Are You a Disabled, Service Connected Veteran, Legally Married to a Same Sex Spouse? I Need Your Help Now!

Hello friends.  I’ve been coming to you for just over two years now.  We’ve discussed all kinds of topics; everything from my claims to military sexual trauma to service dogs to my joining Jim Strickland at VA Watchdog Today dot Org.  You got married with me.  You went to California with me.  Now I’m asking you to join me in a fight for civil rights.  This won’t be an easy fight.  Nor will it be a quick one.  This promises to drag out for at least a couple of years.  At least.  

I first brought up the idea for this fight when Terri and I got married last year.  By the way, wish us “Happy Anniversary”.  Yesterday we celebrated our one year anniversary.  I look forward to spending many years with her.  The first year has been great.  My wife continues to be a powerful source of strength for me.  I can’t imagine going through the daily struggles without her.  No matter how down I get, she is always there for me.

If you look back at the previous two blogs I published about adding Terri as my spouse, you’ll see that the VA denied my claim.  To briefly summarize in case this is your first time reading my blog, I applied to the VA to have Terri added as my spouse in June 2010.  In record time, three months, I received a denial.  I was denied based upon the “legal” definition of a spouse which is: “a member of the opposite sex”.  With guidance from my friend and business partner, Jim Strickland, I filed a Notice of Disagreement (NOD).  The reason for the NOD?  The denial is a violation of my civil rights.  

Then I turned to my blog and started recruiting.  I turned to Facebook and started recruiting.  I turned to my friends and asked them to repost my blog everywhere they could think of.  I thought to myself, “the community will come out and support me.”  I know there are other couples out there like Terri and I.  Gay & Lesbian Disabled Vets, legally married, who want their same sex spouses to get benefits from the VA if they die.  I know they could use the extra money.  I sure could, though that isn’t my point in adding her to my claim.  We fought to repeal DADT.  We are fighting to repeal DOMA.  Why is this any different?  We are out of the military now.  We won’t lose our VA benefits if they find out we’re gay.  Federal civilian employees get some (not all) benefits for their same sex spouses.  Why aren’t we entitled to them?

I’m baffled by this.  Totally baffled by the lack of support for this call to action.  In the year I’ve been recruiting for this project, I’ve had a few inquiries.  I’ve sent out detailed instructions on how to apply.  To my knowledge, only one couple followed through.  That couple lives in California.  They will now become our first test case.  The Veteran filed and as expected, she was denied based on the definition of a spouse.  I sent her a sample letter for her NOD.  She filed it.  Lo and behold …. she has a hearing date set for the end of June.  We are shocked at how quickly this is taking place.  

Our test case will be denied at the hearing.  There is no doubt about that.  A Decision Review Officer does not have the power to grant this request.  “Why?”, you ask.  I’ll let Jim Strickland answer that for you.  The following is from an email he wrote to me recently about this test case.

“The DRO will continue to deny no matter what she does. A DRO will not come close to having the authority to approve the benefits when the law is so very clear. Decisions at the Regional Office level are
administrative and have little force of law behind them.

Remember…when the rules were written they came from a legislative body..Congress writes law, law is turned into rules and regulations. Rules and regs can be modified by the Secretary within the scope of powers granted to him but there are many things the Secretary does not have any authority to change. When the law is so specific as to describe marriage as a union between a man and a woman, the law can only be changed one way…legislatively.

So…the DRO hearing is necessary for the record. This is how courageous people make positive change. It’s never simple or easy so not many have the grit to step up and do it.”

Having read that I’m sure you’re asking yourself, “If they can’t approve it, why go through it?”  The answer is simple.  You have to start somewhere.  If we aren’t applying for benefits for our same sex spouses, who will know that we want them?   We wanted the right to marry.  We’ve been fighting for that and we’re making progress.  My wife and I are living proof.  We wanted Don’t Ask Don’t Tell to be repealed.  All we are waiting for now is for it to be certified.  We fought for DADT and soon it will be a thing of the past.  We’re fighting for the repeal of DOMA.  We’re fighting for Equal Rights.  That’s all I’m asking for here.  A fight for Equal Rights for me and my wife.  Don’t you want that for you and your wife/husband?

I challenge you, faithful readers.  If you are legally married to a same sex spouse, I challenge you.  I challenge you to have the courage to fill out VBA Form 21-686c, Declaration of Status of Dependents. I’ve provided you with the link to the form you need so you don’t have to go searching for it.  Next, I challenge you to have the courage to send it in to your VA Regional Office, certified mail with a return receipt of course, and wait for your denial.  Once your denial comes back, email me at and I will provide you with a sample letter of the NOD that I sent in when my request was denied.  

There really is power in numbers my friends.  I’m asking you to help me with this fight.  It won’t end tomorrow or the next day or the day after that.  This is going to take a long, long time.  I expect it to go on for many years, much like the battle for DADT or even (gasp!) DOMA.  I ask you to join but I also ask you to have patience.  I ask you to spread the word about this project.  If you are still reading this blog, I ask that you share it with your friends.  If you know any gay and lesbian, service connected, legally married, disabled Veterans, please recruit them for this cause.  We need as many couples as we can to join this fight.  This is an important civil rights fight.  This is no joke, my friends.  This is serious business.

If you have further comments or questions, feel free to comment here or email me at WendiG@VAWatchdogToday.Org.  I’ll get back to you as quickly as I can.  

Until the next time …..

Musing from my friend, Leo D

The following post was written by my friend, Leo D.  Leo is a moderator with me at  He’s a Veteran and long time Veterans Advocate.  If you have an appeal and you’re looking for a good man to represent you, Leo D., may just be your man.  He is not affiliated with any service organization which is just one of the reasons I like him so much.  The bottom line is that Leo is just a nice guy.  If you have basic questions about your VA benefits or claims questions, feel free to contact him at Straight Talk.  If you are looking for a representative for claims, contact him at his email address.  Leo is bright, knowledgeable and very thorough.  He will only take on a case if he truly believes he can help you.  It’s nice to come across someone with integrity who works hard for you.
Two days ago I opened up my email box to find the following from Leo.  I emailed him back to ask if it was a forward or something he’d written.  It was a Leo original and with his permission I am reposting it here.  Leo said,

Every Memorial Day, or Veteran’s Day, or sometimes both, I “wax nostalgic” (for lack of a better term) about what veterans mean to America.  More often than not now I end up back at the state of veterans affairs and the lack of Congressional understanding of the kind of effect their actions and inaction’s have on veterans.

So now, for your enjoyment, I present to you, my friend, Leo.  

Congress has not been especially concerned about veterans, despite the fact that they have approved two wars in two different countries.  They willingly spend tons of money to support these wars and yet seem blissfully unaware when it comes time to assure that veterans of these and other wars receive timely disability decisions and quality medical care.
The number of veterans serving in Congress has steadily decreased in the past 5 decades.  This is pointed out in the November/December issue of the VFW magazine.
According to the magazine, “only 23% of members of Congress are veterans, and that includes National Guard and Reserve veterans.”  The article states further, “Only two vets are in the present Administrations’s Cabinet – the fewest since Herbert Hoover.”
Now comes the statistic that most glaringly stands out.  “In comparison, during the 1970s, 74% of those holding a seat in Congress had served in the military.”
Casual readers might conclude from this short article that veterans no longer care enough or are interested enough to serve in Congress but that ignores what has happened in the arena of military service between 1970 and today. 
What is the biggest difference between now and then?  In the 1970s, there was a military draft.  Every young man, unless exempted for justifiable reasons, faced being drafted into the military to serve our country.  Consequently, it was difficult to find a person who had NOT served in the military.
Today, it is difficult to find a person who HAS served in the military.
Veterans better than anyone understand that life in the military is sometimes harsh, sometimes mundane, often very dangerous, and as often as not life changing.  Veterans also understand that they are – whether willingly or under conscription – giving up a very important part of their lives to serve our country.
Combat veterans, in my humble opinion, are the only ones who truly understand what it is like to fight, to shoot at and kill, to be shot at and wounded or killed, or to survive that experience.  For many, the survival is as difficult as the fight or the wound.
With more than a million veteran claims in backlog, with claims taking sometimes more than a year to receive a first decision on claims, and many years to receive a decision on appeals, Congress is disconnected and that disconnection is disenfranchising veterans from American society.
Approximately one-fifth of the entire population of homeless people are veterans yet only 8 % of the general population are veterans.  Of adult homeless, about one-third are veterans.  VA’s own estimates are that 107,000 veterans are homeless on any given night. (
It is not difficult to imagine that at least some of these homeless veterans are homeless because they cannot work, suffer from physical or mental illnesses interfering with their ability to work, and are waiting for a decision on a disability claim with the VA.  Even a denial of a claim would be a blessing to these veterans because they could then move on with the process.
Veterans, as a group, are not vocally challenging an uneducated and inexperienced Congress on these issues.  A review of many, many candidates running for election or reelection this campaign season demonstrate that few have any mention in their campaign platforms of assisting veterans – or righting these wrongs.
Congress has the power to send young men and women into combat and they control the purse strings of the United States Government.  We need to, and have needed to for a very long time, challenge Congress to remember these young men and women when they come back home.  We are the only group in American society that know military service is a life altering experience.  Otherwise, those who never served will never know.
Write a letter to your Congressman or Congresswoman, and to both of your Senators.  Do it routinely for as long as they do not visibly commit to change these issues so adversely affecting those who serve (in many instances so that their children do not have to serve).  Those of us who are still left from the last war in which young people were drafted need to do this to help the current generation of veterans because simply put, we outnumber them.  Our numbers are extremely important to them and we can not only give them their voice but teach them how to use that voice.
The alternative is to watch more and more veterans suffer because our Congress will not step up to the plate and take care of those they send into combat.
Leo D.

Presumptive Status for Ft McClellan Veterans — NOT

If you’re a Veteran of Fort McClellan, Alabama,  former home of the Women’s Army Corps, you’re probably aware of a recent blog claiming “presumptive status” for Fort McClellan Veterans.  If you haven’t read that blog, you need to.  Before I go any further, you must take the time to read the blog so that you know what I’m talking about.  Go to this link to read the blog.  Come back here when you’re finished.
I’m very upset by this blog.  In my opinion it’s giving a lot of Veterans false hope all because the author doesn’t understand the term “presumptive status”.  I’ve had numerous Ft McClellan Vets email me, asking me to get involved in this and I’ve refused because this is just downright wrong.  No one can prove this to me.  As my friend Jim Strickland said to me, just because he got service connected for colitis which he developed in Germany, doesn’t mean that Germany should be added to the presumptive list for a diagnosis of Colitis … or something like that.   I was at Ft McClellan.  Should I be service connected because I have Hashimoto’s Thyroiditis, Fibromyalgia and a host of other autoimmune disorders?  That’s what these folks are saying … the ones who are promoting the Ft McClellan connection. Errr… Presumptive ….  I say …. BS.  It’s the luck of the draw and until someone can prove it to me in writing, I’m not filing a claim nor will I jump on this bandwagon.
Okay, now that you’ve read her blog, time to read mine and hear what I have to say.  First and foremost …. THERE IS NO PRESUMPTIVE STATUS FOR FT McCLELLAN VETERANS.  If you read her blog all the way to the end, you saw my comment asking for proof.  I never did get a satisfactory answer.  So, I did what I do in circumstances like these.  I turned to my friend Jim Strickland.  Here is what Jim had to say about this issue:

‘There is no such thing as any presumption of
exposure or cause and effect for chemicals and disabling conditions
associated with service at Ft. McClellan. Mr. Strickland goes on to
say, ‘The rumors of such presumption by VA are false and malicious and
cause veterans a great deal of anxiety. Any veteran who served at
McClellan who feels that he or she was harmed by any chemical exposure
may file for disability compensation benefits. Just as with any other
filing, the veteran must then prove the exposure as well as the degree
of disability. Nothing is presumed by VA in these cases.’

Folks, there is NO FEDERAL REGISTER ANNOUNCEMENT to back up the authors’ statement that this is a “presumptive status”.  What does a real Federal Register Announcement look like?  I just happen to have one of those handy.  It’s the presumptive status for the three AO diseases currently being fought for:

[Federal Register: March 25, 2010 (Volume 75, Number 57)]
[Proposed Rules]
[Page 14391-14401]
From the Federal Register Online via GPO Access []




38 CFR Part 3

RIN 2900-AN54

Diseases Associated With Exposure to Certain Herbicide Agents
(Hairy Cell Leukemia and Other Chronic B Cell Leukemias, Parkinson’s
Disease and Ischemic Heart Disease)

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

—————————— —————————————–

SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
its adjudication regulations concerning presumptive service connection
for certain diseases based upon the most recent National Academy of
Sciences (NAS) Institute of Medicine committee report, Veterans and
Agent Orange: Update 2008 (Update 2008). This proposed amendment is
necessary to implement a decision of the Secretary of Veterans Affairs
that there is a positive association between exposure to herbicides and
the subsequent development of hairy cell leukemia and other chronic B-
cell leukemias, Parkinson’s disease, and ischemic heart disease. The
intended effect of this proposed amendment is to establish presumptive
service connection for these diseases based on herbicide exposure.

DATES: Comments must be received by VA on or before April 26, 2010.

ADDRESSES: Written comments may be submitted through http://
; by mail or hand-delivery to Director, Regulations
Management (02REG), Department of Veterans Affairs, 810 Vermont Ave.,
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026.
(This is not a toll free number.) Comments should indicate that they
are submitted in response to “RIN 2900-
AN54[m x dash]Diseases Associated With Exposure to Certain
Herbicide Agents (Hairy Cell Leukemia and other Chronic B Cell
Leukemias, Parkinson’s Disease and Ischemic Heart Disease).” Copies of
comments received will be available for public inspection in the Office
of Regulation Policy and Management, Room 1063B, between the hours of 8
a.m. and 4:30 p.m., Monday through Friday (except holidays). Please
call (202) 461-4902 for an appointment. (This is not a toll free
number.) In addition, during the comment period, comments may be viewed
online through the Federal Docket Management System at http://

FOR FURTHER INFORMATION CONTACT: Gerald Johnson, Regulations Staff
(211D), Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420, (202) 461-9727 (This is not a toll-free

SUPPLEMENTARY INFORMATION: Section 3 of the Agent Orange Act of 1991,
Public Law 102-4, 105 Stat. 11, directed the Secretary to seek to enter
into an agreement with NAS to review and summarize the scientific
evidence concerning the association between exposure to herbicides used
in support of military operations in the Republic of Vietnam during the
Vietnam era and each disease suspected to be associated with such
exposure. Congress mandated that NAS determine, to the extent possible:
(1) Whether there is a statistical association between the suspect
diseases and herbicide exposure, taking into account the strength of
the scientific evidence and the appropriateness of the methods used to
detect the association; (2) the increased risk of disease among
individuals exposed to herbicides during service in the Republic of
Vietnam during the Vietnam era; and (3) whether there is a plausible
biological mechanism or other evidence of a causal relationship between
herbicide exposure and the suspect disease. Section 3 of Public Law
102-4 also required that NAS submit reports on its activities every 2
years (as measured from the date of the first report) for a 10-year
period. The Veterans Education and Benefits Expansion Act of 2001
(Benefits Expansion Act), Public Law 107-103, Sec.  201(d), extended
through October 1, 2014, the period for submission of NAS reports.
Section 1116(b) of title 38, United States Code, as enacted by the
Agent Orange Act of 1991, Public Law 102-4, provides that whenever the
Secretary determines, based on sound medical and scientific evidence,
that a positive association (i.e., the credible evidence for the
association is equal to or outweighs the credible evidence against the
association) exists between exposure of humans to an herbicide agent
(i.e., a chemical in an herbicide used in support of the United States
and allied military operations in the Republic of Vietnam during the
Vietnam era) and a disease, the Secretary will publish regulations
establishing presumptive service connection for that disease.
   Section 2 of the Agent Orange Act of 1991, Public Law 102-4,
provided that the congressional mandate that the Secretary establish
presumptions of service connection under 38 U.S.C. 1116(b) would expire
10 years after the first day of the fiscal year in which the NAS
transmitted its first report to VA. The first NAS report was
transmitted to VA in July 1993, during the fiscal year that began on
October 1, 1992. Accordingly, under the Agent Orange Act of 1991,
Public Law 102-4, the mandate for VA to issue regulatory presumptions
as specified in section 1116(b) expired on September 30, 2002. In
December 2001, however, Congress enacted the Benefits Expansion Act,
section 201(d) of which extended the mandate under section 1116(b)
through September 30, 2015. Pursuant to the Benefits Expansion Act,
Public Law 107-103, VA must issue new regulations between October 1,
2002, and September 30, 2015, establishing additional presumptions of
service connection for diseases that the Secretary finds to be
associated with exposure to an herbicide agent.
   The Secretary of Veterans Affairs has determined that the available
scientific and medical evidence discussed in the “Veterans and Agent
Orange Update 2008,” authored by the Committee to Review the Health
Effects in Vietnam Veterans of Exposure to Herbicides, Institute of
Medicine (IOM) of the NAS, and other information available to the
Secretary, are sufficient to establish that

[[Page 14392]]

a positive association exists between exposure of humans to a herbicide
agent and the occurrence in humans of Hairy Cell Leukemia (HCL) and
other Chronic B-Cell Leukemias, Parkinson’s disease (PD) and Ischemic
Heart Disease (IHD). Consistent with that determination and as required
by 38 U.S.C. 1116(b) and the Agent Orange Act of 1991, we propose to
amend VA’s adjudication regulations (38 CFR part 3) by revising section
3.309(e) to add these diseases to the diseases subject to presumptive
service connection on the basis of herbicide exposure.

Hairy Cell Leukemia and Other Chronic B-Cell Leukemias
   In delivering the charge to the IOM Committee, the Secretary
specifically asked the IOM Committee, whether the occurrence of HCL
should be regarded as associated with exposure to the chemical
compounds in the herbicides used by the military in Vietnam. HCL is a
chronic B-cell lymphoproliferative disorder. Because it is so rare, the
Committee reported that HCL would never be studied epidemiologically on
its own, and there are no studies of animals that describe HCL in
animals exposed to the compounds of interest. The IOM Committee stated
that HCL has been classified as a rare form of CLL and that both derive
from B-cell neoplasms. Based on its biology, the Committee saw no
reason to exclude HCL or any other chronic lymphoproliferative disease
of B-cell origin from the overarching broader groupings for which
positive epidemiologic evidence is available. Because HCL is related to
chronic lymphocytic leukemia (CLL) (a disease that is already included
on VA’s regulatory list of diseases that qualify for presumptive
service connection based upon herbicide exposure), the Committee
explicitly included HCL and other chronic B-cell leukemias in its
discussions and conclusions regarding CLL. The Committee explicitly re-
categorized HCL and other chronic B-cell leukemias along with CLL in
Update 2008, which the Committee lists as a category clarification
since Update 2006. Based on its review of the available scientific and
medical literature, the Committee concluded that there is sufficient
evidence of an association between exposure to herbicide agents and
CLL, including HCL and all other chronic B-cell hematoproliferative
   The Secretary has determined that the available scientific and
medical evidence presented in Update 2008 and other information
available to the Secretary are sufficient to establish a new
presumption of service connection for HCL and other chronic B-cell
leukemias in veterans who were exposed to herbicides used in the
Republic of Vietnam. The Secretary concludes that the credible evidence
for an association between exposure to an herbicide agent and the
occurrence of HCL and other chronic B-cell leukemias in humans
outweighs the credible evidence against such an association.
Accordingly, the Secretary has determined that a presumption of service
connection for HCL and other chronic B-cell leukemias is warranted
pursuant to 38 U.S.C. 1116(b). Because these leukemias are related to
CLL and the evidence supporting an association is the same for these
leukemias, we propose to refer to them as a group in VA’s regulatory
list in 38 CFR 3.309(e) of diseases associated with herbicide exposure.
Specifically, we propose to establish a presumption of service
connection for “All chronic B-cell leukemias (including, but not
limited to, hairy-cell leukemia and chronic lymphocytic leukemia).”

Parkinson’s Disease
   In Update 2008, the Committee placed Parkinson’s disease (PD) in
the category “limited or suggestive evidence of an association.” This
was a category change from IOM’s prior report, Veterans and Agent
Orange: Update 2006 (Update 2006). For Update 2008, the Committee
selectively reevaluated all past epidemiologic studies that
specifically assessed herbicide exposures and reviewed in detail those
studies published since Update 2006. The older studies, taken as a
group, suggest that there is a relationship between pesticide exposure
and risk of PD, but generally did not contain sufficient exposure data
to show an association specifically to the herbicides of interest.
However, several studies published since Update 2006 now suggest a
specific relationship between exposure to the herbicides of interest
and PD. Three of the four studies published since Update 2006 showed a
statistically significant odds ratio for development of PD and exposure
to herbicides, most notably to 2, 4-D and 2, 4, 5-T and other
chlorophenoxy herbicides. Accordingly, the recent studies are
consistent with the body of epidemiologic and toxicologic data
suggesting a relationship between exposure to pesticides and PD, but
provide more specific evidence of an association between PD and the
herbicides used in the Republic of Vietnam. The Committee noted that,
to date, no studies have been done on Vietnam veterans to determine if
an increased relative risk of developing PD exists for this cohort, and
the Committee recommended that such studies be done. Based upon the
available scientific and medical evidence, the Committee placed PD in
the category of “limited or suggestive evidence of an association.”
   The Secretary requested expert opinion from the Parkinson’s and
Associated Diseases Research and Education Clinical Center (PADRECC)
network, a network of VA medical professionals designed to focus on
care, research, and education relating to PD. These experts believe
that there is an increasing body of evidence indicating exposure to
herbicides increases the risk of developing PD and developing it at an
earlier age. These experts also identified a September 2008 report by
Tanner, et al., in Arch Neurol, 2008; 66(9):1106-1113, which found that
the risk of Parkinsonism was increased by exposure to a variety of
chemicals, including dioxin-like chemicals of interest in Update 2008.
The Tanner study was published after Update 2008 was completed but
provides additional support for an association between herbicide
exposure and PD.
   The Secretary has determined that the available scientific and
medical evidence presented in Update 2008 and other information
available to the Secretary are sufficient to establish a new
presumption of service connection for PD in veterans exposed to
herbicides, as the credible evidence for an association between
exposure to an herbicide agent and the occurrence of PD in humans
outweighs the credible evidence against such an association.

Ischemic Heart Disease
   The previous Committee responsible for Update 2006 was divided as
to whether the evidence related to IHD and exposure to the compounds of
interest was sufficient to advance IHD from the category of
“inadequate or insufficient evidence to determine whether an
association exists” to the category of “limited or suggestive
evidence of an association.” Due to the lack of consensus, the 2006
Committee left IHD in the “inadequate or insufficient evidence”
   For Update 2008, the Committee revisited the entire body of
evidence relating herbicide exposure to heart disease risk and placed
more emphasis on studies that had been rigorously conducted. These
studies focused specifically on the chemicals of concern, compared
Vietnam veterans to non-deployed Vietnam-era veterans, and had
individual and reliable measures of exposure that permitted the
evaluation of dose-response, to promote the

[[Page 14393]]

interpretation of epidemiologic data. The Committee identified nine
studies (including two new studies) that were deemed most informative.
Of these nine studies, five showed strong statistically significant
associations between herbicide exposure and ischemic heart disease. The
studies considered by the Committee also included data from Agent
Orange sprayers, occupationally exposed populations, and
environmentally exposed populations that were either prevalence surveys
or mortality follow-up studies. In situations where several alternative
analyses were presented, the results with the greatest specificity in
the dose-response relationship were given more weight.
   The Committee stated that evidence of a dose-response relationship
is especially helpful in interpretation of the epidemiological data,
and the Committee was impressed by the fact that those studies with the
best dose information all showed evidence for risk elevations in the
highest exposure categories. The Committee noted that some of the study
findings could be limited by the effect of selection bias or possible
confounding factors. However, the Committee noted that one of the new
studies showed an association that persisted after statistical
adjustments for a large number of potential confounding risk factors,
which is not generally available in studies of other dioxin exposed
populations. The Committee also indicated that the major potential
confounders were likely inadequate to explain away the high relative
risks and dose-response relationships seen in the data for IHD.
Further, the Committee noted that toxicologic data supports the
biologic plausibility of an association between exposure to the
compounds of interest and IHD.
   After considering the relative strengths and weaknesses of the
evidence, and emphasizing in particular the numerous studies showing a
strong dose-response relationship and good toxicology data regarding
IHD, the Committee concluded that there was adequate information to
advance IHD from the “inadequate or insufficient evidence” category
to the “limited or suggestive evidence” category.
   The Secretary has determined that the available scientific and
medical evidence presented in Update 2008 and other information
available to the Secretary are sufficient to establish a new
presumption of service connection for IHD in veterans exposed to
herbicides. After considering all of the evidence, the Secretary has
concluded that the credible evidence for an association between
exposure to an herbicide agent and the occurrence of IHD in humans
outweighs the credible evidence against such an association.
Accordingly, the Secretary has determined that a presumption of service
connection for IHD is warranted pursuant to 38 U.S.C. 1116(b).
   According to Harrison’s Principles of Internal Medicine (Harrison’s
Online, Chapter 237, Ischemic Heart Disease, 2008), IHD is a condition
in which there is an inadequate supply of blood and oxygen to a portion
of the myocardium; it typically occurs when there is an imbalance
between myocardial oxygen supply and demand. Therefore, for purposes of
this regulation, the term “IHD” includes, but is not limited to,
acute, subacute, and old myocardial infarction; atherosclerotic
cardiovascular disease including coronary artery disease (including
coronary spasm) and coronary bypass surgery; and stable, unstable and
Prinzmetal’s angina. Since the term refers only to heart disease, it
does not include hypertension or peripheral manifestations of
arteriosclerosis such as peripheral vascular disease or stroke.

Impact of the Nehmer Class Action Litigation
   Nehmer v. U.S. Department of Veterans Affairs, Civ. Action No. 86-
6160 (N.D. Cal.) (TEH) (Nehmer) is a long-standing class action
(originated in 1986) on behalf of all veterans and survivors of
veterans eligible to claim VA disability compensation benefits based on
exposure to herbicides in the Republic of Vietnam during the Vietnam
era. In 1989, the U.S. District Court for the Northern District of
California invalidated a 1985 VA regulation governing claims based on
herbicide exposure. In 1991, the parties entered into a stipulation to
provide for re-adjudication of class members’ claims and payment of
retroactive benefits, if warranted. Since that time, the district court
has issued a series of orders interpreting the 1991 stipulation to
impose ongoing duties on VA. Consistent with those orders, whenever VA
identifies a new disease that is associated with herbicide exposure and
adds a new disease to its regulatory list, it must identify and
readjudicate any previously-filed claims by the class members involving
that disease and, if warranted under VA regulations governing Nehmer
awards, must pay benefits retroactive to the date the prior claim was
received by VA to the veteran or, if the veteran is deceased, to the
veteran’s surviving spouse, child, or parents. In July 2007, the U.S.
Court of Appeals for the Ninth Circuit rejected VA’s position that its
duties under the Nehmer stipulation have ended and held that VA’s
duties extend through at least 2015. Nehmer v. U.S. Dept. of Veterans
Affairs, 494 F.3d 846, 862-63 (9th Cir. 2007). Accordingly, the
requirements of the Nehmer court orders for review of previously denied
claims and for retroactive payment will apply to the proposed new
presumptions, to the extent consistent with the court orders and 38 CFR
3.816, the VA regulation implementing those orders. The impact of these
procedures is discussed in the Regulatory Impact Analysis below.

Paperwork Reduction Act
   The collection of information under the Paperwork Reduction Act (44
U.S.C. 3501-3521) that is contained in this document is authorized
under OMB Control No. 2900-0001.

Executive Order 12866
   Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a regulatory action as a “significant regulatory
action,” requiring review by the Office of Management and Budget
(OMB), unless OMB waives such review, if it is a regulatory action that
is likely to result in a rule that may: (1) Have an annual effect on
the economy of $100 million or more or adversely affect in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
Tribal governments or communities; (2) create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency; (3) materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raise novel legal or policy issues arising
out of legal mandates, the President’s priorities, or the principles
set forth in the Executive Order.
   VA has examined the economic, interagency, budgetary, legal, and
policy implications of this rulemaking and determined that it is an
economically significant rule under this Executive Order, because it
will have an annual effect on the economy of $100 million or more. A
Regulatory Impact Analysis (RIA) must be prepared for major rules with
economically significant effects ($100 million or more in any 1 year).

[[Page 14394]]

Comment Period
   Although under the rulemaking guidelines in Executive Order 12866
VA ordinarily provides a 60 day comment period, the Secretary has
determined that there is good cause to limit the public comment period
on this proposed rule to 30 days. This proposed rule is necessary to
implement section 1116(c) of title 38 as enacted by the Agent Orange
Act of 1991, Public Law 102-4, which sets forth time limits for
rulemaking when the Secretary determines that a new presumption of
service connection for veterans exposed to herbicides used in the
Republic of Vietnam is warranted. Those time limits include the
requirement for issuance of final regulations “[n]ot later than 90
days after the date on which the Secretary issues proposed
regulations.” 38 U.S.C. 1116(c)(2). The statute thus requires VA to
act expeditiously to issue final rules, which will allow VA to begin
providing benefits to veterans and their families based on this rule. A
30-day notice and comment period is necessary both to facilitate
expeditious issuance of final regulations and to promote rapid action
on affected benefits claims.

Regulatory Impact Analysis
   VA followed OMB Circular A-4 to the extent feasible in this
regulatory analysis. The circular first calls for a discussion of the
Statement of Need for the regulation. As discussed in the preamble, the
Agent Orange Act of 1991, as codified at 38 U.S.C. 1116 requires the
Secretary of Veterans Affairs to publish regulations establishing a
presumption of service connection for those diseases determined to have
a positive association with herbicide exposure in humans.
   Statement of Need: On October 13th, 2009, the Secretary of Veterans
Affairs, Eric K. Shinseki, announced his intent to establish
presumptions of service connection for PD, IHD, and hairy cell/B cell
leukemia for veterans who were exposed to herbicides used in the
Republic of Vietnam during the Vietnam era.
   Summary of the Legal Basis: This rulemaking is necessary because
the Agent Orange Act of 1991 requires the Secretary to promulgate
regulations establishing a presumption of service connection once he
finds a positive association between exposure to herbicides used in the
Republic of Vietnam during the Vietnam era and the subsequent
development of any particular disease.
   Alternatives: There are no feasible alternatives to this
rulemaking, since the Agent Orange Act of 1991 requires the Secretary
to initiate rulemaking once the Secretary finds a positive association
between a disease and herbicide exposure in Vietnam during the Vietnam
   Risks: The rule implements statutorily required provisions to
expand veteran benefits. No risk to the public exists.
   Anticipated Costs and Benefits: We estimate the total cost for this
rulemaking to be $13.6 billion during the first year (FY2010), $25.3
billion for 5 years, and $42.2 billion over 10 years. These amounts
include benefits costs and government operating expenses for both
Veterans Benefits Administration (VBA) and Veterans Health
Administration (VHA). A detailed cost analysis for each Administration
is provided below.

Veterans Benefits Administration (VBA) Costs
   We estimate VBA’s total cost to be $13.4 billion during the first
year (FY2010), $24.3 billion for five years, and $39.7 billion over ten

—————————— ———————————————————————————-
                   Benefits Costs ($000s)                     1st
year (FY10)       5 year          10 year
Retroactive benefits costs*……………………
12,286,048     **12,286,048     **12,286,048
Recurring costs from Retroactive Processing………………
     0        4,388,773       10,300,132
Increased benefits costs for Veterans currently on the rolls.
415,927        2,188,784        4,864,755
675,214        4,645,609       11,330,294
                    Administrative Costs

FTE costs……………………. ………………………
***4,554          797,473          894,614
New office space (minor construction)……………..
……………           12,835           12,835
IT equipment…………………
……………           30,232           32,805

—————————— ——————–
13,381,743       24,349,746       39,721,476
* Retroactive benefits costs are paid in the first year only.
** Inserted for cumulative totals.
*** FTE costs in FY 2010 represent a level of effort of current FTE
that will be used to work claims received in
 FY2010. New hiring will begin in 2011.
   Of the total VBA benefits costs identified for FY 2010, $12.3
billion accounts for retroactive benefit payments. Ten-year total costs
for ischemic heart disease is $31.9 billion, Parkinson’s disease
accounts for $3.5 billion, and hairy cell and B cell leukemia is the
remaining $3.4 billion.
                                  Total Obligations by Presumptive Condition
                 ($000’s)                        payments         1st
year          5 year          10 year
Ischemic Heart disease………………….       $9,877,787
$900,470       $9,307,716      $21,978,301
…………..          692,204
166,300        1,189,143        2,796,852
Hairy Cell/B cell Leukemia………………        1,716,057
 24,372          726,306        1,720,028

—————————— ————————————-
……….       12,286,048
1,091,142       11,223,165       26,495,181

—————————— ————————————-
……       12,286,048
*13,377,190      *23,509,213      *38,781,229
* Includes Retroactive Payments.

[[Page 14395]]

   The cost estimate for the three presumptive conditions considers
retroactive benefit payments for Veterans and survivors, increases for
Veterans currently on the compensation rolls, and potential accessions
for Veterans and survivors. There are numerous assumptions made for the
purposes of this cost estimate. At a minimum, four of those could vary
considerably and the result could be dramatic increases or decreases to
the mandatory benefit numbers provided.
   The estimate assumes:
    A prevalence rate of 5.6% for IHD based upon information
extracted from the CDC’s Web site. Even slight variations to this
number will result in significant changes.
    An 80% application rate in most instances. We have prior
experiences that have been as low as in the 70% range and as high as in
the 90% range.
    New enrollees will, on average, be determined to have
about a 60% degree of disability for IHD. This would mirror the degree
of disability for the current Vietnam Veteran population on VA’s rolls.
However, most of the individuals have had the benefit of VHA health
care. We cannot be certain that the new population of Vietnam Veterans
coming into the system will mirror that average.
    Only the benefit costs of the presumptive conditions
listed. Secondary conditions, particularly to IHD, may manifest
themselves and result in even higher degrees of disability ultimately
being granted.

Retroactive Veteran and Survivor Payments

Vietnam Veterans Previously Denied
   In 2010, approximately, 86,069 Vietnam beneficiaries (as of August
2009 provided by PA&I) will be eligible to receive retroactive payments
for the new presumptive conditions under the provisions of 38 CFR 3.816
(Nehmer). Of this total, 69,957 are living Vietnam Veterans, of which
62,206 were denied for IHD, 5,441 were denied for hairy cell or B cell
leukemia, and the remaining 2,310 for Parkinson’s disease. Of those
previously denied service connection for the three new presumptive
conditions, 52,918, or nearly 76 percent, are currently on the rolls
for other service-connected disabilities.
   Compensation and Pension (C&P) Service assumes the average degree
of disability for both Parkinson’s disease and hairy cell/B cell
leukemia will be 100 percent, and IHD will be 60 percent. Based on the
Combined Rating Table, we assume Veterans currently not on the rolls
would access at the percentages identified above. For those Veterans
currently on the rolls for other service-connected disabilities, we
assume they would receive a retroactive award based on the higher
combined disability rating. For example, a Veteran who is on the rolls
and rated 10 percent disabled who establishes presumptive service
connection for Parkinson’s disease will result in a higher combined
rating of 100 percent and receive a retroactive award for the
difference. For purposes of this cost estimate, we assumed that
Veterans previously denied service connection for one of the three new
conditions who are currently receiving benefits were awarded benefits
for another disability concurrently.
   Based on the Nehmer case review in conjunction with the August 2006
Haas Court of Appeals for Veterans Claims (CAVC) decision, C&P Service
identified an average retroactive payment of 11.38 years for Veterans
whose claims were previously denied. Obligations for retroactive
payments for Veterans not currently on the rolls were calculated by
applying the caseload to the benefit payments by degree of disability,
multiplied by the average number of years for Veterans’ claims. For
those who are on the rolls, based on a distribution by degree of
disability, obligations were calculated by applying the increased
combined degree of disability for those currently rated zero to ninety
percent. Of the total 52,918 currently on the rolls, 8,348 are
currently rated 100 percent disabled and, therefore, would not likely
receive a retroactive award payment.
   Of the total 86,069 Vietnam beneficiaries, a total of 69,957 are
living Vietnam Veterans. Of this total, 52,918 are currently on the
rolls for other service-connected disabilities and 17,039 are off the
compensation rolls (52,918 + 17,039 = 69,957). Of the 52,918 Vietnam
Veterans who are on the rolls, 8,348 are currently rated 100 percent
disabled and would not likely receive a retroactive payment (17,039-
8,348 = 8,691 + 52,918 = 61,609).
       Veteran Caseload and Obligations for Retroactive Benefits
            Presumptive  conditions               Caseload    payments
Ischemic Heart Disease…………………..
…     54,926   $7,837,369
Parkinson’s Disease…………………..
……      2,042      568,920
Hairy Cell/B Cell Leukemia………………….      4,641    1,209,586
…………..     61,609    9,615,875

Vietnam Veteran Survivors Previously Denied
   Survivor caseload was determined based on Veteran terminations.
Based on data obtained from PA&I, of the 86,069 previous denials,
16,112 of the Vietnam Veterans are deceased. Of the deceased
population, 13,420 were Veterans previously denied claims for IHD,
2,165 were denied for hairy cell or B cell leukemia, and 527 were
denied for Parkinson’s disease. We assumed that 90 percent of the
survivor caseload will be new to the rolls and the remaining ten
percent are currently in receipt of survivor benefits.
   The 2001 National Survey of Veterans found that approximately 75
percent of Veterans are married. With the marriage rate applied, we
estimate there are 12,084 survivors in 2010. Based on the Nehmer case
review in conjunction with the August 2006 Haas Court of Appeals for
Veterans Claims (CAVC) decision, C&P Service identified an average
retroactive payment of 9.62 years for Veterans’ survivors. Under
Nehmer, in addition to survivor dependency and indemnity compensation
(DIC) benefits, survivors are also entitled to the Veteran’s
retroactive benefit payment to the date of the Veteran’s death.
Obligations for survivors who were denied claims were determined by
applying the survivor caseload for each presumptive condition to the
average survivor compensation benefit payment from the 2010 President’s
Budget and the average number of years for the survivor’s claim (9.62
years). Veteran benefit payments to which survivors are entitled were
calculated similarly with the exception of applying the survivor
caseload for each presumptive condition to the difference between the
average Veteran claim of 11.38 years and the average survivor claim of
9.62 years. The estimated remaining 4,028 deceased Veterans who were
not married would have their retroactive benefit payment applied to
their estate.
   Of the 86,069 Vietnam beneficiaries, a total of 16,112 are Vietnam
Veterans that are deceased. Of this total, an estimated 12,084 were
married and an estimated 4,028 were not married (12,084 + 4,028 =

[[Page 14396]]

      Survivor Caseload and Obligations for Retroactive Benefits
            Presumptive conditions                Caseload    payments
Ischemic Heart Disease…………………..
…     13,420   $2,040,418
Parkinson’s Disease…………………..
……        527      123,284
Hairy Cell/B Cell Leukemia………………….      2,165      506,470
…………….     16,112    2,670,173

Recurring Veteran and Survivor Payments
   Retroactive caseload obligations for both Veterans and survivors
become a recurring cost and are reflected in out-year estimates.
Mortality rates are applied in the out years to determine caseload.

Recurring Veteran and Survivor Caseload and Obligations From Retroactive
                                       Veteran    Survivor  Obligations
                 FY                    caseload   caseload     ($000s)
…….        N/A        N/A          N/A
…….     61,365     10,672    1,079,310
…….     61,243     10,570    1,084,209
…….     61,121     10,458    1,102,800
…….     61,000     10,336    1,122,454
…….     60,879     10,201    1,142,251
…….     60,758     10,052    1,162,167
…….     60,637      9,891    1,182,189
…….     60,517      9,716    1,202,298
…….     60,397      9,526    1,222,453
…  ………  ………   10,300,132

Vietnam Veterans (Reopened Claims)
   We expect Veterans who are currently on the compensation rolls and
have any of the three presumptive conditions to file a claim and
receive a higher combined disability rating beginning in 2010. We
anticipate that Veterans receiving compensation for other service-
connected conditions will continue to file claims over ten years. Total
costs are expected to be $415.9 million the first year and
approximately $4.9 billion over ten years.
   According to the Defense Manpower Data Center (DMDC), there are 2.6
million in-country Vietnam Veterans. With mortality applied, an
estimated 2.1 million will be alive in 2010. C&P Service assumes that
34 percent of this population are service connected for other
conditions and are already in receipt of compensation benefits. In
2010, we anticipate that 725,547 Vietnam Veterans will be receiving
compensation benefits. This number is further reduced by the number of
Veterans identified in the previous estimate for retroactive claims
(52,918). C&P Service assumes an average age of 63 for all Vietnam
Veterans. With prevalence and mortality rates applied, and an estimated
80 percent application rate and 100 percent grant rate, we calculate
that 32,606 Veterans currently on the rolls will have a presumptive
condition in 2010. Of this total, we anticipate 27,909 cases will
result in increased obligations. Of the 27,909 Veterans, 25,859 are
associated with IHD, 1,693 are associated with Parkinson’s disease, and
the remaining 357 are associated with hairy cell/B cell leukemia. In
future years, the estimated number of Veteran reopened claims decreases
to almost one thousand cases and continue at a decreasing rate. The
cumulative effect of additional cases with mortality rates applied is
shown in the chart below.
   The Vietnam Era caseload distribution by degree of disability
provided by C&P Service was used to further distribute the total
Vietnam Veterans who will have a presumptive condition in 2010 by
degree of disability for each of the three new presumptive conditions.
We assume 100 percent for the average degree of disability for both
Parkinson’s disease and hairy cell/B cell leukemia and 60 percent for
IHD. Based on the Combined Rating Table, Veterans that are on the rolls
for other service-connected conditions (with the exception of those
that are currently receiving compensation benefits for 100 percent
disability), would receive a higher combined disability rating if they
have any of the three new presumptive conditions.
   September average payments from the 2010 President’s Budget were
used to calculate obligations. These average payments are higher than
schedular rates due to adjustments for dependents, Special Monthly
Compensation, and Individual Unemployability. The difference in average
payments due to higher ratings was calculated, annualized, and applied
to the on-rolls caseload to determine increased obligations. Because
this particular Veteran population is currently in receipt of
compensation benefits, survivor caseload and obligations would not be
                   Reopened Caseload and Obligations
                                                  Veteran   Obligations
                      FY                          caseload     ($000s)
………………     27,909      415,927
………………     28,340      418,928
………………     29,051      431,726
………………     29,746      451,042
………………     30,425      471,161
………………     31,086      491,648
………………     31,746      512,767
………………     32,404      534,529
………………     33,061      556,958
………………     33,716      580,070
…………….  ………    4,864,755

Vietnam Veteran and Survivor Accessions
   We anticipate accessions for both Veterans and survivors beginning
in 2010 and continuing over ten years. Total costs are expected to be
$675.2 million in the first year and total just over $11.3 billion from
the cumulative effect of cases accessing the rolls each year.

[[Page 14397]]
   To identify the number of Veteran accessions in 2010, we applied
prevalence rates to the anticipated living Vietnam Veteran population
of 2,133,962, and reduced the population by those identified in the
previous estimates for retroactive and reopened claims. Based on an
expected application rate of 80 percent and a 100 percent grant rate,
28,934 accessions are expected. Of the 28,934 Veteran accessions,
25,505 are associated with IHD, 3,074 are associated with Parkinson’s
disease, and the remaining 355 are associated with hairy cell/B cell
leukemia. In the out years, anticipated Veteran accessions drop to
approximately 3,400 cases in 2011, and continue at a decreasing rate.
The cumulative effect of additional cases coupled with applying
mortality rates is shown in the chart below.
   To calculate obligations, the caseload was multiplied by the
annualized average payment. We assumed those accessing the rolls due to
IHD will be rated 60 percent disabled and those with either Parkinson’s
disease or hairy cell/B cell leukemia will be rated 100 percent
disabled. Average payments were based on the 2010 President’s Budget
with the Cost of Living Adjustments factored into the out years.
   The caseload for survivor compensation is associated with the
number of service-connected Veterans’ deaths. There are two groups to
consider for survivor accessions: Those survivors associated with
Veterans who never filed a claim and died prior to 2010; and survivors
associated with the mortality rate applied to the Veteran accessions
noted above.
   To calculate the survivor caseload associated with Veterans who
never filed a claim and died prior to 2010, general mortality rates
were applied to the estimated total Vietnam Veteran population (2.6
million). We estimate that almost 500,000 Vietnam Veterans were
deceased by 2010. Prevalence rates for each condition were applied to
the total Veteran deaths to estimate the number of deaths due to each
condition. With the marriage rate and survivor mortality applied, we
anticipate 20,961 eligible spouses at the end of 2010. We assume that
half of this population will apply in 2010 and the remaining in 2011.
Obligations were calculated by applying average survivor compensation
payments to the caseload each year.
   The second group of survivors associated with Veteran accessions
was calculated by applying mortality rates for each of the presumptive
conditions to the estimated eligible Veteran population (28,934). In
2010, 57 Veteran deaths are anticipated as a result of one of the new
presumptive conditions. With the marriage rate applied and aging the
spouse population (and assuming spouses were the same age as Veterans),
we calculated 42 spouses at the end of 2010. Average survivor
compensation payments were applied to the spouse caseload to determine
total obligations.
     Veteran and Survivor Accessions Cumulative Caseload and Total
                                       Veteran    Survivor     Total
                 FY                    caseload   caseload  obligations
…….     28,934     10,416     $675,214
…….     32,270     20,265      882,974
…….     35,541     20,693      955,525
…….     38,744     20,487    1,028,467
…….     41,874     20,283    1,103,429
…….     44,928     20,081    1,179,725
…….     47,900     19,881    1,257,259
…….     50,787     19,682    1,335,922
…….     53,583     19,485    1,415,601
…….     56,285     19,290    1,496,178
…  ………  ………   11,330,294

Estimated Claims From Veterans Not Eligible
   Based on program history, we anticipate that we will also receive
claims from Veterans who will not be eligible for presumptive service
connection for the three new conditions.
   These claims will be received from two primary populations:
    Veterans with a presumptive disease who did not serve in
the Republic of Vietnam.
    Claims from Vietnam Veterans with hypertension who claim
“heart disease.”
   We applied the prevalence rate of IHD, Parkinson’s disease and
hairy cell/B cell leukemia to the estimated population of Veterans who
served in Southeast Asia during the Vietnam Era (45,304, 32, and 6
respectively), and assumed that 10 percent of that population will
apply for presumptive service connection.
   Review of data obtained from PA&I shows that 23 percent of Vietnam
Veterans who have been denied entitlement to service connection for
hypertension also have nonservice-connected heart disease. We applied
the prevalence rate of hypertension to the living Vietnam Veteran
population, and then subtracted 23 percent who are assumed to also have
IHD. We assumed that 10 percent of the remaining population would apply
for presumptive service connection to arrive at an estimated caseload
of 111,256.
   We then assumed that 25 percent of the ineligible population would
apply in 2010, 25 percent would apply in 2011, and the remaining
population would apply over the next 8 years. For purposes of claims
processing, anticipated claims are as follows. The chart below reflects
workload, which is not directly comparable to the preceding caseload
                                                 Total Claims
                                   Retroactive      Reopened
            Claims not
              FY                     claims          claims
Accessions       eligible      Total claims
..          86,069          32,606
  39,350          27,814         185,839
..  …………..           1,069
  13,806          27,814          42,689

[[Page 14398]]

2012…………………….. ..  …………..           1,051
   3,386           6,954          11,391
..  …………..           1,032
   3,329           6,954          11,314
..  …………..           1,011
   3,267           6,954          11,232
..  …………..             989
   3,201           6,954          11,143
..  …………..             989
   3,129           6,953          11,071
..  …………..             989
   3,053           6,953          10,995
..  …………..             989
   2,971           6,953          10,913
..  …………..             989
   2,885           6,953          10,827

VBA Administrative Costs
   Administrative costs, including minor construction and information
technology support are estimated to be $4.6 million during FY2010, $841
million for five years and $940 million over ten years.
   C&P Service, along with the Office of Field Operations, estimated
the FTE that would be required to process the anticipated claims
resulting from the new presumptive conditions using the following
   1. 185,839 additional claims in addition to the projected 1,146,508
receipts during FY2010. This includes:
    86,069 retroactive readjudications under Nehmer.
    89,354 new and reopened claims from veterans.
    10,416 new claims from survivors.
   2. The average number of days to complete all claims in FY2010 will
be 165.
   3. Priority will be given to those Agent Orange claims that fall in
the Nehmer class action.
   In FY2010, we will leverage the existing C&P workforce to process
as many of these new claims as possible, once the regulation is
approved, but especially the Nehmer cases. However, to fully
accommodate this additional claims volume with as little negative
impact as possible on the processing of other claims, we plan to add
1,772 claims processors to be brought on in the FY2011 budget and
timeframe. This approximate level of effort will be sustained through
2012 and into 2013 in order to process these claims without
significantly degrading the processing of the non-presumptive workload.
    Net administrative costs for payroll, training, additional
office space, supplies and equipment are estimated to be $4.6 million
in FY2010, $165 million in FY2011, $798 million over five years, and
$895 million over 10 years. Additional support costs for minor
construction are expected to be $12.8 million over the five and ten
year period. Information Technology (computers and support) are assumed
to require $30.2 million over five years and $32.8 million over ten

Veterans Health Administration (VHA) Costs
   We estimate VHA’s total cost to be $236 million during the first
year (FY2010), $976 million for five years, and $2.5 billion over ten
   FY2010 and FY2011 Summary:
    FY2010 new enrollee patients are expected to number 8,680.
    FY2011 additional new enrollees are expected to number
    FY2010 costs for C&P examinations are expected to be
    FY2011 costs for C&P examinations are expected to be $23M.
    FY2010 health care costs (inclusive of travel) are
expected to be $236M (using cost per patient of 13,500).
    FY2011 health care costs (inclusive of travel) are
expected to be $165M (using cost per patient of 14,100).
    Combined costs are as follows:
   [cir] FY2010: $236M.
   [cir] FY2011: $165M.

    30% of Veterans newly determined to be service-connected
will enroll and will use VA health care.
    Newly enrolled Veterans will be Priority Group 1 Veterans.
    The cost per patient is arrived at using the average cost
per Priority Group 1 patient aged between 45-64.
    Every VBA case will require a new exam.
    It is assumed that 100% of newly enrolled Veterans will
request mileage reimbursement. The average amount of mileage
reimbursement claims per Veteran is $511 (this amount reflects to the
FY2009 actual average amount).

Distribution of Disability Claims
   VBA has established estimates for claims workload for Veterans.
Figure 1 provides breakdown of disability claims.
   Overall, VBA anticipates 69,957 claims. Of these, 17,039 will be
for Veterans whose previous claims for disability compensation were
denied. Additionally, VBA anticipates reopened claim volume of 32,606
claims in FY2010 with subsequent decreases to 1,069 per year in FY2011.
VBA anticipates 28,934 accessions in FY2010. These are new disability
compensation awards–for Veterans who did not previously have an award
for service connected disability compensation. Additionally, in FY2010
VBA anticipates disability claim volume associated with the presumptive
SC determination to be 159,311 and to exceed 270,000 through FY2019.
                                                   Figure 1
                                   Retroactive    representing
Reopened                          Total
              FY                     claims          new SC
claims        Accessions      disability
                           claim volume
..          69,957          17,039
  32,606          28,934         159,311
..  …………..  …………..
   1,069           3,393          31,207
..  …………..  …………..
   1,051           3,335          10,289
..  …………..  …………..
   1,032           3,273          10,227

[[Page 14399]]

2014…………………….. ..  …………..  …………..
   1,011           3,207          10,161

—————————— ————————————————-
   Subtotals……………….  …………..  …………..
  36,769          42,142         221,195

—————————— ————————————————-
..  …………..  …………..
     989           3,137          10,091
..  …………..  …………..
     989           3,062          10,016
..  …………..  …………..
     989           2,983           9,937
..  …………..  …………..
     989           2,898           9,852
..  …………..  …………..
     989           2,809           9,763

—————————— ————————————————-
   Totals………………….          69,957  …………..
  41,714          57,031         270,854

New Enrollments and Changed Enrollments
   The disability compensation workload, the resulting increases in
service-connected patients, and the increased combined service
connected percents will both add new patients to VA’s health care
system and will change the priority levels of Veterans currently
enrolled in VA’s health care system.
   For purposes of estimation, it is assumed that 30% of Veterans
“Accessions” will enroll in the system each year. For FY2010, this
means that 8,680 of the 28,934 Veteran “Accessions”. Figure 2
provides the estimate of new enrollments per year for the ten year
period. In all, it is estimated that 17,109 new Veterans will enroll in
VA’s health care system.
                               Figure 2
                                          New enrollees   New enrollees
                  FY                        per year       cumulative
……….           8,680           8,680
……….           1,018           9,698
……….           1,001          10,699
……….             982          11,681
……….             962          12,643

……..          12,643  …………..

……….             941          13,584
……….             919          14,502
……….             895          15,397
……….             869          16,267
……….             843          17,109

……..          17,109          17,109
   It is assumed that Veterans enrolling will be Priority Group 1
Veterans and that they will use VA health care services.
   For purposes of estimation, it is assumed that 40% of the Veterans
whose claims are reopened will have been enrolled in VA’s health care
system and that their Priority Group will move from a copay required
status to a copay exempt status. Additionally, it is assumed that their
third party collections will be lost. It is assumed that 10% of the
accessions will result in changes to Veterans who are currently
enrolled. These Veterans would be enrolled in a copay required status
and would move to copay exempt status. In FY2010 it is estimated that
43,919 Veterans would have their enrollment status changed, and FY 2011
it is estimated that an additional 767 Veterans would have their
enrollment status changed. Figure 3 provides these estimated changes in
enrollment status per year and cumulatively.
                               Figure 3
                                            Upgraded        Upgraded
                  FY                      enrollees per     enrollees
                                              year         cumulative
……….          43,919          43,919
……….             767          44,686
……….             754          45,439
……….             740          46,180
……….             725          46,905

……..          46,905          46,905

……….             709          47,614
……….             702          48,316
……….             694          49,010
……….             685          49,695
……….             677          50,372

……..          50,372          50,372

Disability Exams Associated Costs
   It is assumed that each VBA case will result in disability
examinations for the Veteran. In all, it is estimated that 270,854
disability examinations will need to be performed. An escalation factor
of 4% is applied to cost of disability examinations.
                                                   Figure 4
disability       Cost per       Annual cost per
                          FY                               claim
volume    disability exam *   disability exams
159,311               $719       $114,544,609
31,207                748         23,335,346
10,289                778          8,001,451
10,227                809          8,271,365
10,161                841          8,546,705

—————————— ————————–
221,195  ……………..        162,699,475

—————————— ————————–
10,091                875          8,827,339
10,016                910          9,112,200
9,937                946          9,401,942
9,852                984          9,694,379
9,763              1,023          9,991,075

—————————— ————————–

[[Page 14400]]

270,854  ……………..        209,726,410
* Source: Allocation Resource Center.

Health Care and Total Costs
   Figure 5 provides extended health care costs per year and includes
costs for C&P disability examinations and travel associated with C&P
examinations. The cost per patient is arrived at using the average cost
per Priority Group 1 patient aged between 45-64. It is assumed that
100% of newly enrolled Veterans will request mileage reimbursement. The
average amount of mileage reimbursement claims per Veteran is $511
(this amount reflects to the FY2009 actual average amount). Total costs
over the 10-year period are estimated to be in excess of $2.4B.
                                                                       Figure 5
                    FY                        Annual cost per
Cost per BT      travel costs       Cost per     Health care costs
Extended annual
                                              disability exams
mileage claim  (41.5 cents/mile)      patient        per patient
…………..       $114,544,609
   $511         $4,435,582         $13,500       $117,182,700
…………..         23,335,346
    511          4,955,729          14,100        136,743,210
…………..          8,001,451
    511          5,466,985          14,700        157,269,420
…………..          8,271,365
    511          5,968,736          15,100        176,375,550
…………..          8,546,705
    511          6,460,369          15,700        198,488,820

—————————— —————————————————————————–
……….        162,699,475
…………..         27,287,400  …………..        786,059,700

—————————— —————————————————————————–
…………..          8,827,339
    511          6,941,271          16,300        221,414,310
…………..          9,112,200
    511          7,410,675          17,100        247,989,330
…………..          9,401,942
    511          7,867,969          17,900        275,609,880
…………..          9,694,379
    511          8,312,233          18,800        305,812,080
…………..          9,991,075
    511          8,742,852          19,800        338,764,140

—————————— —————————————————————————–
……….        209,726,410
…………..         66,562,400  …………..      2,175,649,440

   Combined estimated increases in health care costs and lost revenues
are presented in Figure 6.
                               Figure 6
                                                       Extended annual
                         FY                                 costs
…………………..       $236,162,891
…………………..        165,034,285
…………………..        170,737,855
…………………..        190,615,650
…………………..        213,495,893
…………………        976,046,575
…………………..        237,182,919
…………………..        264,512,205
…………………..        292,879,791
…………………..        323,818,692
…………………..        357,498,068
…………………      2,451,938,251

Unfunded Mandates
   The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in an expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any given year. This rulemaking would have no such effect
on State, local, and Tribal governments, or on the private sector.

Regulatory Flexibility Act
   The Secretary certifies that the adoption of this proposed rule
would not have a significant economic impact on a substantial number of
small entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. This rule would not directly affect any small entities;
only individuals could be directly affected. Therefore, under 5 U.S.C.
605(b), this rule is exempt from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.

Congressional Review Act
   Under the Congressional Review Act, a major rule may not take
effect until at least 60 days after submission to Congress of a report
regarding the rule. A major rule is one that would have an annual
effect on the economy of $100 million or more or have certain other
impacts. We have determined this rulemaking to be a major rule under
the Congressional Review Act.

Catalog of Federal Domestic Assistance Numbers and Titles
   The Catalog of Federal Domestic Assistance program numbers and
titles for this proposed rule are 64.109, Veterans Compensation for
Service-Connected Disability, and 64.110, Veterans Dependency and
Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3
   Administrative practice and procedure, Claims, Disability benefits,
Health care, veterans, Vietnam.
   Approved: December 23, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
   For the reasons set out in the preamble, VA is proposing to amend
38 CFR part 3 as follows:


Subpart A–Pension, Compensation, and Dependency and Indemnity
   1. The authority citation for part 3, subpart A continues to read
as follows:
   Authority: 38 U.S.C. 501(a), unless otherwise noted.

[[Page 14401]]

Sec.  3.309  [Amended]
   2. In Sec.  3.309(e) the listing of diseases is amended as follows:
   a. By removing “Chronic lymphocytic leukemia” and adding, in its
place, “All chronic B-cell leukemias (including, but not limited to,
hairy-cell leukemia and chronic lymphocytic leukemia)”.
   b. By adding “Parkinson’s disease” immediately preceding “Acute
and subacute peripheral neuropathy”.
   c. By adding “Ischemic heart disease (including, but not limited
to, acute, subacute, and old myocardial infarction; atherosclerotic
cardiovascular disease including coronary artery disease (including
coronary spasm) and coronary bypass surgery; and stable, unstable and
Prinzmetal’s angina)” immediately following “Hodgkin’s disease”.

[FR Doc. 2010-6549 Filed 3-24-10; 8:45 am]

If you’ve made it this far, Invisible Reader, I commend you.  That was a lot to read.  Did you follow it all?  If not, don’t worry.  I had to have it “translated” by Jim before I understood it all. The bottom line is, when it comes to “presumptive status” for Ft McClellan Veterans, no document exists like that.  Therefore, if you follow my logic, there is no presumptive status for Ft McClellan Veterans.
HOWEVER, having said that, if you read what Jim Strickland said in the beginning of my blog, that does not preclude you, Invisible Reader, from filing a claim for service connection for exposure to chemicals at Fort McClellan or any other base, fort or military installation.  It just means that you’ll have a battle on your hands.  You need to provide proof of your exposure.  Sure, the VA has a duty to assist, but you still have to come up with the data to help them investigate.  Without all that you haven’t got a chance at winning your claim.

Photographic evidence of a hand injury I suffered during basic training.
Who will help you file your claim?  Do you give your Power of Attorney to one of the Big Three?  The DAV, American Legion, VFW or some other big name Veterans group?  If you’ve been reading my blogs since the beginning you know my feelings on how to file a claim.  Do it yourself claims are the only way to go.  Go to Jim Strickland’s A to Z Guide for step by step instructions.  If you still need help after reading through that, come to our Straight Talk for Veterans Forum.  Join us and we’ll provide all the help you need with filing your do it yourself claim.  No one fights as hard for you as your yourself.  That’s why it’s best to file a do it yourself claim … in my opinion.  I’m learning from the best, Invisible Reader.  My mentor is Jim Strickland and I’ve nicknamed myself his “Grasshopper“.  The link is provided to the TV Show “Kung Fu” for those of you not familiar with the term.  
Keep in mind, Invisible Reader, I’m not discouraging you from filing a claim for this.  If you think you have a valid claim and the evidence to support it, by all means file for it.  But if you file and you’re expecting a presumptive status … you’re very wrong.  Believe me on this.  There is none.  The help you’ll get from the VA is limited unless you can provide them with very solid evidence to support your claim.  Don’t get your hopes up.  You’ll be sadly disappointed.
Until the next time Invisible Reader ….

Holy Cow! I’m Married!

Hello Invisible Readers,

I come to you today a married woman.  I never thought I’d say that again.  I’ve been living by the adage, “Marriage is an institution and I will never be institutionalized again”.  My first marriage was to a GI named Jim.  I’m certain I’ve discussed him before.  We parted ways after 2 1/2 years.  It had nothing to do with my sexuality.  I still believed I was straight when I left him.  It had everything to do with his drinking.  After Jim I fell into a pattern of relationships that were not healthy.  I wanted so much to be loved that I got into long term relationships with anyone who showed me the smallest bit of affection.  Don’t get me wrong, I loved each of those women but they were not healthy relationships and they did not last.  I always accepted the blame for their “end”.

The Rose Ceremony.  We were both laughing at this point and just wanted it done and over with.

This time I’ve found the perfect woman.  So perfect, in fact, that I asked her to marry me.  We actually went to Iowa where same sex marriage is legal and had the ceremony performed there.  We know our marriage will blossom and continue to grow with love.  I’ve never met a more perfect woman.  How she puts up with my idiosyncrasies I will never know.  I’m not an easy person to live with.  Terri is my everything.  She is my world.  She is my Guardian Angel.

Now comes the fun part.  We got married in Dubuque, Iowa, so that our marriage would be legal.  Our marriage is not recognized here in Florida.  We knew that going into this.  No, we’re not moving to Iowa to take advantage of the laws there.  We’re going to stay here and hope that some day the laws will change and Florida will recognize our marriage.  We like Florida.  Our friends and family are here and we have no reason to leave them behind.

The newlyweds.  Mrs & Mrs Wendi & Terri Goodman

We’re in a holding pattern now.  We’re waiting for the official marriage certificate to arrive in the mail.  My wife (I love saying that!) took my last name when we married.  We need the marriage certificate so that she can start the process of changing her name legally.  The folks in Iowa told us to start with Social Security.  The County Clerk’s Office in Iowa told us that Social Security will change her last name without a problem as  long as they receive an official copy of our marriage certificate.  Once Terri has that, she can work on changing the rest of her documents.  We went to the bank and the bank told us all she needs to bring in is a marriage certificate and social security card with the new name.  Terri had checked with the Department of Motor Vehicles before we left and they told her they wouldn’t recognize her name change because it was a same sex marriage.  However, if she brings in a social security card with her new name, they will recognize that.  How odd is that?  Talk about a double standard.

That’s only half the battle.  We still have to battle the Department of Veterans Affairs and the US Government.  I want to enroll Terri in DEERS so that she can get a Military Dependent ID Card.  (It’s an Army retiree thing).  I’m not sure how that’s going to work.  Don’t Ask Don’t Tell doesn’t apply to me anymore because I’m retired.  President Obama signed a bill awarding same sex benefits into law for Federal employees.  I’m not sure how that works with regard to military retirees.  Will they issue her a military ID card and allow her to be my “dependent”?  I don’t know the answer to that but you can bet, Invisible Reader, I’ll keep you posted.

Then of course, there’s the battle with the Department of Veterans Affairs.  You already know, Invisible Reader, that I’m an 80% service connected, disabled Veteran.  The VA pays extra money if you’re married and/or have “dependents”.  Because of the Defense of Marriage Act (DOMA) the VA does not recognize same sex marriages.  That’s not going to stop me from filing for an increase in my benefits and trying to get Terri declared as my Wife of record.  Why would I do such a thing?  I can hear you asking yourselves that, Invisible Readers.  Well, I’ll tell you.

There are changes on the horizon.  There is a strong chance that Don’t Ask Don’t Tell (DADT) is going to be repealed this year.  Gays and Lesbians will soon be able to serve openly in the military.  That will be a great day.  I can’t imagine what it would be like to serve openly and not have to fear for your career each and every day.  I suffered horribly in that deep, dark closet for many, many years.  I know fear.  I’m so thrilled not to have to live in that closet anymore.  I often wonder what would happen if they were to call me back to active duty.  As a retiree, I’m subject to recall until the age of 65.  It says so right there on my DD214.  I’ve already been retired honorably.  If they were to reactivate me and I came out as a lesbian, how would that affect my honorable retirement?  But, I digress from my original train of thought and this is a topic for another day.

I believe that once DADT is repealed, we are one step closer to repealing DOMA.  Once that happens, a whole new world of benefits will open up to the LGBT community.  I believe the Governement will HAVE to recognize our same sex marriages and give us all the rights, freedoms, benefits, etc, that our opposite sex friends receive.  That’s why I am going to file the paperwork to get Terri a military dependent ID card.  That’s why I’m going to file the paperwork to have here declared as my wife and apply for the additional benefits from the VA.  I most assuredly will be denied.  I have no doubt about that.  However, when the time comes that they finally recognize our marriage, I’ll have laid the groundwork for a huge back pay.  Don’t get me wrong, Invisible Reader.  I’m not doing this entirely for the money.  I’m doing this because it’s what is right and fair.  Terri is my wife.  Legally.  We have a marriage license and certificate to prove it.  We deserve it.  Terri deserves to receive the care and benefits that I earned by serving my country for twenty years.  I want her to receive any monies that she is entitled to when I die.  I want her well taken care of when I am gone.  I’m going to fight to the end to see that it happens.

Are you a Veteran legally married to a same sex spouse?  Follow my lead.  File for increased benefits for your wife or husband.  You need to fill out VA Form 21-686c.  Send the completed form with the required documents to your local VA Regional Office via certified, return receipt. US Postal Mail.  Or, you can always go to the VA website and send it through the VONAPP system.  You’ll get denied, of course.  But you’ll be laying the groundwork for a big fat back pay for when it is eventually approved.  When mine is disapproved, I’m going to find an attorney to fight it for me.  I’m going to take my fight and make it a very public fight.  My wife knows this and bless her heart, she’s agreed to go along with this plan.  She’s not out at work except to a select few people.  She works in a very redneck county where they discriminate against everyone who isn’t a good ole boy or girl.  You know the type. She loves me enough that she’s willing to be outed if this goes public.  She’s willing to risk her job so that I can fight this battle with the VA and the DoD.  That’s love, Invisible Reader.  Fighting for what’s fair no matter what the risk to her is.

Speaking of fair, Invisible Reader … Have you seen the new “She Serves” Campaign?  I first caught wind of it on Facebook.  On Facebook, they made it seem like it was an outreach program for women Veterans — for ALL women Veterans.  I even found them on Twitter.  It seemed on the up and up when I first saw it on Facebook.  An organization which women could join, regardless of when we served — all of us were welcome.  I was excited about it.  Then I started investigating further.  It seems that “She Serves” is nothing but a recruiting campaign for the VFW in it’s effort to bump up their numbers of women Veterans.  Now that more and more women are serving in combat theaters, the VFW is seeking to actively recruit those women.  I discovered this when I clicked on the “eligibility” link and it took me right to the VFW’s eligibility page.  I knew in that moment that I’d never be a member of “She Serves”.  You see, I’ve never served in a combat theater.  I am authorized to wear the National Defense Service Medal because I’m considered a Gulf War Era Veteran.  The two tours I served in Germany during the Cold War don’t count for anything.  Cold War Veterans of Germany, unless you served in Berlin, get the royal shaft.   The VFW doesn’t want us.  Sure, we can join, but they’ll throw us into the Ladies Auxiliary.   Tell me, Invisible Reader, I was a soldier … just what the heck do I have in common with the wives of service members?  That’s who you find in the Ladies Auxiliary.  Why would I want to be a member of that?

I will end with this email I received from a woman Veteran friend of mine.

About a week or so ago I was talking to some ladies from our local American Legion…I told them that I was a veteran and they invited me to join the auxillary with them…I told them again that “I” was the veteran, and that I didn’t have a spouse.  They said that at this local post all women are members of the auxillary.
Talk about the good ol’ boys system.  It appears to be alive and well in Fairborn, Ohio.


Until the next time, Invisible Reader…..

No Respect for Transgender Veteran at VA Hospital

He served in the US Navy during Vietnam.  He wore the uniform and served with honor and pride.  All his life he felt different.  His body was foreign to him.  He hated his body.   It didn’t look anything like the image of himself in his mind.  In his mind, he was a woman.  His external body and genitalia was a betrayal.

In 2004 “he” became “she”.  For the purpose of this blog we’ll call her Jane.  Jane started her transition in 2004.  In an attempt to be “normal” (as defined by the rest of the population), Jane suspended her transition and married a woman.  Jane’s ex-wife tried to stop the transition after agreeing, in front of their pastor, that it would be okay with her for Jane to continue with her transition.  The wife changed her mind after the marriage because of pressure from her friends.  The marriage ended badly and Jane began living full time as a woman in June 2007 after twice attempting suicide.

In 2008 Jane started hormone therapy on her own.  This is a common practice among transgenders who can’t afford the expense of seeing endocrinologists.  They purchase it on the black market or from any number of websites that sell it without a prescription.  Here is just one website as an example. The problem is they have no doctor to regulate their doses or monitor their heath while they undergo their transition.  They put themselves at great risk by doing this on their own.  For more information on hormone replacement therapy (HRT), read the Wikipedia definition.  It’s very thorough.

Later in 2008, Jane began seeing an Endocrinologist.  In 2009, she received letters approving her for sex reassignment surgery (SRS) after five years of psychotherapy where she repeatedly tested as a woman.  This is an expensive, complicated surgery and for now, Jane has put this surgery on hold.

Here’s the interesting part.  Well, it’s all interesting.  It’s also very sad because of how Jane is being treated.  You already know Jane is a Navy Veteran.  She’s also a service-connected disabled Veteran because of her service in Vietnam and good old Agent Orange.  The endocrinologist she was seeing?  A VA Doctor we’ll call Dr. X.  Jane had several run-ins with the now retired Chief of Endocrinology.  This goes back to 2004.  Dr. X told Jane that she needed to lose weight, that her cholesterol and triglycerides were out of control.  Jane went to work on that after Dr X correctly predicted a heart attack.  Jane went back to Dr X after she recovered from her heart attack and had control of the medical issues her doctor had insisted on.  According to Jane, she welcomed her back into the Transgender program “like a long lost friend”.  Dr X then proceeded to insult Jane with regard to her hair, face, makeup and clothes.  She questioned Jane about who she was having sex with, who she was involved with, and told her about other transgendered Veterans who were patients.  Still, Dr X refused to start Jane on Hormone Replacement Therapy.  This was a crushing blow to Jane.

Jane filed complaints with the VAOIG about Dr X’s behavior towards her.  Allegedly these complaints were ignored because of Dr X’s status in the hospital.  Jane went back to Dr X.  Dr X again denied Jane her HRT medications after angrily letting Jane know that she knew Jane had reported her to the VAOIG.  Jane got angry and stormed out of the exam room.  Dr X ultimately wrote the comment in Jane’s medical record that won her service connection for PTSD.  Jane said she wrote (words to the effect of), ” I threatened her and my behavior was very typical for a veteran with chronic PTSD. ”  Jane’s VSO saw that statement written in her medical records and used it to win service connection for PTSD.  Jane says,

The truth is, Wendi the only thing I did when this doctor denied me the third time was stop talking, grab my coat, purse and a book and stomp out of the exam room because I knew at that point my anger really was out of control. I never threatened this woman. Thats not my way but yeah I was angry. I had yanked the door too hard and I heard it bang into something but I was already out of the room and on my way out of the hospital. I didn’t want to be arrested so I knew I had to get outside,  find my car and SIT and not drive- just sit and fume.

Jane’s primary care physician has tried several times to get her back into the transgender program and each time she’s been denied.  Her primary care physician even tried to enroll her into the Transgender Program in another city but Dr X controls that program so she was denied entry into that as well.

Dr X retired 8-10 months ago.  The Director at the other hospital is retiring soon.  Jane asked for another consult to the transgender clinic and has gotten it, but she still doesn’t know if she’ll be receiving her prescription for HRT therapy.

But the story isn’t over.  For Jane it may never be over.  Two days ago, while at the VAMC, Jane had to use the restroom.  Jane lives full time as a woman as I mentioned at the beginning of this blog.  Part of that means using women’s restroom facilities.  She carries a letter with her which explains she is a male to female transgender living full time as a woman so she uses female facilities.  Here is a copy of her email to me:

Just to let you know there may be a complaint filed by a VA doctor at the VA Hospital. The complaint would be from a female doctor angry because I used the women’s restroom during my visit to the pain clinic today, February  23, 2010.  When I walked out this woman had a look on her face of complete disgust.

For the record I do have a letter from a psychologist stating I am transgender and I should use the women’s restroom as part of my M2F transition. That letter is about 2 years old. I had to get it updated once because the original letter was nearly in tatters.

IMO, this REPEATEDLY underscores the need of  education and emphasis on  respecting LGBT vets which was done in Region Twenty but ignored in Region Ten.

I am ready to fight because its been going on TOO LONG in this region.

There is no excuse for this.  There are plenty of VA Hospitals around the country embracing Transgendered Veterans.  There is an organization called Veterans Do Ask Do Tell trying to get Veteran Hospitals around the country to recognize that LGBT Veterans have special needs for counseling that have to be met.  They’ve had a lot of success with this in Dallas and Milwaukee.  Here in Tampa, Florida, I was turned down flat when I asked for assistance in starting up a mental health support group for LGBT Veterans at my VAMC.

Jane is a service connected, disabled Vietnam Veteran, Invisible Reader.  She put in her time during a horrendous conflict.  I’m not arguing that her transgender issues are service connected.  I am arguing that as a Veteran she deserves to be treated with respect.  She deserves to be given the treatment she needs to become whole for the first time in her life.  The VA treats me for non-service connected issues.  Why aren’t they treating Jane for her non-service connected issues?  Her disability rating is high enough to qualify for it.

I’ve been working on this blog for a long time, Invisible Reader.  Jane has been very patient with me as I’ve asked her some very uncomfortable questions.  She has responded openly and honestly.  That’s been difficult for her to do.  She doesn’t let many people into her inner circle.  She doesn’t trust many people.  After hearing her story, I don’t blame her.  She’s often the victim of Transphobia not only from the VA Hospital but in her own small town as well.  She recently found out that her VA disability claim was submitted incorrectly.  I have to wonder if her service officer did this intentionally because he’s transphobic or was it an honest mistake?  The service organization she gave her power of attorney to belongs to one of the “big three”.  You know who they are are if you’re a Veteran.  They are the ones fighting to say we shouldn’t be able to hire attorneys to fight our appeals.   Her case is exactly WHY we should be able to hire attorneys.  If a service officer who works for free and doesn’t know the law can’t get it right, why not go to an attorney who knows the law, who will get paid to win our case?  But that’s another blog and I don’t want to get off track here.

Don’t Ask Don’t Tell recently under went some major changes.  You have to be living under a rock to not know that.  But I wonder …. how far back will this go?  I hope they Grandfather it.  I hope they grandfather it back for decades and upgrade a lot of discharges.  We’ve lost a lot of good service members because of homophobia.  Jane was one of them.  Jane, who served during Vietnam, who served in places you and I have never heard of and don’t ever want to know about, was kicked out because she said the wrong thing to the wrong person at the wrong time.  Trust me, Invisible Reader.  You don’t want to know about the things Jane did or what she saw when she was in the Navy.  I’ve never asked her.  I’ve never asked any Veteran who served in combat what they’ve seen.  It isn’t that I don’t want to know.  It isn’t that my head is in the sand.  It’s a matter of respect.  If a combat Veteran wants to share that information, they will.  Most don’t want to share unless it’s with another combat Vet because if you haven’t been there, you can’t understand it.  I haven’t been there.  I’ve read books.  I’ve seen films.  I’ve seen pictures.  I’ve heard stories.  I respect combat Veterans.  But look into their eyes.  Look deep and often you’ll see the horror that is still playing there.  They don’t want to talk about it.

Jane is my friend.  I respect her.  I hope that she gets what she deserves.  She put in her time just like the rest of us.  She’s no different than me or you or any GI Jane walking down the street.  If you see a transgender Veteran, be sure to thank them for their service. 

Until the next time …….

Addendum added on 4/20/2010:

Hello again, Invisible Reader.  I don’t usually go back into my blogs after I’ve posted them but I thought this was worth mentioning.  I received the following email today from Jane, the subject of this blog.  She’s had another horrible experience at her VA Hospital.  If this isn’t proof of outright prejudicial behavior than I don’t know what is.  Read this email from Jane, Invisible Reader.  I’d also appreciate hearing your comments on this one.  Please either comment here on this site or send your comments to me directly at  I’ll be posting all comments so if you want to remain anonymous, please state that in your email to me. 


I made a series of phone calls yesterday and this morning. One call was to the nurse I usually talk to in (City A). I believe George is gay; well George has always been helpful to me in getting messages to my doctor and telling me the results of tests.

About two weeks ago a physical therapist lied to me and told me all I had was a badly pulled muscle in my lower back. Today George told me the results of an MRI I was given about a month ago- diagnosis- bulging DISK!!

I told the PHYSICAL THERAPIST that I’d need to come back for some time to keep the pain under control and he got REAL UPSET and said- “OH NO NO- you have the TENS UNIT now and I gave you the EXERCISES and thats all you need. I’m CLOSING YOUR CASE;” READ ” I NEED TO GET RID OF YOU AS SOON AS POSSIBLE BECAUSE I’M A TRANSPHOBE!!!!!!!!!!”

Today I talked to a nurse in (City B) and I told her what this guy did and she said that was wrong. She put me back in the computer for more treatment.



There you have it, Invisible Reader.  Comments?  Until the next time ….

Let’s Get This Party Started

Hello Invisible Reader. Are you ready to embark on the rest of this journey with me? You stuck with me while I waited for my VA claim to come in. You stuck with me while I waited for my Social Security claim to come in. Will you stick with me now? Great, I knew you would. You’re devoted to me. I love it. Nevertheless, I seem to be picking up new readers so bear with me will I recap the situation for those who don’t want to read the previous blogs. The VA increased my disability to 80% but denied my claim for 100% for individual unemployability. The very same week that came back disapproved I was approved for social security disability. Social Security approved me based on my service connected disabilities using the medical records they received from the Tampa VA Hospital. Same evidence, same basic claim, two very different decisions.

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 or and you’ll see his work there. Jim also has his own website, The A to Z Guide to VA Disability Benefits located at 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 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 The application can be downloaded at 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

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

Compensation and Pension Service – October 2008

Jim referred me to his friend, Sean Culliton. You can check him out here: 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: 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:

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 …

I’ve been away for a while

Hello invisible readers. I’ve been absent for a while. Did you miss me? Did you notice that I have been MIA? It doesn’t matter. Not to be rude but I don’t write this for you. I write this for me. Sometimes seeing things in writing helps me put together the pieces of the puzzle. Sometimes. Most times it helps me get rid of the anger that has built up inside me. It’s been great for that. I can’t tell you how glad I am that I started blogging. Having a place to release this pent up anger has been a real lifesaver.

Okay. So. I was approved for Social Security Disability. That’s not to be confused with the other kind of help Social Security provides which is considered the “welfare” help. I didn’t apply for that because I make too much money for that between my military retirement and my VA disability. The money I get from Social Security is actually money that I have paid into Social Security over the years from working. I’m getting my money back. This is no hand out, Invisible Reader. They are giving me back the money I have been paying into Social Security since my first paying job at the age of 15 years old. (I got a job at Dairy Queen with my best friend. Three weeks later, I came down with mono and spent the rest of the summer in bed. That was the end of that job.) I don’t get medicare. I don’t get medicaid. I get a check once a month around the day of my birth. In approximately three years I will be called in for another examination to see if my physical and mental conditions have improved enough for me to go back to work. If they have, that will be the end of my Social Security Disability payments.

In the meantime I am still flabbergasted over the fact that the VA disapproved my request for 100% based on Unemployability. Social Security made their decision based on the medical records they received from the Tampa VA Hospital and the letter I received from Social Security states that very clearly. But get this. The powers that be at the VA Regional Office in St Pete, FL, based their decision on the recommendation of the Physician’s Assistant who did my comp and pension examination. The Chief Psychologist recommended approval but deferred to the medical decision.

How do I know this? I make it a habit to request complete copies of my medical records every couple of months. Even though it states that my C&P exam is not to be released to me, the clerk who copied my medical records in Release of Information was either too stupid to read that, or chose to ignore it, and I received a copy of it with the rest of my med records. Chalk one up to inept clerks at the Tampa VA Release of Information Office!

I just don’t get how a PA’s opinion can hold so much weight. He hardly examined me at all.


Now starts the appeals process. In my mind, it’s a no brainer. The powers that be at Social Security say that I’m disabled. Shouldn’t that be enough for the VA? My Primary Care Physician said that I can’t work. My Vocational Rehab Counselor said that I can’t work. A VA psychologist, Ph.D, type, said that I can’t work. Like I said, in my mind, the appeal process should be a no brainer. All these “experts” and government officials say, in writing, that I cannot work. I thought, all I needed to do to appeal was write a response back to the VA and point out the obvious to them. The opinions of all these subject matter experts SHOULD outweigh the opinion of one friggin’ Physicians Assistant who said that I am capable of “sedentary employment with frequent breaks and position changes.” They have more experience, more training, more education and are certainly more qualified to decide if I am capable of working or not.

All you folks out there who have ever hired someone, let me ask you this: If you interviewed me and in the interview process I said to you, “I will need frequent breaks and position changes”, would you hire me? I wouldn’t hire me. I would send me a rejection letter stating that I found someone more qualified to fill the position because by law that’s all I can legally do to reject someone like myself. I know this. I did it a million times when I was working and managing million dollar businesses.

My friend and advisor, Jim Strikland, knows that the VA doesn’t listen to reason. Even though I have a reasonable argument, he has advised me to hire a lawyer to prepare my appeal. Of course, I will do as Jim suggests. I am his “Grasshopper.” (Smile, Jim) What makes perfect sense to you and I, Invisible Reader, doesn’t make sense to the VA. It doesn’t matter that more qualified professionals than a “physicians assistant” have testified that I am too disabled to work. The PA made his decision and some low paid clerk at the VARO with no medical experience decided to take the path of least resistance. Maybe he even got a bonus for saving the VA money. By only bumping me up to 80% instead of 100% the back pay they owed me was minimal even though I waited almost one year for a decision. That’s got to be it. I got 80% and he/she got a huge bonus for saving the VA a shitload of money.

It’s all good though. I will do as a good “Grasshopper” should do. I will call the attorney as soon as I return from my vacation. In the meantime, I have a troll to play with. I like playing with trolls. Funky little creatures, those trolls.

Until the next time ….

How nuts is this?

Hello invisible readers! Did you miss me? I’m back from my vacation. I had a great time. It was wonderful to get away from Florida for a while. What a difference it made in my world and in my mood. Alas, it’s back to reality. We arrived home a few hours ago. There’s no point in going to sleep. I have to leave the house in about two and one-half hours to head to my least favorite place. It’s back to the VA Hospital for another doctor appointment. I have four of them this week. As I said, vacation is over and it’s back to reality.

Two things happened while I was away. Just before I left for California I received “unofficial notification” from the DAV that my VA Claim had been decided. The VA turned down my request for 100% based on individual unemployment. When I home arrived tonight, the official notice was waiting for me from the VA. Reading through it, there was no mention of the evidence I sent in from the VA’s own Vocational Rehab Program. There was no mention of the “letter of feasibility” I sent in as evidence which clearly stated I am not “retrainable” and I am “not a candidate for gainful employment” as determined by the VA’s own Vocational Rehab. There was no mention of the letter my doctor filled out stating I cannot work. What happened to that evidence? They did award me 30% for major depression and another 10% for “right knee strain”. They raised my overall rating from 70% to 80%.

The second thing that happened is that I was approved for social security disability with an effective date of June 2008. The social security administration based their decision on evidence they received from the Department of Veterans Affairs.

How is it that one government agency says that I cannot work and the other says I can work? How is it they both evaluated the very same medical evidence? In reality, I have three different government agents saying I cannot work. They all based their decisions on the same medical evidence.

Not to worry though. At least … I’m not worried. I have some things to take care of over the next few days and then I will be filing an appeal with the VA. I will win my case for 100% with the VA. And when I win it, they will owe me a shitload of money. I’m going to enjoy the hell out of that payday. You can bet I’m going to laugh all the way to the bank.

Until the next time ….

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