J Basser: 0:04

It's time for the Exposed Vet Podcast. The Exposed Vet Podcast discusses issues related to today's veteran. To call into the show dial 515-605-9764. Now here's your host, john and Gerald. Welcome, ladies and Gerald, welcome, ladies and gentlemen, to another episode of the Exposed Vet Podcast. Today is the second day of November 2023. 24 will be here before you know it. We're going to do something different today. Bethany Spangenberg is going to join us and we're going to talk about a subject of basically a diagnosis. You know, a lot of guys are filing claims from the PAC Act and they're forgetting the diagnosis, and that's kind of a no-no. How are you doing, bethany?

Bethanie Spangenberg: 0:59

I'm doing well. How are you?

J Basser: 1:07

Oh, we're doing great today. Good If it was any better.

Bethanie Spangenberg: 1:12

We'd be in Florida with our feet kicked up for fishing or something you know.

J Basser: 1:19

You say Florida and I think warm weather, and it's 40 degrees right now in Ohio, so I'm a little jealous. It's all right, it's going to be fine. But now you said you wanted to discuss. I guess there's two different sides of diagnosis. I guess there's the medical diagnosis. If you have to have a current diagnosis, if you're just going to file a claim and you're going to get ready, if you don't have that diagnosis, you might as well go ahead and quit.

Ad: 1:38

That's all I've got to say.

Bethanie Spangenberg: 1:58

Well, yeah, that's kind of where I sit on the medical expert side is the first thing we ask is have thought that was the purpose of the comp and pen is to provide a diagnosis and I'm like, but there's so many hurdles to doing that, so that's why I wanted to talk about it today.

J Basser: 2:12

Okay, well, that's good. I mean, it's got to be done. You know you've got to have a diagnosis. If you don't have a diagnosis, you're done. You know you got to have a diagnosis. You have a diagnosis, you're done. You know you can get one. But you know, of course, there are different areas to respect a diagnosis, because I know some guys will go off a symptomology before they get a diagnosis, but that's not very common.

Bethanie Spangenberg: 2:36

Yeah, and I think so. The way the law lays out is that a veteran can be service-connected for a symptom or like pain if it causes a quote-unquote functional impairment of earning capacity, because that's what the definition of a disability is. But those concepts are not taught to the medical examiner. So when a veteran is claiming chronic pain related to their back, and then they sit down in front of the compensation and pension examiner, and now this examiner, who is supposed to be gathering the information on this veteran's condition, has to somehow figure out where this pain is coming from. From. And if you compare, that to what we do in the clinic.

Bethanie Spangenberg: 3:27

Our job in the clinic is to investigate that pain. So you come in as a patient. You're telling me you have knee pain. So my job is to the history, do the exam, order a test and then refer you for additional treatment or make medical recommendations. Well, that is what we do in the clinic, because we investigate things and we try to manage. You know these symptoms and so when the veteran goes to the comp and pen, that examiner is really limited on what they can do. They can't order an MRI, they can't order a nerve conduction study, so the examiner's role is really to review the data and document. You know the history of that condition.

J Basser: 4:12

Well, if you don't have a diagnosis that can document the history, right, right? So, according to the VA, you don't have the conditions, you don't have a diagnosis.

Bethanie Spangenberg: 4:23

To the VA, you don't have the conditions, you don't have a diagnosis. So normally when it comes down to a veteran having a chronic pain issue, that becomes more of a legal argument than it does from the medical side. So it can be challenging if a veteran is pursuing it and they don't really have direction for their claim, if they're just throwing stuff to see what sticks. It can be challenging. So I definitely don't recommend any veteran filing a disability claim if they haven't at least sat down with their doctor or their clinician to have a discussion about their condition, their knee pain, their back pain, their chronic fatigue. They need to sit down and have a discussion with their clinician, one so that it's documented, and then two that they're getting the appropriate clinical care for that condition.

Bethanie Spangenberg: 5:15

All that workup and that visit is all evidence that they could submit for their claim.

Bethanie Spangenberg: 5:27

Good, that is good the reason why I think it's so important to have this discussion too is because it is one of the fundamental requirements. So you have to have and this is used interchangeably a current disability, and a lot of times that's interchanged with current diagnosis. So the legal requirement is current disability, which is that impairment of earning capacity, and then the diagnosis is what we use to write medical opinions and to discuss the condition. So they're not the same, but they are similar and depending on which side of the process you're looking on, you're sitting on or looking at it from, it can have a different meaning. So it is a fundamental requirement. So in order for you to capture that win for your disability, you definitely need to show that you have that current condition.

J Basser: 6:37

Okay.

Ad: 6:38

Maybe a hypothetical here.

J Basser: 6:39

Say you have veterans in the military and people go to medical. Maybe I don't know, maybe if you went to medical 10 times in the military and he would go to medical when, maybe I don't know, maybe if he went to medical 10 times in the service and maybe five of those times his blood pressure was a little bit higher or maybe a certain high level, but other times it wasn't. They didn't have a diagnosis. The diagnosis when he gets out he goes to the civilian docs and they say you've got a high blood pressure and they put you on medication. So would that actually be something that started in service or how would you prove that?

Bethanie Spangenberg: 7:14

So that can be challenging, especially hypertension. You picked probably the most complex one as an example. So for me there's two ways to look at it. If I can write an opinion and I can say that he meets the criteria for a diagnosis, then based off of the VA rating schedule, so you take that rating schedule, you plug it against those numbers and you say that those numbers are consistent of a disability rating, because then you're taking that manifestation in service and then it's progressing. The one thing that can be tricky with blood pressure is if you're in severe pain, that's going to go up. So let's say you go to the emergency room because you're having severe back pain and your blood pressure is elevated. That medical examiner may come back and say, well, it was only elevated because you had pain.

Bethanie Spangenberg: 8:19

So, you have to be careful with those because the numbers especially because the numbers that are on the rating schedule are not even the numbers are so high that if we see those numbers in the clinic we're automatically putting them on medication.

J Basser: 8:42

Yeah, so it's 160 over 100. I guess the so it's 160 over 100. I guess the 10% is 160 over 100. So, yeah, I guess that would be an automatic medication in the clinic, wouldn't? It Right Because any time the diastolic gets 100, you're in trouble.

Bethanie Spangenberg: 8:56

Right and the percentages that they're putting out there to me. I have a concern that there's some type of liability that should be associated with even posting the rating schedule, because now you have this rating schedule and veterans are like well, if I don't take my medication, then I can possibly get a higher percentage.

J Basser: 9:19

Right, that's a caveat right there. That's a good point you just brought up there. I know a lot of veterans that consider that and I tell them, don't even think about it.

Bethanie Spangenberg: 9:29

Even at that 10% rating for hypertension. If you maintain those numbers over a period of time, you're going to have an increased risk for stroke, You're going to have cardiovascular changes, You're going to have blood vessel changes. Those numbers on there are unrealistic to seek benefits through. If they're at the 20% or the 30% of those numbers, if they come into the clinic then I'm sending them to the emergency room.

J Basser: 10:02

All right, it's pretty bad. Low-income effects is bad, very bad. I mean you're talking, they'll blow your valves out of your legs and everything.

Bethanie Spangenberg: 10:14

You know I had there was a question about the hypertension during the conference a couple weeks ago and it was about how a if a veteran could prove prolonged hypertension through a lay statement and the attorney responded with yes, you could show, they could write a statement and they could prove that they qualify. To me that would be challenging to pursue no-transcript trying to show that they had the prolonged hypertension.

J Basser: 11:23

Honestly, I can tell you everything you said is the exact truth and I'm living proof of it. So you don't have it taken care of and get the numbers down. It's going to kill you, regardless of what people think. They don't call it an asylum killer for nothing, right?

Bethanie Spangenberg: 11:42

That's exactly right. It's actually surprising. I used to do the Department of Transportation physicals for truck drivers and a lot of the truck drivers like 30 to 50, they don't normally see their primary care that often because, you know, I guess the thinking is is I don't have any problems, so why should I go see my doctor? Well, there were a lot of physicals that I would have to. So the max you can get for certification on this physical is two years. I would have to give them three months just for them to go get their blood pressure under control. So it's a lot of people don't realize that's one of the first things that creeps up with age. Is your blood pressure so regular? Usually it's annual primary care visits is what they recommend because it'll be there before you know it.

J Basser: 12:39

Is that a line out article where you can take them? All the street because of that article where you can take them off the street because of that.

Bethanie Spangenberg: 12:43

There is, there is. You can disqualify them if their blood pressure is too high. You know, what I should do I've never thought about that until now is I should look at what the DOT says about blood pressure and compare that to what the VA disability rating schedule is and just kind of see how they line up.

J Basser: 13:06

Yeah, that's a crazy thing. I mean you've got to have a diagnosis of it, I guess. But I mean, if you've got numbers of service that are that high, then I don't think we have a problem getting service-connected. But just based on the high numbers itself, you know that's pretty cut and dry, isn't it.

Bethanie Spangenberg: 13:23

It can be, but like I said before, that pain issue that creeps in, you can have an examiner try to argue it.

J Basser: 13:32

That's true. If you go a number of times and have a different number of high regions, you're not in pain like that, I guess it helps I can understand going one time and say you break your leg or something, migraines cause a tooth bill. Yeah, yeah, ray, you got any questions about this buddy.

Ray Cobb: 13:58

Well, you know we're sitting here talking and I've had a little bit today. Even I don't know if I made a mistake or didn't make a mistake, but the VA yesterday they wanted to give me my COVID shot and flu shot at the same time and they did and I've had a little bit of feeling like I had the flu today and the blood pressure has been high. I had another conference over the phone today with my primary care and she noted it and some of the blood work also that I did yesterday indicated it and I'm sitting here wondering. You know they say it's okay to take those two shots at one time, but is it? And is my lung?

Ray Cobb: 14:45

Oh gosh, when I got out of the military I'd been out two months, I was a new father and I went to try to get life insurance and I was turned down because of high blood pressure. I've never gone back to look to see what my exit physical said anything at all about my blood pressure. That was the first time I'd ever even heard. I had high blood pressure and I was 22 years old years old and I'd been an athlete at that point and almost solved my life when I got from being an athlete to going through physical training and PT and stuff in the military. So I don't know, you're starting to make me think back 50, 60 years ago. Did I get out of the military with it? You know? Kind of interesting.

Bethanie Spangenberg: 15:49

So if we address the COVID flu really quickly, when it first came out they wanted you to separate the COVID and flu vaccination by two weeks. Now they say it's okay. I don't like giving them together, because what if you have a reaction? I don't know which one you're reacting to. So I normally say you know, let's go ahead and give your flu shot first, we'll wait a couple weeks and then we'll give you your COVID shot. So it's clinician preference. And then you're right, you should try to find those documents and see what your blood pressure was.

Alex Graham: 16:24

Something else you better talk about. It depends on how old you are. All of us guys are over 65.

Ad: 16:32

You get a flu shot.

Alex Graham: 16:33

It racks you out for two or three days. Back when I was 38, I could get that. You jump back up on the third floor of a house and continue framing.

Bethanie Spangenberg: 16:44

John is there going to be anybody else that pops up on this phone call that I don't know about.

J Basser: 16:50

Well, there's a couple folks in the queue. I bet James.

Ray Cobb: 16:52

Cripps is on it. Yeah, James is on it.

J Basser: 16:55

But he's not in the queue. I'll get him in a minute. I'm away from the computer right now, but you've got a full house, Bethany. I mean, you know we're like that TV show full house, bethany. I mean you know we're like that tv show full house. You got the whole family you got them hiding in every corner oh no, I say, I think you got them hiding, every state, in every corner yeah, we're kind of spread out we like to reach out and touch people, so but it's a.

J Basser: 17:37

It's a definite, definite subject to work on and talk about. It's very interesting. What do you advise you give these poor kids that rush out to get the letter from the VA that you might have a backpack claim, you know, or whatever, and you did this and this and this. So these guys are filing these claims out of the blue. You know they all go on eBenefits and file them and next thing you know they get a letter where you denied your claim because you had no diagnosis. Now what do they do?

Bethanie Spangenberg: 18:12

I'm glad you brought that up, go ahead.

Ray Cobb: 18:17

I had a call today about that John. That exact very call. He went to our county service officer. Exact very call. He went to our county service officer. The guy is 75 years old, has had no problems at all and he served in Vietnam and the guy told him that he needed to go turn in a claim and get on the Agent Orange list and file a claim for diabetes.

Ray Cobb: 18:45

Yeah, and did he do it? Well, he called me. I said wait a minute. First of all, do you have diabetes? No. Have you seen the doctor about diabetes? Yes. Did he say you needed shots? No, I said do you have a hypertension? He says no, and I'm sitting there, you know, and I go all through. Have you had cancer? No. Do you have any medical problems? No, I said you're 75 years old. Do you have any? No problems.

Ray Cobb: 19:19

I said why did he tell you to go file a claim? I don't know. And I said well, all you're going to be doing is taking up some other veteran's time that does have a medical problem, veteran's time that does have a medical problem, and you're just going to be taking a place that's going to cost somebody to have to do 10, 12, maybe 20 hours' worth of work, and you don't even have a claim. He said so you don't think I need to file a claim. I said no, not at all. And then he asked me. He said do I need to come to your seminar? I said yes, and then he asked me. He said well, why? I said because you may get sick next week. You know, you're 75 years old, who knows what may come down the pipe. But to go and file a claim just because you served in Vietnam is a waste of taxpayers money and time that should be devoted to what a veteran does.

J Basser: 20:20

What he's done is shut a door because any time you file a claim you don't have a diagnosis and you get a denial and you can't really prove a claim. If it actually hits you later on, say he develops diabetes, he can't file a new claim for diabetes.

Ray Cobb: 20:36

He's got to try to open the one he got denied on.

J Basser: 20:40

Without the diagnosis? Yeah, so of course the diagnosis would be new material evidence, but it's going to take him longer, in my opinion.

Ad: 20:48

Yeah, so I'll tell you.

Bethanie Spangenberg: 20:52

A lot of those claims are being prompted from the toxic exposure screenings that they're doing at the VA, and the nurse will call and they'll ask them some questions about what they were possibly exposed to. And if they say that they feel that they were exposed to Agent Orange, then that turns over to a provider, an NPPA, mddo, and they call them and they start asking them well, do you think you may have any conditions or what conditions are you concerned with as related to, let's say, like the Agent Orange or your exposures? And then that discussion was well, go talk to your VSO about filing a claim, and there's a whole list of VSOs that the VA refers to in order for them to have that discussion. So I think a lot of those informal discussions are prompting this massive wave of claims.

J Basser: 21:50

Yes, and it's having an effect on everybody else too, because the appeals process is now over three years just for the direct docket review. If you see it, you go see it Judge. How long was it, Alex? Four, five, six years now.

Alex Graham: 22:06

I've just now had all my hearings accomplished from 1904, 04, 19, 2019 through. The last one was 11 of 2019. I just did my last hearing on that about three weeks ago. Four weeks ago.

J Basser: 22:25

The majority of your clients are what you call advanced on the doctor too, aren't they? Because of age?

Alex Graham: 22:31

and and stuff and disabilities. These guys weren't All the ones that I had that were advanced on the docket boy. They pumped them out, usually within three months maximum of when, I file them. But the nice thing is all these guys are one of them just happened the other day. He's got three hearings up at the board right now and he turned 75 on October 31st. My feed yesterday morning pops up and it's all red at the top with AODs in case flow.

Ad: 23:04

Yay.

J Basser: 23:11

It's just constipation, man, that's all it is. It's like drinking too much milk.

Alex Graham: 23:19

Well, if you revamp a system and you tell everybody look, we're going to get rid of the NOD and the DRO review and everything, we're streamlining this thing and shooting it, straight up to the board. Well, all of a sudden, the board's caseload goes up 500,000%. They're going beep, beep, beep, beep, beep Now what.

Alex Graham: 23:39

Remand, remand, remand. Throw them all back to the. They forgot the SOCs, they didn't do it right and it's just a vicious circle back and forth. They had to go out and hire 37 judges, and they were all senators' sons and good old boy network and not a lip of them even knew a shit about VA law.

J Basser: 24:00

We call them nips nepotism hires. But you know the history of the VA when they guarantee you that they're going to get the backlog done, right, okay, we're going to get the claims backlog down by 40% this year. Well, they do that. They brag that they got it done, they pay a total on the back, but they don't realize that the appeals backlog gets increased by 40%.

Bethanie Spangenberg: 24:24

We've seen that already.

J Basser: 24:28

They're just moving water from one pond to the next one, kids, that's all they're doing. And they're just moving water from one pond to the next one, kids, that's all they're doing. And they're leaving the fish in the ponds to sit there and rock. What they're doing?

Ray Cobb: 24:42

It's the name of the game.

J Basser: 24:44

Yeah, it is, it is. That's a game. I'm tired of playing guys. To tell you the truth, Of course, I did have a buddy get our award today. Hey, that's a good move'm tired of playing guys. To tell you the truth, Of course I did have a buddy get our award today. Hey, that's a good move. Oh cool. Well, Becky, when was the last time you?

Bethanie Spangenberg: 25:05

had an audience that included three actual R2 vets. I don't know that I ever have.

J Basser: 25:10

You have now I know two Where's the third one. They're in the other corner? No, he's on here.

Alex Graham: 25:22

No they're all three in Tennessee. And an SMCS include me, Huh.

J Basser: 25:29

And an SMCS, John, that's two of us right, alice, we need to change the name of the show because the SMC show is special. Can you handle that, bethy? I don't.

Bethanie Spangenberg: 25:44

That's already too much.

Ray Cobb: 25:46

You know Ray some of us are actually going to have three R2s in the same room together, three or four James. No, it's three. He only got R1. They did not honor the R2.

J Basser: 26:00

Oh, you're kidding.

Ray Cobb: 26:02

Nope, and of course he's going to show up with all his material to go over it with James. I went over it with him today. I went over it with him today and we're looking at the documentation back to even when his geriatrics nurse of primary care put in his notes that his wife gave him the injections for his diabetes in the back of the arm because of his neuropathy in his hands. So you know they went back to the last time he was at our conference and filed a claim in 2016.

Ray Cobb: 26:40

They did go back that far of the R1. But they did not give him any R2.

J Basser: 26:47

So now he's got to peel the R2. Should have been better.

Ray Cobb: 26:51

They're going to appeal that. So we've had fun with this Stephanie over the last seven or eight years.

Alex Graham: 27:01

Well, you know, it's kind of funny talking about SMC. When I was at the conference on Friday morning at the first break, I got surrounded by 10 attorneys and agent gals from NOVA and we said we want you to teach us SMC and we're willing to pay you to learn it. I said really Okay, so I'm starting an SMC school right after New Year's. I'm going to take 10 or 15 of my cases.

Alex Graham: 27:33

I've got them all documented the legal briefs, all the machinations and how I attack each one, ranging from just aid and attendance all the way through to SNCP and all the things in between like blindness and stuff, and use each one of them as a teaching aid.

Alex Graham: 27:51

And I'm going to give them all the give all my clients, redacted copies of all the files as they can see how I, how I do it, how I spot, how I'm going to attack and then start developing and filing certain claims to create that punji pit that you dig the pit, you cover it with sticks and leaves and they fall into it. You ask for loss of use and they give you aid and attendance. You go well, thank you, I need that too, but we're still going for the loss of use and they go. Well, wait a minute, we thought you'd go away. So, yeah, I'm going to teach it.

Alex Graham: 28:29

After January I've got 10 Zoom classes and then a couple more for free just to let everybody do a question and answer period. I think there's only eight people I would trust to forward or refer an SMC claim for R1 or something too. I'm not denigrating Ray or James, but I'm saying you guys aren't accredited and I've got to give these guys credit to people that have BVMS access to go after them. Very few of them really need IMOs because the record is replete with thousands of these PTSD DBQs. That said, this guy never takes a shower. He's a mess.

Alex Graham: 29:14

He came in here with clothes that stink to high heavens and you know, he's just graduated from Veterans Court after clocking that cop that pulled him over for reckless driving.

J Basser: 29:29

Well, alex, it's not your job to give them to this guy, it's our job to give them to you, okay.

Alex Graham: 29:36

I've got too many of them.

Ad: 29:38

I get 20 of them a month.

Alex Graham: 29:40

Call me. I'm saying would you take my case? I just can't. I'm overwhelmed. I'm using the triage method. If you're dying, I'm buying.

Ad: 29:52

Your threshold is pretty scary.

Alex Graham: 29:56

I lose a lot of people every year. It's real hard on me, it's what it is.

Bethanie Spangenberg: 30:06

When that registration for your class comes open, I'll sign up.

Alex Graham: 30:11

Really Okay, yeah, it started. Okay, yeah, it started out in Cincinnati. There was a gal named Brene Brooks. She came to me. She was watching my computer. She was sitting right beside me. She said are you AskNod? I said yeah. She said shut the front door. She said would you teach me SMC? And I said well, yeah, sure I would. So she called me up when we got home from Cincinnati. She said I got this guy and he's got this, this and this. And I said okay, this is what you do. She said I'll split the fee with you. And I said keep your money, this healthy guy. And so I drew it all out for her and she tackled me at the conference and she says I won, I won, I won, I won. It was like a 45 RPM, stuck in the first groove and I said, well, that's good. She says oh my God, this is just. You know they haven't even cut the paper coming down from the BVA, but I have no idea. I think I got about $170,000 for it, holy mackerel.

Alex Graham: 31:21

I had no idea it was so lucrative and I says, well, yeah, it's pretty lucrative if you're the agent or the attorney.

Ad: 31:27

And she says yeah, I'm an attorney.

Alex Graham: 31:28

I said, well, that's good, brene, you know. She says, yeah, that's all I want to do. I want you to teach it to me. Apparently, she spoke to somebody else because all of a sudden it kind of traveled like wildfire, so I'll add Bethany to my list.

Ad: 31:50

She's about 12 right now.

Bethanie Spangenberg: 31:51

I like to use that information because we tailor it to you know what we do on the medical side. So one example is I just did an interview with a veteran this past weekend and he is service-connected at 90% and he's 82 years old. He's never-connected at 90% and he's 82 years old. He's never touched it. He has now developed dementia and his family is trying to put him in a nursing home and they don't have the funds or they don't know where they're going to get the funds to put him somewhere. So I definitely think so. I talked to them about the benefits that he would be entitled to. But I think understanding the SMC a little bit more would also help me to guide some of our local people and maybe even change kind of what we do on the Nexus letter side in order to support those veterans a bit better.

Alex Graham: 32:43

Well, you'll discover, with SMC, you never waste your time on an HLR. You just collect your denial, punch your 101.82, and move on and develop it all down below, so you're not taking it up to the board and have them remand it back to them to make a assist or the deficiency in something that they did, and force them to make the decision there so that you get out of the hamster wheel.

Alex Graham: 33:22

That's what I do. I'm a man of few words and very offensive actions. I do not like to set up the concertina wire and dig a foxhole and wait.

J Basser: 33:32

Well, you got to be proactive man, I do not like to set up the concertina wire and dig a foxhole and wait. No, you got to be proactive, man. If you react, that's the problem with the world right now. Everybody's too reactive. If you're proactive, you're going to have the problem we have now. Well, you're sitting back. You're sitting back and waiting for it to hit you SMC.

Alex Graham: 33:51

Bethany was saying something right there. She didn't hang around on Saturday down there in Fort Worth for the dog and pony show, the four or five classes they had. Funny you mentioned that, bethany, because I think it was in Cincinnati. They assigned us to those rooms regardless of what our interests were there on Saturday. And I got that one you were talking about, about how to develop your business and deal with your employees and whatnot, and I got in there and I really wasn't paying any attention. I think John Tucker was teaching it and all of a sudden Robert Chisholm comes over and sits down beside me and says what the hell are you doing in here? You're a single one-man band. It has not. What are you in here getting ready to expand and hire 20 attorneys or something? I said no, I just drew the wrong straw and ended up in here. I said what are you doing here, robert? He said I don't know, just collecting my CL&Es and having fun.

J Basser: 34:53

That's funny. You know what's funny is.

Bethanie Spangenberg: 34:55

I saw Robert Chisholm in there and I was actually out in the lobby working on stuff, so I thought he must have been in the same class.

Alex Graham: 35:06

Robert is the one that turned me on to SMC. We were sitting at a cocktail party Thursday night, I think, down in San Antonio back in 16. And Amy Odom I'd just written up one of her cases. It was a real big one. It was Mayhew versus Shinseki, or one of those big ones where she got a big win out of it, kicked ass and she said Alex, thank you for writing that up. I want to introduce you to Robert, robert, this is. Alex from AskNod. He says funny, you don't look like an AskNod.

Ad: 35:38

What do?

Alex Graham: 35:38

they look like Well, not like you apparently, but we got along real good. We got to talking about SMC. He says I read a couple of your decisions back in 92 on SMC. That's what kind of intrigued me about it. He says, yeah, yeah, I think that was about the time I figured out I could get two aid and attendances for a veteran and get him up to R1 that way without having to have a blind plus aid and attendance or blind plus loss of use or whatever aid and attendance plus loss of use. And I said yeah, that's very intriguing.

Alex Graham: 36:14

And he says well, I'll tell you. You know, smc is the art of the possible. It's just how you construct it. You better start constructing it before you get into the nitty-gritty of what you file for and what you're holding in your poker hand. You want to develop it. You file for and what you're holding in your poker hand you want to develop it Like if a guy has got Parkinson's, he's shaking like a leaf on a tree and he's got diabetes. You're going to have a whole lot of loss of use there.

Alex Graham: 36:43

But, most importantly, what you are going to have is PTSD or I should say major depressive disorder, because, because you're depressed, because you have a major disability and you've got to develop the PTSD or the MDD to its sufficiency and make it a standalone item. He forgets to take his medications Boom. He needs aid and attendance. You know his impulse control is off the map. He needs aid and attendance. You know his impulse controls off the map. You know he does stupid things. He goes five weeks without taking a shower.

Alex Graham: 37:18

Develop all those items and show them in that DBQ, reveal it or the medical opinion on the subject and develop it as a separate facet. You're going to lean on separate and distinct because most guys have already got SMCS. When they come to me and VA takes that 100% rating or TDIU and then they take all the little tinnitus pieces in the flat feet, the hemorrhoids, and add all those 10s and 20s together and say, okay, here's a separate, distinct, 60%. Now you've used those items up. When you come in there with aid and attendance, you've got to come in with something new. You've got to have a big disease process at almost 100% or whatever, or use Bui versus Shinseki and rearrange everything, which is a pain in the ass. I spent a lot of time separating PTSD from TBI so that I could use one of the two of them to get them to T, where they don't say no.

Alex Graham: 38:24

They're combined together so inextricably we can't figure it out. My argument is simple they're both service-connected, so you have to give them the benefit of the doubt, just as if it was a non-service-connected disease or injury. You can't determine which one it is that creates the need for that aid and attendance. Then you give the benefit of the doubt to the veteran, and they never do that. They just say, well, it's too complicated, I'm throwing up my hands. It hand is too speculative, I can't figure it out. I'm going to start crying.

Alex Graham: 38:54

Yeah, it's an art form I I sit there and I look at everything and I say, okay, he's got this, this and this wrong with him. Now I'm going to develop it and I'm going to go in there and start filing them for certain things, filing them for increase, filing for new, and I'm going to have going at it so hard that they don't know whether they're going to shit or go blind.

J Basser: 39:18

John, yeah, that's a thought, but you've got to realize that you might have 100, alex, you might have a total of a separate 60. You might be getting SNCF. What about the other 240%?

Alex Graham: 39:32

well then you have to segregate them, make sure they're separate, distinct and different organic origin and whatnot and you go after them like that and they'll say well, we're just going to write up his PTSD and his what you call it TBI together and they confound the numbers together like combine them, say 8045-9411. Fine, I don't care. Tbi is a neurological deficit. It doesn't have anything to do with a mental deficit. There might be some overlap, but there's two different organic systems, so to speak.

Alex Graham: 40:10

That's the essence, everything has to be separate and distinct from itself, so there's no pyramiding in that respect. After that, you can pyramid aid and attendance. I can need aid and attendance because a guy forgets to take his TBI meds, and I can get aid and attendance for PTSD because he forgets to take his PTSD meds. It's the only game in town where you can in a pyramid. I'll teach it to you, beth.

Bethanie Spangenberg: 40:40

It's definitely an art form, so I would appreciate that.

Alex Graham: 40:45

I'll make you a Jedi master. I like it. You have to go out and buy a little lightsaber well, I don't know, you can find a.

J Basser: 41:03

I think you can probably find a lightsaber. You might have to go to Disney and get that. They got them down at the. Hollywood Studios that ride the Star Wars ride or something. They might have something like that there or buy it online Amazoncom.

Bethanie Spangenberg: 41:22

So, john, you know I take notes for like all of our little hourly group sessions, I guess, and so I have a few things we're getting towards the. You know we've got a few minutes left, or whatever. I want to touch base on some of my notes, if you don't mind.

J Basser: 41:42

You go right ahead.

Bethanie Spangenberg: 41:45

So one thing that veterans, that I want veterans to understand, is that there's a difference in codes, and what I mean by that is there's a difference a rating, disability code, and then there's a diagnostic code, and they have two separate meanings. So in the clinic there's what we call ICD codes, or what it means is International Classification of Diseases, and that's purely for insurance and billing purposes.

Bethanie Spangenberg: 42:20

So if we give a diagnostic code to the diagnosis of GERD. That code gets submitted with a bill so that the provider can be reimbursed. That is completely different from the disability rating codes, and those codes that the provider gives doesn't always mean that it's a quote-unquote diagnosis. What that code can be is a symptom that justifies the testing that the provider is ordering. So if the clinician provides an ICD code for knee pain, they submit that and then they submit an order for an MRI. That would justify the order of the MRI and the insurance would reimburse for the visit and then cover, you know, whatever partial normally it's like a partial amount of the MRI and then there's a copay. So that's all has to do with billing.

Bethanie Spangenberg: 43:25

So even though there's an ICD-10 code attached to someone's symptom, it doesn't necessarily mean it's a diagnosis. That's purely for insurance and billing purposes. So that's why I say it's important that you go and you talk to them about your knee pain or whatever condition you're having, and talk to them about it and have them investigate it. Because if you go one time and nothing is done, they throw ibuprofen at you and tell you to go away and they just give you the diagnosis of knee pain. That's not necessarily going to help you in your pursuit of the claim, because now we're looking at pain and then you take that to the competent examiner and then they have no workup and they have pain.

Bethanie Spangenberg: 44:09

So the medical understanding for each role is different, so to understand that the codes that are provided in the diagnosis aren't always necessarily a quote-unquote diagnosis, so that's important.

Ad: 44:28

That's true.

Bethanie Spangenberg: 44:35

I've seen it the C&P examiner. If they go through your record and they find that you don't have a current diagnosis, there's a box in that DBQ that the examiner can mark saying that you don't have a diagnosis and they never have to lay eyes on you in person. Mark that box so you don't have a diagnosis and move on.

J Basser: 44:57

Okay, liz, and move on what they?

Bethanie Spangenberg: 45:06

do, it makes their timeliness look better.

J Basser: 45:09

Mm-hmm. One thing about the medical profession, especially dealing with Medicare, medicare or whatever if you have a certain issue that you go to your doc over like a knee or something like that and they have a certain test done before you have a CAT scan or MRI You've probably seen that before too. They say you have to have a. You know, you can't just go straight to get the MRI. They've got to give you this test and that test before you get the MRI. That really isn't this test itself. It probably costs $1,000 a piece. So let's stop this practice. People Go straight to the MRI. Let's forget the test and let's save Medicare some money probably half of what they're spending. Do not get me started on you. I'd be like Sam Kennison going off on them, it's true.

Bethanie Spangenberg: 46:11

I don't know, alex, if you saw this or not, but there was a question that was posed about a veteran who was diagnosed with.

Bethanie Spangenberg: 46:26

That was posed about a veteran who was diagnosed with I think it was hypersomnia or hypersomnolence within a year of discharge and he had filed the claim and then was denied. And now he has representation and he's confused at why his veteran is getting denied because he had a quote-unquote diagnosis. And that's one of those things where the hypersomnolence is a symptom and not necessarily a diagnosis. But they can take that hypersomnolence and say you know, it started within this time period and now he has this condition time period and now he has this condition. And if that medical examiner or that medical expert can say the hypersomnolence or hypersomnolence is like when you're excessively tired or really sleepy during the day, and if you show that he has the continuity of that symptom and then now he has this diagnosis of sleep apnea, that's how you would service connect that. But it's just another example of where he has this quote-unquote diagnosis and it's a symptom, it's not a disease.

Alex Graham: 47:32

And now he's trying to fight to get that service connection that's when you get to the board you know, beat feet to the board because you're not going to get any action down below. There's nobody down below. That's a dead end and they're just going to keep giving you denials and HLRs and supplemental and another HLR and chasing your tail like a dog. That's when you start pulling out the sights, like now Ingram versus Nicholson. There's a couple of my actually use where you're in this loop where you have a symptom. That's not a condition. A condition has a diagnostic code. A symptom is a symptom of the condition, so to speak. So if you try to file, I had a vet that filed for my hands won't obey what my mind is telling him to do. He had Parkinson's.

Ad: 48:21

He didn't know it was Parkinson's.

Alex Graham: 48:23

He didn't know how to write it down in 2002. He says he literally wrote it down. My hands don't obey what my brain's telling them to do. And they came out with it was restless leg syndrome. And you're denied and in 2010,.

Alex Graham: 48:38

Of course he. Finally, they associated Parkinson's with it, so he refiled it. He says well, I was claiming, I was trying to claim that, but where I go for these things and I won it, I won it for him all the way back to 2002, in 2021. And I used it's called 3.816C Because if you filed for something before it was presumptive like an Agent Orange disease, and later on they approve it, you can go back in time, get an earlier effective date, as long as it's the same disease process. And I hornswoggled a judge up there at the BVA and I know it was legit because it was Parkinson's and that's what it was, but he didn't have a name for it. Nobody would diagnose him with Parkinson's. They gave him restless leg syndrome, choreosic movements or something. He called it.

Ray Cobb: 49:34

Everything except what it was.

J Basser: 49:37

Parkinsonian symptoms is what they say now.

Alex Graham: 49:40

Well, yeah, symptoms, right, because there isn't an acid blood test that will show it. It's just you manifest it in the form of the symptomatology. But I use Ingram versus Nicholson. It's the pro se claimant who knows that symptoms he's experiencing are causing him the disability and it's the secretary who knows the provisions of Title 38 and can evaluate whether there is a potential under the law to compensate and avert disability based on a sympathetic reading of the material that they bring to the submission. You don't know, you're not a doctor. That's why we go see Beth. Same thing with Clemens versus Shinseki.

Alex Graham: 50:23

A claimant doesn't file a claim to receive benefits only for a particular diagnosis but for the affliction his condition, whatever that is, causes him. So VA has to construe these claims for the symptoms. They have to take those symptoms and infer them back to the condition and investigate that. They can't just say, well, I'm sorry, I'm not going to pay you because that's a symptom, not a condition. So that's how I go after that, and usually it's at the board, because everybody waits and gets denied before they come to see me.

J Basser: 51:01

It's at the board because everybody waits and gets denied before they come to see me. I have a lot of friends, especially like Gil at Parkson. That's a bad thing.

Bethanie Spangenberg: 51:11

Go ahead, bethany. I was just going to mention another bullet along those same lines, trying to capture that quote-unquote current diagnosis. So I had a case where the veteran applied for the disability and then five or six years go by between his cycle of denying and him trying to get to the board and just running the hamster wheel, and then the examiner said, well, his condition isn't current and so basically, so now, even though you applied and it was current at the time that you applied now, five, six years later you're sitting in front of a C&P examiner and they're saying, well, that diagnosis was five or six years ago, you don't have one today and I'm writing an opinion today, and so that can also make it to where the veteran has to fight and really struggle. And what is current diagnosis is not taught to that medical examiner. There is no training to cover what is quote-unquote current, and so it's open to that examiner's interpretation.

Bethanie Spangenberg: 52:22

When they go for that comp and pen exam, what I tell veterans is that if you have a claim that you're pursuing, you should be seeing or talking to your doctor every 12 to 18 months for that condition so that it's documented. They don't necessarily have to treat that condition every 12 to 18 months, but it should be documented that you're still having knee pain or that you're still having back pain. So then that way, in the event, it is five or six years before you sit for that comp and pen. You have the evidence there to support that it's still active.

Alex Graham: 53:01

Well, I'm going to interject one thing here, and it's one of the oldest ones I've ever used besides. Well, there's a couple of them. It's uh, back in the dawn of the cavc, when it was still cova. It's called wilson versus derwinsky and I'd be happy to provide it to you or anybody else.

Alex Graham: 53:22

But it came out with a really great finding in the early days and he said you don't have to prove continuity of symptomatology or, excuse me, you don't have to prove continuity of treatment, you just have to prove the continuity of the disease process, that it's still active once it's been diagnosed. You don't have to keep going to a doctor in order to prove that it's active, florid, fulminant issue, and you can always use that in your defense if you don't have enough evidence in your file, saying gee, it's kind of questionable. Yes, we believe you're diagnosed with this, but is it current? Is it an active disease process as opposed to one that's quiescent, static or even has abated? As long as you can still prove it's live at a C and P, you don't need a whole lot of proof in between. But I will agree with Beth in one respect is the more ammo you got in your magazine, the longer you're going to keep shooting in the wind?

Alex Graham: 54:31

It's no fun to go in there naked, with nothing to show for other than something you know he sprained his ankle playing basketball in 1967, and now he can't walk, Okay what's in between.

Bethanie Spangenberg: 54:51

So I love this conversation because it shows the difference. It shows the difference between the legal and the medical, and those legal concepts are not taught to the medical examiners. So in order, like I guess my perspective comes from, when they go to sit down to their CMP, are they? I'm looking at the path of least resistance for that individual, for that, for that comp and pen exam. That's, that's.

Bethanie Spangenberg: 55:16

This is good to have, this is good to be able to spit those cases out and reference the legal side and you know, in the event a veteran doesn't show that they've had treatment every 12 to 18 months or within that time period before the comp and pen, then they can go back on the legal side and reference those cases to get their service connection.

Alex Graham: 55:36

Well, it's desperation cases that present with no evidence, like that. How are you going to write an IMO for them, beth, if they arrive with the DD-214, the STRs and then say and it hurts, okay. Well, what's the inner current history? Well, I don't have any. I just never went to see the doctor, I was too busy working. But now I'm retired and now I want to get it fixed and get some money from VA. You know, all you can do is throw up your hands and say well, if you don't go to see a doctor, how are?

Alex Graham: 56:10

we going to prove anything? Where's the track record? Yep.

J Basser: 56:17

Or what's this big guy? Go to the doc. Hey, doc, it hurts you to lay on my left side of my arm, but but the head box has put your arm down, laying your right side, you'll be all right. My goodness, no, but this is uh. Now, these shows like this are educational, very informative, helps people understand. Anyways, you know what they're up against. And, alex, the court case you were talking about, the cases you were talking about earlier, about the symptomology, them started out back in the early days and I think some of the major cases involved with those because I read them all and it looks like when they first started with the MS diagnosis and things like that, the neurological disorders and these guys would have symptoms in the service but they weren't service-connected and they kept going after service and finally got diagnosed with. Well, huntington's disease is one of them. Well, that's one of the hardcore cases. You ought to read that stuff.

Alex Graham: 57:15

Well, I'll tell you one that I'll share with you guys. If you've ever read any of my legal briefs, I've won two BVA cases on this where I presented everything down below and it was bulletproof. It was wrapped up, it was like a corral with no gate. You couldn't get out of it. And what the VA did is they just pretended it wasn't there. They ignored it. I submitted the IMO and they just went ahead and wrote up the SOC and ignored the guy. And I kept saying wait a minute, wait a minute. I've submitted new. This is legacy 3.156B. It's submitted during dependency of the claim. You've got to start a whole new decision involving this before you write that SOC or the SSOC.

Alex Graham: 58:06

And they had both of those things cranked out and I got up to the board and I whip out this is called McWhorter versus Derwinsky back in 91. And it says yet where an appellant has presented a legally plausible position and the secretary has failed to respond appropriately, the court deems itself free to assume the points raised by the appellant and ignored by VA to be conceded. The secretary must have blown an ass gasket. When I did that and nobody I was. Somebody gave it to me. I think it was Brad Hennings up at CCK. Yeah, that's a good one. I like that and nobody, I was. Somebody gave it to me. I think it was Brad Hennings up at CCK.

Alex Graham: 58:42

He was yeah that's a good one. I like that. You know, I love it when the appellate brings that one out. A pro se vet comes and says well, here, your honor, look at this. And I just love to say, yeah, I'm going to grant and I'm going to cite to McWhorter. So it's a powerful one and the court can use it, not the court, the board, whatever, and it kind of catches the secretary with his pants down.

J Basser: 59:08

Forty seconds left.

Bethanie Spangenberg: 59:15

Bethany, you can give your contact information out so we can get some follow-up phone calls for his meeting. So our website is wwwvalor4vetcom. Our website crashed today and it's currently being restored.

J Basser: 59:28

So visit it tomorrow, okay All right.

Alex Graham: 59:33

Are you sure VA Claims Insiders doesn't have something to do with that?

J Basser: 59:39

They probably spooked it again All right, Well, guys, we appreciate you.

J Basser: 59:41

Thanks, probably pooped it again. All right, Well, guys, we appreciate you. Thanks, James for calling in buddy. Glad you did. Sure, All right With that. I'm Beth, Bethy, Valtorvet, Ray Cobb, Alex and all the listeners tonight. We'll be signing off for now. You have been listening to the Exposed Vet Podcast. Any opinions expressed on the show are the opinions of the guest speakers and not necessarily the opinions of Exposed Vet, ExposedVetcom or Blog Talk Radio. Tune in next week for another episode of the Exposed Vet Podcast.

Ad: 1:00:18

Thanks for listening so, first day at your new job, a lot of nerves, right? Not really why? Because when you were getting your associate degree at Ivy Tech Community College, you received hands-on training on state-of-the-art technology most of it the same equipment you'll be working on today. You're ready because the staff and faculty at Ivy Tech made sure that they met you where you were at then, helped you get where you were going A new career paying 10 grand more a year than what you can get with just a high school diploma. And it all started at ivytechedu.

Ad: 1:01:00

Tick tock, tick-tock. Before you know it, the end of the year will be here, so remember to use your vision benefits before they expire. Schedule eye exams today for the whole family by visiting pearlvisioncom. Pearl Vision will cover the cost of your insurance copay or eye exam. Plus, they accept all major vision plans, including eye med. Valid prescription required, valid at participating locations. Restrictions apply, taxes, extra See store for details and 1231-23. Exams available at the independent doctors of optometry at or next to Pearl Vision. Some doctors employed by Pearl Vision