Aristotle
I get a lot of mail.
I do the great majority of my work by email only. I found that I enjoy talking to my brothers and sisters way too much and what would take 2 or 3 minutes to answer in an email may run into a 2 hour conversation on the phone.
I'll use this page to post a few of my favorites, updating as I have time.
Updated October 20 2009
Jim;
Hey Jim, wanted to update you on my meeting with the VSO today regarding Ischemic Heart disease.
My dad has diagnosed CAD, congestive heart failure, ED, Renal failure (ESRD), and many other conditions. He has had several strokes and heart attacks over the past 10 years or so. Several bypass surgeries, stents, pacemaker etc etc
As I was sitting in the VSO waiting room about 10 vietnam vets had come in to get that Ischemic Heart Disease Agent Orange and parkinsons connection, several said that thier VA doctors had told them to put in for it, so that was good to hear. I showed them the article you put up on VAwatchdog about all the secondary conditions they could possibly put in for to - like ED or renal disease or anything vascular related.
The VSO asked what I wanted to put in for, I said Ischemic heart disease secondary to AO. He said why do I think my dad has Ischemic heart disease, I said he has CAD, congestive heart failure, ESRD, heart palpitations and arythmias, ED etc etc.
He said NO, none of that is ISCHEMIC heart disease, that CAD will be turned down, that he needed some paperwork with the word ISCHEMIC in my dad's records. I have already told you the nightmare of dealing with ROI, but I went back there again today. I told them the VSO wanted some paperwork showing the word ISCHEMIC in my dad's file - anywhere in the file - she said she didn't have time and to check back with her in a few weeks to a few months - that my dad's file is too large and she will have to do it in her spare time (which means she will never do it.)
So I went to my dad's nurse practitioner at the nursing home (in the va hospital) and said the VSO wants proof my dad has the word "ischemic" somewhere in his file, that CAD and congestive heart failure and all the other problems he has won't qualify according to him. She has admitted my dad to the emergency room over the past year for various problems - 2 times for heart attack. She asked me has he ever had a heart attack, I said Yes, many times, 2 times in the past year that you sent him to the emergency room for. She said well go back and tell the VSO that qualifies for Ischemic.
So I went back to the VSO and there were some more vets in there putting in for ischemic and parkinsons for AO. I told the VSO what had happened at ROI and with my dad's nurse practitioner and gave him her extension number if he needed to call and talk to her. He said he would file a claim for ISCHEMIC heart disease, but if they don't find the word ISCHEMIC somewhere in his file, he will be denied.
So he typed up a claim asking for ischemic heart disease secondary to agent orange. We didn't put in a claim for all his other conditions secondary to ischemic heart disease - CAD, congestive heart failure, ED, ESRD Etc etc because the VSO was already agitated and it was almost time for the office to close - but what would you suggest Jim? When you get the complete list together of everything that can be claimed secondary to Ischemic heart disease I will try and get ROI to give me all my dad's diagnoses past and present and see what we can link to that.
Reply;
This is but one of the many reasons I rant about the VSO system. This particular VSO uses a logic that has no basis in reality. This stuff isn't rocket surgery folks. Why do you put up with this?
For example...if you want to file for Diabetes but your record only references DMII...should you file? Or if you want to file for DMII and your record states, "Adult Onset Diabetes", then what do you do? How about hypertension? If you think you have a case for hypertension and your record talks about "High Blood Pressure", does that mean you can't file? You have kidney disease and your VA quack wrote down "Renal Condition"...are you now not eligible for benefits?
Were you shot by a bullet or a projectile? Was your leg broken or fractured? Did you have a small stroke that passed quickly or a TIA? Do your legs hurt when you walk or is it claudication? Was it a heart attack or a myocardial infarction? Did your helicopter crash or was it an unscheduled hard landing resulting in numerous injuries?
Were you in a car crash or an automobile accident? Did we put a man on the moon or did an astronaut land on the satellite that orbits the earth?
I've asked and I hope you reply...Tell me again just why you keep returning to this VSO rather than taking control and doing it yourself? I have a very hard time understanding why I get so much email from guys who gripe to me about a VSO mishandling their case and when I tell them "DIY", they mumble and leave.
The VSO you speak of has done you and others a huge disservice out of his own ignorance. You've missed out on secondary conditions for your dad, others are probably wandering around now trying to get records that they won't understand.
I would have been as simple and easy as writing a letter to the RO. "Dear Sir/Madame: I am a Vietnam veteran. I have heart disease. My heart disease is caused by my exposure to AO. I wish to file a claim for benefits. signed, Your Name" That's it...there is your claim for ischemic heart disease. It really is no more complex than that. I challenge anyone to tell me why it's more difficult than what I just wrote.
I publish very clear directions on the simplicity of DIY and you return to this VSO for your daily dose of abuse and a heaping helping of misinformation.
Grandpa told me about leading a horse to water and all that...I guess I should have listened to him.
Updated October 15 2009
Jim;
I retired in 2003, and received the following from the VA:
a. 7804- scar, residual pheochromocytoma removal 10%
b. 5010-Degenerative Joint Disease, bunion left foot 0%
c. 5242-Degenerative Disc disease thoracic and lumbar spine 0%
d. 6034-bilateral pinguecula 0%
e. 7101- hypertension 0%
f. 7338- status post operative left inguinal hernia 0%
g. 7804- scar status post left inguinal hernia 0%
In June this year, I filed a claim to have my disability rate changed for b,c,e,f,and g. I had a C & P examination in July, and the VA decided the following:
1. Evaluation of degenerative disc disease thoracic and lumbar spine, also claimed as lower back, which is currently 0% disabling, is increased to 10% effective June 10, 2009.
2. Service connection for left L4/5 rediculopathy is granted with an evaluation of 10% effective June 10, 2009.
3. Evaluation of status post operative left inguinal hernia, which is currently 0% disabling, is continued.
4. Evaluation of scar status post left inguinal hernia, claimed as stomach scar 18”, which is currently 0% disabling, is continued (note: there are 2 different scars. The 18” scar is from the pheochromocytoma removal, not the hernia. I was asking for an increase for ONLY the hernia scar)
5. Evaluation of degenerative joint disease, bunion left foot, which is currently 0% disabling, is continued.
6. Evaluation of hypertension, which is currently 0% disabling, is continued.
Of course, there is a lot more information in their decision that I did not include here. However, their decision report did contain inaccuracies, and they apparently did not review ( or mention in their decision) some of the medical records I submitted to support my claim.
My questions are:
Since I disagree with the findings that no increase or only a 10% increase is granted, and I have a zero percent rating on the others, do I file a notice of appeal or just file another claim to increase benefits.
Would my chances be helped if I used an attorney?
Am I entitled to have the dates of my back disability backdated to when I started having worsening symptoms (December of 2005) and to receive compensation since that date?
The 18” long scar is from a surgical procedure to remove a tumor, a pheochromocytoma, along with removing my left adrenal gland. There is an area, about 6 x 6 inches, below the scar that is numb. Can I claim the numbness as a disability??
Any and all advice you can offer is greatly appreciated.
Reply;
Let's stop for a moment and consider how the VA system is designed and why they compensate the way they do.
The current rating system was started in the late 1920s or so. It was last overhauled in the early 1940s.
The intent of the system is to compensate a man for war time (or service time) conditions that would interfere with him earning a wage..."Gainful Employment". The American economy then was mostly farming based with some heavy manufacturing. It was largely labor that the GI looked forward to.
A man who came home from the military without an arm would obviously earn less than a man who came home intact. The Schedule For Rating Disabilities is a hopelessly complex and outdated mash-up of thousands of possibilities that somehow must be adjudicated to issue a decision.
The bottom line of all that is that a veteran should be rated according to how disabling and interfering with his life a condition actually is.
In many instances the VA recognizes that you may have a condition that is service connected but they do not believe it interferes with your ability to earn a wage. Thus, 0% evaluations.
So...I have to play Devil's Advocate and ask you just how disabling that numb area is? What sort of work do you do that we could reasonably say that the numbness has caused you to lose a measurable portion of your income?
The "pheo" was removed, therefore that condition was cured and no longer exists...that equals no disability...no loss of earning ability.
I imagine the hypertension is controlled easily enough with medication. The medicines available for high blood pressure are wonderful...I take them myself and feel great. No disability.
The pinguecula are very common and hardly a disability...I have them.
I have hernia scars on both sides. They're numb and not very nice to look at. I'm way past my Speedo days so I don't think of them at all. That equals no disability.
Bunions are a bitch if they're really bad. If yours measurably interferes with your ability to make a living...say, you're a route mailman...you may have a case. Otherwise, no.
I'd advise you to take the 10% and run with it. It'll get you in the door for health care and cheap medicines. That is a huge benefit that many don't have.
If you refile or appeal any of those issues, you stand a good chance of irritating someone at VA who may think that you're gaming the system..."Filing For Dollars" is the term I've heard used.
I've seen it happen before that a guy gets relentless about beating up the VA for scars and things like pinguecula and they come back with a reexamination of that back condition and find "improvement" and then you have nothing.
If you wanted to find a lawyer, I'd suggest you look around on the Internet. I won't refer you to any of the ones I use because I don't think you have a case to win.
I understand that isn't what you'd hoped to hear but I try to be straight up and offer good advice. That was the best I have given your issues.
Jim;
You once made the statement (VA Watchdog dot Org -- 04-03-2007 #4 ) that if there are multiple claims on one form and one of the conditions are ruled on, that the VA is not required to report the status of the other claims. I have also heard it stated as: If you have multiple claims on one form, and you receive a letter from the VA that one of them has been denied, that they have no obligation to notify you regarding the other claims on that same form submission, and you should consider them as denied also. Can you tell me if my wording/interpretation is correct, and if so, where I can locate any VA document that supports this. Thank you for shedding any light on this matter that you can.
Reply;
The M21-1MR is where your answer lies. It gets very complex but that's correct, VBA isn't always required to notify you of denials.
Look at M21-1MR, Part 3 - General Claims Process, Subpartv - General Authorization Issues and Claimant Notifications, Chapter 2 - Award and Denial Authorization and Notification, Section A - Award and Denial Authorization, 4. Handling Denials Not Processed Through the Benefits Delivery Network (BDN),
"Some denials do not require the VSR to process a formal disallowance with completion of a BDN 405 screen and a system-generated denial.
This topic contains information on handling informal denials that do
not require BDN processing, including information on
• an informal denial
• award and denial action taken at the same time
• temporary award of a benefit pending award of a greater benefit
• grants or continuations of additional benefit amounts
• cases in which evidence warrants no change in the previous decision
• new claim denied for the same reason as previously-denied claim
• denied apportionment claims
• informal claims, and
• applications not substantially complete."
In the second bullet point is the verbiage and it all boils down to the fact that the VSR does not have to process a system generated denial (a letter) if there is an award and denial at the same time. Thus, if you win your first claim and lose three others, the VBA is required to notify you of your win but may never tell you that the others are denied.
There are many definitions and circumstances that play in there too so this doesn't happen often but it does happen. Now you have the link to the M21-1MR, I'll let you dig into the details and Do It Yourself. Happy reading!
Jim;
I
have another question for you I have a previous injury (service
connected) that I made a claim for and was granted sometime ago but as
of right now it has gotten worse according to my doctor I am not sure
on what to write on the 21-4138 on how to state my claim for a
reevaluation could you help me out with this
Reply;
It's
really very simple. In plain language, tell them just what you told me.
You believe that your service connected condition has worsened and that
you are sure that your compensation rating should be raised.
I usually suggest that a statement is kept simple yet detailed. As an example;
Date
VARO Address
Reference: Your name & numbers
Dear Sir/Madame:
I received a service connected rating of (x) % in (year). My symptoms
at that time were (describe).
In recent months it has become apparent to me that this condition has
worsened. Today I suffer (describe).
The increase in my symptoms and medications has caused me to suffer
more side effects from medicine (describe all medication side
effects...nausea, dizziness, dry mouth, weakness, sleeplessness, etc.)
I must take (x) medicines and that is an increase of (x) amount since
I was last examined.
I have missed work more often because (describe).
I find that I am often unable to (describe any activity of daily
living you may find challenging. Food prep, lawn care, driving,
grooming, etc.).
I believe my condition has affected my mental health. I find myself
frustrated, angry, unable to work well with others, my family
relations are poor, etc.
Respectfully submitted,
Name
Address, etc.
When you mail this to them, use only registered mail, return receipt requested.
You
get the idea. You can use the standard form and attach a letter or you
may simply write a letter. What you want to do is to effectively
communicate every factual detail about your condition and how it has
had an impact on your life. Every detail is important...work,
sexuality, the ability to participate in a normal life...all should be
reported.
Respect
and courtesy are important. Expressing anger or financial need doesn't
help, it just takes up more time. Stick to the facts of your condition.
A raise in a rating is usually a simple matter if you are correct. This
letter will trigger a C & P exam and then a decision. If the
decision isn't favorable, you appeal.
Jim;
I
need to know if I will my MGIB educational benefits? Well I'm getting
out because I went thru a Medical Board and they denied me a percentage
, so I took the Fit to continue Naval Service , wht i didn't remember
was the eval I got previous the stated not recmmended for
re-enlistment. I was accused of stealing money , but it came back that
they couldn't prove I did it so I got a letter of reprimand and not
ebiligle for re-enlistment . I will have 15 years in February the
eighth. Thank you so much for your support for us sailor ,We need for
sure! I pray that GOD BLESS you for that Jim..
Reply;
To
use MGIB after you're separated from active duty, your discharge must
be fully honorable. Discharges "under honorable conditions" and
"general" discharges don't establish eligibility for MGIB. However, if
you have more than one period of service, and receive an other than
honorable discharge from one period, you may be able to qualify if you
receive an honorable discharge from another period of service. (A
period from which you were discharged in order to reenlist may meet the
eligibility requirements.)
There
is only one way to ultimately determine whether or not you may use
MGIB. You should apply for it and wait for the decision. If the
decision isn't favorable, you'll be notified in writing of any
opportunities to appeal the decision. If that should happen, get in
touch with me and we'll review the options.
Jim;
The following may be of interest:
http://www.usdoj.gov/oip/foiapost/2008foiapost29.htm
What the VA did to me is called
"Tolling". The twenty day response requirement (which is statutory)
is suspended while they 'seek clarification of the request'.
"Section 6(a)(1) of the OPEN Government Act imposes limits on an
agency's ability to "toll" or stop the twenty working-day time
period to respond to FOIA requests. Specifically, beginning with
requests made on December 31, 2008, agencies will be precluded from
tolling the time period to respond to requests except in two
circumstances. First, an agency will be permitted to “make one
request to the requester for information and toll the 20-day period
while it is awaiting such information that it has reasonably
requested from the requester.” § 6(a)(1)(I) (emphasis added).
Second, an agency may also toll the time period “if necessary to
clarify with the requester issues regarding fee assessment.” §
6(a)(1)(II). For this second circumstance, where tolling is
necessary in order to clarify fee issues, there is no numerical
limit given for the number of times an agency may toll the response
period, provided it is "necessary" to do so. In both situations, the
FOIA now provides that "the agency's receipt of the requester’s
response to the agency’s request for information or clarification
ends the tolling period.” Id."
5 USC 552 (the FOIA) limits non-fee-related 'tolls' to one. There is no limit on fee-related 'tolls'. Section 6(a) covers this.
Reply;
The readers of VA Watchdog dot Org are often the best source we have
for great information like this. The flood of data that occurs daily
would be impossible for Larry or I to review, there's just too much.
We rely on you; the intelligent, concerned veteran, to percolate
much of this stuff up to us as you're using it for your own case and
as you discover it.
Veterans helping veterans is one of the keys to getting the job done
right.
Thank you for sharing.
Jim;
You seem to be interested
in veteran disability issues so here is one. I am appealing the
turn-down of my request for additional benefits due to a service
connected hearing loss. I am talking to the area DAV office who have
what they call "National Service Officers" [NSO]. I am unimpressed
by these folks so far as to their ability to play a quasi-legal role
representing me on this appeal.
What are the requirements to be a NSO? Education? Training?
Why is there a tremendous turnover among them (as I’ve been told by
their office staff)? They turn over about every year evidently. How
much are they paid?
How can a vet evaluate the NSO before using him? The one I’ve talked
to got upset when I asked for statistics–how long at the job, how
many cases, how many won and lost.
Thanks.
Reply;
Yes, I have an interest in veterans disability
issues...it's sort of a hobby of mine I suppose.
I've written so much about all this that I hardly know where to
begin. Suffice it to say that I fired the DAV years ago and then
went about winning my case for myself. That's how I started as an
advocate. My first client was me.
Rather than trying to feed you the whole history, I'll ask you to do
some reading. Here are links you'll no doubt find interesting.
After you've read and updated your knowledge banks, please feel free
to write to me again with any comments or questions you may have.
In fact...I'd really enjoy your take on what I have to say and how
well it matches your feelings today.
I'll look forward to that.
Links:
My "Knol" Guide
http://tinyurl.com/5wxapm
A 3 part series
http://vawatchdog.org/08/nf08/nfAPR08/nf040208-1.htm
http://vawatchdog.org/08/nf08/nfAPR08/nf040308-1.htm
http://vawatchdog.org/08/nf08/nfAPR08/nf040408-1.htm
VSO? Yes or no?
http://vawatchdog.org/08/nf08/nfMAY08/nf051908-4.htm
Miscellaneous
http://vawatchdog.org/07/nf07/nfJAN07/nf012907-3.htm
http://vawatchdog.org/07/nf07/nfNOV07/nf110207-12.htm
-------------------------
Jim;
I have asked for help from every organization and group I know. My
congressman, my senators, my state government and even local groups,
I have even asked the DAV of which I am a member since 1973 yet no
help comes. I may as well be dead, which is probably what everyone
wishes? I just thought I joined the Marines to serve my country even
though Vietnam was very active in 1968. It never crossed my mind
that I would become a prisoner of my own country, or that they would
take all my weapons away and lock them up.
When the enemy over ran our unit and killed unarmed young men I
never thought I would have so much trouble getting our country to
Honor them?
Parents I am telling you right now do not let your son or daughter
join this country's military.
They do not respect them and they do not take care of of them when
their normal life is over. They do not honor nor do they even
acknowledge that you exist or that what you went through even
happen! This country runs on filthy greed and as long as they get
theirs they don't know you. They have a job and they will not stand
up for the truth and say STOP something must be done.
To my comrades of the 1st marines,11th Reg., 2nd Battalion I am
sorry that I could not get you the honor you deserve. This country
will honor drug addicts, alcoholics, perverts, child molesters, drug
dealers and even murderers but not honest Marines that stood and was
murdered in the name of the United States of America.
Millions of dollars are spent for liar's and cheaters and thieves
and our government argues and fights among themselves. They won't
even come together for a common bond of honor for the young men that
gave their lives for them to act this way. I will soon join you
Marines I just wish I could have done some good for you and your
families. I am sorry this country does not even care about the
living veterans. America used to be looked upon as Great, now they
are a great disappointment.
We the people of the United States, in order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for
the common defense, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity do ordain and
establish this Constitution for the United States of America. Today,
I feel that all the lives lost fighting for this country has been a
waste and the ones left in wheel chairs and other devices, gave of
themselves for what reason?
Reply;
You emailed this to almost 100 people. Your list included Senators
and Congresspersons, television news stations, the POTUS, all of
your friends and neighbors, the DAV-VFW-AL groups and many more.
You have assured yourself that nobody will read what you've written.
Well, I did but only because I'm publishing it on a public site and
I wanted to be sure that there wasn't too much colorful language.
In the 453 words that you wrote, you never once got to your point.
You opened with, "I have asked for help from every organization and
group I know" but you never get around to telling me what help you
may need. I have to assume that your frustration must come from a
denied claim for a disability benefit.
It's unfortunate that I see a lot of this sort of thing. I
understand the frustrations of dealing with VA when you *know*
you're right and they're wrong...I do it every day, time after time.
But when you lose control of yourself, you've then lost all control
of the situation and your claim. If you're allowing yourself to go
off on rants to strangers, your case won't ever be resolved.
Any of us that ever file with VA have to remain focused. VA only
cares about 3 elements when you claim that your military service
caused you some degree of disability.
(1) Are you eligible to receive benefits? Were you honorably
discharged from service? Did you spend enough active duty time to be
eligible?
(2) Is there historical evidence available that reasonably proves
that there was an event (an injury or illness) that may have caused
a continuing disabling condition?
(3) Do you have a current medical diagnosis that you are disabled to
any degree and is there reasonable evidence of a link (nexus) that
the in-service event caused or contributed to the disability today?
That's all. There is no more. It really is that simple. If you have
the 3 pieces of data above, you have already won your claim.
I'll grant you that it becomes more difficult if either one of two
things happens.
(1) You screw it up at the start.
You get an attitude at the beginning and carry it through the
process. You decide that VA owes you so you don't do your homework
and you don't do the hard work for yourself. Hand it off to a VSO
who you don't know and haven't investigated and then 6 months later
try to ask him or her what's happening. It's their job to do it all
for you isn't it? Hey, it's also the job of the VA to gather all
those complex records from your doctors, right? So screw 'em, you're
too busy to do it for yourself, let them handle it. Why should you
have to search around for records or buddies who may sign "Buddy
Letters" for you? You told VA what happened and by God, your word
should be good enough...do they think you'd lie?
(2) VA screws it up at the start.
We can rely on VA to make a hash of it. I can easily face 10 of you
and look you in the eye and tell you that 7 of you are going to have
to appeal your case because VA is FUBAR. Knowing that, it's your job
to bird-dog every step of what they do all the way through. If you
can't say anything else about our friends at the VBA, you have to
give them credit for being consistent. It's a sure bet that 7 of 10
of you will have some other guy's records in your folder and the
rater won't notice. There isn't any doubt in my military mind that 7
of 10 of you will come to realize that nobody read all the
information in your C-File before your claim was denied. The C & P
examiner will write a report about 7 of you 10 that is so wrong that
you won't know whether to laugh or cry when you finally read it.
You're a smart veteran, right? You did well in your service and
after that you made out pretty good as a civilian. You've been
reading VA Watchdog dot Org and it's no surprise to you that your
claim was completely SNAFUed by the VA.
You know how to fix it. I've written tens of thousands of words
about what you do when your claim leaves the tracks. Larry Scott has
written even more. I've published works that have contributing
authors who are learned lawyers, men and women of distinction who
ply their trade before some of the highest courts in our country.
Other co-authors are veterans just like you. These are people who
have been there, done that and they have all the souvenir t-shirts.
The step by step instructions on how to win your claim are right in
front of you.
Writing to the POTUS (and 100 others) won't help you.
VA has a process. You must stick to the process to win. VA doesn't
believe that it has to stick to the process. As VA holds all the
cards, if that seems unfair to you, get over it. You must stick to
the process...end of that story.
Filing a claim for benefits isn't about fair or unfair or how you
feel about what goes on in the country. It has nothing to do with
criminals and illegal aliens or your political beliefs. Nobody cares
that you think, "This country will honor drug addicts, alcoholics,
perverts, child molesters, drug dealers and even murderers".
If you have a legitimate claim, your goal is clear. You want to win
an award of a fair disability compensation benefit. If you have a
legitimate claim and reasonable evidence to support it and if you
stick to the process, you'll reach your goal.
Once you start diverting your energy to writing out your angst to
100 others, you've already lost the game.
There isn't one person on that list who can help you until you
decide to help yourself.
VA Math
A favorite letter of mine reviewing the complex topic of VA Math
Jim;
I recently applied for an increase to my disabilities. Everything was going great and the Cleveland; Ohio VA Regional Office granted my increases. According to the VARO, I went from a 70% rating to 80% during the first round of awards. The VARO divided my request for increase into two rounds of appointments and awards. While waiting for the second award, I was sure the VARO would increase to 90% due to the disabilities still being reviewed. When I got my second award letter they had changed a few numbers to suit the calculation and insisted I was going to remain at 80%. I looked over everything they did and requested a re-comp of the rates.
My individual rates are 30, 30, 10, 10, 10, 10, 10, 10, 10, 10, and 10. Six of the 10% ratings are bilateral and thus require an additional Bilateral Factor. In the letter from the VARO they explained that my six bilateral conditions became 47%, plus a Bilateral Factor of 4.7 to make the final percent 51.7% rounded up to 52%.
This is where they (VARO, Ohio) do the funny math. They explained to me in this letter that my rates are 52, 30, 30, 10, 10, and 10, which equates to 82% rounded to 80% for a final disability rating.
What happen to the six 10’s? Shouldn't they have become 60% plus a Bilateral Factor? How does anyone get a Bilateral Factor of 4.7 from 60?
Reply;
It's no surprise to you that you've hit upon one of the trickier parts of VA math.
Let's begin with the Bilateral Factor rules:
38 CFR Book C Schedule for Rating Disabilities
Subpart A - General Policy in Rating
§4.26 Bilateral factor.
When a partial disability results from disease or injury of both
arms, or of both legs, or of paired skeletal muscles, the ratings for
the disabilities of the right and left sides will be combined as
usual, and 10 percent of this value will be added (i.e., not combined)
before proceeding with further combinations, or converting to degree
of disability. The bilateral factor will be applied to such bilateral
disabilities before other combinations are carried out and the rating
for such disabilities including the bilateral factor in this section
will be treated as 1 disability for the purpose of arranging in order
of severity and for all further combinations. For example, with
disabilities evaluated at 60 percent, 20 percent, 10 percent and 10
percent (the two 10’s representing bilateral disabilities), the order
of severity would be 60, 21 and 20. The 60 and 21 combine to 68
percent and the 68 and 20 to 74 percent, converted to 70 percent as
the final degree of disability.
(a) The use of the terms “arms” and “legs” is not intended to
distinguish between the arm, forearm and hand, or the thigh, leg, and
foot, but relates to the upper extremities and lower extremities as a
whole. Thus with a compensable disability of the right thigh, for
example, amputation, and one of the left foot, for example, pes
planus, the bilateral factor applies, and similarly whenever there are
compensable disabilities affecting use of paired extremities
regardless of location or specified type of impairment.
(b) The correct procedure when applying the bilateral factor to
disabilities affecting both upper extremities and both lower
extremities is to combine the ratings of the disabilities affecting
the 4 extremities in the order of their individual severity and apply
the bilateral factor by adding, not combining, 10 percent of the
combined value thus attained.
(c) The bilateral factor is not applicable unless there is partial
disability of compensable degree in each of 2 paired extremities, or
paired skeletal muscles.
You had 6, 10% conditions. Using the CRT that adds up to 47%. (The 6, 10's aren't 60%, you must use the CRT http://edocket.access.gpo.gov/cfr_2004/julqtr/38cfr4.25.htm
Where did the 6, 10's go? Watch closely...
10 + 10 = 19 (2 tens)
10 + 19 = 27 ( 3 tens)
10 + 27 = 34 (4 tens)
10 + 34 = 41 (5 tens)
10 + 41 = 47 (6 tens accounted for)
The bilateral factor of 10% would then be 4.7 to = 51.7 rounding up to 52.
52 + 30 = 65 (Round up to 70) (The first 30)
70 + 30 = 79 (Round up to 80) (The second 30)
You told me, " They explained to me in this letter that my rates are 52, 30, 30, 10, 10, and 10, which equates to 82% rounded to 80% for a final disability rating."
I don't understand how anyone arrived at 52, 30, 30, 10, 10 and 10...in a setting of Bilateral Factor usage, the 10's would be the first ratings addressed just as as I did. However, the resulting number is the same. You're at 80%.
The good news...if you aren't employed because of your SC disabilities, is that you're now eligible to apply for 100% IU. Read up on the IU benefit in my A to Z Guide at http://jimstrickland912.com
I confess...I needed help. I turned to an expert: A friend who happens to be one of the finest RVSR's on the planet. I continue suggesting that we give the VA to him but so far, few are listening.
I asked him a few really dumb questions to start and after he finished laughing at me (I can hear sneering in an email) he finally was able to educate me.
"You must always do the bilateral factors first, no matter what. After you apply them to the table on 4.25, ADD (not combine) 10% of that amount. Thus, if it's 19%, you add 1.9, round it off, and then do the rest.
A common misunderstanding with people (vets, vsrs and rvsrs) is that simple addition is the way to go. Wrong.
The idea behind the table is that if your 10% disabled, that means you're 90% able and another 10% is really worth only 9% (10% of 90%). It's added to the original 10% and you are now 19% disabled. That rounds up to 20%.
The only thing about the system that isn't always in the veteran's favor is that rounding (up or down) to the nearest 10% usually takes place at the end. But when you're doing the individual stuff, it rounds each time. This can be an
advantage and a disadvantage depending on the circumstances presented.
Imagine that you're in the 6, 10% ratings deal:
10 +10 = 19
19 + 10 = 19 + (10% of 81) = 19 + 8.1 = 27.1
27.1 + 10 = 27.1 + (10% of 72.9) = 27.1 + 7.29 = 34.39
34.39 + 10 = 34.39 + (10% of 65.61) = 34.39 + 6.651 = 41.041
41.041 + 10 = 40.041 + (10% of 59.959) = 40.041 + 5.9959 = 46.0369
The bilateral factor in this case is 4.6, not 4.7.
Maybe it's not significant in this case, but if it were the difference from 94 or 95%, it would mean a lot. The 94 is rounded down to 90%, 95 is rounded up.
It works against the vet in some cases, too, mainly when there are large evaluations of each extremity. However, most of the time, it's to the veteran's favor to round each time. Bilateral factors are generally many small percentages rather than a bunch of big ones. Finally, the amputation rule generally limits this stuff. In those cases, they're usually over 100% with special monthly compensation."
OK, he explained it to a point even I can understand it...sort of.
The bottom line is that the fuzzy math of the VA requires a lot of thought and attention to detail. Pay attention to it and keep a close eye on the guy who calculates your complex benefit. Nobody cares about the math in your claim like you do!
(I erred in this one. I made a very basic mistake in addition. I didn't find it until it was published. I challenged readers to find my mistake. Do you see it?)