Verification

[Dinnard]

I would like confirmation that I'm correct in my calculation that my husband is at 70% He was denied by DRO review because he is not at 70% He has been 70% for 4 years with 50% bilateral, 20% and 10%, I have used several different formats and always come up with 68% which would be 70%.

A little background. He was a Veteran Benefit Rep in Kentucky. In July, 2010 he had surgery on his left foot, screws and plates were put in and his ankle was fused. The Kentucky Department of Veteran Affairs denied his request for time off for surgery and recovery, He was desperate to get pain relief so he took retirement with only 10 years of service. He was given 3 months of 100%, however his foot was not healing and he needed extended recovery but was denied without having the required exam. His doctor provided the necessary info supporting this, however we had a trip planned and paid for prior to his having surgery to go on vacation with our children. He rescheduled one PT appointment for our trip. I rented a scooter for him since he could not walk at all. He was denied based on missing the one PT appointment.

The surgery was considered a failure due to the screws not being placed correctly and the pain increased rather than decreased. He was/is having to take multiple medications for pain and now has a VA provided scooter, lift and ramp. He was advised to file for IU which he did and was denied. In every stage he has been denied for something different such as he could do sedentary work. There has been no consistency. I seriously doubt anyone will hire a 65 year old man using a scooter and taking medications which cause him to fall asleep every time he sits down, Here are my questions.

Am I correct that he meets the % required for IU?

Was filing a CUE the right way to go?

Would this be retro to November, 2010 when he was first denied?

The CUE was filed in May in Nashville, what would be estimated time for response?

Thank you so much for any info you can provide.

[infantry10]

My understanding for IU is, you don't have to be a certain percentage to have IU awarded. If this is correct, how could VA deny him based on his percentage?

[Dinnard]

this was the reason for denial

DECISION:

Entitlement to individual unemployability is denied (TDIU).

REASONS AND BASES:

As noted, your claim was denied in the rating decision of July 9, 2011. You were notified about this denial on September 12, 2011.

38 CFR 4.16(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at

40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.

Regrettably, entitlement to a total rating based on individual unemployability (TDIU) remains denied, as the combined evaluation of your service connected disabilities fails to meet the schedular requirement.

Listed records were reviewed and considered in this rating decision.

[Berta]

From what you posted they committed a CUE by failure to address 38 CFR 4.16 (B)

http://www.law.cornell.edu/cfr/text/38/4.16

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 CFR 4.16 (b)

That is the legal error they made,if they didnt consider extraschedular consideration.

I bet the VA fully sees the implications ere of a VA medical screw up....but as long as he doesn't claim under 1151,they dont care

“Did he file under 1151, if this was a VA medical error? HE DID NOT. YOU WOULD HAVE TO KNOW MY HUSBAND. HE FEELS LIKE HE IS ASKING FOR A HANDOUT AND WOULD NOT HAVE PURSUED THIS IF IT WASN'T FOR ME PUSHING. “

I won Section 1151 for wrongful death of my husband and won a FTCA award too.

Handout? I don't consider death by VA or any vet with disability directly due to VA being given a handout,if they get a 1151 award.

But I see your husband's point somewhat.....

There is no honor in a 1151 disability or death. I re-opened my DIC claim and was awarded two separate direct SC death awards.

I went to Rod's grave 2 weeks ago and can still hear him telling me the day he died, 'if the VA kills me, go after them for everything you can get.'

That was 19 years ago he said that hours before he died.,

I am still going after them for everything they owed him.

If your husband's disabilities the VA malpracticed on, are ever instrumental in causing or contributing to his death, the VA would award you DIC under 1151.

This was my husband's prime concern the morning of his death.....my DIC.......

I thought he had been getting better,after suffering from a major stroke,and never had a thought about any DIC at all,

but he died as I gave him CPR in our barn 4 hours later.

He was a Vietnam Combat veteran, USMC and also served in the USN.

If I had not pursued his 1151 claim when he died , the VA would have completely gotten away with killing a decorated Vietnam Combat veteran, USMC ,who also served in the USN and was exposed to AO.

They almost killed his best friend too. I got his friend 100% and SMC under 1151.

[Philip Rogers]

My understanding for IU is, you don't have to be a certain percentage to have IU awarded. If this is correct, how could VA deny him based on his percentage?

The VA routinely denies TDIU using that exact quote, 38 CFR 4.16(a). They used it on my claim back in 1991 and, at first, I agreed w/them, until I read the whole 38 CFR 4.16. They purposely deny claims all the time, by misleading the claimant. The claimant must appeal that decision and request an extra-scheduler rating, as they are instructed not to bring extra-scheduler up, unless the claimant asks for it.

I assisted a local VFW volunteer VSO win TDIU who had gone to his congressman twice for help. The VA kept telling them that 50% was the maximum allowed for a skin condition, which was true but they never mentioned extra-scheduler rating. He won $72k retro and could've have won more but he didn't want to rock the boat.

pr

[Berta]

Yeah, PR you are right......I rethought over what I posted......

If the vet didnt ask for extraschedular , maybe there was nothing in the med recs to rompt the VA to consider it.....and then it might not be a CUE basis

THEN AGAIN , the VA buggered this vet with piss poor Medical care....

“The surgery was considered a failure due to the screws not being placed correctly and the pain increased rather than decreased. He was/is having to take multiple medications for pain and now has a VA provided scooter, lift and ramp. He was advised to file for IU which he did and was denied. “

I personally would appeal that denial ,maybe asking for reconsideration would be better at this point , and ask for extraschedular consideration and then file,at the same time, a claim under 38 USC , 1151 , due to unemployability caused by VA medical care.I would refer to both of these claims ,after that,in any correspondence I would get from the VA.

Also you need to direct any correspondence like that to Attention To: and use the initials appearing in the numeric code at the right hand side of the letter.That might get this back to the same rater

There might be a CUE in the decision. Maybe VA did mention enough evidence to have considered extraschedular and didnt.

Can you scan and post the Reasons and Bases part and the evidence list here (cover name,address, C file number)?

I would also definitely get an IMO for the 1151 claim,ASAP ,to support the inability for him to work . .

The IMO criteria is here in our IMO forum.

a. Extra-Schedular Evaluations in Compensation Claims

Consider the issue of entitlement to an extra-schedular evaluation in compensation claims under

• 38 CFR 3.321(b)(1) only where

• the issue is expressly raised by the veteran, or

• there is evidence of exceptional or unusual circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to disability (for example, marked interference with employment or frequent periods of hospitalization)

• 38 CFR 4.16(b)

• whenever the issue is expressly stated

• when there is evidence that the veteran may be unable to secure or follow a substantially gainful occupation because of disability, or

• total disability based on individual unemployability (IU) cannot be granted on a schedular basis.

Reference: For more information on total disability claims, see

• VAOGCPREC 6-96 dated August 16, 1996

• Floyd v. Brown, 9 Vet. App. 88 (1996), and

• Bagwell v. Brown, 9 Vet. App. 337 (1996).

Source :M21-1MR, Part III, Subpart iv, Chapter 6, Section B ,under 5

There is more to this in M21-1MR at

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CC0QFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch06%2Fch06_secb.doc&ei=1xVxUuesGNKEygGVgYEg&usg=AFQjCNHL5Ny6bA44KDqnaAcBn1TguErCiA&bvm=bv.55617003,d.aWc

[Dinnard]

Here is the document

DEPARTMENT OF VETERANS AFFAIRS

VA Regional Office

110 9th Avenue South

Nashville, TN 37203

MAY 2 9 2013

In Reply Refer To:

397/AMC/MF

24981835

Dear

You have filed a Notice of Disagreement with our action. This is the first step in appealing to

the Board of Veterans' Appeals (BVA). This letter and enclosures contain very important

information concerning your appeal.

Statement of the Case

We have enclosed a Statement of the Case, a summary of the law and evidence concerning

your claim. This summary will help you to make the best argument to the BVA on why you

think our decision should be changed.

What You Need To Do

To complete your appeal, you must file a formal appeal. We have enclosed VA Form 9,

Appeal to the Board of Veterans' Appeals, which you may use to complete your appeal. We

will gladly explain the form if you have questions. Your appeal should address:

• the benefit you want

• the facts in the Statement of the Case with which you disagree; and

• the errors that you believe we made in applying the law.

When You Need To Do It

You must file your appeal with this office within 60 days from the date of this letter or within

the remainder, if any, of the one-year period from the date of the letter notifying you of the

action that you have appealed. If we do not hear from you within this period, we will close

your case. If you need more time to file your appeal, you should request more time before the

time limit for filing your appeal expires. See item 5 of the instructions in VA Form 9, Appeal

to Board of Veterans' Appeals.

Hearings

You may have a hearing before we send your case to the BVA. If you tell us that you want a

hearing, we will arrange a time and a place for the hearing. VA will provide the hearing room ,

the hearing official, and a transcript of the hearing for the record. VA cannot pay any other

expenses of the hearing. You may also have a hearing before the BVA, as noted on the

enclosed VA Form 9, Appeal to the Board of Veterans' Appeals. Do not delay filing your

appeal ifyou request a hearing. Your request for a hearing does not extend the time to

file your appeal.

Representation

If you do not have a representative, it is not too late to choose one. An accredited representative

of a recognized service organization may represent you in your claim for VA benefits without

charge. An accredited attorney or an accredited agent may also represent you before VA, and

may charge you a fee for services performed after the filing of a notice of disagreement. In

certain cases, VA will pay your accredited agent or attorney directly from your past due

benefits. For more information on the accreditation process and fee agreements (including

filing requirements), you and/or your representative should review 38 U.S.C. § 5904 and 38

C.F.R. § 14.636 and VA's website at http://www.va.gov/ogc/accreditation.asp. You can find

the necessary power of attorney forms on this website, or if you ask us, we can send you

the forms. You can also find the names of accredited attorneys, agents and service

organization representatives on this website.

What We Will Do

After we receive your appeal, we will send your case to the BVA in Washington, DC for a

decision. The BVA will base its decision on an independent review of the entire record,

including the transcript of the hearing, if you have a hearing.

Sincerely yours,

A. Odom

Veterans Service Center Manager

Enclosure(s): VA Form 9

Appeal Hearing Options

CC: KCVA

APPEAL TO BOARD OF VETERANS' APPEALS

efore you jill out thisform. VA also encourages you to get assistancefronryour

1. NAME OF VETERAN (Last Name. First Name, Middle Initial ) 2. CLAIM FILE NO. (Include prefix ) 3. INSURANCE FILE NO.. OR LOAN NO.

4.1 AM THE: 0 VETERAN 0 VETERAN'S WIDOWlER 0 VETERAN'S CHILD 0 VETERAN'S PARENT

0 OTHER (Specifj')

5. TELEPHONE NUMBERS

7. IF I AM NOT THE VETERAN, MY NAME IS:

(Last Name, First Name, Middle Initial)

8. OPTIONAL BVA HEARING

IJI1PORTANT: Read rhe it?(onnation about rhis block in paragraph 6 of the artached instrucrions. This block is used to request a Board of Veterans'

Appeals hearing. DO NOT USE THIS FORM TO REQUEST A HEARING BEFORE VA REGIONAL OFFICE PERSONNEL.

Check one (and only one) o(rhefol/'1wing boxes: ',

I

A. D I DO NOT WANT A BVA HEARING.

B. 0 I WANT A BVA HEARING BY LIVE VIDEOCONFERENCE.

c. D I WANT A BVA HEARING IN WASHINGTON, DC.

D. D I WANT A BVA HEARING·AT A LOCAL VA OFFICE!

*Due to rrm!e/ requirements/orBVA per.wmnel, selecting Option D may result in a lengthier waiting period for the hearing than the other oplions. (This option is also not

available at the Washington, DC, or Boltimore, MD, Regional Offices.)

9. THESE ARE THE ISSUES I WANT TO APPEAL TO THE BVA: (Be sure to read the informalion about this block in paragraph 6 of the allached instmctions.)

A. D I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE

THAT MY LOCAL VA OFFICE SENT TO ME.

B. D I HAVE READ THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENT OF THE CASE I RECEIVED. I AM ONLY APPEALING THESE

ISSUES: ·

( List below.)

10. HERE IS WHY I THINK THAT VA DECIDED MY CASE INCORRECTLY: (Be sure to read the information about this block in paragraph 6 o f the auached instructions.)

(Comintt e on the back. or attach sheers o_f paper, {( you need mon: space.)

11 SIGNATURE OF PERSON MAKING THIS APPEAL 12.DATE

(MM IDD!rl'l'l' )

1 3. SIGNATURE OF APPOINTED REPRESENTATIVE, IF ANY

("'lot required {ls(f!.ned h.1· a ppell ant. See para ra

inst r uction. )

14. DATE

(Af/11/DD/}·lT}')

·.

Department of Veterans Affairs

Form Approved: OMB No. 2900-0085

Respondent Burden: 1 Hour

IMPORTANT: Read the attached instructions b

representative ill filling out this(orm.

VA FORM 9

NOV 2009

Adobe LiveCycle Designer

Statement of the Case Department of Veterans Affairs Page 1

05/25/2013

NAME OF VETER AN I VA FILE NUMBER I S OCIAL SECURITY NR PO A

24981835 I KCVA

ISSUE:

Entitlement to individual unemployability.

EVIDENCE:

• VA Notification letter dated September 12, 2011.

• Notice of Disagreement received November 21, 2011 .

• Statement from Dr. Photos dated September 30, 2011 and received September 12, 2012.

• Claim considered based on all evidence of record.

ADJUDICATIVE ACTIONS:

07-09-2011 Rating Decision.

09-12-2011 VA Notification letter sent to Veteran.

11-21-2011 Notice of Disagreement received.

PERTINENT LAWS; REGULATIONS; RATING SCHEDULE PROVISIONS:

Unless otherwise indicated, the symbol "§" denotes a section from title 38 ofthe Code of Federal

Regulations, Pensions, Bonuses and Veterans' Relief Title 38 contains the regulations of the

Depmiment of Veterans Affairs which govern entitlement to all veteran benefits.

§3.1 02 (New) Reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to

administer the law under a broad interpretation, consistent, however, with the facts shown in

every case. When, after careful consideration of all procurable and assembled data, a reasonable

doubt arises regarding service origin, the degree of disability, or any other point, such doubt will

be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an

approximate balance of positive and negative evidence which does not satisfactorily prove or

disprove the claim. It is a substantial doubt and one within the range of probability as

distinguished from pure speculation or remote possibility. It is not a means of reconciling actual

conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any

statements submitted, as distinguished from impeaclunent or contradiction by evidence or known

facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the

entire complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine

is also applicable even in the absence of official records, particularly if the basic incident

allegedly arose under combat, or similarly strenuous conditions, and is consistent with the

probable results of such known hardships. (Authority: 38 U.S.C. 501(a))

Statement of the Case Department of Veterans Affairs Page 2

05/25/2013

NAME OF VETERAN I VA FILE NUMBER I SOCIAL SECURITY NR POA

24981835 I KCVA

§3.159 (New) Department of Veterans Affairs assistance in developing cl aims.

(a) Definitions. For purposes of this section, the following definitions apply:

(1) Competent medical evidence means evidence provided by a person who is qualified through

education, training, or experience to offer medical diagnoses, statements, or opinions. Competent

medical evidence may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in authoritative writings such as

medical and scientific articles and research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the proponent have specialized

education, training, or experience. Lay evidence is competent if it is provided by a person who

has knowledge of facts or circumstances and conveys matters that can be observed and described

by a lay person.

(3) Substantially complete application means an application containing the claimant's name; his or

her relationship to the veteran, if applicable; sufficient service information for VA to verify the

claimed service, if applicable; the benefit claimed and any medical condition(s) on which it is

based; the claimant's signature; and in claims for nonservice-connected disability or death pension

and parents' dependency and indemnity compensation, a statement of income.

(4) For purposes of paragraph ©(4)(i) of this section, event means one or more incidents

associated with places, types, and circumstances of service giving rise to disability.

(5) Information means non-evidentiary facts, such as the claimant's Social Security number or

address; the name and military unit of a person who served with the veteran; or the name and

address of a medical care provider who may have evidence pertinent to the claim.

(b) VA's duty to notify claimants of necessary information or evidence.

(1) When VA receives a complete or substantially complete application for benefits, it will notify

the claimant of any information and medical or lay evidence that is necessary to substantiate the

claim. VA will inform the claimant which information and evidence, if any, that the claimant is to

provide to VA and which information and evidence, if any, that VA will attempt to obtain on

behalf of the claimant. VA will also request that the claimant provide any evidence in the

claimant's possession that pertains to the claim. If VA does not receive the necessary information

and evidence requested from the claimant within one year ofthe date of the notice, VA cannot

pay or provide any benefits based on that application. If the claimant has not responded to the

request within 30 days, VA may decide the claim prior to the expiration of the one-year period

based on all the information and evidence contained in the file, including information and

evidence it has obtained on behalf of the claimant and any VA medical examinations or medical

opinions. If VA does so, however, and the claimant subsequently provides the information and

evidence within one year ofthe date of the request, VA must readjudicate the claim. (Authority:

38 U.S.C. 5103)

Statement of the Case Department of Veterans Affairs Page 3

05/25/2013

NAME OF VETERAN I VA FILE NUMBER I SOCIAL SECURITY NR I POA

24981835 KCVA

(2) If VA receives an incomplete application for benefits, it will notify the claimant ofthe

information necessary to complete the application and will defer assistance until the claimant

submits this information. (Authority: 38 U.S.C. 5102(b), 5103A(3))

© VA's duty to assist claimants in obtaining evidence. Upon receipt of a substantially complete

application for benefits, VA will make reasonable efforts to help a claimant obtain evidence

necessary to substantiate the claim. In addition, VA will give the assistance described in

paragraphs ©(l), ©(2), and ©(3) to an individual attempting to reopen a finally decided claim.

VA will not pay any fees charged by a custodian to provide records requested.

(1) Obtaining records not in the custody of a Federal department or agency. VA will make

reasonable efforts to obtain relevant records not in the custody of a Federal department or agency,

to include records from State or local governments, private medical care providers, current or

former employers, and other non-Federal governmental sources. Such reasonable efforts will

generally consist of an initial request for the records and, if the records are not received, at least

one follow-up request. A follow-up request is not required if a response to the initial request

indicates that the records sought do not exist or that a follow-up request for the records would be

futile. If VA receives information showing that subsequent requests to this or another custodian

could result in obtaining the records sought, then reasonable efforts will include an initial request

and, if the records are not received, at least one follow-up request to the new source or an

additional request to the original source.

(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from

non-Federal agency or department custodians. The claimant must provide enough information to

identify and locate the existing records, including the person, company, agency, or other

custodian holding the records; the approximate time frame covered by the records; and, in the

case of medical treatment records, the condition for which treatment was provided.

(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable

to the person, company, agency, or other custodian holding the records. (Authority: 38 U.S.C.

5103A(b))

(2) Obtaining records in the custody of a Federal department or agency. VA will make as many

requests as are necessary to obtain relevant records from a Federal department or agency. These

records include but are not limited to military records, including service medical records; medical

and other records from VA medical facilities; records from non-VA facilities providing

examination or treatment at VA expense; and records from other Federal agencies, such as the

Social Security Administration. VA will end its efforts to obtain records from a Federal

department or agency only ifVA concludes that the records sought do not exist or that further

efforts to obtain those records would be futile. Cases in which VA may conclude that no further

efforts are required include those in which the Federal department or agency advises VA that the

requested records do not exist or the custodian does not have them.

Statement of the Case Department of Veterans Affairs Page4

05/25/2013

NAME OF VETERAN I VA FILE NUMBER I SOCIAL SECURITY NR POA

24981835 I KCVA

(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from

Federal agency or department custodians. If requested by VA, the claimant must provide enough

information to identify and locate the existing records, including the custodian or agency holding

the records; the approximate time frame covered by the records; and, in the case of medical

treatment records, the condition for which treatment was provided. In the case of records

requested to corroborate a claimed stressful event in service, the claimant must provide

information sufficient for the records custodian to conduct a search of the corroborative records.

(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable

to the custodian or agency holding the records. (Authority: 38 U.S.C. 5103A(b))

(3) Obtaining records in compensation claims. In a claim for disability compensation, VA will

make efforts to obtain the claimant's service medical records, if relevant to the claim; other

relevant records pertaining to the claimant's active military, naval or air service that are held or

maintained by a governmental entity; VA medical records or records of examination or treatment

at non-VA facilities authorized by VA; and any other relevant records held by any Federal

department or agency. The claimant must provide enough information to identify and locate the

existing records including the custodian or agency holding the records; the approximate time

frame covered by the records; and, in the case of medical treatment records, the condition for

which treatment was provided. (Authority: 38 U.S.C. 5103A©)

(4) Providing medical examinations or obtaining medical opinions.

(i) In a claim for disability compensation, VA will provide a medical examination or obtain a

medical opinion based upon a review of the evidence of record if VA determines it is necessary to

decide the claim. A medical examination or medical opinion is necessary if the information and

evidence of record does not contain sufficient competent medical evidence to decide the claim,

but:

(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or

recurrent symptoms of disability;

(B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or

symptoms of a disease listed in §3.309, §3.313, §3.316, and §3.317 manifesting during an

applicable presumptive period provided the claimant has the required service or triggering event

to qualify for that presumption; and

© Indicates that the claimed disability or symptoms may be associated with the established

event, injury, or disease in service or with another service-connected disability.

(ii) Paragraph (4)(i)© could be satisfied by competent evidence showing post-service treatment

for a condition, or other possible association with military service.

!