I have been hashing and rehashing this for over a week. This is the best I can do at this time. It is formatted as legislative changes that need to be addressed by congress. It is my amateur attempt at telling the Congress what they should legislate. It is an obsession. The provisions of this treatise would apply to my claim. However, I really do not think about the money that I have lost as a result of VA buffoonery. It is a request that the VA retroactively compensate any disability with medical evidence showing onset in the military. Pay particular close attention to the requirement that veteran’s initial exams are to be performed by doctors who are pre-screened by veteran’s advocates, as it is done in industrial injury cases. The lack of such screening is a huge problem for veterans. If you have ever been involved in an industrial injury claim and compare the two systems, the VA system by design creates enormous road blocks for the veteran. It is possible that I have established concepts that vary from other individuals experience with the VA and their laws. This treatise is based on my experience and my understanding of the VA’s procedures.
The appendixes at the end of this document have examples of problems created by this screwed up system. You might want to read this section first. It will give you and understanding of claims problems this proposal seeks to resolve. I put this post on hadit so we could kick it around some. Feel free to copy, paste, modify, add, subtract and forward this to anybody you chose including politicians and the media, etc. There are grammatical errors. I used to know how to write error free. However, that was a long time ago.
We here on hadit could probably come up with many examples of the BS veterans run into. Wouldn’t it be nice if we all got a chance to testify before some congressional committee about the problems of the VA. It might be hard to get the congresses attention. They do have other concerns that they spend their time on like the use of steroids in baseball. I call my little treatise on life with the VA, “THE NO VETERANS LEFT BEHIND ACT”.
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The NO VETERAN LEFT BEHIND ACT is being advanced for the purpose of making veterans who became disabled as the result of military service “whole”. This act requires that congress recognise the errors of the past and make reparations. This act requires reparations to veterans for the shortcomings of the VA’s non adversarial system. In 1988 the congress made reparations to the Japanese Americans affected by the internment camps during WW II. It is now time to make reparations to veteran’s who suffered medical/legal internment as the result of an inferior claims processing system that has existed for decades. Of which some inadequacies were identified in the Veterans Claims Assistance Act of 2000.
The Veterans Claims Assistance Act of 2000 identified some shortcomings of the VA’s non adversarial system. The Veterans Claims Assistance Act of 2000 was originated by legislators who wanted to change the VA system for processing claims and put the VA system on a level equal to Social Security. The main concern of legislators was the Morton decision that required claims to be well grounded before the VA would implement the duty to assist requirement.. The legislators identified this act as causing the problems in 1996. Actually, the Morton decision cemented VA policy that had been used to deny claims for decades. Additionally, there were serious widespread problems confronted by veterans that were not addressed by the Veterans Claims Assistance Act of 2000
During testimony prior to the passing of the Veterans Claims Assistance Act of 2000 Veterans service organizations testified that the VA had become adversarial in some types of claims. What was not brought to the attention of Congress is the Veterans Service Organizations have renegade employees who also are adversarial to the same types of claims. Additionally, the renegade employees have the luxury of discriminating against certain types of claims and still collecting a full pay check at the end of the week.
There is open opposition to service connection of diseases not related directly to an individual’s job in the service. Injuries occurred while on leave, systemic diseases, neck/back injuries and some psychiatric conditions have been openly identified as having least favorite status by some VSO’s and VA medical staff. There also appears to be disinterest in claims filed by veterans who served one tour of duty. It is these types of claims that are targeted by NO VETERAN LEFT BEHIND ACT. Renegade VSO’s and VA personnel are in fact subverting these types of claims. See the examples of VSO discrimination in attached appendix “A”. Some people fail to realize that members of the military should be allowed both injured workers benefits and benefits that parallel long term disability benefits to civilian workers. A benefit that parallels long term disability benefits is especially allowable considering that many enlistees and draftees, when entering the military, experience significant wage loss compared to their previous occupations.
Under the VA system VSO’s told veterans to obtain their medical evidence from VA doctors and other treating physicians not familiar with the VA system. Typically, veterans did not possess the medical/legal savvy to identify when they were asking for medical opinions from renegade doctors with hidden agendas. Some doctors have a dislike for psychiatric conditions, complaints of back pain or they were just not interested in compensation disputes. The subversion of claims began with renegade military doctors who were taking excessive steps to limit the government’s liability for disabilities that onset in the service (see attached appendix “B”).
Congress developed a system that chose to use front line defenders of veterans rights who were VSO’s that made decisions as to whether or not they should advance claims about complex systemic diseases, psychiatric conditions and were limited to getting reports from unknown doctors chosen at random. VSO’s told veterans to get a report from family doctors, out of the phone book or one who happens to be working a clinic at a VA hospital. This can be equated to obtaining a doctor by random choice. The family doctor, VA doctor could easily have hidden agendas including; not wanting to get involved in compensation disputes, not interested in psych claims. The veteran’s advocates lacked the insight and training to ask the right questions and the doctors lacked the familiarity with VA adjudication laws to write reports that addressed the issues of service connection. Then the advocates lacked the insight to figure out what was necessary to advance the claim. The advocate lost interest and the claims died. These doctors could have invented any reason not to get involved. (See attached appendix “B”). When labor law attorneys seek information to advance a claim and such information has not been provided by existing medical reports the attorneys use a doctor with whom they are familiar. Nothing is left to random choice.
The VA has the horse before the cart. The most important exams are the front line exams. If the initial medical reports are lacking the proper development, the VSO is at a loss as to how to advance the claim. The VSO’s and adjudicators start saying, “you were not treated for this condition in the military”, “according to the diagnosis the condition is not service connectable”. The front line defenders for a disabled person’s rights in industrial injuries are doctors chosen by the plaintiff’s attorney. Attorneys in industrial injuries only use doctors chosen at random from a list of specialists to resolve the disputes between the doctor that the attorney chose in the initial development of the case and a specialist who disagrees with a plaintiff’s doctor.
The unreliable verbal and written assessments by randomly chosen doctors became controlling. The amount of energy and money it takes to overcome such medical/legal buffoonery becomes overwhelming for veterans and otherwise valid claims were dropped. This type of run around can only occur in a system in which the doctors do not work in close association with the veterans disability advocate. It is an aberration to a system that considers itself to be in favor of the veteran. Unfortunately, this aberration was the result of the design of the system and many veterans suffered the consequences. See examples of unreliable verbal and written assessments in attached appendix “C”.
The Veterans Claims Assistance Act of 2000 had a goal of putting veterans on the same level as the representation and procedures used by disabled workers, Social Security, the railroads etc. The NO VETERAN LEFT BEHIND ACT does this for all time. Under the old VA system claims were denied without any medical opinion. The VA used what is called “Close out terminology”. This terminology is designed to deny the claim without tipping the veteran off as to what is needed to advance the claim “not well grounded” is an example of this terminology.
The congress was of the opinion that a “catch 22” had developed as the result of the Morton decision. Actually, the big ”catch 22” is allowing VSO’s to rely on doctors not pre-screened for their willingness to get involved in compensation claims or any other criteria that would benefit a particular type of claim.
The Veterans Claims Assistance Act of 2000 took great strides in protecting the rights of veterans. The best feature to come out of this act was the requirement that veterans be given C&P exams when the veteran develops post service symptoms of a disease. This change partially coincides with the requirements of the NO VETERAN LEFT BEHIND ACT. The Veterans Claims Assistance Act of 2000 requires an initial medical exam on new claims. However, the new law does not adequately provide avenues of escape for veterans claims affected by doctors with hidden agendas. At least one exam provided by a doctor pre-screened and chosen by the veterans advocate must be required.
The Veterans Claims Assistance Act of 2000 essentially abandoned all veterans whose claims predated the Morton decision. The Congress recognized the importance of a C&P exam prior to a denial yet allowed decades of claims without such exams prior to a denial to fall through the cracks. If the Congress can retroactively apply laws to the time of the Morton decision they can certainly retroactively apply laws to make reparations to veterans whose claims were filed prior to the Morton decision.
Veterans have been required to identify their disability on an application. Veterans, VSO’s and adjudicators have never been qualified to provide this information on the types of claims targeted by this act. The complexities of diseases that are known to have sub symptomatic features and develop slowly with multiple symptoms would take an understanding of symptoms, tests and exams that could only be developed by an MD. What has been and will continue to be needed is at least one medical exam by a doctor pre-screened and chosen by the veterans advocate at the time of the first review of the file for any reason. This exam should be thorough and search for any and all potential conditions associated with military service. Such exams have been provided for civilians with industrial injuries for decades.
The requirement that adjudicators explain the steps necessary to complete a claim should require an instruction to obtain a medical exam by a doctor pre-screened and chosen by the veterans advocate. This exam should be thorough and search for any and all potential conditions associated with military service. The more discretion an adjudicator is given in choosing the terminology and directions for establishing a claim the more likely error will occur. The door is still open for a whole new set of “close out” terms from adjudicators. Many of the problems targeted by the Veterans Claims assistance Act of 2000 will continue as long as the law does not require medical review of all of the assessments made by adjudication by an MD
who is familiar with the case history and works in close association with the veterans disability advocate.
Cases qualifying under the NO VETERAN LEFT BEHIND ACT would include conditions and symptoms actually identified in the SMR and conditions claimed by the veteran prior to one year after discharge. Any claim that did not contain at least one medical exam by a doctor pre-screened and chosen by the veterans advocate qualifies under this act. Claims lacking such an exam were not sufficiently developed to allow for a denial. A true non adversarial system would not allow for any loses to the claimant as the result of mistakes made during the processing of a claim. This is not an error on the part of the veteran’s advocates. VA law was inadequate by not requiring such exams and reports. This is a grave procedural error that laid the foundation for the denial of many claims that were actually valid. Veteran’s administration adjudicators and VSO’s were either legally restricted or lacked the insights gained by adequate medical exams to develop veteran’s claims.
Workers injured under labor law were represented by disability advocates who were paid for winning claims. These advocates working under labor law were motivated to “fish” for disabilities and avenues to compensate these disabilities. The VA only assisted veterans with claims after the veteran was successful in circumventing the barriers created by disorganized relationships between doctors and VSO’s and or renegade medical/legal advocates. There were statutes that actually allowed adjudicators to fail to “fish” for evidence. It can be argued that restricting compensation to attorneys who used all tactics they thought were applicable to win claims in the VA system and instead directing veterans to VSO’s and a non adversarial system was inherently inferior and was a violation of the veterans constitutional rights and is sufficient to assign CUE status to any claim denied due to lack of development, missing evidence or failure in the duty to assist.
The VA has established a myriad of legal technicalities that arbitrarily assign CUE status to some claims but not others. The failure to require at least one medical exam by a doctor pre-screened and selected by a veterans advocate can easily be attributed to CUE. This ACT recognizes that the failure to require at least one medical exam by a doctor pre-screened and selected by a veterans advocate at the first time the file was reviewed by the VA for any reason, results in an open claim since the time of the first review.
The NO VETERAN LEFT BEHIND ACT establishes “The Dominance of Medical Principals”. Thus, medical facts determine the date of onset of any disease and compensation will retroactively begin at the time of medical evidence establishes onset and follow the rating schedule as the medical history shows any increases or decreases in symptoms. Filing and appeal statutes will be set aside. This is justified by the fact that the non adversarial system was in fact inferior to the systems available to disabled persons applying for social security and or disabled workers seeking benefits under labor law. Additionally, claims that are initially denied as the result of failure in the duty to assist, develop the evidence, etc and are not appealed only occur when the veteran has inadequate medical/legal representation. Such wholesale failures to rapidly identify and establish valid claims were inherent in the design of the VA’s non adversarial system. The veteran should not be held responsible to overcome flaws inherent in the system in order to prevail.
The Congress was the parent of the VA and their non adversarial system and is responsible for its failures. Congress gave birth to a system that was in and of itself disabled and never matured. Congress turned their disabled baby loose and it caused unnecessary losses to many veterans. The wholesale failure in the VA’s ability to process claims for systemic diseases, psychiatric conditions and some orthopaedic injuries are serious failures that require reparation. Reparation is now necessary.
This act applies to any veteran who served at any time in the armed forces of the United States of America and files a current claim. There is no requirement that a previous claim had been filed.
A minimum standard of media exposure as to the availability of new benefits to veterans shall continue until such time it is reasonably determinable that adequate notification has been reached. News releases and coverage by the national media may be all that is necessary.
The Congress might feel that taking on such new benefits would create a hardship for the staffing levels of the VA. The Congress could easily resolve this by re-establishing the draft for the purpose of resolving veteran’s claims. Wouldn’t that be nice your kid gets a draft notice telling him he has to help veterans get their benefit’s.
APPENDIX A
VSO discrimination
A veteran was thrown out of the office in a fit of rage by the office supervisor of a large veteran’s service organization because the supervisor and the VSO assigned to the veteran’s case were of the opinion that the veteran was wasting their time with his claim. The veteran changed VSO’s. The new VSO ran into the supervisor of the other office in a hallway and told him he picked up the veterans claim. The supervisor asked him why he did that because the veteran was “crazy”. The veteran was eventually awarded 100% service connection for a systemic disease which produced chronic life threatening symptoms and secondary anxiety.
APPENDIX B
Subversion of VA benefits by military staff
An enlistee who was serving his first enlistment had gone to sick call on numerous occasions for symptoms of a chronic systemic vascular disease that had developed since he started working on a flight line. During sick call treatments the doctors had told the enlistee that they had observed symptoms of the disease. However, the treatment notes only show that he had been to sick call. NO symptoms or diagnoses of the vascular condition were in any of the sick call treatment notes. The enlistee recalled a sick call doctor telling him that the clinic had a policy of not noting these types of symptoms. There was one referral to a hospital clinic two months before the enlistee was discharged during which a specialist made the diagnosis of the vascular disease.
Some time after discharge the enlistee who is now a veteran filed for service connection. The claim was denied in 2001 because the one treatment note was not sufficient to show a chronic condition. Close out terminology was used in the denial and adjudication failed to explain to the veteran that he needed to show continuity of treatment after discharge. Years went by and the veteran was eventually able to figure out that the claim was denied on a false standard of law. The veteran showed continuity of treatment after service and was service connected.
An enlistee serving his first enlistment was unexplainably medically discharged from the service and given a diagnosis of a mild condition that produced some back pain. The condition was not chronic enough or severe enough to cause the individual to be discharge. Several years after discharge the veteran was diagnosed with a systemic disease called Ehlers-Danlos syndrome. The in service symptoms were consistent with Ehlers Danlos syndrome. The veteran was told by a doctor that Ehlers-Danlos would most likely have been aggravated by the activities of boot camp. The claim was being disputed by the VA because the diagnosis of Ehlers-Danlos was not made until several years after discharge. The diagnosis after service makes the unexplained reason surrounding the immediate discharge for a mild condition highly suspicious of fraud. The outcome of this claim is unknown.
An enlistee serving his first enlistment was seen by two different psychiatrists at the same hospital. The military psychiatrists made a diagnosis of personality disorders and the enlistee was discharged. The veteran later sought treatment for chronic anxiety that he believed started when he was almost killed in an aggravated assault that occurred while sleeping in a barracks. After the attack the enlistee was required to sleep in the same barracks with the individuals who made threats of continuing night time attacks. Three different VA psychologists reviewed the reports in the SMR and found that the military doctors made diagnoses that were based on insufficient screening. Additionally, the symptoms noted by military doctors in the SMR actually supported different diagnoses. The veteran was eventually service connected for a chronic anxiety disorder.
APPENDIX C
Unreliable verbal and written assessments from doctors and other medical staff
After the implementation of the Veterans Claims Assistance Act of 2000 a veteran seeking a nexus letter was told by a VA primary care doctor that the diagnosis made 30 years ago while in the military was made in error and that he actually had another disease that was not service connectable. The new diagnosis was for a virus that could not be substantiated by any means at the time the VA primary care doctor made his new diagnosis. The new diagnosis had no objective basis and was based purely on speculation and theory. The doctor refused to get further involved. The veteran immediately notified the RO who made no response to his complaint. It took the veteran another two years to get medical documentation that led to service connected. Service connection was awarded on evidence procured by the veteran. The RO refused to schedule a C&P exam or provide any other assistance
A veteran was seeking a clarification of diagnosis. The veteran had been given two diagnoses for the same symptoms. The veteran had been denied service connection because the VA claimed he was not treated in the military for the disease he had post service. A disease he had in service caused the same symptoms as a disease he had post service. The veteran asked a VA doctor if he would write a note as to whether or not the diagnosis of symptoms made in service were for the same disease he had post service. The VA doctor refused to get involved saying that the question the veteran asked was a semantic question, not a medical question. The veteran complained to the Head of the department. The head of the department listened to the veteran’s questions in a hallway and told the veteran that it sounded like the disease began in service. However, the doctor stated that he did not write letters for veterans who walked into the clinic. He would write a letter if the RO referred him for an exam. The RO had refused to schedule a C&P exam for five years to assist the veteran with his claim. Eventually, Congress passed the veterans claims assistance act of 2000. Years later the veteran took a nexus letter form to a VA hospital. The nexus report was written by a department head who thought that the resolution of a diagnosis was a medical issue. His report resolved the clarification of diagnosis. The veteran was able to get service connected in view of the fact that the RO failed to schedule a C&P exam as requested by the veteran prior to the denial of the claim.
A veteran told a VA hospital records clerk in 1996 that he needed his records for a claim he filed with the VA for disability. The records clerk told the veteran that fifteen years worth of treatment records were destroyed in the 1994 Northridge earthquake. This statement by the records clerk would have been a verbal roadblock that caused the termination of the claim. The records clerk made no offer to put such a significant problem in writing. The veteran was trained by an attorney to get everything in writing. The veteran was savvy enough to have the records clerk give him a written note to the effect that the records were destroyed in the earthquake. The written letter did nothing to benefit the veteran. The veteran asked for the letter because he thought the VA employee was incompetent.
The veteran submitted the letter to the VA and it became part of the file. Later the Veteran discovered that the records clerk had lied to him. Initially, the veteran abandoned his claim because these were the only post service records he had. Five years later the veteran casually mentioned to another records clerk that his records were destroyed in the 1994 earthquake. The new records clerk took offence to the veterans comment and responded that the VA spent a large amount of money to freeze dry and save those records. The new records clerk was of the opinion that only minor damage would have occurred to small portion of a page. When the veteran told the new records clerk that he had a written statement that his records were destroyed in the earthquake, the new records clerk told the veteran that somebody lied to him. The new records clerk found the file and the records were submitted five years later. The veteran was eventually service connected.
After running into a deceitful records clerk the problem was further prolonged by the veterans VSO and adjudication. It is hard to imagine that neither adjudication nor the VSO who worked in the closest office to the hospital in Sepulveda CA, were unaware of the Veterans Administrations efforts to save the records after the 1994 Northridge earthquake. However, the VSO said nothing and did nothing to assist the veteran in finding the lost records. The claim was denied by the RO in view of the lack of post service continuity of treatment. The SOC even cited the records clerks note as to the destruction of the records in the 1994 earthquake. Had it not been for an honest records clerk who told the veteran about the freeze drying and saving of the damaged records, who knows where the claim would be today.
These verbal denials resulted in the loss of benefits and delays in the award of claims. None of which would have occurred had the veteran been given access to medical staff who had been pre-screened by a competent veterans advocate.
Question
Hoppy
I have been hashing and rehashing this for over a week. This is the best I can do at this time. It is formatted as legislative changes that need to be addressed by congress. It is my amateur attempt at telling the Congress what they should legislate. It is an obsession. The provisions of this treatise would apply to my claim. However, I really do not think about the money that I have lost as a result of VA buffoonery. It is a request that the VA retroactively compensate any disability with medical evidence showing onset in the military. Pay particular close attention to the requirement that veteran’s initial exams are to be performed by doctors who are pre-screened by veteran’s advocates, as it is done in industrial injury cases. The lack of such screening is a huge problem for veterans. If you have ever been involved in an industrial injury claim and compare the two systems, the VA system by design creates enormous road blocks for the veteran. It is possible that I have established concepts that vary from other individuals experience with the VA and their laws. This treatise is based on my experience and my understanding of the VA’s procedures.
The appendixes at the end of this document have examples of problems created by this screwed up system. You might want to read this section first. It will give you and understanding of claims problems this proposal seeks to resolve. I put this post on hadit so we could kick it around some. Feel free to copy, paste, modify, add, subtract and forward this to anybody you chose including politicians and the media, etc. There are grammatical errors. I used to know how to write error free. However, that was a long time ago.
We here on hadit could probably come up with many examples of the BS veterans run into. Wouldn’t it be nice if we all got a chance to testify before some congressional committee about the problems of the VA. It might be hard to get the congresses attention. They do have other concerns that they spend their time on like the use of steroids in baseball. I call my little treatise on life with the VA, “THE NO VETERANS LEFT BEHIND ACT”.
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The NO VETERAN LEFT BEHIND ACT is being advanced for the purpose of making veterans who became disabled as the result of military service “whole”. This act requires that congress recognise the errors of the past and make reparations. This act requires reparations to veterans for the shortcomings of the VA’s non adversarial system. In 1988 the congress made reparations to the Japanese Americans affected by the internment camps during WW II. It is now time to make reparations to veteran’s who suffered medical/legal internment as the result of an inferior claims processing system that has existed for decades. Of which some inadequacies were identified in the Veterans Claims Assistance Act of 2000.
The Veterans Claims Assistance Act of 2000 identified some shortcomings of the VA’s non adversarial system. The Veterans Claims Assistance Act of 2000 was originated by legislators who wanted to change the VA system for processing claims and put the VA system on a level equal to Social Security. The main concern of legislators was the Morton decision that required claims to be well grounded before the VA would implement the duty to assist requirement.. The legislators identified this act as causing the problems in 1996. Actually, the Morton decision cemented VA policy that had been used to deny claims for decades. Additionally, there were serious widespread problems confronted by veterans that were not addressed by the Veterans Claims Assistance Act of 2000
During testimony prior to the passing of the Veterans Claims Assistance Act of 2000 Veterans service organizations testified that the VA had become adversarial in some types of claims. What was not brought to the attention of Congress is the Veterans Service Organizations have renegade employees who also are adversarial to the same types of claims. Additionally, the renegade employees have the luxury of discriminating against certain types of claims and still collecting a full pay check at the end of the week.
There is open opposition to service connection of diseases not related directly to an individual’s job in the service. Injuries occurred while on leave, systemic diseases, neck/back injuries and some psychiatric conditions have been openly identified as having least favorite status by some VSO’s and VA medical staff. There also appears to be disinterest in claims filed by veterans who served one tour of duty. It is these types of claims that are targeted by NO VETERAN LEFT BEHIND ACT. Renegade VSO’s and VA personnel are in fact subverting these types of claims. See the examples of VSO discrimination in attached appendix “A”. Some people fail to realize that members of the military should be allowed both injured workers benefits and benefits that parallel long term disability benefits to civilian workers. A benefit that parallels long term disability benefits is especially allowable considering that many enlistees and draftees, when entering the military, experience significant wage loss compared to their previous occupations.
Under the VA system VSO’s told veterans to obtain their medical evidence from VA doctors and other treating physicians not familiar with the VA system. Typically, veterans did not possess the medical/legal savvy to identify when they were asking for medical opinions from renegade doctors with hidden agendas. Some doctors have a dislike for psychiatric conditions, complaints of back pain or they were just not interested in compensation disputes. The subversion of claims began with renegade military doctors who were taking excessive steps to limit the government’s liability for disabilities that onset in the service (see attached appendix “B”).
Congress developed a system that chose to use front line defenders of veterans rights who were VSO’s that made decisions as to whether or not they should advance claims about complex systemic diseases, psychiatric conditions and were limited to getting reports from unknown doctors chosen at random. VSO’s told veterans to get a report from family doctors, out of the phone book or one who happens to be working a clinic at a VA hospital. This can be equated to obtaining a doctor by random choice. The family doctor, VA doctor could easily have hidden agendas including; not wanting to get involved in compensation disputes, not interested in psych claims. The veteran’s advocates lacked the insight and training to ask the right questions and the doctors lacked the familiarity with VA adjudication laws to write reports that addressed the issues of service connection. Then the advocates lacked the insight to figure out what was necessary to advance the claim. The advocate lost interest and the claims died. These doctors could have invented any reason not to get involved. (See attached appendix “B”). When labor law attorneys seek information to advance a claim and such information has not been provided by existing medical reports the attorneys use a doctor with whom they are familiar. Nothing is left to random choice.
The VA has the horse before the cart. The most important exams are the front line exams. If the initial medical reports are lacking the proper development, the VSO is at a loss as to how to advance the claim. The VSO’s and adjudicators start saying, “you were not treated for this condition in the military”, “according to the diagnosis the condition is not service connectable”. The front line defenders for a disabled person’s rights in industrial injuries are doctors chosen by the plaintiff’s attorney. Attorneys in industrial injuries only use doctors chosen at random from a list of specialists to resolve the disputes between the doctor that the attorney chose in the initial development of the case and a specialist who disagrees with a plaintiff’s doctor.
The unreliable verbal and written assessments by randomly chosen doctors became controlling. The amount of energy and money it takes to overcome such medical/legal buffoonery becomes overwhelming for veterans and otherwise valid claims were dropped. This type of run around can only occur in a system in which the doctors do not work in close association with the veterans disability advocate. It is an aberration to a system that considers itself to be in favor of the veteran. Unfortunately, this aberration was the result of the design of the system and many veterans suffered the consequences. See examples of unreliable verbal and written assessments in attached appendix “C”.
The Veterans Claims Assistance Act of 2000 had a goal of putting veterans on the same level as the representation and procedures used by disabled workers, Social Security, the railroads etc. The NO VETERAN LEFT BEHIND ACT does this for all time. Under the old VA system claims were denied without any medical opinion. The VA used what is called “Close out terminology”. This terminology is designed to deny the claim without tipping the veteran off as to what is needed to advance the claim “not well grounded” is an example of this terminology.
The congress was of the opinion that a “catch 22” had developed as the result of the Morton decision. Actually, the big ”catch 22” is allowing VSO’s to rely on doctors not pre-screened for their willingness to get involved in compensation claims or any other criteria that would benefit a particular type of claim.
The Veterans Claims Assistance Act of 2000 took great strides in protecting the rights of veterans. The best feature to come out of this act was the requirement that veterans be given C&P exams when the veteran develops post service symptoms of a disease. This change partially coincides with the requirements of the NO VETERAN LEFT BEHIND ACT. The Veterans Claims Assistance Act of 2000 requires an initial medical exam on new claims. However, the new law does not adequately provide avenues of escape for veterans claims affected by doctors with hidden agendas. At least one exam provided by a doctor pre-screened and chosen by the veterans advocate must be required.
The Veterans Claims Assistance Act of 2000 essentially abandoned all veterans whose claims predated the Morton decision. The Congress recognized the importance of a C&P exam prior to a denial yet allowed decades of claims without such exams prior to a denial to fall through the cracks. If the Congress can retroactively apply laws to the time of the Morton decision they can certainly retroactively apply laws to make reparations to veterans whose claims were filed prior to the Morton decision.
Veterans have been required to identify their disability on an application. Veterans, VSO’s and adjudicators have never been qualified to provide this information on the types of claims targeted by this act. The complexities of diseases that are known to have sub symptomatic features and develop slowly with multiple symptoms would take an understanding of symptoms, tests and exams that could only be developed by an MD. What has been and will continue to be needed is at least one medical exam by a doctor pre-screened and chosen by the veterans advocate at the time of the first review of the file for any reason. This exam should be thorough and search for any and all potential conditions associated with military service. Such exams have been provided for civilians with industrial injuries for decades.
The requirement that adjudicators explain the steps necessary to complete a claim should require an instruction to obtain a medical exam by a doctor pre-screened and chosen by the veterans advocate. This exam should be thorough and search for any and all potential conditions associated with military service. The more discretion an adjudicator is given in choosing the terminology and directions for establishing a claim the more likely error will occur. The door is still open for a whole new set of “close out” terms from adjudicators. Many of the problems targeted by the Veterans Claims assistance Act of 2000 will continue as long as the law does not require medical review of all of the assessments made by adjudication by an MD
who is familiar with the case history and works in close association with the veterans disability advocate.
Cases qualifying under the NO VETERAN LEFT BEHIND ACT would include conditions and symptoms actually identified in the SMR and conditions claimed by the veteran prior to one year after discharge. Any claim that did not contain at least one medical exam by a doctor pre-screened and chosen by the veterans advocate qualifies under this act. Claims lacking such an exam were not sufficiently developed to allow for a denial. A true non adversarial system would not allow for any loses to the claimant as the result of mistakes made during the processing of a claim. This is not an error on the part of the veteran’s advocates. VA law was inadequate by not requiring such exams and reports. This is a grave procedural error that laid the foundation for the denial of many claims that were actually valid. Veteran’s administration adjudicators and VSO’s were either legally restricted or lacked the insights gained by adequate medical exams to develop veteran’s claims.
Workers injured under labor law were represented by disability advocates who were paid for winning claims. These advocates working under labor law were motivated to “fish” for disabilities and avenues to compensate these disabilities. The VA only assisted veterans with claims after the veteran was successful in circumventing the barriers created by disorganized relationships between doctors and VSO’s and or renegade medical/legal advocates. There were statutes that actually allowed adjudicators to fail to “fish” for evidence. It can be argued that restricting compensation to attorneys who used all tactics they thought were applicable to win claims in the VA system and instead directing veterans to VSO’s and a non adversarial system was inherently inferior and was a violation of the veterans constitutional rights and is sufficient to assign CUE status to any claim denied due to lack of development, missing evidence or failure in the duty to assist.
The VA has established a myriad of legal technicalities that arbitrarily assign CUE status to some claims but not others. The failure to require at least one medical exam by a doctor pre-screened and selected by a veterans advocate can easily be attributed to CUE. This ACT recognizes that the failure to require at least one medical exam by a doctor pre-screened and selected by a veterans advocate at the first time the file was reviewed by the VA for any reason, results in an open claim since the time of the first review.
The NO VETERAN LEFT BEHIND ACT establishes “The Dominance of Medical Principals”. Thus, medical facts determine the date of onset of any disease and compensation will retroactively begin at the time of medical evidence establishes onset and follow the rating schedule as the medical history shows any increases or decreases in symptoms. Filing and appeal statutes will be set aside. This is justified by the fact that the non adversarial system was in fact inferior to the systems available to disabled persons applying for social security and or disabled workers seeking benefits under labor law. Additionally, claims that are initially denied as the result of failure in the duty to assist, develop the evidence, etc and are not appealed only occur when the veteran has inadequate medical/legal representation. Such wholesale failures to rapidly identify and establish valid claims were inherent in the design of the VA’s non adversarial system. The veteran should not be held responsible to overcome flaws inherent in the system in order to prevail.
The Congress was the parent of the VA and their non adversarial system and is responsible for its failures. Congress gave birth to a system that was in and of itself disabled and never matured. Congress turned their disabled baby loose and it caused unnecessary losses to many veterans. The wholesale failure in the VA’s ability to process claims for systemic diseases, psychiatric conditions and some orthopaedic injuries are serious failures that require reparation. Reparation is now necessary.
This act applies to any veteran who served at any time in the armed forces of the United States of America and files a current claim. There is no requirement that a previous claim had been filed.
A minimum standard of media exposure as to the availability of new benefits to veterans shall continue until such time it is reasonably determinable that adequate notification has been reached. News releases and coverage by the national media may be all that is necessary.
The Congress might feel that taking on such new benefits would create a hardship for the staffing levels of the VA. The Congress could easily resolve this by re-establishing the draft for the purpose of resolving veteran’s claims. Wouldn’t that be nice your kid gets a draft notice telling him he has to help veterans get their benefit’s.
APPENDIX A
VSO discrimination
A veteran was thrown out of the office in a fit of rage by the office supervisor of a large veteran’s service organization because the supervisor and the VSO assigned to the veteran’s case were of the opinion that the veteran was wasting their time with his claim. The veteran changed VSO’s. The new VSO ran into the supervisor of the other office in a hallway and told him he picked up the veterans claim. The supervisor asked him why he did that because the veteran was “crazy”. The veteran was eventually awarded 100% service connection for a systemic disease which produced chronic life threatening symptoms and secondary anxiety.
APPENDIX B
Subversion of VA benefits by military staff
An enlistee who was serving his first enlistment had gone to sick call on numerous occasions for symptoms of a chronic systemic vascular disease that had developed since he started working on a flight line. During sick call treatments the doctors had told the enlistee that they had observed symptoms of the disease. However, the treatment notes only show that he had been to sick call. NO symptoms or diagnoses of the vascular condition were in any of the sick call treatment notes. The enlistee recalled a sick call doctor telling him that the clinic had a policy of not noting these types of symptoms. There was one referral to a hospital clinic two months before the enlistee was discharged during which a specialist made the diagnosis of the vascular disease.
Some time after discharge the enlistee who is now a veteran filed for service connection. The claim was denied in 2001 because the one treatment note was not sufficient to show a chronic condition. Close out terminology was used in the denial and adjudication failed to explain to the veteran that he needed to show continuity of treatment after discharge. Years went by and the veteran was eventually able to figure out that the claim was denied on a false standard of law. The veteran showed continuity of treatment after service and was service connected.
An enlistee serving his first enlistment was unexplainably medically discharged from the service and given a diagnosis of a mild condition that produced some back pain. The condition was not chronic enough or severe enough to cause the individual to be discharge. Several years after discharge the veteran was diagnosed with a systemic disease called Ehlers-Danlos syndrome. The in service symptoms were consistent with Ehlers Danlos syndrome. The veteran was told by a doctor that Ehlers-Danlos would most likely have been aggravated by the activities of boot camp. The claim was being disputed by the VA because the diagnosis of Ehlers-Danlos was not made until several years after discharge. The diagnosis after service makes the unexplained reason surrounding the immediate discharge for a mild condition highly suspicious of fraud. The outcome of this claim is unknown.
An enlistee serving his first enlistment was seen by two different psychiatrists at the same hospital. The military psychiatrists made a diagnosis of personality disorders and the enlistee was discharged. The veteran later sought treatment for chronic anxiety that he believed started when he was almost killed in an aggravated assault that occurred while sleeping in a barracks. After the attack the enlistee was required to sleep in the same barracks with the individuals who made threats of continuing night time attacks. Three different VA psychologists reviewed the reports in the SMR and found that the military doctors made diagnoses that were based on insufficient screening. Additionally, the symptoms noted by military doctors in the SMR actually supported different diagnoses. The veteran was eventually service connected for a chronic anxiety disorder.
APPENDIX C
Unreliable verbal and written assessments from doctors and other medical staff
After the implementation of the Veterans Claims Assistance Act of 2000 a veteran seeking a nexus letter was told by a VA primary care doctor that the diagnosis made 30 years ago while in the military was made in error and that he actually had another disease that was not service connectable. The new diagnosis was for a virus that could not be substantiated by any means at the time the VA primary care doctor made his new diagnosis. The new diagnosis had no objective basis and was based purely on speculation and theory. The doctor refused to get further involved. The veteran immediately notified the RO who made no response to his complaint. It took the veteran another two years to get medical documentation that led to service connected. Service connection was awarded on evidence procured by the veteran. The RO refused to schedule a C&P exam or provide any other assistance
A veteran was seeking a clarification of diagnosis. The veteran had been given two diagnoses for the same symptoms. The veteran had been denied service connection because the VA claimed he was not treated in the military for the disease he had post service. A disease he had in service caused the same symptoms as a disease he had post service. The veteran asked a VA doctor if he would write a note as to whether or not the diagnosis of symptoms made in service were for the same disease he had post service. The VA doctor refused to get involved saying that the question the veteran asked was a semantic question, not a medical question. The veteran complained to the Head of the department. The head of the department listened to the veteran’s questions in a hallway and told the veteran that it sounded like the disease began in service. However, the doctor stated that he did not write letters for veterans who walked into the clinic. He would write a letter if the RO referred him for an exam. The RO had refused to schedule a C&P exam for five years to assist the veteran with his claim. Eventually, Congress passed the veterans claims assistance act of 2000. Years later the veteran took a nexus letter form to a VA hospital. The nexus report was written by a department head who thought that the resolution of a diagnosis was a medical issue. His report resolved the clarification of diagnosis. The veteran was able to get service connected in view of the fact that the RO failed to schedule a C&P exam as requested by the veteran prior to the denial of the claim.
A veteran told a VA hospital records clerk in 1996 that he needed his records for a claim he filed with the VA for disability. The records clerk told the veteran that fifteen years worth of treatment records were destroyed in the 1994 Northridge earthquake. This statement by the records clerk would have been a verbal roadblock that caused the termination of the claim. The records clerk made no offer to put such a significant problem in writing. The veteran was trained by an attorney to get everything in writing. The veteran was savvy enough to have the records clerk give him a written note to the effect that the records were destroyed in the earthquake. The written letter did nothing to benefit the veteran. The veteran asked for the letter because he thought the VA employee was incompetent.
The veteran submitted the letter to the VA and it became part of the file. Later the Veteran discovered that the records clerk had lied to him. Initially, the veteran abandoned his claim because these were the only post service records he had. Five years later the veteran casually mentioned to another records clerk that his records were destroyed in the 1994 earthquake. The new records clerk took offence to the veterans comment and responded that the VA spent a large amount of money to freeze dry and save those records. The new records clerk was of the opinion that only minor damage would have occurred to small portion of a page. When the veteran told the new records clerk that he had a written statement that his records were destroyed in the earthquake, the new records clerk told the veteran that somebody lied to him. The new records clerk found the file and the records were submitted five years later. The veteran was eventually service connected.
After running into a deceitful records clerk the problem was further prolonged by the veterans VSO and adjudication. It is hard to imagine that neither adjudication nor the VSO who worked in the closest office to the hospital in Sepulveda CA, were unaware of the Veterans Administrations efforts to save the records after the 1994 Northridge earthquake. However, the VSO said nothing and did nothing to assist the veteran in finding the lost records. The claim was denied by the RO in view of the lack of post service continuity of treatment. The SOC even cited the records clerks note as to the destruction of the records in the 1994 earthquake. Had it not been for an honest records clerk who told the veteran about the freeze drying and saving of the damaged records, who knows where the claim would be today.
These verbal denials resulted in the loss of benefits and delays in the award of claims. None of which would have occurred had the veteran been given access to medical staff who had been pre-screened by a competent veterans advocate.
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I have been hashing and rehashing this for over a week. This is the best I can do at this time. It is formatted as legislative changes that need to be addressed by congress. It is my amateur attempt
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