Snake Eyes

Fax informal for my claim was submitted in August of 2012 and had several issues from my original claim (reopening) that were no longer relevant and LEFT OUT a key issue (sleep apnea) from the original. When I discovered this, I contacted VA and asked to have the sleep apnea added to the claim. When I received my award letter, the effective date for sleep apnea was set as January of 2013 because the call was made before the FDC was submitted. Would this warrant a NOD for effective date? It seems to me I was trying to correct my VSO's error, not create a separate claim. The decision letter was for the entire claim, including the sleep apnea but gave separate effective dates -- apparently because sleep apnea was added to the fax informal (but submitted at the same time as the FDC). Confusing as heck, I know. LESSON HERE: Do not trust even the best VSO to know what you need. Review his or her paperwork carefully. They may know how to file all this paperwork, but they can't read your mind about which issues you want to pursue.

This may seem like a foolish question, but I was wondering if I should wait until a determination is made on the SSDI claim before filing for TDIU. I "established date of claim" for the TDIU claim by phone with Peggy, but it's not showing in eBennies yet.... makes me wonder. :-)

SSDI claim is already in -- did not have to wait six months -- probably because I was a self-employed independent contractor and have no new contract. Agreed on getting the TDIU claim in while the VA is still in a giving mood. There are three SC conditions that contribute to my inability to work, and I cited all conditions on the SSDI claim. Unfortunately, I also included one that is not SC. With my luck, I would not be surprised if Social Security honed in on that one :-)

What is OCG? I sent my FOIA request to the Regional Office in Oakland (where my file currently lives).

I'm thinking that shouldn't be an issue since I'm no longer working due to service connected issues. Do you have to be totally unemployed a certain amount of time before applying?

My zero percent was for SC. It entitles my son to a tuition remittance from any state college in our state. I never got an award letter, so his older brother graduated with a nice student loan. :-) Found this out when I reopened the claim and got a development letter. I requested my cFILE by mail as a FOIA request... And it's showing in eBennies as a claim. Supposedly will close in June of 2015. Needless to say, I'll be contacting them well before that.

Nothing about Chapter 35. It indeed was a mistake according to the VA phone rep -- they've since sent a corrected copy. Wish they had made a different mistake though :-)

I requested a copy via FOIA awhile back and got a "we're working on it" letter. I didn't specify a "center pocket" and will probably have to go back and specifically request appointment dates, etc. Either way, if they had sent an appointment notice out, you'd think I"d know. The only "old address" they could have used would be one from when I was on active duty as I had been listed at that address from my retirement date on.

Thanks! I posted my decision letter and some of the medical records for the sleep apnea part in reply to Berta's post. I wonder if there is a way of proving whether or not they actually ordered me to appear for C&P exams that I did not make. I'm certain there was none for pulmonary or I would have found a way to make it.

I received a "split decision" on 5/1/14 with an effective date of 8/24/12 for all but one condition and 1/15/13 for the remaining one. On the advice of the MHCS case worker, I applied for TDIU. Since my most recent contract expired on June 27th, I submitted an informal to get the TDIU ball rolling. In a situation like this (requesting TDIU within a year of the original decision), is the effective date still the date of the TDIU submission or is it retroactive. NOTE: I attempted to infer a TDIU in my original claim as explained below. -------------------------------------- After one C&P exam, I submitted a 21-4138 showing I made no more than $8,700 in the past three years (one of them was $4,800 and the other $7,800). I also broke down the hours worked weekly (about 22 hours) and indicated I worked an additional 20 to 24 hours UNCOMPENSATED trying to come up with ideas for new classes I could teach online. The MHCS case worker spent over an hour with me and concluded I should apply for SSDI and TDIU based on unemployability. When I mentioned this statement and one I made in the C&P exam that led the examiner to think I was full-time employed, she said it would be clear to anyone reviewing her notes that it would be impossible for me to actually put in that many hours.... it turns out almost all of the "uncompensated work time" was spent THINKING about what I could do, reading textbooks, etc. amidst frequent breaks. We'll see if we have a case. For now, the main question is how the effective date is determined in a situation like what I described above.

Hi Berta, Thanks for looking this over. Of interest in the sleep apnea case, the alleged self-report that I had apnea all my life (it was actually referring to a lump in my breast), the consult done in the same session clearly states I told them I had it "2 to 3 years" and that my wife told me I stopped breathing. On the issue of failing to report for C&P exams, I'm confused by that one as I attended the November exam they cited in the denial letter as well as exams in March (after the denial letter). In one of those exams, the Dr. noted the impression of sleep apnea but indicated a pulmonary consult would be needed to see if the VA could help. To my knowledge, no pulmonary exam was ever scheduled. The bilateral knee condition was denied based on failure to appear for an exam -- the exam I didn't appear for showed a bilateral patellofemoral condition. I found out a year or so ago that I had been rated "Zero Percent" on the knees all along, but never received a separate award letter -- maybe they didn't send letters for zero ratings back then. The back issue resulted from X-Rays being taken incorrectly (they X-Rayed mid lumbar section and the doctor examining the X-Rays from the exam I allegedly didn't appear for pointed out that they did not do a coned-down picture of the L-5/S-1 region (which was in question) and rendered a report that everything was normal. Finally, on the issue of mental health exam (called "nervous condition", they stated that no specific psych dianosis was made in-service. However, about a year of triage notes (only indicating that I had therapy or attended group therapy) and an MMPI evaluation were available in the record. My C&P shrink did not ask any questions related to my medical record and instead focused on the claustrophobia aspect of my issues. Again, I DID make these appointments, otherwise the VAMC would not have been able to send me the reports. It looks like the VARO denied the claim based on C&P exams I was not told about, but no record exists that I was contacted -- no mailings or notations in the record that indicate additional exams. Someone smarter than I cold probably pull one or more CUEs out of this crazy decision letter when paired with the C&P exam reports that were issued later in the month. As for me, it's a LOT of bloviation and legalese. QUESTION ON THIS TOPIC: Suppose they found a CUE for one or more of these issues.... what benefit would it be to me as a military retiree to pursue it? Would I not be putting my current rating at risk by bringing these issues up?OriginalDenials.pdf

Thanks for sharing. It seems a similar case to mine, and particularly favorable given that it was a misinterpretation of evidence later proved in my favor when the claim was reopened. I may have an attorney look into it. My VSO didn't seem to think I had a leg on this one. :-)

Thanks all for your insights. I have an appointment set up for an EMG soon and I'll see if they can do one as well. For now, it's Dr. Bash, since he's in the area for awhile and can do an actual exam in addition to the IMO.

Agreed. Peggy started the TDIU claim (setting date of claim as today). I'm thinking the notes from the VA shrink might seal the deal, but just in case I am getting an IMO from Dr. Bash for the SSDI. I could probably use this IME/IMO to support the TDIU claim. The VA phone rep seemed to think I could pursue the diabetes claim and the TDIU claim at the same time and they would be treated individually.

Thanks... Looks like they're paying at the 90% rate. Jim Strickland replied to a query and said someone probably made a mistake in setting up an autogenerate letter. Peggy confirmed this and is sending out an amended letter. So it's true (according to Peggy) you can be P&T for less than 100%... but in my case, that didn't apply. Go figure.

I'll check with Peggy on Monday... Definitely not being paid at the 100% rate. That would be more than $3,200 with a wife and two kids. Thanks for the reply.

This may not be the correct forum for my question, but since the letter I got today mentions IU, I put it here: The letter is a summary of benefits for use in applying for benefits at state and local level (parks, DMV, etc.). It provids claim info as well as military service info, then a series of questions under the heading VA Benefits info, including.... "Your combine service-connected evaluation is: 90 percent... Are you entitled to a higher level of disability due to being unemployable: NO... Are you considered to be totally and permanently disabled due to your service-connected disabilities: YES" How is that possible? Either you're P&T or you are not. I always thought P&T was a modifier for 100% The next question for me would be, can this help with an SSDI claim? A VA psych counselor told me that having a 70% service-connection for GAD (along with all the symptoms the BVA examiner listed) would "almost mean an automatic approval" of an SSDI claim. She was pretty emphatic in insisting I should not be working, and gave me that info in making her point.

Thanks, Navy04. So the amount witheld eventually "arrives" :-) Based on the table in the OP, only certain months are listed. They look like milestones where the payment or witholding rates change... Does that mean the witheld amounts in the months in-between are the same? That could ad up to much more than the VA originally sent me in back pay. Am I correct that the BVA pays the witheld amount (or part of it) after the DFAS audit? Guess we'll find out in DFAS' good time.

No... I'm competent (but I didn't distinguish that in my query letters). Their explanation is that they are independent and unbiased, so they only see the patient for the exam. Seems to me if an attorney hires an IME, he or she will do so with a careful selection process that benefits their client -- so what's the difference.

Award letter has a table that looks sort of like this: Total VA Benefit Amount Witheld Amount Paid Effective Date 1,753 1,753 0 Sep 1, 2012 1,782 1,782 0 Dec 1, 2012 2,033 1,785 218 Feb 1, 2013 2,034 1,811 223 Dec 1, 2013 2,034 1,811 222 Jan 1, 2014 2,033 0 2,033 May 1, 2014 DFAS RAS States: BASED ON INFORMATION RECEIVED FROM THE VA, YOUR CRDP AMOUNT IS $1,811.00. 1. Are they witholding the same amount for the months not listed? 2. Should I at least be getting the difference between the CRDP amount and the VA amount paid at some point? Based on this chart, I should be getting my full pay as of May 1 (which I am). They gave me only the amount paid above, which leads me to believe there should be quite a bit coming back (at least $2,500 based on the months not listed. Anyone know how the VA and DFAS mystery math works on this stuff?

If you have schedular P&T, there should be no reason to seek IU. You can't work at gainful employment under IU.... otherwise, there seems to be no difference in benefits. P&T Schedular has same benefits as P&T IU. Does that help?

Thanks for sharing. I've contacted a few on the site you recommended. They ask for your attorney to contact them as they cannot deal directly with the patient (at least the ones I contacted). That makes sense, since they have to be completely independent. Which makes you wonder about the docs who advertize and offer IMEs with the appearant bias toward vets. I have no problem with that, and they don't exactly hide that bias... It's just curious :-)

Kate, I don't know how to get at his wins not on record. There is a list of wins on his site. He said the CVAC ones don't show up on searches (I don't remember why). Best, Snake Eyes

In my original denial for sleep apnea in 1992, the letter said by my own statement, I had sleep apnea all my life. They also alleged I did not appear for a C&P exam (which was scheduled after the denial date -- and I appeared. C&P did not address sleep apnea, so I think they denied it bases on my alleged statement. I had this reopened in 2012 and received my award letter last month. Basically, what happened was the treating doc was addressing two complaints -- sleep apnea and a rash on my chest. He wrote down notes about the OSA then asked me how long my left side had been larger than the right (to see if it had anything to do with the rash). I replied that I had that as long as I could remember.. And he wrote, "pt says has had all his life", then went back to talking about the sleep apnea. I won by showing from family and buddy statements that I didn't have OSA early in service but did have the lopsided chest. Seemed to me it was an honest mistake by the rater in reading my record... VSO agreed, but a doc recently suggested it might be a CUE. Any thoughts?

No on the guaranteed win. I've seen plenty of reports about Dr. B and others where solid IMOs were denied. I'm looking for a doc who is open minded about the connection between OSA and Diabetes, and who can do an actual exam. Dr. Bash and Dr. Ainse are open minded on the question and Dr. Bash can do an exam. Whether the research applies in my case remains to be seen. But I'm optimistic. Whether the VA will approve without BVA appeal is questionable. But we won't know until we try.