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cballard
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Posts posted by cballard
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I am rated 80% and was denied TDIU in April 2009. (I won't go into that again) I already have my NOD written but have not sent it in because I was waiting for ALJ hearing last Thursday for SSDI (APPROVED back to April 2007 oohrah!!!).
In my NOD I invoked the reasonable doubt clause because the VA offered some rather fuzzy reasons to disproved my claim and (in my opinion) all evidence supports my claim leaving us at a stalemate.
1) Should I leave the reasonable doubt in my NOD?
2) Do I simply send the SSDI decision as new evidence?
I want to thank everyone who helped answer my previous NOD questions because that was critical in developing my SSDI claim as all evidence was based on VA claim.
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can anyone tell me if they have been dx with fibro and what the percent is? i will be having an exam this week for it.
jim,
I am diagnosed with service connected fibro rated at 20%. It is combined with chronic fatigue (20%) and irritable bowel syndrome (10%) with a total for cluster symptoms (Gulf War Illness) of 40%.
hope your claim goes well,
chris
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Hello I had pretty much the same denial letter with my claim as 1 of my SC conditions was the reason I was disabled from my civillian job. I had to take a deep breath as I understood it to be smae old thing over and over again. I wish you the best of luck with your claim...
Thanks Leatherneck, I can use all of the luck I can get at this point. I don't make much of a garrison Marine and not too good at the admin stuff anymore.
Now that I can't work at all though, I don't have anything better to do but sit here and surveil their tactics. The whole process apparently hinges solely on semantics.
I hope all goes well with your claim also. Semper Fi!
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70% PTSD w/ a GAF of 43, 40% cluster symptoms (GWI), and 10% bilateral hearing loss
I finally have a hearing June 4 with ALJ for SSD. My SSA witholdings will prove work history. SSA even commented on work history during the initial interview because she had to go through such a long list of employment.
I haven't had any Dr's statements of employability. I can't afford an IMO and don't anticipate anyone at the VA to help support my claim. I think maybe the problem I am having is because it is not based on a single disability but the combination of the mental and physical symptoms. There is clearly a coalition between the causes. When I am stessed I hurt worse and when I hurt it induces stress. (viscious cycle) Bottom line is none of them will stick their neck out and raise any concern regardless of their duties.
My supervisor at the last job I worked in 2007 is going with me to the SSD ALJ hearing. He will sign an affidavit stating the reason for termination and work performance. I will try to get in touch with folks at the nuke plant for same but the rest of them are in Oklahoma.
Thank you all for taking time to offer your experience and opinions. I plan on getting an attorney but I want to gain as much knowledge as I can to know how bad I am getting bent and what lubes work the best. Even though a lawyer may know the law, I am thankful for opinions from people who for their own reasons have a personal interest in it. You are all blessings.
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Does anyone have any thought on this? I don't have a VSO near me.
I am rated 70% PTSD w/ a GAF of 43, 40% cluster symptoms (GWI), and 10% bilateral hearing loss for a total of 80%.
I was denied TDIU 15 APR 09 and reasons for decision states "Entitlement to individual unemployability is denied because the claimant has not been found unable to secure of follow a substantially gainful occupation as a result of service connected disabilities. The veteran is considered capable of gainful employment. {38 CFR 4.16}"
The DVA fact sheet on Individual Employability states that substantially gainful employment is defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.
http://www.vba.va.gov/VBA/benefits/factshe...onnected/iu.doc
In my NOD I have included,
It is also stated under "reasons for decision" for entitlement to individual unemployability that "ON VA examination, you report that you did work for some period of time at a nuclear power plant. However, you quit work in 2005 and state that you were not fired, but simply disagreed with your employer and it was a mutual decision for you to quit." Although it is a true statement that I did work for a period of time at a nuclear power plant (in addition to 14 other places of employment in the 16 years since active duty), the reason for leaving employment is inconsistent with my statement to the examiner. I left employment with the security firm in June of 2005 because I was in the process of divorce proceedings for a third time, and, due to thoughts of suicide, was not comfortable carrying a firearm which was a requirement to perform my duties as a nuclear security officer. I was also not able to maintain the schedule required for that position due to symptoms of service connected disabilities. I left a secure well paying job to seek a work environment more compatible with my symptoms. Subsequently, I was engaged in an employment arrangement as self employed contract labor from 2005 to 2007 which was mutually agreed upon between myself and the contractor to terminate due to excessive absenteeism and substandard work performance as a result of service-connected disabilities, I have not been employed, gainfully or otherwise, since March 30, 2007.
You have failed in your duty to assist in that the incorrect reporting of the examiner may have influenced the outcome of the rating decision as these facts are relevant to my claim and should be considered as evidence pursuant to 38 CFR 4.16(a). "Consideration shall be given in all claims to the nature of the employment and the reason for termination."
38 CFR 4.25 states that "...a person having a 60 percent disability is considered 40 percent efficient". By that established standard, it is contradictory to infer that I am still considered capable of earning a livelihood compared to non-disabled individuals with earnings comparable to the particular occupation in my community with an expectation to perform at 20 percent efficiency as a result of a combined service-connected 80 percent rating.
This logically raises the issue of reasonable doubt. Since it is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent with the facts shown in my case, is a substantial doubt within the range of probability and no evidence satisfactorily disproves the claim, 38 CFR 3.102 states that such doubt will be resolved in favor of the claimant.
I am requesting a "De Novo Review" by a new Decision Review Officer.
It seems that the code they hit me in the gut with is the same code that substantiates my claim.
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If I post my NOD here would it be possible for someone with knowledge of such things look at it and offer suggestions? If so, where would be a good place to post it?
Thanks
Chris
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Dragons Plt Wpns Co 1st BN 3d Marines
5 SEP 09 - 13 FEB 91
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cballard,
You will get more answers if you post a new topic in the Claims Research Section.
jmho,
carlie
Thanks carlie, I was just following up on the post. I will try to get more detail to specific questions in the appropriate boards.
Chris
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If you are 80% and not working the VA must have got creative in denying your IU claim. Did they admit that you were unemployable, but that it was not due to SC conditions? They did that with me when I was 70%. It just takes time, but I think you are right to get a lawyer since they must have some kind of problem with giving you IU. Often they get the "denied" stamp out before they even read the claim.
No... they didn't even feign creativity this time. It's pretty blatant that they are just saying no. The way the decision reads, it appears that the rating agency went solely on the report of the examiner to the extent of even misquoting the DSM-IV's GAF scale.
It also states "Entitlement to IU is denied because the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of SC disabilities. The veteran is considered capable of gainful employment. {38 CFR 4.16}" Yet, according to the code, given my employment and medical history they have no viable reason to deny me other than the mere fact that they can. The evidence appears to be overwhelmingly in my favor so all I can do is keep chipping away at them until they figure out that I'm not going away.
I think at this point they are taking issue with the fact that I'm a Journeyman plumber with over 10 yrs exp., have 6000hrs in the Federal OJT program for Nuclear Security as well as hold a Class A CDL at only 39 y/o. I must be able to do something with the training in their eyes regardless of my condition apparently. I've worked my arse off to get T&Q'd in those fields even though the symptoms were getting worse with the idea that I could go just about anywhere and secure gainful employment to support my daughter. The trouble now is, unless I lie on an application about my physical/mental condition, no one will hire me regardless of training and experience. I had to work as contract labor for about $5/hr less than the company crew doing the same job when I last worked 2 yrs ago so I could bargain for time off as often as I needed it. The guy I worked for knew my situation and basically gave a veteran a break until it just got to the point to where I was too unreliable. People like him are on my "Good Guys List". You don't find many people around willing to do that just because they appreciate the fact that they didn't have to put on the uniform. That's honorable.
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...due to the examiner stating things in the exam I never said. He also didn't get my past medical history correct.
So many mistakes I didn't know where to begin.
Very frustrating,
Jay
I just got the same thing in the mail last Monday. My examiner fabricated things that I never did or said. I got way too frustrated trying to count backwards from 100 by 7's and she instantly went from kind and disarming to drill instructor. Trouble is, I ain't in boot camp any more and it snowballed after that. Now I admit I went high and to the right after I saw her bob her head sideways one time too many, but I guess I shouldn't have told her that if she didn't like the answers I gave her to just write whatever the f$@% she wanted to because that's exactly what she did. She also stated that "it is difficult to know if you presented in this manner in an effort to demonstrate how hard you can be to get along with or if this is your actual way of interacting with others." First of all, I had never seen her before in my life so she would have no way of knowing anyway. Secondly, I didn't treat her any different than any other sh**bird that cops an attitude with me for no reason. I won't bend over backward (or forward for that matter) for someone who is supposed to at least have a working knowledge of PTSD symptoms and chooses to ignore the triggers. If I had to guess, it would be that she, neither, ever had to sleep in a gas mask, nor can identify the sound of a round tumbling by marked "to whom it may concern."
Said all of that to say this... don't pi$ off the examiner if at all possible!
Hiring a lawyer next Monday.
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I will spare everyone my miserable opinion of the VA. For now just say hello everyone and give a run down on where I'm at.
I am rated 80% and have an active claim for Individual Unemployability which was denied for the second time last week. I have been "rasslin" with them since 1995 and am on the downhill side of this thing now. It ain't over til the treaty is signed but I am not losing ground. I've been filling out my NOD and waiting until Monday until the lawyer gets back in the office. I decided to go with a lawyer because in my experiences I have found that if you are going to be dealing with the devil then you might as well have side bet with one of his minions. I've tried VSO's and have gotten further doing my own research yet I don't want to imply that all are not worth using. I am thankful for the little bit of help that I got but now I figure that if someone's BMW payment is riding on my claim then there will be a better chance of personal interest in my claim. I may have a skewed outlook, but then again I am a little punch drunk lately.
Not all doom and gloom just with the VA. I have learned a good deal of 38CFR4 over the last several years and will answer whatever questions I can if asked.
Thank you all for what you have done and Semper Fi!
Nod ?
in VA Disability Claims Research
Posted
I filed for TDIU due to service connected disabilities. I had a C&P with Rheumatology for GWI and Mental Health for PTSD because they stated that filing a claim for TDIU was considered the same as an increase for one/both of those. After the C&P's they left the ratings unchanged for both (70% PTSD and 40% GWI) and denied the TDIU.
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They stated in reasons for decision under the entitlement to individual unemployability...
"Entitlement to individual employability is denied because the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of service connected disdabilities. The veteran is considered capable of gainful employment. {38 CFR 4.16}
On VA examination, you report that you did work for some period of time at a nuclear power plant. However, you quit work in 2005 and stated that you were not fired, but simply disagreed with your employer and it was a mutual decision for you to quit.
You are currently unemployed but not retired. You state that you are not working because "I missed too much work." You noted that you could not guarantee if you could got to work or not due to your physical pain. You noted that thei majority of "the way that I am is because of how I physically feel and the majority of my attitude is because of my physical pain, it takes so much of my resources to keep it in check... does not leave a lot of resources for much else." You state that you are not working because of the pain, not the PTSD.
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They have taken only part of my statements and listed it as the reasons for denial. Worded like it is takes my statements out of context from the discussion I had with the examiners. Purely symantics. It appears as if they are trying to discredit my character.
Under the reasons for decision for PTSD and GWI there are several inconsistencies in what the examiners wrote and the statements I actually made but I have been advised not to raise issue with the decisions they left unchanged and address only the denial of TDIU in my NOD.
All evidence submitted for SSDI claim was VA medical records and letters from previous employer as well as family members. I guess I can understand the denial if maybe I was claiming that the symptoms from one or the other alone was causing unemployability but it is the combination of them that I am having the most problems with. The symptoms of one condition aggravates the other. I am waiting to receive the written decision from the SSA ALJ before I send in NOD.