VA Communication

Veterans: VA puts another bridge between itself and the veteran in communication, “don’t call me, I’ll call you”. Communication between the VA, the veteran, and/or the veteran’s representative has always been a problem. The problem is exacerbated by the longtime it takes to adjudicate a decision and go through the appeal process which may take up to several years. The VA, in order to carry out its goal to be more efficient, has put up barriers of communication between itself and the veterans and/or their representatives. It’s difficult to speak with at all, a rating specialist, a Decision Review Officer, or a judge throughout the whole process; the ones who are actually making decisions.

As technology has developed, the VA has been able to put in its internal system where a veteran’s claim is at, at any particular time. That is, if documents are properly scanned into the system. It has always been difficult to tell where a claim is in line with others claims until a claim is actually picked up and worked on by an adjudicator. When a veteran calls the VA’s 800 number in order to find out the status of his claim, the 800 number is only as good as what’s been entered into the system. If the veteran has signed up for eBenefits in order to check on the status of the claim himself, the veteran is faced with the same problem.

Over the years at least the veteran had the benefit of the 800 number going to the local Regional Office of his own state. Now the 800 number goes to a Regional Office which, on many occasions, is not the veteran’s own Regional Office in the state in which is claim is being adjudicated. If there was a problem with the veteran’s claim, at least the veteran was able to attempt to resolve the problem in his local Regional Office. Now veterans are faced with an additional layer of a communication dilemma. All documents with the VA are sent to Newnan, GA in the east and to Janesville, WI for veterans’ claims in the west. As you can expect, mistakes are being made, documents are being lost, scanning is only as good as the person who is scanning the files, and the training he receives. The labeling of documents correctly creates additional problems for the adjudicator, the veteran and his representative. It also creates additional problems for the veteran because he can’t go to his local Regional Office because the problem cannot be corrected at his local Regional Office.

The VA’s goal to expedite claims in a more efficient manner does have its pitfalls. It enforces the VA’s unfriendly policy of communication by putting another layer in the communication gap, “don’t call me, I’ll call you.” It seems like the communication issue is another step away from being resolved in behalf of veterans. Veterans, their representatives and the VA need to look for answers to the problem.

Disability Benefits Questionnaire (DBQ)

Understandably, it is difficult for veterans to trust the sincerity of the VA benefits program for some veterans. Especially veterans that have been fighting their claims for years and end up in the same place: denied; no new and material evidence. It’s actually Congress’ intent to help you by making it easier for you to prove your claim. Every time your claim is denied because it is not timely appealed, you will always be denied again if there is no new and material evidence. New and material evidence may mean a medical opinion. Most physicians don’t know how to write medical opinions for veterans; at the same time, most veterans don’t know how to write their own opinions. Therefore, in order to assist with that problem the VA has developed DBQ’s to cover almost every disability. If your physician fills out the DBQ in a manner to prove that your disability occurred, was caused or aggravated by the military or is secondary to a service connected disability, then a DBQ completed and signed by your treating physician is a helpful tool. It’s also a helpful tool for disabilities that are alleged to have been aggravated beyond the normal progression of the medical condition while in the military, and for injuries which occur during medical treatment and/or rehabilitation at the VA.

What you must know as a veteran is that you need to give your treating physician some credibility. Therefore, he would need to review relevant portions of your military personnel and treatment records, civilian medical treatment records, unit records, buddy statements and/or civilian continuity statements; anything that is relevant to you. You may have problems with your physician completing the DBQ’s. Even more disappointing, your VA physicians may not be willing to complete the DBQ’s at all. Nevertheless, you as a veteran need to know what needs to be done in your behalf. Many times if you can’t find a physician to help you, attorneys and/or non-attorneys may be able to line up a physician to review your file for an opinion. There is a cost in obtaining medical records and opinions while you are receiving help from a representative. Therefore, you might want to look at what you’re capable of doing yourself.

You will find the DBQ’s at the va.gov website: www.va.gov; click on ***. You can download or find a friend or loved one to download it and print it for you in your behalf. DBQ’s are especially helpful for those who have problems with obtaining medical opinions. Give the VA credit; they are trying to find ways to assist you with your claims. The VA realizes what you’ve went through in behalf of your country.

The Upcoming Veterans Square Where Freedom Will Ring

VFFR will relocate at a new location which will be called Veterans Square at 555 and Veto Road in Little Hocking, OH, a church building that was purchased by David Huffman after the church was not able to financially sustain itself. Veterans Square will feature the old church bell which will be named, Freedom Bell. A sign outside Veterans Square will say, “Ring the Freedom Bell for freedom for all inside”.

Inside, VFFR will be carryout its goals of advocating for all veterans. There will be the sale of local military and retirement memorabilia, and a small convenience store to cover local needs. Huffman plans exercise and martial arts activities. A grand opening event will occur in the near future.

Since Huffman is an advocate for veterans organizations to assist each other, a sign inside will say, “All veterans’ organizations are created equal” to emphasize the need to be supportive of each other.

Representing Yourself with the VA

VFFR informed you about what to look for when hiring an attorney or other representative for a fee; and/or a traditional veterans’ or state representative for free on its website: www.vets4fullrepresentation.com. VFFR informed you that there are various inadequacies of representation issues, conflict of interest issues and ethical dilemmas, as well as the issue of representing you as a part of a person rather than the whole person with your claim by various representatives.

Another option is to represent yourself. In order to represent yourself you need to start with your tools. The most informative book in order to assist you is the Veteran’s Benefits Manual which is two volumes coupled with a disc providing you with forms, rules, rating schedules, regulations, and the M 21-1’s which are the internal rules for the VA itself. You can get it from LexisNexis on their website under Military and Veterans Law www.lexisnexis.com or call (800) 833-9844. An additional source of information is the VA website: www.va.gov. Throughout va.gov you can find answers to most of your questions. Also The National Organization of Veterans Advocates (NOVA) as well as veterans organizations can provide you with additional information. Check out their websites or you can visit a local veterans post such as the American legion, VFW, DAV and others.

It’s best to educate yourself as much as possible so you don’t feel you’re over your head with bureaucracy. Do realize from the start that your claims may take a year or two for there to be a decision, and an additional number of years for your claims to be resolved. Hiring one of the various kinds of veterans’ representatives probably will not speed things up for you; however, it may increase your chances for ultimate success in most cases. In order to be the most successful you need to work all your disability cards in order to receive the best outcome. Representing yourself may limit your ability to know what your possibilities are; therefore, it is recommended that even if you do represent yourself that you consult with a representative that does know the VA system.

You need to be aware of the appeals process on all claims and stay on top of it. Failure to timely appeal could adversely affect your claim. The purpose of an appeal after a decision is not to prove a disability claim or injury, but to continue the process so you have more time to provide additional evidence. Claims are usually proven by linking an injury or disease that that was incurred or aggravated in the military beyond the normal scope of the disability; or caused by the military, or is secondary to another injury or disease that is service connected.

Sometimes veterans are provided a presumption that certain diseases were caused by the military without any more proof as well. Also in certain cases veterans can receive service connection for injuries that occur while receiving VA treatment or education when the veteran can prove a certain degree of carelessness by the VA. If there’s negligence, a Tort claim (personal injury claim) can be filed against the VA as well. You most likely will need the help of an attorney if there’s a Tort claim involved.

You need to know if there’s a plausible basis for VA claim, the VA will schedule you for a compensation exam for purposes of determining service connection and how much. Ask for copies of the examinations. If you disagree with the examination you may need to provide your own medical opinion to counter the opinion of the VA examiner and prove the VA examination was inadequate whether or not the examination is physical or psychological. You will always be turned down if you don’t have a diagnosis of the condition you allege. If you have a physical or psychological claim it would be in your best interest to receive treatment and a confirmed diagnosis.

Obtaining medical and psychiatric opinions and medical records may be more difficult for you without assistance and may affect your decision on whether or not to represent yourself. By the way if you give the VA your history of treatment, the VA is under a “duty to assist” you in obtaining those records. The VA has a “duty to assist” you with obtaining important unit records and try to locate the source of injuries or stressors in your military records as well. Sometimes you can help yourself with providing buddy statements from others in your unit and continuity of symptom statements from your family, friends, and coworkers that you knew through the years. Also the Veterans Benefits Manual will tell you how to obtain some of your own important records from the military instead of waiting for the VA to find them for you. Since you have an emotional relationship with your claim you may not want to wait for the VA to send for you important records to allow you to link your current condition to your service connected disability.

Sometimes if you’re capable, you can draft opinions for your medical provider, but it may not be as easy as you think. Magic words need to be used like, “more likely than not”, “at least as likely as not” rather than less likely than not, or possibly. Your medical provider or examiner has to indicate that there is at least a 50-50 chance. Also when you do submit a medical or psychiatric opinion, your examiner needs to indicate he reviewed the relevant portions of the claims file; otherwise, the opinion will not have much weight. You may find that many providers are not willing to provide and opinion or will not willing or able to use the magic words to service connect you disabilities or become evidence for an increase. If you’re stuck on obtaining a medical opinion you may need assistance from a skilled representative. Otherwise you will be turned down forever each time you reopen your claim base on lack of “New and Material Evidence”. Be aware of the ratings schedule in each of your various claims. The ratings schedule will inform you how the VA has rated your various claims. If you disagree with the VA’s findings concerning your symptoms of course you need to prove the examination was inadequate, the examiner didn’t read the medical records, or you need to obtain new medical evidence.

If you feel confident representing yourself, go for it. It could save you one-fifth of the back money you would receive after an appeal when you hire an attorney or paid representative. However if there are any inadequacy problems with representation it will be you. You can’t blame you representative without blaming yourself. You need to consider this: a veteran knows his claim better than anyone and the most zealous person in his VA representation; at the same time, a veteran could be his own worst enemy by not having the proper advice. Never the less realize that representation of yourself is another option for you. The number of issues and the complexity of your claims may weigh your decision. If your claim is a simple one or two issue claim, you may not need representation at all vs a complex claim.

When you read the Veterans Benefits Manual you will find many other benefits you are entitled to as well other than just compensation: it never hurts to learn. Moreover continue to talk to other veterans. By the way, another resource is the Government Printing Office. Through the GPO you can obtain all of the VA rules and regulations conserving veterans’ benefits and the rules the VA uses for governing itself. In addition read all of the information provided to you that’s on the VFFR website www.vets4fullrepresentation.com. The better informed you are the better choices you can make in your behalf.

Good luck with your choices.

Attorneys Do It In Their Brief? VA Hearing verses A Brief

Veterans have a right to a hearing in front of a Decision Review Officer after a Notice of Disagreement is filed, and in front of a Veterans Law Judge after a Form 9 is filed after the second denial.   Although decisions clearly explain the right to a hearing, it is not always clear to the veteran. Historically although not always, traditional representatives have at times discouraged a veteran from appealing a claim and/or having a hearing. Also sometimes the one who could actually do a hearing is not the person the veteran has been personally speaking with which creates other problems. Whether a veteran representative is willing to have a hearing for the veteran may be a skills issue, a matter of convenience, or cost or it just might make sense. Some representatives such as attorneys prefer hearings others prefer to do it in their briefs.

 

When a claim has been adjudicated from the Regional Office to the Board of Veterans’ Appeals and then to the Court of Appeals for Veterans’ Claims (CAVC); of course, there is no hearing unless the attorney does the hearing at the court. Normally at the CAVC, the attorney does do it in his brief.   If there’s a Clear and Unmistakable Error or a matter of law, it makes more sense for an attorney to do it in his brief as well. A hearing would be a waste of time, and ultimately would put additional cost on the veteran. Other than those clear circumstances, a veteran needs to know when it’s in his best interest to have a hearing.   The veteran doesn’t always know the difference. The truth be said sometimes an attorney or other representative does not do hearings as a result of his own skills or mindset, convenience, efficiency of time or reasons of cost rather than what’s in the best interest of the veteran.

 

Also, there is a school of decision makers and representatives that do believe a hearing is a waste of time. They believe that if the decision maker would not be able to find it in the records, it doesn’t matter. Other representatives with a mindset like mine believe hearings are very important. They believe the adequacy of a VA examination may not be able to be challenged without a veteran being able to testify why the veteran believes the examination to be inadequate. The veteran’s testimony or the testimony of his witness can clear up any gray areas or conflicts in the medical or psychiatric records at a hearing as well. Witnesses can help the decision maker with finding which expert should be believed, the veteran’s expert witness or the VA examiner.   Moreover, when the rating schedule is subjective for any disability, testimony can assist the decision maker with interrupting subjective complaints in the veteran’s favor.

 

Over the years, when I was representing veterans myself, I usually requested hearings when I appealed the veteran’s claim. When the veterans hearing was actually scheduled then I would advise a veteran if it was in his best interest to not have the hearing considering time, cost, the possibility of being successful without a hearing as well as other factors. If the possibility that the claim could be resolved in the brief the veteran would be advised the hearing was not necessary.

 

Note, scheduling a hearing does put the VA in the position to pick up the file at a time known to the representative, so the representative can prepare at the same time as the VA.

 

Sometimes it is not necessary for a veteran to have a hearing and a statement in support of claim or other evidence could be sufficient in lieu of a hearing. Likewise, there are some issues that are not subjective in the ratings schedule but objective for interpretation, such as hearing loss, in these circumstances a hearing would not be warranted except for a veteran to testify that his hearing loss has worsened, and that could be done in a statement in support of claim. There are various issues involving unit records, verifying stressors, and the reconstruction of records which may influence a veteran’s representative on whether or not to have a hearing as well.

 

What is most important to a veteran is that a decision on whether or not to have a hearing should depend upon whether or not it’s in the veteran’s best interest to have the hearing. For you as a veteran need to know, that you do have a right to a hearing.

 

Is it better for you to have a VA hearing or is it better for your attorney or representative to do it in his brief?

VA Evidence Intake Centers

The VA is going paperless; good or bad. There are now two VA Evidence Intake Centers, one in Newnan, GA and the other in Janesville, WI. All appeals and any evidence submitted to the VA must go to these Evidence Intake Centers rather than the local Regional Offices (RO) around the country no matter what the evidence is; medical records, buddy or laymen statements, military records, anything having to do with a veteran’s claim get sent to the Evidence Intake Centers. Going paperless may seem like a good idea for expediency. However, there are some potential problems and pitfalls starting with more vulnerability for veterans on the issue of privacy as well as computer errors which could result in a catastrophe for thousands and thousands of veterans.

There’s also the issue of sending documents to just theses locations to be scanned and uploaded. What if the scanners are behind or if for some reason, the document does not get scanned: accidentally or otherwise misplaced. What about the many duplicate documents in the claims file? Is the paperless program is going to be able to figure out on its own if the document’s already been scanned into the system? Moreover, a paperless program is only worth what is scanned in the system. If a document is mischaracterized, the document can be more difficult to find than if there was a paper claims file. I’m not sure where the paperless claims file program is going in behalf of veterans, but I do know this, it sure is scary.

Paperless VA Claims Files

Are paperless claims files good for the veteran’s claims process? Many Veterans Affairs Regional Offices have been changing their claims files into a paperless file. This may appear to be quicker and faster especially if attorneys, at some point, can push a few buttons after a release of information is submitted. However, a paperless file is only as good as those who enter the information. Sometimes a paperless file could be a decision maker’s nightmare. It is difficult enough to find information in a 600 page paper file. In a paperless file, what if the words describing the document entered into the file are entered wrong?

For instance, I submitted a psychiatric Disability Benefits Questionnaire (DBQ) from a non-VA examiner in behalf of a veteran. This DBQ was entered into the VA’s computer system as a VA compensation examination. The report accompanying the DBQ was entered into the VA’s computer system as medical records with no explanation. Since I was at a VA Regional Office when a DRO tried to find these documents; only because I was able to remember specific dates, was the DRO able to find these two documents.

Obviously just the simple entering of keywords to find documents requires employees’ training and employees that pay attention to what they are doing.

Issue – Veteran’s Medical Records

The Veteran’s medical records are crucial and necessary in substantiating a claim for disability benefits; however, obtaining copies of these records can be arduous and time-consuming as well as costly. There appears to be little consistency among the VA medical facilities in handling requests for copies of a Veteran’s medical records. Is the request processed under the Privacy Act or under the Freedom of Information (FOIA) Act?  Is the Veteran himself requesting his records? Is the Veteran’s Representative requesting his client records on behalf of his client? Is there a difference? Is there a fee or are they processed without charge? 

Some VA medical facilities provide the copies of the Veteran’s medical records at no charge. Other will provide copies to the Veteran himself without charge, but not to the Veteran’s Representative. Some facilities charge a “per page” fee for copies ($0.15 after the 1st 100 pages), some charge a flat rate for a CDROM of the records ($10-$25) and some charge a flat rate for an “abstract”, a summary of the pertinent data contained in the records ($10-$15). However, the most disconcerting interpretation of the regulations (38 C.F.R. §1.526 i(1) & (2) or 38 C.F.R. §1.577 f &g),  by some of the facilities appears to combine all of these different methods of billing into one large fee. They charge per page to copy the medical records to a CDROM, and then assess the flat rate for the “cost” of the CDROM. One facility even includes the fee for an “Abstract” in addition to the “per page” fee and the CDROM fee.

The medical records are an essential component in substantiating a Veteran’s claim for benefits. In addition it permits the Veteran’s Representative to determine in a timely fashion whether specific medical and or psychological opinions need to be obtained.  To avoid possibly jeopardizing the Veteran’s claims, the Veteran’s Representative is compelled to pay these excessive fees in order to obtain the records promptly. It’s important to remember that ultimately these costs are passed on and paid by the Veteran out of any favorable award he may receive.

The interpretation of and the rules promulgated from these regulations need to be standardized and followed consistently by all VA medical facilities.  This would eliminate billing irregularities and inconsistencies among the VA medical facilities.  After all, the VA claims process is non-adversarial, with the Veterans Administration and the Veteran’s Representative sharing the same goal of providing the veteran the necessary care, treatment and benefits of which he is entitled.

Cancers, Presumptive and Non-presumptive Dilemmas

I represent a veteran who is service connected for prostate cancer and lung cancer.  Before he had any of the just mentioned cancers, he had colon cancer.  He now has cancer in his brain.  Since he’s a Vietnam Veteran; he receives service connection for the prostate and lung cancer.  Based on the presumption that the said cancer was caused by Agent Orange.

 

Brain cancer and colon cancer are not on the presumptive list.  Therefore, he was denied service connection for those cancers.  When a veteran is denied service connection for a non-presumptive cancer a veteran still can receive service connection if the veteran obtains medical opinions connecting the cancer to the herbicide exposure while in Vietnam.

 

In the instant case, medical opinions were provided.  Service connection for the colon and the brain cancer are still pending.  The instant case is an example of how important it is to get service connection for all types of cancer whether the cancer is on the presumptive list or not.  It doesn’t matter if a veteran is already 100 percent.  If the veteran is deceased from a service connected cancer his spouse would receive Dependency & Indemnity Compensation (DIC) benefits.  If a veteran dies from the non-service connected cancers which now are colon and brain cancer, his spouse would not receive the DIC benefits after his death unless she can prove that the veteran’s non-presumptive cancer is due to Agent Orange exposure.

 

The veteran is already 100 percent.  The instant case is an example of how important it is for a veteran to have a representative to stay on top of ongoing claims whether it is a paid representative or a representative for free.

Questions a Veteran Needs Answers for When Hiring a Non-Attorney Veteran Representative

A veteran can hire for a fee a non-attorney representative on the same terms as if the veteran hired an attorney; 20 percent of any back check for claims on appeal.  The first question a veteran needs to ask himself when hiring a non-attorney representative for a fee needs to be “am I paying for the same value and skills that I am expecting when I hire an attorney?”  It is important to note that the non-attorney representative is tested by the VA to verify basic knowledge of VA law in order to become accredited by the VA to practice VA law at the administrative level.  The accredited non-attorney representative does not have the authority to represent a veteran at the U.S. Court of Appeals for Veterans Claims level as a result of his VA administrative accreditation.

 

At the administrative level, the non-attorney representative has the same restrictions as an attorney does in charging a fee: as attorney, the non-attorney paid representatives cannot receive a fee or donation for claims that are not on appeal under current law right or wrong.  Likewise, any advice the non-attorney representative gives a veteran with claims not on appeal may affect the fees with claims on appeal.  If the non-attorney representative maximizes the veteran’s claims not on appeal, it’s possible he would delete the fee entirely; again like an attorney.  If the non-attorney representative assists the veteran with issues that are not on appeal, he agrees to assist the veteran for free on those non-appealed issues in order to possibly work for a fee when the claim is appealed.  Since claims that are not on appeal could be original claims, reopened claims that require new and material evidence, worsening condition of service connected claims, secondary claims, ongoing claims with common etiology like diabetes, missed claims, Unemployability and special monthly compensation; an accredited non-attorney representative is caught in the same ethical dilemma as an attorney.

 

The resources and skills of the non-attorney representatives issue stands out even more for the veteran.  For instance, even if the non-attorney for fee veteran representative is ethically willing to help a veteran from start to finish on any claim, does he have the skills and the financial resources to draft and obtain a medical or psychiatric opinion.  A non-attorney representative does have a financial interest in the outcome, but like an attorney, only the financial interest in the outcome of claims on appeal.  The veteran still has to face the same dilemma he faced when he has an attorney representing him with issues not on appeal:  a little bit of advice; come back when you have initial claims on appeal.   If the paid non-attorney representative assists veterans for claims not on appeal, the veteran needs to be aware that the representative may not want to spend the time and financial resources in order to assist with the best outcome for the veteran prior to the appeal of any claim unless there is true altruism to work against the non-attorneys own financial interest; the same position an attorney is put in under current law.

 

When hiring an attorney, a veteran needs to be aware that the attorney and the firm may be an entity in which the non-attorney veteran representative is hired in order to save money for the firm.  Therefore, when a veteran hires an attorney the veteran needs to know if an attorney will actually be representing him or will it be a non-attorney accredited representative with the support and assistance of the attorney in his firm.  A veteran may not want to pay a 20 percent fee for an attorney and have a non-attorney representative show up at a future hearing.  Details of the representation need to be worked out with the veteran upfront.  The hiring of an attorney or non-attorney representative does not solve the historical decades of problems with veteran organization representatives and state representatives; for example turning a veteran away, missed claims, advising a veteran to file one claim at a time, don’t appeal you might be reduced, and don’t get the VA mad.

 

VA law has now become more complicated with the possibility of multiple representatives, as well as the veteran being forced to represent himself on some claims.  It doesn’t help a veteran to wait 2 or 3 years in order to get the kind of representation the veteran wants which may cost the veteran more money in the long run.  On the other hand, choosing a veteran organization representative or state representative for free may be the best option for the veteran.  Some of these representatives do an excellent job especially when additional expertise of an attorney is not needed.  That’s why Vets for Full Representation is so important on behalf of veterans.  Its focus is on the needs of the veteran rather than the needs of veterans’ organizations, state representative programs, an attorney, or another person for hire.  When a veteran has the right to choose representation from start to finish the veteran would have a marketplace of representation in the veteran’s favor.  The representative (free or paid) would have to show what will actually be done for the veteran in order to attract a veteran.  For more information, visit www.vets4fullrepresentation.com or call (304) 834-3904 or (855) 373-1189.