by The Major
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.
The initial rating by the VA Regional office is likely to be off the mark. If fact, you may be smarter to hold back key evidence from the VARO so they will process your claim quickly and reject it, which they are likely to do anyway.
Then introduce the best evidence during a de novo review which is conducted by a senior rating officer called the Decision Review Offer (DRO). Or wait until the Board of Veterans Appeals (BVA) review. During each review step, you must introduce "new evidence," even if the VARO has ignored earlier evidence and failed to acknowledge it.
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 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 lockstep 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, the vet could not be rated higher than 10 per cent.
If 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 likely ignore these 'criteria" and render a 10 per cent rating.
Believe me, it happened to The Major and he saw this coming more than one year ago.
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 you 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 for hypothyroidism (DC 7903):
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 USCAVC publishes all of its rulings on the USCAVC web site. See
http://www.uscavc.gov/ Several legal web sites also have legal briefs on recent rulings.
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 60% disability rating did not need lower level hypothyroid symptoms.
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)]."
