Sunday, May 23, 2010

The VA is a self-licking ice cream cone

by The Major 
 until you apply for a VA disability

Rightardia updated this article on Jan. 27, 2011. 

The Veteran's Administration (VA)  is not your friend. I have  heard this echoed by people within  and associated with the VA. The VA is actually a self licking bureaucracy that makes work for itself.

If the VA were to provide more objective disability ratings earlier in the claims process, the number of appeals would be substantially reduced. Because the VA institutionally low balls veterans, the veteran is forced into a circular appeals process that takes four to 10 years or longer.

Rightardia is not and has never been an anti-government site. We think that the average American can expect more assistance form the government than they can from private enterprise.

But we We feel obligated to advise other veterans that VA criticism is well-deserved. The VA has corrupted the rating process and has been institutionally  disregarding a precedent rulings from  the Court of Appeals for Veteran's Claims (USCAVC).

If the VA were to rate a Veteran for hypothyroidism, the rating officer would start at the bottom of the rating scale and work up in a lock-step fashion.

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
Muscular weakness, mental disturbance, and weight gain--60
Fatigability, constipation, and mental sluggishness--30
Fatigability, or; continuous medication required for control--10

For example if a vet did not produce medical evidence that he or she was constipated, they could not be rated higher than 10 per cent. I

f the vet had bradycardia, an irregular heart beat and other cardiac conditions due to the hypothyroidism and sleep problems related to sleep apnea and insomnia, the VA would ignore these 'criteria" and render a 10 per cent rating.

The VA likes to award the 10 per cent and 0 per cent ratings. In both cases, the Vet is now eligible for services at veteran's hospitals and clinics. He or she can also get service-connected medications for the specific condition. 

These 'lowball' awards provide more clients to the VA at low cost. Essentially, the VA is saying, 'you're OK now because your are on medication.'
In order for a vet to be rated 100 per cent disabled for hypothyroidism, the VA would need to see  every one of the following conditions:
Fatigability, require continuous medication, be constipated, have mental sluggishness, muscular weakness,  mental disturbance, weight gain, cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 
This is why only 8.4 per cent of veterans are 100 per cent disabled. Although the VA rates this way, the Court of of Appeals for Veteran's Claims (USCAVC), has stated the VA is not following the law. 

A three judge panel released a precedent setting ruling that the VA is ignoring: See UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS, NO . 07-2728, DIANNE C. TATUM , APPELLANT , (Argued July 15, 2009 Decided September 28, 2009). 
Any veteran, who is writing a Notice of Disagreement or who has appealed to Board of Veteran Appeals (BVA)  or the USCAVC, needs to be familiar with this ruling or rulings more closely related to their particular disability.
The BVA agreed with Ms. Tatum entitlement to a higher disability rating because it found that she that the constipation example was irrelevant and that a 30% disability rating was permitted only if all three symptoms were present.
Ms. Tatum argued that the Board erred in concluding that all three symptoms were necessary for the award of a 30% disability rating and that such a conclusion eviscerates the meaning of 38 C.F.R. § 4.7 (2009), which states:

"Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating." The VA Secretary disputed this argument.
The USCAVC concluded a veteran could potentially establish all of the criteria required for either a 30% or 60% disability rating, without establishing any of the criteria for a lesser disability rating.

The USCAVC considers the laundry lists in the 38 CFR to be examples rather than criteria. In addition, the higher level examples are inclusive of the lower disability rating examples.
38 C.F.R. § 4.21 (2009), is federal regulation which explains that "it is not expected. . . that all cases will show all the findings specified [in an applicable DC (Rating category)]."

However, there are exceptions. If you are claiming diabetes mellitus, a common condition, you must meet all of the criteria in that particular disability code (DC). 

We encourage vets to look closely at 38 CFR, part C to determine exactly what disability you have. Do you have polyuria/polydipsia or diabetes inisipidus .

The later is a permanent condition, the former temporary. Get a diagnosis form you doctor in a letter or progress notes. Show you doctor the 28 CFR, Part C. mMny veteran conditions aren't even described in this document.
Because the Board concluded, erroneously, that all three criteria were necessary to establish entitlement to a 30% disability rating, it failed to consider whether the effects of Ms. Tatum's disability warranted a 30% disability rating under § 4.7. 38 C.F.R. § 3.103(a) (2009) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law").

In this instance, ihe Board failed to explain why a 60% disability rating was not warranted.

See Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005) (stating that "the Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision." (citing Brannon v. West, 12 Vet.App. 32, 34 (1998))); Urban v. Principi, 18 Vet.App. 143, 145 (2004) (per curiam) (recognizing the Board's obligation to consider "all reasonably raised matters regarding the issue on appeal"), aff'd, 128 F. App'x 124 (Fed. Cir. 2005) (per curiam); Schafrath, supra. 

The court also indicated the VA is required to refute any evidence the Veteran has provided for a higher rating. For the foregoing reasons, the court set aside the 30% disability rating for hypothyroidism is SET ASIDE, and the matter was REMANDED for the determination of a higher disability rating. 

Conclusions: Because the VA institutionally low balls veterans, the appeals process is prolonged with multiple appeals that are remanded back to the local VA Regional Office (VARO) or the Appeals Management Center (AMC).
If the VAROs provided more appropriate ratings that reflected court guidance, the number of appeals and backlogs would be reduced. of interest, 70 to 80 per cent of the cases that are accepted by the USCAVC are remanded which indicates VA claims process is seriously flawed.
The VA primarily often uses medical staff with minimal qualifications such as physicians and nursing assistants.

The Veteran should use board certified specialists to counter the conclusions of VA clinicians in the physical examinations.
If you want justice for your claim, Reguest a de novo review by a Decision Review Officer (DR). You now only have 30 days to do this from the date of the VA regional Officer ruling. Take a letter to you veteran representative or to the VA Service Center.

Reguest an interview with the DRO as part of the appeleate process. This will require the VARO to lay out the case before you.

If you have made your cases, the DRO will increase your ratings.

Still dissatisfied after the DRO review?

Move the claims to the Board of Veterans Appeals (BVA) as soon as possible. The BVA seesthe forest through the trees and consider evidence from Board certified physicians over the VARO clinicians and also consider the veterans credibility on the claim.

The BVA judges are less concerned about the bureaucratic circle jerk that goes on in black hole the VA. The BVA and US Court of Veterans Appeals (USCAVC) don't overloook errors and the limited documentation the VARO and VA Medical Center (VAMC) provide on the claim.

The BVA overturns 73 per cent of the VARO rulings. The USCAVC overturns 80 per cent of the claims they receive.

The US CAVC is generally the last step in the appeal process and you should try to find a lawyer to represent you in the DC court. Many attorneys do this "pro bono." 

The VA likes the system the way it is. It is slow and good for job security. Backlogs mean the VA will have to hire more legions of claims workers.

The big loser in this bloated system in the veteran.

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