Benefits

Question:

I did 3 years in the Army. First duty station was overseas in Korea and then I went to 101st Div. Midway. Through my first tour I started having issues with my right knee and went to sick call. I explained to the Dr. what was going on and he pretty much told me that were wasn't anything he could do since I was overseas. I believe he said it was runner's knee or something to do with patella syndrome.

I have heard from several different people while trying to find out if the issue could be a service connected disability. I am the process of going through having x-rays done and will soon be getting a MRI on my right knee to see exactly what is going on. There is a discussion on trying a gel shot or partial knee replacement surgery. I had issues with this knee in 2007 and took cortisone shots pain pills to deal with it. I also deal with hip bursitis on my left hip.

I read one of your letters to someone and you stated that militarily service didn't cause you to get service connected disability benefits for knee issues. The man was in his 60's and I believe you mentioned it was just old age. I also read that people who don't serve generally get osteoarthritis (OA) in their 60's and those who do serve usually get OA in there 30s, 40s, and 50's; that's a ten year difference. Plus, everyone is different is this situation.

Given all this, could I qualify for disability even though I am being treated for osteoarthritis at the age of 49? Again thank you for your service, and hopefully you can give me some advice on this issue.

Jim's Reply:

That you were Airborne indicates to raters that your joints have taken a beating and if you can provide evidence of continuity of an injury, you're likely to be awarded benefits. Be prepared to show how many jumps, etc.

Establishing a service connection so that you may be eligible for VA disability benefits can be tricky. We'll take that knee of yours as an example. You didn't tell me when you served but you indicate some issues in 2007 so I'll use 2005 as an exit date for you.

If you reported to sick call one time in 2004 with knee pain but had no treatment and no follow-up, that was an acute and transitory event and may or may not be of some help in claiming benefits. You'll need to prove that happened in your medical records. If there is no record of that encounter, you have a problem.

Once you have shown that there was an in-service event you need to establish a continuing pattern of disability. In other words, from that day until now you should have visited doctors and so on because the knee increasingly bothers you.

If you claim that you saw a doctor in Korea in 2004, saw someone in 2007 but don't have much in the way of records since, VA is going to consider whether the aging process is happening rather than an old service injury.

Everyone develops diseases of aging if they're lucky enough. Arthritis, heart disease, obstructive sleep apnea, diabetes...all are conditions that happen with increasing frequency as we age. These conditions happen to civilians and soldiers alike so attributing a 'wear and tear' condition to long ago military service is often wishful thinking.

A pattern of regular treatment from the in-service event onward is the only sure way to prove the connection. Everything else is conjecture and must be proven.

Question:

What is the story with the independent-contractor C&P exams. Are they more favorable to the veterans than the VA supplied C&P exams?

Jim's Reply:

A timely and important question...thanks!

In recent social media where veterans get together there's a lot of chatter about who is the more favorable contractor during a C & P exam...or is the VA employee doctor a better bet? Now that VA has decided to outsource all C & P exams to contract groups like QTC and VES, the discussions have become ever more interesting. Some vets are even trying to manipulate who they may be assigned as their examiner...way over the top.

I'm a bit (!) of a cynic so I'm not buying the official reasons that VA is offering for this sudden shift. VA would like you to believe that after considerable thought and analysis of all the available data that they're transitioning to an all contractor exam system to streamline the process and improve outcomes for the veteran. I believe that the truth is that VA is so very desperate for professional health provider (and other) employees that they simply can't afford to both care for the patients they have and also do the needed C & P exams.

The VHA is always short of employees.

The harsh fact is that there isn't a line of highly skilled, top of the class medical professionals knocking down the doors to work at your VA health care facility. Physicians, physician assistants, and advance care nurses don't want to face the unfathomable, rigid bureaucracy that is the VA. There is a recurring myth that highly skilled professionals want to be able to make sacrifices to care for America's heroes and that simply isn't true. Many professionals avoid employment at VHA unless they are interested in medical research (VA is the largest medical research organization in America) or unless they may have a ding or two on their resume/CV and they're having trouble finding work elsewhere.

VHA has a reputation of hiring anyone, troubled record or not. https://www.gao.gov/assets/700/697173.pdf

Most contract C & P examiners are doing it as a side gig to earn extra money...there aren't many VA contract C & P examiners who pursued that as a career choice. Who are the C & P examiners you're likely to meet? Many are highly skilled professionals who are picking up extra income...the job pays well as a part time gig. In fact, this function of outsourcing unnecessary C & P exams pays so well it will cost the VA a lot more than keeping the job in-house. Most contract examiners are physicians and you'll find a number of RNPs and PAs and other varieties of 'physician extenders' there too. The person who examines you may or may not be particularly well qualified or certified to conduct your exam.

There is no doctor-provider/patient relationship established so you won't be treated or prescribed medicines. The C & P examiner will follow an order from a regional office to examine a specific body part or record review and that's it, the examiner won't add to the exam in any way.

Although I hear all the rumors, I've never seen any evidence that any given resource will grant a more favorable C & P exam to any veteran. It's a real crap shoot and you may draw the examiner who is very professional and crosses t's and dots i's or you may confront the person who wants to be somewhere else having a couple of cold ones and who will have you in and out in 5 minutes. 

Knowing all that, you still have to go to the exam and stoically endure whatever you may find. If you miss an exam, VA will default to denial and you return to start.

I always advise that you never miss an exam for any reason...don't reschedule or skip it, just go and get it done. If you're sure it's not necessary and you'll have to reschedule your wedding, go anyhow. Be prepared...bring copies of documents you think may be important and be prepared to leave those with the examiner...or not. The examiner is not obligated to accept any evidence from you so don't be offended if they decline. You can make notes to yourself so that you don't forget anything you want to say.

The examiner isn't obligated to allow you to have a visitor with you so you may ask but if denied, don't get all hurt. Don't attempt any clandestine video or audio recordings...there's just no point to all of that no matter what you may have heard. Be courteous. Don't even think of faking a symptom. When you walk in the door your credibility is at 100% and only you can detract from that.

When you walk away from the exam, stop thinking about it right then. If you think about it, you'll want to correct all the errors that happened both by you and the examiner and you'll become anxious trying to get copies and none of this flurry of angst will help. The proper step to take after the exam is to wait for a decision. If the decision is favorable, you're done. If not, you appeal. Whatever you do, you don't try to fix the C & P that you know went wrong...you follow the process.

The C & P exam is a ritual that is unnecessary in the great majority of claims as there is already plenty of Acceptable Clinical Evidence in the record to make a claims decision but the C & P is so entrenched in the process that everyone will get at least one C & P whether needed or not. Many of these C & P exams will be so poorly done that the 'inadequate exam' is a primary reason for a lengthy appeal. For example, an otherwise well credentialed (in neurology) RNP may be tasked to do an exam that is rooted in a complex orthopedic injury and that examiner isn't likely to catch all the details a more focused orthopedic or disability medicine specialist would.

All this adds up to the reason that I've been urging veterans to have an Independent Medical Opinion (IMO) done by an experienced physician or psychologist as they file their claim. The veteran pays for the IMO out of pocket and in exchange will receive a thoughtful and detailed medical opinion in support of your claim...if the practitioner is able to do that and support the conclusions with science. In other words, if there is no service connection or secondary cause nexus, the IMO doctor can't create one for you.

The favorable IMO written by a board certified practitioner who is familiar with the VA ratings system will almost always outrank any opinion from a VA contract or employee C & P examiner and will help to avoid the lengthy appeals process. 

You may learn more about an IMO here https://www.vawatchdog.org/imo-ime-medical-opinions-exams.html 

Question:

Hi Jim, I have a friend who was diagnosed with Acute Myeloid Leukemia today. This makes his fourth cancer diagnosis, including bladder, prostate, and urethra over the past 4 years. He is not well and is on borrowed time. He was a Vietnam Vet and exposed to Agent Orange as a forward observer. Is there anything that he should do to support a claim before he succumbs to the cancer? He has never filed a claim. I want to make sure his wife is taken care of if he is entitled to a claim. Thank you.

Jim's Reply:

He must file a claim. There is no other option. The system won't self start, the veteran must initiate a claim or nothing can or will happen. If the claim isn't filed and he dies, his widow is likely to get little or nothing. If he files the claim today and dies tomorrow, the widow is left in much better shape with lifetime benefits.

Filing a claim isn't as complex as most think it is. I'll assume you'll be helping him.

In a nutshell...

File this simple form right now today...it requires very little  https://www.va.gov/find-forms/about-form-21-0966/  I prefer to download the form and print it out to complete.

Then soon after go here https://www.va.gov/disability/how-to-file-claim/ You'll find that much of this is boilerplate and you can toss that out.

He will be filing for all the diseases you mention. You don't have to elaborate or get fancy, just name them off like you did for me. If you fill it out, be sure he signs it.

Using certified mail send the completed forms here

​V A Claims Intake Center
PO BOX 4444
JANESVILLE, WI 53547- 4444

Soon after the completed claim form is received it will be processed and a claim will be opened for adjudication. He will get a letter saying that. Should he pass while all this is happening his widow will be able to take over the claim on his behalf. 

If the claim isn't filed prior to his death, she could still file a claim but it would be a much steeper hill to climb. 

Filing the claim...while he is still competent and alive...now insures she will have certain benefits after his passing.

Thank you for helping your friend. If you need more info don't hesitate to ask.

Question:

I am combined 70% Agent Orange Vet (60% ischemic; 20% diabetes). I am applying for prostate cancer disability compensation. Is it sufficient to send a copy of biopsy results from my Patient Report that indicates my Gleason 8 / Grade 4 prostate cancer? I am looking to provide evidence to secure the initial 100% temporary rating for prostate cancer on a quick file application

Jim's Reply:

If the diagnosis of prostate cancer has been made at VA all you need to do is to file the claim. VA will have instant access to your health records at your VA health care facility.

If your diagnosis of prostate cancer was made at a civilian facility you should provide as much of that record as you're able to, including the lab reports you mention. 

I advise that we don't skimp on documentation that VA may need thinking to save time. In theory it would seem that all you'd need was the lab report confirming a diagnosis but...this is VA so give them more than they need.

For what it's worth I'm seeing claims like yours resolved within 2 to 4 weeks after submitting the papers to initiate the claim. C & P exams were deferred or over the phone and award letters came soon after. Good luck!

Question:

I have been at 100% P & T for 10 years now due to an Agent Orange presumption CLL diagnosis. A few months back I had a cancerous bladder removed along with my prostate. After biopsies, they found that my prostate was also cancerous. Curious if I should bother with filing this with the VA, or should I leave well enough alone? Thank You.

Jim's Reply:

Yes, you should file a claim for all of that...first the prostate and then as a secondary condition to prostate cancer, file for bladder cancer. Your rating should increase into the Special Monthly Compensation (SMC) range although I won't try to predict how much. 

In the end you'll have what amounts to two 100% ratings and that will increase your monthly payment by about 1/4 to 1/2 over what you're netting today. Good luck sir.