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DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington DC 20420
December 13, 2000
In Reply Refer To: 211
Director (00/21) Fast Letter (00-92)
All VBA Regional Offices and Centers
SUBJ: Veterans Claims Assistance Act of 2000
On November 17, 2000, you were sent VBA Fast Letter 00-87 which contained general guidance on claims processing under the Veterans Claims Assistance Act of 2000 (the Act). Many Regional Offices submitted questions regarding the policy and procedures stated in the Fast Letter. We addressed many of these questions in the conference call of November 28, 2000. The purpose of this Fast Letter is to reiterate the responses we gave in the conference call and address some of the additional questions we received. We continue to discuss many of these issues with our stakeholders, with personnel in Regional Offices, and with VA General Counsel and expect to issue additional guidance as needed. We are developing a regulation which would supersede the informal guidance contained in these Fast Letters, to the extent of any inconsistency.
In addition, we have received a number of comments and questions concerning issues related to the scope of the claims which must be reviewed under the Act. We are continuing to discuss this issue and will provide further guidance on this topic very shortly.
Review of claims previously denied as not well grounded.
1. Do we initiate development on all claims we find that were previously denied as not well grounded after July 14, 1999? Is it necessary to initiate development on the claims, giving the claimants another opportunity to respond, or can we merely re-rate the claim and deny on the merits of the case?
We cannot merely re-rate the claim and deny on the merits of the case. For all claims we readjudicate, we must provide the claimants with the statutory notice mandated by the Act, identifying the information or evidence necessary to substantiate the claim. The notice must also tell the claimant which portion of that information and evidence, if any, is to be provided by the claimant and which portion VA will attempt to obtain on the claimant’s behalf. We must give the claimant an opportunity to respond by submitting the requested information or evidence, and we must develop for all relevant Federal and non-Federal records the claimant identifies, if not already of record
2. Can a representative of a claimant file the request for readjudication under the new law?
Yes, a representative can act on the claimant’s behalf in this request as he/she can act in any other matter.
3. Your letter implies that the original decision is essentially vacated. Can there be an appeal then? Is what was accepted as an NOD on this category of cases essentially the request for readjudication?
The claims denied as not well grounded should not be “vacated” in the sense of being removed from the file. The old decisions, although no longer effective, should remain a part of the file. Since claims pending appellate action are not final decisions, they should be reviewed for compliance with the duty to assist requirements of the Act. Ensure that the new notice and development provisions of the Act have been met. If after appropriate notice and full development based on our duty to assist, benefits sought are denied, continue processing the appeal.
In the November 28 conference call, we stated that the claimant should be advised that he or she would need to file another NOD or Form 9 substantive appeal to appeal the new decision because the Act required us to treat the prior denial as if it had not been made. We have revised this guidance. Because BVA remand cases retain their docket numbers, claims in appeal status at the regional office level should be similarly treated. Claimants who have filed substantive appeals should similarly retain their docket numbers, and those who have filed NODs should likewise retain their places in the appeal time line. Therefore, do not advise the claimant that he or she needs to file another NOD or Form 9. Readjudicate the claim, and if it remains denied, issue a Statement of the Case or Supplemental Statement of the Case as appropriate.
4. There is a two-year time limit given for requests for readjudication. Is there a time limit on readjudicating any case we discover on our own? If so, how would readjudication without a request affect the effective date under §3.114? Does this mean that any case which contains a claim that was denied as not well grounded which is reviewed for any purpose in the future must be readjudicated?
The statute applies a two-year time limit for readjudicating claims on VA’s own motion. The Act does not require VA to locate and readjudicate all claims previously denied as not well grounded. However, we believe it is fair to readjudicate claims that have been denied as not well grounded if we come across them in other administrative or case reviews within the two-year time limit set forth in the Act. For those cases, the resulting decision must be made as if the prior decision had never existed. If benefits are granted, the effective date must reflect when the claim readjudicated was received in accordance with §3.400. Claims for readjudication received after the statutory two-year time limit, must be considered reopened claims subject to new and material evidence requirements. We have concluded that the Act is not a “liberalizing law or regulation” subject to provisions of §3.114 for reopened claims received outside the two-year window for readjudication.
5. If a claim has been previously denied as not well grounded because a condition was not a disability under the law, such as high cholesterol, how should we proceed under the new law? Because the final rating would be a denial, should we develop? Can we deny on the merits without further development?
The law states that we do not have to assist in developing claims where there is no reasonable possibility that our assistance would help substantiate the claim. A claim for compensation for high cholesterol is a claim for compensation for an isolated risk factor and not a claim for a disability for which compensation can be granted. Therefore, no reasonable assistance on the part of VA can help establish entitlement to compensation for high cholesterol in and of itself, as a matter of law. We will define, by regulation, those claims for which we are not required to provide assistance. In the meantime, err on the side of developing a claim rather than not developing it.
General Development Issues
6. What should our initial development look like? It appears that simply asking for all treatment records since discharge in an original claim is not sufficient. We must notify the claimant of any information or evidence "necessary to substantiate the claim; and what information or evidence he or she is to submit to us."
In an initial claim in which the claimant has not identified any relevant supporting evidence, send the claimant a letter notifying him or her of the general requirements necessary to establish entitlement to the claimed benefit, and request that the claimant identify any records he or she believes are relevant. Request medical releases where appropriate. Upon receipt of this information from the claimant, you should be able to identify what information or evidence the claimant is to provide to VA and what information or evidence the Act requires VA to try to obtain. The Act requires that you notify the claimant which information or evidence that the claimant must provide and which VA will attempt to obtain on behalf of the claimant.
We are working on PCGL letters that address this issue.
7. How does the new duty to assist legislation impact our development of claims for service connection on a secondary basis? We have a veteran who is claiming CAD and HTN secondary to his service-connected PTSD. He submitted current medical evidence of a disability. We previously sent him a Morton letter requesting evidence of a link between the two. He did not respond.
We are required to request an examination and/or medical opinion when, after development of available evidence there is (1) evidence of current disability, (2) indication that there may be a relationship to military service and (3) available medical evidence is not sufficient to resolve the claim. In the example given there is (1) evidence of current disability, (2) possible relationship to military service based on secondary service connection (38 CFR 3.310), and (3) evidence is not sufficient to either establish or deny a relationship and therefore a medical opinion should be requested.
The need for a medical opinion must be determined on an individual case basis. Evidence of a link need not be provided by the claimant. Requests for medical examinations and medical opinions are often judgment issues. You are cautioned, however, that when you exercise your judgment, that if you err, you err on the side of the veteran. When in doubt you should request an examination or opinion.
8. Your letter stated what information we should request from the claimant to "adequately identify" medical records we are to try to obtain; it does not include information regarding addresses of the custodians of these records. Would it then be our "duty to assist" to find these addresses, or would "adequate identification" also include supplying a valid address?
Adequate identification would ordinarily include the addresses of the custodians of the records. However, if you can help the claimant in finding the complete address of a custodian of records you should do so.
Records Requests
9. Is it possible to determine, sight unseen, that a record may actually be "relevant?"
While not possible to determine definitively that records may be relevant to a claim, we should err on the side of requesting the records of the treatment the claimant cites in his/her claim. In addition, the information provided by the claimant in identifying the records should help you determine if the records appear, on their face, to have no relevance whatsoever to the claim. It would be advisable to request records identified by a claimant unless there is no reasonable possibility that they would tend to support a claim.
10. Regarding obtaining Federal records, your letter states that a "conclusion that further attempts [to obtain Federal records] would be futile should be determined case by case." Currently, we must make an administrative decision when it is determined that SMR's are not available. Would we be required to make a similar administrative decision for all unavailable Federal records? Should we notify the claimant if we are unable to obtain Federal records?
If you receive an affirmative statement from a Federal records custodian that requested records do not exist or are not in its possession, you do not have to make an administrative decision that the SMR’s or other Federal records are not available. You may advise the claimant of the evidence you received and the evidence you were unable to obtain in the rating decision and in the rating decision notification letter. We will revise the manual to conform with this answer.
Although not clear in Fast Letter 00-87, the statutory requirement that VA notify a claimant when it is unable to obtain records applies to our efforts to request both Federal and non-Federal records. If your efforts to obtain Federal records have been exhausted, permitting you to conclude that it is reasonably certain that they do not exist or that further efforts to obtain them would be futile, you must provide the claimant with the notice required by the statute. This notice must identify the records we were unable to obtain; briefly explain the efforts made to obtain them; and describe any further action we will take with respect to the claim. Note that we have a higher burden to obtain Federal records. Pending publication of a final regulation on this issue, our guidance is that you can be reasonably certain that you have exhausted your reasonable efforts to obtain Federal records when you receive notice from the records custodian that it does not have those records or they do not exist.
11. Are Army National Guard Records from the State considered Non-Federal or Federal sources?
Because they are records related to military service, use the reasonable efforts provisions applicable to requesting Federal records.
12. Does this mean that any development we completed relative to non-Federal records not received must have follow-ups done before a decision can be made?
The Act requires that we make reasonable efforts to obtain relevant records identified by the claimant, and if our efforts fail, we must send a notice to the claimant that identifies the records we were unable to obtain; briefly explains the efforts made to obtain them; and describes any further action we will take with respect to the claim. If your development efforts and communications with the claimant do not meet these new requirements, then you must comply with the new law before a decision can be made. This may mean that you send a follow-up request before a decision can be made.
Notice to claimants re: failure to obtain requested records
13. You state that the Act requires that we inform the claimant of our inability to obtain relevant records. When do we send this notice? Do we allow the claimant time to respond to it?
Since the date of the issuance of Fast Letter 00-87, we have further explored this notice issue. Pending publication of a final regulation implementing the Act, use the following interim policy, which is a change from that stated in Fast Letter 00-87:
• No supporting evidence identified: If an application for benefits does not identify any relevant supporting evidence, send the claimant a letter notifying him or her of the general requirements necessary to establish entitlement to the claimed benefit, and request that the claimant identify any records he or she believes are relevant. Request medical releases where appropriate. Allow 60 days for a response.
• Supporting evidence sources identified: Upon receipt of information from the claimant identifying supporting evidence sources, you should be able to identify what information or evidence the claimant is to provide to VA, and what information or evidence the Act requires VA to try to obtain. Notify the claimant which information or evidence that the claimant must provide and which VA will attempt to obtain on behalf of the claimant. Request the relevant supporting evidence from the Federal or non-Federal sources. Allow 60 days for a response.
• Development for non-Federal records: If you do not receive a response from an initial request for non-Federal records, send a follow up letter to the non-Federal records custodian. At the same time, send the notice to the claimant required by the Act identifying the records we were unable to obtain; briefly explaining the efforts made to obtain them; and describing any further action we will take with respect to the claim. This further action may include processing the claim on the evidence of record. Allow 30 days for a response. After 30 days, continue processing the claim, ordering an exam or medical opinion, or taking any further action including rating it on the evidence of record. Ordinarily, you will have to wait until you receive requested documents to know if a VA examination is necessary to decide the claim.
• Development for Federal records: If you do not receive a response from Federal records custodians, continue efforts to obtain those records until a definitive response is received, either the records sought or statement that the records are not available. Inform the claimant of the status of his/her claim including our efforts to obtain identified records.
• Development for both Federal and non-Federal records: If both Federal records and non-Federal records have not been received after 60 days, notice about status of both requests may be included in a single letter, but the letter must clearly differentiate between the actions we will take concerning these two different categories of records. When definitive notice is received concerning Federal records, further action may be taken on the claim (e.g., rating decision, request for examination) if all other duty to assist requirements have been met. If Federal records cannot be provided, the rating decision and letter of notification must clearly indicate that the custodian of the identified Federal records stated that the records can not be provided.
14. Should we send the notice to the claimant identifying the records we could not obtain if the claimed benefit can be granted?
The statute makes no exception for claims that can be granted. You should provide the notice advising the claimant of your inability to obtain the requested records, but do not delay in granting the claim. The records you were unable to obtain may be relevant to evaluation or effective date, and the claimant should be made aware that you were unable to obtain them. You should include this notice in the rating decision and notification letter.
15. Fast Letter 00-87 states that we should advise the claimant of their responsibility for obtaining the evidence at the time of our follow-up request. Should this not be done at the outset to promote more timely responses?
It would be advisable to include such a statement in all our development letters.
Exam criteria
16. While the veteran or other lay individual can provide lay testimony of current symptoms of disability, we also require supporting evidence from service records or other sources to substantiate the event or injury. Doesn’t the determination of whether a current disability/symptoms “may be associated with service” require medical evidence that the service event and the present disability may be related? Do we need medical evidence of nexus prior to ordering an exam? If not, are we are using our own lay judgment to determine a possible connection?
We believe that there should be some supporting evidence indicating that the claimant experienced an event, injury or disease in service before a VA examination is scheduled or a VA medical opinion is requested except in the case of a claim from a combat veteran related to a combat injury. However, we do not need nexus evidence prior to scheduling a VA examination or requesting a VA medical opinion. The threshold criteria for assisting a claimant in developing evidence by way of VA examination or medical opinion is low. The Act envisions that the possible "association" between a current condition or symptoms and service should be clarified by VA examination or opinion evidence when necessary. In many cases, evidence of continuity or post-service treatment may indicate the association. In those cases of adequate continuity evidence which would allow grant of service connection, you would not have to ask for a medical opinion.
We are currently reviewing our VA examination and medical opinion protocols to clarify those circumstances in which a VA medical opinion would be necessary. In the interim, use common sense; schedule an examination or request a medical opinion unless the evidence of record makes it absolutely clear that there is no relationship between an established in-service event, injury or disease and current symptoms or disability.
17. Your example indicates we are to examine if there is competent evidence of a current POW-related presumptive condition. You also state that we may accept competent evidence other than medical evidence that the claimant has persistent or recurring symptoms of disability, including the veteran's own statements regarding symptoms. Assume the veteran submits no medical records showing either condition.
We believe that pending publication of a final regulation, it would be good policy to examine a veteran claiming service connection for a presumptive condition if he or she is filing a claim within the applicable presumptive period and has the required service to qualify for the presumption. The examination would definitively establish whether the claimant has the presumptive condition, and we would be able to decide the case thereafter. Of course, consistent with case management principles, a best practice would be to contact the veteran to determine if there might be an available source of medical evidence which might allow a decision on his claim sooner and without requiring the veteran to report for an examination.
Note: 38 CFR §3.326(b) states that you cannot deny monetary benefits to a former POW unless you have offered a complete physical examination at a VA hospital or VA outpatient clinic.
18. Would lay evidence from a spouse stating "my husband doubles over in pain every day from stomach problems" be sufficient lay evidence to establish "symptoms"?
Yes. However, it is not possible to establish a bright line rule for every claim in which the claimant presents competent lay evidence of symptoms of disability. Clearly, the Act intends that competent lay evidence be sufficient to establish persistent and recurrent symptoms of disability. In such circumstances, you must use your best judgment. As stated previously, we are working on establishing new examination and medical opinion protocols. In the interim, err on the side of scheduling an examination or requesting a VA medical opinion. Consider the nature of the disability, the length of time since discharge, and the nature of the current complaints.
19. We are directed to schedule an examination if there is competent evidence of a current POW-related presumptive condition. If the evidence is adequate for rating purposes, i.e., adequate not only to establish service connection, but also to assign a level of disability, is an examination required?
No. The statute states that an examination/medical opinion is only required when the medical evidence of record is insufficient to make a decision on the claim. Note that 38 CFR §3.326(b) requires that we offer an examination to any former POW only before we deny monetary benefits.
One year time frame to submit evidence
20. You indicated that the notice we send a claimant must inform him/her that if the information or evidence requested from the claimant to substantiate the claim is not received within one year from the date of the notice, no benefit may be paid on that application. Is this the preferred language? Specifically, if we receive some of the requested information or evidence but not all of it, do we really mean to imply that no benefits will be paid? It is perfectly possible that only one piece of evidence would be adequate to grant a claim; this statement would appear to discourage a claimant who has that one piece from submitting it when something else cannot be obtained.
The language contained in the letter is based on the statutory language. However, we do not construe the language to force us to arrive at an illogical result. If we can grant the claim based on the evidence we have, even though the claimant has not submitted some of the information or evidence requested, we should do so, after making reasonable efforts to obtain the identified evidence.
Remands/Appeals
21. What number of cases are anticipated to be remanded by BVA due to this change in law? Will these be included in a Station's Remand Rate Data?
We estimate that 6000 to 6500 cases will be returned to the regional offices by BVA and the Courts over a four to six month period. They will be included in a station’s Remand Rate Data.
EP’s
22. Does the exclusion of EP 690 for any other purpose affect the use of EP 692 (for dependency verification) and EP 694 (for COLA processing)?
No.
23. Should we control claims that we identify as needing readjudication (no request from claimant to readjudicate) under EP 020?
Yes, and EP 684. The date of claim for both is the date the claim is reopened by the claimant or us.
24. Is EP 690 only for those claims that are currently still pending but developed under the old guidelines or does it include finalized decisions (no pending EP) that the RO identifies as needing readjudication?
EP 690 is to be used with cases currently pending but developed under old guidelines. It should not be used with NWG decisions that must be readjudicated. EP 684 should be used in these cases. In both cases, the EP 690 and EP 684 should be used in addition to the controlling EP.
25. We have a number of cases which were disallowed as not well grounded without reviewing service medical records (SMRs). When the SMRs show up we were re-rating those cases under EP 930. We plan to fully develop those cases, including examination/opinion if needed, controlling under the EP 020 series. This appears in line with FL 00-87.
Use EP 020 and 684 for those cases.
26. We note that a concurrent EP 684 is to run with requests from claimants and concurrent 690 is to run with claims pending on 11/09/00. Which one of these concurrent EP's is to run with cases denied as not well grounded but readjudicated based on receipt of SMRs? based on referral by STAR reviewer? based on our own initiative for other reasons?
684, 684, and 684. Where cases are reopened EP 684 should be used. For cases already pending EP 690 should be used.
27. Should the EP's 684 and 690 specified in paragraphs 8 and 9 of Fast Letter 00-87 be canceled when the "underlying" EP is taken or should they be taken along with the "underlying" EP?
They should be cleared, not canceled, with the “underlying” EP.
28. Regarding dates of claim for end products for readjudicated cases: are these to be the date of the request (or "discovery"), or the date of the claim that was previously denied? If there is no request for readjudication, would the "controlling" EP also be an 020, or some other end product?
The date of claim for a reopened or “discovered” cases should be the date the claim is reopened or discovered, NOT the date the claim was previously denied. The controlling EP will also be an 020, or other appropriate EP.
29. One of the teams in our station asked whether or not it mattered if a 691 was used instead of a 690. Their reasoning for using a 691 was that when a claimant calls in and asks for a status on his/her claim, VSRs could readily determine, by doing a PINQ, if the claim in question was being "rehabilitated." EP 690 is used for a variety of other purposes, but we know of no current use for a 691. Will it mess up your tracking system if a 691 is used rather than a 690?
EP 690 should only be used in cases where we are rehabilitating a pending case based on our duty to assist. All other instances where EP 690 might have been previously established and/or taken should now use EP 692. EP 691 is not necessary as we should also be able to identify the issue by the date of claim, 11/9/00, for the EP 690.
We are continuing to work on building a regulatory and procedural framework to support this legislation and appreciate the ideas and insights you provide. We have attached a copy of the Act for your reference. We will continue to review the questions and comments submitted by Regional Offices to the Q&A mailbox at VAVBAWAS/CO/21Q&A and respond to them as appropriate. We plan to have another conference call within the next few weeks.
/s/
Robert J. Epley
Director, Compensation and Pension Service
Attachment
One Hundred Sixth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday,
the twenty-fourth day of January, two thousand
An Act
To amend title 38, United States Code, to reaffirm and clarify the duty of the Secretary of Veterans Affairs to assist claimants for benefits under laws administered by the Secretary, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Veterans Claims Assistance Act of 2000'.
SEC. 2. CLARIFICATION OF DEFINITION OF `CLAIMANT' FOR PURPOSES OF VETERANS CLAIMS.
Chapter 51 of title 38, United States Code, is amended by inserting before section 5101 the following new section:
`Sec. 5100. Definition of `claimant'
`For purposes of this chapter, the term `claimant' means any individual applying for, or submitting a claim for, any benefit under the laws administered by the Secretary.'.
SEC. 3. ASSISTANCE TO CLAIMANTS.
(a) REAFFIRMATION AND CLARIFICATION OF DUTY TO ASSIST- Chapter 51 of title 38, United States Code, is further amended by striking sections 5102 and 5103 and inserting the following:
`Sec. 5102. Application forms furnished upon request; notice to claimants of incomplete applications
`(a) FURNISHING FORMS- Upon request made by any person claiming or applying for, or expressing an intent to claim or apply for, a benefit under the laws administered by the Secretary, the Secretary shall furnish such person, free of all expense, all instructions and forms necessary to apply for that benefit.
`(b) INCOMPLETE APPLICATIONS- If a claimant's application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application.
`Sec. 5103. Notice to claimants of required information and evidence
`(a) REQUIRED INFORMATION AND EVIDENCE- Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant.
`(b) TIME LIMITATION- (1) In the case of information or evidence that the claimant is notified under subsection (a) is to be provided by the claimant, if such information or evidence is not received by the Secretary within 1 year from the date of such notification, no benefit may be paid or furnished by reason of the claimant's application.
`(2) This subsection shall not apply to any application or claim for Government life insurance benefits.
`Sec. 5103A. Duty to assist claimants
`(a) DUTY TO ASSIST- (1) The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary.
`(2) The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.
`(3) The Secretary may defer providing assistance under this section pending the submission by the claimant of essential information missing from the claimant's application.
`(b) ASSISTANCE IN OBTAINING RECORDS- (1) As part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.
`(2) Whenever the Secretary, after making such reasonable efforts, is unable to obtain all of the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records with respect to the claim. Such a notification shall--
`(A) identify the records the Secretary is unable to obtain;
`(B) briefly explain the efforts that the Secretary made to obtain those records; and
`© describe any further action to be taken by the Secretary with respect to the claim.
`(3) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection ©, the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.
`© OBTAINING RECORDS FOR COMPENSATION CLAIMS- In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) shall include obtaining the following records if relevant to the claim:
`(1) The claimant's service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity.
`(2) Records of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records.
`(3) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain.
`(d) MEDICAL EXAMINATIONS FOR COMPENSATION CLAIMS- (1) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.
`(2) The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim for purposes of paragraph (1) if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)--
`(A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and
`(B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but
`© does not contain sufficient medical evidence for the Secretary to make a decision on the claim.
`(e) REGULATIONS- The Secretary shall prescribe regulations to carry out this section.
`(f) RULE WITH RESPECT TO DISALLOWED CLAIMS- Nothing in this section shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this title.
`(g) OTHER ASSISTANCE NOT PRECLUDED- Nothing in this section shall be construed as precluding the Secretary from providing such other assistance under subsection (a) to a claimant in substantiating a claim as the Secretary considers appropriate.'.
(b) REENACTMENT OF RULE FOR CLAIMANT'S LACKING A MAILING ADDRESS- Chapter 51 of such title is further amended by adding at the end the following new section:
`Sec. 5126. Benefits not to be denied based on lack of mailing address
`Benefits under laws administered by the Secretary may not be denied a claimant on the basis that the claimant does not have a mailing address.'.
SEC. 4. DECISION ON CLAIM.
Section 5107 of title 38, United States Code, is amended to read as follows:
`Sec. 5107. Claimant responsibility; benefit of the doubt
`(a) CLAIMANT RESPONSIBILITY- Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.
`(b) BENEFIT OF THE DOUBT- The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.'.
SEC. 5. PROHIBITION OF CHARGES FOR RECORDS FURNISHED BY OTHER FEDERAL DEPARTMENTS AND AGENCIES.
Section 5106 of title 38, United States Code, is amended by adding at the end the following new sentence: `The cost of providing information to the Secretary under this section shall be borne by the department or agency providing the information.'.
SEC. 6. CLERICAL AMENDMENTS.
The table of sections at the beginning of chapter 51 of title 38, United States Code, is amended--
(1) by inserting before the item relating to section 5101 the following new item:
`5100. Definition of `claimant'.';
(2) by striking the items relating to sections 5102 and 5103 and inserting the following:
`5102. Application forms furnished upon request; notice to claimants of incomplete applications.
`5103. Notice to claimants of required information and evidence.
`5103A. Duty to assist claimants.';
(3) by striking the item relating to section 5107 and inserting the following:
`5107. Claimant responsibility; benefit of the doubt.';
and
(4) by adding at the end the following new item:
`5126. Benefits not to be denied based on lack of mailing address.'.
SEC. 7. EFFECTIVE DATE.
(a) IN GENERAL- Except as specifically provided otherwise, the provisions of section 5107 of title 38, United States Code, as amended by section 4 of this Act, apply to any claim--
(1) filed on or after the date of the enactment of this Act; or
(2) filed before the date of the enactment of this Act and not final as of that date.
(b) RULE FOR CLAIMS THE DENIAL OF WHICH BECAME FINAL AFTER THE COURT OF APPEALS FOR VETERANS CLAIMS DECISION IN THE MORTON CASE- (1) In the case of a claim for benefits denied or dismissed as described in paragraph (2), the Secretary of Veterans Affairs shall, upon the request of the claimant or on the Secretary's own motion, order the claim readjudicated under chapter 51 of such title, as amended by this Act, as if the denial or dismissal had not been made.
(2) A denial or dismissal described in this paragraph is a denial or dismissal of a claim for a benefit under the laws administered by the Secretary of Veterans Affairs that--
(A) became final during the period beginning on July 14, 1999, and ending on the date of the enactment of this Act; and
(B) was issued by the Secretary of Veterans Affairs or a court because the claim was not well grounded (as that term was used in section 5107(a) of title 38, United States Code, as in effect during that period).
(3) A claim may not be readjudicated under this subsection unless a request for readjudication is filed by the claimant, or a motion is made by the Secretary, not later than 2 years after the date of the enactment of this Act.
(4) In the absence of a timely request of a claimant under paragraph (3), nothing in this Act shall be construed as establishing a duty on the part of the Secretary of Veterans Affairs to locate and readjudicate a claim described in this subsection.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
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The Brain Injury Information Network Resources
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1: J Head Trauma Rehabil. 2004 Mar-Apr;19(2):143-54.
Neuro-orthopedic management of shoulder deformity and dysfunction in brain-injured patients: a novel approach.
Keenan MA, Mehta S.
Neuro-Orthopaedics Program, Department of Orthopaedic Surgery, University of Pennsylvania, 3400 Spruce Street, 2 Silverstein, Philadelphia, PA 19104, USA. maryann.keenan@uphs.upenn.edu
Shoulder problems are common in patients with traumatic brain injury. Very little has been written about the evaluation and neuro-orthopedic management of these problems. This is largely because there have not been surgical treatments available other than release of contracted, nonfunctional shoulders. Shoulder problems can be classified and evaluated using several different strategies: bony versus soft tissue restrictions; static versus dynamic deformities; traumatic injuries versus impairments secondary to weakness and spasticity; or problems of active function versus problems of passive function. Regardless of the classification system employed a systematic approach to evaluation and treatment is essential. Shoulder impairments can be corrected leading to significant improvement in functional outcomes. In this paper we report on the novel evaluation and surgical management options developed in our program for the most common shoulder problems encountered in patients with traumatic brain injury.
PMID: 15247824 [PubMed - indexed for MEDLINE]
http://www.ncbi.nlm.nih.gov/entrez/query.f...t_uids=15247824
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fwd:
This article was written and published in 1988. Specific information concerning staff and services may have changed since that time, however, as you will see upon reading the article, the content is as pertinent today as when the article was written.
Post-traumatic Headaches: Subtypes and Behavioral Treatments
Thomas Bennett
Chronic, recurrent headache commonly follows head injury, and interestingly, it is seen more often in individuals who have experienced minor head trauma than in those more seriously injured. I will describe subtypes and behavioral treatments of the post-traumatic headache. One must realize, however, that headache is only one of a number of symptoms that commonly follow head injury. While it may be the symptom that results in a patient seeking medical treatment following brain or head injury, it may on the other hand be only the "tip of the iceberg".
Many patients complaining only of post-traumatic headache are found, under close neuropsychological evaluation, to be concurrently suffering from verbal and communicative disorders, deficits in information processing and reaction time, memory difficulties, problems with perception, and impaired concept formation and general reasoning ability (Alves, Colohan, O'Leary, Rimel, & Jane, 1986). Post-traumatic headaches should also be considered within the context of post-traumatic symptoms in general which are often collectively called the "post concussion syndrome". At this point it may be helpful to briefly consider the "post concussion syndrome" in general because many of the statements that I could make about post-traumatic headaches apply to other post-traumatic symptoms as well.
Post-Traumatic Symptoms
The basis of post-traumatic symptoms in individuals who have sustained minor head injury (loss of consciousness of 20 minutes or less and post-traumatic amnesia of 24 hours or less) has been debated for over 2OO years. The common use of the term "post concussion syndrome" to describe the symptoms of these patients has a psychological flavor to it. It was (and still is in less informed circles) typical for physicians and psychologists to ascribe symptoms for which there was no obvious organic basis (no hematoma, no penetration of the dura, no contusion of the brain) to neurotic processes or malingering.
The modern view of post-traumatic symptoms is that they do indeed have a biological or organic basis. It is now accepted that even mild concussion usually entails some structural damage to the brain (Jennett & Teasdale, 1981). This is not to say that emotional factors do not play an important role in post-traumatic symptoms because it is generally believed that emotional factors can both exacerbate and prolong post-traumatic symptoms that are the result of biological factors. This conclusion underscores the need to employ both biological and psychological interventions in treating patients with post-traumatic symptoms.
With respect to malingering, let me point out that its incidence has been vastly overestimated. Symptoms are deliberately exaggerated in a smaller proportion of patients than was previously thought to be the case (Boll, 1982; Rimel, Giordani, Barth, Boll, & Jane, 1981). Neither insurance claims nor pending litigation is a significant factor influencing return to work or social recovery (Irving, 1972; Oddy, Humphrey & Uttley, 1978).
A number of symptoms have been identified to follow minor head injury. However, it is not accurate to describe these symptoms as a syndrome as was common practice when using the term "post concussion syndrome". While a given patient may exhibit one, two, three, or less commonly, more of these symptoms, it is rare to see a patient experience all of them (Alves et al., 1986). Post-traumatic symptoms commonly reported after minor head injury include headaches; dizziness; impaired concentration; memory problems; sensory problems including diminished hearing, olfaction, and taste; diplopia; tinnitus; hypersensitivity to noise; insomnia; fatigue; irritability; anxiety and depression.
The mechanisms maintaining these symptoms are not always obvious, but some meaningful statements can be made. The problems with dizziness and auditory difficulties are undoubtedly related to concussion of the balance and central auditory processing functions of the inner ear. Decreased olfactory sensitivity is related to strain injury of the axons of the olfactory tract as they enter the brain. I suspect that reports of decreased taste sensitivity do not reflect a decrement in that specific modality, but rather they reflect a loss of gustatory sensitivity secondary to diminished olfactory sensitivity. Hypersensitivity to noise and hyperirritability probably at least partially reflect general diminished inhibitory or gating (filtering out) processes in the brain. Insomnia is a common sequel after head injury; in general, initiation, maintenance, and cycling mechanisms do not operate as efficiently as they should after head injury, presumably because of neural disruption resulting from rotational forces exerted on the brain stem at the time of injury.
Loss of concentration and memory problems may be reflective of diminished information processing ability in general. Gronwall and Wrightson (1974) tested information processing ability using the Paced Auditory Serial Addition Test (PASAT). They found that head injured patients who performed abnormally on this test at 35 days post-injury still complained of post-traumatic symptoms; the disappearance of these symptoms correlated nicely with restoration of normal performance on the PASAT.
Irritability, anxiety, and depression can all be contributed to by organic factors, but typically, they are more dependent on psychological processes. Coping with head injury produces feelings of loss of self-control and feelings of helplessness and hopelessness. Finding that you can no longer perform efficiently at home, school, or on the job is very stressful, and it can aggravate other post-traumatic symptoms as well.
The nature of and basis for post-traumatic headache is more difficult to explain. There appear to be many possible causes for persisting headache after head injury. Some of these include musculoskeletal trauma to the neck, head, and jaw regions, pain in scalp, scars, neuralgia of occipital or supraorbital nerves, precipitation of migraine in predisposed individuals, and occasional serious intracranial complications. Post-traumatic headaches are a significant health problem when one realizes that close to half of all patients discharged from the hospital after minor head injury report persistent headache (e.g., Alves et al., 1986).
Subtypes of Post-Traumatic Headaches
The vast majority of patients who experience persistent post-traumatic headaches have no intracranial abnormalities to explain their headache pain (Dalessio, 1980). Electroencephalographic (EEG) abnormalities are not correlated with occurrence of post-traumatic headache, but the presence of scalp lacerations is positively correlated (Scherokman & Massey, 1983). At least four or five types of post-traumatic headaches have been categorized including, 1) steady pressure with cap-like distribution, 2) circumscribed superficial tenderness around the impact site, 3) episodic aching or throbbing pain which is typically unilateral, and 4) episodic, unilateral frontotemporal pain with ipsilateral mydriasis and hyperhidrosis. Recently, I have seen more and more cases where patients report unilateral or bilateral pain in the temple region or just superior to it and I will comment on this as a fifth type of post-traumatic head pain.
Type 1: Steady Pressure with Cap-like Distribution
Type 1 headaches are the most common and persistent variety of headaches that occur after head injury. Patients will often have this type of headache concurrently with one or more of the other types. As indicated, these headaches are described as a steady pressure, often with a cap-like distribution, but more commonly in a circumscribed area elsewhere than the site of the injury. There is usually a deep tenderness present in the neck or shoulder region, and headache can often be reproduced by manual pressure on these tender areas. The intensity of the associated pain is described as being from "mild to very severe". The attacks of pain can recur for many years. Occurring intermittently, the attacks can vary from several hours to as long as ten days duration (Dalessio, 1980).
Type 1 headaches are usually made worse by effort stress, coughing, stooping or turning the head. As a result the patient may be functionally incapacitated for engaging in physical activity related to work or recreation. During periods of severe headache of this sort, patients may experience spinning sensations, dizziness, and photophobia (Dalessio, 1980). Finally, these headaches are associated with persistent and sustained muscle contraction in the head, neck, upper back, and shoulders. This can be easily demonstrated through electromyographic (EMG) studies that show excessive levels of muscle contraction in these patients. Medically, these headaches are treated with muscle relaxants, analgesics, amiltryptaline, heat, and massage. They often prove to be resistant to treatments.
Type 2: Circumscribed Tenderness Around Impact Site
Most patients with Type 2 headaches suffer from Type 1 headaches as well. Type 2 patients have a circumscribed, relatively superficial tenderness of the scalp at the site of the original injury which is often, but not always, associated with a visible or palpable scar (Scherokman & Massey, 1983). In most patients who experience this type of pain, there is spontaneous aching pain at the original site of impact; in some cases, headache pain only occurs when some pressure, such as a hat or a brush, is applied to the site (Dalessio, 1980). Typically, this type of post-traumatic headache pain is described as being "moderate", and usually it resolves within a year after the original injury. It appears to be related to contusion and injury to the scalp vasculature.
Type 3: Episodic Aching or Throbbing Pain, Usually Unilateral
Type 3 post-traumatic headaches are described as aching, often throbbing pain, usually unilateral in onset. They occur in attacks and are most commonly reported to occur in the temporal regions. They are also sometimes frontal, occipital, or postauricular. The attacks may be of short duration, and they may represent an intensification of symptoms for patients who also experience a background of Type 1 headache. Reported pain associated with Type 3 headaches varies from "mild to severe". The intensity of the pain is increased by effort, coughing, bending, or lying down.
Post-traumatic headaches of the Type 3 variety, while usually unilateral in onset often become generalized. They often begin in the morning or are present upon awakening, and they may continue all day. Nausea, vomiting, and anorexia may accompany them. Dalessio (1980) reports that these headaches are not relieved by massage or head but ice bags, cold compresses, and codeine will provide relief. Ergotamine tartrate eliminated this type of pain but did not diminish Type 1 components resulting from excessive muscle contraction. Type 3 headaches are vascular in nature, and they are more commonly seen in patients with a migraine history, even if migraines have been rare or infrequent in the past. This type of headache disorder is related to recurrent painful distention of cranial arteries. For many patients, it represents the precipitation of a serious vascular headache (migraine) disorder in a person already at risk.
Type 4: Episodic, Unilateral Frontotemporal Pain With Ipsilateral Mydriasis and Hyperhidrosis
Vijayan (1977) has described a type of headache syndrome associated with anterior neck injuries secondary to cervical whiplash (also see Khurana & Nirankari, 1986). In these patients, unilateral, frontotemporal vasodilating headaches are experienced episodically. What makes them unique is that they are accompanied by ipsilateral mydriasis (excessive dilation of the pupil) and facial hyperhidrosis (excessive sweating). When the pain subsides, the patient is left with ipsilateral ptosis (drooping of the upper eyelid) and miosis (excessive constriction of the pupil). In Vijayan's series, patients experienced between two and 12 of these headaches per month.
Type 4 headaches are related to damage to the third-order sympathetic neuron in the neck; they reflect localized sympathetic nervous system dysfunction. Patients with these headaches were helped when treated with the beta adrenergic blocking agent, propranolol, in doses of 20-60 mg per day (Vijayan, 1977); they did not respond to ergotamine.
Type 5: Pain in Temple or Superior Temple Region
A fifth type of headache syndrome, which also typically is accompanied by Type 1 headaches, is an intermittent recurrent relatively steady pain in the region of the temples or just above. The pain may be unilateral or bilateral, and when it is bilateral, it may be described as a band extending from temple to temple. It is also typically accompanied by jaw popping during chewing, leaving no doubt that it is related to temporomandibular joint (TMJ) dysfunction or injury. Many people in our society clench their teeth at night (bruxism) in response to stress. An automobile accident that results in a person striking the windshield or dashboard can easily exacerbate ongoing temporomandibular joint degeneration or significantly displace or injure a healthy joint. High resolution computerized tomography has been shown to be vastly superior to conventional radiography in detecting TMJ degeneration in post-traumatic headache patients (Tilds, Miller, & Guidice, 1986). The increasing availability of magnetic resonance imaging will enhance the detection of these difficulties further. Treatment of TMJ syndrome, whether post-traumatic or not, may require a multidisciplinary approach including orthodontic and surgical treatments, splint therapy, physical therapy, and biofeedback.
In summary, at least five distinct headache syndromes can be described in post-traumatic headache victims. With the exception of Type 4, which reflects sympathetic nerve damage, these headaches reflect musculoskeletal and vascular dysfunction that is essentially the same as that seen in chronic headache patients who have not experienced trauma. As with typical chronic headache patients, the head pain experienced by head trauma victims comes in many combinations. As indicated, patients with Types 2, 3, and 5 headaches will often complain of Type 1 headaches as well, and some patients will exhibit symptoms consistent with several subtypes concurrently. A multimodality approach using behavioral treatment interventions will be described next. The use of behavioral treatments for patients with post-traumatic headaches has been discussed in case studies by several investigators (e.g., Daly & Wulff, 1987; Duckro, Tait, Margolis, & Silvermintz, 1985; Muse, 1986).
In Behavioral Treatments of Post-Traumatic Headaches, Packard (1979) asked directly, "What does the headache patient want?" and then outlined the stated needs of patients along with physician estimates of those needs. Generally speaking, physicians ranked medication higher than did the patients. The patients gave their highest rankings to the need for information about the causes of their headaches and to the need for relief from pain. The patients' responses thus indicated that education must be an integral part of any headache treatment program. Behavioral treatment of post-traumatic headaches must thus use a multifaceted approach and should include education about headaches and medications for them, physiologic therapies such as physical therapy, therapeutic massage and biofeedback, and cognitive-behavioral therapies aimed at helping the patient acquire pain management skills.
Education
Let us forever bury the idea that post-traumatic headaches, or headaches in general, are simply psychiatric problems. Clearly, stress can produce or exacerbate headache syndromes, but headaches are best understood by considering both psychological and physiological factors. Their interaction can be understood by an explanation to the patient with post-traumatic headaches.
The Vicious Cycle
A major failure of the traditional organic-psychological dichotomy is to downplay the interaction among emotional factors, the autonomic nervous system, and elevated levels of muscle tension on head pain levels. Muscle tension levels are commonly elevated in the head, neck, shoulders, and upper back regions after trauma, and this is often not evaluated in diagnostic studies. The muscle contraction can cause additional pain. Similarly, it is clearly the case that emotional arousal is frequently present in these patients. Emotional arousal increases discharge in the sympathetic nervous system. Prolonged excessive discharge in the sympathetic system will in turn exacerbate pain levels by increasing perception of the intensity of stimuli related to pain.
Unfortunately, these physical and emotional factors can create a "vicious cycle" in which pain becomes a stressor, eliciting emotional (anger, frustration) and physical (increased muscle tension) factors which then produce more pain (Zimmerman, 1981). The longer this sort of cycle persists, the more difficult it is to break. Diagramming the cycle, explaining it to the patient and then giving homework exercises to disrupt it have been very effective in helping the post-traumatic headache patient break this cycle. This type of exercise is most beneficial if the patient learns techniques to intervene at multiple points in the cycle.
When patients have learned about the physiological factors contributing to their headaches and how emotional factors can interact with physical factors to set up a "vicious cycle", they are ready to accept the fact that their pain has both biological and psychological aspects. They can then be assured that their presence in the psychologist's office is not because their physician believes their headaches are "just in their minds".
Treatments
Medication
I find that few patients understand the role of medication in their treatment. It is clear that medications (i.e., analgesics, those which reduce muscle spasms and overall level of muscle contraction, those that reduce emotional arousal, and antidepressants) can be useful in selected patients. The psychiatric medications may or may not produce pain relief because of their psychiatric effects. Benzodiazepines may help because of their muscle relaxant properties; antidepressants may help because they promote serotonin activity in the brain which in turn decreases pain sensations. Patients need to be informed of why they are taking certain medications. One must be careful in using antidepressants, particularly amitryptaline, in treating individuals with post-traumatic headaches. The anticholinergic side effects of these drugs can exacerbate post-traumatic symptoms related to head injury including dizziness, diminished concentration, and memory problems.
Patients also typically have a misconception about how effective their medications should be. They often believe that analgesics should eliminate the pain completely. I find that this is an example of a "fix me doc syndrome" that impedes the progress of many patients. Instead of holding the belief that "improvement is outside of their own control" (Barnat, 1986), post-traumatic headache patients need to learn that a certain amount of discomfort will often persist; it is something that must be lived with. If a medication provides no relief, then it is a failure, but medications that provide only partial relief have not necessarily failed.
Biofeedback
Physiological therapies, including physical therapy, therapeutic massage, and biofeedback, can be effective treatments for post-traumatic headaches. I will only discuss the use of biofeedback therapy in this paper, but let me emphasize that we regularly refer post-traumatic headache patients to certified massage therapists and/or physical therapists as part of their treatment program. These procedures are all complimentary to one another.
Biofeedback is a procedure by which a biological signal (for example, skin temperature, muscle tension, heart rate, brain waves) is converted to an easily detected signal, such as a light or a tone, and "fed back" to a patient so that she or he can exert conscious control over that function. Thus, a person might learn to detect and subsequently lower excessive levels of muscle tension in his or her forehead, neck, shoulders, and jaw, or a person might learn to increase the recorded temperature of her or his finger tips. (Cold hands signal excessive sympathetic nervous system discharge and resulting vasoconstriction; they are a sign of stress and a common characteristic of migraineurs.)
Biofeedback is not a cure-all, and this treatment is most effective when incorporated into a comprehensive treatment program. Nevertheless, biofeedback treatment has been used successfully for two decades to treat a variety of psychophysiological disorders including muscle contraction and vascular headaches, hypertension, gastrointestinal disorders, pain syndromes, anxiety syndromes, abnormal heartbeats, sleep disorders, and many neurological syndromes including movement disorders and epilepsy. It is also employed in neuromuscular rehabilitation following peripheral or central nervous system damage (Bennett, 1987). I have found it to be of significant benefit for the post-traumatic headache patient, particularly when combined with stress management training.
As I indicated in an earlier article (Bennett, 1988), biofeedback training can have both obvious and subtle benefits for these patients. One obvious benefit would be to teach the patient with excessive levels of muscle tension to relax chronically tensed muscles and to be more sensitive to muscle tension levels. This is accomplished through electromyographic (EMG or muscle tension) training. Temperature training in biofeedback can be used to increase vasodilation (decrease sympathetic activity) and thereby decrease the likelihood of vascular headaches. We typically use a combination of these procedures, as both contribute to stress management and relaxation training. All post-traumatic headache patients can benefit from such training. EMG biofeedback is particularly applicable to patients experiencing Type 1 and Type 5 headaches, and temperature training is especially relevant for patients with Type 3 headaches.
A more subtle benefit of biofeedback is to teach the patient that he or she can have some control over an aspect of their life (for example, "I can relax my muscles and decrease the severity of my headaches"). The head injured person often has a recent history of failure and frustration, and feelings of "loss of control" or "helplessness" may predominate. By learning to have more control over something as basic as level of muscle tension or skin temperature, the patient can learn that "what I do can really makes a difference". This helps the person to overcome the "fix me doc" syndrome and places him or her in more control of their future in general. Thus, the feelings of failure, loss of control, and helplessness can be attenuated.
Cognitive-Behavioral Therapies
The usefulness of cognitive-behavioral therapies in pain management and headache treatment programs is well established. A particularly effective use of these principles in the treatment of chronic headache patients has been described by Bakal (1982), whose general program is quite helpful for patients with post-traumatic headaches. I recommend it highly. Two important features of this program are attention diversion and thought management. These methods assist the patient in decreasing the intensity of the pain and in minimizing negative thoughts and dysphoric affect that increase headache severity.
In introducing the use of attention diversion and thought management, it is important to explain to the patient that headache pain consists of both sensory and reactive components. The sensory component consists of sensations of pain that are largely determined by changes in the muscles and veins of the head. The reactive (or cognitive) component consists of the thoughts and feelings that accompany headache episodes. There are, in turn, two important aspects of the reactive component. The first is the amount of attention that is directed toward the headache. The second is our interpretation of thoughts regarding, and feelings about, the pain experience. Negative or catastrophic cognitions exacerbate pain by increasing activation of the sympathetic nervous system.
The patient being taught attention diversion learns that we normally only focus on one thing at a time, and we are free to attend to whatever we want. Thus, we can influence what we are attending to by shifting our attention from one aspect of our environment to another (internal or external). Finally, it is difficult if not impossible, to stop focusing on one's pain unless one shifts attention to something else.
With this general framework in mind, the patient is provided with a number of attention diversion strategies to learn. They are initially practiced during headache-free periods and later applied to times of significant headache discomfort. Turk (1978) provides a variety of attention-diversion techniques, including imagery production, strategies that are relatively easy to master and quite effective in interrupting and/or decreasing the intensity of a headache attack.
Thought management deals with helping the patient control negative and/or catastrophic headache-related thoughts and feelings. By now, the patient is quite aware of the role that distressing thoughts play in their headache disorder. He or she is encouraged to understand that distressing cognitions not only increase the pain experienced, but also they interfere with the ability to cope effectively with the headache pain. These thought patterns can be identified and modified. The patient learns that the process of "negative talking", can be reversed, and training is given in how to accomplish this.
First the patient is told to be alert to those times when he or she is experiencing distressing feelings and thoughts. Second, the patient learns to use these distressing thoughts as a signal to start making positive self-statements. Third, the patient learns to actively substitute the distressing cognitions with positive, coping-oriented statements (Bakal, 1982). In order to demonstrate this process, the patient is provided with a list of positive statements (Turk, 1979) to be used during different stages of the headache episode. He or she is encouraged to develop his or her own statements as well. Again, this intervention is over-practiced during times when headaches are not present before being put into practice.
Conclusions
Post-traumatic headache is the most frequent complaint made by victims of minor head injury and is thus of major importance in head trauma rehabilitation. Post-traumatic headaches can be severe and persistent. As a result they can produce a major disruption in the patient's life. Their economic impact is significant in that they can prevent return to work in individuals who are otherwise recovered.
Post-traumatic headaches reflect an interaction among organic and emotional factors. For this reason, they are best treated via a multimodality approach that considers all of these factors. For many individuals, participation in such a program results in a complete remission of their symptoms. For others, the end of the program represents an improvement in their symptoms and the beginning of a long-term process of self-managing their headache pain. Most patients arrive at the point where their headaches no longer interfere with their lives. This represents a significant improvement over their prior incapacitation dependency on a variety of medications. In head injury recovery, this is one sign that the victim can once more be in control of her or his future.
REFERENCES
Alves, E.M., Colohan, A.R.T., O'Leary, T.J., Rimel, R.W. & Jane, J.A. (1986). Understanding post-traumatic symptoms after minor head injury. Journal of Head Injury Rehabilitation, 1, 1-12.
Bakal, D.A. (1982). The psychobiology of chronic headache. New York: Springer Publishing Company.
Barnat, M.R. (1986). Post-traumatic headache patients II: Special problems, perceptions, and service needs. Headache, 26, 332-338.
Bennett, T.L. (1988). Neuropsychological rehabilitation in the private practice setting. Cognitive Rehabilitation, 6(l), 1215.
Bennett, T.L. (1987). Neuropsychological aspects of complex partial seizures: Diagnostic and treatment issues. The International Journal of Clinical Neuropsychology, 9, 37-45.
Boll. T.J. (1982). Behavioral sequelae of head injury. In P.R. Cooper (Ed.) Head Injury. Baltimore: Williams and Wilkins.
Dalessio, D.J. (1980). Post-traumatic headache. In D.J. Dalessio (Ed.) Wolff’s headache and other head pain, 4th ed. New York: Oxford.
Daly, E. & Wulff, J. (1987). Treatment of post-traumatic headache. British Journal of Medical Psychology, 60, 85-88. University Press, 3324-3381.
Duckro, P.N., Tait, R., Margolis, R.B. & Silvermintz, S. (1985). Behavioral treatment of headache following occupational trauma. Headache, 25, 328-331.
Gronwall, D. & Wrightson, P. (1974). Delayed recovery of intellectual function after minor head injury. Lancet, 2, 605-609.
Irving, J.G. (1972). Impact of insurance coverage on convalescence and rehabilitation of head injured patients. Connecticut Medicine, 36, 385-391.
Jennett, B. & Teasdale, G. (1981). Management of head injuries. Philadelphia, D.A. Davis.
Khurana, R.K. & Nirankari, V.S. (1986). Bilateral sympathetic dysfunction in post-traumatic headaches. Headache, 26, 117-121.
Muse, M. (1986). Stress-related, post-traumatic chronic pain syndrome: Behavioral treatment approach. Pain, 25, 389-394.
Oddy, M., Humphrey, M. & Uttley, D. (1978). Subjective impairment and social recovery after closed head injury. Journal of Neurology, Neurosurgery, and Psychiatry, 41, 611-616.
Packard, R. (1979). What does the headache patient want? Headache, 19, 370-374.
Rimel, R.W., Giordani, B., Barth, J.T., Boll, T.J. & Jane, J.A. (1981). Disability caused by minor head injury. Neurosurgery, 9.
Scherokman, B. & Massey, W. (1983). Post-traumatic headache. Neurologic Clinics, (2), 457-463.
Tilds, B.N., Miller, P.R. & Guidice, M.A. (1986). The diagnostic value of high resolution computerized tomography in post traumatic head pain patients. Headache, 26, 117-121.
Turk, D.C. (1978). Cognitive behavioral techniques in the management of pain. In J.P. Foreyt & D.P. Rathjen (Eds.) Cognitive behavior therapy: Research and application. New York: Plenum Publishing Company.
Vijayan, N. (1977). A new post-traumatic headache syndrome: Clinical and therapeutic observations. Headache, 17,19-22.
Zimmerman, M. (1981). Physiological mechanisms of pain and pain therapy. Triangle, 20, 7-17.
This article originally appeared in The Journal of Cognitive Rehabilitation, Volume 6 Issue 2, March/April 1988.
Copyright 1996-1998 by The NeuroScience Center and NeuroScience Publishers
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Forgot to add, that it is good to see you post again Vike.
Welcome home!
Allan
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>If the system was advisarial, then the VA would not be "assisting" the veteran to get any needed evidence to support their claim, they would actually try to disprove the claim form the get go without seeking any evidence on the claimants behalf.
That is an excellent discription of "duty to assist" at the VARO level. It's an absolute shame, but vets should expect it. If a vet is lucky enough to actually recieve an, "honest" & "complete" evaluation of all the evidence, without it being run through a shredder first, they can expect favorable evidence to be misqoated, mispelled & misinterpreted into some kind of BS that doesn't even resemble the truth.
Obstruction of justice is a crime.
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If you have ever requested a copy of your C-File, please answer the following questions:
1. How long did it take the VA to send you a copy of your C-File?
2. Did you write a simple request or invoke the FOIA (Freedom of Information Act)?
3. Was everything you'd ever sent to the VA in there? Was your file complete? If not, what was missing.
Thanks in advance for the feedback,
ts
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Hello TS
How long did it take the VA to send you a copy of your C-File?
It took around 20 years. So far missing about 2/3rds of my SMR's. Never recieved a responce concerning the lost records, except as reference in denials by the rating officer, as to the SMR's being "absent of any treatment records", for whatever health issue they were denying.
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>Is the AMC obligated to follow the Board s remand. Recently, the ratings board sent my claim back to the pre determination area because now the ratings person is asking for medical records from a civilian doctor that is deceased and the records were destroyed years ago. This doctor was not mentioned in the remand. Probably because I sent a letter to the Board in 2003 stating that I had contacted the doctor's heirs and they told me that the medical records were destroyed.
hurryupnwait,
It's the old, delay the claim ploy.
Send in a signed statement in regards to the issue.
State that the Dr is deceased & the records have been destroyed. Fax & send a hard copy to the Appeals Center, your SO & the BVA.
You may also send in a request to have your claim reviewed by the the BVA, instead of a review by the Appeals Center, or the VARO they pass it off to.
Sending for decades old records that have likely been destroyed, does nothing but delay the claim from finalizing for at least a yr or maybe two before it's in someones hands for review again.
A claim will get processed, denied or delayed.
If a claim is not currently being reviewed, it's collecting dust while you wait.
This is how my claim has been on remands from the BVA, for nearly a decade.
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That's great news Stretch.
Congratulations!
No news about Shad?
Allan
PS....sorry to hear about your loss.
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>I am unaware if they have ever tried to ignore his IMOs before.
Hello Berta,
My claim has been denied by ignoring, 3 IMO's DR Bash has sent in. My claim completely hinges on an opinion by someone who specializes in neurological radiology & a thorough evaluation of medical history.
I have complete faith in DR Bashes opinions & diagnoses.
Is he worth the money? He's worth every penny.
After a decade of having a neuromuscular disorder of unknown cause as a diagnoses & VA neurologist that refuse to view previous medical history during their diagnostic workups, Dr Bash was able to resolve a mystery that's plagued me for decades.
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hello captron,
Same here.
it means your claim is in limbo. It's not being reviewed or processed by anyone.
It stays in this state, until someone at a Regional Office somewhere, is free for the Appeals Center to pass it off to, in order to give it the same "type of review", that you appealed to the BVA for in the first place.
I'm in the same situation and this is my third time going through the appeals center.
If it's sent to a RO, you can expect it to be denied again, with any type of BS. This will put you in a position to have to send in, even more evidence that they will likely ignore.
See how it works?
My claim is a 1998 BVA appeal, on a 1995 VARO reopened claim from the 80's.
Allan
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Section A. Description and General Information
Overview
In this Section This section contains the following topics:
Topic Topic Name See Page
1 Description of the Veterans Claims Assistance Act of 2000, PL 106-475 1-A-2
2 Description of the Duty to Assist Criteria 1-A-3
1. Description of the Veterans Claims Assistance Act of 2000, PL 106-475
Introduction This section describes the Veterans Claims Assistance Act of 2000 (VCAA), PL 106-475, and contains information about the responsibilities of the Department of Veterans Affairs (VA) background of PL 106-475, and description of PL 106-475.
Change Date August 1, 2002
a. Responsibilities of VA Decisions on Department of Veterans Affairs (VA) benefit eligibility and entitlement are based on the evidence of record. Evidence consists of documents, records, testimonials and information in other forms provided by, or obtained for, a claimant.
VA has a duty to assist a claimant who files a substantially complete application in obtaining evidence to substantiate his or her claim before making a decision on the claim. We are charged with granting every benefit supported by the law.
b. Background of PL 106-475 On November 9, 2000, PL 106-475 was enacted, superceding the decision of the Court of Appeals for Veterans Claims (CAVC) in Morton vs. West, which held that VA cannot assist in the development of a claim that is not well grounded.
c. Description of PL 106-475 The new law, PL 106-475
eliminates the concept of a well grounded claim redefines VA’s duty to assist, and mandates specific notice requirements.
2. Description of the Duty to Assist Criteria
Introduction This section contains information about duty to assist, including issues pertaining to claimants relevant Federal records, and non-Federal records requests for VA examinations or medical opinions, circumstances where VA will refrain from or discontinue providing assistance, and contact information for questions.
Change Date June 19, 2006
a. Duty to Assist Claimants The Veterans Claims Assistance Act of 2000, PL 106-475, defines the scope of Veterans Benefits Administration’s (VBA’s) duty to assist claimants who file substantially complete applications for VA benefits.
Reference: For more information on what constitutes a substantially complete application, see M21-1MR, Part I, 1.B.3.a and 38 CFR 3.159.
b. Duty to Obtain Relevant Federal Records VA’s duty to assist includes developing for all relevant records in the custody of a Federal department or agency, including VA medical records, service medical records Social Security Administration records, or evidence from other Federal agencies.
Note: Relevancy is determined by what is being claimed. For example, in claims for service connection, relevant documents are those that may substantiate one of the elements of service connection (incurrence, current condition, or links). However, in most cases, it may be impossible to determine relevancy before obtaining the records.
Continued on next page
2. Description of the Duty to Assist Criteria, Continued
c. Duty to Obtain Relevant Non-Federal Records Our duty to assist also includes developing for private medical records, and lay or other non-Federal governmental evidence, such as current or former employer records, or state and local government records.
Important: VA should obtain the veteran’s authorization before including identifying data such as the veteran’s name and claim number in a development letter for lay evidence from a third-party. Authorization may be obtained on VA Form 3288, Request for and Consent to Release of Information from Claimant’s Records. This should not be used to obtain authorization and consent for release of medical evidence which is covered by VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, or release of employer information, which is covered by VA Form 21-4192, Request for Employment Information in Connection With Claim for Disability Benefits.
Reference: For information on the limitation of use of business reply envelopes for third-party development, see M21-1 MR, Part II, 5.B.5.c (TBD) or M21-1, Part III, 11.05, and
VBA Letter 20-05-42.
d. Duty to Obtain Examination or Medical Opinion If an examination or a medical opinion is necessary to make a decision on a claim for compensation, then our duty to assist includes examining claimants, and/or obtaining a medical opinion from the Veterans Health Administration (VHA) or designated contracted provider.
Continued on next page
2. Description of the Duty to Assist Criteria, Continued
e. Circumstances Where VA Will Refrain From or Discontinue Providing Assistance
VA will not provide assistance in obtaining evidence if a substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim.
Discontinue providing assistance if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which to refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to: the claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility
claims that are inherently incredible or clearly lack merit, and an application requesting a benefit to which the claimant is not entitled as a matter of law.
Reference: For more information on the criteria for a substantially complete application, see, M21-1MR, Part I, 1.B.3.a, and circumstances where VA will refrain from or discontinue providing assistance, see 38 CFR 3.159(d).
f. Contact Information for Questions Questions regarding duty to assist should be submitted to the Q&A mailbox at VAVBAWAS/CO/21Q&A by the Q&A station coordinator.
SOURCE: http://www.warms.vba.va.gov/admin21/m21_1/...1/ch01_seca.doc
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New Diabetes Genetic Risk Factors Found
Thursday, April 26, 2007
WASHINGTON - Scientists have found clusters of new gene variants that raise the risk of Type 2 diabetes - and how the researchers did it is as important as what they found.
In one of the largest studies yet of human genetic variability, the scientists tested the DNA of more than 32,000 people in five countries to pin down spots that harbor genetic risk factors for this complicated killer.
This type of research - called a "genome-wide association" study - promises to usher in a new era of genetics. Most breakthroughs so far have come from finding a mutation in a single gene that causes illness. But some of the world's most common killers, such as heart disease and diabetes, are caused by complex interactions among numerous genes and modern lifestyles - and teasing out the genetic culprits until now has been almost impossible.
"We have been for all of the last decade or more looking under the lamppost to try to find those genes ... and lots of times the lamplight was not actually where we wanted it," said Dr. Francis Collins, genetics chief at the National Institutes of Health, a co-author of the research unveiled Thursday.
This new approach "allows us to light up the whole street, and look what we find."
What? Four previously unknown gene variants that can increase people's risk of Type 2 diabetes, and confirmation that six other genes play a role, too.
The work, by three international research teams that shared their findings, was published online Thursday by the journal Science.
Also Thursday in the journal Nature Genetics, another team led by Iceland researchers reported separately finding one of those same new genes - and that, interestingly, it seems to increase the diabetes risk most in people who aren't obese.
Next, the researchers will have to figure out just what those genes do, in hopes they'll point toward new ways to treat or prevent a disease that affects more than 170 million people worldwide, and rising.
With Type 2 diabetes, the body gradually loses its ability to use insulin, a hormone key for turning blood sugar into insulin. It is a major cause of heart disease, as high blood sugar damages blood vessels, and leads to kidney failure, blindness and amputations.
Obesity and lack of exercise are chief risk factors. But heredity is involved, too: People with an affected parent or sibling are at 3.5 times greater risk of developing diabetes than people from diabetes-free families.
The new work scanned DNA to find patterns of small gene variations known as SNPs (pronounced "snips") more common in diabetics. SNPs can serve as signposts for tracing disease-promoting genes. To be certain the implicated SNPs were involved, the researchers then checked for them in still more volunteers, ultimately testing DNA from 32,500 people in Britain, Finland, Poland, Sweden and the U.S.
The highest-risk variants can increase by 20 percent someone's odds of developing Type 2 diabetes, the teams reported.
Among the genes implicated:
-One that helps pump zinc into insulin-producing pancreatic cells, raising questions about the metal's role in insulin secretion.
-A pair previously linked only to certain cancers, another brand new area for diabetes researchers to probe.
-A region of chromosome 11 where genes of any sort had never been described.
--------------------------------------------------------------------------------
Copyright © 2006, PeoplePC Inc. All rights reserved.
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§3.103 Procedural due process and appellate rights.
(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.
(b) The right to notice:
(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.
(2) Pretermination/reduction notice. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.
(3) Exceptions. Pretermination/reduction notice is not required but notice contemporaneous with the adverse action is required when:
(i) An adverse action is based solely on written, factual, unambiguous information as to income, net worth, dependency or marital status provided to VA by the beneficiary or his/her fiduciary with knowledge or notice that such information would be used to calculate benefits, and the legal standards applied to this information are numerical in nature,
(ii) An adverse action is based upon the beneficiary’s or fiduciary’s failure to return a required eligibility verification report,
(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required,
(iv) An adverse action is based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see §3.106 on renouncement),
(v) An adverse action is based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see §3.654 regarding active service pay), or
(vi) An adverse action is based upon a garnishment order issued under 42 U.S.C. 659(a). (Authority: 38 U.S.C. 501(a))
© The right to a hearing.
(1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in §20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans Appeals for appellate review. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant’s home having adjudicative functions or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.
(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record. (Authority: 38 U.S.C. 501(a))
(d) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be included in the records.
(e) The right to representation. Subject to the provisions of §§14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim.
(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph © of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered. (Authority: 38 U.S.C. 5104)
[55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. 25, 1990, as amended at 55 FR 20148, May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 2, 1992; 58 FR 16359, Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 FR 6901, Feb. 14, 1994]
Supplement Highlights references: 7(2), 9(3), 10(2), 10(3).
Reserved
http://www.warms.vba.va.gov/regs/38CFR/BOO...ART3/S3_103.DOC
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Chapter 5. Evaluating Evidence and Making a Decision
1. Guidelines for Evaluating Evidence
http://www.warms.vba.va.gov/admin21/m21_1/...v/ch05/ch05.doc
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Section A. General Information on Power of Attorney (POA)
http://www.warms.vba.va.gov/admin21/m21_1/...3/ch03_seca.doc
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Citation Nr: 0508095
Decision Date: 03/18/05 Archive Date: 03/30/05
DOCKET NO. 98-19 597 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for a low back disability,
including secondary to an already service-connected left knee
disability.
REPRESENTATION
Appellant represented by: Sean A. Ravin, Attorney-at-Law
WITNESSES AT HEARING ON APPEAL
The appellant, his spouse, and C. B., MD.
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had verified active duty from September 1970 to
September 1972 and from January 1991 to May 1991. He also
served in the reserves and had verified periods of active
duty for training (ACDUTRA) in July and August 1974, and in
July and August 1975.
This appeal to the Board of Veterans' Appeals (Board) arose
from an October 1997 rating decision of the Department of
Veterans (VA) Regional Office (RO) in Columbia, South
Carolina - which denied service connection for a low back
disability. But the RO granted service connection for a left
knee disability and assigned an initial 10 percent rating for
it. This is currently the veteran's only service-connected
disability.
A hearing was held at the RO in November 2000 before a
Veterans Law Judge (VLJ) of the Board. This type of hearing
is often called a travel Board hearing. A transcript of that
proceeding is of record.
The Board remanded the case to the RO in March 2001 for
further development and consideration. In July 2002 the
Board denied the claim for service connection for a low back
disability on both direct and secondary bases. That Board
decision was appealed to the United States Court of Appeals
for Veterans Claims (Court). And pursuant to a February 2003
Joint Motion, the Court entered an Order in February 2003
vacating that July 2002 Board decision and remanding the case
to the Board for compliance with the Veterans Claims
Assistance Act (VCAA).
In response, the Board remanded the case to the RO in
September 2003. And more recently, in March 2005, the
veteran, his spouse, and Craig Bush, M.D., testified at a
hearing at the Board's offices in Washington, DC, before the
undersigned VLJ. A complete transcript of the hearing is of
record.
The Board advanced this case on the docket pursuant to a
motion filed under 38 C.F.R. � 20.900 (2004).
During the March 2005 hearing, the veteran and his attorney
raised additional claims for a rating higher than 10 percent
for the service-connected left knee disability and for a
total disability rating based on individual unemployability
(TDIU). See page 2 of the hearing transcript. These
additional claims, however, have not been adjudicated by the
RO, much less denied and timely appealed to the Board, so
referral to the RO for initial development and consideration
is required since the Board does not currently have
jurisdiction to consider them. See 38 C.F.R. � 20.200
(2004).
FINDING OF FACT
Based on the medical and other evidence currently of record,
it is just as likely as not the veteran's current low back
disorder is attributable to functional impairment from his
service-connected left knee disability.
CONCLUSION OF LAW
Resolving all reasonable doubt in the veteran's favor, his
low back disorder is proximately due to and the result of his
service-connected left knee disability. 38 C.F.R. � 3.310(a)
(2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act (VCAA)
The VCAA, codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002), became effective on November 9,
2000. Implementing regulations are codified at
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326 (2004). The
VCAA requires that VA notify the veteran of the type of
evidence needed to substantiate his claim, including insofar
as whose specific responsibility - his or VA's, it is for
obtaining the supporting evidence. The VCAA also requires
that VA assist the veteran in obtaining evidence necessary to
substantiate a claim, but is not required to provide
assistance if there is no reasonable possibility that it
would aid in substantiating the claim. Charles v. Principi,
16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16
Vet. App. 183, 186-87 (2002).
The Board has determined that the evidence and information
currently of record supports a complete grant of the benefit
requested. Therefore, no further notification and/or
development is required to comply with the VCAA or the
implementing regulations because it would be inconsequential.
So the Board will address the merits of the veteran's claim
for service connection for a low back disorder.
Legal Analysis
Disability that is proximately due to or the result of a
service-connected disorder shall be service-connected.
38 C.F.R. � 3.310(a) (2004). Service connection will also be
granted for aggravation of a nonservice-connected condition
by a service-connected disorder, although compensation is
limited to the degree of disability (and only that degree)
over and above the degree of disability existing prior to the
aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995).
In determining whether service connection is warranted for a
disability alleged, VA is responsible for considering
evidence both for and against the claim. If the evidence, as
a whole, supports the claim or is in relative equipoise
(i.e., about evenly balanced), then the veteran prevails.
Conversely, if the preponderance of the evidence is against
the claim, then it must be denied. See 38 C.F.R. � 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49 (1990);
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
The veteran's only service-connected disability is impairment
of the left knee, which currently has a 10 percent rating.
In a January 2004 report, Dr. Craig Bash stated that he had
reviewed the veteran's claims file for the purpose of
providing a medical opinion concerning his low back
disability. Dr. Bash pointed out this case was well within
his area of expertise. And after reviewing the record he
stated, in pertinent part, that:
It is my opinion based on the medical record, x-
ray findings, and the patient's statements that
this patient's spine is most likely secondary to
his longstanding service connected lower leg
disability and his accompanying abnormal gait,
which likely damaged his perivertebral spinal
ligaments due to undue and abnormal stress.
It is also my opinion that this patient's spine
disc disease presented with sciatica, nerve
damage, gait abnormalities and muscle atrophy
in 1997 ....
A great deal of confusion is present in the C-File
record concerning this patient's spine disease.
He currently has very severe advanced degenerative
spine disease with sciatica, antalgic gait, uses a
cane for ambulation, has muscle atrophy, and has
had multiple epidural steroid injections and a
herniated disc. The question presented in the
file is whether or not the spine disease is
related to his service connected abnormal knee and
not whether his currently [sic] spine disease was
caused by his knee surgery in 1996 ..... It is well
known that patient's [sic] with lower extremity
orthopedic problems often have abnormal gaits and
these patients often rapidly develop abnormal
painful spines. The abnormal forces which are
secondary to the gait problems places excessive
stresses across the vertebral column, which in
turn damages the ligaments. As Turik states in
the following, once ligaments are damaged then the
patient will experience advanced degenerative
arthritis:
"... At the onset, tearing of ligaments and
subluxation are manifest by local symptoms
of low back pain accentuated by the motion
which stretches the ligaments ...
Eventually, symptoms of localized
degenerative arthritis are superimposed ...
(Turik page 853)
It is my opinion that this patient's spine disease
is most likely secondary to this longstanding
service connected lower leg disability and his
accompanying abnormal gait, which likely damaged
his perivertebral spinal ligaments due to undue
and abnormal stress for the following reasons:
1. The patient entered service with
normal legs and spine.
2. The patient had a serious in service
leg injury which is
service connected.
3. The patient has had a longstanding
abnormal gait.
4. The patient now has advanced premature
degenerative
spine disease with sciatica, atrophy
and a herniated
disc.
5. The patient does not have another
plausible etiology
for his spine disease.
6. The literature supports an association
between advance
spine disease and a longstanding
abnormal gait.
7. The medical opinions stating that this
patients [sic]
spine is not related to his leg
surgery are non germane
[sic] to the case because this
patient's spine disease is
most likely secondary to his
longstanding abnormal
gait.
The veteran underwent a VA orthopedic examination in May
2004, also to obtain a medical opinion concerning the
etiology of his low back disability at issue. His claims
file was apparently available for review by the evaluating
physician inasmuch as the examiner related the veteran's
medical history. In doing so it was reported that, in
February 1997, about six months after his left knee surgery,
he experienced the sudden onset of severe low back pain, for
which he underwent an MRI that revealed bulging discs. After
a physical examination it was reported that:
Given the apparently routine nature of the left
knee arthroscopy, and the subsequent negative
history relative to that joint as well as
currently normal examination of that joint, it is,
in my mind, very unlikely that the left knee
condition would have led to significant lumbar
spine abnormalities. While it is known that
chronic gait abnormalities can lead to lumbar
spine injury and wear and tear, the length of time
involved here makes this unlikely in my opinion.
[The veteran's] surgery was in August of 1996 and
his onset of low back pain was six months later in
February 1997. Again, given the apparently
satisfactory outcome of his knee arthroscopic
surgery, it is in my opinion very unlikely that
the degree and duration of gait abnormality
subsequent to that surgery was sufficient to cause
the currently observed degenerative disk disease
in the lumbar spine. The question relating to the
unusual physical therapy exercises is a highly
speculative one. Given the veteran's description
of what he did during these exercises they do
sound a bit unusual, but not potential [sic]
traumatic enough to have caused severe lumbar
spine injury without first significantly
exacerbating the knee symptoms. It is my opinion,
therefore, that it is less likely than not that
his degenerative disk disease of the lumbar spine
was secondary to either the knee injury with gait
abnormalities or to the physical therapy used
subsequent to the knee surgery.
The May 2004 VA examiner further stated that he had reviewed
Dr. Bash's opinion, and that it appeared that Dr. Bash had
not examined the veteran to ascertain the severity of the
degenerative disc disease or, more importantly, of the knee.
Given an essentially normal examination of the knee and an
admission on the part of the veteran that he has had very
little symptomatology from the knee since his convalescence,
the May 2004 VA examiner felt justified in disagreeing with
Dr. Bash's January 2004 opinion.
An addendum to the May 2004 VA examination report indicates
that X-rays revealed three compartment osteoarthritis of the
left knee associated with a large Baker's cyst containing
multiple osteochondral fragments.
At the March 2005 hearing at the Board before the undersigned
VLJ, Dr. Bash testified that he had reviewed the veteran's
claims files on two occasions. See pages 11 and 12 of the
transcript. He said there was no evidence of a spinal
herniated nucleus pulposis (HNP) or back pain prior to the
veteran's left knee injury, and that he first developed back
pain after the left knee injury. See pages 14 and 15 of the
transcript. After Dr. Bash had rendered his January 2004
opinion and after the VA examination in May 2004, Dr. Bash
had personally examined the veteran in March 2005 - just a
day prior to the hearing. See Page 16 of the transcript.
That examination found many more positive clinical findings
as to the veteran's left knee than were found on the May 2004
VA examination. Page 17. Of particular note, the veteran's
left thigh was smaller in circumference than his right thigh
- so atrophied, and he had crepitus (a grinding, clicking
sensation) in his left knee. Page 20. Dr. Bash felt that it
was most likely the veteran's left knee pain and abnormal
gait (due to his service-connected left knee disability)
contributed to his current spinal pathology. Page 22. Dr.
Bash further stated that he felt the report of the May 2004
VA examination was inaccurate because it did not incorporate
the results of imaging and the veteran did not have a normal
left knee, as indicated in the May 2004 VA examination
report. Page 22. So in substance, said Dr. Bash, the fact
that the veteran does not have a normal left knee invalidates
the opinion to the contrary expressed by the May 2004 VA
examiner. Page 23.
The veteran testified that the May 2004 VA examination only
lasted about 30 to 35 minutes, but that, in comparison, Dr.
Bash's examination was for an hour or even an hour and 15
minutes. Page 26. The veteran's wife, a nurse, also
testified that he had no complaints of low back problems
prior to June 1996, but since that time has experienced an
abnormal gait. Page 32.
Also during the March 2005 hearing, another statement from
Dr. Bash was submitted into evidence (it is dated in March
2005), along with a waiver of initial consideration by the
RO. In the statement Dr. Bash reported that he had reviewed
the veteran's claims files for, in part, the purpose of
providing a medical opinion regarding the relationship
between his left knee and spinal disabilities. Dr. Bash
reiterated this case is well within his area of expertise
because he is a Board Certified Radiologist with subspecialty
training as a Neuroradiologist and has special knowledge in
the area of spine disease. He submitted a copy of his
curriculum vitae as proof of his qualifications. He further
stated that:
It is my opinion that certain medical opinions and
certain findings provided by Dr. Anderson are
clearly erroneous and have no basis in fact.
Further, [the] opinion [of the May 2004 VA
examiner] is inconsistent with my recent physical
exam finding of 1 March; the patient's medical
history; and the radiology imaging evidence as
I have outlined in the table below:
Dr. Bash went on to state:
In addition to the above discrepancies, I noted
that the patient could not squat, bend, stoop,
walk un-aided or lift from chair without
assistance. The patient also was using a left
knee brace, cane, lumbar spine TENS unit/wet-heat
device.
The report [of the May 2004 VA examiner] is, in my
opinion very inaccurate, which may be due to the
fact that he dictated his findings about a
different patient into this patient's record or
that he did not integrate his addendum or the
imaging finding or his physical findings with his
medical history and/or that his medical training
in preventive/occupational medicine provides him
with an inadequate background to interpret this
complicated multi-joint/spine set of problems
and/or that he did not reference any literature to
support his opinions.
In addition, his report contains several medical
logic disconnects. For example, he basically says
that this patient's left knee is normal and
without crepitus but he also states that the knee
has moderate three-compartmental osteoarthritis.
This is a disconnect. This osteoarthritis is the
imaging equivalent to the crepitus that I felt and
heard on my exam. He also states that the patient
has had very little symptomatology over the years
but he also states that the patient uses a cane
and crutches, takes large doss of pain
medications, has difficulty with bathroom duties
and had to use a bed pain [sic] recently. This is
another disconnect.
Overall, I do not find any basis for his opinion
concerning the severity of this patient's left
knee or why/why not this patient's knee problems
contributed to his spine problems.
In my opinion this patient has had a longstanding
knee problems [sic] since service, which required
surgery and subsequently developed osteoarthritis
as documented on both imaging and exam. The
patient has had left knee pain for years and an
abnormal gait that has been documented in his
records and he now uses a cane/crutches and knee
brace and he has left knee swelling. The patient
developed back pain several months (9 months to be
exact - please note that [the May 2004 VA
examiner] inaccurately stated 6 months) following
his knee surgery. In my opinion 9 months is a
long enough period of time to develop serious back
problems secondary to an abnormal gait and or
chronic knee pain. I have seen back pain develop
immediately after an acute injury and within
several days following chronic gait abnormalities.
It is my opinion that this patient's longstanding
gait problems have caused his lumbar spine to fail
with resultant sciatica ... I have reviewed his
current MRI images dated 2 Aug 2004 and I agree
with [the May 2004 VA examiner] that this patient
has multilevel lumbar disc disease. It is my
opinion that this patient's physical exam (back
pain-spasm as documented on attached ER reports
and sciatica), medical history and imaging
findings are all consistent with his multilevel
lumbar disc disease and that this disease is due
to his longstanding service induced left knee gait
problems as his medical record does not contain
another likely etiology.
In summary, I do not find any new information in
this patient's medical record that convinces me to
change my previous opinion. On the contrary, my
recent medical exam supports my previous opinions
that this patient has serious service induced left
knee and spine problems ....
It is the obligation of the Board to weigh any contrasting or
conflicting medical diagnoses or opinions. See Schoolman v.
West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet.
App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429,
433 (1995). This responsibility is more difficult when
medical opinions diverge. The Board cannot make its own
independent medical determination and there must be plausible
reasons for favoring one medical opinion over another. Evans
v. West, 12 Vet. App. 22, 31 (1998); see also Rucker v.
Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v.
Derwinski, 1 Vet. App. 171 (1991). Probative weight should
not be given to medical opinions when the veteran's records
were not reviewed. See Bielby v. Brown, 7 Vet. App. 260, 269
(1994) (medical opinion is of no evidentiary value when
doctor failed to review veteran's record before rendering an
opinion).
Here, though, both the May 2004 VA examiner and Dr. Bash have
reviewed the veteran's claims files. Nevertheless, it must
be noted that Dr. Bash reviewed the claims files on two
separate occasions - and, like the evaluating VA physician,
has now actually examined the veteran to complement this. So
there are legitimate reasons for accepting this private
physician's medical opinion over the VA examiner's medical
opinion to the contrary.
The private physician's opinions are much more focused by
addressing the impairment cause by the veteran abnormal gait.
Also, Dr. Bash cited more specific evidence in the record to
support his opinion. In fact, Dr. Bash noted inconsistencies
in the May 2004 VA examiner's opinion and, in particular, the
fact that the VA examiner indicated the veteran's left knee
was essentially normal; whereas, X-rays revealed three-
compartment osteoarthritis in this knee.
So resolving all reasonable doubt in the veteran's favor, it
is certainly just as likely as not that his current low back
disorder is a residual of the functional impairment
(especially his abnormal gait) stemming from his already
service-connected left knee disability. Thus, service
connection for a low back disorder, as secondary to his
service-connected left knee disability, is warranted.
ORDER
Service connection for a low back disability is granted.
____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
-
TS,
also, I had no problem finding information on DR BASH using the search engine,
Dogpile. It's one of my favorites.
-
Hello TS,
heres DR Bash's contact information.
I have recieved IMO's from DR Bash, but my claim is still pending before the BVA.
All I can say about him with my claim still pending, is hes one of the best in the country. If you need an IMO, I highly recomend DR Bash.
Allan
###################
You may contact Dr. Bash by either of the options below. Usually, e-mail is the most efficient and quickest for first contact.
Craig Nicolas Bash, M.D., M.B.A.
Neuroradiologist
7831 Woodmont Avenue Phone: 301.767.9525
Bethesda, MD 20814 Fax: 301.365.2589
myelinman@hotmail.com
drbash@doctor.com
Veterans Medical Advisor
Providing Independent Medical Evaluations
for Veterans
-
>Maybe when the VA is made to pay penalty and interest for a delayed claim things will improve.
Hello Pete,
Thet would speed up the claims process alright.
What if the RO raters, NSO's, could be sued for false & misleading statements, with intent to deprive veterans of their earned benefits?
-
fwd from: Kelley
Veterans Issues –
Justice and ACCOUNTABLY at its very finest
by our united states government
April 25, 2007
Below are some comments by leaders in Veterans Groups around the nation.
I would like to add my dollar two ninety-eight comments as one who has fought the injustices with data, logic, rationale, stated scientific and legal misconduct, etc.
Obviously, the Walter Reed issues by our media and our honorable politicians are now being swept under the old political magic carpet. Rise to put out the media brush fire and now back to the normal stump breaking of Veterans and their families.
The Walter Reed Exposures brought up a lot of issues that the media seems less concerned with than dirty rooms. Many of those issues affect the Veterans and family for life. The Veterans reward for honorable service is met with less than an honorable government and its less than honorable leaders.
The inside 495 standard response to cover up issues is to assign some "so-called" independent committee that is appointed by politicians who are less than honorable themselves. Assign former politicians to the committee who also were less than honorable to cover up the issues or at least mislead the facts to minimize the effects and the damages and the absolute miscarriage of justice and accountability that Veterans face on a daily basis. A miscarriage of justice and lack of accountability that no other segment of society is subjected, including the illegal alien.
Mr. Bob Dole, while a former Veteran, was in federal politics for how many decades and did nothing to stop the injustices against our nations finest and most honorable citizens.
Ms. Donna Shalala, former health secretary stood by while more Vietnam Veterans died or became disabled uncompensated than the Viet Cong and the North Vietnamese Army manage to kill or disabled. She also did nothing.
These two are heading up the committee of what Washington normally does and that is; "the search for the guilty but punishment of the innocent." This is just another inside 495 Kabuki dance, otherwise known as the old DoD/VA federal agency two step.
Then we have Mr. Bush asking Mr. Nicholson the Secretary of Veterans Affairs to head a ‘so-called’ independent panel. What a joke!
Whenever the Veterans win a legitimate constitutional court battle against the crooked VA who is the first person to oppose the legitimate court ruling for Veterans? Of course, Mr. Nicholson, (or any other Secretary of the Department of Veterans Affairs) who then not only opposes the court rulings of our nation but also with the power given him by Congress in U.S.C 38 Paragraph 511 thumbs his nose at the mandamus court order. In any other segment of our society, the Secretary would be charged with obstruction of justice. Not so for our Nation’s Veterans and their families. They have no justice or even a legal forum to get justice or accountability for death and disability. Death and disability caused not only by the enemies of our government but our ‘own government’ as well.
Therefore, Mr. Bush’s actions, exclaimed in the press, are less than authentic and are certainly less than honorable.
Now this is not just a republican president issue. In fact, for the past 60 years, our presidents and many members of congress on both sides of the aisle have not acted honorably with our Nation’s Veterans. To say they did not know what was going on within the DoD and especially the VA/NAS-IOM/Ranch Hand connection misconduct with the massive use of toxic chemical herbicides in the 60’s and 70’s would be giving them just an excuse. To say they did not know the Secretary of Defense had the complete and legal authority to authorize biological chemical warfare testing of our Veterans and did so from 1962 to 1973 would also allow them nothing but an excuse.
These are supposed to educated men and women who all of sudden when it comes to Veterans and Veteran’s Family Issues become brain dead!
I will say, as a former Republican, I myself was shocked at the uncovering of the Reagan/Bush White House memo that clearly indicated an obvious lack of support for toxic chemical Veterans directed to all federal agencies. Along with an obvious, support for the Chemical Companies and their lobby money.
Before this memo, the foot dragging by all concerned in government, as well as the then VA, is well noted and documented. Yet, nothing was done by congress to protect their constituents from these brazen acts of corruption.
As the evidence mounted against the government and the Chemical Companies even more brazen scientific misconduct took place; the VA changed names with new powers given; government studies were interfered with, real scientific study protocols were mandated changed as even the government could not stop the found issues within the government’s own exoneration studies; Veterans Courts, outside the constitution, were set up; executive, judicial, legislative powers were given to the new Department of Veterans Affairs.
In a recent article sent to me by one our New Zealand Veterans states the follows in the New Zealand media.
"Indeed, the Prime Minister of New Zealand, (a Vietnam War Protestor), is reported in the media as, "Feeling Sick At the Suffering and Consequence of War upon communities. "Really! She does not seem to have a problem in spending some $10 million in order to enhance the National War Memorial when her Government continues to "rort" the actual combatants, their surviving widows, and DNA damaged children of previous conflicts in South East Asia whilst she was a University Student."
That just about sums up what our own government has done. About nothing except for deceit, interference, scientific misconduct, and out and out lies for over 40 years. Except the New Zealanders, Aussies, and Korean allies all depend on the processes used by our government as their own government cite Ranch Hand issues that we now know were not only covered up, minimized, and in total with the cohort assumptions of exposures flawed in all categories of medical findings including birth defects and DNA damages.
The Ranch Hand Study used as a government exoneration tool we now find was like running a 25 year clinical trial on a new medication, and you found out some of the people who were in your cohort comparison group were actually taking medications. That would spoil your whole study. Moreover, that's what's going on here to deny Veterans death and disability compensations created by our own government. In this studies case at least 600 of the 1300 are in question in comparison as to if they took the medication under study instead of placebos.
Nice touch on the part of caring government.
The government’s custodian of this study, the United States Air Force, when confronted by these facts and the reanalysis done by the former lead DoD scientists was? Destroy the DATA!
All present and future military veterans must be made aware of these government actions before they sign any retention or enlistment papers.
To care for those that have borne the battle and their widows and orphans has become nothing but a political joke.
If the United States Government in all most total harmony can do what I described above, of which most of you know I can provide documentation to these stated facts. Then does anyone ‘not believe’ with men like Dr. David Chu in the pentagon that what is described below of minimizing the effects of war on our soldiers and keeping the percentage less than 30% is not an unofficial goal of the DoD. As well as in conjunction with the VA keeping the numbers per year down of disabled Veterans along with the many conflicts of interest in the VA’s own definitions, which demonstrate a complete bias towards stalling the Veterans and Widows claims even more and more.
The classic government propaganda fraud is the following released on the 25th.
By Steve Vogel
Washington Post Staff Writer
Wednesday, April 25, 2007; Page A04
"President Bush last night ordered the Pentagon and Department of Veterans Affairs to come up with a joint process for establishing the level of disability of injured service members, and to implement other recommendations from a presidential task force."
What that article should have read is:
President Bush last night ordered the Pentagon and Department of Veterans Affairs to come up with a joint process for establishing the level of disability of injured service members, and to implement other recommendations from a presidential task force. Addendum: Just as long as the cost is held to a minimum; no more than 4% per year of all claims will be adjudicated, and no more than 2% of the 4% will be approved at any level of disability per year.
Thereby our government in total wants to make sure the Veterans of this nation shoulder the burden of the nation’s wars by supporting their own disabilities (enemy or government created) and their families supporting the Veterans government caused death with a lifetime of loss.
Charles Kelley
Author and Veteran of the DMZ 67-68
--------------------------------------------------------------------------------
Ralph Parrott ralphparrott@cox.net
www.empoweringveterans.org
Folks,
When I read this my blood boiled again. It is becoming increasingly clear that this problem is being treated as an issue of bureaucratic bungling rather than a question of justice for the service member. Folks, what you are seeing is classic "slow walking" and it is pure bullshit. We cannot let it happen.
These guys are getting ready to redraw lines on a damned organization chart and declare the problem solved. It is outrageous.
To date this problem is being approached as a problem of red tape and bureaucracy run amok. Nothing could be farther from the truth. It is a conscious effort on the part of the military services to pass the problem along to the VA and in the process short change our service members and their families. To begin to correct this problem one must start to question some fundamental assumptions and practices that underlie the current program:
Assumption 1 - The current program assumes that it is OK to withhold retirement benefits, the most important of which is medical care and Tricare insurance from a large subset (less than 30% disabled) of service members that are separated from the service for service connected disabilities.
Assumption 2 - The burden of proof is on the service member to prove he is 30% or more disabled despite the complete control of the decision to separate the member and the PEB process being under the complete control of the military service.
Assumption 3 - In the absence of grievous physical wounds service members are assumed to be faking mental disorders and pain disorders.
I believe after you cut through the rhetoric of the DOD officials and listen to their denials you will come to believe as I do that these assumptions are alive and well in the current situation. Before any meaningful reform can be implemented these assumptions must be replaced as follows:
Assumption 1 - At the time of separation for disability, service members and their families are in their most vulnerable states emotionally and economically facing huge uncertainties about their futures. Simple justice demands that they be accorded continuation of benefits, especially health care and Tricare at least until their situation stabilizes. Under the current system this involves the assumption of at least 30% disability at the time the service decides to separate the member for a service connected disability.
Assumption 2 - Final disability determination of disability would be the responsibility of the VA. If the VA returns a determination of less than 30%, there would be an appeals board independent of both the services and the VA where the service member could appeal with the burden of proof being upon the services and the VA with counsel being provided to the service member.
Assumption 3 - Mental and pain disorders carry equal weight with physical injuries in disability determination.
I know you guys are getting tired of hearing this from me, but it is pretty damned clear that the politicians are not getting the message. I thought the statement by Bradley Mays was telling. He said, "It is a question of expenses." Why is it not a question of justice? Why is it never a question of expenses when handing out goodies to the rich and corporations but it becomes a question of expenses when doing justice by our service members?
I urge each of you to register your protest with the Dole / Shalala Commission by simply forwarding this message or, preferably, one of your own that uses even stronger language. Remember the "slow walking" is well underway and we simply must stop it in its tracks before our politicians use Dole / Shalala and the other variants as cover for doing not one damned thing.
Ralph Parrott
ralphparrott@cox.net
www.empoweringveterans.org
--------------------------------------------------------------------------------
-----Original Message-----
From: maddogusmc@bellsouth.net
Sent: Tuesday, April 24, 2007 9:42 AM
To: ralphparrott@cox.net
Subject: Pentagon May be Shorting Troop Benefits
"May?"
Pentagon May be Shorting Troop Benefits
Associated Press April 24, 2007
Military.com
WASHINGTON - An injured Soldier's disability should be determined by Veterans Affairs officials - and not the Pentagon - because the Army might be shortchanging troops, a presidential commission was told on Monday.
At a public meeting, the nine-member commission on veterans care chaired by former Sen. Bob Dole, R-Kan., and former Health and Human Services Secretary Donna Shalala delved into ways to cut down on paperwork and problems in the disability ratings system.
Under the current system, each of the armed services assign ratings to service members when they become injured. The ratings determine whether the service member is discharged from active service and if so, the amount of disability benefits to which he or she is entitled. The VA operates a separate system to determine benefits for retired veterans.
Critics say the Army rates its injured Soldiers at a lower level of disability compared with the other armed services and the VA so it can save on the costs of disability payments.
Veterans groups urged the commission to make a change so injured Soldiers aren't underpaid disability benefits.
Such a proposal would be a major shift in how disability benefits are administered, with both critics and supporters acknowledging it would likely add significantly to costs since the VA takes into account all the disabilities a Soldier has - not just one.
"We want to add our voice to others deeply disturbed by concerns of lowballing in Army disability ratings," said Robert Norton, deputy director for the Military Officers Association of America. "The ratings gaps are unacceptable."
In recent weeks, a separate review group found consistently lower disability ratings by the Army and suggested it might be because officials didn't want to pay benefits. The Army says it is perplexed by the finding but would investigate.
Bradley Mayes, director of compensation and pension service at the VA, told the commission that shifting the ratings work to the VA could be done. But he cautioned that the Pentagon would still need to be involved in making judgments on whether an active service member was fit for duty, as well as his level of military and severance pay for service. As a result, changing the current system could add to the level of bureaucracy.
"The question is expenses," Mayes added.
Dole and Shalala expressed openness to the proposal, which was made by a 2003 presidential task force co-chaired by Gail Wilensky, now a member of the Dole-Shalala commission. But they also cautioned against a rush to judgment.
At least nine congressional committees are currently investigating ways to improve care following disclosures of shoddy treatment at Walter Reed Army Medical Center, and well-meaning lawmakers could unintentionally add to the problem, they said.
"Although red tape in this country have a bad name, we often have legislation upon legislation as people try to fix problems," Shalala said. "This has led to complex systems that have grown up over the years that often aren't user-friendly."
"Simplify, simplify, simplify - keep those words in mind," she added. "While
detail is important, our purpose is clearly to foster a seamless system."
Dole wondered if shifting the disability system to the VA might actually create additional bureaucratic hassles. He noted that Pentagon officials have already begun to examine ways to overhaul its disability system.
"If it's that easy to fix, I don't know why it hasn't been fixed," he said.
President Bush created the commission last month to make recommendations following disclosures of shoddy outpatient treatment at Walter Reed Army Medical Center. The panel plans about a dozen hearings and site visits to military and VA facilities around the country and will issue a report by late July. Its next hearing, in San Antonio on May 3-4, will focus on traumatic brain injury and rehabilitative care.
SOURCE: http://www.2ndbattalion94thartillery.com/C...eransIssues.htm
-
>Since there is no workers comp or disability except for $1,000 per month from the federal civil service. How can it be done?
Hello SABruce1,
It's not easy. At first it gets hard, than it gets worse. It takes sacrifice from all the family members.
We had our land paid for when I became totally disabled, or the cost of a place to live, would have taken most of the $1000. It took ten yrs to get power & running water to our place & now the well needs drilled deeper.
We recieve $1100 now, but in 1994 & a family of four, it was several hundred less.
I'm still waiting for the same issues to be decided on now, as I filed for back then. Cervical, Thoracic & lumbar stenosis & spondilosis, left arm & shoulder issues, right leg, neurological, visual, hearng, mental, gastrointestinal & lung disorders.
So far, i've recieved a 30% SC rating.
If your totally disabled, the choices are very limited. Best prepare for hard times the best you can.
Allan
-
VA Advance Directive: Living Will & Durable Power of Attorney for Health Care 6/5/2003 12/2006 6pgs
http://www.va.gov/vaforms/medical/pdf/vha-10-0137-fill.pdf
WHAT YOU SHOULD KNOW ABOUT ADVANCE DIRECTIVES 1/8/2007 1pg
http://www.va.gov/vaforms/medical/pdf/vha-10-0137B.pdf
Your Rights Regarding Advance Directives - fillable 1/8/2007 1 pg
-
>If you are 100% you have no choice but to wait on the VA. I think the delays and bogus ratings are part of the plan to discourage vets from getting the ratings they deserve.
It should be illegal John.
At The Regional Offices - Suggested Boilerplate
in VA Disability Claims Research
Posted
##### START #####
IV. Advice to Advocates
A. At The Regional Offices - Suggested Boilerplate
Advocates should submit the following boilerplate (suggested language) in
support of all pending claims and with all new claims for VA benefits.
The Veterans Claims Assistance Act of 2000 (VCAA or Act) was signed into
law on November 9, 2000. See Pub. L. No. 106-475, 114 Stat. 2096 (2000).
The VCAA eliminates the well-grounded claim requirement and requires the VA
to explain to all claimants what evidence is needed to substantiate their
claims.
The Act requires that the VA comply with the duty to assist unless the VA
determines that no reasonable possibility exists that VA assistance would
aid in substantiating the claim. Therefore, if you decide not to assist
this claimant please explain why no reasonable possibility exists that the
claimant could obtain benefits. See 38
USC. § 5104 (where the Secretary denies a VA benefit, he must provide a
statement of reasons for the decision and a summary of the evidence
considered).
Please note that the VCAA requires the VA to make reasonable efforts to
obtain relevant (non-federal) records. Also, the VCAA requires the VA to
continue to attempt to obtain relevant federal records until it is
reasonably certain the federal records are unobtainable or that they do not
exist. Of course, we request that if you can make a favorable decision on
all or some of the claims submitted by the claimant that you do not wait to
make such decisions. Also, please let my client know if additional
information is needed in order to obtain relevant private or federal records.
If a medical examination and/or medical opinion is needed to determine
nexus or linkage issues please delay that examination until my client has a
reasonable opportunity to submit continuity of symptomatology and other
supportive evidence. Also, we request that you advise the VA examiner that
linkage does not have to be established to a medical certainty because the
standard of proof in VA claims is the “benefit of the doubt” or the “as
likely as not” standard.
Also, when you schedule an examination please advise the examiner what
facts have been accepted as true by the regional office. A medical opinion
would be inadequate if the examiner based the opinion on facts that were
not accepted as true by the RO.
Under the VCAA, 38 U.S.C. § 5103(a) mandates that, in the case of every
claim submitted to the VA, the VA shall (must) notify the claimant and the
claimant’s representative of “any information, and any medical or lay
evidence, not previously provided to the Secretary that is necessary to
substantiate the claim.” In addition, the VA is required to explain to the
claimant what evidence the claimant must obtain and what evidence the VA
will attempt to obtain. Therefore, please explain to the claimant what
types of evidence would help substantiate this claim. We specifically want
to know if lay or “buddy” statements are needed to substantiate (1) what
happened in service, (2) allegations of continuity of symptomatology by the
veteran, and/or (3) the current severity of any disability at issue. For
example, if a lay statement from a family member
indicating that the veteran, during service, told the family member of an
in-service knee injury would help substantiate that a knee injury occurred
during service, please suggest that we submit such evidence.
in some instances, there may be positive and negative evidence in the VA
record. If you determine there is negative evidence in this claimant’s
record please let my client know what this evidence is and please let us
know what types of evidence would tend to rebut this negative evidence and
thus substantiate this claim.
If a decision (RO, BVA, CAVC, or Federal Circuit) became final on or after
July 14, 1999, wherein the claim was denied as not well grounded, advocates
representing claimants before ROs should file a request for readjudication
with the RO. Advocates can use VA Form 21-4138 to request readjudication,
or simply submit a written request for readjudication. The request for
readjudicatton should indicate that the VCAA mandates that a denial of a
claim as not well grounded, which became final on or after July 14, 1999,
must be readjudicated as if the denial or dismissal had not been made. An
advocate’s action on this front should make it possible for claimants to
obtain the earliest possible effective date. Advocates or claimants have
two years from November 9, 2000, to make a written request for readjudication.
-------------- END Boiler Plate --------------
B. At The BVA
Advocates should ask for a remand when either the notice requirements of
the VCAA have not been satisfied or when the RO denied the claim as not
well grounded. Of course, other failures by the RO (for example, failure in
the duty to assist, or misinterpretation of a statute or regulation) should
also be argued. Most likely many remands will be generated because the VA
failed to explain to the claimant what evidence, including evidence such as
medical opinions and lay statements, would substantiate the claim.
##### END #####