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This Knol is provided to you to describe general processes and procedures that occur during the application for disability compensation and pension and other benefits within the Department of Veterans Affairs System. Any author you find here is not providing you with legal advice. Any information provided by this Knol or any contributor to this Knol is not intended as and should not be construed as legal advice. You should always consult an attorney to help answer specific questions regarding how VA laws apply to you and/or your situation. The summaries provided here are incomplete, and the DVA laws and regulations are subject to change. We do not guarantee and we are not liable for the accuracy or completeness of any of the information provided, or any results or outcome as a result of the use of this information.To seek specifics on this page and my other knols, use the "Search Toolkit" provided in the upper right corner. Decide what you're looking for. Type in those words. Copy and paste the URL of this knol page into the box so that you only search my pages. To search a bit wider area, don't restrict your search to only my knols.
Good luck.
Questions and Answers
Jim;
I recently put in a claim for IU. Do you believe that letters from friends and/or ex co-workers can help on claims?
Reply;
These are 'Statements In Support of Claim' or “Buddy Letters”. You will find the VA Form 21-4138 here http://www.vba.va.gov/pubs/forms/vba-21-4138.pdf They may help if they are from impartial observers who can attest to facts, not feelings. If we asked your mom if she is sure you're disabled, we can guess what most moms (wives, husbands, Ministers, Rabbis, Priests, siblings) will say for you. What works are letters from people you served with who will say, "I was there then and I personally observed the conditions that resulted in the injury (condition) of Sgt. Veteran and here is how that happened." The decisions are made on hard evidence of an event having occurred. People who testify for you should be able to make eyewitness account statements. People who come along later or who are emotionally close to you may not be credible.
Jim;
My Veteran husband is 100%, but not P&T yet. He is very ill with cancer. I am 4 hours from the VA hospital. The VA clinic is in town but no forwarding number when I call there when it's after hours. If an emergency situation arises and it's after hours.....can I call the local ambulance service and have him taken to the local hospital and not have to pay the huge fee? This has been a real concern of mine.
Reply;
Yes. Although, it's never that easy. Pre-approval is the thing to do. If you sense that a crisis may be in the making, call your clinic or VAMC and speak with just about anyone you can to explain the situation. Ask for approval to use an ambulance and/or local civilian facility. Even better, discuss this with someone responsible at your local VA clinic. Be sure to note who it was and when.
Of course, in a genuine emergency call 911 and sort it out later.
He is approved by virture of his service connection to use a civilian facility in an emergency. Present his VA ID card as his 'proof of insurance'. Prepare for this as best you can by having a list of medications, recent medical records (obtained at ROI) and a copy of your POA to represent him. A civilian facility (hospital ER) will treat him no questions asked. Request a transfer to a VAMC as soon as he is able to travel. They will call the VAMC and make doctor to doctor arrangements. If you have that direct number handy it's a plus.
The VA system will pay them. They are required to accept the VA payment as the total with no copay. The VA is the slowest payer on the planet. The civilian facility will eventually send you a bill. Promptly get that to the 'fee basis' people at the clinic or VAMC. Thay won't pay it immediately but you'll begin your paper trail. Chances are 50/50 it will be paid in 90 to 180 days. If not, the hospital and ER doctors and so on may begin to dun you for some payment arrangement. Be firm in saying, "NO". If you make any payment, VA will not reimburse you and will eventually make the payment to the institution and they'll collect more than they should have.
I've been very fortunate that in the last 5 or 6 years I've used a civilian ER twice and it's been paid promptly. A friend is still trying to get his paid a year later and it only stopped after I got sneaky and called the biller and made up a tall tale of writing a story about how slow VA pays. They were happy to speak with me and gave me way more confidential information about a particular Veteran than they should have. I turned the table and began to ask them how many other of America's heroes were they threatening will legal action, late night phone calls, abusive language and such? I then pointed out their violations of privacy rules for telling me such and such and by then I had everything but their children's names. It was pretty funny and he hasn't heard a word since. (Not too long after this event the VA paid his bill. The person harrassing him was a Vet herself and apologized. She was “just doing her job”.) (July 07 follow-up; We heard the harrassing employee was terminated. VA apparently inquired into the manner a Vet had been treated and the investigation seems to have uncovered other events.)
Jim;
I'm not sure if you can help me with this problem, but I thought it worth a shot. My Dad applied for the Aid and Attendance Program and was accepted after the usual 6 months of waiting. We had to pay 50% to his caregivers until the program went into effect and was then re-imbursed. Once we found out the exact amount that our dad was getting, the home-care business upped his hours to insure they got all of his check. We agreed with this because dad needs almost constant care. He lives in a Senior Housing controlled by HUD. That is where we are now running into a problem. HUD says that they have to consider this pension as income and want to raise his rent,or he may be asked to move because his income is now too high. He doesn't get any of the pension for himself. It is all turned around and paid back out for his care, so how can this be considered income? My Dad wants to be able to spend his last days in the home he has lived in for the last few years. He's been in two different nursing homes with negative effects because he just wants to be home. We want that for him also but are not able to help him finacially. Do you know of anything that we can do as far as appoaching Hud with this issue? We have a meeting schedualed with them in a couple of weeks to re-evaluate his rent. Thanks for any help you can provide me.
Reply;
This is outside my expertise. I'm going to put you in direct contact, via this email, with an expert consultant who manages a home for seniors and helps many Veterans. My friend has proven to be an invaluable resource in assisting others as they grapple with the A & A benefit.
The Consultant's Reply To The Reader:
Under the HUD program (or ANY assistance program), any money that your Dad receives is considered "Income"....whether it be a Social Security check, a Retirement check, a VA Pension check, or a VA Disability check. This is ALL money in the bank. This should have been understood as you were filling out the application for the Aid and Attendance. You had to figure out if this additional VA Pension income would interfere with any other benefit programs that your Dad may have qualified for and decide which one is the best.
If your Dad's income is above a certain amount, he will not qualify for HUD, Medicaid, or anything else. (This Aid and Attendance Pension is obviously raising his income.....no matter what he is spending the money for.) If he draws a Social Security Check and is under Medicare, the Social Security check was considered "Income", and the Medicare payment deducted from that check was considered "Medical Expense" under this Aid and Attendance.
This VA Pension is to help Veterans with their "Medical" expenses. It is not for housing, utilities, food, or anything else. Your Dad should qualify for free medicine and free medical care from the VA, and he should qualify for a VA Nursing Home.
Because HUD is based on income and is totally separate from the VA program, you should have talked with them (HUD) to see if this pension would interfere with your Dad's housing situation. That would have been your first priority when considering this Aid and Attendance Pension.
I am very sorry that your Dad won't qualify for HUD now. You will need to decide which program will benefit your Dad the best....HUD or Aid and Attendance.....or Medicaid. With this VA Pension and his Social Security, perhaps he could pay for Assisted Living. You might want to check this option out. OR....you will need to discontinue the Aid and Attendance Pension and continue with HUD.
If your Dad qualifies for Medicaid, it might be possible to get an Aide to come to his home for a few hours each day (free). You might investigate to find out what Medicaid will provide. (If he qualifies for HUD, surely he must qualify for Medicaid).
This Reader's Follow-Up:
I just wanted to let you know that (your consultant) was a big help with the problems we were having concerning my Dad's Pension and HUD. Unfortunately,we now realize that we were involved with one of the scams that you mentioned in your article by (an Internet 'service' for Veterans). I should have been suspious because this guy actually started calling me after I had gotten quotes from him. He repeatedly told us that the "PROGRAM" would not effect my Dad's rent or any other programs in any way because it was not included as income. He made sure that they billed us for every cent my Dad had coming and when we found that he was going to recieve a larger amount they increased the charges to include that also. When I first read your article I started to worry because even the wording was exactly the same as what he said to us. "They have ways of cutting through the red tape that no one else does", etc. Even when he came to my Dad's he continued the lies with my Dad, my sister and myself present. My Dad kept asking him over and over again about this effecting anything. Because my Dad is a "SENIOR" he was more aware of the concerns. And (the owner of the Internet based 'care' service) lied over and over again.
I remember thinking he was going to get angry because my Dad kept asking all those questions. But he stay very calm and kept re-assuring us this wasn't the case. It was going to be the answer to all of our problems. My Dad was just getting what he deserves for fighting for our country. I think that (the owner) actually goes after the people that he doesn't expect to be accepted into the program because we got all of our money back. Unless we now have to re-pay the 7 months of pensions that he has gotten. But he did get paid for all those months in full. I am so angry,and hurt. And my concern for my Dad, I can't even begin to tell you. I am taking a copy of the email that I got back From (your consultant) to his administrator where he is living. (I want) them to know what has happened and that I believe we have been scammed.
They also were not aware of the VA Program ,so I actually did some of their work for them too. Hope that helps them realize that we were just trying to help our Dad.
You got me started in the right direction. And I had my answers in less then 24 hours. Sure wish life always worked that way. Anyways,thank you for your help. Thank GOD there are people like you out there looking out for all of our parents.
Jim;
I recently received a copy of my Compensation and Pension examination. The examiner made the notation “There is no C-File to accompany this exam.” I don't think I got a good exam if the doctor didn't review my history. Should I ask that this exam be repeated?
Reply;
The C-File is often not forwarded to the examiner for a C & P exam. The system allows that the medical examination is only a piece of the puzzle. That C & P examiner doesn't make any decisions about your ultimate benefits award. In fact, except in rare cases, that examiner is only to report what they see of your physical or mental self during the moment they examine you and nothing else. The decision to award benefits is made by a “Rater” who will determine how much weight the C & P report is given. For example, the practitioner at a C & P exam may determine that you have lost (x) percentage of range of motion in your arms bilaterally. After that information is recorded, it's then up to a rater to decide if the available records indicate that this was a service connected injury or if there are any other statutory obligations that VA must consider. If you believe that there is information in your C-File that must be considered for a fair evaluation to be made, in your early filings you may request that the C & P examination be conducted to include a review of your C-File. If that request is denied, it will leave you better prepared for later appeal.
Jim;
I just had a C & P hearing yesterday. I'm diabetic with 20% disability, and one month ago my doctor started me on insulin. It was like I had to prove why my doctor put me on insulin. Funny thing is, it's the VA that has supplied my insulin and Novopen. So why when I ask if I'm entitled to an increase in benefits is it up to me to prove my case. I have heard that going on insulin is a increase to 40%. Was the C & P to see if I deserve more than 40%, or to determine if I warrant 40%? I didn't ask to be drafted and sent to Vietnam, and I sure as heck didn't want to be diabetic. Your advice and counsel would be very helpful and enlightning. Thank You.
Reply;
Your rating is determined by a number of factors. The guy who ultimately makes the decision will look at the condition first. In this case, as a Vietnam Vet with a diagnosis of diabetes your condition is on a list of "presumptive" diseases that automatically qualify for the all important stamp of Service Connected.
Then he will look at the effect that condition has on your ability to earn a wage, taking into consideration such things as your age, other medical conditions and so on. VA disability awards are unique in many ways. The award isn't given just because you have a condition, it's given to compensate for the earnings you may theoretically lose because of the service connected condition. This formulaic approach to determining precisely the percentage of your disability is arduous, complex and not always evenly distributed from VARO to VARO.
Many Vets with conditions similar to yours all the way to those much worse than yours will receive a rating of Service Connected and 0% (zero percent) compensable. In other words, VBA will determine that you may have a condition and that the condition is caused or contributed to by your military service but that it has had no impact on your ability to seek and hold gainful employment.
Don't get this mixed up with the "means test" for other benefits. VA Disability compensation isn't based on income but rather on theoretical lack of potential to earn said income.
For example...I've been working with a Vietnam Vet who has lung cancer. His lung cancer is on that presumptive list. When he was first diagnosed he had good civilian health insurance and didn't come into the VA system until many months after his chemotherapy treatments had started. Eventually he applied for VA disability benefits and was rated as service connected at 0% compensation. The logic was that the treatments had stabilized his tumors, no active growth of the cancer was noted thus he should get up and return to work.
That flawed decision was quickly reversed. However, we still face having his condition rated as permanent...although VBA granted him 100%, it was assigned as a temporary rating as VBA expects he will be cured.
The C & P exam was to seek medical validation of just how disabled you are by your condition. That examiner should have noted how your transition to insulin dependence will affect other conditions. If you have multiple other conditions, whether severe or mild, it's likely that insulin dependence will cause you to need to adjust medications or lifestyle. If your exam didn't include such things as a screening of your vision by an ophthalmologist, you'll have good ammo for your appeal should an increase in your benefits be denied. Diabetes affects all the body's organs and all too often a quick screening doesn't address everything that should be addressed.
Finally, yes...you had to prove that your doctor put you on insulin. To say that the VBA is "benevolent" is absurd.
(See http://www.vawatchdog.org/07/nf07/nfJUL07/nf073007-1.htm)
The system is distinctly adversarial and the burden of proof is yours to bear. While VBA has a "duty to assist", they consider that just being there pretty much satisfies that. Every other step of the way is your problem.
Below are some of the rules that should define how your rating will come about. If you see the category you think you should be in and you aren't granted that, the appeals process begins. Don't let the process frustrate you. This is just how it is.
7913 Diabetes mellitus
Requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated...100%
Requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated... 60%
Requiring insulin, restricted diet, and regulation of activities... 40%
Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet... 20%
Manageable by restricted diet only...10%
Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913.
Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes.
Jim;
Thank you for taking the time to read this email. I am a Vietnam Combat Vet. I respect your opinions and was wondering if you could offer me advice.
In the year 2000 my wife was harping on me to seek counseling at the VA. To put it politely, I guess she felt I was a wee bit aggressive in my behavior! Well, I went to a doctor at the local VA office, spoke with him for a couple of hours and he determined that I had PTSD. After the visit with the doctor, I arrived home and related to my wife that all is well........I was perfectly fine.
After four years of denial I again sought help at the VA. This time I was serious about trying to get help. To date I am a member of the Partial Hospitalization Program at my local VA. I attend daily groups, have a one-on-one therapist as well as a medications psychiatrist I see on a weekly basis. The VA has helped me tremendously. I now know that my combat experiences in Vietnam played a definite role in my behavior throughout the years. Only God knows, I should have gone a lot sooner.
In 2004 I filed for a disability rating from the VA. Two months after I filed for the disability I received a 30% rating. (Wow, I thought...was this some sort of record!!). I, of course, appealed this rating and less than one year later I received a 70% rating from the VA. I immediately filed for IU and received it 3 months later. I am now paid at the 100% rate.
I am one-hundred percent sure that PTSD played a definite role in my behavior throughout the years. Some examples may be that I could never hold a job for long, married numerous times, nightmares every single night, unable to concentrate for long periods of time or even short periods of time, aggressive and uncontrolled behavior, six suicide attempts...the list goes on and on. Much of the symptoms, like the nightmares, have diminished a little. Thank God for the medication!
My contention is that symptoms of PTSD have been with me since I was honorably discharged from the Army. The VA has concurred with the fact that I have PTSD and that I should be compensated for it. In fact, they said to me, (as they say with all Vet's who receive their rating), we will pay you retroactively from the first day you filed for your disability. Although this is fine and dandy, how about all of those years that my ambition was completely and utterly lost? How about all of those years (in Marlin Brando's words): I could've been somebody??
I am seriously considering hiring a lawyer to get back some of those years monetarily from the VA. I am prepared to stand my ground, and also prepared in knowing that if I follow through with such a case it will be a long and drawn out process. I would sincerely appreciate your advice on this matter in terms of whether I should follow through with it. Thank you so much.
Reply;
I appreciate you writing to me. Your letter is proof positive that although we may be damaged in our service to our country, repairs can be made IF the Veteran is willing. Maybe I should say ONLY if the Vet is willing. I'm happy to hear that you've made so much progress.
A "wee bit aggressive" eh? Yes, well...a couple of my ex-wives have said the same about me. I thought it was a conspiracy but maybe they knew something I didn't?
Unfortunately, I'm afraid you probably don't have a legal leg to stand on in your quest for compensation back to day one. I'm not a lawyer but my understanding of it all is that the law is very clear cut on this issue. Until the moment you apply, you have no claim and further, it is your responsibility and burden to apply. All of that is spelled out in strict law that has withstood the test of time.
That rubs me raw in a lot of ways. While I understand that you have no case until you apply, how the hell is the average Vet supposed to know about the application process? Even today, with the widespread news about all things VA on the Internet, many Vets don't know that VA exists.
In my own case, I came out injured and within 3 weeks of discharge I had a good job and an appointment with an orthopedic surgeon. I just assumed that my non-combat injury was my problem and I wanted to get on with my life. A smart coworker advised me to call the VA, helped me look up the number and a few months later I had a 10% rating.
Today VA does a fair job of outreach...maybe a grade of C or even C+ could be assigned. But still, the task could be done a lot better than it is. I hope you'll keep up the good things you're doing for yourself and I hope you'll share your experiences so as to help others. Those who are returning today need you and I to guide them...they aren't getting any more (and maybe less) help than we were.
Jim;
I had my first C&P was with a PHD Clinical Psychologist with a Diagnosis of Generalized Anxiety not otherwise Specified with Depression with a " More Likely than not this Veterans Anxiety with depression began in service.
5 months later the R. O sent me for another examination by a Board of Two Psychiatrist.
Axis 1 Anxiety not otherwise Specified
Axis 11 - Personality Disorder not otherwise Specified with borderline, dependent and historian traits.
Axis 111 - other illness
Axis IV
Axis V Gaf 40
The veteran has symptoms primary consistent with a Personality Disorder and it appears she did not develop a " Chronic Psychiatric Disorder in service. It is the Board's decision that her Anxiety with Depression did not begin or worsen in service. R. O Decision. We place our weight with the Board of Psychiatrist findings as this was done by a Psychiatrist. Benefits for Anxiety with Depression denied.
Is a Psychiatrist more in the know that a PhD Psychologist?
Answer;
Apparently, in the opinion of the person doing the rating, that answer is "yes". Others may differ in their opinions and that is why you'll now have to appeal your case. I would argue that the VA didn't like the first answer they received and went fishing with other professionals until they heard what they wanted to hear. At this point you would be well advised to contact an attorney who specializes in such work. If you'd like, I'll make a referral for you.
Jim:
I filed a claim with the VA March of 07. I used a state veterans commission counselor at the VA clinic. Some how the claim no.( should have been my ss.no.) got crossed up, flipped two of the last four no's. We filed a va form 21-4138 stating the mix up 2 times and made a number of phone calls to the va regional office where it was filled at and they still have not gotten the claim no. right! Any idea as what to do next? thank you, Vietnam vet.
Answer:
I have preached loudly that once you step off on the wrong foot with VA it's a nightmare to get it corrected. Your story is a perfect example. You've probably done all you can reasonably do. As long as you've made appropriate notifications you'll now have to sit back and hope that someone will do their job and get it right for you.
I would caution against writing numerous times to deliver the same message. I'm always afraid that will do more harm than good. I can envision where a Vet will write a letter and 8 weeks later the problem is fixed. In frustration at about that 7 week mark, the Vet writes another letter that's delivered after the fix is in place. Weeks later another VA person picks it up and "corrects" the file a second time and duplicates the original problem. You can see where this would lead.
Give it a year, maybe more, and see what happens. If nothing is done, maybe then it's time to contact them again. Be sure that your personal records are in perfect order, that all communications have been delivered with registered mail and a returned receipt and so on.
Jim:
I am a (fee for service company) Social Security Disability Representative representing a Veteran and need the fee agreement and rules on non attorneys. Especially what do I need to have them recognize me as his POA. Got any help for me on this?
Answer:
When the law changed to allow lawyers to represent Veterans to the VA and charge a fee, hardly any attention was paid to the fact that “agents” may now also charge a similar fee. Much like the Social Security Disability Insurance (SSDI) process, Vets may choose to apply on their own, use a Veterans Service Organization Service Officer, retain an agent representative or retain an attorney. The agent and/or attorney may only enter a fee agreement with the Veteran after a claim has been denied and a Notice of Disagreement (NOD) is being filed.
To begin your accreditation process, write to;
Department of Veterans Affairs
Office of the General Council
Washington, D.C. 20420
Request a VA Form 21a, "Application for Accreditation as a Claims Agent". When you return the completed form and your basic eligibility is determined (a reference check and presumably an FBI scan to ensure you're of good character) an examination will be sent to the VA Regional Council closest to you. You are then responsible for scheduling a time with the Regional Counsel to take the exam.
The completed exam is returned to the General Council's office for grading and you'll be notified of the results. The test consists of 25 true-false and multiple choice questions and you're allowed 90 minutes. It is a closed book exam. If you have a disability or disabilities that may require an accommodation, you should notify the General Council's office as well as the Regional Council's office in writing to ensure that they can assist with your needs.
I don't represent Veterans directly but rather serve as a coach with a do-it-yourself style. Thus, I've not challenged the test nor do I charge for my services...I don't accept donations nor any remuneration whatever. However, my understanding of the exam is that it's pretty basic. I do know that there was a move afoot to require attorneys to take the exam as they are now joining our soirée, although I don't believe that will happen.
Finally, I interpret the regs as saying the fee schedule for an agent is the same as an attorney...20% of the retroactive payment is the "maximum reasonable" fee. I believe there is a script/contract provided by VBA that will assign the fee to be payable by the VA or by the Veteran upon award. Unlike the SSA-SSDI fee structure, I don't think there is a $$ cap...it's simply 20%. There are some discussions ongoing of overall processes so you'll be informed up-to-the-minute after you begin your application.
Jim:
I was wondering if I could speak to you by phone. I am veteran and scheduled for a hearing with a DRO at my local office tomorrow the 20th. I would like to discuss some strategy with you. Can you please provide me with your phone number and a good time to call you? Or can you call me at my number to discuss? Its too much for me to type up and email. It would be about 15 minutes of your time.
Answer:
I'm sorry but I don't give out my phone number or accept incoming calls and I find that almost all we need to do is better handled with email correspondence. Emails provide us with good records of all that was said and are easy to reference back to. I'm sure you'll understand it could become overwhelming for me to try to juggle numerous telephone calls each day. If you'll spend a few minutes describing your situation to me via email, I'll be happy to offer any commentary I can.
(Follow-Up From the Veteran Below)
Jim:
I'll try my best. The VA turned me down for compensation saying my injuries back in 1971 while on active duty was not service connected. I was assaulted when somone jumped on my back while I was sitting on the edge of my bed. This incident did major damage to my lower back, knees and neck. My conditions have deteriorated over the years where I can no longer work and I am SSD since 2002. Since being turned down I received additional info such as my service medical records from the the VA. If you examine these records you can see entries were made by the Base physician as follows:
1. X-rays required on kness if required, 3 days rest.
2. on the same date he wrote another entry is made X-rays taken. The doctor was negligent in not writing down exactly what X-rays were taken, my physical condition, treatment or even medication prescribed. Anyway since then I have also received
1. A buddy letter from someone who was there and in my class while traing for our MOS or AIT and remembers the entire incident.
2. A letter from my wife stating she remembers the entire incident after calling her the next day.
3. medical reports from several (4) orthopedic surgeons dated between 1983 and 1985 who examined me and all reports state I was injured in the army in 1971. Thats 25 years ago, well before any thought was given to making any claims for benefits in 2006.
4. 2 letters from my current orthopedic surgeons who both concur my present medical conditions are direct result of service connected injuries. I have also have seen doctors on a quarterly basis since 1985.
5. I have medical reports, MRI's, X-rays, EMG's and etc dating back to 1983,
to present. I am also asking the VA to implement the policy that all veterans unable to secure an occupation of service connected disbilities shall be rated totally disabled and receive 100% compensation. I think this is it in a nut shell. Can you please give me additional help to win my case and what to look out for when dealing with the DRO.
Answer:
You have a problem. To say, “The doctor was negligent” undermines your credibility from the start. You can't return now to 1971 to offer a critique of a doctor who treated you. That doc gave you 3 days rest and that's it. If you were assaulted, where is a report of that? When did you next seek treatment? Were you able to perform military duties from 1971 until discharge with no other treatments?
You have very flimsy evidence for VBA to rely on.
A “Buddy Statement” or VA Form 21-4138, “Statement In Support of Claim” is most valuable when it is given in support of other evidence. For example, if there were documentary evidence that an event such as an assault that took place and your buddy verified all that the report said, you would have a great buddy statement.
Find that form by clicking here http://www.vba.va.gov/pubs/forms/vba-21-4138.pdf
A statement from your wife that she recalls a telephone call of you saying something happened decades ago isn't likely to carry a lot of weight. Although you're allowed to submit such evidence, it won't be of any real value. What is a wife supposed to say? I can't recall any statement from a wife, a pastor, or a mom that didn't agree with the Veteran.
You say you have letters from doctors in 1983 verifying that your injuries occurred in 1971. How would they know? Were they there? Have they seen records of the injuries? It's much more likely that what you have are letters from doctors who report that they were told, by you, that your injuries occurred in 1971.
Further, you now note that between 1971 and 1985 you didn't seek medical treatment. VBA and most other disability evaluation schemes would wonder why you were well for so many years and now...15
years later, you need disability?
To prevail and be awarded a disability benefit, you must first prove that disabilities exist. Then you have to prove they originated in service.
To my mind, you've not done either. For a claimed back injury to be rated as 100% there will need to be substantial proof of an event where an injury occurred. There should be some immediate documentation of the injury and the treatment. A solitary buddy statement isn't likely to do it. There should also be some sort of evidence that shows further treatment of the injury. There was the injury and then the soldier was on sick call and seen (x) times during the remainder of active duty.
After discharge, successful disability claims will show an immediate transfer of symptomology into either a VA or a civilian health care practice. If a doctor (civilian) has seen the Veteran within a month
or two of discharge, historical accuracy is established. A pattern of subsequent treatment through today should be established. Bottom line, from what you've told me today, you have no claim.
When I offered you my opinion, the opinion you asked for, you didn't like my answers. You wrote back to tell me, “remember the VA has no evidence what so ever. A buddy letter is very strong evidence. I have a friend of a friend that is a DRO I am not sure in what state and according to him it is very important because the person was there and witnessed it. They can use any excuses they want, but they have zero evidence, contrary to what I have.”
I'll point out to you that the VA doesn't need any evidence. They have nothing to prove. They don't have to prove you're wrong, you have to prove you're right. I'm happy that you have a friend of a friend in an unknown state somewhere who may be a DRO. That's a real bonus when dealing with the VBA, you should always pay close attention to the advice of those sources that you can't identify or verify.
Finally, you wrote to tell me, “Hey you know as well as I do your dealing with a bunch of knuckle heads who would over turn any evidence good or bad if they wanted to.”
No, I don't believe we're dealing with knuckleheads who will manipulate evidence if they want to. I believe that the great majority of VBA workers are honest, hard working and that they do all they can to find a reason to grant deserved benefits to Veterans. Many, if not most of them, are Veterans themselves.
When I go looking for knuckleheads, I don't need to go to the VBA...
Jim:
I am an 8 year veteran until I was forced out of the service for an injury. On my initial claim I presented my original outpatient record from date of entry of the service through my ETS physical. I was injured in '97 in ranger school that is where the documentation startes. Left shoulder
injury where as I was put on profile for 2 weeks and sent back through the coarse with a profile of no pushups. After graduation I went back to my unit and had a followup done and I was put on a longer profile of no pushups which was also in my record. Not long after I snapped my knee in half on a jump and my shoulder was forgotten about and after 6 surgeries for my knee I was med boarded out for my knee. On my final ETS physical it is clearly noted that I have a trick shoulder and what date the
injury occurred. This also was in my medical record. My question is this, I have documentation that I submitted with my initial claim that clearly proved that I was healthy upon entry into the service and had 3 separate injuries when I got out. I received my first letter telling me what the board had decided and for one of the injuries they totally denied it stateing there was no evidence that I received this injury while on active duty. Like I said all documentation was there. I submitted my appeal and was granted a reevaluation of the injury and the way the doctor went about it was basicly if there is no evidence of injury right now then it does not exist and that is that. On my initial claim I claimed: scarring and nero damage on my left knee and then the shoulder injury. What they rated me on
was:scarring and pain 10%, nero damage 10% and denied the shoulder and never even mention the fact that I where a knee brace 50% of the time due to the instability form missing 2 ligaments in my knee.
The pain associated with my shoulder now is that it pops and snaps freqently and sometimes I have nearly no lifting ability with it. But I have episodes of pain now and then since the injury occurred. Is the VA basiclly going to say we don't see anything now so tough.....denied. I thought that they are supposed to base an evaluation on your records, documentation and of course the physical exam for an injury claim. I just neede some insight becouse I am already expecting the new board conclusion to say once again denied.
Thank you for your time and the great job you do for our nations finest. Thank you for you time, god bless and " RANGERS LEAD THE WAY".
Answer:
You have a complex medical and military history. You seem to have all your records in order and you have tried to work within the system. As your history is so complex, I've referred you on to an attorney who is a specialist in disability law. You've accepted that referral and you've promised to let me know how this works out for you.
Jim:
I have a question. I am a reservist and was activated and discharged honorably. I had some health issues that i failed to mention on my military records(stupid me), however i have clear documentation with my civilian doctors as to the health problems i had while activated. I had hysterectomy Jan 07.
Diagnosis that led to hyst was dysmenorrhea/menometrorrhagia/iron deficiency anemia/uterine fibroids
all that was listed on my preop diagnosis. Why i believe it should be service related is my worst symptoms started during my time on active duty, and dysmenorhea got worse. The only reason i was thinking compensation is i though i was entitled to it. I dont say that sarcasticly, especially in light of our troops coming home with some serious disabilities.I know this is nothing compared to what some veterans are going through. I just know of women that got compensated for their hyst. (they were active duty).
I am not disabled from the surgery I feel 100% better and can do everything. Surgery done is civilian setting. All my dr visits are civiian as i am a reservist. The only time i see my med squardron is once a year to update my medical information. That is during my drill weekend. Now i wish to file a claim, but have been told if its not listed in your military records it never happened. Is this true or can i get records from doctors to prove my disability began during my activated time?
Answer:
Let's think this through. In your case, you've had a traumatic result of a natural process of aging. While the surgery is unfortunate, it isn't terribly unusual. You didn't relate any cause for service connection. I asked about how you were diabled and you replied very clearly, “I am not disabled from the surgery I feel 100% better and can do everything.”
We'll look at Title 38 and see: TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF, Subpart B_Disability Ratings, Sec. 4.116 Schedule of ratings--gynecological conditions and disorders of the breast. Note 1: Natural menopause, primary amenorrhea, and pregnancy and childbirth are not disabilities for rating purposes.
Generally speaking, when you apply for disability benefits with the VBA you must prove 2 things. First, that your "condition" has been caused by or aggravated by your military service. Naturally occurring events...those events normally associated with aging...are less likely to qualify for a benefit. Second, you must prove some degree of disability. VA uses a unique perspective and compensates the Vet for a theoretical loss of earnings ability.
For example, if you broke your arm on active duty (whether or not it was in combat) and later in life you had some restriction of motion or weakness, the Rating Officer would calculate what that may cost you in earnings over the years and then compensate you accordingly.
If you have an event of aging...let's say arthritis in your lower back...and that is treated while on active duty, it is reasonable to claim that your duties as a soldier were an aggravation to an existing condition and you deserve compensation.
If a Vet begins to have that back pain 10 years after discharge and there was no active duty record of treatment, the VA is likely to deny a claim of service connection...degenerative arthritis happens and it ain't their fault will be their thinking.
In your case you have a fairly normal event that happens to many of our female soldiers. Unpleasant, inconvenient and all that stuff but still...like benign prostatic hypertrophy in men, if we live long enough, these things happen to many of us.
For you to file a claim and win, you'll have to prove that your condition existed while you were on active duty and that the job you were required to do aggravated it. VBA won't accept your word for it. This is not a benevolent system, it's adversarial and you have to provide evidence every step of the way. In your situation the best way to win is to provide a nexus statement from a physician. This means that you have a doctor who is qualified in GYN issues that reviews your entire record of duty and subsequent illness. Then that doc must write a statement that will attest that it is more likely than not that your condition (status post-hysterectomy) was caused or aggravated by your military service. The cause may be physical (heavy lifting, combat, etc.) or mental (PTSD, stress, POW).
Once you have that and you apply to VBA for benefits, VBA will schedule you for a Compensation and Pension exam...a C&P. There a VA contractor who is a specialist in disability issues will examine you and render to VBA an opinion of your degree of disability. VBA eventually will address your claim for disability and I would guess, given the information I have today, that your claim will be denied.
Jim:
Is there anything in title 38 covering vets who have to travel over 200 miles for care, is it possible to get a fee basis for much closer dental and health care?
Answer:
You can request fee basis at your clinic. I don't know of any hard and fast rules but I do know that if you approach your primary care provider in just the right way, that provider has an awful lot of
authority to get things done for you. Your fee basis person at your primary clinic also wields a lot of authority.
In my experience, the rules are very flexible. I'm aware of chiropractic care being provided as fee basis and I'll be honest with you, I nearly fainted over that one. I'm not a big fan of chiropractic and for VA to pay for it just bowled me over.
I'd suggest going in person to your clinic and finding the person with the power to grant you a wish. In my clinic, I laid the groundwork to that plan with my wife's superb, fresh, homemade oatmeal cookies. It's amazing how many doors open for homemade cookies.
Please let me know if this kind and gentle approach works for you. If not, we'll play the game a little harder.
Anonymous
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I have generalized anxiety disorder
My VA psychiatrist informed me today that I should appeal my case and update my disability rating from 50 percent for the anxiety to 100 percent because I can not hold a job nor function properly on the medication that I currently take. Does what the VA psychiatrist help my case? The doctor made it sound like it wouldn't be a problem but I am just wondering what you think the chances of this happening would be. I have read reports that some states are more likely to approve it then other states and Texas is one of hardness and this is where I live. Thank for taking the time to read my question.
Anonymous
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100 Percent VA Perm Disability
My Questions are:
1. How often will I be re-evaluated by the VA
2. Can I work and not put my rating (as well as medical treatment) in jeopardy
Anonymous
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100 Percent VA Comp & Vocation Rehab.
Anonymous
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Jim;
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