TinCanMan

Well, looks pretty much like no cigar for the rest of us. My reading of this decision leads me to believe it only affects claims that were "pending" on 3 June 2003 when the VA published the changes to CFR regarding tinnitus. While any progress may be considered good progress, there won't be many folks able to piggyback on this and it doesn't guarantee a bilateral payment to the affected folks as the VA has rejected such requests claiming they will be appealing.

Wednesday, President Bush signed into law H.R. 2528, the "Military Quality of Life and Veterans Affairs Appropriations Act of 2006." This legislation appropriates funds for military construction and VA health care. The appropriation will provide $31.8 billion in discretionary funding for the Department of Veterans Affairs.

I don't think anyone, including the VA, thinks fraud is involved. Well, at least not on the part of the veteran. If you read the OIG report you'll see the OIG believed the problem was with the VARO's in that most didn't properly verify the stressors thereby awarding compensation in error. Now that everyone knows there is a problem and the politicians are all lined up to pound the drum, I suspect changes are going to be made. I think 38 CFR is ripe for change and it wouldn't surprise me if the commission recommends a complete rewrite. That's one of the reasons it takes so long. The legalities, including case law simply demand all the i's get dotted and the t's get crossed. That and the fact that compensation isn't at all like social security. In SS the administration only need verify the claimant is unable to work and that he is a citizen. If he has qualifying earnings he gets SS, if not he gets SSDI. No search for 40 year old records, verification of stressor, verification if it was service connected, just pay the man.

Folks: Personally, I don't have a dog in the fight over this issue. The info I posted just came across my desk this morning and I put it up for informational purposes. Having said that and noting Michael's comment that it is the VARO's duty to validate the claims, I'd offer that they haven't done a very good job of it. As a taxpayer, if a government agency has noted they failed in their fiduciary duty to the public, I'd expect them to go back and fix it. This issue comes up as a result of the Knight Ridder report indicating Illinois vets were being short changed. ISTM, Lane Evans got into the picture hoping to take political advantage of the situation and started whining to the VA about it. The VA's response was to sic their OIG on the problem to find out what happened and why certain areas appear to be getting the short end of the stick. It appears the OIG Report indicates that the problem isn't necessarily that certain areas got shortchanged but that other areas weren't validating claims properly and that the big money was in the PTSD/IU claims. I suppose everyone expected the VA would roll over and just loosen up the purse in those areas that appeared to be shortchanged but in an era of ever increasing expenses for OIF/OEF, there's no fat in the budget. In any event, I doubt the taxpayer is sympathetic to continued overpayments. The VA was willing to go off and re-examine the last 5 years of PTSD/IU awards because that's where the biggest bang for the buck was but everyone pitched a bitch. Now, we have the IOM and the Veterans Commission getting in on the act. No telling where this will lead and I don't think we are going to like the result.

VA is apparently initiating a new review of PTSD diagnosis, treatment and compensation. The VA’s plans came to light on 16 NOV, six days after they had canceled a review of 72,000 PTSD claims awarded at 100% disability. Information about the new PTSD review was made public in a press release by Senator Larry Craig (R-ID), Chairman of the Senate Committee on Veterans’ Affairs. The release, in part, said, “The Department of Veterans Affairs announced today that it has contracted with the Institute of Medicine (IOM) on a two-pronged approach to the examination of PTSD.” The VA’s announcement was in the form of two documents they sent to Sen. Craig's office. One, a Fact Sheet prepared by the VA's Office of the Under Secretary for Health detailing the contract between the VA and the IOM. The other was a Question and Answer sheet prepared for members of Congress and the press. At www.vawatchdog.org/newsflash/newsflash11-23-2005-3.htm.both documents a! re available for review. The Fact sheet notes that The Secretary of the Department of Veterans Affairs has requested that the Institute of Medicine (IOM) conduct a review of PTSD. The IOM will provide the VA with current information that might reform VA policy as it relates to PTSD diagnosis, treatment and compensation. To accomplish this task, IOM will convene two separate committees. Specifically, the committees are to: - Review the utility and objectiveness of the criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV). - Redefine PTSD by altering diagnostic and treatment techniques. - Review and comment on the objective measures used in the diagnosis of PTSD and known risk factors for the development of PTSD. - Comment on the validity of current screening instruments and their predictive capacity for accurate diagnoses. - Review literature on compensation practices for PTSD and how changes in the frequency and intensity of symptoms affect compensation under these practices. - Assess how compensation practices and reevaluation requirements for PTSD compare with other chronic conditions which have periods of remission and return of symptoms. - Review strategies used to support recovery and return to function in patients with PTSD. The IOM reviews are to be completed in a year. They could become the basis for the VA to write an alternate definition of PTSD exclusive of the DSM-IV and institute new methods of treatment outside of normally accepted guidelines. They could also be the means to lower PTSD compensation based on “frequency and intensity of symptoms” & “remission and return of symptoms.” The O&A sheet revealed that the VA is examining compensation for ALL health conditions and that they are coordinating their efforts with the Veterans’ Disability Benefits Commission (VDBC). The VDBC, by law, is independent of the Department of Veterans’ Affairs. The VDBC is made up of 13 members who are currently studying all areas of VA compensation. Nine members were appointed by Republicans. The VA Secretary Nicholson was appointed by President Bush. For additional information refer to previous Bulletin articles titled “VDBC”. [source: http://vawatchdog.blogspot.com Nov 05]

Michael: You've gotten good advice regarding your claim from the DVA, DAV and the folks here on Hadit. The bottom line is you simply cannot win at a presumptive AO claim. This isn't working and you need to change your tactics if you want to succeed. It's just that simple. The DAV isn't required to represent you, no service organization is. At this point it appears they feel they've done all they can. You tell us they've informed you of what you can't do but I don't see where you mention being informed of what you can do. That doesn't surprise me though as I don't see you've been any too receptive to the suggestions made here. Not all SO's are cut from the same cloth, some go the extra mile, some don't. At this point it's up to you to pursue your own claim. Learn the statutes and regulations and submit everything yourself. Keep copies of everything, then you'll be assured everything you wanted to submit gets there. There is no requirement to have a SO. You'll need to rescind the POA you signed for the DAV before you can represent yourself. You'll need to discover evidence of AO usage where you served and need to show you were exposed there. Work with the TVVETS folks, this is what they do. The VA has a duty to assist the veteran in finding evidence to support his claim but they just send letters out to official sources asking for info. If they are ignored or told no info exists, they stop. They don't have to persist till hell freezes over. That's your job. At some point they will decide no more info exists and adjudicate your claim on what they have, usually to your detriment. Now, as far as your chloracne goes, the VA C&P service has determined you have folliculitus and not chloracne. That is a valid medical opinion and it isn't likely to change. If you disagree with their findings, complaining about it isn't going to make a difference. You have no medical standing and your medical opinion is worthless in the eyes of the decision maker. Your option here is to accept their diagnosis or hire your own doctor to render an independent medical opinion (IMO). You will have to have your service medical records available for his review and he will have to include a statement to the effect of he has reviewed your records, examined you and found you have chloracne and more likely than not, it is due to exposure in Thailand. Personally, I'd question the veracity of any physician willing to do that for several reasons. Firstly because every man, woman and child in the U.S. will test positive for dioxin exposure. It's all around us in the food we eat and the milk we drink. You've sprayed it on your yard and garden for the past 40 years and then rolled around in it playing with your dog and kids. Secondly, because my reading on chloracne indicates it manifests itself within 1 year of exposure (usually a couple of weeks) and self resolves within 2 years. The likelihood that your chloracne persisted for more than 35 years is very slim. In the end, you are going to need to get very proactive with your claim. If you need advice on specifics, this is a good place to it.

It answered the questions I had but raised additional questions. From the VA response under "Reasons and Bases" it appears they believed you were making a presumptive claim under AO exposure for service in Vietnam. If that's an accurate assumption of your claim, you can expect to be unsuccessful. I don't know of nor have I heard of any veteran making such a claim be successful. I note the decision maker's comment: "In the Republic of Vietnam means that you must have been in-country on land," to be inaccurate. I guess that represents his understanding of OGC 27-97 but nowhere does it state anything about in-country or on land. I think he is wrong in that respect since OGC 27-97 uses various phrases such as "within the borders of the Republic of Vietnam" or "in the Republic of Vietnam" or "within the boundaries of the Republic" but doesn't require one to be on land. I know of numerous blue water awards for AO presumption where the veteran served on a deep water hull that operated on the rivers and/or certain enclosed bays. They convinced both RO's and the BVA that service on a river w/o having been on land was qualifying. None of that helps you any as your service appears to have been exclusively outside the Republic of Vietnam. In that case you will need to prove you were exposed to AO in whatever venue you served. Some veterans have managed to prove exposure in Okinawa, Guam and a few continental sites but I don't know of one that did so for Laos or Thailand to date. You complain the VA didn't mention your 2nd tour or your AFCM. I don't know there was a requirement to mention it and even if they considered them, I can't understand how either would have made a difference in the outcome. I guess I don't understand why that's relevant. Can you explain? ISTM, if one tour of service outside the Republic of Vietnam doesn't qualify for AO presumption why would 2 tours, and how is the AFCM relevant? Now, lots of folks seem to interpret a denial of their claim to be tantamount to the government saying they didn't participate in the Vietnam experience when all it says is they don't qualify for a presumptive claim based on AO exposure.

No, actually it's not true. None of it. There is no such thing as a requirement for "boots-on-the-ground" in Vietnam to be eligible for consideration under AO presumption. It isn't written anywhere in statute, regulation or OGC Precedent Opinion. The defining document is VAOPGCPREC 27-97 This is an opinion by the VA's Office of General Council and it is binding on all VA employee's. The OGC is the Veteran's Administration's in house lawyers. In the 90's there was a lot of confusion as to the definition of "in the Republic of Vietnam" which is the delimiting phrase used in US Code governing AO Presumption. The Secretary of the DVA asked the OGC to examine the statutes, the Congressional Record and the Federal Register to determine what Congress intended when they wrote the legislation. The result was VAOPGCPREC 27-97. Now, OGC 27-97 isn't law or regulation but it is binding on all VA employee's until such time as a court of law says otherwise or Congress passes additional legislation to modify the statutes. OGC 27-97 was the 27th opinion rendered in 1997, long before Principi became Secretary. Jesse Brown was Secretary from 93-97 when he was replaced by Togo West in 12/97. So you can see it had nothing to do with Anthony J. Principi and for what it's worth, there is no supporting evidence it was a "bean counter" driven change. I haven't seen the decision on your claim and you haven't told us the wording under "Reasons and Bases" so I can only guess as to what happened. If you have been denied 4 times you need to change something. Resubmitting the same old evidence isn't working. Read what it says under Reasons and Bases and provide the evidence they want. There are two types of claims: Direct Presumptive A successful direct claim will include 3 elements: 1. A diagnosis of a compensable condition 2. Military service 3. And a connection or nexus between the previous two. In your case you need to prove Agent Orange was used where you served in Thailand & that you were exposed to it. You also need to show a diagnosis for each condition claimed. In order to be successful in a presumptive AO claim you must satisfy the first two elements above and prove you served in The Republic of Vietnam. If you can prove that, you will be presumed to have been exposed to AO and that it caused the conditions claimed provided they are one of the eleven accepted conditions. Unless you can prove service in country, you are left with a direct claim. Service anywhere other than Vietnam or Korea on the DMZ doesn't qualify for AO presumption.