diabetes Jim Strickland Says The Va Is Not Over With You

[Guest rickb54]

Taken from vawatchdog.com

A lot of chatter in my email recently revolves around Individual Unemployability (IU), the right of VA to reexamine you or reclassify your rating and 20 year protections. It’s all complex and it all ties together.

An award of a 100% Permanent & Total rating due to Individual Unemployability because of your disability is granted to a Veteran because although his combined disabilities don’t total 100%, they are considered severe enough to prevent the Veteran from seeking and holding gainful employment. The VA has been criticized in the past and again recently for not strictly following or enforcing the rules that govern IU.

The rules aren’t terribly difficult to understand. Prior to granting IU, VA should ensure that you’re really unemployable and likely to stay that way. Then VA is chartered to check up on you occasionally to make sure your status hasn’t changed. In other words, VA should have at least tried a rehabilitative plan or training for you to see what you may be capable of and after granting IU, VA should have sent you a questionnaire or made a phone call to you to ask if you were employed. All too often VA did neither so they’re getting spanked by GAO. If you aren’t familiar with GAO, it’s the government agency that checks up on the other government agencies. They rarely have any good news for VA. Read up on the GAO report by clicking here;

http://vawatchdog.org/old%20newsflashes%20...0-24-2006-6.htm

Let’s keep it honest here. If a Veteran gets IU, he is attesting that he can’t work. No income, zip, zero, nada earnings. So, let’s have a show of hands to see how many of you know someone who has 100% disability and gets up and goes to work just like it were the thing to do. I thought so…many of us know a 100% Vet who works for pay. I once knew a National Service Officer who walked with a cane and moved pretty slow as he went to his office each day and earned a very good paycheck…while also drawing his 100% IU. I asked him about it and he told me that nobody really cared and it was quasi-legal. Wrong.

GAO cares and since they care VA cares. If you’re 100% and you’re working, you need to get straight with your VA today. If you’re smiling at me because your money comes under the table, no taxes, no way for them to find out, wrong again. Now you have three federal agencies mad at you and I wouldn’t want to be you when you get caught. And you will get caught.

So here you are, 100% IU and you haven’t worked and it’s been 8 years since you even heard from VA for anything but the monthly deposit and all is fine until you open your mail and there’s a letter that VA wants to examine you and maybe chop your bennies in half. “They can’t do that!” you cry, “My award said Permanent & Total and I’m not scheduled for a future examination so they can’t do this to me.”

Of course they can. Your award said that you weren’t scheduled for any future exam, not that they crossed their hearts and promised to never give you an exam. VA has a duty to keep track of you to see if you’ve improved. Did you have corrective surgery and physical therapy that fixed that leg wound? Has your PTSD improved now that you’re married and have a nice family? Have you made productive use of your time not working and returned to school and received an advanced degree that will qualify you for employment?

When VA says “Permanent and Total” they are telling you that they believe that it is not likely that you will ever be gainfully employed again. They aren’t telling you that it’s an utter impossibility that you may be rehabilitated, only that it’s not very likely.

VA not only has a right to reexamine you, they have the responsibility to do so. Today the VA is under the gun because they have failed in their duty to ensure that only Veterans who deserve 100% IU are getting it. If you’re a Veteran who receives 100% IU and you are earning a paycheck, you’re part of their problem.

If you’re 100% IU and you’ve been classified that way for 20 plus years, is that rating protected forever? Yes. No. Maybe. OK, no. Let’s go with no. That’s safest.

Your rating is generally protected after 20 years unless fraud has been committed or you’ve reentered military service. Usually that’s interpreted to mean that at the start of the rating process you fraudulently presented evidence that supported your application for IU (or other ratings) and the evidence you gave was falsified or in some other way not true and factual. That would be clearly fraudulent and would void any rating protection you might otherwise have.

What else might be fraud? It’s my read of the regulation and my opinion that fraud can be seen by VA later in the game…as in you have claimed IU but you have worked and earned an income and paid taxes. I believe that in that circumstance VA may assert that your rating is not protected and they can reevaluate at any time and lower or even eliminate your rating.

In some instances, VA assigns a rating and then schedules the Veteran for a reexamination assuming with passage of time, the Veteran is likely to improve. In the case of Dofflemeyer (Veteran) v. Derwinski (Secretary of Veterans Affairs) VA had granted Dofflemeyer 100% total but non-permanent and scheduled him for exam 2 years later. At the time of the original award it seemed likely (in VA’s opinion) that Mr. Dofflemeyer’s schizophrenia would improve and that reevaluation at two years was reasonable and prudent. Then VA forgot about him for the next 19 years. They didn’t contact him for that scheduled exam, he didn’t bother them about it assuming it was their duty to contact him.

Mr. Dofflemeyer eventually received notice that his 100% award was being reviewed and then soon after, upon an expedited repeat C & P exam, his 100% benefit was reduced to 10%. This reduction occurred at 19 years, 11 months and 10 days after his original award, or 20 days shy of the 20 year protection rule kicking in to protect him. The story has a happy ending of sorts. After appeals and BVA actions and remands and finally the Court’s involvement, Mr. Dofflemeyer was found to be 100% Permanently & Totally disabled due to his combat fatigue and continuing schizophrenia and he was granted all due benefits and retroactive pay.

You’ve learned that GAO has given VA their marching orders to tighten up and batten down those leaky hatches and that VA not only may reexamine you but they’re even more likely to in the future and that the 20 year rule exists but only if you’re playing strictly by the rules. What does all this mean for you, the average honest guy trying to get by on or obtain your disability benefits?

It means that a 100% disability rating will be harder to receive. VA is only criticized by GAO for giving away too much. There is no harsh language extant where anybody chastises VA for denying awards…except for the Veterans that VA serves, of course, but in the grand scheme of things, our angry voices don’t count.

For example: I’m communicating today with an RVN Veteran in California who was diagnosed with stage 4 non-small cell (Oat Cell) lung cancer. He also has diabetes. VA accepted his application for an award of 100% disabled and immediately granted that his lung cancer and diabetes fit the established presumptive diseases list and his conditions are likely associated with his exposure to Agent Orange during his service in Vietnam.

To my knowledge, there is no case recorded of a cure of stage 4 non-small cell lung cancer. This Vet has had nearly 20 rounds of chemotherapy and a couple of encounters with skin-blistering radiation treatments. He lives on inhalers and morphine and a wheelbarrow full of other medications in his attempt to survive a while longer. His dedicated wife works a challenging full time job while she cares for him and tries to manage their meager finances.

VA initially granted him a service connected disability for lung cancer and rated his functional disability at 0%. That’s not a typo; zero percent. Nada, zip, nothing. The VA made this decision based on the fact that his cancerous lung tumors were “stable”. It seems that although he was not in remission (there is no remission with this type of cancer) his tumors had not grown and killed him quickly enough to satisfy VA standards, therefore he deserved no monetary assistance.

Upon reconsideration, VA has now granted him 100% for his lung cancer and 20% for his diabetes, totaling 100%. (I love VA math.) However, he has not been rated as “Permanent and Total” and he has been scheduled for a reexamination in 6 months. It’s made very clear by the VA that in 6 months time VA anticipates that he will have miraculously recovered from what every physician treating him states in writing is an incurable and fatal disease, to a point where he can be denied a 100% rating. Then, in the opinion of the VA, he will return to the work force becoming a productive citizen and a success story for VA.

Statistically speaking, he’ll be dead in 6 months. That he has survived this long is one of the little miracles of modern health care. If he is not granted Permanent and Total status on appeal while he‘s still alive, his widow and his children will be denied the benefits they would have received if he were 100% Permanent and Total. VA just saved a few bucks. The VA’s motto, “…to care for him who shall have borne the battle and for his widow, and his orphan” now rings hollow doesn’t it? You have to wonder what old Abe would say if he could review this case with me.

The above example is true, these are real people. As these folks discovered, applying for a 100% rating will become more of a challenge now than in the past. There will be more examinations to ensure that you are in fact disabled and VA will push hard to return you to the work force, even in the light of an impossible circumstance.

I also predict more instances of VA attempting to interrupt 20 year or any other protections of existing ratings as they work to satisfy the bean counters at GAO.

What should you do to protect yourself? Use common sense. Be prepared to be examined at any time. Ensure that your medical records are up to date and that you have quick and easy access to them. Maintain an ongoing good relationship with a County Veterans Service Officer. Attend all scheduled health care appointments. If you have PTSD and a rating for that, you need to show constant and ongoing treatment. If you’re 100% IU and you’re working, you need to seek advice from a County Veterans Service Officer as soon as possible.

If you got your rating years ago after a long battle with VA and you thought you could rest, think again. Your dealings with VA aren’t over until they send you that little brass plaque they hand out at the very end of your service.

You know they only do that so they can show you who has the last word…VA always wins in the end.

[Pete53]

Who is Jim Strickland?

[Guest fla_viking]

Dear Fellow veterans & friends

My lawyer said IU is actully a more protective status than 100%. In IU cases the VA has to show there is an actull real world improvement such as a work history and not that the vet on disablity is functon better. My self i dont know any one getting 100% and works. I think that is rare.

Terry Higgins

[vaf]

Jim Strickland is a columnist at www.vawatch.org. He is a disabled veteran with a healthcare background, and quite a guy.

I enjoy his columns immensely.

My husband is 100% schedular, P & T, and he's working, although he's significantly underemployed from what his career once was, air traffic control, and he works four days instead of five.

We continue to file for conditions that we believe are secondary to those already rated service-connected, for increases in conditions already granted service connection, and for earlier effective dates. We assume that the VA will try to reduce his rating, which is why we continue to file instead of leaving things as is.

[john999]

I am IU. Every year I get a letter from VA asking me if I am working. I say "NO" and that I have not worked in five years. If you are getting IU and you are working and paying SSA you are a fool. It is just asking for trouble. I doubt that many are doing it since most have to be pretty disabled to get IU in the first place.

[Mike Soumis]

my thoughts are I'm now getting IU, I'm going to not put in for anymore claims, hopefully it will give the VA more time to work on other vets claims so that they can get a check sooner.

[Guest rickb54]

Mike,

How noble of you. I think more like Vicki thought. I believe the more I can service connect the less I have to worry about later. When I got TDIU in 1999, I was 70%, since then I have been increased to 90% but of course this took alot of different claims. My point is the more claims I submit and win , the less likely it is that they will screw with me later. And at the same time who knows i might be rated 100% schedular in the process. I agree that TDIU is hard to get, but the va can screw with us anytime so you have to do your part to hang on to what you have.