ptsd Would Tdiu Being Deferred Be A Cue?

[thomasc]

I could really use some direction, just really confused and tired of being patient! So I think I might have a CUE.

July 2010, I was awarded 70% PTSD, 30% GERD, 10% ankle = 80%. I asked for an increase in PTSD and GERD and VA logged it as an appeal.

April 2011, I submitted for TDIU using 8940, turned in supporting evidence from Voc. Rehab (Oct. 2011), mental health doctor letter(Oct. 2011), SSA Award(Nov. 2011).

Feb. 2012, I receive a letter stating that Entitlement to Individual Unemployability is deferred because additional information or evidence is needed, IU will be address after appeal issues are decided.

May 2012, VA sends me a letter stating that my IU and appeal are intertwined. My VSO recommended withdrawing the appeal so IU could be decided, and so we did this.

Oct. 2013, receive rating letter with PTSD 70% staying the same, GERD 30->60%, no mention of ankle increase, with a denial of TDIU, because "I have not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities." I guess the good news is VA paid me for my time at PTSD inpatient.

So its hard to know were to start my questions exactly, but it seems that VA was wrong to defer TDIU when they had all the evidence needed to make a decision. Could I CUE this using Rice V Shinseki as this should not have been a separate claim for benefits but an entitlement? Does the VA think SSDI is a gainful occupation? My rating letter made no reference to SSA award but has it in evidence section.

I keep thinking asking for an increase(appeal) and TDIU should not have intertwined, but just another VA delay tactic.

I've been trying to find FL 08-06 (feb 27,2008) as it is referenced in TL 10-07 section The Rating Decision and explains resolving deferrals.

Thanks for reading and any advise would be greatly appreciated.

Edited January 15, 2014 by thomasc

[Berta]

That was it??????? WTF????

No mention at all in the narrative of your SSDI award, which as you stated, is for your established SCs.

Also They listed the IMO from Dr. Kodis as evidence but I didnt see it referred to anywhere in the decision.

I did not see any medical rationale at all for the fact that the VA accepted the C & P examiner's results.....they usually always parse the C & results.)or manipulate them) but I didnt see any mention of whatever the C & P doc said.....

Am I reading this wrong? Hopefully others will chime in on the decision.....

OK the Voc Rehab stuff wont help but with a SSDI award solely for SCs (which contains ,in essense, an IMO from a SSA disability specialist) and an IMO from Dr. Kodis which the VA did not even seen to acknowledge, this is,in my opinion a VERY VALID basis for requesting them to call a CUE on themselves under 38 USC 4.6,:

“Title 38: Pensions, Bonuses, and Veterans' Relief

CHAPTER I: DEPARTMENT OF VETERANS AFFAIRS

PART 4: SCHEDULE FOR RATING DISABILITIES

Subpart A: General Policy in Rating

4.6 - Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

http://cfr.vlex.com/vid/4-6-evaluation-evidence-19774393

I have used this reg successfully from 38 USC and CFR, and I highlighted this part in magic marker for them to read....

"Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

That is the epitome of ALL of our rights as claimants.

“ I was in the habit of just shredding denied ratings, but now realize they are a tool to be used. “ YES Save everything...my current 2 claims have probative evidence I kept since 1992. Although the VA had it as well, my last C file copy showed they must have thrown it out.

“She said to ask for an earlier effective date. Does this sound right?”

Yes, but she meant to raise this issue in a formal NOD.

You can raise their errors in a NOD as well on the evidence they did not consider (but admitted they had) but personally ,I would ask them to CUE that decision and do it right.

38 USC 4.6 contains our evidentary rights:

“Title 38: Pensions, Bonuses, and Veterans' Relief

CHAPTER I: DEPARTMENT OF VETERANS AFFAIRS

PART 4: SCHEDULE FOR RATING DISABILITIES

Subpart A: General Policy in Rating

4.6 - Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

http://cfr.vlex.com/vid/4-6-evaluation-evidence-19774393

If you request they CUE the decision and/or file a NOD, send them a printout of that reg as evidence.

Do you have a diagnosed TBI? Did they give you a C & P exam for it?

Can you prove a nexus to your service for it? Is the PTSD related to any TBI incident VA has already conceded?

Do you take VA prescribed NSAIDs for anything.......NSAIDs with long term use can cause GERD.

Sometimes I think I have seen it all.......

and then something like this pops up.....

You can file the CUE as an IRIS complaint but follow it up with a formal written request.

Other then the Voc Rehab statement there is nothing here, in my opinion, that warrants their TDIU denial at all.

One once the VA documents stuff, they have a hard time squirming out of it and it can be used against them.

Whatever you do, put Attention to: and use the initials in the numeric/alphabetic code to the rioght of the decision over the date.

This holds the initials of the last person who worked your claim.

I think they also need a copy of "Reading For Dummies"

Do you have a vet rep with enough ba...s... oooooppps,

with enough common sense and knowledge of VA 101 to help you fight this obvious violation of your rights?

Edited January 11, 2014 by Berta

[thomasc]

Thanks Bertha, you Rock! Maybe I should have you look at the crazy rating letter from Feb. 2012.

I've been typing my reply but when I go to post it all disappears.

I was diagnosed with a TBI by the VA hospital did MRI, but never given a C&P. It's like the VA just ignored all the evidence, and made a decision(back log). TBIs weren't really documented that well when OEF first kicked off(2002), but was just considered a bump to the head. Its in my PTSD counseling notes.

My GERD includes a bunch of other Gastro conditions, but VA blames all my conditions on either my GERD or PTSD(headaches, sleep disturbances, fatigue). It seems VA doctors are afraid to give diagnoses, or tell Veterans what's really going on. I understand their catch 22, but its not fair to Veterans.

It seems that my VSO would rather not call a CUE on the VA, not sure why. I sense a good old boy system. Sometimes I wonder if VSOs forget who their representing(Veterans or VA). I notice I get some action when I mention revoking power of attorney.

I was talking to a VSO who said "you should be happy with 90%" I was thinking WTF are you talking about, happy! He also said "he would never go to a VA hospital!" Wow, kind of defeats the purpose of having a VA hospital. As Veterans we shouldn't avoid VA hospitals, but continue to request fair treatment.

Thanks, again.

Edited January 15, 2014 by thomasc

[john999]

VA doctors are afraid to make statements drawing a nexus between a condition and military service.

[john999]

Your VSO's don't know how to argue CUE's. When I mentioned my desire to file a CUE to an AL VSO he turned pale, and he was a black guy.

[thomasc]

So, I met with my VSO today to try discuss mistakes in my rating letter, but she kept shutting me down. She said "we have an informal meeting and to wait till then." Not sure what happens at these meets, but I figured a little planning couldn't hurt. You ever have that feeling like the VA's got to those people helping you with your claim? from VSOs to VA doctors kind of like they were warned not to help you.

I can't stand it when my VSO reads off everything I've ever claimed, its like a way for her to put me in my place. VA reps do this too! Well if it was denied you don't have it, or it never happened! and shouldn't be questioned.

Amazing, I thought I had everything in line, but find myself taking a step back.

Edited January 15, 2014 by thomasc

[Berta]

This is the most updated VSO list from the VA:

http://www.va.gov/vso/VSO-Directory_2012-2013.pdf

I dont now if it includes County Veterans Service Agencies and State Divisions of Veterans Affairs.