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!