Tuesday, August 18, 2009

How to win a VA appeal

The Major got good news from the Board of Veterans Appeals (BVA) today. He prevailed in an eight year claim against the Veterans Administration (VA) that appeared to be heading to Court of Appeals for Veterans Claims in Washington DC.

Rightardia (RI) interviewed The Major (MAJ) about his long ordeal.

RI: What kind of advice would you give other veterans that are filing claims with the VA?

MAJ: Do it now! The Republicans and their appointees were replaced by Democrats in 2009. You have a better chance of getting justice when Democrats are running the VA. The Republicans support the active duty military because they usually start a war when a Republican is president.

George W. Bush even thought he needed to earn his spurs as a commander in chief by starting a the Iraq War. However, the GOP is less concerned about vets and many vet organizations like the Iraq and Afghanistan veterans actually supported Obama during the election.

RI: How did you do to get started with the claim?

The Department of Veteran Affairs has advice and a document list at need your DD form 214 military record of service, your marriage certificate (if currently married), divorce papers or death certificate for all prior marriages of either the veteran or spouse/widow(er), birth certificates for all children being claimed as dependants between 18 &23, and doctor's statement (s)

These doctor's statements should make reference to medical findings, treatment, diagnosis, and prognosis. A widow(er): Should submit veteran's death certificate instead of a doctor's statement (s). You should also submit the Social Security number for each family member and income data for each family member. You may be asked for current value of savings accounts, real estate (excluding home), or non-essential personal property.

You should submit your initial claim to any VA office or medical center on VA Form 21-256. You can ask for help from a Veteran's Service Officer (VSO) from the State Veterans Affair Office, Amvets, VFW, or the American Legion.

The Major recommends checking around on the reputation of the different organizations. He had three different VSOs during the claim's process and one was good, one was bad and one was fugli. He actually had to 'fire' the fugli one.

A veteran has one year after leaving active duty to file a claim. The Major recommends all vets do this when they leave the service because they may have hidden medical conditions. It also important that the veterans leave the service with a copy of his or her medical records.

These records will be essential in the claim. The major also recommends the the vet does the paperwork themselves and have the VSO review it. Unless you have limited writing skills, don't give the VSO you power of attorney. One of our VSOs (the fugli one) was submitting claim documents in The Major's name without The Major's knowledge.

RI: You told us that your wife was involved with the claim.

MAJ: Yes, she contacted a congressional office after the claim had been dragging on for five years and we got some good advice from a congressional staffer. She also kept close track of all of the dates and times we visited the VA and related offices. Her recall of dates was very helpful when I wrote the appeal. She also reviewed all of the documents I submitted to the VA and the second set of eyes helped a lot.

RI: What would you recommend the vet do when he or she submits the initial claim on the VA Form 21-256?

MAJ: Vets should have a time-line that show how the condition progressed in the medical records. It should be documented with attachments from the medical records. The vet should try to show cause and effect.

In my case, I developed a serious endocrine problems while I was in the Air Force while working in a industrial photo lab. I was exposed to all sorts of chemicals in an era before OSHA. An allergy clinic documented the symptoms I was experiencing in the the photo lab.

The duty in the photo lab was the causal factor. I then used my medical records to document the numerous visits to the base hospitals and clinics that ensued afterward.

RI: Why are civilian doctors important?

MAJ: The VA will not accept lay testimony at all. You need one or more letters from a medical doctor that agrees that your medical condition was caused 'more likely than not' while you were on active duty. Use a board certified doctor whenever possible.
I suggest you try to find a doctor that is a 'VA virgin.' This would be a doctor who has never worked for the VA in any capacity. I talked to different doctors and discovered that most doctors who had formerly worked for the VA were skeptical and unhelpful. Most of these doctors do not desire to 'rock the VA boat.'

One of 'these former VA' neurologists I consulted with on my condition said it was very common and he doesn't even tell his patients they had this particular problem when he noticed it during an MRI. My condition is actually a rare disease that occurs in 1:200,000 people. This neurologist also suggested I was born with the condition.

My endocrinologist said had I been born this way I would have been of short stature and unable to have any children. I am more than six feet tall and have three children.

I knew the neurologist was a misinformed because the endocrine problem I had could lead to death if my endocrinologist had not diagnosed it. My endocrinologist laughed when I discussed this neurologist's comments.

Another doctor who was a former USN physician and an occupational specialist looked at a draft document I worked on and suggested it was more or less a lost cause and the document needed more polish. He then asked if a had post traumatic stress disorder because that is what he liked to treat.He also tried to talk me down regarding the percentage of disability that I was asking for.

My condition which was an endocrine condition often masquerades itself as a cardiac condition because of low pulse. A Doctor of Osteopathy assured me my heart was OK, but that I needed to read a book to prepare for the end of my life. About a year later, I discovered I really had an endocrine problem.

I also got a second opinion from another endocrinologist who provides services to the VA. He said my hidden endocrine condition would be hard to prove because it started many years ago. He didn't give me much hope and was very cynical.

All four of these doctors,who had worked for or provided services to the VA, were wrong in some respect. My appeal to the VA was successful so don't let these bastards get you down!
RI: Do you have any other advice?

MAJ: if you have limited writing skills, get someone like a legal aide to help you right the original claim and any appeals. Have your SVO and congressional staffers review the documentation before you submit it. Document, document and document. Show a time-line and cause and effect. Write a draft letter for you doctor and email him or give him a CD with the word processing document so the doctor can edit it. The VA is looking for certain terminology like 'more likely than not' occurred on active duty. Use those buzz words.

In my case I mentioned the endocrine problem to the cardiologist who was treating me and he was flabbergasted. He had only seen my condition in a text book. He also offered to write a letter on my behalf. I didn't even have to ask him to write it. So my appeals had two letters from board certified doctors in it. Both letters were mentioned prominently in the BVA concurrence with my appeal.

RI: How do you avoid a remand?

MAJ: Yes, get a civilian doctor to perform a physical and also have the doctor review you military medical records. Indicate the physical and the medical records review was completed by a civilian doctor in the initial claim and any appeal. This will prevent the BVA from remanding the appeal back to the hospital if the hospital forgets to give you a physical or a records review.

If you have done your home work, the appeal before a judge will be straight forward. Bring your spouse to the hearing. He or she may be able to add details you neglected to mention. I will not wish any veteran good luck because a VA appeal is more about writing skills and documenting your disability than luck. Praying is of no benefit either, but you are welcome to try that if you are religious.

By the way the documentation you submit to the BVA must be used as is and without modification if you appeal to Court of Appeals for Veterans Claims in Washington DC. This means documentation you submit to the BVA must be complete and accurate. Of interest nearly 80 per cent of the cases that are reviewed by the Court of Appeals are overturned or remanded.

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