How to manage your VA claim for disability compensation
I’ll start by explaining what I did and why it was wrong. Another case of do what I say, not what I did. It is important to not repeat the following because it will cause a lengthy appeal process – and there is nothing worse than a 10-year appeal process. It’s like waiting for your IRS tax refund, except its more money and, like Rip Van Winkle, I look a whole lot older.
Don’t be dumb. I hand wrote my initial application for compensation without reviewing my Service Medical Records (SMR). My claim led with the statement: “see supporting medical documentation in my file.” This was dumb. Imagine someone sending you a hand written, 300-page manuscript (doctor’s scribbles plus my own) and allowed you 4 hours to read it. Then they ask you a ton of questions that are legally binding. That is what I asked the VA to do 10 years ago. In reality, the VA adjudication process is very complex and time consuming for the veteran and the VA. Do not expect the VA to connect the dots. This is your job if you choose to take it, or you’ll be older and fatter still fighting the good fight, like me.
Start with your Service Medical Records
Get started. For veterans with copies of their SMRs, get moving. Any condition diagnosed within one year of separation could be considered service connected, even if it was undiagnosed in service. For those without the records, request a copy of your SMR’s from your local regional office. Mail in a Freedom of Information Act (FOIA) request. Click here to find a sample FOIA letter. Once you have the chance to review the documents, you can begin your own research.
Research every condition and injury you have within your medical records (about the possible presumptive conditions that show up within one year – bring these up too). To do this, identify the key terms and find them in 38 CFR Part 4: Schedule of Ratings. For example, let’s say you have Sinusitis. Within your records, you can document 5 different occasions that you went to the doctor for the condition (like allergies, congestion, etc). Go to the CFR and find Sinusitis. A quick way to do this is to click [Control + F] and type in Sinusitis. This should lead you right to the rating criteria. Notice for the condition, the requirements “either or” tendency. Here, you either have periods of incapacitation or you have “non-incapacitating” episodes. Decide where you currently fall into the rating schedule. Then, you can Google the condition on either regular Google or Google Scholar. Read about what Sinusitis actually is and what causes it. Get educated on each and every condition you are claiming this same way.
Write up a summary of all the conditions and include dates of treatment while in service and after. You do not need to seek medical attention for every issue in order to document it. For example, incapacitating episodes are considered episodes that required a doctor’s visit. Non-incapacitating episodes are not. A person can self-medicate certain conditions. But always remember, the condition needs to be current in order to count. If it stopped hurting last year, then you will likely not get a rating for it.
Now Enters VA Documentation
Before the meeting, be sure to have all your ducks in a row. I generally bring all documentation relevant to the specific injury or injuries with me along with a summary sheet. Avoid dropping your whole file on the person’s lap with the expectation that they will sort through it for you. Try to keep the summary sheet as short as possible – One to five pages, depending on the number of issues. Your documentation will be in addition to this (doctors’ opinions – civilian, VA, military). Always try to keep things as short as possible. Include a table of contents of your injuries. Here is a copy of an actual claim letter for sinusitis, allergic rhinitis and sleep apnea. It’s mine, so be gentle.
Disability Claim Evidence
On evidence. One thing your evidence should have is a Nexus letter (hopefully from a doctor) explaining how the evidence in your file is relevant to the condition you have now. This can be tricky for new conditions secondary to service-connected conditions. See Jim Strickland’s advice on the subject. Never bring your originals anywhere. Take copies of your files with you in a folder to your VSO meeting.
One misunderstanding of many is that lay evidence counts very little because it is not “objective.” (lay evidence is a statement from the veteran or buddy letter that supports a claim). Not true according to Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). That court held:
“In a veteran’s claim for benefits, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, [such as a broken leg, but not a form cancer], (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.”
This means the lay person cannot “render medical opinions, including etiology opionions,” but can provide testimony that is an eyewitness account of medical symptoms. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). According toJandreau, “Contrary to the Veterans’ Court, the relevance of lay evidence is not limited to the third situation, but extends to the first two as well.” To that point, the VA had been guilty of largely disregarding personal statements because they were not “objective.” They were wrong and the Federal Circuit had the last say, binding future VA decisions. On that note, I would question anyone claiming VA Compensation adjudicators are “objective,” too, given that the government takes an unjustified position in 70 percent of veterans denials. This means VA adjudicators are not following the law.
How to Select your Veteran Service Officer
About the meeting. Be careful to never overwhelm your audience. The summary will keep your conversation focused. Also remember to be as friendly as possible. Many VSO’s make less that $35,000 per year and should be respected for their sacrifices to help us get the benefits we were promised.
VSO Selection. Not all VSO’s are created equal. Keep an open mind and shop around for the one you feel the most confident with handling your case. Some have less training or experience than others. Others have too many cases to directly manage effectively. The advantage for you will be the fact that you have your case already together. Talk to the VSO about how to further document your claim prior to filing it. If the VSO feels confident that you’re ready to go, go for it. One thing to consider, a bad VSO can squash your ability to appeal successfully by failing to notice shortfalls in your documentation before an appeal.
The application step does not require a VSO. You can fill out the VA claim online: VONAPP. The non-computer savvy veteran can download the Form 21-526 and fill it out manually or request that the VA mail one to you by calling 800-827-1000. This begins the process.
If doing this on your own, remember that there are many ways to skin a cat. You can be very general about the condition(s) or very specific. I have had success with both. Do not attempt to diagnose the condition yourself. For the sinus condition, you could merely state “sinus condition” or “problem breathing”. Or, you can be specific and state “sinusitis” if it is in your file. However, do not get cute and diagnose something that is not stated in your SMRs. List the symptoms, not the diagnosis (back pain with numbness down the legs, for example). Now, if you believe you have something like sciatica, then listing that after the symptoms may be fine. Again, this depends on your specific situation and comfort level.
For example, click here on the blue text to see what the Department of Veterans Affairs provides about this process. It’s a little vague and explains why so many websites are espousing advice. An informed decision is always the best decision.
Disability Claims and Breathing Problems
Here’s a continuance of my own little story for service connection for the following: Sleep Apnea secondary to Sinusitis and Allergic Rhinitis. I was denied for these conditions right after my separation from service, in 2001.
A little background. I had a sleep study in service conducted by the Fargo VA. The VA had the records of a sleep study and was notified as such. Yet, during my evaluation, the VA did not request its own files and subsequently denied my condition. I had brief apneas but did not require a machine = 30 percent. They also denied service connection for the other conditions despite at least 12 instances within my service records requiring treatment. The sinusitis was later confirmed in 2009 via an MRI as were the polyps from allergic rhinitis. The next year I was given a CPAP machine.
Rubber, meet Road. In 2010, I put the whole claim together with a little documentation help from law school and “The Little Book on Legal Writing.” To see what I mean, here are the first couple pages of my claim. I called the Fargo VA for the actual sleep study from 1998. While on the phone, the FOIA guy at the VA faxed the records to me (that was the morning of my recent VA examination – don’t wait to the last second like I did). The records verified my apneas. I was also able to find Congressional Reports about the conditions of the dormitories we lived in while at tech school – there were issues of asbestos and leaking sewage along with outdated HVAC systems blowing particles around. I immediately came down with sinusitis and pneumonia after arrival. I included this documentation in case I come down with certain cancers down the road.
Armed with the report, my medical records and a typed summary, I went to the exam. The first appointment was with an Ear Nose and Throat doctor. He said the VA already conceded service connection but he needed to find out how many episodes I have every year. I handed him my documentation. While he did not read over the documentation in full, he most likely referred to it after the meeting while filling out his exam notes. This is key, especially if the examiner did not take good notes while in the meeting or forgot some key point that you mention. The summary you hand him may be the difference between a 10 or 30 percent.
My second evaluation was for sleep apnea. I showed the doctor my current diagnosis along with the former diagnosis while I was in service. She took the time to read over my summary, which explained how the VA missed my earlier diagnosis. Since I had the old sleep study exam with me, she was able to clearly tell that I had sleep apnea while in service. Because of the way my documentation was set out, she told me on the spot that she was going to tell the VA I had sleep apnea in 1998. This could result in a decision for retroactive pay if I can prove VA committed a Clear and Unmistakable Error during their 2001 denial.
Release of Information: VA Claims Investigation
For you. After you file your claim, VA will send a letter verifying receipt of your claim and notifying you of the information they need. This will include release forms they will need you to fill out in order to request files from civilian doctors you have seen. Be sure to read everything very carefully. Sometimes the dates can be wrong or VA might be asking for the wrong information. In addition, you may have better luck getting documents from doctors than will the VA. When you forward medical release letters to civilian medical providers for their records, be sure to follow up with a phone call to ensure they understand what you are requesting, especially for psychologists. Leave nothing to chance and never expect the VA will figure out how to contact these people for you.
At the examination for conditions like PTSD, VA has examination criteria online. Google whatever condition to read about the experience of other veterans after their exams. This can help a lot. First, it will help you frame your condition in terms that the VA examiner will use in their analysis of your condition.
In addition, write a one or two page summary about your condition. Click here to view my own example. Use bullet points with brief explanations of each and every treatment for that particular condition. Be careful to not overwhelm your examiner. Ask if the examiner has viewed your C-File before the exam. If not, you may have a claim for a review if the examiner gives you an adverse finding. If the C-File is not present for the exam, be sure to note the fact. A lack of C-File can bias your exam and be cause for a new one if you do not get the results you think you deserve.
Lastly, be patient. The whole process can take up to one year or longer.
VA Denials and Lowball Ratings
Here’s a recap of where we’re at with this process. I’ve written about the disability claim process up through the VA appointment with an evaluator and supplying evidence to the VA about your claim. Now, we will go through what to do when you get your adjudicated claim back with an approval or denial. You will generally have one of three outcomes: 1) full grant of your claim; 2) a partial grant: for example, they gave you TBI but at 10 percent instead of 40 percent; 3) full denial – do not pass go, do not collect $200. With the paperwork the VA sends you, you’ll never know which of the three you are unless you received 100 percent rating.
Be in the know. Request a copy of your file from the VA first. This is the only way to know everything the VA examiners found and how the VA then adjudicated your claim based on that information. Click here for a copy of the Freedom of Information Act (FOIA) letter you can send for a copy of your file.
In my own case, I had filed a claim for Traumatic Brain Injury (TBI). I had a head injury while in service and received a Psychoeducational Evaluation in college. The evaluator believed my head injury caused some degree of memory loss. When the VA performed their own evaluation, the Neurologist gave me a hard time because I like to drink beer, wine and whiskey in typical Portland-style quantities. A psych evaluator reaffirmed the memory loss during another test. An MRI found brain scarring. Good to go, right?
Wrong. I received a letter back from the VA confirming my condition, kind of. The TBI was rated at 10 percent because the memory loss was related to the fact that I enjoy my drink, according to the neurologist. Note: the neurologist did not have a copy of my C-File for the exam. The brain scarring was claimed to be likely from Multiple Sclerosis and not a head injury. I do not have MS. “What the F?!” I thought. That’s the difference between a 10 percent and 40 percent rating, or $523 per month (Vet + Child). That little bob and weave allowed the VA to keep $6,200 of my money every year, if I gave up.
Anyone can Win Against the VA
Beat the machine. I requested a copy of my file to read through the full analysis. Coincidently, I had an appointment with the Speech Pathology person at the Portland VA. He reviewed my MRI and the evaluation from the neurologist. “That’s BS…” he told me. There is no way drinking can cause the memory loss that I have unless I was drunk and still drinking at the evaluation. I wasn’t. In addition, the MRI brain scarring claimed as Multiple Sclerosis was completely off base. One little VA trick was that the radiologist probably did not have a copy of my claim (C-file) but was just given the MRI and some notes to review.
I then received new evaluations from the VA on the Healthcare side that rebutted the claims from the Benefits side. I did not drink for one month before the evaluation, to rule out the booze effect. The MRI was reviewed and rebutted by another radiologist in light of my actual C-File. The radiologist stated my head injury was the likely cause of the scarring, not MS. My note to readers: the Health side of the VA can be very helpful in fighting against the dark side of the VA. It’s very “Star Wars” over there.
Abracadabra. Once all the information was assembled, I walked over to my friendly Veterans Service Officer (VSO) at the VFW and filed a Notice of Disagreement. I personally elected for DRO review. The VSO told me it was the best appeal he had ever seen from a veteran. The claim went from 10 to 40 percent. And out of the top hat popped $6,200 per year plus a lump sum for retroactive pay. I didn’t give up and I didn’t die in the process. Hooray for me and hooray for my daughter.
To look at how I document my claims, check out my Sinusitis claim. You’ve now walked through the process of filing for your disability claim and appeal with me, soup to nuts.
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