veteran compensation and pension assistance

Long Overdue

2006-10-15T07:53:00.000-07:00

Sorry for the lengthy delay in posting. I have been having difficulties but am better now. I appologize to all those who sent me questions and I have not responded before now. I will attempt to do better. I am also asking a friend to assist me as well so, here's to the future...

The following questions were posted to Disability Benefits Yahoo Group:

Q. I am retired from the military and I was just awarded 40 percent disability from the VA. Part of my rating (30 percent) was from combat. How do I apply for Combat Related Special Compensation and how will that be paid?

A. This office can assist you in filing for CRSC. Bring a copy of your retirement DD214 and your VA award letter. If you received a Purple Heart, the orders for that award will help. The VA will pay you for the 40 percent disability.
Currently, 40 percent compensation for a veteran with one dependent is $539 per month, tax-free. That amount will be subtracted from your retired pay. Your CRSC would be paid by the service and currently be $377 per month, also tax-free.
The bottom line is that you will be getting $916 per month tax-free and pay taxes only on your remaining retired pay.

Q. My service-connected disability became more severe, and the VA increased my compensation. I applied for VA Disability Insurance and was denied. Can you explain?

A. When a veteran receives a disability rating, there is a two-year window to apply for disability insurance. The description of the program is in the VA award letter that establishes compensation.
An increase of a previously rated condition does not establish a new two-year window for application. Also, the veteran must be in otherwise good health except for service-connected disabilities. You would have to have a compensable rating for a new condition to be able to receive disability insurance.

- George Compton, retired Army colonel,
is the veterans service officer for the County of Ventura, Human Services Agency.
Send your questions to Veterans Service Office,
1701 Pacific Ave., Suite 110, Oxnard CA 93033;
phone number: 385-6366;
fax: 385-6371;
or e-mail: George.Compton@ventura.org.

Copyright 2006, Ventura County Star. All Rights Reserved Copyright material is distributed without profit or payment for research and educational purposes only, in accordance with Title 17 U.S.C. section 107. Reference: http://www.law.cornell.edu/uscode/17/107.shtml

2006-07-11T19:42:00.000-07:00

Separating disabilities joined in a rating

2006-06-07T19:22:00.000-07:00

Question:

I received a rating of 60%, but only received 20% for fibromyalgia even with constant and refractory symptoms and to top that off they included my IBS in that 20%. If I did not have fibromyalgia I should have gotten 30% just for the IBS. I am familiar with the final interpretation for Fibromyalgia, but I am unsure of how to appeal the combination of two seperate diagnosis. What is the best way to appeal the combination of fibromyalgia and IBS?

Answer:

To begin, I'll give you the citations that were used in my appeal and in the final decision by the BVA as conclusions of law warranting service-connected for IBS.

Service-connection for IBS is warranted under: 38 USCA 1110, 1117, 1131, 5107 (West 2002 & Supp. 2005) and 38 CFR 3.303, 3.310, 3.317 (2005).

First, when I appealed I was sent to get the typical C&P exam and I asked the examiner direct questions regarding their experience with FMS and IBS diagnoses and how they saw the two; as either coexisting conditions or part and parcel to the same disease (FMS). The examiner replied with the right answer. I did my homework before going by reading up on FMS and how it is diagnosed and the literature that unequivocally states IBS is a coexisting condition and not merely a sign(s) or symptom(s) of FMS. This is the key factor! Get the examiner to document in his C&P report that FMS and IBS are coexisting conditions and neither diagnosis is dependant on the other for an independent diagnosis.

Second, when the appeal is written it is imperative to provide the rheumatology diagnostic criteria for FMS and cite the most recent credible medical source for it. Also, it is equally imperative to provide the same for IBS and its medical category as a gastrointestinal disease – not a rheumatologic disease (which FMS is). Hence, they are two separate and distinct medical disabilities. When the descriptive diagnostic criteria are placed side by side it should be painfully clear to the VA that neither disease are the same and/or share the same sign(s) or symptom(s); thus avoiding the issues brought under 38 CFR 4.14 Avoiding overlapping of evaluations (or pyramiding). The recent changes can be found in the Federal Register Vol 68 No 28 Dated Feb. 11, 2003 and can be found online by doing a Google search for it.

Third, if the veteran has been seeing the same VA doctor as their primary care physician (or civilian primary care physician) who is familiar with their diagnosis (as they likely made them); have the veteran ask their physician to write them a letter in their defense explaining their medical opinion that while FMS and IBS often occur together as coexisting conditions, they are still separate entities which occur independently from one another; and that neither is a criterion for the other in order to make a diagnosis for each. Does this make sense? Also, don't let the terms “syndrome” and “symptoms” to be used interchangeably by the VA as they mean two different things medically as well as legally.

Fourth, it is also important to go online to the BVA and search recent decisions where FMS and IBS have been granted separate service-connections and ratings apart one another. When I was denied by two different regional offices both repeated the same denial, separating IBS from FMS cannot be done. By providing copies/references to actual BVA cases granting same it establishes the undisputable fact that IBS can be separated from FMS, given service-connected status of its own and subsequently rated. One important note is not to let the regional office ignore this evidence in support of the appeal by stating those decisions have nothing to do with the veterans case at hand. While the decisions may not be directly related to him/her and their current claim because they are someone else’s claims/appeal; notwithstanding, these cases are probative to the veterans case in the sense that they prove what the veteran is asking for on appeal and that it can be done.

Another point I drove home in my appeal and statement of the case was HR 1291 Veterans Education and Benefits Expansion Act of 2001, specifically Title II No. 6 where Congress made it perfectly clear that FMS and IBS were considered separate multisymptom illnesses/disabilities. You may also want to refer to Public Law 107-103 Section 202 Gulf War Veterans’ Chronic Disabilities whereby the definition of a “qualifying chronic disability” was expanded to include IBS separate from FMS and CFS.

I also addressed 38 CFR 4.2 Interpretation of examination reports because in one C&P report that was received by the VARO in my case the VSO misinterpreted it and in response stated that dated medical findings (my entire medical history at the VA up to the date of the latest C&P) were useless and not considered. Only C&P exams were considered as current in determining a decision for service-connection and/or rating. I pointed out their blatant error by referring to the part in 4.2 that clearly states:

“It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.”

Therefore, the VA is required to consider the veteran’s entire medical history as it paints a far more accurate picture than one 5 min “in and out” C&P exam conducted by a virtual stranger. Meaning, the primary physician’s reports should be given more weight than a C&P exam that is more often than not lacking thoroughness and a complete medical history workup.

It’s been some time since I’ve read it, but you may want to consult the letter/report dated April 14, 2003 that was addressed to Mr. Robert McFeteridge, Director at the Office of Regulations Management Dept of VA Washington DC in reference to: Proposed Rule to Amend Schedule Rating Disabilities – Musculoskeletal System. This letter can be found online by doing a Google search with the above name and title of the letter/report.

Lastly, throughout the appeal it should be repeated (in the appropriate places) that FMS does not equal IBS and vise versa. It’s important to be redundant in stressing they are two separate and distinct multisymptom illnesses with their own independent diagnostic criterion (and that neither sign(s) nor symptom(s) of each are overlapping) recognized by both the medical and legal communities.

Compensation and Pension Exam

2006-05-29T23:25:00.000-07:00

Question:

What is a compensation and pension (C&P) exam.

Answer:

Compensation
This benefit program evaluates disability resulting from all types of diseases and injuries encountered as a result of military service. The degrees of disability that are determined by VA represent, as far as can practicably be determined, the average loss in wages resulting from such diseases and injuries and their complications in civil occupations. Generally, the degrees of disability specified are also designed to compensate for considerable loss of working time from exacerbations or illnesses.

Pension
Pension is available to veterans, surviving spouses and children, if the veteran has qualifying service and there is financial need. Veterans must also have a qualifying disability which need not be service-connected.

Examinations
Physical examinations, when made by the VA, are done under criteria worked out by both the Veterans Health Administration and Veterans Benefits Administration.

If you combine all of these VA definitions, you will see that a C&P exam is designed to determine 1) if you still have a disability that may have started in the service, (2) is the current disability a result of the military service, and (3) to determine the severity of the disability. The rating specialist them takes the exam report and uses the following criteria to determine the proper rating percentage.
A veteran may have more than one C&P exam. Some of the reasons for this are conflicting medical opinions about the same disability, delay of time since the last exam, request for re-evaluation, and many others.
You do not have to attend a C&P exam alone unless you choose to. You can not be denied anyone you request to be present and, if necessary, sign a release for that person to be present. You are also allowed to take a tape recorder and if you let them know you intend to use it, you may record the exam. If, for any reason, you are uncomfortable or feeling violated, you may leave the room and request assistance immediately. If you miss an exam, you may request a reproceed to reschedule the exam but please try to make all exams.
Good luck!

Clear and Unmistakable Error

2006-05-29T21:43:00.001-07:00

Question:

What are the guidelines for CUE (Clear and Unmistakable Error)?

Answer:

§20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

(b) Record to be reviewed.

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision
on the grounds of clear and unmistakable error, there must have been an error in the
Board's adjudication of the appeal which, had it not been made, would have manifestly
changed the outcome when it was made. If it is not absolutely clear that a different result
would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error.

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis
considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise
correct application of a statute or regulation where, subsequent to the Board decision
challenged, there has been a change in the interpretation of the statute or regulation.
(Authority: 38 U.S.C. 501(a), 7111)

§20.1404 Rule 1404. Filing and pleading requirements; withdrawal.

(a) General. A motion for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.

(b) Specific allegations required. The motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.

(c) Filing. A motion for revision of a decision based on clear and unmistakable error may be filed at any time. Such motions should be filed at the following address: Director, Management and Administration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, NW, Washington, DC 20420.

(d) Requests not filed at the Board. A request for revision transmitted to the Board by the Secretary pursuant to 38 U.S.C. 7111(f) (relating to requests for revision filed with the Secretary other than at the Board) shall be treated as if a motion had been filed pursuant to paragraph (c) of this section.

(e) Motions for reconsideration. A motion for reconsideration, as described in subpart K of this part, whenever filed, will not be considered a motion under this subpart.

(f) Withdrawal. A motion under this subpart may be withdrawn at any time before the Board promulgates a decision on the motion. Such withdrawal shall be in writing, shall be filed at the address listed in paragraph (c) of this section, and shall be signed by the moving party or by such party's representative. If such a writing is timely received, the motion shall be dismissed without prejudice to refiling under this subpart. (Authority: 38 U.S.C. 501(a), 7111)

[57 FR 4109, February 3, 1992, as amended at 66 FR 35903, July 10, 2001; 67 FR 16023, Apr. 4, 2002]

I'll be back with some of my own hints that I have acquired from some great minds....

I.D. Theft

2006-05-23T04:24:00.000-07:00

Well the latest in VA news is very disturbing. The theft of veterans' information from a VA employees home. Some helpful links and information:

Associated Press Article

Fox News Report

Firstgov.gov

At least that information will get you started if you didn't know about the theft. Let me know if anyone has any questions about this that I can help with. My prayers go out to each and every one of you alike!

Statutory Disability or Presumptives

2006-05-17T02:09:00.000-07:00

Question:

What is a statutory disability and what does it mean?

My Answer:

As far as I can determine, a statutory disability is a presumptive disability.

Presumptive Disabilities are those disabilities which if you have the disability and you meet the criteria set by the VA (i.e. for presumptive disabilities associated with Agent Orange, the veteran must prove that they set foot on land in Vietnam), then that disability will be granted as being service connected.

"Presumptive Conditions for Disability CompensationCertain veterans are eligible for disability compensation based on the presumption that their disability is service connected.
Prisoners of War: For former prisoners of war (POW) who were imprisoned for any length of time, the following disabilities are presumed to be service-connected if they are rated at least 10 percent disabling anytime after military service: psychosis, any of the anxiety states, dysthymic disorder, organic residuals of frostbite, post-traumatic osteoarthritis, heart disease or hypertensive vascular disease and their complications, stroke and residuals of stroke.
For former POWs who were imprisoned for at least 30 days, the following conditions are also presumed to be service-connected: avitaminosis, beriberi, chronic dysentery, helminthiasis, malnutrition (including optic atrophy), pellagra and/or other nutritional deficiencies, irritable bowel syndrome, peptic ulcer disease, peripheral neuropathy and cirrhosis of the liver.
Veterans Exposed to Agent Orange and Other Herbicides: A veteran who served in the Republic of Vietnam between Jan. 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange and other herbicides used in support of military operations.
Eleven diseases are presumed by VA to be service-connected for such veterans: chloracne or other acneform disease similar to chloracne, porphyria cutanea tarda, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma or mesothelioma), Hodgkin's disease, multiple myeloma, respiratory cancers (lung, bronchus, larynx, trachea), non-Hodgkin's lymphoma, prostate cancer, acute and subacute peripheral neuropathy, diabetes mellitus (Type 2) and chronic lymphocytic leukemia.
Veterans Exposed to Radiation: For veterans exposed to ionizing radiation while on active duty, the following conditions are presumed to be service-connected: all forms of leukemia (except for chronic lymphocytic leukemia); cancer of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary tract (renal, pelvis, ureter, urinary bladder and urethra), brain, bone, lung, colon, and ovary, bronchiolo-alveolar carcinoma, multiple myeloma, lymphomas (other than Hodgkin's disease), and primary liver cancer (except if cirrhosis or hepatitis B is indicated).
To determine service-connection for other conditions or exposures not eligible for presumptive service-connection, VA considers factors such as the amount of radiation exposure, duration of exposure, elapsed time between exposure and onset of the disease, gender and family history, age at time of exposure, the extent to which a non service-related exposure could contribute to disease, and the relative sensitivity of exposed tissue.
Gulf War Veterans: Gulf War veterans may receive disability compensation for chronic disabilities resulting from undiagnosed illnesses, medically unexplained chronic multi-symptom illnesses defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia or irritable bowel syndrome and any diagnosed illness that the Secretary of Veterans Affairs determines warrants a presumption of service-connection.
A disability is considered chronic if it has existed for at least six months. The undiagnosed illnesses must have appeared either during active service in the Southwest Asia Theater of Operations during the Gulf War or to a degree of at least 10 percent at any time since then through Dec. 31, 2006.
The following are examples of symptoms of an undiagnosed illness: fatigue, skin disorders, headache, muscle pain, joint pain, neurological symptoms, neuropsychological symptoms, symptoms involving the respiratory system, sleep disturbances, gastrointestinal symptoms, cardiovascular symptoms, abnormal weight loss and menstrual disorders. Amyotrophic Lateral Sclerosis (ALS) may also be service-connected if the veteran served in the Southwest Asia Theater of Operations anytime during the period of Aug. 2, 1990, to July 31, 1991."
-2006 Federal Benefits for Veterans and Dependents

"My Answer" Clarification

2006-05-15T20:41:00.000-07:00

The reason that I have listed my response to people's questions as "My Answer" is that there are often more than one possible response to each question. I am going to give the best answer within my knowledge and understanding ... what I don't know, I'll find out. Please remember that these answers are just one person's suggestion on how to resolve a question. I will tell you if I don't know the answer to a question and recommend where to find the most correct answer. Thanks :-)

Stressor Letter Length

2006-05-15T20:34:00.000-07:00

The Question:

hi, I recently ammended my ptsd stressor letter from 9 to 11 pages. I went through my c&p exam for ptsd this last april 17 and that same day met with my service officer and submitted my ammended stressor letter. Due to my increased stress from writing the stressor letter and ptsd related issues, after the c&p exam, I was immediately admitted at palo alto psychiatric ward for 2 weeks. When I came back home, I had a message from my service officer, saying that I needed to shorten my stressor letter to 2 pages. I found it important to include all my ! stressors. I won't fit them into 2 pages. I believe i have the right under title 38 to express myself as a veteran. Can you please give me some words of advice. I may be absolutely wrong, and maybe you can give me some tips on how to best resolve this "long stressor letter' issue. I would sincerely appreciate your response.

My Answer:

If your service officer submitted the eleven page letter to the VA as I think you believe is the case, then that letter is an official part of your claim file and can't be (shouldn't be) removed. I have never heard of the VA turning down a detailed stressor letter. It might help if you pulled out specific dates and people in an outline format, that will assist the VA in confirming your stressors, but I would never suggest you shorten it or not submit a letter like that. Your letter to the VA will be one of the few connections the rating specialist will have with you and how you feel. You can call 1 800 827 1000, when you reach public contact person, ask for a coach because you think you might have received incorrect information. When you reach the coach (be persistant but polite and you will finally get one) ask that coach if there is any time that a veteran will be asked to shorten their stressor letter. I will check with the VA people where I work. If it was me or one of my veterans, I would make sure that the long version of the stressor letter is submitted into evidence in the claim file. I'll let you know what else I find out.

C&P Exam

2006-05-15T20:32:00.000-07:00

The question:

I went for my 1st ever C&P exam this past Friday for hearing loss & tinnitus. The examiner said I have classic tinnitus no doubt,but wants me to come back this week for re-exam on the speech recognition/discrimination part as I was apparently off the chart or he had other concerns. Does this sound right for them to call me back for a re-exam for a claim? Is this normal?Thanks for any assistance

My answer:

The VA does some weird stuff in their C&P exams. If you had the hearing test in the last one, get copies of the report as soon as possible. Keep your new appointment and get a copy of that report as well. It is possible that it surprised them of the extent of your hearing impairment. Hope that helps.

Happy Mother's Day!!

2006-05-14T20:29:00.000-07:00

Happy Mother's Day!!

It's been a month of wide awakenings for me.
I knew that there was some animosity across the nation with the processes that the VA puts veteran's through. What I didn't realize was how truly hard it is for veterans' to get the information that they need to get their claims granted. Once again, I don't make any promises ... I am just one fighting against the machine and I'm learning that I can only make a difference one at a time ... what I do promise is that for anyone I offer my assistance, I will do my best.
The most current question put to me is:

what is a statutory disability. and what does it mean.
what does public law 141 73th congress.mean

Public law 73-141 refers to 38 U.S.C. §1111 and 38 CFR 3.304 and 38 CFR 3.306. As I understand it, PL 73-141 means that the VA has to assume that the veteran was of sound health when they went into the military unless the VA can prove otherwise. The burden to prove a disability existed prior to service is upon the VA unless a clear and unmistakable error was found that the person was allowed into the military in error. If a clear and unmistakable error was found, then the burden to prove the disability didn't exist prior to service lies with the veteran.

I'm still working on statuatory disability and the VA meaning of it.

Service Organizations

2006-05-01T05:31:00.000-07:00

I recommend getting a service officer to assist you with your claim. Service Organizations can

Help file initial claims
Provide one-on-one assistance,
Decipher VA correspondence;
Help complete subsequent claims documentation,
Determine the types of evidence that will supports claims,
Help locate needed evidence,
Obtain copies of needed records,
Provide representation before VA hearings officers and/or boards,
Provide representation before the Board of Veterans Appeals for denied claims and
Provide assistance with discharge upgrades for other than honorable discharges from the U.S. Armed Forces.

Types of Service Connection

2006-04-29T19:12:00.000-07:00

Direct Service Connection
Secondary Service Connection
Aggravated Service Connection
Presumptive Service Connection
Section 1151 Claim Service Connection

Direct Service Connection
Established when the disability is either the direct result of military service, is the result of some incident/event/disease suffered while in the service, or was a disability simply diagnosed/treated during the service. The veteran's service medical records or personnel records should show that the condition began during service or was the result of some incident/event/disease suffered in service. In the absense of military records to support the claim, the use of buddy statements, private treatment records, and etc. is acceptable.

Secondary Service Connection
This may be established for a condition which is the direct result of a recognized service connected disability. This includes the “side effects” or complications of treatment for a service connected disability.

Service Connection by aggravation
A preexisting disability which is aggravated by service can also be granted service connection. The disability must have become permanently worse, and the worsening was not due to the normal progression of the disability. For example: the veteran had knee surgery prior to service, but was found medically qualified for enlistment. During military service, the veteran stared to have knee problems due to the physical stress placed on the knee. The permanent worsening of knee symptoms can be service connected based upon aggravation.

Presumptive Service Connection
Certain chronic diseases, tropical diseases, prisoner-of-war related diseases, diseases associated with exposure to certain herbicide agents, or diseases specific to radiation exposure can also be found service connected due to law, even if there was not diagnosis of the disease in service. Some conditions must manifest within a given time period, so it is important to be familiar with the law.

1151 Claims
Service connection can be granted for a disease, injury or death; or aggravation of an existing disease or injury when it is the result of having submitted to a VA examination, medical or surgical treatment, hospitalization or the pursuit of a course of vocational rehabilitation and such treatment or vocational rehabilitation is the direct cause of the disability or death

Helpful links for VA claims

2006-04-28T21:23:00.000-07:00

Check out these links that offer additional information:

Board of Veteran's Appeals http://www.va.gov/vbs/bva/
Center for Minority Veterans http://www1.va.gov/centerforminorityveterans/
Center for Veterans Enterprise http://www.vetbiz.gov/default2.htm
Center for Women Veterans http://www1.va.gov/womenvet/
American Gulf War Veterans Assoc http://www.gulfwarvets.com/
Electronic Code of Federal Regulations http://www.gpoaccess.gov/ecfr/
Forms and Records Request http://www.va.gov/vaforms/
Guideline for Chronic Pain and Fatigue MUS-CPG http://www.oqp.med.va.gov/cpg/cpgn/mus/mus_base.htm
My Health e Vet <http://www.myhealth.va.gov/>
National Association of State Directors <http://www.nasdva.com/>
National Center for Health Promotion and Disease Prevention <http://www.nchpdp.med.va.gov/postdeploymentlinks.asp>

to be continued ...

Try Reconsideration First ...

2006-04-28T21:09:00.000-07:00

I have had reason recently, to review some appeals. It has come to my attention that there is some misunderstanding and need for clarification.

In reference to appeals:
If a veteran has new evidence that was not previously submitted/reviewed, the veteran should submit that evidence with a statement requesting reconsideration of the denied service connected disability.

DO NOT USE THE FOLLOWING WORDS:

Disagree, Disagreement, or Appeal

If the word "disagree" is used in ANY form, the VA is compelled/forced by law to start an appeal on behalf of the veteran. What needs to be remembered is that if a reconsideration is requested, the date of claim should be preserved and if that reconsideration is denied, the year in which an appeal can be filed begins again. You won't be out anything to submit new evidence and request a reconsideration except the length of time an appeal is going to take. Once an appeal is filed, it can not be UNFILED, so there is no going back but with a reconsideration, you still have room to manuever forward.

Fantastic Links

2006-04-24T19:04:00.000-07:00

I am adding new links in the side bar but I wanted to share a little where the links came from:

http://www.pleikupals.org (sorry for the previous error)
These are some great people. If you served at Pleiku in Vietnam, you might want to join their group. If you didn't serve there, read their guest book, check out their links, learn a little about where they served and who they are. You won't be sorry! Thanks to Tom, Dave, Earl and Doug (they know who they are) for your support and your service. I'm sorry it has taken so long for someone to want to help you, but I'll do my best.

http://www.military.com
All kinds of great stuff. Register ... it's free ... you can search for buddies, look at new military info ... check out military blogs ... check it out. I found some very useful information there as a civilian military enthusiast.

http://www.archives.gov
All veteran records. If you need to request DD214, Discharge Papers, SMRs (Service Medical Records), Personnel Records (201 file), they can all be done online with the e-VetRecs program that can be accessed from this link.

http://thewall-usa.com/
The Vietnam Wall on line. You can search for names -- scroll down to near the bottom of the page. Email me if you can't figure it out and I'll send better instructions. It is good to remember those we have lost along the way. I am greatful to each and every one, as well as their families and friends for the sacrifice.

http://www.vva.org/benefits/ptsd.htm
The VVA guide to PTSD (Post Traumatic Stress Disorder). There is great stuff here. More than anything, I want to encourage you to seek treatment as well as compensation. Also, know that you are not alone.

http://www.ncptsd.va.gov/
The National Center for PTSD. This site has a lot of useful information for those who suffer from PTSD as well as those whose loved ones suffer. I haven't gotten far in the material but it is worth checking out. For the Iraqi Freedom and Enduring Freedom veterans -- there is some really great stuff here that you should check out!

PTSD Stressors due to Combat/non-Combat

2006-04-23T10:47:00.000-07:00

Per 38 CFR 3.304(f), a finding of service connection for PTSD requires
· credible supporting evidence that the claimed in-service stressor actually occurred
· medical evidence diagnosing the condition in accordance with 38 CFR 4.125, and
· a link, established by medical evidence, between current symptomatology and the claimed in- service stressor.

Important: The lay testimony of a combat veteran alone may establish an in-service stressor for the purposes of establishing service connection for PTSD.
To establish service connection for PTSD the relationship between stressor and symptoms must be specifically addressed in the Department of Veterans Affairs (VA) examination report, and supported by documentation.

Stressor 1: Engaging in combat
Engaging in combat with the enemy means personal participation in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. It includes presence during such events either as a combatant, or service member performing duty in support of combatants, such as providing medical care to the wounded.

The VA can consider the receipt of any of the following individual decorations as evidence of exposure to combat-related stressors:
· Air Force Cross
· Air Medal with “V” Device
· Army Commendation Medal with “V” Device
· Bronze Star Medal with “V” Device
· Combat Action Badge
· Combat Action Ribbon (Note: Prior to February 1969, the Navy Achievement Medal with “V” Device was awarded.)
· Combat Aircrew Insignia
· Combat Infantry/Infantryman Badge
· Combat Medical Badge
· Distinguished Flying Cross
· Distinguished Service Cross
· Joint Service Commendation Medal with “V” Device
· Medal of Honor
· Navy Commendation Medal with “V” Device
· Navy Cross
· Purple Heart, and/or
· Silver Star.

Important: Receipt of a one of the decorations cited above is not the only acceptable evidence of engagement in combat.

Notes:
If a veteran received one of the decorations cited above, but does not expressly state the nature of the stressor
- assume that the stressor is combat-related
- order an examination, if necessary to decide the claim, and
- specify in the examination request which decoration(s) the veteran received.
Because the medals listed below may be awarded for either combat or non-combat service, their receipt does not necessarily confirm a veteran’s participation in combat. When in question, request documentation (using Personnel Information Exchange System (PIES) request code 019) showing justification for awarding the medal.
- Global War on Terrorism Expeditionary Medal
- Global War on Terrorism Service Medal
- Afghanistan Campaign Medal, andIraq Campaign Medal.

Credible supporting evidence that an in-service stressor actually occurred includes not only evidence that specifically documents the veteran’s personal participation in the event, but evidence that

· indicates the veteran served in the immediate area and at the particular time in which the stressful event is alleged to have occurred, and
· supports the description of the event.

Notes:
· Evaluate the evidence as a whole to determine whether a stressor is sufficiently corroborated. (See Moran v. Principi, 17 Vet. App. 149 (2003).)
· Corroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources. (See Doran v. Brown, 6 Vet. App. 283 (1994).) The credible supporting evidence requirement does not necessarily demand the submission of official documentary evidence.

Corroboration of every detail, including the claimant’s personal participation in the claimed stressful event, is not required. The evidence may be sufficient if it implies a veteran’s personal exposure to the event.

Examples:
· When considered as a whole, evidence consisting of a morning report, radio log, and nomination for a Bronze Star may be sufficient to corroborate a veteran’s account of an event, even if it does not specifically include mention of the veteran’s name. (See Suozzi v. Brown, 10 Vet. App. 307 (1997).)Unit records documenting the veteran’s presence with a specific unit at the time mortar attacks occurred may be sufficient to corroborate a veteran’s statement that she/he experienced such attacks personally. (See Pentecost v. Principi, 16 Vet. App. 124 (2002).)

Stressor 2: Potential non-combat-related stressors

Potential non-combat-related stressors include, but are not limited to
· plane crash
· ship sinking
· explosion
· rape or assault
· duty
- on a burn ward
- in graves registration unit, or
- involving liberation of internment camps
· witnessing the death, injury, or threat to the physical being of another person not caused by the enemy actual or threatened death or serious injury, or other threat to one’s physical being, not caused by the enemy.

Primary evidence is generally considered the most reliable source for corroborating in-service stressors. It is typically obtained from the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly the U.S. Armed Services Center for Unit Records Research (CURR)), the National Archives and Records Administration (NARA), or the Marine Corps University Archives (MCUA) and should be carefully reviewed for information confirming participation in combat or to otherwise corroborate a claimed in-service stressor. Primary evidence includes
· unit and organizational histories
· daily staff journals
· operational reports-lessons learned
· after action reports
· radio logs
· deck logs and ship histories
· muster rolls
· command chronology
· war diaries
· monthly summary, and morning reports.

Review the following alternative sources of evidence critically and carefully for information confirming participation in combat or to otherwise corroborate a claimed in-service stressor:

· military occupational specialty (MOS) evidence
(Note: A veteran’s MOS may be specified on his/her DD Form 214,
Certificate of Release or Discharge from Active Duty, or in the personnel folder.)
· hazard pay records
(Note: This information may be requested from the Department of Defense Finance and
Accounting Service (DFAS).)
· personnel folder (Note: This information may be requested via PIES.)
· service medical records
· performance reports (Note: This information may be requested via PIES.)
· buddy statements
· contemporaneous letters and diaries
· newspaper archives, and
· information from Veterans Benefits Administration (VBA)-sanctioned websites,
which may be accessed through the PTSD Rating Job Aid website.

Important: All sources of evidence obtained for purposes of stressor verification must be fully documented in the file.

A combat veteran’s lay testimony alone may establish an in-service stressor for purposes of establishing service connection for PTSD.

Evidence that does not qualify as credible supporting evidence of the occurrence of an in-service stressor as required by 38 CFR 3.304(f) includes

· a non-combat veteran’s testimony alone, and
· after-the-fact psychiatric analyses that infer the occurrence of a traumatic event.

Buddy Statements

2006-04-23T09:56:00.000-07:00

If you go back and read the entry on Direct Service Connected Compensation Claims, you will recall I made mention of Buddy Statements. Buddy Statements can consist of but are not limited to the following statements from your:

spouse
children if they are old enough to make sense
parents
best friend(s)
service buddies
witness to an incident

Any layman's statement which bears witness to either the incident/accident/injury or witness of symptoms. These people are not doctor's and they can't diagnose a disability. What they can do is to support your contention that there are symptoms of a disability/injury and help you establish a beginning date for those symptoms.

When you didn't go to the medic on duty and you haven't had continuous treatement for the disability/injury, you can use buddy statements to support your claim. The other thing you need to keep in mind is that the C&P examiner only sees you once. The person rating your claim may never have met you. Who are the people that see you every day? Who sees your pain and symptoms every day? Your wife and family. Your best friend sees you frequently. Maybe you were injured while transporting equipment from one place to another. You didn't have time to go to the medic but your buddy Sgt Joe saw the incident which caused the injury. That is your supporting evidence.

Don't spoon feed the buddy statement to your family and friends. They need to write it in their own words and please don't make things up. If they don't remember, they don't remember. Move on. What you can do is help refresh their memories. The minute they say "Oh, I remember..." then you ask them to write it down. Make sure if they are not using the VA form 21-4138 that they include the statement "I certify that the my statements are true and correct to the best of my knowledge and belief." Good luck!

To Appeal or Not to Appeal

2006-04-22T23:04:00.000-07:00

Okay, it isn't really to appeal or not to appeal but more to
know when to appeal.
You, as the veteran, have one year (365 days) from the day of your decision letter to file an appeal. If you were denied service connection ... you get your rating decision ... read the "reasons and basis"for the decision. The VA will often tell you what you need to provide to them to allow them to grant your claim.

What does this mean?
If there is anything listed in the reasons and basis that the VA wants you to submit. This could be

a form,

some records,

an exam that was missed

an opinion from your dr. based on treatment records & review of your file.

If there is something needs to be done then DO IT. Don't file a Notice of Disagreement yet. Try to give the VA what they are asking for. On a 21-4138 or any sheet of paper write "I am providing the xxxx information that the VA has requested to grant my claim for service connected xxx. Please relook at the decision dated XXX. Please consider this new evidence in support of my claim." Attach this statement to the new evidence you are submitting and turn it in. The VA can reevaluate your claim without you filing an appeal. And they can do so in a fraction of the time that it would take to file an appeal. When applying for a reconsideration -- do not use the work disagree or disagreement or the VA will be compelled to file an appeal!

I don't know about the VA Regional Office in your area but the VA Regional Office where I work doesn't even look at an appealed issue for a year and it will take up to four years to get a decision. If the veteran can provide them with something new before filing an appeal, the VA will look at it within a couple of months. If the evidence submitted is enough to change the decision, a veteran might have that new decision inside six months. If you have done this as soon as you get the evidence together, the VA should have a decision made based on this new evidence before the appeal period for your last decision is expired. You aren't out anything by doing this and you might save yourself a lot of time and frustration. You have protected the effective date of your claim and allowed the VA to be more time efficient.

Let me explain a little why the appeal process is this way. The numbers I will use refer to the VA Regional Office I have the most experience with. Other Regional Offices will vary but you will get the idea. When you submit new evidence, the claim returns to the pre-determination team to verify that there is nothing that the VA needs to get to help your claim. There are about 25 employees on the pre-determination team. Then it goes to the rating specialist to decide if the new evidence is enough to change the decision. There are at least 15 people on the rating team. If you start an appeal, there are two people on the appeal team who do all of the verification that nothing needs to be requested before going to the Decision Review Officer (DRO) to make their decision. There is one person who schedules the hearings with the DRO and there are eight DROs to reveiw every appealed claim, do hearings, and make decisions. Which would you prefer to have work on your claim?

An appeal has it's purpose and necessity but seek out all avenues before starting an appeal. Like I said before, you have a year to file an appeal but once the appeal is filed, there is no going back.

2006-04-22T11:20:00.000-07:00

I said this before but let me reiterate it. You must ASK before the VA is going to give you anything. You must share this information with others because a veteran who doesn't know that there might be benefits available to them, doesn't know to ASK. Help them by letting them know they need to ask.

ASK ... ASK ... ASK ... ASK ... ASK ... ASK ... ASK
SHARE ... SHARE ... SHARE ... SHARE ... SHARE

Thank you and bless each and every one of you!

Direct Service Connected Compensation

2006-04-21T22:49:00.000-07:00

Original Direct Service Connected Compensation Claims

It is interesting to me that with all the service organizations in the world, the veteran gets very little actual instruction on how to win their claim. To ensure a grant of a direct service connected compensation claim, the veteran must first have three things:

Evidence that an incident or disability began during their military service.
Proof of a current diagnosis of that disability.
Continuity of treatment or symptoms from military service to present day.

First, how do you show that an incident or disability began during your military service? The evidence needs to be in your service medical records. Your proof won't always be that simple. If there is not a reference to the incident or disability in your service medical records (because if you went, it didn't always get a record notated, your service medical records (SMRs) get lost, and most often, the veteran didn't report to the medic) you can provide enough detail surrounding the incident for the VA to locate a record of it (this is often in the form of answers to a VA questionnaire) or you can provide the VA with buddy statements from people that knew you when the incident occurred or when the disability manifested and/or you can provide the VA with verbal or written communications home.

Proof of a current diagnosis of your disability. Remember, the VA can't service connect exposure to Agent Orange (AO), asbestos, radiation and etc. The VA can only service connect a condition or disability. Proof of a diagnosis is a doctor statement or medical records. You can request service connection for a disability based on the fact that you have symptoms of a disability and then the VA should provide for an exam to determine if a diagnosis can be offered.

Continuity of symptoms or treatment. The closer the veteran is to the date of their discharge, the easier it is to show that he/she has had treatment for the claimed disability all along or, at a minimun, that he/she has suffered the ongoing symptoms. Otherwise, the veteran must provide the bridge between their service and present day to show that the disability resulted from service and not from the rest of their life. This can be in the form of medical records, photos, statements from family and friends, etc. Buddy Statements are great for this.

Once you have these three things, you are well on your way to getting service connected disability compensation granted by the VA. If any one of these three things is missing, the veteran needs to do some more leg work. Start your claim and then search out the appropriate evidence.

Please remember, as much as it may seem to the contrary, the VA does wish to compensate our veteran's for disabilities resulting from service. They also have to follow the laws that are in place. What we as veteran's and advocates must do is provide the VA with all the evidence or the keys to finding that evidence necessary to grant the claim within the confines of the law.

*hugs* L.

2006-04-20T20:00:00.000-07:00

Definition of Federal Veterans’ Affairs Administration
The Veterans’ Benefits Administration, as established by Congress, is a combination of:

· The Veterans’ Affairs Benefits Administration which consists of disability compensation,
non-service connected pension, insurance veterans, and vocational rehabilitation.
· The Veterans’ Affairs Health Care System which includes the VA Medical Centers,
outpatient clinics, vet centers, domiciliaries, and care facilities.
· The Veterans’ Affairs National Cemetery System
Because the laws covering veterans’ benefits are very complex, veterans are encouraged to get help in applying for their benefits. We recommend that you seek assistance from your county veteran service office, the Oregon Department of veterans’ Affairs or a National Service Organization in your area. These veterans’ advocates can help you obtain all your entitlements.

Compensation Claims
Disability compensation is the monetary benefit payable to a veteran for service connected disabilities. Compensation is paid monthly and is tax free. There is no time limit to when a veteran can file a claim but sooner is always better. It is easier to determine or link disabilities with service if the claim is presented upon release of active duty. The veteran can receive an added benefit for dependents, if they are housebound or in need of regular aid and attendance from another person.
Two ways to file a claim
Informal claim is a written statement from the veteran or their surviving dependents in any form which indicates their desire to file a formal claim for benefits. The veteran or applicant has one year from the date of the informal claim in which to file a formal claim and still receive the earliest possible effective date. The sooner the better is always a good policy to follow up with a formal claim. An informal claim must include the name, SS#, and contact information
Formal claim consists of filling out the appropriate VA form, giving the VA all the information they ask for and providing them with as much information pertaining to your claim as possible.
For compensation claims you will want to submit the following with your formal claim if you have them in your possession 1) a copy of your discharge papers 2) copies of any service medical records you have in your possession 3) any pertinent medical records 4) if the veteran has had a name change please bring the official name change documentation.

Service Connected Compensation Claims You can get service connection in the following ways:

Direct Service Connection
Is established when the disability is either directly caused by military service (such as gunshot wound); or is the result of some incident/event/disease suffered in the service (such as Post Traumatic Stress Disorder due to combat experiences); or was simply diagnosed during the service (such as asthma). The evidence must show that the condition began during service or was the result of some incident/event/disease suffered in service.
Secondary Service Connection
This may be established for a condition which is directly caused by a recognized service connected disability. This includes the “side effects” or complications of treatment for a service connected disability. Examples include a service connected knee condition causing hip problems.
Service Connection by aggravation
A preexisting disability which is aggravated by service can also be granted service connection. The disability must have become permanently worse, and the worsening was not due to the normal progression of the disability. For example: the veteran had knee surgery prior to service, but was found medically qualified for enlistment. During military service, the veteran stared to have knee problems due to the physical stress placed on the knee. The permanent worsening of knee symptoms can be service connected based upon aggravation.
Presumptive Service Connection
Are certain chronic diseases, tropical diseases, prisoner-of-war related diseases, diseases associated with exposure to certain herbicide agents, or diseases specific to radiation exposure can also be found service connected due to law, even if there was not diagnosis of the disease in service. Some conditions must manifest within a given time period, so it is important to be familiar with the law.
1151 Claims
Service connection can be granted for a disease, injury or death; or aggravation of an existing disease or injury when it is the result of having submitted to a VA examination, medical or surgical treatment, hospitalization or the pursuit of a course of vocational rehabilitation and such treatment or vocational rehabilitation is the direct cause of the disability or death.

Introduction to the Author

2006-04-20T19:13:00.000-07:00

I was trying to find a way to assist veteran's on the net. Maybe this will work and maybe it won't but I decided to give it a shot. Let me tell you what I do and why I think I'm qualified to answer questions. I work for a service organization. I am accredited with Vietnam Veteran's of America, Military Order of the Purple Heart, American Red Cross, Veteran's of WWII, Retired Enlisted Association, Non-commissioned Officers' Association, Blinded Veterans' Association, and Jewish War Veterans.

I have found a passion for helping veteran's who have honorably served our country acquire the benefits due to them from the Federal Department of Veterans' Affairs. I treat everyone who sits across my desk as I hope someone treated my great uncle in a time when it was very difficult to get benefits from the Federal VA. It is still a confusing beaurocracy that takes a lot to maneuver through it. I feel blessed to have found this work I enjoy and I know that I touch people's lives every day.

I have found that the greatest injustice is a lack of accurate information and a lack of information dissemination.

The biggest reason that veteran's are turned down for disabilities that they are qualified for is that they don't know what information they need to supply to the VA to allow the VA to grant their claim. Keep in mind that I will also tell you if I think you are barking up an empty tree. Please remember "the VA can't pay you for a missing leg if you still have your leg" in other words, you have to actually have a disability and there comes a point when the law prohibits the VA from giving a veteran any more than what they have already received.

Enough said. I don't want to be discouraging. I want to help you help yourselves. I believe that you can't help yourselves if no one tells you what you need.

My first point to make is please spread the word. If a veteran doesn't ask for benefits, the VA is not going to give them benefits ... if the veteran doesn't know he might be eligible for benefits, why would he/she think to ask? My first goal is to get people to start telling others that there are benefits available out there ...

ASK!

veteran compensation and pension assistance

Long Overdue

Separating disabilities joined in a rating

More VA useful links thanks to Gale

Compensation and Pension Exam

Clear and Unmistakable Error

I.D. Theft

Statutory Disability or Presumptives

"My Answer" Clarification

Stressor Letter Length

C&P Exam

Happy Mother's Day!!

Service Organizations

Types of Service Connection

Helpful links for VA claims

Try Reconsideration First ...

Fantastic Links

PTSD Stressors due to Combat/non-Combat

Buddy Statements

To Appeal or Not to Appeal

Direct Service Connected Compensation

Introduction to the Author