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Is This A Cue/opinions Please

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*Bergie*

Question

I am helping a family member who is a retired VN vet with his case where the VARO is trying to reduce his award. In the process of gathering documentation we requested copies of ALL his claim files. I just got to looking and in 2004 he filed for TDIU, he was at 80% and was forced to quit working due to his SC'd total knee replacement. Which also caused his other knee (also SC'd) to deteriorate to a point that his mobility was severely limited. Ok, so I'm reading the C&P exam and it states that due to his "non" SC'd and SC'd disabilities he is unable to work, and if he did find work would not be able to maintain it. It was my understanding that the benifit of doubt goes to the vet. Needless to say they denied it SOC states he is "considered capable of gainful employment based on a review of the evidence and facts." It goes on to state that "the current orthopedic conditions and DM have not caused any significant unemployment history, and do not limit any such future employment." WTF, he applied because the orthopedic condition had deteriorated, and the C&P doc stated as much. Is this a CUE or not!!!

Thanks,

Bergie

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What percentage is this vet SC'd at and for what DC's ?

Did the VA send this vet a Proposal to Reduce Benefits ?

Did VA provide any Reason for this proposal to Reduce ?

If yes, what Reason ?

80% overall////SC'd-20% dc7913/ 60%-dc5055/ 10%-dc5010/ 10%-dc5257/ 20%-dc5257/ 0%-dc5024

Today was the hearing for the reduction of dc5055 from 60% down to 30%. The reduction came about following a C&P exam for increase of Sc'd right/left knees. The C&P doctor ripped him, turning everthing he said into false misleading statements. For instance he left his knee braces home, he thought this would help the doctor in her examination. The doctor wrote he NEVER uses knee braces, she also wrote no "stiffness/weakness/instability. However, she never asked if he had any of these conditions. He's old and does what he's told by the doctor, no questions asked. Also, he failed to sign and submit a medical release for because all his treatment comes from a private doctor, not the VAMC. The reduction reason was that he had "improved."

When he filed for IU in 2004 - have you seen where a doctor wrote,

"forced to quit working due to his SC'd total knee replacement".

Yes, it says "due to his non SC'd and SC'd conditions he is unable to work. Even if he could find a job, he would not be able to maintain employment"

I believe the hearing will be a good outcome, that's my take anyway. Funny thing though, after I argued the case the DAV rep asked me if I wanted to work for the DAV. He said I presented the case better than many of his co-workers, (LOL).

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For instance he left his knee braces home, he thought this would help the doctor in her examination.

Also, he failed to sign and submit a medical release for because all his treatment comes from a private doctor, not the VAMC. The reduction reason was that he had "improved."

WELL - these were two big mistakes on his part.

When he filed for IU in 2004 - have you seen where a doctor wrote,

"forced to quit working due to his SC'd total knee replacement".

Yes, it says "due to his non SC'd and SC'd conditions he is unable to work. Even if he could find a job, he would not be able to maintain employment"

I think John999 pointed this out earlier, "due to his non SC'd etc...."

I do not see any area to CUE.

carlie

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It is just my opinion but I think more information is still needed. If he was 80% in 2004 and filed for IU what was the date of his 80% service connected award. Whenever he was awarded service connection at 80%, VA should have considered evaluating him for IU, depending on the information in his file at that time would shed more light. Does his private medical records states that he is unemployable due to his service connected conditions? Not knowing the whole story is just guessing or assuming but the bottom line is to take it one step at time. Make sure that he gets to keep his current rating and make sure it is in writing and then deal with the situation as to if VA made a mistake or not. It really don't matter, if he was awarded 80% before 2004 and had evidence in his file that he was unemployed, VA should have consider IU at that time. The C & P exam in 2004 should be refuted by incorporating his private doctors' records with his claims folder and hopefully that will solve his current rating problem. I am just going on your statement:

I just got to looking and in 2004 he filed for TDIU, he was at 80% and was forced to quit working due to his SC'd total knee replacement
I would really look into when he met them minimum requirements of IU, was it in 2004 or before? What were the non services connected conditions in 2004? Are they service connected now?

If I am off someone else will chime in and correct me.

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  • HadIt.com Elder

The VA should consider IU if a vet is 80%, but if he has a NSC and SC conditions quoted as being the reason he can't work then his IU claim is in trouble. If he had gone to a doctor and gotten another opinion saying that although he does have NSC disabilites it is his SC disability that is the "sole" reason he can't work then he should have gotten IU. Let that word "Sole" burn into your brain because that is the definition of IU. You can be rated 90% but unless that is the sole reason you cannot work then you are screwed. Not main reason, but sole reason.

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I agree but the post does not say when the veteran was awarded 80% or when the veteran was forced to quit work. If it was in 2004 then the veteran has problems but if it was prior to 2004 and the veteran finally filed a claim for TDIU in 2004 then I would have questions.

Example: Veteran was forced to quit work in 2001, veteran was then awarded 80% in 2002 and VA should had considered TDIU. Veteran got worst and filed a claim for TDIU in 2004 and C & P notes were, he was unemployable is due to SC and NSC conditions. If he met the minimum requirements in 2002, I would have questions. I know most likely all this happened in 2004 but for me knowing more information would help.

Edited by pacmanx1
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  • HadIt.com Elder

If the vet was 80% in 2001 and the VA knew he was unemployable due to his SC condition that should have been an inferred claim for IU. In that sense I agree that in such a situation the VA did commit an error. For instance, the vet is rated 80% and the VA knows the vet is on SSD. That should infer a claim for IU. This according to VBM. Any time there are NSC and SC conditions that contribute to being unemployable it complicates the situation big time. What this vet needs to do now is get IU. Worry about EED later.

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