Sean Kendall Blog

Sean Kendall Blog http://www.seankendalllaw.net/blog/ Sean Kendall Blog en-us 2012 Sean Kendall, All Rights Reserved, Reproduced with Permission http://www.seankendalllaw.net/blog/ Sat, 19 May 2012 04:49:30 GMT Sean Kendall Blog http://www.seankendalllaw.net/images/logoprint.gif http://www.seankendalllaw.net/blog/ <![CDATA[Transition to Home Life]]> Hell and Back Again, gives viewers gut-wrenching insight into one Marine’s struggle to adjust to normal life after combat.
]]> http://www.seankendalllaw.net/blog/transition%2Dto%2Dhome%2Dlife%2Ecfm www.seankendalllaw.net-81342 Fri, 11 May 2012 08:00:00 GMT <![CDATA[Film High Ground]]> here.
]]> http://www.seankendalllaw.net/blog/film%2Dhigh%2Dground%2Ecfm www.seankendalllaw.net-77314 Thu, 15 Mar 2012 08:00:00 GMT <![CDATA[iPhone PTSD application.]]> PTSD Coach was designed for Veterans and military Service Members who have, or may have, Posttraumatic Stress Disorder (PTSD). This app provides users with education about PTSD, information about professional care, a self-assessment for PTSD, opportunities to find support, and tools that can help users manage the stresses of daily life
]]> http://www.seankendalllaw.net/blog/iphone%2Dptsd%2Dapplication%2Ecfm www.seankendalllaw.net-76928 Fri, 09 Mar 2012 08:00:00 GMT <![CDATA[Board of Veterans Appeals delays]]> Board of Veterans' Appeals Chariman's report, issued February 15, 2012, indicates:

Cases pending before the Board at the start of FY 2010: 40,688
Cases pending before the Board at the end of FY 2010: 45,722
Cases physically at the Board at the end of FY 2010: 32,458

Despite the Board's claim, the 65 full time judges at the Board are not reducing the backlog. And the real trouble is brewing at the Regional Offices, where the reality is there are over 1,000,000 claims pending. This backlog is going to explode up to the Board in the next coming years. Look for 80,000 claims pending by the end of 2016.
]]> http://www.seankendalllaw.net/blog/board%2Dof%2Dveterans%2Dappeals%2Ecfm www.seankendalllaw.net-76314 Wed, 29 Feb 2012 08:00:00 GMT <![CDATA[Army Commander's instruct not to diagnose PTSD]]> memorandum, an Army ombudsman wrote that a doctor from the base hospital, Madigan Army Medical Center, said that one diagnosis of post-traumatic stress disorder can cost $1.5 million in benefits over a soldier’s lifetime. The doctor also counseled his colleagues to be good stewards of taxpayer money by not “rubber-stamping” such diagnoses.

Madigan Army base diagnoses of PTSD were sent to Walter Reed for reevaluation. What stands out is the reevaluations changed the results and PTSD evaluations were changed to personailtiy disorder. But its clear to me that these veterans, after discharge, are going to have strong claims for service connection for PTSD and the military diagnosis should be disregarded.

]]> http://www.seankendalllaw.net/blog/army%2Dcommander%2Ds%2Dinstruct%2Dnot%2Dto%2Ddiagnose%2Dptsd%2Ecfm www.seankendalllaw.net-76014 Sat, 25 Feb 2012 08:00:00 GMT <![CDATA[Why is the VA so slow to process claims?]]> Why is VA so slow to process claims?
VA is a huge government bureaucracy. All bureaucracies, whether government or corporate, are slow, inefficient, subject to channeled thinking. They are inherently cautious and have many interconnected parts, and actions require multiple reviews and sign-offs. Political influences on, and scrutiny of, government bureaucracies increase the natural cautiousness.
Understaffed, undertrained, overworked, overwhelmed. VA handles hundreds of thousands of claims. Many have merit but not all do. Some people, seeing a federal fund of money, regard VA benefits as a possible source of easy money. With responsibility for the use of taxpayer money, VA must sort through all the claims to separate the bogus from the legitimate. The agency is challenged to find, train, and retain enough qualified employees to deal with this burden of work.
Conflicting incentives. Sometimes the very measures taken by VA to speed processing of claims result in losing ground. For example, when VA creates incentives for clearance of claims faster, the easiest way to deal with a claim quickly is to deny it, often without doing all the proper development. This results in appeals and redoing the claims, sometimes over and over.
Creeping bias. Most VA employees, however effective or ineffective, are sincerely trying to do their jobs properly. Dealing with such a vast number of claims, however, sometimes creates a sense of skepticism on the part of reviewers. This suspicion that most claims are without merit can result in denial because of a tendency to favor evidence adverse to the claim or insist upon corroboration of evidence that should not require it.
What can be done about it?
The short answer is that there is no cure-all; to a certain degree the system is what Congress has established, limited by realities of claim volumes and the labor market. But there are some things that can help avoid undue delay.
Support claims. If you are preparing to file a claim, collect or think about the necessary evidence to prove it. Claims for service connection require showing a current disability that is related to an event of injury or disease manifestation in service. Unless the disability is obvious, such as an amputation or scar, you will need medical records to demonstrate it. VA will request necessary records if you identify sources, but as the patient you can often save time by requesting them yourself. If your injury or illness in service is reflected in military records, that will suffice; if not, you can describe it in a statement but VA will usually want corroboration, so you should solicit statements from witnesses – fellow soldiers, family members, co-workers who are familiar with the events. Finally, unless you have documented symptoms that have continued since service, you will need to establish an evidentiary connection between the in-service event and your disability. This usually requires a medical opinion, which VA may or may not obtain on its own; again, time can be saved if you get an opinion yourself.
Simplify. Having multiple claims also causes delay, especially if they are not proceeding simultaneously. VA cannot rub its stomach and pat its head at the same time. Claims at different stages require attention by different personnel in VA, and the claims file can only be in one place at a time.
Heed notices. If your claim is denied, pay close attention to the reasons given in the Rating Decision or Statement of the Case and consider how to address them. You may need to obtain additional evidence on the elements discussed above.
Be insistent but polite. Bureaucrats are human beings (strange but true!). Like any human, a government employee responds better to courtesy and respect than to threats or anger. Dealing with VA is often infuriating, but losing your cool accomplishes nothing because, realistically, VA employees have little pressure on them to handle any particular claim promptly. But it is important to keep steady pressure on VA. Call or write VA about pending action at regular but reasonable intervals, about every 30-60 days. Writing to your congressional representative cannot force any particular decision by VA but it can sometimes help focus some attention on a file if it has been languishing without action for a long time. Do not resubmit evidence, as this simply bulks up the claims file and causes delay.
Last resort. There is one mechanism to compel attention and possibly action by VA if delay becomes extraordinary. It is possible to petition the Veterans Court for an extraordinary writ of mandamus, an order directing the agency to do something. It is called extraordinary because the court regards it as an extreme measure, to be done only in the most egregious cases. The court very seldom actually issues a writ; sometimes just filing the petition, however, prompts the agency to get something moving again.
We would be happy to answer questions about any of this information.
]]> http://www.seankendalllaw.net/blog/why%2Dis%2Dthe%2Dva%2Dso%2Dslow%2Dto%2Dprocess%2Dclaims%2Ecfm www.seankendalllaw.net-75736 Tue, 21 Feb 2012 08:00:00 GMT <![CDATA[Duty to Elicity Lay Evidence]]>
Veterans have in several cases contended that the Board erred when it found that VA satisfied its duty to assist in their claim for earlier effective date because VA failed to elicit medical and lay evidence from him and because the Board erroneously determined that a retrospective medical opinion was not warranted.

The Secretary has a general duty to make reasonable efforts to assist a claimant in obtaining evidence that is necessary to substantiate the claim for benefits. 38 U.S.C. § 5103A(a); Daves v. Nicholson, 21 Vet.App. 46, 50 (2007). This duty includes notifying claimants to submit lay evidence of their symptoms. Chotta v. Peake, 22 Vet.App. 80, 84 (2008) (citing 38 C.F.R. § 3.159(b)(1) (2011)). This duty may also include "obtaining a retrospective medical opinion" when the record does not include "competent medical or lay testimony that indicates that a higher disability rating may be appropriate."

The Court has held that the Board in certain circumstances has a duty to elicit lay evidence regarding the history of symptoms and a medical opinion of when the higher rating should begin.
]]> http://www.seankendalllaw.net/blog/duty%2Dto%2Delicity%2Dlay%2Devidence%2Ecfm www.seankendalllaw.net-74024 Fri, 27 Jan 2012 08:00:00 GMT <![CDATA[VA doctor's cannot deny based on missing service or post-service records]]> The same doctor reviewed his previous opinion. This time, he said he accepted the veteran's testimony of treatment and x-rays in service, but held that because there was no record of treatment and diagnosis of the back condition until 1970, a twelve year gap in records according to the doctor, it found the back condition most likely related to age.
Of course, the doctor ignored the veteran's and his wife's testmony that he was treated for a back injury by three different doctor's during the 12 year gap in records. Under a reasonable interpretation of the Buchanan and Jandreau cases, the VA is not permitted to ignore lay testimony of post-service treatment. The fact that the post-service treatment records are missing should make no more difference than missing service records.
Thus, it is my opinion that the VA doctor opinion is going to be thrown out again. The VA doctor is going to have to provide a new opinion, one that takes into account that the veteran continuously sought treatment for his back during the 12 years. The fact that the medical records are missing should have no bearing on the doctor's opinion, and he should accept the veteran's testimony of treatment after service. Given that the veteran can show continuous treatment through his testimony, the VA doctor should change his medical opinion and show that it is related to service.
For further reading, see the case of Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).
]]> http://www.seankendalllaw.net/blog/va%2Ddoctor%2Ds%2Dcannot%2Ddeny%2Dbased%2Don%2Dmissing%2Dservice%2Dor%2Dpost%2Dservice%2Drecords%2Ecfm www.seankendalllaw.net-73450 Fri, 20 Jan 2012 08:00:00 GMT <![CDATA[Is VA supposed to offset DIC award if widow was getting SBP?]]> Is VA supposed to offset DIC award if widow was getting SBP?

I know I should know the answer to this, but in light of VA giving a client a full back award for DIC, I want to make sure. I never bothered to check when I signed her up, but now she asks me if this award will affect her receipt of her Survivor's Benefits Plan (SBP) payments that she has been getting since the vet died. I told her I thought that amount would probably be offset by the new higher monthly DIC payment.

DoD decided not to appeal Sharp v. United States, 580 F3d 1234 (DC Cir, 2009). That case held that the statutory provision only precludes offset for widowed spouse receiving SBP/DIC and remarried at age 57 or older. If remarriage didn't occur, then DFAS enacts an offset.

The widow is going to be subject to reduction of their annuities in the amount of the monthly DIC, simply because they have not remarried. Sharp turns on the 2003 revision to 38 USC 1311, at para (e). That's the section that eliminated the offset. However, it is limited to "the case of an individual who is eligible for DIC under this section by reason of section 103(d)(2)(B) of this title." Section 103(d)(2)(B) restored DIC eligiblity of widows who remarried after age 57. So if the widow did not remarry, then the widow is not an "individual who is eligible for DIC" by reason of section 103(d)(2)(B). I checked the DoD website per Drew's reference, and that seems to be how DoD is construing Sharp -- very narrowly, applicable only to widows who remarried after age 57.

It is my understanding that the annuity is taxable income, so there is still a potentially greater benefit to the widow in receiving DIC in lieu of SBP annuity because of tax consequences.

However: does the retro DIC award create some kind of overpayment of the annuity, where the retro DIC covers the time period when the widow was receiving the annuity? I can't find any authority for that, and I don't know how DoD would collect it anyway, since DoD will already have reduced the annuity in an amount equal to the monthly DIC payment. Anybody have any ideas about this?

]]> http://www.seankendalllaw.net/blog/is%2Dva%2Dsupposed%2Dto%2Doffset%2Ddic%2Daward%2Dif%2Dwidow%2Dwas%2Dgetting%2Dsbp%2Ecfm www.seankendalllaw.net-73294 Wed, 18 Jan 2012 08:00:00 GMT <![CDATA[Sean Kendall Snow Bicycle Race]]>
Read the article here.
]]> http://www.seankendalllaw.net/blog/sean%2Dkendall%2Dsnow%2Dbicycle%2Drace%2Ecfm www.seankendalllaw.net-73296 Tue, 17 Jan 2012 08:00:00 GMT <![CDATA[Knee Replacements]]> ]]> http://www.seankendalllaw.net/blog/knee%2Dreplacements%2Ecfm www.seankendalllaw.net-73198 Mon, 16 Jan 2012 08:00:00 GMT