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Monday, February 8, 2010

How to prevail in a VA Claim

by the Major

This article takes an unconventional view of the VA claim process and suggests many Veterans are using the wrong approach. Let's start off by describing how to fail in a VA claim.
  1. Your doctor tells you you have a tumor in your right ear. The tumor is causing severe hearing loss and vertigo. You are certain that your exposure to X-ray equipment while you worked as an X-Ray technician in the Air Force caused the tumor.
  2. You visit a Disabled Veteran Organization and talk to a service officer who assures you you will be declared disabled by the VA. You briefly fill out a VA Form 21-4138 and VA Form 21-526 with a copy of your DD Form 214.


    Six months later you get a letter from the VA indicating sympathy for you condition but advising you that it is not service connected. You scratch your head and wonder where to go next.

    The rest of the article describes how to appeal the denial. To avoid further denials, you must do a lot of homework. 
  3. First, you need a copy of your military health records before you even submit a claim. If you don't have a copy, you can request them through the VA regional Office (VARO). It may take several months to get them.
  4. If you are working, consider your appeal to be a part time job. You should spend at least two or three weekends preparing for the appeal and may have to schedule appointments with your primary care physician and specialists.


    Take ownership of the appeal. You will be disappointed if you think that overworked vet service officer will pull your appeal out of the fire.
  5. If you are retired or unemployed, consider the VA appeal to be a full time job. If you need assistance from a veteran's organization, Rightardia suggests the local state veterans' service office. State veteran's service officers are often better trained and have more experience than some of the private organizations that help vets.
  6. You need to have a good team of doctors, preferably these are people who have limited experience with the VA. Your doctor's, in particular, any specialists should be board certified. Most VA doctors are not board certified and some are not even licensed in the state. The VA even uses Physicians Assistants (PA) for Compensation and Pension (C&P) physicals.
  7. Interview the doctors and find out if they are willing to help you with the claim. (If not, find another doctor.) Some may be under contract with the VA and may not want to assist. Other MDs may looks at the VA Disability process as something simply for the most needy Americans. There are, in fact, special procedures for people who are losing homes, totally disabled and are unemployed. This does not preclude someone in better circumstances from filing a a valid claim.
  8. Take you military records to you doctor and have them perform a records review. Also ask them if they will write a letter in support of you claim. You can even draft the letter and email it or put it on a CD so the doctor can edit the letter. It may take several weeks before you get the letter back from the doctor. Most of the doctors will be happy to assist if you have a bona fide claim. Indicate in your letter to the VA that a records review was performed.
  9. A valid claim is a key issue because one doctor The Major consulted with indicated that 80 per cent of the VA claims are fraudulent. If you are one of these fraudsters, don't waste your time. You cannot makes a silk purse out of a sow's ear with the VA. Don't waste your time or the government's time if you know your claim is bogus.
  10. Distinguish between primary and secondary conditions. Suppose your doctor has identified an acoustic neuroma during an MRI that is affecting you hearing. The acoustic neuroma is the primary condition. The hearing loss in the secondary. In this example, you may need a letter both from an oncologist about the acoustic neuroma and another letter from an Otolaryngologist that explains the extent of you hearing loss.
  11. Also take a close looks at Veterans Benefits Administration References such as the Web Automated Reference Material System (WARMS) 38 CFR - Book C, Schedule for Rating Disabilities at http://www.warms.vba.va.gov/bookc.html
click graphic to enlarge
Here is an excerpt  form 38 CFR - Book C on the endocrine system: 

The Endocrine System

§4.119 Schedule of ratings-endocrine system.
7903 Hypothyroidism

Cold intolerance, muscular weakness, cardiovascular involvement,
mental disturbance (dementia, slowing of thought, depression),
bradycardia (less than 60 beats per minute), and sleepiness 100 per cent
Muscular weakness, mental disturbance, and weight gain     60 per cent
Fatigability, constipation, and mental sluggishness                30 per cent
Fatigability, or; continuous medication required for control   10 per cent
Above are the criteria for hypothyroidism. You can even show these criteria to your endocrinologist and ask him or her to make an evaluation.
  1. Show how your military service caused the condition. In other words make a clear case of cause and effect to show service connection. There are also some hidden conditions that may have started in the Armed Services but were not apparent until several years latter.


    For example, suppose a sergeant worked in a hospital pharmacy lab and was exposed to all sorts of toxic chemistry while he worked there and even developed severe allergies in the lab that were documented in an old medical report. Many years later the soldier developed cancer.
  2. Copy pages from you military records that documents the condition that you are claiming in the disability. Use these records as attachments in the claim. Use these attachments to show you had adverse symptoms like high blood pressure, malaise, chronic infections, allergies and so forth while you were in the Armed Services.
  3. Use a standard format to make you case. The Major used a standard military staff summary sheet:


    1. Executive summary: A one or two paragraph top level statement about the claim.

    2. Facts bearing upon the claim: Joe Friday made famous the line "My name is Friday—I'm a cop," (the latter part later in the introductory narration of every TV episode of Dragnet. Supposedly, he also made the line, "Just the facts, ma'am," Describe the major facts in your claim. 

    Do not introduce any opinion here. Also show an cause and effect that is clear. Connect your medical conditions to your military service. Use such terms as my medical condition was more likely than not a result of my assignment in the pharmacy lab where I was exposed to Agent Blue. Also, Use the term probability rather than possibility because probability suggests a stronger outcome.


    3. Discussion: Weave the fabric of your case her. Introduce the opinions of your medical doctor's here. Attack the VA doctor's opinion here as well if the VA argument against your claim is based on few facts. 

    Refer to your service medical records her and list them as attachments. For Example, My hearing profile changed because I started to experience a high frequency hearing loss after being a crew chief on a C-5 aircraft on 11 Dec 1988 when I visited the Pope AFB, NC clinic (atch 8).
    4. Conclusions: The conclusions should relate back to the key facts of your claim, your doctor's letters and include a strong refutation of the VA doctor's opinion, if necessary.
    5. Recommendation: Have the VA reconsider this claim based on additional evidence provided. Ask for an Award such a 30 per cent rating for hypothyroidism. If you don't ask for a rating, you will probably not get it.

    If you can reclama the VA claim denial within 60 days, you can file a Notice of  Disagreement with the local VARO. If you need more time, you can file an appeal to the Board of Veteran's Appeals (BVA). You have one year to file a VA form 9 with the BVA.
Sign the statement after certifying this information is accurate and true to the best of your ability. List all of the attachments and enclose them with the letter. Attachments would include letters from doctors and any pertinent military medical records.

Rightardia firmly suggests you have a better chance with the VA when a Democratic administration is in power than the Republican. Although the GOP gives veterans a lot of lip service, their voting records on veteran's bills are less impressive than Democrats. When Barack Obama became president, the VA was behind by one million claims.
    If you need more information to help with your claim, we suggest three excellent books by John D. Roche, who was a VA Claims Officer for 16 years. See http://www.potomacbooksinc.com/Books/AuthorDetail.aspx?id=1181

    We also suggest you try to understand the basic VA organization. You first send your claims and to the local administrative offices called VARO. The local hospital is called the the VA Medical Center (VAMC). An administrative level above the VARO is called the Appeals Management Center (AMC).

    The AMC works on appeals that have been remanded back to the VARO by the BVA. The AMC works with the both the VARO and the VAMC to expedite a remand. When a case is remanded, this indicates the BVA has sided with the veteran on one or more issues in the claim. The AMC and VARO have to fix Clear and Unmistakable Errors (CUE).

    By taking ownership of your claim, you have a much greater of probability of success. Good luck and contact The Major at Rightardia if you have any questions.
     
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