buys everything on the cheap. Take
a true emergency unless you are positive they are           drugs for example; my civilian doctor has told me
equipped and ready to deal with an emergency.               to take one brand of drug for my high cholesterol
Most are not. In the medical jargon there's a huge          and the VA gives me a lower priced brand. If they
difference between "urgent" and "emergency" care.           always use the least expensive x-ray machines,
The VA Urgent Care Centers are geared for situations        the cheapest drugs or the lowest priced surgical
where Veterans may have injured themselves,                 instruments, how can I possibly get good care?
say a broken bone, a badly cut finger or a sudden
onset of severe flu-like symptoms for a Vet who is          A: My background is in health care. I spent over
traveling or otherwise can't see their Primary Care         3 decades working in civilian hospitals and I also
Practitioner. Like any other business they close up         worked with some VA hospitals along the way. I even
shop at a certain hour and closed means...closed.           worked for a medical device manufacturer in a quality
                                                            assurance and customer satisfaction role. I learned a
If you think you should be seen urgently but you            lot about the prices and quality of medical equipment
aren't sure how sick you really are, don't delay to         and how it gets bought and sold. I know that the most
begin to sort out what to do. First on your     expensive or most popular isn't always the best.
your primary care clinic or VA Medical Center and
ask for triage or Urgent Care. If Urgent Care is open,      You're correct that VA usually purchases from
speak with them and explain what's up. If Urgent            the lowest bidder. But often enough, the lowest
Care isn't open, ask for the house officer on duty.         bidder is the best product available. The volume of
If they tell you to head to the nearest emergency           purchasing at VA makes vendors of medical devices
room be sure to ask if they're authorizing that             and drugs clamor to get in the door. Vendors know
expense. If they waver with a promise that they're          if they're successful in selling to the VA that their
authorizing the expense, push on them some more.            products and services will be on display to doctors,
If you're told that it's probably authorized or that it     nurses and researchers from other institutions.
is definitely authorized, make a note of the name                             t         TOC    u                                           Page 131

Veterans Health Administration is also the most             Veterans. (For more information about MTWA, email
experienced health care system ever in evaluating           Dr. Zolten directly at < > )
new technology prior to purchase. VHA is going
to assure "bang for the buck" as well as safety             01/22/2007 Health Care, VBA
and efficacy for its Veteran patients. Nothing gets
purchased and used without rigorous evaluation              Q: You promote the VA a lot. Every time I read your
as only VHA can do it. Slick sales brochures and            articles it seems like you're telling us how good the
gimmicks don't work at VA, only proven results matter.      VA is to Vets or how great the health care is. I'm not as
                                                            happy with VA as you seem to be. I've been fighting
Here's a good example...(most of my background              with them for almost 6 years to get an increase in my
is in cardiology so naturally that's where I'll turn        benefits. When I go to see my doctor he is usually
for this); One of the more complex and expensive            very abrupt and doesn't seem interested in me or my
procedures that a patient may have to face is               problems. I can't get the medicines I need and want
having an Implantable Cardiac Defibrillator (ICD)           when I want to. If I go to a specialist at the VA hospital
installed in their body. Similar to a pacemaker, these      I have to wait for months to get an appointment,
devices monitor every heartbeat and if a deadly             drive about 3 hours and then wait another 3 hours
string of beats is detected, the ICD will shock the         to see a doctor or sometimes just a nurse. I think the
heart from within to restore a normal rhythm.               whole thing stinks and I don't believe it when you
That aberrant heart rhythm leads to what is called          tell me how good it is. Are we using the same VA?
"Sudden Death Syndrome". That gives you some
idea of how serious this can be to the patient. The         A: I hope we're in the same VA. I may take a different
devices themselves are very expensive and the               approach to it than some others do. You may not
surgery required to put it in carries considerable          want to hear this but all too often, it's your attitude
risk. In some patients the need for the device is           that sets the tone of your interaction with VA. I think
clear cut but there are also those patients where the       that it's my VA, not their VA. I know that the only
indication for the device isn't so apparent. Some           reason any VA employee is there is to serve me. I'm
studies show that as many as 1/3 of these surgeries         the Veteran, that's always clear. When I approach
may not be needed. No patient wants the risk of the         any VA employee or use any part of the system I am
treatment if it isn't necessary, no responsible medical     always courteous and polite. I expect that will be
center wants the expense when it isn't required.            returned to me. I don't expect anyone to hold my
                                                            hand or that they should display any extraordinary
VHA is always seeking solutions to better define            happiness that I'm there but I do want them to be
the exact patient who will benefit from this type of        efficient in their jobs. If I encounter a problem I don't
surgery. A.J. Zolten, PhD of the St. Vincent Infirmary      get angry or publicly display my displeasure. I do seek
Medical Center in Little Rock, AR is acting as both         a remedy though, always using appropriate channels.
a scientist and as a concerned citizen who will help
VHA with its goal to improve patient outcomes. He'll        Having worked in the civilian health care sector
soon present a new test to VHA that may better              all of my adult life, I realize that many issues we
define who are the correct patients to benefit              have with VHA aren't unique to just VA. There
from the implantation of an ICD device and more             is no perfect health care system in the world.
importantly, which patients don't need it. This is a        Many or even most civilian doctor's offices are
cardiac stress test called Microvolt T-Wave Alternans       overcrowded and you may wait for hours to be
(MTWA) that more accurately measures the risk               told your doctor is involved in an emergency and
for sudden cardiac death than many other tests.             you need to reschedule. Your civilian health care
Patients who test negative with this test have been         insurance plan may not allow you to see a specialist
found not to need ICD's. Prior to use of the test in        without jumping through more hoops than VHA
VHA, Dr. Zolten will convince panels of experts that        requires. That same health care insurance through
this technique will not only save money but that it         your employer probably restricts which doctors
will save Veterans' lives. VHA is constantly seeking        you can see and which drugs they can prescribe
out researchers like Dr. Zolten and methods like            to you. It's very unlikely you'll get any preventive
this along with proven technology to better serve           services at all unless you pay the entire cost.                               t         TOC    u                                           Page 132

I don't like the drive to my VAMC either. It can be           I'll continue to try to separate the shining
exhausting if you aren't feeling well. Given the choice       stars from the toads and give credit when
of having my specialty care outsourced locally in             it's due...I think you should too.
my town or keeping the VA hospital system as it
is today, for Veterans only...I'll take the drive.            01/27/2007

My feelings are the same about many other VA                  Why is applying for a disability benefit so
services. Educational benefits are usually painless to        often compared to root canal work? Why do
get and use. Home loans slide through very quickly            Veterans curse at the mention of their disability
and with VA looking over your shoulder, you aren't            claims process? What makes this procedure so
likely to get ripped off by some shyster mortgage             painful for both the claimant and the VBA?
lender. There's a lot to be positive about in VA.
                                                              I sometimes help Veterans who have a problem with
I often criticize the Veterans Benefits Administration        a disability claim. I don't represent Veterans to BVA
(VBA). The true mission of the VBA is ignored and no          as a “ Veterans' Service Officer” (VSO). I offer hints to
VA Secretary or even the Congress itself seems able           how I've done it myself and what I would do were I in
to get that entity back on the right track. Rather than       your shoes. If a Veteran is already in the thick of it and
being the Veteran helpful organization it should be,          has been working with a VSO, I often advise them to
VBA is bloated with incompetence and buoyed up by             stick it out. Changing horses mid-stream is perilous.
its own self-importance. "Old timers", the crusty relics
who have held their good government jobs for 20 or            There are many of us who decided to rumble with
more years protect those jobs and ensure that there is        VBA on our own. Some of us weren't happy with
always plenty to do by flogging Veterans with minutia;        our VSO. After years of no results, I finally concluded
details that are self evident must be proven to an            I was smarter than he was. He had hundreds of
impossible degree, demands are made for statements            claims and a cramped cubicle, I had one claim and
of witnesses that haven't been seen or heard of in 4          my home office. In the beginning, I assumed I was
decades, interpretations of laws are never decided            required to use a VSO; that was how it was done and
in the Veterans' favor even though they easily could          I didn't want to rock any boats. Not then I didn't.
and should be. The Secretary of the Department of
Veterans Affairs is a temp. It's a political appointment      Over the last couple of years I've studied how the
and the job description has nothing in it about               VBA works with Veterans through a VSO as well
improving anything, it's enough that the schmo                as with Veterans on the do-it-yourself plan.
who gets the position keeps the lid on and doesn't
screw it up too bad. The VBA old timers know all this         Your Veterans Benefits Administration (VBA) is
and they just wait it out until the next one comes            charged by your government to comply with and
along. Eventually they retire with really great benefits      enforce law that determines disability compensation
and get hired right back as well paid consultants             to Veterans. These Veterans claim their military
to VA or one of the Veterans Service Organizations            service caused illness or injury or aggravated
that march happily along to the VBA tune.                     pre-existing conditions. Military service is high
                                                              risk. Training is often brutal, living conditions
My "promoting" of VA isn't quite that maybe. I think I        frequently primitive and opportunities to incur a
just call it as I see it; the good, the bad and the ugly.     serious injury are plentiful. Many Veterans carry
I get email from VHA and VBA employees who are                the scars of physical and mental wear and tear.
as frustrated and unhappy as any Veteran is when
it comes to the inefficiencies of the system. I know          Our government long ago recognized a duty to
there are thousands of hard working and honest                provide for injured Veterans. As early as 1636 the
men and women in VHA and VBA who do their                     Plymouth Colony mandated that, “if any man
best to improve our lives. Many VA employees are              shalbee sent forth as a souldier and shall return
Veterans themselves and even they get angry with              maimed hee shalbee maintained competently by
a system that denies them their deserved benefits.            the Collonie during his life.”(1) In 1865 as Abraham
                                                              Lincoln delivered his Second Inaugural Address he                                t        TOC    u                                         Page 133

recognized the enormous toll of death and injury              Studying a handful of claims showed a significant
inflicted on America's soldiers during the Civil War.         difference in style. A DIY Veteran kept it short and
As part of his plan to heal the nation he spoke of            sweet. There was no legalese, no blustering oratory
the need “to care for him who shall have borne                and citation of previous court decisions, no fluff. The
the battle and for his widow and his orphan...”.              DIY Veteran usually didn't list exotic combo platters
                                                              of conditions but focused on the main issue that
Applying to VBA is a simple process. All a Vet need           troubled him. All too often the claim submitted by
do is complete a short form, provide a DD214 and              the VSO was done by the “throw it all on the wall
deliver it to the nearest VA Regional Office (VARO or         and see what sticks” method. Veterans would write,
RO). The application will be reviewed in the order            “I had a broken leg and I'm still limping. It hurts a
received and the Veteran will get a mailing from              lot.” The VSO would submit, “Veteran had a broken
VBA precisely detailing the steps he must take,               leg that still hurts as well as hypertension, erectile
evidence he should supply in support of his claim             dysfunction, cataracts, hearing loss, back aches,
and any other requirements the Veteran must adhere            PTSD, severe itching of the affected leg, and a heart
to. Once that step is completed, VBA will provide             attack.” In the last week I've reviewed a claim of a
ample opportunity for the Veteran to gather and               Vietnam Veteran who has a non small cell lung cancer
submit further evidence prior to adjudication. If             grade lllB, clearly Agent Orange related. He is dying,
the Veteran is sure there is no more evidence, he             no question about it. Not if, only when. In the last
should then formally notify the VBA of that and               year his claim has been kicked around like a soccer
request that his case be adjudicated promptly.                ball while VBA debates his Erectile Dysfunction,
                                                              Type 2 Diabetes, Hypertension and a handful of
We assume the intentions of our government                    other stuff that the VSO tossed in. ED seems to be
are good. After all, we're our government, right?             popular in 2006 and many benefits applications
The concept of caring for an injured soldier who              are seeing it tossed in as a secondary condition.
served to ensure our freedoms isn't something
any reasonable American will argue against. With              I knew then I was seeing the results of what happens
the introduction of the Internet in our homes,                when you show VBA you intend to pile it high and
offices and public libraries, everything you ever             deep on their desk and send them the message that
wanted to know about VBA law is available for the             it's their job to sort it out. Would a VA employee who
taking. So why is working with VBA so difficult?              was shown this sort of poor judgment by a VSO or
                                                              Veteran get revenge at the expense of the Veteran?
I've come to believe that it isn't, at least not always.
Recently, many claims I've observed, including                I communicate with a lot of people. One of the best
my own application for increased benefits, were               and brightest has become a friend, a colleague who
favorably adjudicated in months, not years.                   is a committed Veterans advocate. After spending his
No opportunity was missed by VBA to inform                    career inside of the VBA adjudicating and otherwise
claimants of needs for documents, what VBA                    acting on benefits proceedings, he's now retired. He
was required to do and what to expect. Forms                  does some consulting work for disability lawyers and
necessary for appeal or any other maneuver by                 likes using his experience to help Veterans. When I
the Veteran were provided without asking. The                 get stuck and need help, he's where I often turn. I
Veteran was told clearly how to win their award.              posed these issues and my questions to him directly.
                                                              Does VBA dislike any representatives to a degree
Why then were some claims relatively easy while               where there may be silent, unofficial payback in the
others were an unending nightmare of confusion?               form of delays, complex denials and never ending
I concluded that claims filed and managed by a                demands for more evidence? Could this happen
Veteran without help of a VSO seemed to process               even though the Veteran might be harmed?
more efficiently. At first I didn't grasp the “why” of my
conclusions. It was if VBA was more cooperative, more         His answers were enlightening. I was happy to
helpful, almost a partner to the Veteran if there were        hear that in his long experience with BVA he
no layers of representatives inserted in between.             knew of no instance where a VA Rater practiced
                                                              revenge or otherwise intentionally fouled things                              t       TOC    u                                          Page 134

up. He confirmed my thinking that the majority             OK, there's one answer. Last question; Should I always
of VA Raters are conscientious and wouldn't ever           use a VSO to file a claim or should I just do it myself?
consider an intentional delay of the process. Then
he focused on another issue. He told me that the           “The RO doesn't care who makes the claim; Veteran
'filing for it all' approach, “was the one that drove      or VSO. The RO will work with anybody who submits
us nuts. VSO's and vets who claimed things like            a reasonable claim. The pressure to get the work
'upper respiratory infections', 'high cholesterol',        done is so intense at the RO level that they look
etc. caused an enormous amount of busy work.”              for efficiency above all else. I find that most of the
                                                           smarter vets I encounter have figured out long ago
I wanted to know if the quality of that initial filing     that their VSO's were failing them. That is why these
made a significant difference. Would a tightly             vets went to the effort to find other resources like
focused and well prepared first application earn a         you and me. The RO wants to work on a real claim
smoother trip through the system than one that was         with good evidence and a cooperative (if occasionally
cluttered with smaller and relatively unimportant          upset) client. The RO understands that customers
claims? His response didn't surprise me, “Right            of every type of service have occasional complaints
now at [my] RO, most of my rater friends are not           and that they are sometimes valid. VSO's can have
impressed with the VSO's. They find that the current       an enormous impact (both positive and negative) on
crop is submitting frivolous claims, failing to get        the process. VSO's also get reputations that inevitably
the necessary medical information, and failing to          color a rater's view of the claims they present.”
keep the vet informed on the need to attend C&P
exams, etc. All of us put complicated, contentious,        If you're a Veteran who has a claim pending or if
and uncooperative claimants aside when we had to           you're thinking of filing your first claim or maybe
'make our numbers' - like at the end of the month. I       seeking an increase to an existing award, you
also worked for [a manager] in the 1990's who clearly      have a decision to make. Should you ask a VSO
encouraged this. [There was] no reason why a well-         to act for you or do you want to do it yourself?
presented, thoroughly-documented claim had to
sit in Limbo while we wrestled with messy claims.          In my own experience, my claim only got properly
[This manager] often used the analogy of the 'exact        adjudicated when I took the responsibility for it
change' lane on a toll-road. Why should the well-          myself. Before I would advise anyone else to do that
prepared driver have to wait while the bozo in front       I'd want them to ask themselves some questions.
of him searched the console for spare change?”             Do you have the computer skills necessary to use
                                                           a search engine to seek references, copy, file and
As he explained all this to me, I began to try to look     print them? Can you comprehend technical, medical
at it from the desk of the Rater...the person who is       and legal jargon well enough to understand the
responsible for making that all important decision         meanings and intent of the references you find?
on the claim you submitted. I'll accept that he's          Do you have the time and the patience to find and
conscientious, well trained and wants to get the           retrieve the necessary documents and medical
job done. I also know that like the rest of VA, his        records required? Is your home office well organized?
office is probably understaffed and it's impossible        Do you own or have ready access to a copier, fax
for him to dream of the day he' ll catch up.               machine and scanner? Are you willing to cope
                                                           with the level of frustration you'll feel when things
So, how do I get my application in that fast lane?         don't go as well or quickly as you had hoped?
“If the vet supplies the necessary info, attends the
exams, pushes his private doc to submit records etc.,      If you answered “Yes” to all of those questions, you're
then the RO can complete his claim in a relatively         probably well prepared to get the job done yourself. If
short time. If a VSO gets a reputation of doing that,      you responded “No” to even one of them, you should
then his clients will get good service. The average        seek the help of a County Veterans Service Officer and
vet helps himself when he or she has the resources         ask them to guide you through the process. Interview
to present a good claim and follow up with whatever        a couple of VSO's as if you were choosing a surgeon
the VA needs. If a VSO does it - cool. If the vet has      who would perform a delicate operation on you.
the wherewithal to do it alone, then they should.”         Only sign up when you're certain that your VSO will                              t       TOC     u                                           Page 135

communicate with you and advocate for you. If that          You hit one to them, they hit one back to you. If you
VSO only helps you to complete a few forms and later        file a form with VA and don't hear back when you
won't return your calls, you aren't going to be happy.      think you should, wait another month. Don't go into
                                                            a letter writing frenzy, don't write your Senator or
Whether you choose the services of a VSO or                 Representative and don't panic. Writing a letter to an
you want to do it yourself, remember the expert             elected official seeking help with your claim may be
insider advice we heard from our friend and                 the worst move you can make. Your file can be pulled
always practice the basics of filing a good claim.          out of the process to be reviewed so a letter can be
The quality of that initial contact with VBA will           written to the official justifying what VBA is doing
set the pace for the rest of the claims process.            and explaining the delay. You'll get a form letter from
                                                            your Senator's staff telling you to chill and your file
Don't pile it on. Make a choice as to what your chief       then has to get back in line...often at Start. There is no
complaint or physical malady is and file that claim.        amount of angry letter writing and critiquing of the
Don't allow minor issues to distract from the most          VBA that will speed up your application. Don't do it.
important one. Once you've established your service
connection for your “big gun” you can then begin            Remember, you hit one their way, they hit it
to file for other conditions that are either separate       back. Knock 5 or 6 balls to them all at once and
from or secondary to the primary disability. Don't          the game gets confused. This isn't the way the
even think about filing a frivolous application             system should work but it's the way it does work
for benefits. Your credibility is required to have          and that's how it is. Anything you do other than
any benefit awarded to you. Lose that credibility           filing a clean original application and then waiting
and you've done lasting damage to your case.                for your reply will slow the process down.

Give that Rater what is necessary to make the decision      (1)
in your favor. It'll always be easier for you to collect    article/0,9171,792674-2,00.html
and copy your own medical records from civilian (and
sometimes even VA) doctors than it will for the VA to       02/27/2007 Permanent and Total, P and T
do it for you. That will hold true for other things too;
employment records come to mind. If VA writes and           The definition of "Percent": A
tells you they need it, don't wait, get it done yourself.   proportion multiplied by 100.

Neatness counts. I didn't address this earlier but we've    The definition of "Permanent": Continuing in
each seen applications done by some VSO's that              the same state, or without any change that
were embarrassing. These documents were poorly              destroys form or character; remaining unaltered
spelled and punctuated, evidential documents were           or unremoved; abiding; durable; fixed; stable;
folded and crammed into the envelope without any            lasting; as, a permanent impression. Continuing
thought to order or sequence and required signatures        or enduring without marked change in status or
were missing. You don't need the skills of an English       condition or place; "permanent brain damage".
professor for this task but you should put yourself in
the shoes of that person who will be responsible for        The definition of "Total": Absolute: without
reading your paperwork. If you make their job a little      conditions or limitations; "a total ban" sum: a
easier by presenting evidence to them that is legible       quantity obtained by the addition of a group of
and in good order, you'll be the better for the effort.     numbers damage beyond the point of repair;
                                                            complete in extent or degree and in every particular;
Always use registered mail. This is part of                 "a full game"; "a total eclipse"; "a total disaster"
being organized. You need copies of it all
and you need them easily accessible.                        The definition of "Disabled": Markedly unable
                                                            to function as a consequence of injury or
And be patient. In the last year the biggest                illness so badly injured as to be excused
single error I've seen is a loss of patience. Your          from continuing; "disabled veterans".
communication with VA should be like a tennis match.                               t          TOC    u                                           Page 136

You've recently received your notice from the                  Eligard (hormone). I thought that P&T was P&T. How
Veterans Benefits Administration (VBA) that you                can this happen and what can I do? This (Official's
have been awarded a rating of 100% Permanently                 Name) has a notorious reputation. My P&T was
and Totally Disabled. (For our purposes right now              awarded me in (State). We moved to (A different
it makes no difference if this is a "Schedular" rating         state) a year and a half ago to be closer to the kids
or an "Individual Unemployability [IU] rating.)                and grandkids. I was in Vietnam from 1969-1970."

You feel a sense of relief. You're vindicated! You've          The language of the VBA is notoriously
played by the rules and proven your claim to be                indecipherable to us commonfolk. I sometimes
valid. Your rating is officially going to last forever as      think that when Reverend Charles Dodgson (writing
continuing in the same state, without any change,              as Lewis Carroll) wrote of Alice traveling through
without conditions or limitations because you are              that rabbit hole, he was making a metaphor for
declared to be markedly unable to function as a                dealing with the VBA. The things Alice encounters
consequence of injury or illness or you were so badly          in her journey make little sense to her. Her reality no
injured as to be excused from continuing to work.              longer applies in this fantastic world but everyone
                                                               she meets along the way thinks her experience is
That is what that award letter says, right? If you want        perfectly normal. No discussion of VBA Speak is
further proof, look right there where it says, "No             complete without first glancing at what is known
future exams are scheduled." and "Dependents are               as "VA Math". In your world 2+2 probably equals 4
eligible for Chapter 35 DEA benefits." Thankfully, you         and that's how you balance the family budget and
and the VBA are done, finished, wrapped up but for             make the car payments. Having passed through
the once each month they'll make your deposit.                 the rabbit hole with Alice, your friendly VBA
                                                               representative will teach you a new way to add.
                                                               Your lesson will begin at 38CFR4.25, Pages 364-
"Jim, please tell me that it's over!!!"                        366, where you'll eventually read the Combined
                                                               Ratings Table. Glance here to see how your rating
A VA Watchdog reader dropped this in my mail last              was arrived at and you'll learn, "Table I, Combined
week: (Names and places redacted for privacy.)                 Ratings Table, results from the consideration of
                                                               the efficiency of the individual as affected first
"I was rated P&T in 2004 with metastasized prostate            by the most disabling condition, then by the less
cancer. I was told that I would not be required to             disabling condition, then by other less disabling
receive any more evaluations. A couple of weeks ago            conditions, if any, in the order of severity. Thus, a
I received a phone call from a place called QTC http://        person having a 60 percent disability is considered that said they were calling about                40 percent efficient. Proceeding from this 40
my recent claim for prostate cancer radiation. My              percent efficiency, the effect of a further 30 percent
radiation was done in 2003 so this was inaccurate. I           disability is to leave only 70 percent of the efficiency
told the lady that I was told that I would not have to         remaining after consideration of the first disability,
receive another evaluation and she wanted a copy               or 28 percent efficiency altogether. The individual
of the award letter. I faxed it to her. She then called        is thus 72 percent disabled, as shown in table I
back and said that, I was right that I didn't have to          opposite 60 percent and under 30 percent."
go to the exam. I am in (State). The person in (City)
that she is calling for is (Official's Name) with the V.A.     There, that was easy, wasn't it?
Next I get a letter stating that I was right, they would
make their decision on the current medical records             There's plenty more VA math where that came
and that they saw no need to keep my disability                from but as I have a life to get on with, I'll let you
at 100%, as my psa has been continuously down. I               continue reading on your own at http://frwebgate.
had a radical prostatectomy in 2002. Three months    
later my PSA rose again and I was given radiation.             RT=4&SECTION=25&YEAR=2003&TYPE=TEXT
Again my PSA rose during radiation. They stopped
the radiation and I was given Chemotherapy and                 VBA compensation is unique. The basis for your                              t        TOC    u                                            Page 137

disability rating is defined in 38 CFR, §3.321; General     that you continue to deserve your original award.
Rating Considerations. "Use of rating schedule. The
1945 Schedule for Rating Disabilities will be used          How would VBA determine that your rating
for evaluating the degree of disabilities in claims         may be lowered? By ordering you to undergo
for disability compensation, disability and death           a reexamination; §3.327 Reexaminations. (a)
pension, and in eligibility determinations. The             General. "Reexaminations, including periods of
provisions contained in the rating schedule will            hospital observation, will be requested whenever
represent as far as can practicably be determined,          VA determines there is a need to verify either the
the average impairment in earning capacity in               continued existence or the current severity of a
civil occupations resulting from disability."               disability. Generally, reexaminations will be required if
                                                            it is likely that a disability has improved, or if evidence
VBA uses a schedule developed between 1925                  indicates there has been a material change in a
and 1945 to determine your "average impairment              disability or that the current rating may be incorrect."
in earning capacity" while you are a civilian
employee suffering from a disability caused                 You've received notice that VBA is trying to lower
by or aggravated by your military service.                  your rating. You're mad as hell and you aren't going
                                                            to take it any more. You've written an angry letter
In §3.105, Revision of Decisions, we discover               to your Congressman as well as the VBA telling
your rating may be changed because there is (a)             them your condition has not changed and forcing
Error (b) Difference of opinion (c) Character of            you to drive to the VHA Medical Center for a C & P
discharge (d) Severance of service connection (e)           is a waste of everyone's time. You determine that
Reduction in evaluation—compensation. There                 the C & P examiner with QTC is a hired gun and
are others but for today we'll focus on (e). In (e)         you're better off not going to that examination.
the regulation tells us that, "Where the reduction
in evaluation of a service-connected disability or          Before you make up your mind to skip that C & P
employability status is considered warranted and            exam, read §3.655; Failure To Report For Department
the lower evaluation would result in a reduction            of Veterans Affairs Examination. (a) General. When
or discontinuance of compensation payments                  entitlement or continued entitlement to a benefit
currently being made, a rating proposing the                cannot be established or confirmed without a
reduction or discontinuance will be prepared                current VA examination or reexamination and a
setting forth all material facts and reasons."              claimant, without good cause, fails to report for
                                                            such examination, or reexamination, action shall
Moving on to §3.652 we learn, "Periodic certification       be taken in accordance with paragraph (b) or (c) of
of continued eligibility (a) Individuals to whom            this section as appropriate. (b) Original or reopened
benefits are being paid are required to certify, when       claim, or claim for increase. When a claimant fails to
requested, that any or all of the eligibility factors       report for an examination scheduled in conjunction
which established entitlement to the benefit being          with an original compensation claim, the claim shall
paid continue to exist. The beneficiary will be advised     be rated based on the evidence of record. When the
at the time of the request that the certification           examination was scheduled in conjunction with any
must be furnished within 60 days from the date of           other original claim, a reopened claim for a benefit
the request therefore and that failure to do so will        which was previously disallowed, or a claim for
result in the reduction or termination of benefits."        increase, the claim shall be denied. (c) Running award.
                                                            (1) When a claimant fails to report for a reexamination
We've established that VBA may propose a reduction          and the issue is continuing entitlement, VA shall
to your rating if a "reduction in evaluation of a           issue a pretermination notice advising the payee that
service-connected disability or employability               payment for the disability or disabilities for which the
status is considered warranted". We know that VBA           reexamination was scheduled will be discontinued
may require "Periodic certification of continued            or, if a minimum evaluation is established in part 4
eligibility". We're now aware that if VBA targets           of this title or there is an evaluation protected under
you and suggests that your rating be lowered or             §3.951(b) of this part, reduced to the lower evaluation.
eliminated, you have 60 days to refute that and prove                             t        TOC    u                                         Page 138

This complex set of rules goes on and on. There are        that locale. He needs to get to that C & P exam.
a few "protected" categories where you might feel
secure in maintaining your rating forever. The majority    As in most other things in our lives, the most effective
of us don't fall into those slots. We're vulnerable to     remedy for these issues is to be prepared. Before
reexamination and a lowered rating at any moment.          this happens to you, keep your records active. The
If you received your rating in the last decade, if your    very best thing you can do for yourself is to continue
medical condition has improved, if you started work        to seek ongoing, regular, documented treatment
at a new job after your award or if there have been        through your VHA network. Any ailment you have,
any other major changes to your lifestyle you're           whether or not it's connected to your claim, must
subject to an attempt to lower your rating at any time.    be recorded. The best place for it to be recorded is
                                                           in your VHA medical record. In the example above,
The Veteran who wrote me the email above is in a           our Veteran should have been seeking continuing
tight spot. He had a bad prostate cancer. It's one of      follow-up with his VHA primary care doctor and
the "presumptive" diseases and is easily connected         his specialty doctors to treat any other effects of
to his service in Vietnam. His medical treatment was       his prostate cancer. Has there been scarring that's
extensive and it was all life threatening. But, he seems   caused urinary retention, bladder infections, chronic
to have been cured. The PSA blood test is often still      severe pain or loss of bladder control? Prostate
thought of as the standard test to determine whether       cancer treatment often causes erectile dysfunction,
or not a man is developing prostate cancer or after        has our Vet sought a remedy for that problem?
treatment, the success of treatments. His PSA has          Are there issues of anxiety or PTSD secondary to
shown a steady normal result. Many men lead healthy,       facing cancer that have required treatment or anti-
productive lives after treatment for prostate cancer.      depressive medications? Has his overall health
                                                           declined as a result of his service connected illness
So, what should our Veteran do?                            and as a result he is unable to accomplish tasks
                                                           of daily living due to weakness and fatigue?
First, consider this exchange after our Veteran
receives the letter ordering him to the C & P exam;        If VA can take a look at his record and see in the
"I told the lady that I was told that I would not have     last couple of years that he's doing fairly well,
to receive another evaluation ..." That lady replied       you can bet that he's going to have a tough time
to our Veteran, "...and [she] said that, I was right       of defending his right to a 100% rating. If his last
that I didn't have to go to the exam...Next I get a        visit to his doctor demonstrated a guy fortunate
letter stating that I was right, they would make their     enough to be cured, who has no complaints and
decision on the current medical records and that           who is getting along nicely, he's got a problem. If
they saw no need to keep my disability at 100%..."         his record shows regular visits, at each visit he had
                                                           a complaint of some physical disturbance related to
Our Veteran didn't understand that by refusing or          his condition and that although his PSA was lower,
resisting the exam, that lady told him that, "When a       he still suffered from his disease, it's much more
claimant fails to report for a reexamination and the       likely his benefits will continue uninterrupted.
issue is continuing entitlement...payment for the
disability or disabilities for which the reexamination     Nothing in VA is Permanent and Total. Two plus
was scheduled will be discontinued or, if a minimum        two does not equal four. To be awarded a disability
evaluation is established in part 4 of this title or       compensation rating by VBA is the beginning,
there is an evaluation protected under §3.951(b)           not the end. Once you have that award letter, it's
of this part, reduced to the lower evaluation."            up to you to be in a state of constant readiness to
                                                           defend it. As the man said long ago; "It ain't over
If you don't show up for your exam, VA will look at        until the fat lady sings". When we are speaking of
your history that is reasonably available to them          our dealings with VBA, we'll never hear that song.
and adjudicate with only that evidence. I urged            It ain't over until long after they issue that final
him to get in touch with a local State or County           brass marker noting the end of our journey.
Veterans Service Officer for guidance. He needs quick
action by someone experienced with the VARO in                              t       TOC    u                                         Page 139

Read more of these regulations here... http://             our decision and what your rights are if                          you disagree with our decision.

04/03/2007 Denial Letter
                                                           John Doe
The moment you've waited for has arrived. Months           Service Center Director
ago you were advised that you were probably                Enclosures
qualified to receive an award of disability benefits
from the Veterans Benefits Administration (VBA).
You decided that you would do it yourself since
the application process didn't seem to be all that         Your denial letter will be longer than that and it'll
complex. You gathered together the records you             have enclosed a dozen or so pages of required
knew would be necessary, completed all the required        notifications about your right to appeal. Your letter
forms and submitted it all via registered mail to your     may reflect something other than an outright denial
local Veterans Administration Regional Office (VARO).      of your claim for benefits. If you filed for more than
                                                           one condition, VBA may notify you that one of your
During the months since you had some mail from             awards has been approved and the others have not.
your VARO asking you to submit more evidence               You may have been under the assumption that your
and apologizing for the delay. You found a guy who         condition would allow an award of 50% disabling and
had served with you and as he clearly remembered           VBA has granted only 20% disabling. If you applied
when you were injured, you asked that he submit a          for an increase of an existing award, that increase
Statement In Support of Claim...a “Buddy Letter”.          may have been denied outright or if awarded, it
                                                           may be at a lower rate than you think you deserve.
You signed off on the VCAA notice and told VA
you had no more evidence to submit and that                It's important to note that if you've filed for multiple
they should proceed with arriving at a favorable           conditions and VBA awarded a benefit on one or
conclusion and award you your disability rating.           more, they are not required to notify you of their
                                                           denial of other conditions you may have applied
You pick up your mail as usual today and there             for. You should be aware that if this is the case in
it is, a large brown envelope from your VARO.              your letter, your opportunity for appeal of those
Its weight is substantial, there's a lot of paper in       conditions is the same as it would have been had they
there. Your heart beats a little faster as you think       notified you. Whether they notify you or not, you
about the immediate future. You begin to calculate         have one year from the date of that letter to appeal.
the months times the money for the rating you
should get and the bills you can pay. It hasn't been       At the moment though, none of that
easy waiting this long but finally, it's done.             seems particularly important. Your only
                                                           thought is, “Now what do I do?”
You're careful opening the package VBA sent. It may
be important that nothing is accidentally damaged.         The very first thing you do is; Don't panic. That's
                                                           Rule Number One in the VBA Fight Club. When the
You read;                                                  VBA says “No”, it only means that you didn't tell
                                                           them what they wanted to hear in the language
Dear Veteran,                                              that was needed for them to award your benefit. Far
                                                           too many of us react in a way that allows anger and
We have reached a decision regarding your claim            frustration to cloud our vision and now more than
of June 15th 2005 regarding your condition                 ever, we need a clear head. This isn't the end, only a
of PTSD. Your claim that your condition is a               minor setback. We may have lost a little skirmish but
service connected condition is denied.                     we're going to regroup, attacking on a new front.

Below we will explain how we reached                       You have a year from the date of the letter to appeal.                                t       TOC    u                                           Page 140

You never want to wait that long but nether do you           C & P exam didn't support your allegations of the
want to make any rash moves. Read over your letter,          limitations of your condition? If that's so, you're going
put it aside for a day or two and read it over again.        to question the qualifications of that examiner to
In the denial you'll find precise instructions on what       perform a C & P on you. You may have to provide your
you didn't do that you now must do to complete               own Independent Medical Examination by seeking
your claim. While you have a year to appeal, you             out a qualified and experienced physician who will
want to accomplish your appeal in 60 days. There's a         refute the conclusions of the VBA C & P examiner.
reason to do that and I'll explain that in detail later.
                                                             Does that letter make you think that VBA
Here's a regulation that's supporting                        didn't have or didn't take into consideration
you as you go along...                                       a piece of evidence that you know to be very
                                                             important? As you proceed with your appeal
Title 38: Pensions, Bonuses, and Veterans' Relief            you're going to bring that up to them.

§ 3.103 Procedural due process and appellate rights.         Give yourself some time to get calm, get organized
(a) Statement of policy. Every claimant has the right        and develop your plan of attack. Then write your
to written notice of the decision made on his or             letter to your VARO to notify them that you will
her claim, the right to a hearing, and the right of          appeal. Go ahead and get this done soon.
representation. Proceedings before VA are ex parte
in nature, and it is the obligation of VA to assist a        Your letter should read similar to this below;
claimant in developing the facts pertinent to the
claim and to render a decision which grants every            DATE
benefit that can be supported in law while protecting        VARO ADDRESS
the interests of the Government. The provisions of this      REFERENCE: C-File Number
section apply to all claims for benefits and relief, and     Veterans Name
decisions thereon, within the purview of this part 3.        Ref # of Denial Letter (This is the 'Reply To' code)
                                                             VIA Registered Mail
(b) The right to notice —(1) General. Claimants
and their representatives are entitled to notice of          Dear Sir/Madame:
any decision made by VA affecting the payment of
benefits or the granting of relief. Such notice shall        I am in receipt of your letter of (DATE OF DENIAL
clearly set forth the decision made, any applicable          LETTER) in which you deny my application for
effective date, the reason(s) for the decision, the          an award of benefits for (CONDITIONS).
right to a hearing on any issue involved in the
claim, the right of representation and the right,            Please accept this document as my NOTICE OF
as well as the necessary procedures and time                 DISAGREEMENT (NOD) with your decision to
limits, to initiate an appeal of the decision.               decline my application for an award of disability.

The regulation requires the VBA to tell you in precise       I request that at your very earliest opportunity
terms what you must do to win. Whereas during your           you send me a STATEMENT OF THE CASE
first submission to VBA claiming a disability, you were      (SOC) as well as a VA Form 9 so that I may
sort of shooting in the dark, you now have precise           begin the process to appeal your decision.
instructions for exactly what it is you need to win.
                                                             Thank you for your kind assistance with this matter.
I can't emphasize enough that this is a time
for very rational, calculated thinking. It isn't             Respectfully submitted,
appropriate to get angry and begin firing off
letters to your Congressman about how you                    Veteran's Signature
were cheated. Don't get mad, get smart.                      Name
Read your letter carefully. Does it tell you that your       Telephone Number                               t         TOC    u                                           Page 141

Email Address
                                                              You have a much better chance of winning your
You'll notice that there is no information in this letter     case at the local level if, after receiving your denial
other than that to put them on notice that you will           letter, you prepare your New & Material evidence
appeal. The SOC request probably won't get you                and then ask for a “review” or “reconsideration” at
much more than what you already know. It'll rehash            the local level. Your VARO really doesn't want its
the information provided for you in the denial                decisions sent to the BVA. BVA will often enough
letter but it may be written in different terms and           either agree with the Veteran or send it back to
you may discern something new from that SOC.                  the VARO on “remand” so that the VARO will do
                                                              additional work on the case, usually favorable to
The VA form 9 is one used to send your appeal on to           the Veteran. This generates more work for everyone
the Board of Veterans Appeals in Washington, D.C.             and doesn't look good for your VARO. Your VARO
Requesting it is only a formality, we will do all we can      wants to give you those benefits and it's up to
to keep your case at a local level. Once it goes off          you to give them another chance to get it right.
to the BVA, it can be tied up for years with remands
back to the local level and so on. It's much easier and       Your next correspondence with your
faster to resolve your issue locally whenever possible.       VARO will read as follows;

Your first thoughts should be toward
convincing VBA that you are going to submit                   DATE
“New and Material” evidence to them. Here's                   VARO ADDRESS
a piece of the reg that defines this;                         REFERENCE: C-File Number
                                                              Veterans Name
§ 3.156 New and material evidence.                            Ref # of Denial Letter (This is the 'Reply To' code)
                                                              VIA Registered Mail
(a) General. A claimant may reopen a finally
adjudicated claim by submitting new and material              Dear Sir/Madame:
evidence. New evidence means existing evidence
not previously submitted to agency decision makers.           I am in receipt of your letter of (DATE OF DENIAL
Material evidence means existing evidence that, by            LETTER) in which you deny my application for
itself or when considered with previous evidence of           an award of benefits for (CONDITIONS).
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can         Please accept this document as my request for
be neither cumulative nor redundant of the evidence           reconsideration and/or Decision Review Officer (DRO)
of record at the time of the last prior final denial of       review and reconsideration processes at this VARO.
the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.           I do not accede any right to future traditional appeals
                                                              at BVA but I do wish to resolve our disagreement in
You won't win your appeal by simply going over                a more timely fashion, if possible, at the local level.
the evidence that VBA has already seen. In fact,
you'll have to work hard to convince them that                I have included New & Material evidence
your evidence is new and not “cumulative nor                  to support my original claim. This evidence
redundant”. This means that if you submitted                  is (EXPLAIN- IDENTIFY EVIDENCE).
3 or 4 “Buddy Letters” that support your case,
submitting 10 more won't help you.                            (This is also where you may argue your case. If you
                                                              believe evidence wasn't properly considered, say it
Earlier I told you that you have a year to appeal.            now. If your C & P wasn't correct, make that statement
You've started the appeals process by requesting an           now. Be brief, be factual, don't use any emotion. You
SOC as well as notifying your VARO of your intent             may quote applicable regulations that you think
to appeal. That's all well and good but here's where          apply in this letter. You're now 'speaking' on a one-
it gets interesting...and somewhat complex.                   to-one basis with another person. That person wants                            t          TOC    u                                           Page 142

to follow the law to a degree that if there is ample        at the local level using the DRO process will often
evidence to award a benefit, he will. Convince him.)        work wonders. The DRO was not part of the
                                                            team who made the original decision to deny
Thank you for your kind assistance with this matter.        your benefits. This individual is usually a senior
                                                            person with a lot of time in that chair making the
Respectfully submitted,                                     tough calls. The DRO is charged with a review
                                                            of your case from beginning to end and if you
Veteran's Signature                                         have provided the evidence necessary to prevail,
Name                                                        you're likely to see an award come your way.
Telephone Number                                            It's apparent that you want to develop your original
Email Address                                               application so that you don't have to experience the
                                                            trauma of a denial letter. The facts are that a majority
Below you'll find the regulatory authority                  of applications for benefits are awarded by VBA
giving you the right to take this route.                    upon the original application. Getting it done the
                                                            first time is the simplest for everyone concerned.
§ 3.2600 Review of benefit claims decisions.
                                                            If yours is denied, remember the first rule...don't
(a) A claimant who has filed a timely Notice of             panic. It all becomes a little more complex now
Disagreement with a decision of an agency of                but your benefits award is still very winnable. Keep
original jurisdiction on a benefit claim has a right        it local, do your homework carefully and you'll
to a review of that decision under this section. The        look back on all this as a minor inconvenience.
review will be conducted by a Veterans Service
Center Manager or Decision Review Officer, at VA's          Or, it's off to Washington with you...that's next.
discretion. An individual who did not participate
in the decision being reviewed will conduct this
review. Only a decision that has not yet become             04-11-2007 Veterans Service Organizations
final (by appellate decision or failure to timely
appeal) may be reviewed. Review under this                  I hadn't ventured into an American Legion Post
section will encompass only decisions with which            since the mid 1980s. When I walked in to Post 184
the claimant has expressed disagreement in the              in Thunderbolt, Georgia last night I remembered
Notice of Disagreement. The reviewer will consider          why. The first impression was that of stale beer and
all evidence of record and applicable law, and will         old cigarette smoke, a lot of old cigarette smoke.
give no deference to the decision being reviewed.           That was unusual since Georgia has joined the 21st
                                                            century and banned smoking in most places where
(b) Unless the claimant has requested review under          people congregate. Off to my right, at about 4:30
this section with his or her Notice of Disagreement,        in the afternoon, the canteen was bustling with
VA will, upon receipt of the Notice of Disagreement,        Veterans enjoying their refreshing adult beverages.
notify the claimant in writing of his or her right to a
review under this section. To obtain such a review, the     I stopped in the gent's room to find those little
claimant must request it not later than 60 days after       "Hanoi Jane" targets set in the urinals. They were
the date VA mails the notice. This 60-day time limit        cute as can be and representative of the overall
may not be extended. If the claimant fails to request       sophistication and dignity of the rest of the evening.
review under this section not later than 60 days after
the date VA mails the notice, VA will proceed with the      John Barrow (D) is in his second term as Georgia's 12th
traditional appellate process by issuing a Statement        District Congressman. I've had a pleasant exchange
of the Case. A claimant may not have more than one          of letters with him regarding the Veterans Right To
review under this section of the same decision.             Representation Bill. I was nicely surprised last year
                                                            when he listened to my concerns and signed on as
                                                            a co-sponsor of that piece of legislation. He earned
It's been my experience that keeping your claim             my vote then and now he works for me, my brothers                               t        TOC     u                                           Page 143

and my sisters. He is currently touring his district,         my time to participate in what was going to be
holding town hall style meetings for Veterans and I           an exchange of ideas, information, facts and
was there to listen to what my elected Congressional          opinions with a man who was in the position
Representative had to say about Veterans Affairs.             to affect all of our futures. This was going to be
                                                              great stuff even with such a small turnout!
The crowd was small, maybe 40 or a few more
people. That there were so few was disappointing              Soon after that a Vet began a long and rambling
for a military community like Savannah.                       discourse of how he had been mistreated by a C &
                                                              P physician who sent him to get an x-ray. He also
We're host to the 3rd Infantry Division at Ft. Stewart        seemed to believe that having to travel to Charleston
and Hunter Army Airfield sits in the center of the            for his exam was a personal affront and one of the
city. Nearby Beaufort, S.C. is home to Parris Island          worst things that ever happened to him. He was
where Marines have completed boot camp for                    angry and emotional far beyond what I would have
decades. There are tens of thousands of Veterans              expected for this minor bit of travel and I never did
and military retirees living here. I looked forward to a      understand why getting an x-ray became a major
standing room only crowd since VA & DOD scandals              issue. All I got from this sermon was that he'd filed for
are all we hear of in the news media today (second            a disability benefit, received a C & P exam and was
only to rumors that even more strange characters              waiting for adjudication...all pretty routine stuff.
have claimed to have sired Anna Nicole's baby).
                                                              He had no questions, he only wanted to tell
Surely, Veterans would turn out to grill our                  us how bad he had it. Thus began the overall
Congressman about the important issues that affect            downhill course of the next 90 minutes.
us all. Right? It's a shame that didn't happen.
                                                              I listened to shouted nonsensical diatribes of how
Barrow introduced himself and to his credit,                  this country is "ruinated" (“America is coming
gave a brief talk and scored some quick points.               to an end! IT'S ALL OVER!!!”) and about the vast
He's obviously done his homework and seems                    conspiracy amongst the VA & DOD to intentionally
sincere when he says that Veterans are “nickel                lose records, screw certain people out of their
and dimed to death” in their dealings with VA. His            benefits and then "blackball" them forever. There
take on travel pay for Vets seeking health care was           is “NO HOPE” for this country according to one
particularly interesting. More on that in a minute.           of my brothers in arms...we are apparently all
                                                              doomed because of his denial of benefits by VBA.
Impressive was his willingness to say, “I don't
know...” when confronted with a comment                       The "blackball" theory brought a lot of applause and
that stumped him. A couple of Congressional                   "Oh yeah!" in a boisterous display of support. BTW, the
Assistants were busy taking plenty of notes and               doctors are all in on it too and if you've ever offended
I believed him when he vowed to get answers.                  any one of them, the rest of them will blackball you
                                                              too. They apparently all know each other and have
Our little soirée began on a positive note as the             clandestine double-secret meetings about us.
Q & A began. A Veteran rose up and spoke to the
inconveniences of trying to get appointments with             The really old guy was there. You know him. He's at
local primary care providers and the 2 hour plus travel       all these meetings. It's the same guy each time, I'm
time to our VA Medical Center in Charleston, S.C. The         sure. He just travels around with his ever patient,
Vet was well spoken and made good points in favor             poor tired wife and by the time he's called upon
of a plan to allow certain Vets with certain conditions       to ask his question, he's forgotten what it is but he
to use selected local civilian facilities. He made a lot of   isn't about to give up his 15 minutes of fame. That
sense. Representative Barrow commented positively             stretches to at least 30 minutes and we don't quite
and spoke to how he would look at such a program              grasp any of what he's said. However, he's an Ancient
and addressed both up and down sides of the issue.            Warrior and he's allowed to speak uninterrupted
                                                              as long as he likes. Hey, at least he showed up.
Excellent! I was feeling pretty good about using                              t       TOC    u                                           Page 144

I also learned that the St. Louis fire that destroyed      ideas to fix the system...only the repetitive drone
all those records was no accident. It was a vast           of the problems we already know about.
government conspiracy to steal money and
benefits from Vets and all of those records are            Many of us refuse to learn how to use the health
actually on microfiche probably buried in a secret         care system to our advantage. I've never had an
mountain somewhere. Our Veteran brother                    issue with getting an appointment, never had to
who reported this knew that for a fact because             wait longer than I might have in a similar civilian
he was once a government employee and has                  facility, never been treated with anything but the
met Mr. Robert McNamara, a fine fine man.                  utmost respect by physicians and I know exactly
                                                           why. I use the system and I make it work for me.
Conspiracy theories drew the most applause, rounded
out by plenty of hooting and hollering. Government         There really weren't very many questions asked
incompetence and untrained and uncaring doctors            during our “Q & A” time so Barrow wasn't afforded
and other officials were popular themes. There was         much opportunity to offer his answers. I had a
the one fellow who stood and offered testament to          momentary vision of him hauling in a psychiatrist's
how good his VHA care was and that he owed his very        couch to each of these meetings and one by
life to the Veterans Health Administration. He wasn't      one we could lie down and spill our guts, pay
a crowd favorite and received some suspicious looks.       our nickel for the session and depart happy.
                                                           Thankfully, that moment passed rather quickly.
The meeting ended promptly at 7:00 PM. The
group had thinned out considerably by then. I              We Veterans won't learn the rules of the game.
had noticed a few had headed to the canteen.               I would venture to say that most attendees last
                                                           night had never read a Veterans Benefits guide.
By then I'd reached a couple of conclusions.               Veterans always seem surprised when they
                                                           discover that there are strict rules to the game.
We Veterans are our own worst enemy. We bitch and          This fascinates me when they act as if there are
piss and moan about all the injustice but we refuse        no rules at all on the civilian side of the coin.
to participate. When we're given the rare privilege to
interact one to one with a Washington D.C. lawmaker,       When it finally becomes obvious to them that
a mover and shaker, we stay home in droves.                there are rules and regulations, they decide that
                                                           the regs don't apply to them in their particular
It seems that since John Barrow is young, relatively       circumstance. When they're handed the required
new to the job, enthusiastic, smart and an avowed          paperwork to complete, rather than just doing
supporter of Veterans and their causes, we Veterans        so they'll go off about how unfair it all is.
make a decision, en masse, to ignore him. (There
must be a vast Veterans conspiracy afoot.)                 The thinking is always that if a task is inconvenient or
                                                           doesn't suit the mood of the moment, it should be
We don't offer suggestions on how to fix anything.         ignored. Then, when the benefits are denied or health
A dozen people stood up last night to shout                care isn't scheduled correctly, it's the conspiracy that's
out personal issues of their dealings with the             to blame, never the Veteran. It's much easier and
Veterans Benefits Administration. Each one                 more satisfying to believe that your circumstances are
seemed to think that neither Representative                always someone else's fault. Personal responsibility
Barrow or any of the rest of us realized that              and individual accountability don't apply to us.
the VBA is not a user friendly agency.
                                                           I've also concluded that we Vets may have a good
Presumably we were supposed to be shocked                  friend in Representative John Barrow. I say “may”
(SHOCKED!!!) when we were told that their claim            because he's as yet unproven. Like most Americans,
had been waiting a year with no action. We                 I've lost faith in politicians and my profound
listened to intimate details of negative experiences       distrust runs deep. He has a way to go to earn my
and poor judgments by BVA as if each one were              respect and trust but he's off to a good start.
a revelation. But there were no questions, no                              t        TOC    u                                          Page 145

Although he's not a Veteran, both his mother and            step aside, stand quietly at ease and let us get by.
father served. He's a true Southerner with deep family
ties to Georgia. I've forgiven him his education as         Lead, follow or get the hell out of our way.
a Harvard trained lawyer...we all have our faults.

Congressman Barrow has been paying close
attention to details about our lives. He's introduced
legislation (that recently made it through the House)
to increase our travel mileage reimbursement rate
from the current paltry 11¢ per mile to a whopping
48.5¢ per mile, the same that federal employees
presently receive for their travel. He's optimistic
that this will pass the Senate and become law.

While that may seem a small step in our favor,
it's a step forward any way it's seen. It's a
lot more than most other Representatives
are doing for us and speaks loudly about
his commitment to Veterans causes.

If you're a Veteran who doesn't vote, if you
refuse to learn about your benefits or how to
use the system, if you don't take time to voice
your opinions clearly to Washington, if you aren't
active to help other Veterans, if working with
your elected leaders is too much trouble for you
and if I've offended you, my task is complete.

If you're angry with me that I've pointed my finger
directly at you for not attending meetings with
your Congressional Representatives and working to
make change rather than just making noise...great!

If you're one of those, it's time for you to get away
from the couch and make a difference. Making real
change in our circumstances isn't going to be easy.
Like teaching an elephant to dance, you're going to
have to expend some blood, sweat and tears. You
should also try to act smarter than the elephant.

As a Veteran, you have an obligation, a
deep and forever lasting responsibility
to do more than sit around on your ass
moaning about how bad you have it.

There are tens of thousands and more new Veterans
joining our ranks right now, today and into the future.
They are as frightened and injured and battle weary
and confused as any one of us ever was. If you aren't
willing to rise up high on your hind legs to help
these young Veterans while you help yourself, then                               t          TOC    u                                          Page 146

Diamonds are forever. E-mail comes close.                      and you went on living your life. Today your back
June Kronholz                                                  is knotted with crippling pain and you're facing
                                                               a big surgery and a long recuperation. You file
                                                               your claim and you're quickly denied. The VBA
                                                               doesn't agree that your condition today is related
Jim’s mailbag 2008                                             to the event in your past. They explain to you that
                                                               they think your earlier injury wasn't chronic, that
Jim's Mailbag, later called Questions and Answers,             it was temporary and that you must have done
was a popular feature at the original VAWatchdog dot           something else to injure yourself since then.
Org. Today the latest questions from veterans and my
answers are hosted at the Stateside Legal web site. I'll       Another example could be an injury to a leg. You
be posting some of the best of the past Mailbags here.         were shot by a sniper, your thigh was shattered and
                                                               you spent months in a hospital healing. You were
You can use the "site search" to look for the                  young, you wanted to get up out of that bed and
topics that interest you or just read through                  you did heal. Within a year you were working again
all of it. I promise you'll learn something                    albeit with a limp. You raised your family, worked
valuable about your VA benefits.                               hard at being a great American and had a good
                                                               life until last year. Your gait had become steadily
You may run across broken links. If the URL                    more awkward as you grew older and you had been
is posted, copy and paste as you usually                       thinking that leg was weaker than ever and finally
would. I'll update links as I have time.                       it happened. You took a bad fall and injured your
                                                               knees, your lower back and you fractured a forearm.
Letters in my mailbag are reprinted just as they
come to me. Spelling and grammar are left as is                It's clear to you that the old injury was the cause of
and only small corrections are made to improve                 your fall and you filed for additional compensation.
readability, ensure anonymity or delete expletives             Those recent injuries have kept you out of work
that may offend some readers. This is not legal                and now you need financial help. The VARO takes
advice. You should always seek the advice of an                14 months to adjudicate your claim and denies
attorney who is qualified in Veterans law before               you any additional compensation. They don't
you make any decisions about your own benefits.                agree that your old wound was the cause of
                                                               your new problems. Maybe you slipped. Maybe
01-07-2008 The Nexus Letter, IME                               you were drinking. The VBA doesn't have to say
                                                               what has caused your recent predicament, all
Your claim for a Veterans Benefits Administration              they need do is tell you that they've concluded
(VBA) disability compensation award must be                    it wasn't connected to your military service.
based on irrefutable evidence. If your claim leaves
any doubt in the mind of the ratings specialist who            It's possible you were exposed to Agent Orange,
makes that award decision, you'll be denied.                   carbon tetrachloride or any one of the hundreds
                                                               of lethal chemicals, biohazards or radioactive
If you can't prove it, it didn't happen.                       substances that we took for granted back in the day.

This is often the case when you allege that an injury          Now you have a cancer, your lungs have scarred
or illness that occurred in service has worsened               with emphysema, cataracts have blinded you or
over the years. While the condition may have been              you have Type 2 Diabetes and you've become
relatively minor then, it's significantly disabling today.     dependent on insulin many times each day. You well
                                                               remember the barrels of chemicals you loaded on
An example might be a back injury. It's there                  those ships, you were bathed in the stuff. You know
in your service medical record (SMR) that you                  that the exposure to all of that is at the root of your
received treatment and you were assigned to                    health problems today, you are confident that you'll
light duty for a week or two. Later you might                  qualify for help from your VBA and you seek out a
have had some complaints but nothing serious                   Veterans Service Officer to help you file a claim.                              t        TOC    u                                            Page 147

A year later you receive the letter from your Veterans      assume that your claim was well documented as
Affairs Regional Office (VARO) denying your claim.          to the nature of your service, when and where
They explain to you that your military service              you served and your health then and now.
doesn't qualify you for benefits because you don't
fit the established criteria that would fit you on to a     The disagreement between you and your VBA may be
presumptive list for an award. The VBA doesn't deny         seen as a simple one. You claim cause and effect, your
that you were exposed to the hazards that could             VBA denies that. A solution to the disagreement often
have caused your illness. All they are required to          lies in a nexus letter. A simple definition of nexus
do is determine whether your exposure meets the             is: Tie; bond; link; connection or interconnection.
strict criteria of timing or geography and that ends
the game. Your problems aren't their problems.              To show that there exists a connection between
                                                            your documented service event (exposure to CBR
Now what?                                                   elements, wounding, illness) and your condition
                                                            today (cancer, worsening of original injury, etc.)
Let's back up a minute and review the                       requires that you present the favorable opinion
regulation that sits at the heart of all this;              of an expert who agrees with your thought
                                                            process. This is known as a nexus letter.
Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION                                         To be effective, your nexus letter must
Subpart A—Pension, Compensation, and                        fulfill a number of obligations.
Dependency and Indemnity Compensation
Ratings and Evaluations; Service Connection                 The author must be an expert. This is most often a
§ 3.303 Principles relating to service connection.          medical doctor who is board certified in the area of
(a) General. Service connection connotes many               health that's at issue. If a cancer is the condition, an
factors but basically it means that the facts, shown        oncologist is preferred. If an old injury to a bone is
by evidence, establish that a particular injury or          in question, an orthopedic surgeon is the obvious
disease resulting in disability was incurred coincident     choice. PTSD has become more controversial in
with service in the Armed Forces, or if preexisting         recent years and it's accepted today that a clinical
such service, was aggravated therein. This may be           psychiatrist or psychologist is the gold standard
accomplished by affirmatively showing inception or          for opinions related to the condition. It helps if
aggravation during service or through the application       your doctor will provide a curriculum vitae (CV)
of statutory presumptions. Each disabling condition         stating the areas of their expertise and education.
shown by a veteran's service records, or for which he
seeks a service connection must be considered on            The expert who signs your nexus letter must have
the basis of the places, types and circumstances of         thoroughly reviewed all available and pertinent
his service as shown by service records, the official       medical records and state that fact in the letter. If
history of each organization in which he served, his        your expert can't reasonably verify that all records
medical records and all pertinent medical and lay           were reviewed, the letter won't be of much value.
evidence. Determinations as to service connection
will be based on review of the entire evidence of           Although it may not always be an absolute
record, with due consideration to the policy of             requirement, it will lend a lot of weight if the writer
the Department of Veterans Affairs to administer            of your nexus letter has recently examined you.
the law under a broad and liberal interpretation
consistent with the facts in each individual case.          When writing a nexus letter, a few points to
                                                            remember are in order. The letter should be as brief
In plain language that regulation means that the VBA        as possible while stating facts. The doctor who
must consider all the evidence you've submitted.            writes your letter does not have to use absolutes
That includes all of your military service and the          or conclusions in his or her statements. Opinions
conditions under which you served, where you                are made based on conjecture of observing facts
served, your current condition, and all medical             and possibilities arising from those facts.
and lay evidence. For the discussion today, we'll                              t         TOC    u                                           Page 148

This means that the author isn't required to say that        value of a medical opinion is generally based on
one thing definitely caused another, only that it might      the scope of the examination or review, as well as
have or is likely to have led from point A to point B.       the relative merits of the expert's qualifications
                                                             and analytical findings, and the probative weight
The preferred language to describe an expert's               of a medical opinion may be reduced if the
opinion should express whether "it is more likely            examiner fails to explain the basis for an opinion.
than not (i.e., probability greater than 50 percent),
at least as likely as not (i.e., probability of 50           If private clinical reports are not accompanied by
percent), or less likely than not (i.e., probability         the same kind of specific clinical and laboratory
less than 50 percent) that (the condition) was               findings as is the case with the VA clinical evidence
incurred or aggravated during active service.                of record, nor are they supported by any convincing
                                                             medical findings or rationale, weight of the VBA
A complete rationale for all opinions should be              evidence may exceed that of the nexus letter and
expressed. For example, your doctor might point              the claims for service connection may be denied.
out that you have no family history of diabetes or
cancer and that you have no known risk factors               Let's now take a look at the basics
that might have otherwise precipitated your                  of a good nexus letter;
condition. This leads to the conclusion that your
known exposure to a carcinogenic chemical
during your military service is more likely than             DATE
not the cause of your current condition.
                                                             Reference: YOUR NAME
The same might apply to that earlier back problem.           YOUR ADDRESS ETC.
Your physician could state that as it is recognized in
medical literature and in his own personal experience        To Whom It May Concern;
that a leg injury that causes an alteration of a
person's gait often progresses on to issues with one's       I am Dr. Quack. I am board certified to
back. Your doctor should point out that between              practice in my specialty. A CV is included.
the time of the original injury and today, there is
no other know injury that could account for your             Mr. John Doe is a patient under my care since
condition today. Thus, it is reasonable to assume            DATE. His diagnosis is YOUR CONDITION, etc.
that it is more likely than not that your original
injury is the cause of the condition at issue today.         I have personally reviewed his medical history
                                                             (NAME DOCUMENTS) and I've also reviewed
In each of the above examples, the clinical                  his history of the (EVENT OR EVENTS YOU
nexus is established. There was a causation                  CLAIM ARE THE CAUSE OF YOUR CONDITION)
in military service and an effect today.                     while he served during his military service.

In determining whether service connection                    I am familiar with his history and have examined
is warranted for an alleged disability, VA is                Mr. Doe often while he has been under my
responsible for considering evidence both for                care. (SPECIFY LAB WORK, X-RAYS, ETC.)
and against the claim. If the evidence, as
a whole, supports the claim or is about evenly               Mr. John Doe has no other known risk factors that
balanced, the veteran prevails. If the preponderance         may have precipitated his current condition.
of the evidence is against the claim, then it is denied.
                                                             In my personal experience and in the
However, the adjudication of the claim by the VBA            medical literature it is known, ETC.
includes the responsibility of determining the
weight to be given to the evidence of record, and            It is my opinion that it is more likely than
this responsibility includes the authority to favor          not that Mr. John Doe's condition ETC.
one medical opinion over another. The probative                               t      TOC       u                                         Page 149

SIGNED                                                      These IME opinions may cost from $600.00 to
                                                            $1500.00 or more. There is no guarantee that
Dr. Quack, M.D.                                             the IME doctor will agree with your thinking
                                                            and if the report you receive is not in agreement
                                                            with you, you don't get your money back.
The nexus letter should be as detailed and
complete as your circumstances dictate.                     In practical terms, the nexus letter is a powerful tool
                                                            for the Veteran to use to establish a claim. Often
Many physicians, both civilian and VA docs, are             enough the VA will recognize that the physician
reluctant to write such a letter. Sometimes, they           who writes your nexus letter is better trained,
are concerned that there are legal pitfalls that            better experienced or spent more time examining
can arise from writing disability letters and they          you than a VA Compensation and Pension (C&P)
want to avoid such. While there probably are                examiner did. In many cases at the VARO level
some legal issues to consider, I'm not aware of             as well as the Veterans Board of Appeals and in
any physician ever suffering any repercussions              higher courts, the expert opinion expressed in
from writing a truthful, factual nexus letter.              a nexus letter has been the deciding factor that
                                                            wins a Veteran those well deserved benefits.
In my experience, the physician is most often
simply too busy to write such letters or isn't              The nexus letter may require a lot of
sure of the proper statements to make.                      effort on your part and an investment of
                                                            money that you can hardly afford.
I recommend that you write the letter for your doctor.
If you elect to do this you must carefully construct        It may also be the single best investment
every word to ensure that there is nothing in the letter    of time and money you'll make. Don't give
that the doctor could disagree with. Keeping it simple      up on your claim until you've tried it.
is most likely to lead to your doctor signing the letter.

Your best bet to have your doctor agree with                01/18/2008 Denial
you and write the letter onto his letterhead is
to approach him or her directly. Don't hand it              Jim;
off to a receptionist or nurse to do for you.
                                                            You once made the statement (VA Watchdog dot
If your personal doctor won't write such a letter,          Org -- 04-03-2007 #4 ) that if there are multiple
you'll have to seek out a physician who specializes in      claims on one form and one of the conditions are
Independent Medical Examinations or IME's. These            ruled on, that the VA is not required to report the
doctors are relatively scarce and they are often paid       status of the other claims. I have also heard it stated
by the Social Security Administration, insurance            as: If you have multiple claims on one form, and
companies and businesses to evaluate the extent             you receive a letter from the VA that one of them
of injuries of claimants. The IME doctor is a good          has bee denied, that they have no obligation to
choice for you to turn to and I highly recommend            notify you regarding the other claims on that same
that you do so if you believe that an independent           form submission, and you should consider them
review of your case would help you. The doctor who          as denied also. Can you tell me if my wording/
is a specialist in Independent Medical Examination          interpretation is correct, and if so, where I can locate
is usually thought to be above reproach as their            any VA document that supports this. Thank you for
living depends on their reputation as an impartial          shedding any light on this matter that you can.
reporter of facts. They will often know the language
that's needed very well and they spend a lot of
time examining you and reviewing your records.              Reply;

The IME doctor may be expensive and you must                The M21-1MR at
pay your bill up front and out of your own pocket.          M21_1MR.html#3v is where your answer lies. It                               t     TOC      u                                      Page 150

gets very complex but that's correct, VBA isn't           Jim;
always required to notify you of denials.
                                                          I have another question for you I have a previous
Look at M21-1MR, Part 3 - General Claims                  injury (service connected) that I made a claim for and
Process, Subpartv - General Authorization Issues          was granted sometime ago but as of right now it has
and Claimant Notifications, Chapter 2 - Award             gotten worse according to my doctor I am not sure on
and Denial Authorization and Notification,                what to write on the 21-4138 on how to state my claim
Section A - Award and Denial Authorization,               for a reevaluation could you help me out with this
4. Handling Denials Not Processed Through
the Benefits Delivery Network (BDN),                      Reply;

"Some denials do not require the VSR to process           It's really very simple. In plain language, tell them
a formal disallowance with completion of a BDN            just what you told me. You believe that your service
405 screen and a system-generated denial.                 connected condition has worsened and that you are
                                                          sure that your compensation rating should be raised.
This topic contains information on
handling informal denials that do                         I usually suggest that a statement is kept
not require BDN processing, including information on      simple yet detailed. As an example;

• an informal denial
• award and denial action taken at the same time          Date
• temporary award of a benefit pending                    VARO Address
award of a greater benefit
• grants or continuations of                              Reference: Your name & numbers
additional benefit amounts
• cases in which evidence warrants no                     Dear Sir/Madame:
change in the previous decision
• new claim denied for the same reason                    I received a service connected rating
as previously-denied claim                                of (x) % in (year). My symptoms
• denied apportionment claims                             at that time were (describe).
• informal claims, and
• applications not substantially complete."               In recent months it has become apparent
                                                          to me that this condition has
In the second bullet point is the verbiage and it all     worsened. Today I suffer (describe).
boils down to the fact that the VSR does not have
to process a system generated denial (a letter) if        The increase in my symptoms and
there is an award and denial at the same time. Thus,      medications has caused me to suffer
if you win your first claim and lose three others,        more side effects from medicine
the VBA is required to notify you of your win but         (describe all medication side
may never tell you that the others are denied.            effects...nausea, dizziness, dry mouth,
                                                          weakness, sleeplessness, etc.)
There are many definitions and circumstances
that play in there too so this doesn't happen             I must take (x) medicines and that is
often but it does happen. Now you have the                an increase of (x) amount since
link to the M21-1MR, I'll let you dig into the            I was last examined.
details and Do It Yourself. Happy reading!
                                                          I have missed work more often because (describe).

                                                          I find that I am often unable to
                                                          (describe any activity of daily
01/18/2008 Raise % of Existing Rating, Letter Template    living you may find challenging.                              t          TOC    u                                          Page 151

Food prep, lawn care, driving,                                true? If it is true. What route should we begin to
grooming, etc.).                                              take if the surgery and or hearing aides are our
                                                              only choices? Should we go ahead and request
I believe my condition has affected                           the increased compensation now with the new
my mental health. I find myself                               information that we know he has had more of a
frustrated, angry, unable to work                             hearing loss since his last hearing test because we
well with others, my family                                   are sure that the surgery or hearing aides will take
relations are poor, etc.                                      time before either of those options are available.

Respectfully submitted,                                       I realize I am requesting this information on short
                                                              notice and for this I apologize, but any information
Name                                                          that you can provide would be greatly appreciated.
Address, etc.
When you mail this to them, use only
registered mail, return receipt requested.                    The VA won't lower or eliminate the 20%
                                                              compensation if he accepts hearing aides.
You get the idea. You can use the standard form               Those devices may improve his ability to hear
and attach a letter or you may simply write a letter.         but don't correct the underlying disability.
What you want to do is to effectively communicate
every factual detail about your condition and                 Your friends are sort of on the right track though.
how it has had an impact on your life. Every                  I imagine that they're trying to tell you that if a
detail is, sexuality, the ability to         Veterans condition is measurably improved in some
participate in a normal life...all should be reported.        circumstances, the VA is obligated to reexamine the
                                                              veteran. If the improvement would put the Vet into
Respect and courtesy are important. Expressing                a different rating percentage, that may happen.
anger or financial need doesn't help, it just takes
up more time. Stick to the facts of your condition. A         The VA considers that many conditions are temporary
raise in a rating is usually a simple matter if you are       and likely to improve. If a Vet is hospitalized for 3
correct. This letter will trigger a C & P exam and then       months because of a combat wound, he's rated at
a decision. If the decision isn't favorable, you appeal.      100% during his hospital stay and then 6 to 12 months
                                                              later, an appropriate level of rating will be assigned.
01/22/2008 Hearing
                                                              If your husband had surgery and it corrected
Jim;                                                          his disability, VA may see that as an opportunity
                                                              to reexamine him and assign a lower rating.
My husband is currently drawing 20 percent disability         I doubt it though. His rating is low...20% isn't
for service connected hearing loss. Approximately             a red flag to VA and even if surgery provided
a month ago we went to the VA hospital to have                some improvement, I think it would be easy to
another hearing test done so that we could request            argue that it wasn't perfect and any residual
increased compensation for having lost more hearing.          scar would have to be assigned a rating.

He has another VA appointment tomorrow (Jan.17th),            Yes, if his hearing exam shows any worsening of
to discuss with a doctor the results of the hearing test.     his condition, it may be a good time to file for an
                                                              increase. If you're undecided after you talk to the
I have several questions for you so that we can               doc tomorrow, reply to this email and I'll refer you
know what we need to ask. First and foremost, I               to a friend who is a terrific VSO and has a wealth
have been told by several friends that should he              of knowledge on hearing related issues with VA.
receive a hearing aide and or surgery to correct              He'll give you many better details than I can.
the hearing loss, we are at risk for losing what
compensation we are currently receiving, is this                                 t          TOC    u                                         Page 152

01/22/2008 Medicare, Part B                                      I have been reading your column for some time and
                                                                 really appreciate the help you are providing veterans
Jim;                                                             in dealing with the cumbersome VA system. I am
                                                                 sure there are many veterans who are in the same
If you are tdiupt and SSDI, have a very good close               situation that I am. I have been receiving SSDI for 24
VAMC where you get all medical care plus dental,                 years which enabled me to be covered by MEDICARE.
have no copays or drug costs, do you really need                 For 7 years I have been rated as having a service
Part B Medicare? I have read some of your past                   connected disability, currently rated at 70% disabled.
articles on this but wanted an updated opinion.                  I live in a rural area 200 miles from the nearest VAMC.
The only justifiable reason I can see to elect to have
Part B would be if you moved to a remote location                Under MEDICARE I could see physicians of my choice
of the US that did not have a VA facility nearby and             in the nearest town. Some specialty physicians
even then I understand that there is a FEE BASIS                 are available in the nearest town. Virtually all
program for a situation like that for private care.              specialties are available within 30 miles. There is
                                                                 a hospital with emergency room in the nearest
What am I missing? Please straighten me                          town and a major hospital center within 30 miles.
out with the facts and or your opinions.                         Under MEDICARE, I had the same Primary Care
                                                                 Physician for 15 years. I was able to receive both
                                                                 primary and specialty care with only a short wait
Reply;                                                           and emergency care as needed within 8 miles.

I have the same benefit set you do and I kept my part            At some point, in the last several years, the VA was
B. I drive about 2 hours to access my VA hospital, my            designated as my primary health care provider
clinic is nearby. My logic is that just in case I ever elect     and MEDICARE as the secondary provider. This
to use the civilian system, it's a small price to pay.           has meant that I must receive primary care at a
                                                                 nearby community clinic with long waiting lists
What I haven't done is buy into a Medicare                       and frequently changing physicians and staff. Any
Supplemental policy such as the product AARP                     specialty care must be referred to the VAMC with
hawks constantly. I figure if I have a catastrophic              many months waiting list for appointments.
event and I'm taken to a local ER I won't tell
them I have Medicare...I'll say I have VA only.                  I learned that MEDICARE had been changed to
That way I'll be transferred to a VA facility and                my secondary provider when I severely fractured
VA will pick up the tab. It's a calculated risk.                 my wrist. I was treated at the local emergency
                                                                 room and then referred to a hand specialist in a
A word of you do have both, if you do               nearby town. Eventually he ordered specialized
choose a civilian provider in the future, you may use            occupational therapy by a hand specialist 3 times
either VA or Medicare. If you use VA it must either              a week for 4 months. Customized splints and other
be a life threatening emergency or you must have                 appliances were required. As a result of this therapy,
pre-approval. If you arrive at a hospital and present            surgery was avoided. Unfortunately, MEDICARE
both forms of "insurance", you may find that both will           declined coverage since they are now designated
decline to pay saying that the other is responsible.             as secondary provider. The VA declined to cover
                                                                 saying that I should have driven the 200 miles
Below this reply I'm reprinting a 2007 letter                    to the VAMC (a physical impossibility) and there
from a Vet who got caught in a Medicare v. VA                    was no proof, despite multiple X- rays and exert
benefits tangle. It was an interesting situation.                medical testimony, that the therapy was needed.
This is worth reading again for those who
have Medicare and VA health coverage.                            When an individual lives a considerable distance
                                                                 from a VAMC and has MEDICARE or other
2007, Medicare, Emergency Services                               insurance, it is no benefit to be forced into the
                                                                 VA health care system. I understand the need for
Jim:                                                             the VA to monitor my disability and am happy                            t          TOC    u                                          Page 153

to provide copies of any medical records for                Enter the Veteran who has both VHA healthcare and
any condition. However the burdens of the VA                a Medicare card. In this instance, Medicare may or
medical system are preventing me from receiving             may not be the primary payer for just
medical care. How can I restore MEDICARE to                 depends on circumstances. If our broken-wristed
my primary healthcare provider? Thank you.                  Vet had gone to a VHA facility, the VHA would
                                                            have automatically become the primary payer...
Reply:                                                      to the VHA. This means that VHA would have taken
                                                            on the total responsibility to fix that fracture or to
This was a new one on me. At about the same                 refer the Veteran to an outside specialist on a fee
time I received this, I had another Veteran reader          basis contract. VHA would have been responsible
who cautioned me, "Medicare Part A may not                  to cover it all except for any copays the Vet may be
be free to Veterans enrolled in the Va medical              required to make with a rating of less than 100%
system. If you have Medicare, It may cost you               disabled. In this case though, our Vet took that
your Veterans benefit of being treated in a non-            fracture to a civilian facility. That's understandable,
Va hospital in case of an emergency...just having           she was in pain and needed emergency treatment.
Medicare Part A could disqualify a veteran."
                                                            So why the problems with billing?
The rules that govern Veterans Health Administration
(VHA) benefits are complex. If you ask a question           As the Veteran and I thought this through, we
of 5 experts at 5 different places, you may well            determined that as she was being checked
receive 5 different answers. The Medicare benefit is        in through the civilian facility's emergency
no less complex with its requirements for different         department, she probably handed over her
plans for hospitals (Part A) that are separate of           VHA Identification card and also her Medicare
those for physician providers (Part B) and the              card. The hospital always wants to ID the patient
need for a supplemental policy and a drug plan.             and assure themselves of future payment.
When you mix them all together, you concoct a
witches brew full of hazards and pitfalls. Like so          In formal medical terms, this important, complex
many other aspects of our lives with benefits,              procedure is often referred to as The Wallet Biopsy.
stepping off on the wrong foot may set in motion
a situation that will take a lot of work to remedy.         Our Veteran, being in serious pain from that fracture,
                                                            hadn't called or even considered going to the VA
In the case of the Veteran with a broken wrist we           facility. She was treated, released and received
discovered that there is a little known program (at         some ongoing therapy without VA being involved.
least to the average user) within Medicare known            Then she was notified that VHA wasn't paying the
as Medicare Second Payer or MSP. In concept,                tab for all this and since Medicare was designated
this is fairly easy to understand. If a Medicare            as the Secondary Payer, neither were they.
patient has another insurance provider, that other
insurance is almost always viewed as the one to             It took us a couple of days before we had our
bill first. For example, if a patient is working and        "Ah-Ha!!!" moment. Once the penny dropped, we
has private insurance through the employer and              soon determined that the hospital's insurance
also has Medicare, the private insurance should             and billing department, seeing that VHA card,
be the first billing target by any health care              had billed them first, then Medicare. This was an
provider. Then later, Medicare may or may not pick up       error of the civilian facility's billing department.
and pay any charges that the primary payer didn't. If       Medicare saw that VHA had been billed and
you have private insurance and Medicare, Medicare           assuming that it was an authorized (fee basis by
is clearly seen as the Secondary Payer or...MSP. This       VHA) procedure, declined to deal with it. The VHA
also applies to civilian (non-VHA) disability insurance     declared that they were not notified and had not
or workman's compensation. Those payers are billed          pre-authorized fee basis so it wasn't their problem.
first as the primary insurer and Medicare is second.
                                                            Our Veteran, armed with all this information, called
Are you confused yet? Just wait...                          her local Medicare offices and spoke with the                            t         TOC   u   Page 154

Coordinator of Benefits or CoB. Incredibly, the CoB
understood and instantly agreed and said that it
would be taken care of and that in about 2 weeks, all
the civilian providers should re-submit their bills to
Medicare for payment. Records were to be corrected
and would show Medicare as the primary payer.

If you are one of the very fortunate Veterans who
have both a Medicare benefit and also a VHA
benefit, how you receive your care is largely up
to you. You may choose to use civilian providers
for all or some of your care or you may stick
with your VA care all the way. If you have both
insurances available to you, you may have the most
flexible health care plan available anywhere.

On the cautionary side of all this is that you should
plan in advance on exactly what you want to do and
what makes the most sense for your health and your
finances. Whether you have all these benefits or only
one, advance planning is the key to smooth sailing.                                t       TOC      u                                         Page 155

“The Internet? Is that thing still around?”                  Jim;
Homer Simpson
                                                             Is it not true that Veterans are entitled to all cost
                                                             associated in winning their claim to include an
Jim’s mailbag 2009                                           independent expert medical opinion, of which
                                                             cost me $2,000? I saw a news flash addressing a law
Some of the links in here may be broken. If you'll           that was past year talking about... but can not find
take a minute to report broken links or any typos            now. If so... to whom and what office handles the
you find, I'll do what I can to get them fixed.              reimbursement? The 800 # folks to me to submit to
                                                             Phoenix regional on a Form 21-8416b (Expert Witness/
<>                                 Medical Reimbursement) to the Regional Office in
                                                             Sep. '08. It just sat in my C-file. Then they told me to
POSTED 01-13-09                                              submit on a Form 10-583 to the 'Fee Basis' office at my
                                                             local VA hospital. They have no idea what to do with
Jim;                                                         it. Who is suppose to be doing the reimbursement
                                                             of these cost incurred in pursuit of ones case??
I have been going to the VA hospital for 7 months
and my Psychiatrist told me who would not allow
me back to work and said i was mentally unstable             Reply;
and recommended i file for SSD so i did and was
approved. Then i filed for P&T in september 08, and          I get this question about once each month.
today i received a letter from QTC stating that the VA
has scheduled a C&P exam for me. I am already 100%           The form is "VA Form 21-8416b Report of
combined rating. do they always do this to Veterans          Medical, Legal, and Other Expenses Incident
filing for P&T? Is the VA trying to lower my rating now,     to Recovery for Injury or Death".
I lost my job because the VA doctors would not allow
me back to work. Is there a chance it can be lowered         Notice that it says "Report". This is not a "Claim Form".
by this C&P exam, even tho the VA doctors said i had a
mental impairment and would not allow me to work.            Claimants complete VA Form 21-8416b to report
                                                             compensation awarded by another entity or
Reply;                                                       government agency for personal injury or death.
                                                             Such award is consider as countable income;
Any time your folder is opened for any action the            however, medical, legal or other expenses incident
guy looking at it has the goal of lowering your              to the injury or death, or incident to the collection
rating. His first objective is to find a reason to cut       or recovery of the compensation may be deducted
your benefit. Then he'll move on to your claim.              from the amount awarded or settled. The information
                                                             collected is use to determine the claimant's eligibility
It isn't so much the C & P exam that                         for income based benefits and the rate payable.
gets you, it's the overall process.
                                                             In M21-1MR, Part V, Subpart iii, Chapter
This is why I always advise caution when asking              1, Section C, you see how the report may
for increases. If you have rock solid evidence               be used to lower your pension;
that you deserve an increase or a change in
status, you deserve it and should apply for it.              "The following types of income constitute countable
If you have any question at all about how solid              income for Section 306 Pension purposes:
your case is, it's best to let sleeping dogs lie.
                                                             *total income from employment, business
                                                             (minus operating expenses),
                                                             interest or rents
                                                             *income of a veteran's spouse in certain circumstances
                                                             *inheritances and gifts of money, including                               t       TOC      u                                          Page 156

contributions from adult children                           Jim;
*unemployment compensation
*retirement type benefits, at 90 cents on the dollar        I would like to know if I have a valid claim concerning
*life insurance proceeds and the                            Hashimoto's Thyroiditis. I have lab test results from
proceeds of commercial annuities,                           1984 that were within normal limits at that time. New
counted at 90 cents on the dollar,                          levels were developed around 2003 and, according to
and                                                         my 1984 results, show that I was hypothyroid at that
*compensation for injury or death."                         time. Would the new levels for hypothyroid be valid
                                                            for the earlier results? I was medically retired in 1992
In other words, you don't complete this form to             and was diagnosed with Hashimoto's Thyroiditis in
get reimbursed for your out of pocket expenses              1997. At that time (1997), according to the diagnosing
for preparing your disability compensation                  doctor at East State University, I was in a thyroid crisis.
case, you complete this form if someone else                From what I have read, it takes years for a thyroid
reimburses you for such an expense and you                  crisis to develop, which, in my opinion, supports my
are applying for pension or have a pension.                 claim of being hypothyroid while on active duty.
That amount is held against you as income.
                                                            In a nutshell: can new thyroid functioning levels
The 10-583 is a claim form to reimburse for                 support a claim when the original lab results were
unauthorized medical services. A physical exam              within normal limits at that time. Thank you.
(IME) is not a "medical service" as there is no
treatment given nor doctor-patient relationship             Reply;
established. An IME is an expert consultant's
legal opinion rather than a medical service. As             Your question can only be answered by
a rule, VA never reimburses anything that isn't             applying for the benefit and awaiting the
pre-approved. Even then it's like pulling teeth.            outcome. It would be impossible to foresee
                                                            the possible reasons to approve or deny.
They won't pay a fee to have your civilian records
copied much less for any examination:                       Apply and appeal is ultimately the way to answer that.

"(c) VA's duty to assist claimants in obtaining
evidence. Upon receipt of a substantially complete          POSTED 01-16-09........
application for benefits, VA will make reasonable
efforts to help a claimant obtain evidence necessary        Jim;
to substantiate the claim. In addition, VA will give
the assistance described in paragraphs (c)(1), (c)(2),      I promise this to be my last e-mail to you over
and (c)(3) to an individual attempting to reopen a          the subject. I, again, have read your advice
finally decided claim. VA will not pay any fees charged     on taking a C&P exam. I find it to be the most
by a custodian to provide records requested."               informative advice to date off the Internet.
&sid=36bc623dde18902f1daae53c8d11b8e0&rgn=d                 I am taking my exam on the 20Th of this
iv8&view=text&node=38:             month, one week, and I am nervous and full
                                                            of anxiety. I realize that this is going to be my
                                                            final attempt for a disability rating. This exam is
I'm sorry to tell you that I'm of the opinion               given after I had to appeal to a DRO with more
that you aren't going to be reimbursed for the              evidence. Two and a half years in the making.
doc's fees. If there had been a passage of such
a new rule, word would be spreading like a                  Two final questions. Does taking this exam, as
wildfire and physicians would be inundated                  ordered by the VA, mean that the VA accepts that
with veterans scrambling for exams.                         they acknowledge that I have a service connected
                                                            spine injury and this exam is for the sole purpose of
                                                            helping to determine a rating percent? And second,                               t      TOC      u                                        Page 157

I must walk with a cane, but a disabled friend of          fact is that I've often advised against such a charade.
mine who served with me in '62 has advised me to
use a wheel chair. I do have notes in bullet form to       The bottom line is that if you feel you must fake a
give to the examiner. And the exam is held at the          symptom, it's doubtful you deserve the benefit. If you
VA medical Center in where I receive treatment.            do fake a symptom to win a benefit award, you're a
                                                           cheat and a fraud and your activity harms all of us.
I say no, even though I probably will be in one
in the near future, but not now. Is he helping             If you have to ask me where you should draw
or hurting my case with this advise?                       the line, your moral compass is seriously off the
                                                           mark. If my answer bothers you...don't ask.
                                                           I'll continue to call 'em as I see 'em.
If you don't actually use a wheelchair, what do
you think? If you aren't blind, should you take a          Jim;
guide dog you borrow somewhere? Maybe an
ambulance to haul you in? Where would you draw             I have read your column on nexus letters with great
the line between truth and a lie? You should return        interest. I have followed your outline and have
to my guides and read my comments again.                   written a short letter based on your suggestion.
                                                           Do you think this will get us anywhere? Any
(Later) You were angry with my reply. You wrote back       suggestions? My husband had a terrible experience
to tell me, "You have gotten on my dark side with          in his military service, and the letter speaks for
this response. And what is truth and what is lie. You      itself. Thank you. (Sample nexus letter attached)
say to present your worst day on the C&P exam. So if
they ask "how are you doing today", and actually you       Reply;
do feel fine and you answer in the worst day mode,
horrible and then explain, is it a LIE? I don't lie."      That's an excellent letter. All I would do is
                                                           modify one small piece. I'd change, "I have
From my perspective, I believe that you were seriously     personally reviewed his medical history (NAME
considering gaming the system. You allege to have          DOCUMENTS)..." to read, "I have personally reviewed
read my guidelines for the C & P exam but if you did,      his military medical history as well as all available
you read into my advice just what you wanted to hear.      military records (NAME DOCUMENTS)...".

If you or any veteran is considering using an              In the past the VA has been very specific that a
approach to the process that will imply that he            physician's opinion be supported by a thorough
or she is more disabled than the reality of it all,        review of the entire military history. Recent court
you're practicing fraud. Not only will that usually be     decisions have said that doesn't apply but for now
detected by the examiner, it's unfair to the hundreds      it doesn't hurt to get it in there for the reviewer
of thousands of veterans who are struggling                who hasn't kept up with the court's decisions.
for a fair award of the benefits they deserve.
                                                           For more about this, click on Attorney Rich Cohen's
My advice is to present to the examiner the worst          blog, "It's The Law" at Look
of your symptoms. This means that when asked,              in the January 2009 archive for "Medical Opinions"
"How are you today?" you shouldn't knee-jerk to            and learn the facts of the Nieves-Rodriguez v. Peake
answer, "Gosh, I'm doing very well doctor. I feel          case as well as a wealth of great writing on many
great." Your answer should focus on your disabling         other issues affecting veterans. If you have ever been
symptoms. You might answer, "My condition has              denied benefits because VBA says the QTC examiner's
progressively declined and I'm overall worse off           opinion trumps your private quack's opinion, you
today than I was 2 years ago. Let me explain...".          may want a lawyer to have a look at your case.

I've never implied that you should ride in a wheelchair    Rich is the Executive Director of the National
if you don't normally need to use a wheelchair. The        Organization of Veterans Advocates, Inc. http://                                t     TOC      u                                         Page 158 The NOVA group is                    documents of the veteran, I can't comprehend
providing proactive legal services for veterans            how you can ask me, "Does the doctor have to
and just as I predicted in 2005-2006, these                actually have reviewed the documents?"
attorneys are having a positive impact on
veterans rights as we scrum with our VBA.                  Maybe I'm seriously out of touch? Is it suddenly
                                                           OK in 2009 to believe that the ends will justify the
The system isn't fixed yet but Rich and his                means? Have that many veterans (and families)
colleagues are making it better for us all. Since          lost the concepts of honor and integrity? Is
2007 we have fierce advocates who are rising up            there no pride in our word being good?
on their hind legs in our defense. No longer do
we have to depend on services of a part time VSO,          OK...I'll accept the argument that VA practices fraud
we now have highly skilled professionals who               upon us. I believe that they do and I've been a part
are honored to serve our interests with the same           of proving that they do. But I don't accept that we
energy that we gave to defend our country.                 should take that as an invitation to deceive the VA.

Back to our letter...much to my surprise you               Two wrongs do not make a right
quickly wrote back to ask me, "Does the doctor             and that's the end of that.
have to actually have reviewed the documents?
Even if not, the doctor could have a problem               Jim;
saying he has, if he hasn't is that just a formality
to say he's reviewed his military record?"                 I thank you for your dedication to Veterans issues,
                                                           especially your very informative self help VA
You also offered to sign me up (and quickly                guidance. I recently have came across a quandary
did so) to your own special newsletter.                    in my claim process and need a little assistance if
                                                           you can spare a moment. I retired from the Army
I then had to tell you, "Don't send me a newsletter.       in 2007, and was rated 90% for OSA, L/R shoulder,
I don't have the time. If a person signs a document        BPH, L-Spine, C-spine, l-knee, Tinnitus, HBP, R-Ankle,
stating that he has done something, it stands to           L-Great Toe. I requested a Reconsideration of the
reason that he should have done it. Anything else          Toe/Knee/C-Spine condition and have already
is falsifying the document and is clearly wrong."          had another C&P for these conditions, currently
                                                           awaiting decision. At the same time I requested
Now I've gone and pissed off another reader                the Reconsideration I applied for additional
with my reply. I hate it when I do that.                   disabilities including Cervical Radiculopathy, lateral
                                                           epicondylitis, peripheral neuropathy, and ED
Oh well...                                                 (SMC-K), an issue that has arose since I filed in that
                                                           I most likely have Lupus which appears to account
First...if I wanted to subscribe to your newsletter,       for the neuropathy, lateral epicondylitis, ED as well
I'd ask you to sign me up. Just because I have a           as a host of other issues that doctors and myself
mailbox and you have time on your hands doesn't            believed to be intertwined with PTSD including
necessarily mean I want to spend my time perusing          malaise, cognative disorder NOS, fatigue, etc……….
your musings about your hobby. In my dictionary,
"Junk Mail" is defined as anything I don't ask for         Three questions:
that is sent to me anyhow. I ask for veterans to write
to me about VA issues. I don't ask for automatic           How do I inform the VA that the disabilities I
inclusion into your hobbies of arts and crafts.            listed may be related to the Lupus issue?

Second, as in the letter above, if you must ask me         Do I do another claim for all the other conditions
such a question, I'm forced to consider that you           that go along with Lupus that I have, joint
are contemplating fraud upon the Department of             pain, swelling. Or just annotate Lupus as the
Veterans Affairs. If a physician signs a document          condition and sort out the issues through
that states clearly the he or she has reviewed all         the doctors reports and most likely C&P?                             t         TOC      u                                          Page 159

When it comes to presumptive chronic conditions,            Remember that the appeals process is your friend and
the wording is somewhat confusing (not having               a denial only means to come back and try harder.
a law degree and all), when they say manifested
itself to a degree of 10% within a year of leaving          Good luck.
the service do they mean that you were rated for
a symptom of the condition you are claiming, or
using the doctors notes/witness statements to               POSTED 01-22-09 ...............................
conclude that if it had been applied for, as I have
been out for just over a year I am outside the one year     Jim;
presumptive period, however my medical records
are littered with the symptoms that have taken some         Here is the list I've worked on. It has taken too long
time to get to the underlying Lupus condition.              obviously, but I thought you might want to post it.

Hope this makes sense, I thank you in                       VA Battle List
advance for any help you can give.
                                                            1. Put down the crying towel....this evokes
                                                            anger and clouds your judgment.
                                                            2. Realize you're not alone...or it will paralyze you.
Your questions make perfect sense. I only
wish I had a perfectly logical answer.                      3. Your resources are your most valuable
                                                            tool...nurture them and help them grow.
Unfortunately, there isn't a strictly right or wrong
way to address the issues you raise. As a rule I            4. When in doubt...take a break.
suggest that once a claim is started that you don't
add on to it while it's in the process. Although            5. Don't listen to negative people...
many do just that, I believe that it interrupts the         it brings out the crying towel.
progression of the folder and slows things down.
                                                            6. If you don't have anything positive
I recommend that when you file the claim you                to add...remain silent.
include all the stuff and if other stuff arises, the
other must wait its turn until the original claim is        7. Don't be too proud to ask for help...
resolved. I work on the assumption that many, if            it is there for the taking.
not most, claims will be denied. That's when I begin
to introduce new evidence of other conditions               8. Remember patience is a
or to expand on the existing conditions.                    will need it more then anything.

The presumptive period often isn't held to precisely        9. The world does not revolve around
one year. If you can show any signs or symptoms at 6 just want it too.
months but you weren't diagnosed until 18 months,
that should work although maybe only on appeal.             10. Spell check...Spell Check....Spell
                                                            Check...need I say more?
To annotate is a good idea. I like bullet points
that are easy to read and brief. The rater is
more likely to see and understand bullet points             Needed Tools
as opposed to long, rambling sentences.

It sounds to me as if you know the drill pretty             1. Computer…know how to cut, copy and paste
well. Much of this is subjective and depends on
the individual who will spend a few minutes                 2. Printer
looking at your folder to make a decision.                  3. Scanner (if printer does not scan)                               t        TOC      u                                         Page 160

4. File Cabinet or comfortable Filing System                 to the regulations, the outcome isn't important.

5. Ability to search the internet for information            The initial error that most veterans make is that
                                                             they don't understand how a process driven
6. KNOL (unit of knowledge) http://                          company works. They get off to a bad start by                                           not providing VA exactly, precisely what they ask
                                                             for. Veterans don't read the instructions that VA
Reply;                                                       provides. When they do read the instructions, they
                                                             either believe that those instructions don't apply
You and I have communicated for some 2 years                 to them or that there are shortcuts available.
or better. We've been back and forth about
what a veteran needs to win a claim as a Do It               Once the march has begun on that wrong foot, trying
Yourself project. The list you've compiled says              to correct it is a challenge that may take years.
it about as well as it can be said. Those are
the basics folks, anything more is gravy.                    Once you have accepted that you must prepare
                                                             for your battle by meeting or exceeding the lists
Dealing with the VA isn't rocket surgery.                    above, you've gotten off to a better start than most
It does require discipline.                                  veterans will ever hope for. The next step is to make
                                                             the commitment that you'll comply with the written
I'll add that you must keep it at the top of your mind       and unwritten rules of the game without fail.
that the VA system isn't for you or against you. The
only thought the VA has is about its process. The            If the written rule says to sign the form and mail it
VA could care less about you as an individual.               to the VA, you'll do it even if it's obvious that the
                                                             form has no meaning in your case. Just because
The VA is only a business. There are many forms of a         it seems idiotic and a waste of your time doesn't
business entity. For profit, not-for-profit, charitable,     mean you can ignore it. When the unwritten
manufacturing goods, providing services and so               rule tells you to use certified mail and to never
on. Obviously the VA is a government business                fax anything to your VA, that's just what you'll
provided as a service to veterans. Beyond those              do, no questions and no second thoughts.
sorts of businesses, there are further divisions of
the types of business. The VA is a process driven            The more rigid you become in staying organized,
business as compared to a goal oriented business.            learning how to use your computer, making good
                                                             clean copies, learning how to use a search engine for
A public school is a good example of a government            Internet research and generally following the rules,
business that is goal oriented. The school is expected       the more likely you are to win just what you deserve.
to graduate students who are able to read and write
well enough to pass certain standardized tests.              It's when you get sloppy or display an attitude
That's the goal. There is a process to arrive at the         that you'll hear that voice. It's whispering "loser"
goal but the goal is all important, the process can          to you and you'll only have yourself to blame.
be tweaked as a student goes along as long as that
student reaches the goal. If a school isn't producing        Jim;
enough test passing students, it is seen as a failure.
The goal is measured and changes are made to                 I am a Vietnam veteran with hearing loss, Meniere's
improve the numbers that achieve the goal.                   disease, high blood pressure, diabetes (Linked to
                                                             agent orange). neuropathy (linked to the diabetes),
Not so the VA. To the VA, the goal isn't important.          and went through prostate surgery in Aug for
Whether the veteran wins a claim or loses a claim is         cancer. Before the surgery I started a claim through
meaningless to the VA. They barely keep records of           my Vietnam Veterans of America Service Rep
who wins or who loses or why. The VA is only focused         with the cancer diagnosis report in early Aug. I
on the process of dotting all those T's and crossing all     followed it up after the surgery with the surgery
those I's. If the paperwork is perfectly done according      report and the lab report of the removed organ.                              t         TOC    u                                            Page 161

The Detroit VA farmed it out to the Maine VA and             The young guys are getting more press but not
here I sit. Prostate cancer is of course also linked         more service. All that is BS public relations by VA. I'm
to Agent Orange so this should be an absolute                dealing with a mix of maybe 70% Vietnam veterans
"slam dunk". Haven't heard a word. Meanwhile                 and 30% modern era. My WWII / Korea clients are few
I suffer the after effects of wondering if they got          and far between. The young guys are being screwed
it all and the incontinence that goes along with             at a rate the same as you, maybe worse. I hope you
this type of surgery. I will be checked regular for          won't let VA draw a line between them and us like
a year to confirm whether they got it all or not.            they did us and the WWII veterans. We weren't exactly
                                                             welcomed and helped by the WWII guys if you recall.
I have thought about contacting my                           These young folks need your help and empathy.
Congressman but I think any pressure from that
direction would only make matters worse.                     You have serious issues and you need serious
                                                             help. If you'd like, I'll take your case myself
I have just about given up on my local Outreach              and help you through the entire process.
clinic because first of all they have no sick call
(when I get sick I have to seek medical help                 Let me explain how this would work.
locally or drive 100 miles to a VA hospital) and
the treatment of my diabetes is absolutely as                I don't represent veterans. Rather, I coach veterans
backward as you can get. The only reason I stay              throughout the life of their claim. I tell you how to do
somewhat in touch is for eye glasses and hearing             it yourself in a way that I believe is the most effective.
aids. (The diabetes got my eyes also) Everything             There isn't any magic to it, I work with the rules of the
else is handled by my local up to date doctor.               VA and I strictly adhere to each step of the process.

I am thoroughly frustrated. There has been so much           The trick is that I know the rules and the process
hell raised about the vets returning from Iraq and           better than most VA employees can ever hope to.
Afghanistan that even though they deserve better             When dealing with the average VA employee I tie half
treatment they seem to forget that guys like me are          my brain behind my back and it still isn't a fair fight.
still here and have been hurting for a long time.
                                                             This isn't likely to be a quick fix.
Have you got any suggestions?                                Depending on what is going on
                                                             inside the regional offices, we could
Reply;                                                       get lucky and have this wrapped
                                                             in January or we could be looking at January of 2011.
I feel your frustration. You're correct...everything you
address should be a slam dunk. Like the diabetes,            To begin I need to see some of the latest paper
the prostate cancer is considered "presumptive"              you have from the VA that will give me an idea
to your exposure to Agent Orange and is a rubber             of what's happening. If you have documents
stamp process to get your benefits to you.                   like denial letters, applications for benefits,
                                                             whatever...I need to look them over. I don't've fallen into a hell-hole of VA inefficiency      need the boilerplate stuff that quotes the rules
and once it happens it's hard to get out of. You work        and regs, just stuff that applies to you.
through the Detroit VARO. We recently reported on
that as being one of the worst and most corrupt in the       I also need dates...diagnosis, treatments, etc.
nation. If you've kept up with our articles of document
shredding ("Shreddergate") it started at Detroit             I don't accept faxes. I prefer email attachments
when an informant-whistleblower...              scanned as PDF documents. I'll accept jpg documents
contacted me that thousands of documents were                if necessary. This may be a bit more challenging
being disposed of to improve the numbers there.              for you but I work at my home office and just don't
To be honest, most offices of the VA are                     have room for all the fax paper. A decent flatbed
cesspools of employees who don't care                        scanner is pretty inexpensive today or most copy
and untrained managers. It's a mess.                         places will scan documents cheaply. It can have                                    t   TOC    u                                             Page 162

a bit of a learning curve if you aren't computer             I was in the Marine Corps back in 1976-1977 this is
proficient.'s a great tool for your office.         in my medical record but only states muscle pull . I
                                                             had a fall from about 25ft I have a scar on my chin a
What we'll do is write a letter. That's pretty much          bump on my collar bone a crooked wrist ,and I also
it. A letter is a powerful tool when done correctly.         found out I have flat feet I had pain in my feet along
Then we wait to see if there is any effect...maybe           with the back injury,I also have depression and take
a month or so. If not, we consider going to your             medicine because I always had back pains for many
Congressman. You're correct that moving in that              years also have sleep apnea and use a machine it's
direction can cause more problems than not...unless          a cpap anyway in 1978 I went to the VA hospital and
you know how that system works. I know how it                was treated for back pain they can't find records but i
works. I have had very good results from my contacts         am in the system i don't understand way all my other
to Congressional representatives, sometimes so               injury were never put in my record because i was seen
good it's frightening. A recent letter produced a retro      at three different medical hospital at 3 bases the time
benefit of 35 large in 10 days. Even I was shocked.          i was in the service anyway I have degenerative discs
                                                             disease in many parts of my back and now MRI also
I make no promises. I don't have a magic                     shows in my neck .I put in for disability when i was
wand and this is the VA after all.                           around 21yrs old in Wisconsin never heard anything
                                                             and just blow it off I was young and dumb like many
Most of all, our success depends on you. If you              of us at that time I put in again in 2006 I was denied
give me the info I need and you follow my                    and appeal to the DRO was denied again and got the
simple instructions and you stay in touch with               soc ssoc I'm working with my vso DAV i filed a form-9
me, you're likely to succeed. I'm fairly busy so             to the BVA around May08 I was waiting for file to be
I won't chase you and remind you of things                   moved last month i got a letter to see the C&P Exam
to do. If I don't hear from you, you roll off the            I don't know what could of happen but why didn't i
page and then we have to play catch up.                      see one long ago I have a long history of Medical back
                                                             problems and have keep record I am still being treat
Our goal is 100% disability, permanent and total             today for all of the above can you help me out! Thanks
with no future exams scheduled. This would include
CHAMPVA for your dependents and DEA for any                  Reply;
children of college age. If you are losing your sight
and you also have erectile dysfunction, we will apply        Your issues are complex enough that I want you to
for Special Monthly Compensation (SMC) for those             speak with a lawyer. You have denials, lost records,
conditions and add some dollars and benefits for you.        a Form 9 floating around somewhere, and SOC
                                                             and SSOC and a lot of conditions to talk about.
I try to be prompt in responding so think
it over and if you're up to the task, let                    Call an attorney. It won't cost a dime to do so.
me know and we'll get to work.
                                                             Click here
BTW...please only reply to my emails, don't
start new threads. This helps me to keep                     and look at the Membership Directory to find an
your correspondence grouped together                         attorney you like. The lawyer doesn't have to be close
and makes your case easier to follow.                        by you so you should speak to as many as it takes.

('s now over a month later and you haven't          Good luck!
replied. I don't follow up on you, it's your task to
follow up with me. Your willingness to do that is a
sure indicator of how you'll fare in the long term.)         POSTED....................Jim;
Jim;                                                         Just wanted to give you an update on my
                                                             claim for increase filed Jan 2008 for my COPD
Hello maybe you can help me sort this out i am a             (6604) condition from 30% to 100% since I now
little confuse First I had a injury to my back when          require Home Oxygen Therapy during sleep.                                 t          TOC    u                                          Page 163

Today, I finally received the Manila envelope from               even though you had a ton of other evidence
VARO Roanoke. Decision: COPD rating increased                    in your file that supported your claim. The
from 30% to 100% Permanent & Total, with SMC 'S',                VSR or RVSR who was rating your claim had a
retroactive to Nov 28,2007 (which is the date of the             check-list to go by. The list is the process.
sleep study which showed 84% O2 saturation).
                                                                 On that list is the option of a QTC exam. The exam is
I'm very satisfied with the VARO decision, it was                not required. The rule tells the rater that they may
correct based on the criteria under 6604. But, I do              order an exam if they believe that it is necessary
not understand why the VA even wasted the funding                to provide evidence about your condition.
and my time by sending me through the QTC exam
process. Their own physicians at VAMC Hampton          
Pulmonary clinic are the ones that prescribed me
the Home O2 Therapy due to a decrease in my O2                   M21-1MR, Part I, Chapter 1, Section C
saturation. This was a cut and dry claim, but took
exactly 1 year to process through the VARO maze.                 a. VA's Responsibility

Reply;                                                           In claims for disability compensation, assist the
                                                                 claimant by providing a medical opinion or
I've recently been focusing some effort to answering             examination when the opinion or examination
your excellent question: "I do not understand why                is necessary to make a decision on the claim.
the VA even wasted the funding and my time by
sending me through the QTC exam process."                        b. When to Request a Medical Opinion or Examination

The VA is no more than a business, a giant                       A medical opinion or examination may be necessary
corporation not unlike GM or Sony. There are                     when, after the development of all other relevant
different business models or attributes that we                  evidence, including the statement of the claimant,
see as we examine how a business operates.                       the file contains competent medical evidence that
                                                                 the claimant has a current disability, or contains
Some businesses provide products that they                       competent evidence that the claimant has persistent
manufacture for a profit; think Sony. Others provide a           or recurrent symptoms of disability (Note: A claimant
service at little or no profit; think of a charity hospital.     is competent to describe symptoms of disability
                                                                 that he/she is experiencing, such as pain in the
The VA is a government business designed to                      knee. However, because a claimant ordinarily lacks
provide a service. So are our public schools.                    medical training and experience he/she would not
                                                                 be competent to diagnose his/her own medical
The public schools are goal driven businesses.                   condition or offer a medical opinion.) contains
The goal is that each year a group of students are               supporting evidence from service records or other
educated to a certain standard, given certificates               sources that the claimant suffered an event(s), injury,
or diplomas and moved to the next level of the                   or disease in service that may be associated with
process of education. If the school doesn't achieve              the claimant's current disability or symptoms of
the goal, it is seen as failing in its assigned task.            disability, and does not contain sufficient medical
                                                                 evidence to make a decision on the claim.
The VA is a process driven business. It makes no
difference to the VA what the outcome of the                     c. When to Request a Medical Opinion
process is. Whether you win, lose or draw makes                  Versus an Examination
no difference to the VA. The only thing of any
importance to them is the process itself. The VA                 A medical opinion versus an examination
believes that if they cross every T and dot each                 should be requested when only the following
I, the outcome of the process will be perfect.                   is necessary to decide the claim:

This is exactly why you received a QTC exam                      reconciliation of different diagnoses                                   t   TOC     u                                         Page 164

opinion concerning the relationship                         How do I go about obtaining The Veterans
between two conditions                                      Benefits Manual, the version the VA uses
opinion about functional impairment                         for Service-Connected Disabilities?
etiology and nexus opinions
Allen v. Brown cases (that is, when the issue is            Reply;
whether a service-connected condition has
aggravated a non-service connected condition)               By clicking here http://www.warms.
independent medical opinions, and opinion         
regarding the extent to which service-connected
disabilities affect the veteran's ability to perform        POSTED.......................Jim;
physical and non-physical tasks in order for VA to
determine whether the veteran is unemployable.              cant some of our representatives contact president
                                                            Obama at this time and let him know the problems
Notes:                                                      navy vets are having.. about agent orange. tks..
Many opinion requests require information
that would be gleaned as part of the normal                 Reply;
examination process, which the physician should
not be precluded from conducting, if necessary.             I doubt it would have any effect. The case is lost,
                                                            done and over. The Supreme Court has declined
A medical opinion is not generally required to              to review the decisions of the lower courts and
establish a link between a claimed disability and           that effectively ends the debate. The Executive
the veteran's service when the evidence shows               Branch (The President) can't simply override a
that the disability is chronic, or symptoms have            decision by the Judicial Branch (The Supremes).
continued after the veteran's discharge from service.
                                                            The only way that this is ever going to come up again
References: For more information on                         is in the Legislative Branch (Congress) and they would
requesting examinations, see M21-1MR, Part                  have to change the laws that exist today. To do that
III, Subpart iv, 3.A, and medical opinions,                 you'll have to convince a representative (Congressman
see M21-1MR, Part III, Subpart iv, 3.A.9.                   or Senator) to introduce a bill that would make a
                                                            different set of laws that affect Blue Water veterans.
Having read the above, you begin to understand that         The bill would have to go through all the usual steps
requesting an examination is somewhat ambiguous.            that happen in Congress. Then the president would
                                                            need to sign off on it and after required waiting
The reality is that if the rater awards the veteran a       periods, there would be a new law to work with.
benefit without a C & P exam, the rater's supervisor
will likely come back to question why. In the mindset       Personally, I don't see that happening.
of the VA, the process leaves an opportunity for a QTC
exam and that to not use it is to leave a T uncrossed.      I support the "Direct Cause" claim process
                                                            for Blue Water Navy veterans.
It's easier and less risky for the rater to get you
before QTC so that the process isn't violated               The Vietnam veteran who has boots on the ground
by individual thought. That the outcome                     service is presumed to have been exposed to
will not be changed isn't important.                        herbicides. There exists a list of conditions that are
                                                            presumed to have been caused or contributed to
It works well for the former Secretaries of DVA             by that exposure. Thus, the boots on the ground
who are the owners and operators of QTC. They               veteran does not have to prove that he was exposed
get paid (with your tax dollars) for every exam             or that the condition was caused by herbicide.
whether it's necessary or not so there's really no
incentive for them to champion anything else.               The "Direct Cause" veteran has a steeper
                                                            hill to climb but it isn't insurmountable.
POSTED....................Jim;                              t       TOC     u                                     Page 165

For example, if a Blue Water veteran has been              If you are diagnosed with one of the
diagnosed with Diabetes, he can still claim that           conditions on the presumptive
as being caused by exposure to herbicide. Unlike           list, then you file for compensation
the boots on the ground vet, the Blue Water vet            and you'll deserve it and receive
must prove that he was exposed to herbicide and            it. I hope that doesn't happen to you.
then he must have a medical opinion that clearly           You're a lot better off w/o
states that "It is more likely than not that the DMII      either the condition or the compensation.
condition was caused by exposure to Dioxin."               Enjoy your good health.

Evidence of exposure must be compelling and                POSTED....................Jim;
reliable. Just making the statement that you
were exposed isn't likely to pass muster. The              Does service connection top out at 40% for Type
"nexus letter" must contain verbiage to satisfy a          2 Diabetes, even if the condition gets worse?
couple of language requirements and each letter
should be reviewed carefully for accuracy.                 Reply;

These cases are very winnable if approached as             No, it reaches to 100%. Here's the
above. This is also true for veterans who are not in       wording of the regulation;
the boots on the ground or Blue Water categories.
If you were stationed at Fort Dog's Breath, Georgia        7913 Diabetes mellitus
and you have evidence that you handled herbicides
and you have a good nexus letter describing the            Requiring more than one daily injection
effects of that, you're very likely to win your award.     of insulin, restricted diet,
                                                           and regulation of activities (avoidance
POSTED.................Jim;                                of strenuous occupational and
                                                           recreational activities) with episodes
Just was re-enstated for PTSD by the VA.However            of ketoacidosis or hypoglycemic
they denied my claim for exposure to agent                 reactions requiring at least three
orange.I served with 2/3 golf co. in vietnam               hospitalizations per year or weekly
from dec.1965 to jan.1967.If they are admitting            visits to a diabetic care provider, plus
our exposure do I have to wait untill I develope           either progressive loss of
some kind of cancer for them to approve                    weight and strength or complications
this?Any help or advice would be appreciated.              that would be compensable if
                                                           separately evaluated....100%
                                                           Requiring insulin, restricted diet, and
There is no compensation for exposure                      regulation of activities with
to herbicide. Compensation is                              episodes of ketoacidosis or hypoglycemic
awarded for a disability. If there is no                   reactions requiring one or
disability, why would there                                two hospitalizations per year or twice
be compensation? To award disability                       a month visits to a diabetic
compensation because of an                                 care provider, plus complications that
assumed risk by exposure to herbicide                      would not be compensable if
would be the same as offering                              separately evaluated....60%
disability compensation to me for my                       Requiring insulin, restricted diet, and
risk of broken bones during basic                          regulation of activities....40%
                                                           Requiring insulin and restricted diet,
I was exposed to violence and could                        or; oral hypoglycemic agent and
have been hurt so I deserve                                restricted diet....20%
compensation? No. It doesn't work that way.                              t         TOC    u                                             Page 166

Manageable by restricted diet only....10%                    system. Go to . and read the
                                                             lasts notice. We our, as a group dead in the water.
That's taken from the Schedule of                            (We) knew something was coming and we where
Ratings which you can find here                              right. Now what Jim,I feel that our government has                          left I big hole in my soul and heart. For thousand
waisidx_04/38cfr4_04.html                                    of us blue water navy people that went there. If it
                                                             wasn't agent orange that caused all of our problems
POSTED..................                                     and is killing us slowly but surely what is?

Jim;                                                         Reply;

I wanted to know if there is anything to                     If you're asking me, "If it wasn't agent orange that
the VA stopping dispensing Plavix?                           caused all of our problems and is killing us slowly
                                                             but surely what is?", I can't answer that question.

I'm not aware that VA has stopped dispensing Plavix.         I can tell you that the courts have determined that
If that's happened, it hasn't come across my desk.           dioxin isn't the cause of any Blue Water Navy deaths.

I do know that VA, much like every other civilian
pharmacy program, each year reviews drug classes             Their logic isn't terribly unsound. Let's take a
to seek ways to reduce costs and improve safety.             moment to look at the science they've used.
                                                             You may not like this but if you'll bear with me
Plavix is often targeted as one of the more overused         a moment, you'll see another perspective.
drugs. Physicians often prescribe it for conditions
where it may not be indicated and Plavix isn't just
expensive, it can be dangerous. Plavix is similar to         The studies over the years have clearly
many of the anitcoagulant medicines in that it keeps         demonstrated that exposure to some herbicides
your blood from clotting. That means the chances of          (dioxin) may increase the chances of an
uncontrolled bleeding will rise if you're taking Plavix.     individual contracting certain diseases.

VA as well as others will take an opportunity to study
the cost and risk potential and remind prescribers           In the case of the RVN veteran, the focus is the
of the proper use of Plavix and some patients                conditions listed on the "presumptive list".
may see their doses decline or be eliminated.                These are some cancers, DMII and some skin
                                                             conditions. We here a great deal of chatter today
This             about prostate cancer, DMII and lung cancer.
ZCEGaKBtwfH4KTwCw&usg=AFQjCNHbvx6h1hhjGKEi                   The controversy arises from the fact that as
AC2t_V7_Hxa9WA&sig2=yRU1bQPK8gahesaz_hwcjw                   we age, we get these conditions anyhow. The
may be of some help in explaining all that.                  quick answer to your question may be, "Aging".
                                                             In the case of lung cancer, the question has to
                                                             come up; "Was it the exposure to AO or the 2
POSTED...............Jim;                                    pack a day habit that caused the cancer?"

I wrote to you before about agent orange and how             To answer any of the questions surrounding
my ship was in DA NANG harbor. It is a official from         the mystery of AO exposure, we can only rely
the C/P bulletin.Da Nang,Cam Ranh Bay,and Vung               on science. Our culture has been successful in
Tau,to be part of the offshore blue water of Vietnam         using scientific analysis for hunreds of years to
and not I repeat not part of its inland waterway             determine the right or wrong of certain issues.                             t       TOC    u                                          Page 167

In this case, studies are conducted of men (and           at all and any claim they make will be turned away.
women but to a lesser extent) who served in               The drivers and occupants of the cars are another
Vietnam and those who didn't. If the rates of             matter. Was the accident their fault? A lot will go into
a particular disease manifesting itself over the          determining if their is any obligation to them at all.
years are exactly the same between the RVN
vet and those who didn't serve in the RVN, it's           Finally, there's the phenomena of those who
impossible to say that the conditions acquired            weren't there making claims. This is real and
are caused by exposure to herbicide.                      distorts many such issues. The bus had 30 riders
                                                          and there are suddenly 33 claimants. The fact is
The same sort of studies may indicate a cause             that 3 people saw the accident and then climbed
and effect. For example, the incidence of prostate        aboard the bus, holding their neck in pain and
cancer is statistically higher in the RVN veteran         hoping for a piece of the action. That hurts the
than his civilian counterpart. Thus, prostate cancer      claims process for all the legitimate riders.
has been determined to be likely influenced by
exposure and benefits are more or less automatic.         The insurer of that bus draws a line in the sand...if
This is also true of non-Hodgkins lymphoma.               a claimant can't prove he was on the bus and if he
Statistically there are a significantly greater numbe     can't prove his injuries were caused by the accident,
of RVN vets with n-Hl than their peer group.              he won't take part in any settlement award. The
                                                          insurer can't extend it to anyone who makes a
To my knowledge, the same has not been true of the        claim and still be a viable business in the future.
Blue Water veteran. The Blue Water veteran is getting
sick with diseases of the aging process at about the      In this case, the VA acts as the insurer. Through the
same rate as those with no military experience.           process of scientific study it's been determined that
                                                          Blue Water veterans aren't experiencing rates of
The courts have reached the conclusion                    diseases any different than the population at large.
that there is no reliable cause and effect                They believe that if you are a Blue Water veteran with
relationship demonstrated.                                a lung cancer, it's likely because you abuse tobacco,
                                                          not because you may have been exposed to AO.
The arguments for and against will never leave us.
Were the studies fair and unbiased? Was there as          The insurer, your DVA, has drawn a
much information in the studies of Blue Water as          line in the sand. To get across
there were in studies like Ranch Hand? Is there a
secret government conspiracy to repress relevant          that line you must now take a different
information about Blue Water veterans so that a few       route. That route is direct cause.
bucks can be shaved from the federal budget?
                                                          As I've explained before, you must show that you
I don't have the answers.                                 were exposed to a carcinogen. Then you must
                                                          provide a diagnosis of a condition. Then you
What I do know is this: At some point very insurer        must provide a clinical connection, a nexus, that
will draw a line as to the extent of their liability.     your exposure to the carcinogen is more likely
If they don't, the tsunami of claimants will              than not the cause of your claimed condition.
never end and the insurer will have no budget
left to accomplish any other programs.
Consider the case of an insurer who covers claimants      If you are a smoker with lung cancer, you have a
of a city bus accident. The bus had 30 riders on it       steep hill to climb to show that your condition was
when it was struck by 2 vehicles. Some occupants          probably due to AO exposure and not the tobacco. If
were seriously injured and hospitalized. There's          you're a 65 year old sedentary male who is clinically
little question the insurer pays their medical            obese at some 60 pounds over your desired weight
expenses. Other occupants were less seriously             and a high BMI, you aren't likely to find many who will
injured and the amount of liability by the insurer        agree that your DMII is the result of AO exposure 40
may be debated. Some occupants weren't injured            years ago. If you have prostate cancer and you're in                               t          TOC      u                                          Page 168

a group of senior citizens who are getting prostate  
cancer at about the same rate as all others, you               releases/2009/01/090107203124.htm
may have a difficult time showing that it's caused
by an exposure to herbicide rather than fate.        
Before you write to me to tell me how bad I am                 7772&ordinalpos=1&itool=EntrezSystem2.PEntrez.
for not standing up for the Blue Water veterans,               Pubmed.Pubmed_ResultsPanel.Pubmed_RVDocSum
remember this; I don't make the rules. All I do
is to deal with reality. The reality is that once    
the Supremes have heard your plea and said
"No, thanks." you don't have much left to do.                  and don't forget where you saw it first,

This is the system we use in America and it really   
stinks when you lose. Our system of law and justice            nf09/nfjan09/nf010909-5.htm
is the worst there is except for all the others.
                                                               ALL POSTED 02-05-09 ...........................
Your choice is to lick your wounds and whine
or move ahead and attack on a new front. The                   Jim;
direct cause approach is waiting for you.
                                                               As you know I have been trying to get medical
POSTED.......Jim;                                              care overseas for disabled veterans.

In your next mailbag would you give all an undate on           (We first communicated 08/2008 about the need for
your take of the recent studies connecting PTSD with           a better coordinated service for disabled American
Metabolic Syndrome? I have been noticing the studies           veterans who live away from the homeland.
which have been conducted by the VA in conjunction             You sent letters to sent to Senator Inouye and
with other private research facilities. Thank You.             Senator Akaka concerning the needs of American
                                                               Veterans and their families living in SE Asia.)
                                                               This letter is to let you know that a big
This is one reason I like my VA health care. The               step forward has been accomplished.
VHA is a research organization like no other.
Much of the wonderful information we have to                   Here is a segment from a VA letter I received:
treat or cure ailments is because of the money
our VHA pours into pure scientific research.                   Jan 9, 2008

If you haven't heard of Metabolic Syndrome,                    Subject: Rewording the FMP (Foreign
it's a group of characteristics that scientists                Medical Program) to establish all-inclusive
believe are a warning of the higher potential                  medical care and other benefits for 100%
for vascular diseases, particularly heart attack.              disabled veterans living overseas.
If you've got a large belly, high blood pressure
and a modest to severe resistance to insulin,                  A legislative proposal to amend 38 U.S.C.
you're labeled as having Metabolic Syndrome.                   1724 has been drafted to provide all-inclusive
Now it's known that if you suffer PTSD, you're more            medical services to FMP veterans who have been
likely to have Metabolic Syndrome so you're prone              adjudicated by VA as 100% disabled. This proposal
to heart attack, stroke and other complications.               will be submitted for inclusion consideration
                                                               on the VA’s 2009 Legislative Agenda.
This is significant progress and there's a
lot of buzz in the scientific literature.                      Mary Beth Saldin
Rather than trying to explain it all, check these links...     Health Administration Center                               t     TOC      u                                          Page 169

Denver, Co                                                As a sort of aside to all this, I cringe when I
                                                          read foreign publications that describe our
If something like this could be passed it would make      American VA. It's remarkable that the rest of
such a change for veterans living all over the world.     the world seems to know that the American
Veterans would have a choice in how and where             veteran is treated this way by his government.
they will live out the rest of their lives. Damn! I’m
still in shock. Guess an old man with a computer and      In the article you sent were comments like,
lots of time on his hands can make a difference.          "Yet another woeful case of neglect by the U.S.
                                                          Authorities is highlighted by the plight of courageous
The VA asked that Douglas Katason, Lead                   Vietnam Vet, Richard Weinberg..." and "He says the
Congressional Liaison douglas.katason@                    government was keen enough to send them off to be our contact for this. I have e-mailed           be killed in their thousands (over 56,000 US troops
him to find out exactly what this means to us             were killed in action and untold thousands suffered
and get copy of proposed amendment.                       innumerable incapacitating injuries and severe
                                                          Post Traumatic Stress Disorder), but when it comes
Thing is Jim I don’t know what to do next. If this        to adequately looking after the injured survivors,
is up the senate what do we need to do now to             the US authorities apparently couldn’t care less.
drum up support? I know you have been down                He further maintains a similar accusation has been
this road before and would appreciate any advice          leveled at the US as regards their policy towards
or support you can offer. This could be a big deal        injured veterans in their current conflict in Iraq."
to lots of Veterans. We could sure use your help;
we are half way around world and all alone.               It's horrifying to know that other nations are
                                                          aware of our plight when we read their headlines,
Here is article from Thailand newspaper about a           "GALLANT VIETNAM VETERAN ABANDONED TO
veteran with 2 bullets in his head and VA giving          HIS FATE BY CALLOUS U.S. AUTHORITIES".
him grief. This helped push VA to make a move.
                                                          More horrifying; They see and publish the                          truth our own popular press ignores.
                                                          Remember last September I emailied you a few
Your efforts prove that one "old man" who has             times regarding TBI and unemployability. We
his mind focused on a goal can make a huge                discussed the fact that the VBA told me my c-file
difference. Bitching and whining about the VA             is lost/missing because it was sent to the wrong
accomplishes nothing. Your approach to achieve            VAMC for my C&P exam causing a delay in my claim.
changes in legislation may accomplish a redesign          I filed this claim in December 2007. In any case I
in how services are delivered for all veterans            took your advice and in early October I certified
living away from the soil of the United States.           mailed the WACO VARO asking for a complete and
                                                          full copy of my c-file even though they have been
My only suggestion is to keep it up. You can              telling me for months it has been lost. Saturday
encourage others to help you by communicating             December 20, 2008 I recieved a copy of my c-file?
effectively and letting them know what you need
them to do. Along those lines you've given me             Last September I had applied for an increase for TBI
permission to publish your email address so that          and then later for IU with your advise. I also applied
veterans living anywhere may communicate with you.        for SSD in September 2008. Last December, 2008
                                                          the SSA awarded me SSD, back dated to October
Phillip Williams                                          2007. However, I am still waiting on the Waco VARO
phil williams <>                        to decide my IU claim. I am confused as to why the
Director                                                  SSA took only 3 months and the VA is still doing
SE Asia Veterans Support Project                          whatever for the past 10 months. I have sent them                              t        TOC      u                                           Page 170

(VA) everything they have asked for(Which they              and the VA replies with a standard boilerplate
already had) and my new SSD award information. The          of answers. Individual veterans lose homes and
VA said they lost my c-file which was causing a delay       families and VA ignores it and then twists statistics
back in May through September 2008. Yet when I              to show efficiency gains where there are none.
sent a certified letter asking for a full and complete
copy of my c-file with your advise, I received my file      Yes, now that the SSA has done the work for
in about 30 days from the date of the mailed request.       them, the VBA is likely to approve your claim. Be
Can you give me advice on what to do or should I just       prepared though, it's most likely to be approved
sit tight and keep my fingers crossed? I just don't get     on an appeal in front of a DRO. It's rare that they
it sometimes and I become frustrated and upset with         get anything right the first time around.
the whole VA issue and confusion. Do you think the
VA will approve my IU claim?Thanks for your advice          Jim;

Reply;                                                      I have a little issue I didn't see coming at all. I have
                                                            been summoned to do Jury Duty. I know they
This is just business as usual at your not-so-friendly      pay a Juror but I am IU thru the VA. I also know
VARO. Incompetence abounds, attitudes stink and             some of these cases can go in great length. I'm
there are few there who care about you one bit.             100% IU. Can I receive the pay? How do I explain
Those who do care are overwhelmed by those who              to them I can not receive any money's for my time.
really don't like veterans very much so here you are.       I am sure these are just county employees doing
                                                            there job. I just need some insight on this is all.
Your situation reminds me of a message I received
a year or so ago. It came from an attorney who              Reply;
was expanding his disability law practice into
veterans law. He had been practicing Social                 You can receive the pay. It isn't "earned income"
Security law for quite some time and that                   and you don't have to report it to the VA on the
makes for an easy transition into VA law.                   yearly questionnaire. The only income you're
                                                            restricted from is that which you earn by work
He was stunned at the misfeasance and malfeasance           and even then you're allowed to make a small
he encountered at the VA. He was immediately                amount (about $10,000.00 per year) as long
exposed to the run-around of folders that couldn't          as you don't work 12 consecutive months.
be located, attitudes of people who didn't want to
hear from lawyers and the overall terrible service          When you report for duty, they'll do the Voir dire
we veterans have come to know and expect.                   and ask you your employment and so on. Don't
                                                            be shy about telling the truth about your military/
His comment to me was that, "The VBA makes                  VA disability. Also don't be shocked if your status
the Social Security Administration appear                   as a disabled vet gets you struck rather than
to function like a well oiled machine."                     chosen. They seem to think we disabled types
                                                            are often too sympathetic to defendants and that
That should be a major embarrassment to the                 we don't want to hang 'em high. Go figure.
Department of Veterans Affairs. Each member
of the leadership of the 800 pound gorilla we               I've only been called once for jury duty and I
call VA should have wept at the truth of that.              served 4 days on a suit of a truck driver v. his
Any other business entity would have hung                   former employer. It was an interesting
heads in shame at being exposed that way                    experience and one I well remember. It's a very proud
and set about making it better right now.                   feeling to serve and makes you feel very patriotic.

Not so at your VA. They seriously don't care.               I was in San Antonio then and as a typical Texas
Congressmen criticize them and they smile blandly           jury, when we found for the truck driver and
with promises of a report at some future time.              against the employer, if it were left up to us we'd
The GAO or the VA OIG issues a blistering report            have had a hanging party. We were really angry                          t    TOC   u   Page 171

with the employer, his DamnYankee ways were
obvious to us and we wanted blood. Fortunately
for him the judge was cooler than all that and
only awarded the plaintiff what he asked for.

I haven't been called since. Maybe they knew???                               t     TOC    u                                          Page 172

A computer once beat me at chess,                         job like insurance companies and so forth. When I
but it was no match for me at kick boxing.                asked the HR representative if I could talk to my new
Emo Philips                                               team leader, she said "oh no, no one has time to
                                                          talk to you, they are busy meeting their month end
                                                          quotas. I asked what were the quotas and I about fell
Jim’s mailbag 2010                                        out of my chair when the HR specialist told me that
                                                          the quotas were 8 cases a day!!! That is outrageous.
These 2010 Q & A letters may have the answers you're      I was expecting about 2-4 but 8????? Apparently
looking for. I've provided a search box for you to        this is a nationwide practice and is abhorrent.
use. Try a few different key words and you'll likely
find just what you need. Some of the links may be         This is an outrage and I immediately declined the
broken. If you find a broken link, please let me know     position. I just politely said move on to the next
by emailing me at <>            candidate. Veterans are not used cars, nor would I
                                                          be doing a veteran any favors being rushed because
                                                          I could miss something and I'm normally very
                                                          thorough and I don't like to miss anything. I currently
Letters in my mailbag are reprinted just as they          can only work per diem as a Sexual Assault Nurse
come to me. Spelling and grammar are left as is           Examiner and it works for me because it is on call
and only small corrections are made to improve            but the hours are not guaranteed and income is not
readability, ensure anonymity or delete expletives        stable but..... I can take my time and help someone
that may offend some readers. This is not legal           who has gone through a traumatic experience and
advice. You should always seek the advice of an           really help someone. That is why I became a nurse.
attorney who is qualified in Veterans law before
you make any decisions about your own benefits.           I was doing some online research and ran across
                                                          your web site. I wanted to tell you of my actions
01/04/2010                                                because someone needs to take a stand and
                                                          not take on a job that would hurt veterans.
                                                          Thank you for reading my email.
In June of 2009, I had applied for a Veteran
Ratings Service Representative position at my             Reply;
local regional office in Louisville, Kentucky. I am
a 24 year veteran, 70% disabled and a registered          Wow. You really nailed it. Your assessment
nurse. I cannot work full time as a floor nurse           is so perfect that it startled me.
currently due to my disability limitations but I felt
that I could sit at a desk and due to my 24 years don't yet know the worst of it. Get ready.
of medical service could help review claims and
help veterans but I found out an awful truth.             Bonuses are given to those who meet and exceed
                                                          quotas. However, there is little to no credence
I was interviewed finally in December 2009 and was        given to the quality of the decisions. An unjust
selected for the position. Something told me to check     denial is lent the same weight as any decision
it out further. I knew I would have to go through         so in a crunch to make the bonus, the rater may
training for at least one year to two years before I      quickly deny a number of claims to meet quota
would be proficient, but that is not what bothered me.    and know that nothing will be done about it.
Upon asking further questions, I was told there was a     Decisions with awards are 100% reviewed. Decisions
production quota which was NOT detailed in the job        that are denials are only randomly reviewed.
description nor was I informed of this at my interview.
                                                          There is no system to track how many denials
I was told that I would have to meet certain              are appealed successfully. There are many
production quality standards but hell, everyone has       'guesstimates' but nothing that appears to be
to go through that when dealing with claims in any        valid. In my own work I estimate 70% of award/                              t         TOC      u                                          Page 173

denial letters are so flawed as to require appeal.           complete 2 each year just to stay safe.
All of those may be eventually won on appeal.
So much for the quota system. Thanks
for writing and bringing this up.                            I am a veteran that is having a tough time trying
                                                             to get my VA prescriptions corrected. I have
The sad part of it all is that we really need people         tried to get the people at the phone assistance
like you. Your military experience, your knowledge           at the Newington CT VA to correct the problem
of the system as a disabled veteran and your                 and got nowhere fast. As you know talking to
degree in nursing would make you seem the                    the VA’s Patients Advocate is a waste of time
ideal RVSR who could make fair and knowledge                 when all they will do is cover the VA’s butt.
based decisions about disability claims.
                                                             I even tried talking to the VA’s director and got
Jim;                                                         nowhere fast. Talked to the Senators in this state and
                                                             got the same run around as allot of other veterans
my IU has been taken away and the VA says I did              have. What can I do to get some action taken to
not send in a form. They said they mailed it but it          correct this problem with my prescriptions?
went to my previous address so I never recieved
it. The last form before this one I recieved at my           The prescription problem I am having is I am a
current address. The va says the action is already           diabetic and need to take two injection of insulin
taken. how can I recover from their mistake?                 a day. Beside that I am supposed to test my blood
                                                             sugar four times a day. I need to do this to have better
Reply;                                                       control of my blood sugar through out the day.

Unfortunately, the responsibility to ensure the              Upon renewing my prescription order for the
form is timely completed is yours. If you moved              items needed to do the above I was given
and didn't have mail forwarded or notify VA in               enough blood test strips and enough lancets
writing using certified mail, you made a serious             but was only given enough alcohol prep pads
mistake. If you did all that and VA erred anyhow,            to only take two test of my blood sugar a day.
you should have downloaded a form, completed                 I spoke to a nurse named Lisa who advised me
it and mailed it in. Changing a mailing address              to go out and buy the rest of what is needed.
isn't easy with VA and one must be aware that
some paper may not get to you as it should.                  Stating "How much could a bottle of
                                                             alcohol and sterile cotton balls cost"
Even before they lower the benefit they will give you
advance notice of "adverse action" so that you can           Maybe my supper for a week.
get it straight before you've actually lost the benefit.
                                                             Since when do we need to go out and buy the
I write about this here http://jimstrickland912.             supplies the VA has been and is supposed to give
com/I.htm and here                to us? I get a kick out of hearing something like
                                                             this from a VA employee who has better medical
If VA has reduced your benefit your only option now          care than the veterans who go to the VA.
is to appeal. You must write to them using a formal
letter and explain that for some reason you didn't           I am 68 years old and live on my social security
receive the 4140 form. Be sure to enclose a 4140 that        of a little more than $800 dollars a month
covers the period in question. It may take time but          plus food stamps. I have no co pay at the VA
you'll likely get the IU benefit back with little fuss.      so all that I get is supposed to be free.

I advise IU veterans to keep it in mind that                 I have even tried to get my doctor involved in
on or about the anniversary of their IU                      this mess and was told she wanted this nurse
award they owe the VA a 4140 form. I usually                 Lisa to contact me instead. I find that kind of                               t         TOC      u                                        Page 174

hard to believe because the last time I saw her               see much of the other stuff in there.
she advised me to contact her if I needed to.
                                                              Not very fair of me maybe but it's a good
What do I do in a case like this?                             guide and knowledge is power.

Let some VA employee tamper with my health care?              Follow-up; "Jim, I read your A to Z guide and found
                                                              it very enlightening. As to the answer to my original
Isn’t there some law that prohibits that?                     question, I showed your answer and the links you
                                                              so generously provided to a Philadelphia laywer
Please reply and advise. I’m at my wits end and tired         who after reading them went out on a two day
of calling the VA to try to correct this problem.             drunk. When he sobered up his best advice to me
                                                              was, 'Don't get sick anywhere but close to a VA
Reply;                                                        hospital or you're screwed big time.' Thanks Jim."

You won't care at all for what I have to say.                 Jim;

You're making a mountain out of a molehill as surely          Thank You for your service and time.
as anyone I've seen this year. I take injections myself
and I buy my own alcohol and some cotton balls                Question, After seeing my Psychiatrist I asked for
because I prefer them over the little pads I'm issued. I      a print out of my future appointments and saw
even sometimes take the cotton from other medicine            something on the paper that reads Amb: Track, so I
containers and use that to soak up some alcohol to            asked about it and was told it was a C&P. I notice the
swab the injection site. You can use a paper towel            dates have passed and no one told me about the
rather than a cotton really doesn't matter.         appointments, I requested information about the C&P
                                                              and was told to go to the C&P office, I did. I asked the
While I get your point that VA should provide you             lady working there and she told me it was a review
with precisely what you need, this is far from a              but my C-file hasn't arrived yet and not to worry.
perfect world we live in. If this is the worst thing that
happens to you this year, you should be very grateful.        My question is.. She said my C&P would be done at
                                                              the V.A. and I would need to be present. Why am
If you'd like, I'll send you 10 bucks to buy                  I having a C&P? and why is it being done at the V.A.
alcohol and cotton balls with. That should                    and not a QCT place? is this normal? I did appeal
keep you going through 2010.                                  my rating for PTSD but most people I ask went to a
                                                              place call QTC. Are they trying to do me a number?
Jim, I have never found anyone who could tell me
exactly what I should do If I need to check into a            QTC is a contractor who works for the VA. http://
non VA hospital in an emergency. Just what steps     They often have offices
are needed to insure the VA will pick up the tab,             and exam areas within VA hospitals but that isn't
then move you to a VA hospital when it is possible.           always the case. A C & P may be ordered for a number
I live 80 miles from the nearest VA hospital and this         of reasons and at any time. If you appealed your
worries me. It would seem they would have this                rating, an exam is a perfectly normal next step.
carved in stone somewhere, and passed on to all
vets. I'm sure lots of vets are in the same boat.             You'll be scheduled after your paperwork arrives
                                                              from the RO to the facility where you'll be
Reply;                                                        examined. Often enough the QTC folks won't
                                                              send a letter, they'll call with very short notice.
It's in my A to Z Guide at http://jimstrickland912.           Do your best to keep the appointment.
com. I won't tell you exactly where...I want
to have you search it out so that you'll                              t      TOC    u                                         Page 175

01/11/2010                                                would take it again in a few and if it remained
                                                          high advised I go to the ER. I could feel my blood
This is good to know!                                     boiling, I knew it was due to this guy's attitude.

Have you ever needed to change your direct                He then proceeded with a knee exam during which
deposit? Do you dread any interaction with VA             he asked me to squat and duck walk. I told him
because you know that the acronyms FUBAR                  politely that I couldn't as I feared my right knee
and SNAFU were invented for the VA?                       would sublux. I got down into a squat as well as I
                                                          could and was visibly shaking at this point. He then
I recently changed banks and recalled that I'd heard      became a little upset and explained to me how my
about a number to call at VA to modify my electronic      xrays were showed normal knees, back and neck
deposits of my benefits money. I was pleasantly           (while they might MRI's are a very different story) so
surprised to find that after only 10 minutes or so of     there was no reason I couldn't do the walk. I again
busy signals I got through to a lady who seemed to        politely declined. I then provided him a statement
know what she was doing. It worked and my next            from my physician in which he details my conditions
deposit was made correctly to my new account.             and how they are related. He asked how much I
                                                          paid a guy Downrange to write such a letter.
You'll need your old as well as your new routing
numbers and other information. They'll ask you            I explained that the letter was written by my family
a few questions for security purposes and that's          physician who has treated me for the last 3 years
about it. Have your SSN, address, phone number            and it was done free of charge to me, which it
and so on available for the security screening            was. As we moved forward in the questions he
and the whole thing takes 2 or 3 minutes.                 asked about missed days from work I provided
                                                          several work excuses. He flipped his calendar
1-877-838-2778                                            back and made the comment "there's a 5 day
                                                          weekend". After we completed his questions and
Jim;                                                      I got dressed, he said while he couldn't offer me
                                                          advise if he could it would be to take what I am
I went for another C&P exam as requested by the           given and don't buck the system, as they can take
VA and where to begin. As the MD and I were               ratings away much easier than it is to get one.
walking to his office he made a comment to the
affect of you couldn't leave well enough alone.           He stated that his objective evidence weighs more
I was polite, pretended I didn't hear it and let it       heavy than subjective statement and opinions. I asked
slide. We began discussing my injuries and then           for a copy of his notes he made on the paper and he
he stated that he could read and my answers               stated it was a legal document and I couldn't have it.
were similar to what was listed on his form. I            He took my BP again and it was still high 135/100 hr
asked why that was an issue, he didn't respond.           135 and he advised I go to the ER. I left and went to
                                                          my car wear I called my wife at work and then took
During the exam he commented that the exam he             my own BP in the car (I am a respiratory therapist)
was requested to do was an exam for infectious            and I got 128/85 and my HR was 97, so I felt the ER was
disease and someone messed up so it was a waste           not warranted, as the stress-er had been removed.
of his time b/c Chronic Fatigue Syndrome is not a
infectious disease but he could only do what was          I have talked to a few friends and they all believe I
listed. At this point his attitude had rubbed me the      should write this out and send it to my Representative
wrong way and while I did become slightly defensive       and Senators as well as to the VA regional office.
I held my composure as I did throughout the process.      Before I go to such extremes, I thought I should ask
                                                          your opinion. It was quite apparent that this guy was
He took my bp and it was 158/110 with a Heart             upset about how well my claim was written, and from
Rate of 148, he stated I needed to go to ER, I            the beginning it seemed he was out to poke holes
told him I do not have BP/Heart problems and              into anything he could. I done very well and was able
was likely white coat syndrome. He stated he              to control my emotions and didn't have an outburst                                 t   TOC    u                                             Page 176

(nor punch the guy which I really,d really wanted to      weary soul and tell me where to go to learn
do). I very much look forward to your response.           how. I want to be the squeaky wheel.

Very Respectfully...                                      Many, many thanks for any help you can offer,
                                                          and also for all you do for frustrated veterans.
Reply;                                                    You guys are real heroes in my book. ;)

I believe you should have gone to the ER. I'm             Reply;
not a strong supporter of that "white coat
syndrome". See              I'll tell you but I don't really want to.
White_coat_hypertension There is little                   Please allow me to explain why.
evidence to consistently support such a thing...
most folks who think they have that are simply            IRIS won't correctly answer your questions about an
hypertensive and in denial. No matter the cause,          appeal or anything to do with a case that's in process.
a BP that high places you in immediate danger.            The entire Q & A process at VA (The toll free number
                                                          & IRIS) is very poorly done. Your questions don't go
I worked for 35 years as a cardiovascular health          to a Regional Office or to the Debt Management
professional and cardiovascular/respiratory/              Center, they're routed to a separate facility.
imaging director and have some small experience
in such things. If you don't get your BP treated,         The system of tracking a particular case (or folder or
you are likely in serious danger of a stroke.             file) is shaky at best. There are tens of thousands of
                                                          paper folders and cardboard boxes stacked floor to
I don't believe that an individual can take an            ceiling awaiting attention. Your query will be one
accurate BP on themselves. This is particularly           of a hundred thousand or so this week demanding
true if one is sitting in a parking lot trying to         to know what's happening with your case.
prove a point ("My BP is low!") in anger.
                                                          The individual who will attempt to answer you
Writing everything out and sending it to all those        has scant data available on a computer screen at
people will only provide evidence that you seem to        a "workstation". The screen available is known as
have an anger management issue. I assure you that         VACOLS...Veterans Appeals Control & Locater System.
few, if any, will find anything wrong with what your
examiner said or did for you. The anger in your writing   In the M21-1MR M21-1MR, Part I, Chapter 5,
is over the top and not particularly warranted for the    Section K sub 51 we read what is probably the
minor transgressions you report to me. Any writing        most important information there is to know
to others will hurt your case more than help it.          about VACOLS: "Effective tracking of appeals
                                                          requires accurate updating of VACOLS each time
Jim;                                                      action is taken on pending appeal cases."

I'm embarrassed because I'm not Google-clever             In the early days of computers there was a
enough to find this out on my own, apparently.            popular acronym that was used often, "GIGO"
                                                          or "Garbage In, Garbage Out". If the people who
How does one do an IRIS request? I asked for some         are working with your file aren't completely
help on the Straight Talk site      and accurately updating the VACOLS screen
com/group/straight-talk-for-military-veterans             every time an action occurs with your case, the
(mine is the Squid Wife question from 12/08/09,           information you receive won't be accurate.
my mother the widow is in debt 11K according
to VA, waiting on her appeal since May) and the           The question that we must ask ourselves then is,
IRIS request is the only thing I don't know how to        "Do I have confidence that the VA employee who
do. And haven't had luck finding instructions.            last opened my folder has accurately and timely
                                                          updated the VACOLS record so that it will reflect
Please have mercy on a poor search-engine-                just what stage of the process my case is at?"                               t        TOC      u                                           Page 177

While I do believe that there are many competent             Jim;
and caring employees of the VBA, I'm afraid that
my overall confidence in the quality of the work             Happy New Year my friend! I hope it is a blessed
isn't very high. I have to conclude that the data            one for you! How have you been? How is your friend
that is available to the IRIS worker isn't either            whose been fighting the cancer been? I think of
accurate nor is it timely. My experience with both           both of you often, with good thoughts always.
IRIS and the toll free number has been so poor
that I urge veterans to never use either system.             I need your wisdom on benefits again. I just received
                                                             from the Social Security Department my introduction
I do make one exception; The IRIS system may be              to Medicare. I am assigned Part A and B. I have to
helpful for answering a more generalized question.           tell them if I do not want Part B. I've done a little
For example, if you seek information about a                 research on VAwatchdog about this but it still
particular rule or regulation or if you would like forms     confuses me. I'm 100% Total and Permanent now, so
mailed directly to you, IRIS may be helpful. If you          everything I deal with is covered through the VA. I
want an answer to a case-specific question, your best        must admit, I do have some frustrations with the VA
route is to write a letter and address it to the RO or       system, only in that there are some issues, such as
Center concerned and post it using certified mail.           diabetes, which I feel I have, I can't seem to get any
                                                             attention on. It's constantly thrown under the table.
Now that I've warned you about IRIS if you insist            I don't want to make a mistake using this Medicare
on proceeding to use it it's pretty simple. Click            and fowl up my benefits with the VA. What do I do?
here to get started.              I see that you have Part B based upon one of your
                                                             replies. Please help me understand this mess.
Take your time to carefully read the entire page
before you begin. You'll see that the system asks            Thank you so much Jim for all you do. I really
you for a fair amount of information as you go along         appreciate the love and kindness you give to all
so have your case numbers and so on available.               of us. I hope all is well with your Harley. I'm still
                                                             searching for mine. I really want one badly.
If you follow the instructions you should have no
problems and within a couple of days, you too can be         Take care my friend! God Bless.
misinformed about whatever it is you want to know.
Good luck!
                                                             Thanks for all the kind words. I always enjoy hearing
A Google Search Hint                                         from friends who have been reading and writing to
                                                             me for years. We worked through your challenging
The reader above had no luck Googling up IRIS.               case together and you received the benefits that
That's no surprise...if you ask a search engine for          you had earned by your honorable military service.
IRIS you'll retrieve a lot of data about pretty flowers
and the colored part of your eye. Any time you're            My friend continues his battle with the non-Hodgkins
searching for information regarding veterans                 lymphoma that is Agent Orange induced. It's not great
remember to put that word "veterans" or "veteran"            news today...he's had his 5th recurrence and is facing
into your search field. In this case, if you search for      another round of chemotherapy and another bone
"iris veterans" (without the quotation marks) the            marrow transplant. The good news is that his care at
very first response by Google will take you directly         the Charleston, SC VAMC continues to be excellent
to the correct VA page to begin your IRIS inquiry.           and aggressive. His attitude is much as it was when he
                                                             was a Marine engineer in Vietnam...fighting is just a
It's also worth noting that you shouldn't ever               part of the job. I'll let him know you've asked of him.
use the search term "VA". Using those 2 letters
will always clutter your results with a lot of               To have Medicare Part B is simply a matter of wanting
information about the great state of Virginia.               to be covered just in case. I've only used it one time
                                                             and it saved me hundreds of dollars on some elective                                t        TOC      u                                          Page 178

foot surgery. I would have used VA but my schedule            do is write a letter to the Decatur offices and tell
was such that I needed it done NOW so I could get             them "I am a Vietnam veteran. I have heart disease. I
my foot in a motorcycle boot by a certain date.               wish to file a claim for my Ischemic Heart Disease."

The VA schedule was all backed up for these purely            Provide them with your SSN and any
elective things so I went outside for civilian care.          other numbers you may have from the
                                                              pending case and you're good to go.
Otherwise, Part B isn't's a
sort of luxury I suppose. If you don't think                  Remember to post that using certified mail, return
you need it, tell them you decline.                           receipt requested. How about that for simple? This
                                                              shouldn't cause any delay in your current claims but
Keep searching, your bike is out there                        even if it would, this is an important claim to get in.
somewhere just waiting for you.
                                                              I am guessing it will be 18 months before
01/2010                                                       they catch up with heart disease claims.
                                                              I'm told that over 85,000 have already been
Jim;                                                          received and like yours, more pour in daily.

I know you talk to thousands of us but maybe you'll           Be patient and think of it as an
remember last summer. you came to my house not                investment into your future.
too far from your own and we discussed how to
file my claim. I did in fact file in July 2009, for PTSD,     I don't have much faith in what they tell you
tennitus, hearing loss and SMC for ED. I have since           at the 800 number. I hope that your case is
forwarded the records and several letters from                near resolution though. Holler my way when
commanders that the DVA were requiring as evidence            you get the will probably need an
                                                              appeal and I'm happy to help you with that.
I'm told by calling their 800 number that my case
was just sent for review and would be going to                Jim;
ratings within a couple of weeks. Now I'm not
sure of what to do next. If you recall, I've had              I was under the assumption that Government
3 heart attacks since 2002. Most recently was                 organizations could not "Self Assess"
last May 2009, I have to stents and a couple of               themselves that they had to had a third party
arteries that are blocked and irrepairable.                   (i.e., Contractor). It seems that VA is gearing
                                                              up to do there own C&A site visits without the
I understand now that the DVA is accepting                    third party, strictly VA doing the site visit.
this particular heart disease as Agent Orange
presumptive. If that's the case, where do I go from           Reply;
here? Do I start over or wait until the current claim
is rated? We left heart disease off of the original           It's good work if you can get it. The teflon
file so, it's never been applied for. I'm not sure of         jacket issued along with the employee ID
what to do next. Thanks again for all of your help            badge must be a good sturdy one.

Reply;                                                        That jacket ensures that one is immune to FOIA,
                                                              has no timely constraints on the process (but
Sure I remember you. It's good to hear you're                 plenty on the customers) and nobody checks the
making progress in the system. It takes forever               quality of the product as it goes out the door.
but you're on it so eventually you'll win.
                                                              What a way to run a business, eh?
Yes, should file for the heart disease benefit.
                                                              I spent 35 years in health care, working for hospitals
You can do that simply and easily. All you have to            and doctors. What a blessing all that would have                              t          TOC      u                                           Page 179

been for us to never have to answer JCAHO questions           If your back and the opposing knee are bothering
and not have to keep track of our failures.                   you as much as you say, you should be seeing an
                                                              orthopedic surgeon to have that documented.
Of course, people may not have actually survived              In my experience the testimony of a chiropractor
their visit but hey...who would know?                         isn't much help. Only a qualified orthopedic
                                                              doctor will be able to state that your back,
                                                              hip and 2nd knee problems are a result of or
posted 01-21-10                                               connected to the original knee condition.

Jim;                                                          To claim that the knee is causing you to have
                                                              a mental health issue will also require some
I am writing to ask a question about a problem                development and history. You should report those
that I've had recently. Currently I am rated at 40%           symptoms to your primary care doctor and seek
service connected, 10% being in nerve damage in               a referral to a mental health clinic. Then, when
both feet, and 20% for my knee where I tore my                you've established for the record how severe your
A.C.L.. I have not had surgery on my A.C.L. yet I am          mental health problems are, you may have a case.
pending surgery for June of this year. Due to my knee
I endure a severe amount of instability and recently          I'd have to guess that you won't see compensation
went to step in my bathtub to take a shower, it was           from any of these complaints. A torn ACL is a fairly
dry, but when I put all my weight on my bad knee it           common problem and I can't say that I've ever known
buckled and I hit my head ear first on the wall and           the injury to produce as many other health injuries
additionally hurt my wrist. I followed up to the V.A.         as you claim it has. Without a lot of expert medical
a couple days afterwards where they gave noted                testimony to support all these claims, I don't believe
some redness inside of my ear, gave me some ear               that VBA will award you any further benefits.
drops, and did an -x-ray on my wrist with no follow
ups. That was about 3 months ago and still today I'm          Jim;
having pain and strange noises just in that one ear.
                                                              I am currently rated at 40% from injuries I sustained
Also, I've been going to a chiropractor because               while on active duty in the US Navy. The injuries are
of the lack of balance I shift all my weight to my            two fractured cervical bones and a herniated cervical
opposing knee that my hips and back are all of out            disk (combined rating is 20% for those.) At the time
alignment. My good knee now hurts just as much                I broke my neck my blood pressure also shot up to
as the one I initially injured. I'm in so much pain all       and stayed and about 188/122 (rated at 10%.) and
caused by an injury with an exponent on the end               recently after reading my C-File I was rated 10% for
that I have such great trouble getting and staying            two lumbar herniated disks that I complained about
asleep, waking up with nightmares that my knee is             for about 20 years without initiating a claim. All of
being burned just due to it hurting. Is all of this what      the above injuries were related to an incident with
is considered non-service connected? Thank you.               a conference table that 4 of us were moving down a
                                                              flight of stairs. The two sailors at the bottom of the
Reply;                                                        table lost their footing and the table crushed on top
                                                              of them and two of us at the top went over the top of
Conditions caused by existing service connected               the table and over the railing. I felt as if my life was in
conditions may sometimes be service connected.                jepardy (as well as the other guys that were moving
It's usually hard to get that ruling though.                  the table with me) once I tried to hold the table back
                                                              from crushing my fellow sailors and I saw the table
In your case, the fall in the shower produced very            overtake them as they went under the table I along
minor results. The first thing you would have to              with the other fellow sailor that was on the topside
prove is that somehow that fall resulted in a disabling       with me, fell over the railing like I did. The worst part
condition. A little redness in your ear and a slight pain     of it was that we were never reunited to see what
in the wrist will be viewed as episodic and transitory        happened to each other. I was in the hospital for a
and will not rise to the level of a disabling condition.      while and after that I was instructed to stay home                              t          TOC    u                                          Page 180

"off Base" for bedrest except for numberous ortho,            a crazy person than a veteran service officer. After
nerology, and psychiotrist appointments. since it             that encounter I was told by a Vietnam vet that he
was a training base for sonar, people came and went           saw a need for me to seek help from a psychiatrist
frequently and I'm not sure of their names in order           that has dealt with patients with PTSD. After that I
to request information about their status. The base           took a couple free PTSD tests on the internet that
has since been closed so that didn't help either.             evaluated the likely hood of a person to be afflicted
                                                              with PTSD. The results were similar and were both
I was in charge of a 8 person work party and only             above a 70% likely hood I suffered from PTSD. At
allotted 4 people for this job and in hind site there         home I began feeling angry when my younger
should have been six on this detail or the legs of the        children used the stairs to launch the Tonka trucks
table should have been removed.. I was unconscious            down so they crashed sounding very much like
from the time I went over the rail and awoken by              my incident with the conference table down the
medical staff that came to take us to the VA hospital         stairs. I was constantly asking if everyone was ok
in San Diego. After I was awoken I blacked out again          thinking they had fell down the stairs with the trucks.
and awoke in the hospital with IVs and monitoring             Before I was seen and prescribed medication for
devices. I was seen by a psychiatrist and was                 my PTSD symptoms I had become a heavy drinker
prescribed Elivil for insomnia, depression, anxiety,          and smoked pot to get a couple hours of sleep per
and I found out later it was a common medicine for            night. I was in my early thirties when I began to
PTSD sufferers at that time. I was discharged with a          drink/smoke pot to numb the feelings I was having.
re3-p honorable discharge (not sure what that means)
About 5 years after my discharge I was becoming               Since my first evaluation for PTSD all the psychiatrists
more recluse and needed more alone time. Prior to             came to the same conclusion (Severe PTSD.) I have
that I was a very social person entertaining people on        seen three civilian, one VA, and one state psychiatrists,
our speedboat and going out frequently, attending             and one licensed social worker LSW. The results of my
college, and playing cards with friends. I recall telling     first VA claim for PTSD was denied and they admitted
a friend that I felt empty and without emotion for            I had severe PTSD but claimed the accident with the
family members that died, I no longer enjoyed get             conference table and my many serious injuries didn't
togethers. He recommended that I attend church                cause it and the fact that the medication Elivil was
and I felt more like a leper than a parishioner. My           used to treat a great deal of the symptoms of PTSD.
feelings over time worsened and I began feeling               I am being represented by the American Legion
uncomfortable around family and spent a lot of                now and I am a member of that organization.
time on the computer which I had enjoyed since
computers first came out in the early 80's. I had             The local American Legion rep really botched my first
seen the evolution of the Internet go from black              request for service compensation for PTSD by writing
and white text on the BBS system to a fast evolving           that the cause of my PTSD was because of the "big
Internet much like it is today. In fact in 1994 I began       guns" making a loud noise which I think he had me
an Internet company that sold ink products and                mixed up with another veteran or just forgot what I
branched out to providing access to the Internet              had told him happened. This American Legion rep
as an Internet service provider. Our company grew             in Toledo Ohio had me sign a blank sheet and told
rapidly and it was a very lucrative business and I was        me he would write the notice of disagreement for
shielded from contact of the public by my employees.          me the next day and forward it to the rating board.
                                                              Since I had never been in a war theater it was an easy
As my PTSD progressed I felt people were stealing             denial for my PTSD. At that point I contacted the
from me and that was substantiated a couple times.            regional VSO in Cleveland to assist me and wrote my
In 2005 we were down to one employee from eight.              own accounts of what had happened since the last
I was forced to interact with customers at that point         VSO I had worked with completely misrepresented
and I was approached by a customer that happened              my case. My claim is now being assesed by a DRO
to be a veteran service representative. He told me            in Cleveland. Since my VA PTSD denial I have been
by looking/listening to me I should be evaluated              awarded SSDI by the SSA. The DRO has requested
for PTSD. He said he worked with a lot of veterans            my SSA file that was handled very professionally
with the same issues as I had. He seemed more of              by a law firm named Binder and Binder. They were                             t         TOC      u                                        Page 181

very methodical and compiled all of my PTSD                 in 1961 for the treatment of depression. Use
assessments. I am hopeful that the DRO will find the        of Elavil in the treatment of PTSD wouldn't be
SSA information complete and that it will be helpful        particularly unusual but it wasn't then and isn't
in my VA claim for PTSD. I haven't worked since             now thought of as a primary treatment for PTSD.
September of 2005, I am going through a divorce
with my wife of 17 years. She gave up on me since I         The term PTSD wasn't used until the mid to late 1970's
was no longer fulfilling her needs and the needs of         and became formal only in 1980 in the DSM-IV.
our children. I was so fearful about going to a father
daughter dance and I think that was one of the final        You report that after discharge and for many years
straws that broke the camels back. I had caught             you had a highly successful career and life that only
her cheating on me and was suspicious of other              began to deteriorate many years later. You don't
infidelities. At that point I had also given up on our      elaborate on it and there is no mention of any mental
marriage. My DRO has requested the paperwork that           health treatment for many years after your discharge.
the SSA used in determining my 100% unplayability
rating. Do you think that will help me with my VA           I can't guess what the SSA used as a decision point
service connection for PTSD? Considering they have          to award your SSDI benefits. However, the SSDI
already acknowledged that I do have severe PTSD but         system is markedly different than the VA system. To
they deny a service connection. It seems odd to me          be seen as disabled and service connected by the
that I was given medication by the base psychiatrist        VA requires an event or a "stressor" that not only
to treat the symptoms of PTSD right after the tragedy       occurred in service but rises to a level the VA believes
but then they deny any service connection.                  would cause PTSD. That usually involves direct
                                                            combat with a fear of loss of life, the observance of
                                                            death in close proximity to you or a major trauma
Reply;                                                      directly to you. PTSD may also arise from duty in a
                                                            hospital burn unit or on a detail such as sorting out
That code, RE-3P means you aren't eligible to reenlist      body parts and belongings of deceased soldiers.
without a waiver due to, "Physical disability (includes
discharge and transfer to TDRL). Obesity. Motion            The SSDI system requires that it be determined that
sickness. Disqualified for officer candidate training."     you are unable to work, period. The origin of the
                                                            disability doesn't carry nearly as much weight to SSDI
I don't understand your history. I'm not a physician        as it does to the VA. If it has been determined that
nor a mental health expert but you tell me you              your current physical or mental health status is such
sustained an injury on the job. That isn't at all           that you are reasonably unable to seek or maintain
unusual. You were hospitalized and awoke to                 gainful employment, the SSDI benefit will be awarded.
begin seeing a psychiatrist? That is unusual.
                                                            While the VA will take the SSDI award under
You don't relate that you had major surgery                 consideration just as they do any evidence,
or any particular complications from the                    it is in no way binding upon VA to make any
hospitalization. Surgery is often a treatment               award based on the SSDI determination.
for the injuries you describe so I'm a bit
surprised that you don't mention that.                      Unless I've missed something, my guess is that VA will
                                                            again deny you a service connected PTSD benefit.
Personally, I can't recall anything close to what
you've related to me being labeled as PTSD by
the VA or SSA for that matter. You had what
sounds like a minor accident, nobody was                    posted 01-26-10
killed or seriously injured according to what
you know and your own injuries required some
bed rest and a few follow-up appointments.                  Jim;

The medication Elavil was approved by FDA                   I have been in the VA System out of Sepulveda facility                               t         TOC      u                                          Page 182

since 1980s and have many many horror stories                 the workings of the unit and just makes everything
about the Hospital itself as well as the VA and VBA           harder for all the Vets and generally does little good
system. Since most of the problems are systemic               in the end. Do you have any insite on this situation?
and have been descibed time and time again, I will
keep my letter short and not get into other issues            Reply;
still pending. Instead I would like to concentrate on
two issues that I have been butting heads with the            I don't have any solutions for you.
above mentioned hospital. I am a disabled Viet Nam
Vet. I am rated at 100%, (actualy138%) and I do have          You aren't happy with your VA facility and you
a verity of difficaltys. The biggest problem is that          don't seem to care for your "not so good GP".
driving to VA facilities is out of the question, so years     Overall, you seem to be displeased with it all.
ago I was placed on Fee Basis where I can go to a local
doctor vrs a 500 mile plus ride to the hospital, and          I understand the problems. I drive 2 1/2 hours
in which I have had nothing but problems with the             to get to my hospital when required and I often
hospital, doctors, and thier antquanted equipment.            need to beg a ride with someone else. But...
                                                              overall I'm really pleased with all my services.
Being on 'Fee Basis' is a problem all to itself. If the       The quacks are good, some better than others.
problem I am having, let's say I need to go to a              I have to make some advance plans and it
specialist in a certain field I must first go to my not       isn't always convenient but that's life.
so good GP and have him request for me to see
these different doctors. The request is filed and             You have access to VA care as well as approval for fee
after it comes up on my workers desk, it must then            basis care. I can't help but think that somewhere in
go through at least two other desks to a VA doctor            there is a doctor and a care plan that will agree with
in the hospital where he looks at the request and             you...if you will look a little harder for it. Good luck.
approves it 'or not'. Then the paper work goes back
thru the system with a request for a second opinion.
Once the paperwork gets back to me, which can be              Jim;
as long as a year, I have to find a doctor that will even
take Fee Basis and (if) I do I can get a consult. If the      I’ve written so many people in the last 6 months,
doctor recommends a procedure, the entire file must           forgive me if my fingers, and brain, are getting tired.
go through the VA System to get approved. This may            In short, does anyone care that the Military is giving
take as much as another year if I call every month            out benzodiazepines like popcorn in the Mideast to
to push it through. This must be done on each and             emotionally blunt our troops? There are at least 20
every appiontment to each and every doctor. This              names for benzos, although Klonopin seems to come
system seems to be over redundent to say the least.           up a lot in this practice. Roche must have a good
                                                              “in “ to land such a large contract. I was prescribed
Now, if that is not bad enough I have been trying             Ativan for 17 years, that’s about 20,000 pills( 1mg.).
to get the VA Fee Basis unit to develope a list of the        Many experts say it’s harder to get off of than heroin.
doctors names that except Fee Basis for those on              I ran out for a weekend, as did my wife of 37 years,
the program in rural areas as I live in. All I have been      and we almost went nuts. The Ashton Manual got
getting is, " We cannot provide a list of doctors that        me off with very little withdrawal symptoms (Google
except Fee Basis due to the liablity of a law suite".         it). Everyone who gets issued these, including the
They say it is VA policy but I have found no such             “z” drugs, Ambien and Lunesta, should at be issued
policy written that verifies this claim. However I do         a Ashton Manual upon going home. No way to turn
know that for me to call every doctor, some out               back the sales contracts now. Combat stress is bad
of the area, just to find one, let alone two on each          enough, now our troops get to become accidental
problem is luticrist being that the very doctors I            addicts too. Col. Elspeth Ritchie denies their use. Read
need cross the desk of every VA FB worker every               Men’s Health, May 09, The War….On Drugs, by Melody
day. I was told that I would have to call Washington          Petersen. This is a tragedy. Thanks for your time.
D.C. to make any changes to this policy.
I have done this kind of call which generally upsets          Reply;                                   t     TOC      u                                          Page 183

You're correct, of course. The problem is that this has       Reply;
been standard for wartime since the Romans marched
over Europe. The British navy gave a ration of rotgut         No. This is a rare circumstance where you are
rum daily and not much has changed since but the              allowed to draw both benefits with no offset.
drug of choice. Pilots are given amphetamines as are          Every few years Congress may try to change
many combat troops. The first drug I ever took was            that and it gets shot down very quickly.
in basic training when my DI wanted to give his boys
a little edge over another company...he handed out            Jim;
what were then known as "white crosses" or "west
coast turnarounds", very popular with truckers.               You met with my husband and helped him
                                                              complete his paperwork. He's is getting a little
It isn't only the military. You seem an intelligent           concerned that he has not heard anything
fellow so you know that often enough our military             from the VA. Is there anyone he can contact to
is no more than a reflection of our society. Turn             find out what is going on, or does he still just
on your TV set and note that with a simple pill...            wait? That's REAL hard for him , you know :).
or a dozen can have a manly erection, no
hemorrhoids, get skinny, stay healthy and younger             Reply;
forever, cure any trace of indigestion, prevent
cancer, lower your cholesterol, be smarter and more           Nope. Don't do a thing. Don't call the
alert and stop farting in embarrassing places.                800 number, don't get anxious.

There's a pill for everything...we don't even                 The VA started the year with 1,000,000 claims
want to talk about pain medications or                        overdue. Yeah, that's ONE MILLION that are months
vitamins. God forbid any American might have                  behind. It gets worse every day. His folder is in a
a headache or feel tired...there's a pill for that!           very long line in Atlanta and is marching along.

I was in the Army when it was thought a good idea             I advise veterans that it will take at least 1
to put smokes in our rations. As a medic I handed out         year from the time of filing to reach the first
enough APC tablets to sink a battleship. My dad was           decision. That means 12 to 18 months without
USMC and I recall the medic making sure everyone              hearing anything but those stupid letters
took their salt pills. Jesus...those things were the size     that say "We're working on your claim...".
of salt licks we put out for deer and we took 2 a day.
Can you say high blood pressure? The Phenacitin in            When the decision comes in the mail, there is
APC tablets has long been banned as a carcinogen.             a 70% chance it's going to be so wrong it will
                                                              require an appeal. Add another 18 to 24 months.
I spent my youth in Tawara Terrace at Camp known for the ground water                      This is for everyone...not just us
contamination. My dad drank a lot of Tawara                   who work through Atlanta.
water and has had his right kidney, most of his
colon, his prostate and his bladder removed.                  Patience is the ultimate virtue that a veteran
                                                              must have. The VA will be in touch...eventually.
I appreciate you sharing your thoughts
with me. Keep up the pressure sir. It's
people like you who can force change.                         posted 01-28-10

Jim;                                                          Are you or do you know a visually impaired veteran?
                                                              Do you have problems reading any of the matrials that
I draw 100 percent service connected V A                      VA sends to you? If so, I need to hear about that from
disability,80% disabled 100% for unemployable,due             you, please. Email me directly at <>
to PTSD. Will social security reduce my VA comp?                              t          TOC      u                                            Page 184

Jim;                                                          behind on bills, etc., it's strictly eligibility by the book.

I researched what you said about prostate cancer and trying to score a schedular rather than
read your detailed article about it on your site. I thus      an IU 100% rating so that you can work and earn
changed my mind and filed a claim for prostate cancer         money, you are guilty of gaming the system. I
with no other request than that it be handled quickly.        don't support such efforts as they are based on
                                                              fraud. If you are too disabled to work and you are
So, that puts me back on track to continue contesting         eligible for IU, great. If you are awarded IU and you
the 70% rating I originally got. My need is 100% as           become able to work, you no longer deserve the IU
I am basically out of work and unable to get a job.           benefit. That's the law, it's how the system works.

As a result of my last filing (which was to                   Trying to make a plan so that you can have your cake
forward a copy of two VA MD reports saying                    and eat it too hurts all veterans. Many of us believe
I was 100% incapactitated) I received a letter                that this is exactly why the VA system is as hard on
from the VA yesterday asking if I wanted                      us as it is...guys who game it for illegitimate gain.
to be certified as unemployable.
                                                     through my Guide and rethink your
I may be dreaming, maybe living in yesterday, but I           approach. If you deserve the award, you'll get
would like 100% without the issue of unemployablility         there. If you are able to work, go for it.
for two reasons. First, I may get better and be able to
work and, second, a favorable decision will date back
to 2006 which I first started trying to become eligible.      Jim;

Jim, is there a spot on your site that might discuss          I am a Vietnam vet with my DD 214 in order and
unemployability – its good and bad point?                     have had chronic Ischemic Heart Desease since
                                                              July of 1998. In Sept. 2010 I had angioplasty again
                                                              to remove more blockage. I have Complete records
Reply;                                                        since 07/98 to current date. Those records are
                                                              now in the hands of the DVA and I have copies.
Yes, my A to Z site at            I submitted a disability claim on 01/11/2010,
covers the topic. Head over and I'll advise that              through a VSO. On 01/23/2010 I recieved a
you start at the beginning and read the whole                 response to that claim from the DVA stating:
thing. You're already making some errors.
If you weren't eligible for IU when you first applied for     " We are working on your claim for :
it, the decision won't be're correct.       - ischemic heart disease
However, you're being sent a strong message that
100% schedular isn't going to happen. The reach from          We have recieved your compensation claim for
70% to 100% schedular is measured in light years              ischemic heart desease based on herbicide exposure.
because of the Combined Ratings Table. You could              However, this desease has not been added to
be awarded 5 more 20% ratings and still be at 80%.            the Dept. of Vet. Affairs regulations governing
                                                              presumptively associated herbicide exposure. In
Then, I advise that you never tell anyone you "need"          order to add desease, we must follow a series of
the benefit. I know this is nit-picking but VA does           legal requirements, including publishing a notice
not award based on need. They award based on                  in the Federal Register. we have begun this process,'s a different but important mindset.         but are holding claim until these legal requirements
                                                              have been met. When the process is complete, we
For example, I get a lot of email from guys who               will make a determination on your claim and provide
"need" the 100% so their kids get college money or            you with a notice of our decision." End of Quote.
the spouse gets CHAMPVA. As soon as they tell VA
that, they're sunk. VA doesn't award because you're           My VSO is now looking up the law governing                               t       TOC      u                                        Page 185

IHD, as it is presumptive to Agent Orange                     the HealtheVet web site that VA maintains for
exposure. Any help would be appreciated.                      health care information. You may access it by going
                                                              to the VA site at
                                                              I've been a supporter of the Heathevet site since 2005.
What part of the letter from VA                               However, the promises made were not kept and today
did you not understand?                                       the site is mediocre at best. My reply is below. Other
                                                              comments may be read at my STRAIGHT TALK forum.
That's pretty clear isn't it? The order was given
to make the IHD presumption a law. That is in                 In 2005 I was invited by VA to travel
progress now. They have your claim and as soon                to D.C. to work with the E-Vet
as it becomes law, they will process your claim.              site development team. I worked with
                                                              them as a VA Volunteer until
A federal law doesn't just happen              about 2007 when my interest dropped off the chart.
takes months. There is a LOT of material about the
new law and what's happening that is published on             Wendi is correct that it can be a very
VAWatchdog dot Org. Larry has been on top of this             helpful tool for tracking
since day one and he has made it simple to find.              medications, particularly for the
                                                              veteran who takes a lot of VA
On my web sites, The A to Z Guide of Veterans                 medicine. Reorder is simple and immediate.
Disability Benefits at
and also at my Forum, STRAIGHT TALK for Military
Veterans at          Unfortunately, SteveD is also correct.
talk-for-military-veterans?pli=1 there is also a lot of       The promises that were made in
talk and information about where the process is at.           2005 - 2006 were exciting. We would
                                                              be able to pull our medical
If your VSO isn't aware of this by now, you need a new        records, see our appointments, communicate
VSO. If I were applying for this benefit and my VSO           with our care team and even
was just getting around to sorting all this out, I'd be       schedule or reschedule appointments.
out of that office like it was on fire. You deserve better.

                                                              None of that ever happened.

I submitted form 10-5345a after reading about my              You've heard it all before. The budget
healthvet. The only reason I did this was to keep             cuts always start at the newest
from going to ROI everytime I want some copies of             projects. The E-Vet project was slashed
my medical records. ROI told me all I could get is            and burned like rain forest
prescriptions but that is not what is stated in 10-           and today, other than the prescription
5345a. This is just my opinion but if all I can get is        refill function, it's a
prescriptions then I have wasted my time doing this.          mediocre web site of health data.

                                                              (Those were the same years it was
I've taken this comment from my STRAIGHT                      reported that VA managers received
TALK forum. This is just one of the many                      HUGE bonuses that were budgeted
interesting topics that came up yesterday. Stop               but that's another story.)
by and say hello at
group/straight-talk-for-military-veterans                     I believe that it's a reflection on the
                                                              overall value that the DVA
The author was replying to another veteran about              places on computers and computerized                                   t   TOC    u                                       Page 186

systems. That is to say, not                                stay. Then they can find their
much. While the VHA has set the health                      comfort zone again...pushing a pencil on paper.
care world on fire with the
Electronic Medical Record known as
VistA, the rest of the VA depends                           Those Interwebby things are just a fad,
on paper.                                                   right? Like Hula-Hoops, they
                                                            won't last forever. And when they're
                                                            gone, the DVA will be ready.
As you all know, your VBA operates
almost strictly off of paper
records. The few computerized functions
available are antiquated
tracking systems meant to keep up with
the paper folders your case is

That doesn't work well at all and most
days nobody could pinpoint the
location of your file if their life depended on it.

We are in an age where your grocer
knows the location of every lime
and lemon and what day it came in and
what the profit is on each. UPS,
Amazon dot Com, FedEx and even the
USPS can locate a small envelope
out of millions per hour and show that
to you on your computer screen
in an instant. The FAA can pinpoint
the location of every airplane in
the sky with astounding accuracy and
show it to you on a real time

While the rest of the world is flying
along high speed lines and
sucking up terabytes of bandwidth
every second in information
exchanges, the DVA continues to
manufacture silly excuses of why they
can't get the job done.

We're left to believe that DVA and
particularly VBA leaders must be of
that generation who are hoping that
soon enough the world will come to
its senses and this nonsense toy...
the computer...will be relegated
back to a dust bin where it should                                    t   TOC    u                                       Page 187

I don't believe in email. I'm an old-fashioned girl.         routed to a "call center". It doesn't
I prefer calling and hanging up.                             always go to your Regional
Sarah Jessica Parker                                         Office. The people who respond only
                                                             have scant information about you
                                                             on their computer screens. They may
Jim,’s mailbag 2011                                          be able to tell that you have a
                                                             claim in process but they don't see
This page is work in progress and                            the claim itself. If the data they
will be updated soon.                                        see has been updated, it may or may not
                                                             be accurate, depending on what
Letters in my mailbag are reprinted just as they             was updated and by who.
come to me. Spelling and grammar are left as is
and only small corrections are made to improve               In general terms there is no accurate
readability, ensure anonymity or delete expletives           way to track your claim. Unlike
that may offend some readers. This is not legal              UPS or FedEx, your claims folder isn't
advice. You should always seek the advice of an              bar coded and efficiently
attorney who is qualified in Veterans law before             entered into a database where you can
you make any decisions about your own benefits.              easily tell what's happening. In
                                                             any case, nobody who works in the
Jim;                                                         many steps of processing that is
                                                             involved is very concerned that you get
i know you are busy and I don't want                         that information. They spend
to take up your time. I'm 100%                               their time trying to do the job of
P&T for PTSD. I put in for aid and                           finalizing the decision for the
attendance. my Va doc wrote a nexus                          claim you submitted.
letter for me. My claim was a the rating
broad but they pushed it back                                If VA tried to accurately respond to
to development again? The Dav is my                          the tens of thousands of daily
NSO's but the lady has not been                              requests that they receive from frustrated
working there for six weeks                                  and angry veterans, they
                                                             wouldn't have time to do anything else.
                                                             The people at the call center work on
I don't know where you've been getting                       quotas. They're expected to
your information but it's not                                answer a given number of phone calls
exactly correct. I'll guess you're anxious                   each day. They have about 3
to hear about progress with                                  minutes to spend on each call. They
your claim and that you're calling                           don't have time to chat with you
the toll free number or you're                               but they know you want to hear
using the IRIS email system.                                 something so they tell you what you
                                                             want to hear.
Every day I receive mail from veterans
who tell me that they have been                              The terms above are pretty meaningless.
informed that their claim is either                          From the moment a claim gets
"at the rating board", "in                                   in the door it's "in development"...
development" or that it's in some other                      what else would it be? I have no
strange place in the process                                 real idea what the "rating board" is.
of adjudication...the decision making process.               Your claim is developed by a
                                                             series of people and begins with an
When you call the toll free number                           Veterans Service Representative
(or email IRIS), your call is                                (VSR) who collects data and assembles                           t        TOC    u                                       Page 188

it to ensure that the folder is                          clients to have any thoughts of keeping
completed and then it goes to a                          track of your folder. Their
Ratings Veterans Service                                 days are full of the tens of thousands
Representative (RVSR or "rater") who                     of veterans who are filing new
will make a decision and notify                          claims every day.
you by letter.
                                                         There are about 1,000,000 claims that
Think of it this way: Your claim comes                   are backlogged today...long
in and the paper is put in a                             overdue for processing. Depending
folder. That is known as the Claims                      on who you speak to, those
File or C-File. That folder is put                       backlogged claims may be delayed by
in a long line of thousands of other                     120 days, 240 days or in my own
folders. In the order they are                           estimation, 12 to 18 months.
received (more or less) each folder goes
to a VSR and data needed (C&P                            Each day the Veterans Benefits
exams, medical records, DD-214                           Administration gets further behind.
and so on) are retrieved and                             There are any number of factors that
accumulated in the folder. As that                       affect the backlog. VA says that
happens and each task is completed                       there are simply more veterans filing
the folder is put back in the line of                    than ever before and that
all the others and they will                             decisions by the courts have made
continue to march to the next destination, the RVSR.     processing claims more complex than
                                                         in years past.
That line outside of the RVSR's office
may extend as far back as a                              In my own studied opinion, the VBA is
city block. There may be dozens of                       its own worst enemy. They rush
RVSR's working in any Regional                           to process claims so that workers can
Office and each of them may have a                       earn bonuses that are based on
backlog of hundreds or more files                        the volume of claims processed but not
to work on.                                              on the quality of the outcomes
                                                         of their work product. Those wrongful
A competent RVSR can close upwards                       decisions are then appealed and
of 4 claims folders each day.                            cause more work..."rework". Any
Depending on the complexity of the                       businessperson will quickly tell you
claim, that rater may be able to                         that to have to routinely rework a product
close only 1 on some days and more on others.            is time consuming and very
                                                         expensive. The decision on your claim
Your claim is in one of those very long                  is a "product" and not different
lines. It isn't going to move                            than a Toyota coming off the assembly
faster because you need the money or                     line at a manufacturing
for any other reason. Your claim                         facility.
may get priority if you're close to
death but I hope that isn't the                          Imagine if the Toyota company had to
case for you.                                            rework 70% of their products
                                                         because the customers who received
Your representative really has no more                   them had picked up vehicles that
of an idea of where your claim                           were broken? A recall of vehicles isn't
is at a given moment than anyone else                    much different than appealing
does. The representatives who                            claims that aren't accurate.
work for Veterans Service Organizations
are usually too busy with new                            In the final analysis, not only is there                         t   TOC   u                                      Page 189

no way to determine where you                     that I should have gone to the area
claim is today, I can safely predict that         VA hospital, because I had not
chances are good that when                        attended the Clinic's orientation. I
you do receive that decision letter,              was amazed at her response. I
it won't be correct and you'll                    then told her that I was a priority
need to appeal.                                   one patient and that I had
                                                  visited this same clinic a week earlier
I can only recommend that you don't               for a different issue and was
waste your time trying to figure                  treated well. The triage nurse then
it out. Wait patiently for the decision           told me that there would be no
letter and then use the                           problem today. She then took me upstairs
resources I've made available to you              to the second floor , told me
to prepare your appeals.                          to take a seat in the waiting area and
Comment                                           that the doctor, would see me
                                                  as soon as she was finished with another
Jim;                                              patient. After a 20 minute
                                                  wait a second female nurse approached
I have been treated with excellent                me and said " Mr ____, the
care by other area VA medical                     triage nurse told the doctor that she
facilities ever since joining the VA              doesn't think that your injury
health care system. This year my                  is infected, and that all I should do
wife and I moved here and I had my                is treat it with compress."
VA records transferred. All of my                 After being told that I was waiting
VA experiences have been satisfying and           to see a doctor? I couldn't
always handled professionally.                    believe what I was told. I then inquired
However the following complaint has               to see the patient advocate,
been one of the most humiliating                  as I wanted to lodge a complaint. A
and disgraceful experiences in my life.           short time later a woman who
                                                  identified herself as ____ approached
On March 11, 2011 I cut my skin near              me in the waiting room. I told
my lower left chin while shaving                  ____ that I was extremely upset about
with a standard type razor. On Saturday           not being able to have a doctor
March 12, 2011, and continuing                    examine my injury. I then asked
into Sunday, March 13, 2011, the cut              for a form to file a written
area became swollen and red. On                   complaint. She told me that she did
Monday March 14, 2011 I went to                   not have any forms and that if I
the VA Clinic. I arrived at the                   wanted to write a complaint that I
clinic at at approximately 9:30am. At             would have to write it on paper.
that time I was concerned that                    This conversation took place in the
I might have a contagious type of                 waiting room area in the presence
staff infection. When I arrived I                 of approximately four to five other
checked in at the desk with my VA                 patients! She then told me to
identification card, told the                     take a seat and that the Clinic's
receptionist about my medical complaint           supervisor would meet with me. A
and took a seat in the waiting                    short time later a male nurse approached
room. After a 15 or 20 minute wait I              me and brought me into
was called into an examination                    another examination room. After
room by the triage nurse. The female              a brief two to three minute
triage nurse checked my vital                     conversation this nurse then brought
signs and conducted an intake interview.          me into a room where he
The triage nurse told me                          introduced me to a male doctor. He told                              t   TOC    u                                        Page 190

me that he was the supervisor                          have observed your wound. You were
of the clinic. I do not recall this doctors            then told the process to become
full name. I do remember                               properly registered as a patient and sent on your way.
that his last name began with the letter
__. This doctor then told me                           I must assume that you didn't suffer
that since I hadn't attended the clinic's              any further illness or injury
orientation that I wasn't in                           from your condition. You don't say
their system and that there were certain               anything about the wound being
things that had to be done                             infected or that you decided to take
before being treated. I was angry, upset               the advice offered at the clinic
and humiliated at this point                           and go for treatment at the emergency
and left the clinic. The VA health care                room at the hospital.
booklet clearly states in the
last sentence in the first paragraph on                Your status as a Priority Group 1 patient
page one under Enrollment,                             gives you privileges to have
"Once enrolled, veterans can receive                   your routine health care appointments
health care at VA health care                          scheduled ahead of others. In
facilities anywhere in the country."                   general terms the PG 1 veteran will
                                                       received routine primary care
                                                       appointments within 30 days of a
Reply;                                                 request. Most clinics I'm aware of
                                                       are pretty good about trying to abide
I'm not at all sure why you're angry?                  by this rule. Beyond that there
                                                       is no guarantee of timeliness.
I may be a bit biased in thinking this
through as I'm retired from a                          The triage system is pretty consistent
long career in health care. In any                     in all health care arenas,
case you tell me of a relatively                       whether VA, military or civilian. Patients
minor problem that occurred...a small                  enter the triage process in
cut. I don't disagree that we                          a defined manner and are quickly
have to be seriously concerned about                   evaluated for care by a health care
infections and so on these days                        professional and seen in order of the
but your message doesn't convey that                   seriousness of the condition.
you had any symptoms that might                        The Priority Group of the veteran is
indicate that there was a significant problem.         not a consideration in triage. VA
                                                       clinics are not emergency care
Upon your arrival someone explained                    facilities and many patients are
to you that there was a process                        automatically diverted to emergency
and that as you hadn't gone though the                 care facilities, both civilian and
process you were supposed to be                        VA.
seen elsewhere. "The triage nurse then
told me that there would be no                         In the final analysis you apparently
problem today." Having said this to                    had a small injury that was
you, the process continued.                            inconsequential to your health. You
                                                       were taken into the system even
Your wound was assessed by a health                    though that required that certain
care professional and you were                         rules be set aside for your
told that a "compress" would be sufficient             convenience. You were seen by at least
treatment. In the end you                              3 people who could observe your
saw a physician and although you                       injury and who came to the conclusion
don't say it, the physician has to                     that little, if any, medical                             t   TOC   u   Page 191

treatment was required. You chose to
be angry and petulant as you
misinterpreted the language of rules
regarding your Priority Group 1
privileges. You left the clinic and did
not seek any further care.
Your condition seems to have resolved
without any further treatment
and you've suffered no health crisis
because of the experience.

To be honest, if this "has been one
of the most humiliating and
disgraceful experiences" that you've
had in your life, you're very
fortunate indeed.

I advise you to return at your first
opportunity and become properly
registered and attend the orientation
required by that facility.
You'll be surprised to learn that the
clinic staff are very forgiving
of misunderstandings and that you'll
likely be treated with courtesy
and respect. Once you've done your
part, I'd guess your future
treatment will be without any other problems.

Good luck.

Jim                             t        TOC    u                                           Page 192

Larry Scott                                                Under Larry's direction the VAWatchdog dot
Founder                                                    Org web site has become the most popular site
VAWatchdog dot Org                                         of its kind on the Internet. Tens of thousands of
                                                           veteran have seen their lives improved because
                                                           of his selfless dedication and hard work. Larry
Larry Scott served in the U.S. Army.                       has directly responded to countless personal
He lives in Washington State.                              emails, offering well researched hints and tips to
                                                           veterans who were stuck in the quagmire of the
During his four years of Army service he saw duty          VA Disability Compensation Benefits machine.
as a Broadcast Journalist at AFKN HQ, Seoul, Korea.
Later he was at AFN Lajes Field, The Azores, Portugal.     It's often said that "The VAWatchdog dot Org site is
                                                           where VA looks to find out what it's been doing."
He concluded his service as a Broadcast
Journalism Instructor at the Defense Information           There's a lot of truth to that. VAWatchdog dot
School (DINFOS). On ETS Larry went back to                 Org is a daily must-read for many offices from
work in radio news in Indianapolis as a News               The Hill to all the 57 VA Regional Offices.
Anchor on WIFE Radio and then in New York
City as a News Anchor on WNBC Radio.                       In 2010 Larry is taking a step back from the daily
                                                           grind of publishing the VAWatchdog dot Org.
Larry was decorated four times including the               He's still here, in the background, ensuring that
Joint Service Commendation Medal with Oak Leaf             his mission, his ethics and his dedication to his
Cluster. He was awarded DOD's First Place Thomas           brothers and sisters in arms will go unchanged.
Jefferson Award for Excellence in Journalism.
                                                           Although some layout and graphics may change
On the 29th of June in 2005 Larry registered the           as the "new" VAWatchdog evolves, Larry has
now infamous VAWatchdog dot Org website. The               personally trained and mentored the new
mission then as now has been to provide America's          management of the site since 2006. He will
military veterans with facts of the news that              continue to be a valuable advisor, counselor,
may have an enormous impact on their lives.                mentor and friend far into the future.

Larry said it best when he wrote:

"That's why VA Watchdog dot Org was founded...
to keep an eye on them (The Department
of Veterans Affairs) and their decisions.
This is NOT a VA hate site. We believe the VA offers
the best healthcare in this country. And independent
studies by such prestigious organizations as the
Rand Corporation prove it time and again. This site is
designed to keep an eye on those who fund and run
the VA... the politicians and the political appointees
who don't have to worry about healthcare.

VA Watchdog dot Org will follow VA news and let
you know about policy, regulation and veterans
benefits changes at the Department of Veterans'
Affairs and other veterans issues. And, what you
won't find here is as important as what you will find.
You won't find rumors, rants or conspiracy theories
here... there are no "Black Helicopters" on this site.                             t         TOC    u                                          Page 193

“I didn't raise my boy to be a soldier, I                   assisting veterans in claims and appeals.
brought him up to be my pride and joy,
Who dares to put a musket to his shoulder,                  For those who do assist veterans with completing
To kill some other mother's boy?”                           forms, advising them where to file those forms
Unknown                                                     or how to word responses to adverse decisions,
                                                            a word of caution is offered. You should make
                                                            yourself familiar with the provisions of 38 CFR 14
Leo Dougherty                                               before proceeding to assure you are not violating
                                                            regulations and exposing yourself to liability.
Leo Dougherty is a veteran who served in the
US Navy from 1965 to 1969. He is an Accredited              At the very minimum you should familiarize
Claims Agent and member of the National                     yourself with 38 CFR 14.630 and 38 CFR
Organization of Veterans Advocates.                         14.632. From the regulations:

03/20/2011 Things May Have                                  14.630 Authorization for a particular claim.
Changed More Than You Realize
                                                            (a) Any person may be authorized to prepare, present,
Leo Dougherty                                               and prosecute one claim. A power of attorney
                                                            executed on VA Form 21-22a, "Appointment of
For decades, veterans had two choices for                   Attorney or Agent as Claimant's Representative,"
representation when filing claims for VA benefits.          and a statement signed by the person and the
They could file the claim on their own, called              claimant that no compensation will be charged
pro se representation, or they could engage a               or paid for the services, shall be filed with the
veteran’s service officer from one of the various VA        agency of original jurisdiction where the claim
recognized veterans service organizations. This             is presented. The power of attorney identifies to
changed in June 2007 when Congress passed                   VA the claimant's appointment of representation
legislation and the President signed into law the           and authorizes VA's disclosure of information
right of veterans to hire representation before the         to the person representing the claimant.
VA regional offices and board of veterans appeals.
                                                            (b) Representation may be provided by an individual
Prior to veterans’ choice legislation in 2007 it was        pursuant to this section one time only. An exception
not unusual for veterans to share information with          to this limitation may be granted by the General
each other in their attempts to obtain benefits. It         Counsel in unusual circumstances. Among the
was not unusual for an experienced veteran to               factors which may be considered in determining
extend assistance to other veterans when filing             whether an exception will be granted are:
claims. This assistance was offered in good faith,
was often successful in assisting veterans obtaining        (1) The number of accredited representatives,
benefits, and often resulted in a particular veteran or     agents, and attorneys operating in the
family member reaching out to other veterans and            claimant's geographic region;
their family members offering those other veterans
and family members assistance. This assistance              (2) Whether the claimant has unsuccessfully
most often came in the form of advising how to              sought representation from other sources;
complete forms, where to send forms, how to word
forms, and even advising veterans what regulations          (3) The nature and status of the claim; and
and law to rely upon in claims and appeals.
                                                            (4) Whether there exists unique circumstances which
Again, this was all done in good faith and in               would render alternative representation inadequate.
the absence of law or regulations that would
prohibit such assistance. Since veterans’ choice            (c) Persons providing representation under this
legislation was passed however, there have                  section must comply with the laws administered by
been some important changes in the arena of                 VA and with the regulations governing practice before                             t       TOC      u                                              Page 194

VA including the rules of conduct in 14.632 of this part.   as described in this section;

(d) Persons providing representation under this             (2) Circumvent a rule of conduct
section are subject to suspension and or exclusion          through the actions of another;
from representation of claimants before VA on
the same grounds as apply to representatives,               (3) Engage in conduct involving fraud, deceit,
agents, and attorneys in 14.633 of this part.               misrepresentation, or dishonesty;

If you decide to proceed with assisting a veteran           (4) Violate any of the provisions of title 38, United
and could reasonably fall under the provisions of 38        States Code, or title 38, Code of Federal Regulations;
CFR 14.630 you should understand your obligations
under 38 CFR 14.632. From the regulations:                  (5) Enter into an agreement for, charge, solicit,
                                                            or receive a fee that is clearly unreasonable or
14.632 Standards of conduct for persons providing           otherwise prohibited by law or regulation;
representation before the Department
                                                            (6) Solicit, receive, or enter into agreements for
(a)                                                         gifts related to representation provided before an
                                                            agency of original jurisdiction has issued a decision
(1) All persons acting on behalf of a claimant              on a claim or claims and a Notice of Disagreement
shall faithfully execute their duties as individuals        has been filed with respect to that decision;
providing representation on a particular claim under
14.630, representatives, agents, or attorneys.              (7) Delay, without good cause, the processing of a
                                                            claim at any stage of the administrative process;
(2) All individuals providing representation
are required to be truthful in their                        (8) Mislead, threaten, coerce, or deceive a
dealings with claimants and VA.                             claimant regarding benefits or other rights
                                                            under programs administered by VA;
(b) An individual providing representation
on a particular claim under 14.630,                         (9) Engage in, or counsel or advise a
representative, agent, or attorney shall:                   claimant to engage in acts or behavior
                                                            prejudicial to the fair and orderly conduct of
(1) Provide claimants with competent representation         administrative proceedings before VA;
before VA. Competent representation requires
the knowledge, skill, thoroughness, and                     (10) Disclose, without the claimant's
preparation necessary for the representation.               authorization, any information provided by
This includes understanding the issues of fact              VA for purposes of representation; or
and law relevant to the claim as well as the
applicable provisions of title 38, United States            (11) Engage in any other unlawful
Code, and title 38, Code of Federal Regulations;            or unethical conduct.

(2) Act with reasonable diligence and promptness            (d) In addition to complying with standards of
in representing claimants. This includes                    conduct for practice before VA in paragraphs (a)
responding promptly to VA requests for                      through (c) of this section, an attorney shall not, in
information or assisting a claimant in responding           providing representation to a claimant before VA,
promptly to VA requests for information.                    engage in behavior or activities prohibited by the
                                                            rules of professional conduct of any jurisdiction in
(c) An individual providing representation                  which the attorney is licensed to practice law.
on a particular claim under 14.630,
representative, agent, or attorney shall not:               There are minefields within these regulations that you
                                                            should be aware of regardless of whether you believe
(1) Violate the standards of conduct                        you are representing a veteran because the decision                              t          TOC    u                                            Page 195

about whether you are representing a veteran will             soldier told him in an email that an Iraqi girl who
ultimately be made by the VA should a problem                 received a Beanie Baby later kept Marines from
arise. For instance, you could be held responsible if a       driving over a roadside bomb. ‘She saved the
veteran you are helping circumvents a rule of conduct         lives of six Marines,’ Williams said. ‘Things like that
even if unintentional. If you are successful in assisting     you don’t think of. This means a lot to me.’”
a veteran in obtaining a benefit and that veteran is so
grateful that he gives you a gift certificate for dinner      I have visited his warehouse in Wesley Chapel, FL
at a very nice restaurant, acceptance of that gift            and I can tell you I was very impressed with what
certificate can be construed as an ethical violation.         I saw. There are boxes and pallets of all kinds of
On the other hand, if a veteran feels you provided            things we take for granted but our troops cannot
incorrect advice that resulted in a denial of benefits        easily obtain. Every day Williams is working in
he was entitled to, you may find yourself being sued.         his warehouse organizing these items, packing
                                                              them, and sending them to service persons
Just something to think about.                                who have contacted him asking for his help.

03/14/2011                                                    Do you remember that viral email that was going
“It’s Your Money . . .” Leo Dougherty                         around – and may still be – excoriating Starbucks
                                                              Coffee for being anti-veteran? On my visits I saw a
For some time now, contributors to this site have             pallet full of bags of Starbucks Coffee that, according
been critical of organizations collecting donations           to Williams, was donated to him for our troops.
under the guise of helping veterans. Many of
these organizations forward little in the way of              This is one place you can send your money
collected donations to those they claim to help.              and know it is being used for our troops.
Be that as it may, there are some organizations               Williams is always in need of postage and your
that do in fact help veterans and military                    contributions will help him with shipping costs.
people, and they deserve to be recognized.
                                                              From his website: “Products received by Our
I try whenever I can to send a little money                   Troops Online cost a lot to ship to our troops. Most
to Support Our Troops Online, http://www.                     of the donation money is needed to help pay for                           postage. We sometimes have as much as 40,000
                                                              lbs. of items to ship. At about $1.00 a pound, it costs
  . The brainchild of this organization is Bob Williams,      nearly $40,000.00 just in postage fees to get these
a Navy veteran. Williams owned two successful                 items where they need to be. There is stuff in our
businesses that are now run by his sons. He,                  warehouse right now that the troops need. These
however, still goes to his warehouse every day.               items could be shipped out today with your help.”
In his warehouse you will find pallets of donated
items intended for use by deployed troops. Items              Support Our Troops Online is one of those
include coffee, tea, cigars, personal hygiene                 organizations that use donations for our
items, candy, and many other items we can easily              troops. They are the real deal. There are other
get here but our deployed troops cannot.                      worthy organizations and you may find some
                                                              other endorsements on the site soon.
From his website: “Bob has visited bases where our
troops are stationed in these remote and dangerous            03/08/2011 COLA Leo Dougherty
places. On his visit he noticed there were things             Recently there have been some posts on
missing the troops needed to do their jobs, or at least and Straight Talk by
that would help make their jobs a little easier, like         veterans angry about the lack of a cost of living
spotlights, flashlights, red dot scopes, and knives.”         allowances. These posts have troubled me greatly.

Also from his website” “Bob’s gifts of pens and               COLAs have always been paid after the fact but it’s
stuffed animals have been given to children who               not the potential for a lack of understanding of how
then become good intelligence sources. One                    COLAs are calculated or paid troubling me as much                              t         TOC    u                                         Page 196

as it is that some veterans are treating this as though      other veterans reading these forums are struggling
it is an entitlement whether or not there has been           and hoping every day that a decision will come.
an increase in the Consumer Price Index. We are not
entitled to it in the absence of an increase in the CPI.     Whining about a COLA just makes me very cranky.

Even more troubling to me is the passion                     Comment
with which this argument is being made.
                                                             02/17/2011 Military Sexual Assault Leo Dougherty
A great many of the veterans reading this site
and Straight Talk are veterans who have filed                MST, short for military sexual trauma, is in the
claims for disability and are still waiting for a            forefront for veterans. VAWatchdogtoday posted on
decision. We have our disabilities; those waiting            February 15, 2011 an AP News Break story entitled
would jump through hoops just to get the less                “Veterans Say Rape Cases Mishandled.” That same
than $100 per month a COLA would provide.                    evening, news programs reported that a number of
                                                             individuals who reported rape are suing the Pentagon
If those who are complaining about the lack of a COLA        for failing to be proactive in reported cases of MST.
for last year spent as much of that passion and time
writing letters to their congressmen and senators            MST is an extremely personal trauma experienced
complaining that their brother and sister veterans           not just by women but by men too. The trauma
are suffering in this economy because many of them           is so powerful and personal that many are unable
have no income or an income so small as to put them          to report it or are afraid of being ostracized and
beneath the poverty level it might make a difference.        harassed if they do. According to the reports of
                                                             some victims of MST, this fear is well founded.
If that same passion and time were expended
trying to help many of those veterans waiting for            For a very long time it has been near impossible
claims who may be living out of their cars, or in            to achieve disability compensation due to MST
seedy motels, or under bridges, or abandoned                 because claims lacked clear cut evidence of the
buildings, it might make a difference.                       event or what evidence there was disappeared over
                                                             the intervening years between the assault and the
To complain bitterly – and it is bitterly – about the        confrontation of the experience by the victim.
lack of COLA seems to be a self centered act and just
a tad selfish. You and I have ours, they don’t have          MST victims need to be aware of recent changes
theirs. If you were in their shoes and saw someone           in regulations dealing with personal assault
complaining about a lack of a COLA, how would                trauma claims. 38 CFR 3.304(f)(5)(2009 states:
you feel reading someone complaining about not
getting a few extra dollars while you have been              If a posttraumatic stress disorder claim is based on in-
waiting for a year or more for a basic award?                service personal assault, evidence from sources other
                                                             than the veteran's service records may corroborate
A quick mental calculation demonstrates to me                the veteran's account of the stressor incident.
that if I had received a 3% COLA for this past year          Examples of such evidence include, but are not
my monthly increase would be less than $80.00                limited to: records from law enforcement authorities,
per month and less than $1,000.00 per year. Those            rape crisis centers, mental health counseling centers,
waiting for an award might be able to buy some new           hospitals, or physicians; pregnancy tests or tests for
shoes for their kids, or those who are homeless might        sexually transmitted diseases; and statements from
be able to move out from under the bridge into one           family members, roommates, fellow service members,
of those seedy motels, at least for a couple of nights.      or clergy. Evidence of behavior changes following
                                                             the claimed assault is one type of relevant evidence
It just seems to me that whining about a COLA that           that may be found in these sources. Examples of
does not exist based on the CPI, could not exist based       behavior changes that may constitute credible
on the CPI, and which would put just a few more              evidence of the stressor include, but are not limited
dollars per month in our pockets is offensive when           to: a request for a transfer to another military duty                              t        TOC    u                                         Page 197

assignment; deterioration in work performance;              if a sibling, parent, best friend or trusted military
substance abuse; episodes of depression, panic              friend was told about the event. If so, statements
attacks, or anxiety without an identifiable cause; or       from them can be favorable evidence for the claim.
unexplained economic or social behavior changes.
VA will not deny a posttraumatic stress disorder            The veteran should get a copy of the military
claim that is based on in-service personal assault          personnel record and review it for several things.
without first advising the claimant that evidence           Was there a change for the worse in evaluations
from sources other than the veteran's service records       following the event? Was there a reduction or
or evidence of behavior changes may constitute              reductions in rank following the event? Evaluations
credible supporting evidence of the stressor and            and reductions in rank are especially important
allowing him or her the opportunity to furnish this         if there is a track record of good evaluations and
type of evidence or advise VA of potential sources          a decent promotion track prior to the event.
of such evidence. VA may submit any evidence that
it receives to an appropriate medical or mental             Following the event, was a transfer requested or was a
health professional for an opinion as to whether            transfer made even though n