Part IV
You now know that you need to have a current medical condition, a in service event, and a nexus that links the two in order to obtain VA disability compensation. You have also learned what kinds of evidence is needed to prove your claim, and how to get it. You have, hopefully, made an appointment and reviewed your C-file, and you know what forms are necessary to file your claim. What do you need to do now? You need to compile all of your information in a meaningful, orderly fashion and send it to the VARO.
Marking the Evidence
The absolute first thing that must be done once you have gathered all of your evidence is separate it into different categories. What seems to work best is to break them up by medical condition. You will want one stack of records for each disability that you suffer from. Then you should put these stacks in chronological order, with the oldest records first and the newest records last. Once this is accomplished, we can begin to highlight the most important parts of the medical records so that it stands out clearly to the rater.
If you have read my blog titled "My Philosophy on VA Claims," Then you recall that I wrote the following passage:
"The next thing that we all must realize is that our fight with the VA is a war of words. They operate under laws, regulation, and manuals. All of these items are written in specific language that must be closely adhered to in order to win your claim. Contrary to popular belief, these things are not written in secret code, but in ordinary, everyday language. Some of the words may not make sense to many, but if the reader takes the time to look up the words he does not understand, the education he gets in return can be completely empowering. It's time to dust off those dictionaries and bookmark Google in your web browser."
You may also recall from this blog that I briefly explained some of the different laws, regulations and manuals that the VA uses to adjudicate veteran's claims. Knowing this, we should all seek to learn the rating criteria from 38 CFR 4 which applies to our specific disabilities. In this criteria, there is very specific language for each rating. Let's look at a specific set of rating criteria. Almost everyone I have known who served in the military developed some form of knee problems due to the physical stresses of military life. We'll look at one of the rating criterion for a knee disability:
5257 Knee, other impairment of:
Recurrent subluxation or lateral instability:
Severe 30
Moderate 20
Slight 10
This may seem simple enough to some, but it may look like Greek to others. Don't let words you've never seen before scare you, though. Not even medical terms, because all words have a definition. You can look in a good dictionary to find this definition, or better yet, you can use the internet to find that word much quicker. Let's break this criteria down.
Recurrent is a simple enough word that means something happens repetitively. Instability is pretty straight forward as well; the knee is not stable. What about subluxation lateral, though? If we do a quick Google search of the term "subluxation," it returns about 879,000 hits. The very first one just happens to be a Wikipedia entry on the term. While I would not use Wikipedia for hardcore research, or as a reference for writing a college paper, it is fine for our purpose. In this instance, it tells us that the word subluxation means "an incomplete or partial dislocation of a joint or organ."
If we use the search term "lateral," we come up with over 55 million hits. Again, the first one is Wikipedia. When we click on that, it shows several different options. The one that makes the most sense for us, though, is marked "human anatomical terms." When we click on that we learn that the definition of the word lateral is "...[describes a sctructure that is] away from that [midline of the body]." This may still not be very clear to some readers, so a continued search finds that Merriam-Webster's Online Dictionary gives the definition as "1. of or relating to the side." You should keep searching until you find a definition that makes sense. If you never find one, it is ok to ask for help.
Now that we have these definitions, we can re-write the sentence "Recurrent subluxation or lateral instability," to read like something that is more understandable. "Repetitive, incomplete or partial dislocations of the knee or the knee is unstable to one side or the other." That makes a little more sense. Our next mission is to scour the medical records that relate to the knees for the key terms, "subluxation or lateral instability," or any of the words that we found, or any other words that have the same meaning. Not all doctors are the same, and each one uses different language in their notes. This will take some time.
When you find words that are similar to that listed in the rating criteria, you should highlight it. I have always found it beneficial to highlight other key pieces of information on each record, also. This information is things such as the date, the doctor's name who wrote the record, and any kind of prescription that was given (medicine or otherwise). Do this for each stack of records that you have.
Putting it all Together
Now that you have all of your records neatly organized and highlighted, it is time to put them all together and send them to the VARO. If you are like me, this can be a daunting task. When I filed a claim in 2007, it had 13 separate issues on it. I had over 350 pages of evidence to turn in. I have heard from some VARO employees that this is not wise, because it frustrates raters to have so much information to pour through. I say hogwash to this! Records and the laws and regulations are the only things that we have to win our claims with. If you have a mountain of evidence in your favor in your possession, send it in. Don't worry about some whiner at the VARO.
The first thing that you will want to do is buy a three-ring binder, a three-hole punch, and a package of tabbed dividers. You need to hole punch each page so that it will neatly go into the binder. Be sure the binder you buy is big enough to fit all of your evidence in. There is nothing worse for the person preparing the evidence, or the person trying to read the evidence than a binder that is so full it flies open when it is just looked at the wrong way.
Next you want to lay out your evidence in a meaningful order. It needs to be in a order that flows smoothly for the rater, so as to make it as simple as possible for them. The order I have always used is:
1. VA Form 21-4138
2. Addendum to VA Form 21-4138/personal sworn statement
3. Sworn Statements (buddy letters)
4. DD 214's
5. Reference material, such as VA Training Letters or peer reviewed journal articles
6. Medical evidence by condition
You can use this order, or find your own method. So long as it makes sense and makes the rater's job easier is all that matters. Once you have the evidence in the order you want, you can hole punch each page and place it in the binder. You should place a tabbed divider between each section, and label each tab with what that section contains (i.e. Sworn Statement, Knee Condition, Spine Condition).
Now you can label each page with some very important information. The very first thing that you MUST ensure is on every single page is your name and C-file (social security) number. This way if some of the pages fall out, they will know who it belongs to. I always put this information in the top right corner of the page. Some of your medical records may have this information on it already. Even it that was the case, I still put it at the top of each page.
The next thing that you should put on each page is the page number, and how many pages are in the entire packet (i.e. 1 of 100, 2 of 100, 3 of 100). This way, if some pages fall out, the reader can put them back in the correct order. It will also serve to show you how conscientious your VARO is the next time you review your C-file. Chances are when you do review it, the pages will be horribly out of order. I always put this information in the bottom right corner of each page.
Next you should assign a exhibit number to each record. I always keep it simple, and number them E-1, E-2, E-3, and so on. The first exhibit number should be the VA Form 21-4138. This is done to make it easier for the rater to refer to individual records. Since some pieces of evidence will have multiple pages, you should also place page numbers and how many pages are in that exhibit under the exhibit number.
Lastly you should make a table of exhibits. The way I did this was to create a word document with two columns. The left column was titled Exhibit, and the right column was titled Page. On the left column, give the number of each exhibit followed by the name of exhibit (example: E-1 VA Form 21-4138, E-2 Personal sworn statement, E-3 Sworn Statement of M.Y. Buddy). When you get to the medical records, don't over think it. Simply call it VA Progress Note, or Midtown Medical Center Record. In the right column give the page number of the corresponding exhibit listed in the left column. Leave a space between each section of evidence. This would be where the tabbed dividers were placed in your binder. This will make it easier for the rater to read. Place this table of exhibits in the very front of the binder.
Now the whole packet is together. I strongly suggest that you take the time to make a exact replica of it for your on records now. That way if there is some kind of a question, or if the VARO says they did not get a piece of evidence, you can go to your copy and find it easily. You may now send your claim and packet of evidence to the VARO. Be sure to place it in a sturdy box and wrap it well in shipping paper. I always suggest using the US Postal Service's certified mail, return receipt requested for any correspondence that you need to send to the VA. This is one of the only times that I make a exception. While this packet can still be sent this way, I chose to send mine through UPS because of the size of the package. You can also insure your package and request a signature confirmation this way. The ability to track the package is nice, too, although you can have this feature through the post office these days, too.
There it is in a nutshell. I know it seems like a lot of work just to file a claim for disability, but you will be glad in the end that you took the time to do it right the first time. The alternative is to get a denial letter and start all over. I hope this helps someone, and remember; no one cares more about your claim than you do (I really need to remember where I found that line so I can give credit when I use it).
Saturday, January 17, 2009
Friday, January 16, 2009
How to File a Claim For VA Disability Compensation, Part III
Part III
In the last part, we read about what it takes to make a nexus statement, and how to get one. We also learned that it is very wise to review your C-file prior to filing your claim in order to be better prepared, and to make sure that the rater gets all the pertinent information. Now it's time to look at the forms that are necessary when filing a claim for disability compensation. This section went a little long. OK...this section went a LOT long, but there is a lot to cover here. I considered splitting this into two separate parts, but that seemed like it would only lead to more confusion. So, get a cup of coffee, a comfy chair, and settle in. You may be here a while.
The Correct VA Forms
Since we all know that the VA is a true blue government agency, then we all know that there is some kind of a form that has to be used for anything we need from them. What kind of forms are needed to file a claim for VA disability compensation, though? Well, that depends on a few things. First, we need to know if this is the first time that you have ever filed for any type of VA disability in the past. If you have not, then you need to use a VA Form 21-526, Veterans Application for Compensation and/or Pension.
If you have filed a claim in the past, then you will be filing a claim for increase. This is the case even if this claim is for a new condition that has never been filed for before. If this is the case, then you need to use a VA Form 21-4138, Statement in Support of Claim. If you are unemployed due to one or more of your service connected disabilities, but you are not rated at 100%, then you need to file a claim for Total Disability due to Individual Unemployability. To do this you will need to use a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. All of these forms can be found in a PDF format on the VA.gov web site. The forms are set up so that you can enter your information from your computer, then print them off and mail them in.
The VA Form 21-526, including its instructions, is 23 pages long. This can be a little intimidating to a veteran filing for disability compensation for the very first time. Don't let the size of this form get the best of you, though. It's pretty straight forward, and since you have gathered all of the information from the previous section of this blog, the questions should be relatively easy to answer. The form is laid out into four parts; A, B, C, and D. You will have to fill out everything except Part D, which is used to apply for a pension.
Part A collects general information on you, such as name, date of birth, and contact information. It also seeks information about your active duty, reserve, or national guard service. They will ask questions regarding when and where entered and left the service, and mailing addresses of units that you served with. They will also want a list of military benefits that you currently receive along with the amount. This is also the section where you give your direct deposit banking information if you choose to.
Part B asks about the disabilities that you are claiming. Here is where you give the treatment dates while in service and names and locations of the medical facilities where you have been treated after your military service. They also ask about exposure to any environmental or chemical exposures in this section.
Part C is where information about marital status and dependants is given. You will also need information about any previous marriages that you and your spouse may have had. You will also have a chance to claim dependant parents in this section of the form. They will also want information on children or a spouse that does not live with you. Have everyone's social security numbers handy, as they will be needed. There are several documents listed in the instructions that should be turned in with this form. It is a good practice to include these documents any time that you file a claim, so I will discuss them in a few minutes, after I cover the other forms.
The VA Form 21-4138, or Statement in Support of Claim, is one that most disabled veterans will come to know intimately. Any time that we communicate with the VA by mail, in reference to our claim, it should be done on this form. They seem to recognize and address their own document a lot quicker than a hand-written or typed letter. This form is also used to file the majority of our claims. It is only two pages long, and is much less intimidating than the 21-526. It is simply for your remarks, and there is no list of questions that will need to be answered.
When filling out this form, it is best to keep it short and sweet. Your statement should be concise and to the point. You can actually pack a great deal of information into a single paragraph. A well-drawn picture of your claim should be saved for a addendum to this form. The way that I always like to approach this is to write something like this:
"I would like to submit a formal claim for increase in my service connected disability compensation for the condition XXXX. I am also seeking service connected compensation for the current medical conditions of XXXX, XXXX, and XXXX. I am providing you with my sworn statement in support of claim, which follows this VA Form 21-4138 as a addendum. I am also submitting all of the additional evidence in support of the total of my claims that I am currently in possession of. This evidence includes service medical records, civilian medical records, VA medical records, sworn statements of individuals, peer-reviewed medical journal articles, and internal VA training documents. There are a total of XXX pages in this correspondence, including this form.
Thank you for your timely attention to this matter."
Your addendum should be a typed letter of the standard business form. You should start out with your full name and claim number (typically your social security number) in bold letters at the top of the page. Follow this with your full street address, phone number and e-mail address. The current date comes next, then the person whom you are addressing the letter to. In this case it will be addressed to Triage, Department of Veterans Affairs, Regional Office, followed by the street or post office box address of the VARO that you use. Next, provide a regards line (RE:) letting the addressee know exactly what this document is; Addendum to Statement in Support of Claim (VA Form 21-4138). All of this should be left justified on the page.
You are now ready to begin the body of your letter. Start off with a simple address, like "To whom it may concern." In the first paragraph you will want to provide your identifying information. I would suggest starting off with your name, your period(s) of service, the branch(es) that you served in, your MOS (both number series and title) and where you served in combat, if applicable. In the second paragraph state why you are writing this letter. I use the line, "In this addendum, I seek to cover my current claims of..."
Next you want to begin to cover the issues you are claiming. Start from the beginning, and carry it through to the end. This is the only chance you'll have to tell your story up front. The next chance will be in a appeal, and you are trying to avoid letting it get that far. As we did with the 21-4138, you'll want to be as concise as possible. Keep your writing short and to the point. Try to use bullet statements where you can.
You'll want to do this in a standard outline format to cut down on the confusion. This is the same way we all did it in grade school; Roman numerals (I, II, III) followed by capitol letters (A,B,C) followed by Arabic numeral (1,2,3), and lastly lower-case letters (a,b,c). To keep things in line with the VA Form 21-4138 that you filled out, use the same order of the issues claimed. An example would look like this:
Issue I. Entitlement to service connected compensation for Intervertebral Disc Syndrome.
A. I was injured while on active duty on 1 January 1982 while making pancakes.
1. My service medical records state the following:
a. I visited the troop medical clinic at Ft. Bragg, NC for this injury
b. The physician stated that I had a severe muscle strain from the weight of the pancake.
2. I was assigned to the personnel section while my back recovered.
B. My back was no better by the summer of 1982, so my physician sent me to physical therapy.
1. My service medical records state the following:
a. The therapist stated the my lumbar ranges of motion were XXXX,
b. The therapist stated that I had severe muscle guarding in my lumbar region.
2. After three weeks of physical rehab, the therapists deemed me a poor candidate for therapy.
After you have covered all the issues, then you can close this addendum. I like to do this by stating, "I would like to request that any compensation and pension examinations necessary to the VA's development of these claims be completed at the XXXX Va Medical Center in (city, state). I also request that C&P exams deemed necessary be scheduled in a timely manner." This may not gain you any ground whatsoever, but it could possibly save you from being sent to a C&P exam provided by a QTC doctor who is outside of the VA system and is paid by the exam.
The last statement that you will want to make is, "All statements contained herein are true and correct, to the best of my knowledge." This makes the addendum a sworn statement. You may also want to include a statement something like this, "I hereby relinquish the remainder of any time that I may have. Please begin to schedule any pertinent exams and otherwise begin your work towards decisions on these claims." They will still want you to sign a VCAA Notice Response later on, but this will let them know that you are not interested in waiting the full amount of time that they have to offer you under the "Duty to Assist" laws.
If you are unemployed due to one or more of your service connected disabilities, but you are not rated at 100% for that disability, then you may be eligible for TDIU. This will allow you to be paid at the 100% rate, even though you do not meet the schedular criteria. The basic eligibility requirements is that you have a single service connected disability rated at 60%, or you have multiple service connected disabilities that provide a combined rating of 70%, with at least one of the disabilities being rated at 40%. If you don't meet these criteria, you could still possibly be granted TDIU, but it will be a hard fight.
To file a claim for TDIU, you have to use the VA Form 21-8940, Veteran's Application For Increased Compensation Based on Unemployability. This is also a two page form, but there are questions to be answered on this form. The form is laid out into four sections. The first section deals with disability and medical treatment. It asks which service connected disabilities prevent you from securing substantially gainful employment. It also asks if you've been under a doctor's care in the last twelve months, and the names, addresses, and dates of treatments.
The second section requires you to list all of your employment for the last five years. They want to know the name and address of the employers, and the dates you were employed there. They also want to know the type of work, the number of hours per week, the time you lost from illness, and your highest earnings per month. They will want to know you total earned income for the previous twelve months, and whether or not you left your last job due to your disabilities. If you have applied for any other jobs since your were last employed, they will want to know some information about those employers as well.
In the third section they ask about your schooling and other training. They want to know your highest year completed in school or college, and what type of education you received. They will also want to know if you have received any education or training since you became too disabled to work. There is also a remarks section for the veteran at the end of this section. If the disabilities that prevent you from working are static, or if you have had them form several years, I would suggest asking for "permanent and total/no future exams required" status in this remarks box. The last section simply asks for a signature and date.
I would suggest filling out and submitting a VA Form 21-4138 and a addendum along with this application. This will allow you to better describe the disabilities and circumstances that have caused you to become unemployable. Along with the application, and sworn statement, there are two other forms that should be addressed in a TDIU claim. It is not completely necessary for the veteran to complete these forms at this point in time, but if you do, you will be one step ahead of the game. You will also know that the VARO received as much information about your claim as you were able to control.
The first of these forms is VA Form 21-4140-1, Employment Questionnaire. This form is sent out to all TDIU veterans annually. It is supposed to be sent on the anniversary date of the TDIU award, and there is a strict timeline on returning it to the VARO. Recently, however, there have been many reports of veterans receiving this form too late to return on time, or not at all. While it should not be necessary to complete this form before the first anniversary of TDIU, not all VARO's seem to be on the same page, therefore it would be beneficial to go ahead and send it in with the rest of the application package.
This is a single page form, and there isn't much to it. Especially if you haven't worked in the last year. It requires the usual personal information, then there is a yes/no checkbox to answer whether or not you have been employed in the last year. If you check no, then you skip down to Section II, Unemployment Certification where you sign and date the form. If you check yes, then you go to Section I, Employment Certification. Here you will list the same basic work related information as on the 21-8940. After that, you simply sign and date the form.
The last form that needs to be completed is the VA Form 21-4192, Request For Employment Information in Connection With Claim for Disability Benefits. This form will actually be mailed to all the employers you listed on the 21-8940, but all too often employers are slow to return it to the VARO, or they simply never return it. This is usually due to a misplaced fear that the veteran is trying to come after the former employer for disability. Given this fact, I always suggest that you fill out one of these forms for each employer listed on the 21-8940, and then take it either to your former supervisor, or the human resources department at that former employer. This will guarantee that the form is filled out, and sent back in, because you are the one doing it.
This is another simple, one page form. The first couple of blocks deal with the names and addresses of the former employer and the VARO, followed by the veteran's personal information. Section II is for the employment information. They need your dates of employment and the amount earned in the last twelve months that you worked there. They will want to know your position title, and the number of hours per day and week that you worked. Along with other tidbits of information, they will need to know of any concessions the employer made for the veteran's disabilities and the reason the vet is no longer working there.
Section III deals with any benefits or payments that you are receiving from that employer. They will want to know if you are entitled to any benefits, such as short or long term disability or a pension, the type of benefit and the amount. Then they will need a signature from the employer. It is best to fill this out with the past employer so that all of the correct information can be listed, but offer to take down the information and fill out the form. This way all the employer has to do is review the form and sign it, which will save them time.
There is one last form that should be addressed here, and it deals with a claim for dependants. If you have a service connected disability that is rated at 30% or greater, your compensation will increase based upon the number of dependants you have. If you think that your compensation rating may go above 30%, then it will save you time in the long run to go ahead and submit a claim for dependency. If you have been rated above 30% in the past, and received benefits for dependants, but then had your rating lowered to below 30%, you will need to do this also. Once your dependants drop off of your compensation, apparently the VA has no way to retrieve the data.
The form used for this purpose is a VA Form 21-686c, Declaration of Status of Dependents. It is a short, two page document with only three sections, but it asks for a lot of information. As usual, the first thing that is required is the veteran's personal information, including the C-file number. Next is marital status and spouse's date of birth. I hope no one has to sneak a peek at his or her birth certificate to find the answer to this one.
The first section asks questions about the veterans marriages. You will need to know the date and place of any marriages that you've had, who you were married to, and their social security numbers. The best place to look for former spouse's social security numbers is on marriage certificates and divorce decrees. They also want to know how the marriage was terminated (i.e. divorce, or death), and the date and place that the marriage terminated.
In section two, they are seeking information about your spouse's previous marriages. You will need to know who your spouse was married to, and the date and place of their marriage. You will also need to know how, when, and where the marriage terminated. They also ask questions in this sections about the veteran status of your spouse, and whether or not you live with your spouse.
The last section is reserved for information on the veteran's unmarried children. They will need the name, date and place of birth, and social security number of all of your dependent children. They also want to know the status of your child, such as whether or not he is your biological child, or a adopted or step-child. They will need to know if the child is seriously disabled, or between the ages 18 and 23 and in school. Lastly they want to know if any of the children that you listed do not live with you. You will need their street address and the name of the person that they live with.
In the last part, we read about what it takes to make a nexus statement, and how to get one. We also learned that it is very wise to review your C-file prior to filing your claim in order to be better prepared, and to make sure that the rater gets all the pertinent information. Now it's time to look at the forms that are necessary when filing a claim for disability compensation. This section went a little long. OK...this section went a LOT long, but there is a lot to cover here. I considered splitting this into two separate parts, but that seemed like it would only lead to more confusion. So, get a cup of coffee, a comfy chair, and settle in. You may be here a while.
The Correct VA Forms
Since we all know that the VA is a true blue government agency, then we all know that there is some kind of a form that has to be used for anything we need from them. What kind of forms are needed to file a claim for VA disability compensation, though? Well, that depends on a few things. First, we need to know if this is the first time that you have ever filed for any type of VA disability in the past. If you have not, then you need to use a VA Form 21-526, Veterans Application for Compensation and/or Pension.
If you have filed a claim in the past, then you will be filing a claim for increase. This is the case even if this claim is for a new condition that has never been filed for before. If this is the case, then you need to use a VA Form 21-4138, Statement in Support of Claim. If you are unemployed due to one or more of your service connected disabilities, but you are not rated at 100%, then you need to file a claim for Total Disability due to Individual Unemployability. To do this you will need to use a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. All of these forms can be found in a PDF format on the VA.gov web site. The forms are set up so that you can enter your information from your computer, then print them off and mail them in.
The VA Form 21-526, including its instructions, is 23 pages long. This can be a little intimidating to a veteran filing for disability compensation for the very first time. Don't let the size of this form get the best of you, though. It's pretty straight forward, and since you have gathered all of the information from the previous section of this blog, the questions should be relatively easy to answer. The form is laid out into four parts; A, B, C, and D. You will have to fill out everything except Part D, which is used to apply for a pension.
Part A collects general information on you, such as name, date of birth, and contact information. It also seeks information about your active duty, reserve, or national guard service. They will ask questions regarding when and where entered and left the service, and mailing addresses of units that you served with. They will also want a list of military benefits that you currently receive along with the amount. This is also the section where you give your direct deposit banking information if you choose to.
Part B asks about the disabilities that you are claiming. Here is where you give the treatment dates while in service and names and locations of the medical facilities where you have been treated after your military service. They also ask about exposure to any environmental or chemical exposures in this section.
Part C is where information about marital status and dependants is given. You will also need information about any previous marriages that you and your spouse may have had. You will also have a chance to claim dependant parents in this section of the form. They will also want information on children or a spouse that does not live with you. Have everyone's social security numbers handy, as they will be needed. There are several documents listed in the instructions that should be turned in with this form. It is a good practice to include these documents any time that you file a claim, so I will discuss them in a few minutes, after I cover the other forms.
The VA Form 21-4138, or Statement in Support of Claim, is one that most disabled veterans will come to know intimately. Any time that we communicate with the VA by mail, in reference to our claim, it should be done on this form. They seem to recognize and address their own document a lot quicker than a hand-written or typed letter. This form is also used to file the majority of our claims. It is only two pages long, and is much less intimidating than the 21-526. It is simply for your remarks, and there is no list of questions that will need to be answered.
When filling out this form, it is best to keep it short and sweet. Your statement should be concise and to the point. You can actually pack a great deal of information into a single paragraph. A well-drawn picture of your claim should be saved for a addendum to this form. The way that I always like to approach this is to write something like this:
"I would like to submit a formal claim for increase in my service connected disability compensation for the condition XXXX. I am also seeking service connected compensation for the current medical conditions of XXXX, XXXX, and XXXX. I am providing you with my sworn statement in support of claim, which follows this VA Form 21-4138 as a addendum. I am also submitting all of the additional evidence in support of the total of my claims that I am currently in possession of. This evidence includes service medical records, civilian medical records, VA medical records, sworn statements of individuals, peer-reviewed medical journal articles, and internal VA training documents. There are a total of XXX pages in this correspondence, including this form.
Thank you for your timely attention to this matter."
Your addendum should be a typed letter of the standard business form. You should start out with your full name and claim number (typically your social security number) in bold letters at the top of the page. Follow this with your full street address, phone number and e-mail address. The current date comes next, then the person whom you are addressing the letter to. In this case it will be addressed to Triage, Department of Veterans Affairs, Regional Office, followed by the street or post office box address of the VARO that you use. Next, provide a regards line (RE:) letting the addressee know exactly what this document is; Addendum to Statement in Support of Claim (VA Form 21-4138). All of this should be left justified on the page.
You are now ready to begin the body of your letter. Start off with a simple address, like "To whom it may concern." In the first paragraph you will want to provide your identifying information. I would suggest starting off with your name, your period(s) of service, the branch(es) that you served in, your MOS (both number series and title) and where you served in combat, if applicable. In the second paragraph state why you are writing this letter. I use the line, "In this addendum, I seek to cover my current claims of..."
Next you want to begin to cover the issues you are claiming. Start from the beginning, and carry it through to the end. This is the only chance you'll have to tell your story up front. The next chance will be in a appeal, and you are trying to avoid letting it get that far. As we did with the 21-4138, you'll want to be as concise as possible. Keep your writing short and to the point. Try to use bullet statements where you can.
You'll want to do this in a standard outline format to cut down on the confusion. This is the same way we all did it in grade school; Roman numerals (I, II, III) followed by capitol letters (A,B,C) followed by Arabic numeral (1,2,3), and lastly lower-case letters (a,b,c). To keep things in line with the VA Form 21-4138 that you filled out, use the same order of the issues claimed. An example would look like this:
Issue I. Entitlement to service connected compensation for Intervertebral Disc Syndrome.
A. I was injured while on active duty on 1 January 1982 while making pancakes.
1. My service medical records state the following:
a. I visited the troop medical clinic at Ft. Bragg, NC for this injury
b. The physician stated that I had a severe muscle strain from the weight of the pancake.
2. I was assigned to the personnel section while my back recovered.
B. My back was no better by the summer of 1982, so my physician sent me to physical therapy.
1. My service medical records state the following:
a. The therapist stated the my lumbar ranges of motion were XXXX,
b. The therapist stated that I had severe muscle guarding in my lumbar region.
2. After three weeks of physical rehab, the therapists deemed me a poor candidate for therapy.
After you have covered all the issues, then you can close this addendum. I like to do this by stating, "I would like to request that any compensation and pension examinations necessary to the VA's development of these claims be completed at the XXXX Va Medical Center in (city, state). I also request that C&P exams deemed necessary be scheduled in a timely manner." This may not gain you any ground whatsoever, but it could possibly save you from being sent to a C&P exam provided by a QTC doctor who is outside of the VA system and is paid by the exam.
The last statement that you will want to make is, "All statements contained herein are true and correct, to the best of my knowledge." This makes the addendum a sworn statement. You may also want to include a statement something like this, "I hereby relinquish the remainder of any time that I may have. Please begin to schedule any pertinent exams and otherwise begin your work towards decisions on these claims." They will still want you to sign a VCAA Notice Response later on, but this will let them know that you are not interested in waiting the full amount of time that they have to offer you under the "Duty to Assist" laws.
If you are unemployed due to one or more of your service connected disabilities, but you are not rated at 100% for that disability, then you may be eligible for TDIU. This will allow you to be paid at the 100% rate, even though you do not meet the schedular criteria. The basic eligibility requirements is that you have a single service connected disability rated at 60%, or you have multiple service connected disabilities that provide a combined rating of 70%, with at least one of the disabilities being rated at 40%. If you don't meet these criteria, you could still possibly be granted TDIU, but it will be a hard fight.
To file a claim for TDIU, you have to use the VA Form 21-8940, Veteran's Application For Increased Compensation Based on Unemployability. This is also a two page form, but there are questions to be answered on this form. The form is laid out into four sections. The first section deals with disability and medical treatment. It asks which service connected disabilities prevent you from securing substantially gainful employment. It also asks if you've been under a doctor's care in the last twelve months, and the names, addresses, and dates of treatments.
The second section requires you to list all of your employment for the last five years. They want to know the name and address of the employers, and the dates you were employed there. They also want to know the type of work, the number of hours per week, the time you lost from illness, and your highest earnings per month. They will want to know you total earned income for the previous twelve months, and whether or not you left your last job due to your disabilities. If you have applied for any other jobs since your were last employed, they will want to know some information about those employers as well.
In the third section they ask about your schooling and other training. They want to know your highest year completed in school or college, and what type of education you received. They will also want to know if you have received any education or training since you became too disabled to work. There is also a remarks section for the veteran at the end of this section. If the disabilities that prevent you from working are static, or if you have had them form several years, I would suggest asking for "permanent and total/no future exams required" status in this remarks box. The last section simply asks for a signature and date.
I would suggest filling out and submitting a VA Form 21-4138 and a addendum along with this application. This will allow you to better describe the disabilities and circumstances that have caused you to become unemployable. Along with the application, and sworn statement, there are two other forms that should be addressed in a TDIU claim. It is not completely necessary for the veteran to complete these forms at this point in time, but if you do, you will be one step ahead of the game. You will also know that the VARO received as much information about your claim as you were able to control.
The first of these forms is VA Form 21-4140-1, Employment Questionnaire. This form is sent out to all TDIU veterans annually. It is supposed to be sent on the anniversary date of the TDIU award, and there is a strict timeline on returning it to the VARO. Recently, however, there have been many reports of veterans receiving this form too late to return on time, or not at all. While it should not be necessary to complete this form before the first anniversary of TDIU, not all VARO's seem to be on the same page, therefore it would be beneficial to go ahead and send it in with the rest of the application package.
This is a single page form, and there isn't much to it. Especially if you haven't worked in the last year. It requires the usual personal information, then there is a yes/no checkbox to answer whether or not you have been employed in the last year. If you check no, then you skip down to Section II, Unemployment Certification where you sign and date the form. If you check yes, then you go to Section I, Employment Certification. Here you will list the same basic work related information as on the 21-8940. After that, you simply sign and date the form.
The last form that needs to be completed is the VA Form 21-4192, Request For Employment Information in Connection With Claim for Disability Benefits. This form will actually be mailed to all the employers you listed on the 21-8940, but all too often employers are slow to return it to the VARO, or they simply never return it. This is usually due to a misplaced fear that the veteran is trying to come after the former employer for disability. Given this fact, I always suggest that you fill out one of these forms for each employer listed on the 21-8940, and then take it either to your former supervisor, or the human resources department at that former employer. This will guarantee that the form is filled out, and sent back in, because you are the one doing it.
This is another simple, one page form. The first couple of blocks deal with the names and addresses of the former employer and the VARO, followed by the veteran's personal information. Section II is for the employment information. They need your dates of employment and the amount earned in the last twelve months that you worked there. They will want to know your position title, and the number of hours per day and week that you worked. Along with other tidbits of information, they will need to know of any concessions the employer made for the veteran's disabilities and the reason the vet is no longer working there.
Section III deals with any benefits or payments that you are receiving from that employer. They will want to know if you are entitled to any benefits, such as short or long term disability or a pension, the type of benefit and the amount. Then they will need a signature from the employer. It is best to fill this out with the past employer so that all of the correct information can be listed, but offer to take down the information and fill out the form. This way all the employer has to do is review the form and sign it, which will save them time.
There is one last form that should be addressed here, and it deals with a claim for dependants. If you have a service connected disability that is rated at 30% or greater, your compensation will increase based upon the number of dependants you have. If you think that your compensation rating may go above 30%, then it will save you time in the long run to go ahead and submit a claim for dependency. If you have been rated above 30% in the past, and received benefits for dependants, but then had your rating lowered to below 30%, you will need to do this also. Once your dependants drop off of your compensation, apparently the VA has no way to retrieve the data.
The form used for this purpose is a VA Form 21-686c, Declaration of Status of Dependents. It is a short, two page document with only three sections, but it asks for a lot of information. As usual, the first thing that is required is the veteran's personal information, including the C-file number. Next is marital status and spouse's date of birth. I hope no one has to sneak a peek at his or her birth certificate to find the answer to this one.
The first section asks questions about the veterans marriages. You will need to know the date and place of any marriages that you've had, who you were married to, and their social security numbers. The best place to look for former spouse's social security numbers is on marriage certificates and divorce decrees. They also want to know how the marriage was terminated (i.e. divorce, or death), and the date and place that the marriage terminated.
In section two, they are seeking information about your spouse's previous marriages. You will need to know who your spouse was married to, and the date and place of their marriage. You will also need to know how, when, and where the marriage terminated. They also ask questions in this sections about the veteran status of your spouse, and whether or not you live with your spouse.
The last section is reserved for information on the veteran's unmarried children. They will need the name, date and place of birth, and social security number of all of your dependent children. They also want to know the status of your child, such as whether or not he is your biological child, or a adopted or step-child. They will need to know if the child is seriously disabled, or between the ages 18 and 23 and in school. Lastly they want to know if any of the children that you listed do not live with you. You will need their street address and the name of the person that they live with.
How to File a Claim For VA Disability Compensation, Part II
Part II
In Part I of this series we learned that in order to receive VA disability compensation, you need to have a current disability, a in-service event that caused that disability, and nexus that makes the link between the two. We read about what kinds of evidence are necessary to prove your claim. We also looked at several different ways to obtain that evidence. In this part, we will look at what kind of information is needed to make a nexus statement, and how to go about getting one for your claim. We will also discuss the importance of reviewing your C-file prior to filing your claim for disability compensation.
Making the Nexus
Now you have the current medical records that explain your current disability in detail. You also have all of your past medical records which explain the event that caused your current medical condition(s) while you were in the service. What you now need is called a "nexus." A nexus is a written link that joins the in service event and the current disability, and proves that your condition is "service connected" (SC'd). Typically, it can be as easy as asking your VA primary care physician (PCP), or your civillian doctor to write a statement on your behalf telling the VA Regional Office (VARO) that your condition(s) were caused by something in your military service.
Since the VA is a government entity that operates under specific laws and regulations, this whole process has to be approached from a legal standpoint. Very specific language needs to be used both in your medical records when describing your disability and when the nexus is written. Vague or ambiguous language, such as "the patient's condition could have been caused by his time in the service" should be avoided at all costs. Don't be afraid to ask your doctor to change it, or even better, ask him to use specific language up front.
There are five key phrases that the VARO likes to see when reading a nexus statement. They are:
1. Related to
2. Most likely related to
3. At least as likely as not related to
4. Less likely than not related to
5. Not related to
When asking for a nexus statement from your PCP, it is completely acceptable for you to explain this matter up front, and ask that he use this language in your progress notes. There is a form that is widely in use for this exact purpose that can be found at : http://www.hadit.com/forums/index.php?act=attach&type=post&id=793. It is also acceptable to have this form already filled out when presented to your doctor. It is not ok, however, to mark one of the boxes that relates your condition to your military service. This should be left blank for your PCP to mark the one he deems appropriate. I have used this form various conditions on a few occasions, and it was always well received by my VARO, and even noted on my decision letters.
Reviewing Your C-file
Now that you have the evidence and the nexus statement, it would be a good time to look over your C-file. If you have never filed a claim with the VA for anything, then you will not need to worry with this step. If you have ever filed for anything with the VA in the past, though, you should do this. You C-file is your claims file that is kept at the VARO that is nearest to you, and typically in the same state that you live. It is supposed to have every piece of information regarding every claim you have ever filed in it. This is rarely the case, however. Therefore it is very important to inspect the file, correct any mistakes, and then get your own copy of this folder. To schedule a appointment to view your file, simply call the VA's 800-827-1000 number and request a time.
Before driving to the VARO, you should make a list of the pieces of evidence that should be in your folder. Highlight any key documents that you will want to bring to the attention of the rater when filing your claim. This will give you a clear plan of attack when looking over your file. This is important, because the time the VARO allots for a veteran to look over their C-file can be brief, and some of us have very large, or multiple folders to go through. Also, be sure to take along a pen and some paper so you can make notes about what you find. While at the VARO, be polite and courteous. We never know what kind of notes they may make about us, plus our moms have all told us that "you can always catch more flies with honey instead of vinegar."
When reviewing your claims file, the first thing you should do is make a quick scan of the documents to make sure that everything in it belongs to you. There have been numerous reports of veterans finding someone else's documents in their folder. You should bring this to the attention of the VARO employee who is present while you are viewing the folder. This will help you by reducing the clutter that a rater will have to sift through when it comes time to adjudicate your claim, and it will help the other veteran by returning their documents to their folder.
Next you will want to ensure that all of the evidence you expected to see in the folder are actually there. If they are not, then make a note of the missing documents, so you can either submit them with your claim, if they are pertinent, or you can submit them at a later date if they are not important to this particular claim. Once you've verified that everything is there, then you should make a note of the date stamps, and any other identifying marks on the pieces of evidence that you highlighted on your list. You can use this in your claim to easily point a rater to the correct documents. Be sure to thank the VARO employee for their time to set up some good karma.
Requesting a copy of your C-file isn't the same as requesting a copy of your medical records from the VA Medical Center (VAMC). Since it is held at the VARO, you will have to contact them, and they will want it in writing. You should write a brief letter to the regional office, requesting a complete copy of your claims file, and all of its contents. Also, fill out and send in a VA Form 3288 along with your letter. At the top of your letter, and on the outside of the envelope, write in bold letters, "Freedom of Information Act Request." This will ensure that it goes to the correct person needed to retrieve, copy and send you folder. Be sure to send this request via certified mail, return receipt requested. This will cost a few dollars more, but is well worth it to know that your request arrived at the VARO. This method should be used for any correspondence with the regional office.
You should know that you DO NOT want to request a copy of your folder while a claim is processing. There has been speculation that if this is done, your folder will be pulled out of line in order to make the copy, then it will be placed at the back of the line when returned. I have been unable to verify that this is what happens, but at the very least it will slow your claim down. Also, there are more and more veterans requesting copies of their files these days, and fewer VARO employees available to fill these requests, so in some cases it can take several months (or more) to actually receive your copy.
In Part I of this series we learned that in order to receive VA disability compensation, you need to have a current disability, a in-service event that caused that disability, and nexus that makes the link between the two. We read about what kinds of evidence are necessary to prove your claim. We also looked at several different ways to obtain that evidence. In this part, we will look at what kind of information is needed to make a nexus statement, and how to go about getting one for your claim. We will also discuss the importance of reviewing your C-file prior to filing your claim for disability compensation.
Making the Nexus
Now you have the current medical records that explain your current disability in detail. You also have all of your past medical records which explain the event that caused your current medical condition(s) while you were in the service. What you now need is called a "nexus." A nexus is a written link that joins the in service event and the current disability, and proves that your condition is "service connected" (SC'd). Typically, it can be as easy as asking your VA primary care physician (PCP), or your civillian doctor to write a statement on your behalf telling the VA Regional Office (VARO) that your condition(s) were caused by something in your military service.
Since the VA is a government entity that operates under specific laws and regulations, this whole process has to be approached from a legal standpoint. Very specific language needs to be used both in your medical records when describing your disability and when the nexus is written. Vague or ambiguous language, such as "the patient's condition could have been caused by his time in the service" should be avoided at all costs. Don't be afraid to ask your doctor to change it, or even better, ask him to use specific language up front.
There are five key phrases that the VARO likes to see when reading a nexus statement. They are:
1. Related to
2. Most likely related to
3. At least as likely as not related to
4. Less likely than not related to
5. Not related to
When asking for a nexus statement from your PCP, it is completely acceptable for you to explain this matter up front, and ask that he use this language in your progress notes. There is a form that is widely in use for this exact purpose that can be found at : http://www.hadit.com/forums/index.php?act=attach&type=post&id=793. It is also acceptable to have this form already filled out when presented to your doctor. It is not ok, however, to mark one of the boxes that relates your condition to your military service. This should be left blank for your PCP to mark the one he deems appropriate. I have used this form various conditions on a few occasions, and it was always well received by my VARO, and even noted on my decision letters.
Reviewing Your C-file
Now that you have the evidence and the nexus statement, it would be a good time to look over your C-file. If you have never filed a claim with the VA for anything, then you will not need to worry with this step. If you have ever filed for anything with the VA in the past, though, you should do this. You C-file is your claims file that is kept at the VARO that is nearest to you, and typically in the same state that you live. It is supposed to have every piece of information regarding every claim you have ever filed in it. This is rarely the case, however. Therefore it is very important to inspect the file, correct any mistakes, and then get your own copy of this folder. To schedule a appointment to view your file, simply call the VA's 800-827-1000 number and request a time.
Before driving to the VARO, you should make a list of the pieces of evidence that should be in your folder. Highlight any key documents that you will want to bring to the attention of the rater when filing your claim. This will give you a clear plan of attack when looking over your file. This is important, because the time the VARO allots for a veteran to look over their C-file can be brief, and some of us have very large, or multiple folders to go through. Also, be sure to take along a pen and some paper so you can make notes about what you find. While at the VARO, be polite and courteous. We never know what kind of notes they may make about us, plus our moms have all told us that "you can always catch more flies with honey instead of vinegar."
When reviewing your claims file, the first thing you should do is make a quick scan of the documents to make sure that everything in it belongs to you. There have been numerous reports of veterans finding someone else's documents in their folder. You should bring this to the attention of the VARO employee who is present while you are viewing the folder. This will help you by reducing the clutter that a rater will have to sift through when it comes time to adjudicate your claim, and it will help the other veteran by returning their documents to their folder.
Next you will want to ensure that all of the evidence you expected to see in the folder are actually there. If they are not, then make a note of the missing documents, so you can either submit them with your claim, if they are pertinent, or you can submit them at a later date if they are not important to this particular claim. Once you've verified that everything is there, then you should make a note of the date stamps, and any other identifying marks on the pieces of evidence that you highlighted on your list. You can use this in your claim to easily point a rater to the correct documents. Be sure to thank the VARO employee for their time to set up some good karma.
Requesting a copy of your C-file isn't the same as requesting a copy of your medical records from the VA Medical Center (VAMC). Since it is held at the VARO, you will have to contact them, and they will want it in writing. You should write a brief letter to the regional office, requesting a complete copy of your claims file, and all of its contents. Also, fill out and send in a VA Form 3288 along with your letter. At the top of your letter, and on the outside of the envelope, write in bold letters, "Freedom of Information Act Request." This will ensure that it goes to the correct person needed to retrieve, copy and send you folder. Be sure to send this request via certified mail, return receipt requested. This will cost a few dollars more, but is well worth it to know that your request arrived at the VARO. This method should be used for any correspondence with the regional office.
You should know that you DO NOT want to request a copy of your folder while a claim is processing. There has been speculation that if this is done, your folder will be pulled out of line in order to make the copy, then it will be placed at the back of the line when returned. I have been unable to verify that this is what happens, but at the very least it will slow your claim down. Also, there are more and more veterans requesting copies of their files these days, and fewer VARO employees available to fill these requests, so in some cases it can take several months (or more) to actually receive your copy.
Thursday, January 15, 2009
How to File a Claim For VA Disability Compensation
Part I
There are several different types of VA claims, but the claim for disability compensation is likely the most popular of them all. There are a great number of troops who were wounded or injured in combat, but they are not the only ones entitled to disability compensation from the U.S. Department of Veterans Affairs (DVA). The fact is that almost anyone who served on active duty in the United States military is eligible for these benefits, so long as they meet the minimum service requirements and received a Honorable Discharge (or General, under honorable conditions). Since there is usually someone at each military facility to assist those service members who are terminating their service in obtaining their VA benefits, I will only address the older vets that have not been in the military for some time in this writing.
So, you have a medical condition that you think was caused by your military service, but you hung up your BDU's ten years ago (or more). What do you need to do? The first things that you are going to need is the evidence of your current medical condition, evidence of a in-service event that caused the current medical condition, and a nexus that links the in-service event to your current medical condition. But where do you get all of this evidence? That can be the tricky part.
Gathering the Evidence
I served in the Army from 1990-94. When I was out-processing from Ft. Bragg, my unit's medic urged me to sign out my medical records from the troop medical clinic and make a copy of them for myself. This was a suggestion that was repeated later that day in a briefing by the DVA. Thus, I walked away with a complete copy of my service medical records (SMR). Your SMR's can prove invaluable when it comes time to file a disability claim with the VA. They usually contain a record of every time that you had to be seen by a physician for anything from a cold to a major surgery.
What if no one told you to get a copy of your SMR's though? In that case, you need to request a copy of them from the National Personnel Records Center (NPRC) in St. Louis, Missouri. The easiest way to accomplish this is with the online order form, which is easily found on their web site. If you prefer to obtain them the old fashioned way you will need to print off a SF-180 form and mail it in. Even if you made a copy of your SMR before leaving the service, it would still be wise to visit this web site and order a copy of your DD-214 and your Official Military Personnel Files (OMPF).
There are two things worthy of note here. First, there was a disastrous fire at NPRC in 1973 which destroyed approximately 18 million army and air force records. It is estimated that 80% of the Army personnel records with discharge dates between 1 November 1912 and 1 January 1960, and 75% of Air Force Personnel records with discharge dates between 25 September 1947 and 1 January 1964 (with names alphabetically after Hubbard, James E.) were destroyed. Also, between 1992 and 1998 all of the service branches began retiring their SMRs to the DVA.
Next you will need to gather all of your other medical records. If you have seen any civilian physicians, been hospitalized, received chiropractic care or any other type of professional medical care, then get a copy of the record. You may have to make several phone calls, and possibly visit the doctor's office or hospital to get these. You may also have to pay for a copy of them. I personally had to pay over $50 to get a set of my records from a local hospital, but it is worth all the effort and the cost when it comes to your VA claim.
You will also need to gather all of your VA medical records. This is usually the easiest evidence to get. If you live nearby a VA medical center (VAMC), then visit the Release of Information office and simply request a copy of any records that you have there. If you use a VA clinic, then they should have the most recent records, but they usually send older records to the parent VAMC. In this case, you should contact the records custodian at the clinic for information on obtaining a complete set of your medical records.
There are other various types of evidence that can be useful. One is the "buddy letter." This is just what it sounds like, a letter written from a friend who you either served with which makes them knowledgeable of the in service event that caused your disability, or someone who knows first hand how your disability currently impacts your life. A buddy letter can also be very useful from a parent or sibling, and especially from a spouse. These people can often speak to your health prior to entering the military, while you served, and after your military service was over. They can usually paint a descriptive picture of a veterans decline over a period of many years. Be aware, however, while buddy letters are accepted as part of the overall disability picture, they are considered "lay" evidence, and do not usually carry a great deal of weight in the final decision.
A commander's statement can go a long way, especially if the officer is still in the military, when trying to prove a stressor in a PTSD claim. These can prove very difficult to obtain, however. Former unit commanders, just like former military buddies move on with their lives, and tracking them down can be hard to do. A couple of ideas to begin a search for someone like this is to simply Google the person's name, or search Military.com. I am sure there are a number of other great resources for finding past military acquaintances, and a search of military oriented web sites would reveal them.
Morning reports from your former units actions can be useful to prove service in combat and battles where wounds may have occurred. These reports are also stored at the NPRC, and you can request them by writing a letter, or by using the SF 180 form. When requesting a morning report, you need to provide the exact unit of assignment, down to the company level, a description of the action (i.e. you were wounded), and an approximate date. The collection of reports covers from 1 November 1912 through 1974 for the Army, and from September 1947 through 30 June 1966 for the Air Force.
Lastly, there are some claims where VA documents or scholarly articles written about the specific condition can be quoted. In these cases, a copy of the document should be included with the evidence for reference. These scholarly articles are sometimes discounted as "internet documents," but this varies from regional office to regional office. To have a better chance of your article being used in the claim, stick to well known publications such as the Journal of the American Medicine Association (JAMA) and the New England Journal of Medicine. It is even better if you can find a article specific to your condition in one of these publications that was written by a VA physician, or sponsored by the VA.
A example of a VA document that can be useful to a claim is the 2002 VA Training Letter of Intervertabral Disc Syndrome. This training letter is packed full of good information that you can use in your claim. It spells out other names used for this condition so that the rater cannot become language focused on this type of claim, as well as listing many conditions that are secondary to IVDS. It even tells the rater exactly how to rate a claim for this condition, and provides clear cut examples to go by. I used this letter extensively in my claim for IVDS. There are several other VA training letters and documents that can be used, and a search of VA.gov can find most of them.
Lastly, you can use Board of Veterans Appeals (BVA) and Court of Appeals for Veterans Claims (CAVC) cases as examples in your claim. While the majority of CAVC cases, and no BVA case is precedent, they can still be useful to point the rater in the right direction on a claim. They also will help to bolster your knowledge of how the process works and what to expect. Moreover, it shows the rater that you are doing your homework, and you will not accept any funny business. BVA cases are easily searched from the VA.gov web site, and CAVC cases can be found at www.vetapp.uscourts.gov.
I think we have covered enough in this segment. Start gathering your evidence and doing the research that is necessary to win your claim, and I'll get to work on the second part of this blog where we'll cover making the nexus and reviewing your C-file.
There are several different types of VA claims, but the claim for disability compensation is likely the most popular of them all. There are a great number of troops who were wounded or injured in combat, but they are not the only ones entitled to disability compensation from the U.S. Department of Veterans Affairs (DVA). The fact is that almost anyone who served on active duty in the United States military is eligible for these benefits, so long as they meet the minimum service requirements and received a Honorable Discharge (or General, under honorable conditions). Since there is usually someone at each military facility to assist those service members who are terminating their service in obtaining their VA benefits, I will only address the older vets that have not been in the military for some time in this writing.
So, you have a medical condition that you think was caused by your military service, but you hung up your BDU's ten years ago (or more). What do you need to do? The first things that you are going to need is the evidence of your current medical condition, evidence of a in-service event that caused the current medical condition, and a nexus that links the in-service event to your current medical condition. But where do you get all of this evidence? That can be the tricky part.
Gathering the Evidence
I served in the Army from 1990-94. When I was out-processing from Ft. Bragg, my unit's medic urged me to sign out my medical records from the troop medical clinic and make a copy of them for myself. This was a suggestion that was repeated later that day in a briefing by the DVA. Thus, I walked away with a complete copy of my service medical records (SMR). Your SMR's can prove invaluable when it comes time to file a disability claim with the VA. They usually contain a record of every time that you had to be seen by a physician for anything from a cold to a major surgery.
What if no one told you to get a copy of your SMR's though? In that case, you need to request a copy of them from the National Personnel Records Center (NPRC) in St. Louis, Missouri. The easiest way to accomplish this is with the online order form, which is easily found on their web site. If you prefer to obtain them the old fashioned way you will need to print off a SF-180 form and mail it in. Even if you made a copy of your SMR before leaving the service, it would still be wise to visit this web site and order a copy of your DD-214 and your Official Military Personnel Files (OMPF).
There are two things worthy of note here. First, there was a disastrous fire at NPRC in 1973 which destroyed approximately 18 million army and air force records. It is estimated that 80% of the Army personnel records with discharge dates between 1 November 1912 and 1 January 1960, and 75% of Air Force Personnel records with discharge dates between 25 September 1947 and 1 January 1964 (with names alphabetically after Hubbard, James E.) were destroyed. Also, between 1992 and 1998 all of the service branches began retiring their SMRs to the DVA.
Next you will need to gather all of your other medical records. If you have seen any civilian physicians, been hospitalized, received chiropractic care or any other type of professional medical care, then get a copy of the record. You may have to make several phone calls, and possibly visit the doctor's office or hospital to get these. You may also have to pay for a copy of them. I personally had to pay over $50 to get a set of my records from a local hospital, but it is worth all the effort and the cost when it comes to your VA claim.
You will also need to gather all of your VA medical records. This is usually the easiest evidence to get. If you live nearby a VA medical center (VAMC), then visit the Release of Information office and simply request a copy of any records that you have there. If you use a VA clinic, then they should have the most recent records, but they usually send older records to the parent VAMC. In this case, you should contact the records custodian at the clinic for information on obtaining a complete set of your medical records.
There are other various types of evidence that can be useful. One is the "buddy letter." This is just what it sounds like, a letter written from a friend who you either served with which makes them knowledgeable of the in service event that caused your disability, or someone who knows first hand how your disability currently impacts your life. A buddy letter can also be very useful from a parent or sibling, and especially from a spouse. These people can often speak to your health prior to entering the military, while you served, and after your military service was over. They can usually paint a descriptive picture of a veterans decline over a period of many years. Be aware, however, while buddy letters are accepted as part of the overall disability picture, they are considered "lay" evidence, and do not usually carry a great deal of weight in the final decision.
A commander's statement can go a long way, especially if the officer is still in the military, when trying to prove a stressor in a PTSD claim. These can prove very difficult to obtain, however. Former unit commanders, just like former military buddies move on with their lives, and tracking them down can be hard to do. A couple of ideas to begin a search for someone like this is to simply Google the person's name, or search Military.com. I am sure there are a number of other great resources for finding past military acquaintances, and a search of military oriented web sites would reveal them.
Morning reports from your former units actions can be useful to prove service in combat and battles where wounds may have occurred. These reports are also stored at the NPRC, and you can request them by writing a letter, or by using the SF 180 form. When requesting a morning report, you need to provide the exact unit of assignment, down to the company level, a description of the action (i.e. you were wounded), and an approximate date. The collection of reports covers from 1 November 1912 through 1974 for the Army, and from September 1947 through 30 June 1966 for the Air Force.
Lastly, there are some claims where VA documents or scholarly articles written about the specific condition can be quoted. In these cases, a copy of the document should be included with the evidence for reference. These scholarly articles are sometimes discounted as "internet documents," but this varies from regional office to regional office. To have a better chance of your article being used in the claim, stick to well known publications such as the Journal of the American Medicine Association (JAMA) and the New England Journal of Medicine. It is even better if you can find a article specific to your condition in one of these publications that was written by a VA physician, or sponsored by the VA.
A example of a VA document that can be useful to a claim is the 2002 VA Training Letter of Intervertabral Disc Syndrome. This training letter is packed full of good information that you can use in your claim. It spells out other names used for this condition so that the rater cannot become language focused on this type of claim, as well as listing many conditions that are secondary to IVDS. It even tells the rater exactly how to rate a claim for this condition, and provides clear cut examples to go by. I used this letter extensively in my claim for IVDS. There are several other VA training letters and documents that can be used, and a search of VA.gov can find most of them.
Lastly, you can use Board of Veterans Appeals (BVA) and Court of Appeals for Veterans Claims (CAVC) cases as examples in your claim. While the majority of CAVC cases, and no BVA case is precedent, they can still be useful to point the rater in the right direction on a claim. They also will help to bolster your knowledge of how the process works and what to expect. Moreover, it shows the rater that you are doing your homework, and you will not accept any funny business. BVA cases are easily searched from the VA.gov web site, and CAVC cases can be found at www.vetapp.uscourts.gov.
I think we have covered enough in this segment. Start gathering your evidence and doing the research that is necessary to win your claim, and I'll get to work on the second part of this blog where we'll cover making the nexus and reviewing your C-file.
Tuesday, January 6, 2009
My Philosophy on VA Claims
No one cares as much about your claim as you do. I can't remember where I first read that phrase. It may have come from Larry Scott, the founder of VAWatchdog (www.vawatchdog.org), or from the renown veterans advocate Jim Strickland, or it could have come from one of the many members of Hadit forums (www.hadit.com), which is typically on the leading edge of all things VA. Where it came from isn't important. What is important is that this phrase will always ring true.
There are literally dozens of veterans organizations out there, all of which have VSO's to assist us with our VA disability claims. Some of them take great care and do honestly have our best interests at heart. Some our so embedded in the organization that they feel the need to go through the motions on your claim, simply to gain a larger member base. Of the ones who have a sincere desire to help, some may actually know what they are doing, and some definitely do not. There is typically no standard by which these individuals receive training.
So, all of this means that the vast majority of the outcome of your claim rests squarely on your shoulders. How does that make you feel? A little mad? A little scared? Maybe completely intimidated and overwhelmed? You shouldn't be. You're a veteran of the strongest military in the world! You've been through things that would make most grown men cower. You have been taught to be resilient and resourceful. Now is the time to reach back in your memory and pull out all of that old training, dust it off, and redeploy it.
The first thing all veterans need to know is that the Department of Veterans Affairs is not the Big Bad Wolf. They are not out to get you, or to deny your claim without merit. Sure, there are some within its ranks that are unscrupulous, and will deny claims without even reading them, and there are even those that will shred your evidence before it even gets to your claims file. The majority of these employees, however, are just working stiffs like you and I. Many of them are veterans themselves, and several of those are even disabled veterans. We all seem to get the impression that the VA's master plan is to "deny until you die," but we never stop to think about the hoards of veterans who never have a problem with their benefits at all. So, the first thing that we need to do is cast aside that mentality. Don't get rid of it completely, though, because we all need to go back to it from time to time to get pissed off enough to fight back.
The next thing that we all must realize is that our fight with the VA is a war of words. They operate under laws, regulation, and manuals. All of these items are written in specific language that must be closely adhered to in order to win your claim. Contrary to popular belief, these things are not written in secret code, but in ordinary, everyday language. Some of the words may not make sense to many, but if the reader takes the time to look up the words he does not understand, the education he gets in return can be completely empowering. It's time to dust off those dictionaries and bookmark Google in your web browser.
There are two different sayings that come to mind when I think about this; "knowledge is power," and "you're never too old to learn." Both of these things are very true, and both of them can be employed in your war with the VA. There are several pieces of information that the VA uses in deciding our claims, but the main ones that we need to concern ourselves with is Title 38, 38 CFR 3, 38 CFR 4, M21-1MR, and the C&P Service Clinician's Guide. There are many others, but if you start with these and get a mastery of their text, then you are far ahead of the game, and equal in knowledge to many of the people who rate your claims.
Title 38 is the laws that govern the Department of Veterans Affairs. These have been written by Congress over many years of trial and error. They can and do change from time to time, so you should expect it. 38 CFR 3 is the regulation that explains how to apply a portion of these laws. This regulation is chiefly concerned with adjudication of veterans claims. It tells the rater what needs to be looked at, and how to make a decision on your claim. 38 CFR 4 is the regulation that explains the part of Title 38 dealing with the actual ratings and percentages assigned to each disability. This regulation should be of particular concern to the veteran, because if you know where your particular disability's symptoms lie in the rating criteria, then you will know exactly what rating to expect. If you do not get the rating that you expect, then you will know exactly how to fight back.
That brings us to M21-1MR. This is one of the manuals that the VA uses to enact the things written in the regulations. It instructs them on all kinds of various activities, such as mail handling, duty to assist the veteran, and adjudication of claims. This manual is not law, but simply instructions on how to apply the law. If you find the VA not adhering to their own set of standards, then you can use their own publication to call them out on their sloppy work.
Last is the C&P Service Clinician's Guide. This is the instruction manual that Veterans Health Administration practitioners use to administer compensation and pension examinations. It is packed with useful information for the veteran as well. Most importantly, it tells us what to expect when we are called in for the fear-inducing C&P exam. You can read over your specific exam and know exactly what to expect, and also you'll know when you have been given a inadequate exam. If the practitioner misses a step, such as measuring ranges of motion with a goniometer, you can politely bring it to their attention. If it is a completely botched exam, you can report it to both the regional office and the patient advocate at the VAMC after you have confirmed less than favorable exam results.
Now, back to the item of specific language. A reading of 38 CFR 4 will give the veteran the information that is needed to assign a rating percentage to a particular disability. This information is most often very specific in nature. For example, there are two ways to rate intervertebral disc syndrome of the spine; either by a loss of range of motion, or by incapacitating episodes. Let's look at incapacitating episodes. To most of us, a incapacitating episode would mean any time that this particular disability totally incapacitates you, or takes you out of action. In other words, you can't work, do chores, go shopping, or almost anything else. To the VA, however, a incapacitating episode is a period of time of "...acute signs and symptoms due to intervertabral disc syndrome that requires prescribed by a physician and treatment by a physician."
So, let's say you go to your VA primary care physician with very bad back pain one day, and he tells you to go home, and get to bed. Then he gives you a work excuse for the next two weeks. If this doctor does not put the words "incapacitated," or "bed rest," or something very similar in your progress notes regarding this incident, then it does not constitute physician prescribed bed rest in the VA's eyes. This is precisely why we all need to study each regulation that applies to us and our particular disabilities, and then compare those regulations to the wording the doctors have used in our medical records. If the words in the medical records mean the same thing, but aren't specific enough, then we need to point it out to our doctors. Often, that is all it takes to get them to change the wording.
Another issue that I have seen several times is that there are multiple criteria for different percentages. A good example is adjustment and anxiety disorders, such as PTSD. There may be five specific things listed for a 30% rating, and seven specific things listed for a 50% rating. In order to get one of these ratings, you have to have a majority of the criteria for one or the other. Let's say you've had a mental health C&P that lists four of the criteria for each rating. That would mean that you will end up with the 30% rating because you have met the majority of that criteria. You look in your medical records and find things that could put you over the top for the higher rating, but the wording is slightly different. Instead of a "flat effect," the psychiatrist said that you had a "dysphoric effect." These two terms mean the same thing, but the words "flat effect" is what is found in the rating criteria. You need to go back to the psychiatrist, explain your predicament, and ask if the wording can be changed. You also need to be sure that this information is described in current terms, or the VA will say that the psychiatrist's description does not relate to the most current picture of the disability.
I always suggest to pick up a complete copy of your medical records when you start receiving treatment at the VA on a regular basis, and then pick up the most recent records once a month. It is also suggested that everyone send off to St. Louis to get a complete copy of their service medical records and other service records prior to filing a claim. You should also pick up a copy of each C&P exam at the VAMC where the exam took place within a few weeks of the exam. Study all of these records very carefully and compare them to the laws and regulations that apply to you. Take the time to carefully gather all of the evidence, highlight the pertinent parts, and write a powerfully worded statement in support of claim. Don't hold anything back, for the one piece of evidence that you might deem unnecessary may be the one thing that is needed to prove your claim. Tell them in your statement exactly what you want, exactly what evidence you have, and exactly what laws and regulations apply. Also tell them that you expect them to adhere to these laws and regulations, as well as their own guidelines as spelled out in the M21-1MR. Our C-file only crosses the rater's desk for a few brief moments as the claim is being decided, so we don't have time to mince words or pull punches.
Now that you have knowledge on your side, Hit 'em with both barrels right from the start!
There are literally dozens of veterans organizations out there, all of which have VSO's to assist us with our VA disability claims. Some of them take great care and do honestly have our best interests at heart. Some our so embedded in the organization that they feel the need to go through the motions on your claim, simply to gain a larger member base. Of the ones who have a sincere desire to help, some may actually know what they are doing, and some definitely do not. There is typically no standard by which these individuals receive training.
So, all of this means that the vast majority of the outcome of your claim rests squarely on your shoulders. How does that make you feel? A little mad? A little scared? Maybe completely intimidated and overwhelmed? You shouldn't be. You're a veteran of the strongest military in the world! You've been through things that would make most grown men cower. You have been taught to be resilient and resourceful. Now is the time to reach back in your memory and pull out all of that old training, dust it off, and redeploy it.
The first thing all veterans need to know is that the Department of Veterans Affairs is not the Big Bad Wolf. They are not out to get you, or to deny your claim without merit. Sure, there are some within its ranks that are unscrupulous, and will deny claims without even reading them, and there are even those that will shred your evidence before it even gets to your claims file. The majority of these employees, however, are just working stiffs like you and I. Many of them are veterans themselves, and several of those are even disabled veterans. We all seem to get the impression that the VA's master plan is to "deny until you die," but we never stop to think about the hoards of veterans who never have a problem with their benefits at all. So, the first thing that we need to do is cast aside that mentality. Don't get rid of it completely, though, because we all need to go back to it from time to time to get pissed off enough to fight back.
The next thing that we all must realize is that our fight with the VA is a war of words. They operate under laws, regulation, and manuals. All of these items are written in specific language that must be closely adhered to in order to win your claim. Contrary to popular belief, these things are not written in secret code, but in ordinary, everyday language. Some of the words may not make sense to many, but if the reader takes the time to look up the words he does not understand, the education he gets in return can be completely empowering. It's time to dust off those dictionaries and bookmark Google in your web browser.
There are two different sayings that come to mind when I think about this; "knowledge is power," and "you're never too old to learn." Both of these things are very true, and both of them can be employed in your war with the VA. There are several pieces of information that the VA uses in deciding our claims, but the main ones that we need to concern ourselves with is Title 38, 38 CFR 3, 38 CFR 4, M21-1MR, and the C&P Service Clinician's Guide. There are many others, but if you start with these and get a mastery of their text, then you are far ahead of the game, and equal in knowledge to many of the people who rate your claims.
Title 38 is the laws that govern the Department of Veterans Affairs. These have been written by Congress over many years of trial and error. They can and do change from time to time, so you should expect it. 38 CFR 3 is the regulation that explains how to apply a portion of these laws. This regulation is chiefly concerned with adjudication of veterans claims. It tells the rater what needs to be looked at, and how to make a decision on your claim. 38 CFR 4 is the regulation that explains the part of Title 38 dealing with the actual ratings and percentages assigned to each disability. This regulation should be of particular concern to the veteran, because if you know where your particular disability's symptoms lie in the rating criteria, then you will know exactly what rating to expect. If you do not get the rating that you expect, then you will know exactly how to fight back.
That brings us to M21-1MR. This is one of the manuals that the VA uses to enact the things written in the regulations. It instructs them on all kinds of various activities, such as mail handling, duty to assist the veteran, and adjudication of claims. This manual is not law, but simply instructions on how to apply the law. If you find the VA not adhering to their own set of standards, then you can use their own publication to call them out on their sloppy work.
Last is the C&P Service Clinician's Guide. This is the instruction manual that Veterans Health Administration practitioners use to administer compensation and pension examinations. It is packed with useful information for the veteran as well. Most importantly, it tells us what to expect when we are called in for the fear-inducing C&P exam. You can read over your specific exam and know exactly what to expect, and also you'll know when you have been given a inadequate exam. If the practitioner misses a step, such as measuring ranges of motion with a goniometer, you can politely bring it to their attention. If it is a completely botched exam, you can report it to both the regional office and the patient advocate at the VAMC after you have confirmed less than favorable exam results.
Now, back to the item of specific language. A reading of 38 CFR 4 will give the veteran the information that is needed to assign a rating percentage to a particular disability. This information is most often very specific in nature. For example, there are two ways to rate intervertebral disc syndrome of the spine; either by a loss of range of motion, or by incapacitating episodes. Let's look at incapacitating episodes. To most of us, a incapacitating episode would mean any time that this particular disability totally incapacitates you, or takes you out of action. In other words, you can't work, do chores, go shopping, or almost anything else. To the VA, however, a incapacitating episode is a period of time of "...acute signs and symptoms due to intervertabral disc syndrome that requires prescribed by a physician and treatment by a physician."
So, let's say you go to your VA primary care physician with very bad back pain one day, and he tells you to go home, and get to bed. Then he gives you a work excuse for the next two weeks. If this doctor does not put the words "incapacitated," or "bed rest," or something very similar in your progress notes regarding this incident, then it does not constitute physician prescribed bed rest in the VA's eyes. This is precisely why we all need to study each regulation that applies to us and our particular disabilities, and then compare those regulations to the wording the doctors have used in our medical records. If the words in the medical records mean the same thing, but aren't specific enough, then we need to point it out to our doctors. Often, that is all it takes to get them to change the wording.
Another issue that I have seen several times is that there are multiple criteria for different percentages. A good example is adjustment and anxiety disorders, such as PTSD. There may be five specific things listed for a 30% rating, and seven specific things listed for a 50% rating. In order to get one of these ratings, you have to have a majority of the criteria for one or the other. Let's say you've had a mental health C&P that lists four of the criteria for each rating. That would mean that you will end up with the 30% rating because you have met the majority of that criteria. You look in your medical records and find things that could put you over the top for the higher rating, but the wording is slightly different. Instead of a "flat effect," the psychiatrist said that you had a "dysphoric effect." These two terms mean the same thing, but the words "flat effect" is what is found in the rating criteria. You need to go back to the psychiatrist, explain your predicament, and ask if the wording can be changed. You also need to be sure that this information is described in current terms, or the VA will say that the psychiatrist's description does not relate to the most current picture of the disability.
I always suggest to pick up a complete copy of your medical records when you start receiving treatment at the VA on a regular basis, and then pick up the most recent records once a month. It is also suggested that everyone send off to St. Louis to get a complete copy of their service medical records and other service records prior to filing a claim. You should also pick up a copy of each C&P exam at the VAMC where the exam took place within a few weeks of the exam. Study all of these records very carefully and compare them to the laws and regulations that apply to you. Take the time to carefully gather all of the evidence, highlight the pertinent parts, and write a powerfully worded statement in support of claim. Don't hold anything back, for the one piece of evidence that you might deem unnecessary may be the one thing that is needed to prove your claim. Tell them in your statement exactly what you want, exactly what evidence you have, and exactly what laws and regulations apply. Also tell them that you expect them to adhere to these laws and regulations, as well as their own guidelines as spelled out in the M21-1MR. Our C-file only crosses the rater's desk for a few brief moments as the claim is being decided, so we don't have time to mince words or pull punches.
Now that you have knowledge on your side, Hit 'em with both barrels right from the start!
Subscribe to:
Posts (Atom)
