I scanned the decision from the VARO and emailed it to Veterans Advocate, Jim Strickland, who has been advising me for several months now. If you're new to this blog or new to the world of Veterans benefits and claims, Jim Strickland is a name you want to remember. Jim publishes columns on various Veterans websites. Check out http://www.vawatchdog.org or http://www.military.com and you'll see his work there. Jim also has his own website, The A to Z Guide to VA Disability Benefits located at http://www.jimstrickland912.com. Anything you want to know is in that website. If you can't find help there, join us on Jim's new Google Group, "Straight Talk for Military Veterans" at http://groups.google.com/group/straight-talk-for-military-veterans?hl=en. I'm one of the moderators of the group so you'll catch me there. I will make sure someone answers your questions.
As usual ... I got sidetracked. Where was I? Oh, right. When my denial came in, I forwarded the entire packet to Jim for his review. Jim is a firm believer in do it yourself claims and he'll be the first person to tell you that. Read his guide and handle your own claim. Do it yourself, he says. You are the only person who really gives a shit about you. He doesn't swear like that. Those are my own curse words. Well, maybe he does swear like that. It doesn't matter. You get the point. Represent yourself. Do it yourself.
Imagine my surprise when I got his response back and it read, "You need a lawyer."
That statement coming from the man who preaches doing it yourself was so powerful that it took my breath away. I was speechless. Surely an evil spirit had taken over Jim's body and soul. Did I read that right? Mister do-it-yourself was telling me to get a lawyer? Surely (Don't call Jim "Surely") there was a mistake. We exchanged a few more emails back and forth and of course, I'm following his advice. He hasn't steered me wrong yet.
I admit, it took me a couple of weeks to get off my fourth point of contact before I called the lawyer. I wanted to read everything I could get my hands on about appealing VA claims before I spoke with the attorney. I'm one of those people who has to know about something before I attempt to speak about it. I hate to appear ignorant. I know, I know, the attorney is going to do all the work. Why do I need to do any research? Because I do. I just have this need to know. You can understand that, can't you, Invisible Reader?
The three best sources I found were (1) on the VA's own website and (2) on Jim's website.
Here are Jim's links easily found on his "A to Z" website:
This document comes from the VA website and discusses the requirements for Individual Unemployability. I applied for it. I was denied. I meet the requirements.
Department of Veterans Affairs
Individual Unemployability Fact Sheet
What Is Individual Unemployability?
Individual Unemployability is a part of VA’s disability compensation program that allows VA to pay certain veterans compensation at the 100% rate, even though VA has not rated their service-connected disabilities at the total level.
What Is the Eligibility Criteria for Individual Unemployability?
A veteran must be unable to maintain substantially gainful employment as a result of his/her service-connected disabilities. Additionally, a veteran must have:
• One service-connected disability ratable at 60 percent or more, OR
• Two or more service-connected disabilities, at least one disability ratable at 40 percent or more with a combined rating of 70 percent or more.
How Do I Apply?
• Submit VA Form 21-8940, “Veteran’s Application for Increased Compensation Based on Unemployability”
• Send application to your nearest VA Regional Office. To find the closest regional office to you, go to http://www1.va.gov/directory/guide/home.asp?isFlash=1 The application can be downloaded at http://www.vba.va.gov/pubs/forms/VBA-21-8940-ARE.pdf or call 1-800-827-1000 and request the form be mailed to you.
Can I Work?
Veterans who are in receipt of Individual Unemployability benefits may work as long as it is not considered substantially gainful employment. The employment must be considered marginal employment.
• Substantially gainful employment is defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.
• Marginal employment is generally deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Census Bureau as the poverty level for the veteran only. For more information on the U.S. Census Bureau's poverty thresholds, see http://www.census.gov/hhes/www/poverty/threshld.html
What If I Don’t Meet the Percentage Criteria?
Special consideration will be given for veterans when the following criteria is met:
• The veteran is considered unemployable due to a service-connected disability(ies) but fails to meet the minimum percentage standards, OR
• There is evidence of exceptional or unusual circumstances to impairment of earning capacity due to disabilities (for example, interference with employment or frequent periods of hospitalization)
Note: Veterans may have to complete an employment questionnaire once a year in order for VA to determine continued eligibility to Individual Unemployability.
For More Information, Call Toll-Free 1-800-827-1000
or Visit Our Web Site at http://www..va.gov.
Compensation and Pension Service – October 2008
Jim referred me to his friend, Sean Culliton. You can check him out here: www.seanculliton.com. Sean is accredited by the Veterans Administration (VA) to represent veterans and their dependents in matters before the Veterans Administration, including appeals of the denial of benefits.
When I called Sean's office I spoke with Katie, one of his clerks. Katie was easy to speak to, pleasant and very apologetic as she explained to me that Sean was not in the office. She said it was his practice to personally speak with every Veteran who called in to consult with him. Katie took down all my basic information and promised Sean would call me the very next day at 4:30. That's 1630 for you military types.
At 4:30 the next day, Mr. ("please call me Sean. I'm serious about my work but casual about everything else") Culliton called me. I shouldn't have worried about reading up on the appeals process. As always, Jim was right. I had been wasting time. (I hope Jim doesn't read this 'cause he'll tell me, "I told you so".) Sean went over the entire appeals process with me. He asked questions about EVERYTHING and didn't seem the least bit shocked when I gave him some very graphic answers. I'm sure in his line of work with Veterans he's heard it all and then some.
Of course he can't guarantee he will win the appeal for me. But the way that I figure it is this. I'm not paying him a dime. He's working on a contingency basis. If I lose my appeal, he gets nothing. I have to assume he thinks I have a better than average shot at winning my appeal. He had the documents in front of him. My PC crashed and of course the copies I had scanned in were on my PC, but there was Jim to the rescue. He had them saved on Google documents and had sent them to Sean to review before we spoke on the phone.
I don't think Sean is a Veteran but he is very passionate about working with Veterans. He is a firm believer that Veterans are entitled to all the benefits we earned for serving our country. I got the impression that he is PISSED that it takes us so long to get them. He is PISSED that we have to fight so hard for them. Sean started talking about "due process." He told me that it's sickening that murderers, rapists and child molesters are entitled to it. Until recently, Veterans were not entitled to it. That's why it takes years for appeals to be heard and decided on. Criminals are entitled to due process but those of us who served our country were not. That's changed, my brothers and sisters. Sean wrote a great article about it and Jim has it on his website. Check it out here: http://jimstrickland912.com/Due_Process.html. It's good stuff. If you want to read an article about a Veteran who wishes he had "due process" going for him, read this article recently published on VA Watchdog dot Org: http://www.vawatchdog.org/09/nf09/nfoct09/nf102909-2.htm.
I'm watching my mailbox now. Sean is sending me a packet of paperwork to review and sign. The law limits the amount of my back pay he can take as payment, but quite honestly, this isn't about the back pay. Okay, I can use the money. Who can't? I'd like to buy myself a nice little house, a place to call my own. It's about what's right and fair. I average between 8 & 10 doctor appointments a month. It's over a one hour drive to the VA Hospital. If I have to wait for medications, add another hour to my day in addition to the time I spend with the doctors. At least once a month I have to stop in for lab work so that adds extra time to my day. I have to stop in at the pay cage each time I go to the VA Hospital so that I can give gas money to whomever has driven me that day. Parking at the VA Hospital in Tampa is a real bitch. They send out a letter warning you how bad it is, advising you to arrive an hour prior to your appointment just to find parking. How's that for bad? My "drivers" usually drop me off and then go find parking, but I feel bad for them having to deal with that mess.
Do you see where I'm going with this, Invisible Reader? I know. It's sometimes hard to follow my train of thought so I'll explain. My claim for 100% based on unemployability was denied because the Physicians Assistant who did my comp and pension exam said that I was capable of "sedentary employment with frequent breaks and position changes." The idiot who looked at the evidence I submitted took that statement, ignored other key evidence I had submitted and denied my claim. Tell me something, if I came to you for employment and told you how I needed to be accommodated, would you hire me? Or would you send me a rejection letter stating you had hired someone more qualified to fill the position. I would do the latter. I've done it. It's not discrimination. And if it is, it's so subtle that I couldn't be charged with discrimination. I'm also the kind of employee I wouldn't want to keep. I wouldn't want an employee working for me who can't sit for long periods, can't stand for long periods, falls asleep on the job because of narcotic medications, can't concentrate, can't understand basic instructions because of medications and needs constant breaks. That is not a productive employee. Whomever decided my claim has obviously never run a business. If they have, they probably ran that business into the ground. I'd fire a manager like that.
Stick with me, Invisible Reader. We're on another journey. I have no idea how long this one will take. Remember, this journey is a continuance of the trip that started in October 2008. We won part of the battle. The VARO did increase my disability to 80%. They service connected me for depression and after 15 years of fighting they finally service connected my right knee. Fifteen years! Can you imagine that? I wonder if I'm entitled to back pay? I'll have to ask Sean about that.
Until the next time ...