Ethan'sGrandma

Can someone please help me decipher what a section in CFR 38 (4.16) refers to in a more clear sense than what I am reading? In 4.16 section, it states: "...It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgement of the rating agency such service-connected disabilites render the veteran unemployable..." This entire TDIU opinion by a doc has complicated my claim and VARO looks at nothing else but an opinion given. Is a C&P examiner's word the final word, even if it does not fit, but made to fit? Does it matter if the examiner was not a mh specialist and noted to vet that he was not qualified to opine on TDIU for mh, but he went on and opined anyway, using a whole another diagnosis in his opinion? Gosh, this became more of a mess than it already was in my years of fighting with this claim. He did not allow my mh service-connected condition for his opinion on TDIU for that. Then, the physical condition that was service-connected, his opinion was that I could still do "sedentary," work, but it is clear from reading his report that his examination did not consider all aspects of the condition which would negate what the definition of "sedentary" work is for from the rules for SSA and Dept. of Labor, but I could not find the rules for VA for sedentary, but am surmising they are the same. Today I received part 1 of what I expect there to be a part 2 for my claim since after sending more medical evidence to VSO (some of which was missed by C&P examiner) regarding physical condition which was submitted to VA on my behalf with a request for reconsideration, I am adviced that VARO has accepted and changed the rating decision. The information I've received is that schedular 100% was arrived at and approved. However, that being for a much newer claim that was submitted by me, the retro from the older claim (the TDIU that was inferred in prior decision) will be lost, unless the effective date can be successfully appealed. That is what has me stumped because I don't see that happening, realistically, since it was for different claim dates to begin with. I am awaiting my follow up notice as it is in preparation for decision stage in ebenefits which has corresponded with correct info. for my claim thus far. This is all seeming too convenient, but it is what it is, and the way that it's been decided. So, I am wondering if anyone has come across similar situation or is more knowledgable about that section in 4.16? My claim still has appeal time left on it, but I would like to be more aware, if I could, before deciding on how to proceed with this development. There is one more evidence item that may/may not work for me to request a reconsideration on which I am to pick up tomorrow from the clinic. It's already in the medical file, but it does not appear to have ever been viewed/considered by VARO or examiners to date. My ratings thus far: 70% for mh; 40% for diabetes; 20% each for bilateral upper and lower neuropathy; and 10% for headaches. The examiner opined on the diabetes/neuropathy for the sedentary opinion, not making note of all effects with the condition, but my concern is that he made no allowance for the s/c mh condition at all, sort of rearranging all diagnosis to fit an opinion. This has happened to me before with an inadequate exam which was successfully challenged and another C&P was scheduled with more attention to detail by examiner, but it seems mindless for this to be happening again. Today's notice also has wrong information under "evidence" which I wondered what that is about. It has me down as having had a C&P for review of PTSD and headaches, but those were not part of the C&P exam that I was scheduled for, nor the date. The dates are not even jiving, but there never were scheduled exams for the noted date, either. I copied the appointment from online access to prove that, but I don't know where they obtained and used that information that does not apply to me, but is noted as part of the evidence. So, if anyone has any idea, can you please share? Thank you very much...truly appreciated!

My thought on this is that I made the error of waiting to submit new claims while waiting on a claim that was on the denial roller coaster for the same thought...it seemed logical to wait to not mess with the claim already submitted. When I realized that it was becoming as a game (denial ride), I finally submitted my newer claims because the effective date would be getting longer and longer if the roller coaster continued. I was finally granted the original claim with its original effective date, but the newer claims which I am told have also been granted were not part of the original, so the dates will differ. Hind sight is 20/20 and I now realize that I should have submitted the other claims when I had all the evidence needed, which was close in time to my original claim. Thus, if I had it to do all over again, I would not hesitate to submit those claims as soon as I obtained the evidence...

Edited...

Thank you all for the responses. Now, I have new question that I hope someone can help with. I gathered my info., employment history, etc., and submitted to VA with the TDIU form. This past week I received a VCAA notice that appears to include the TDIU as a "new" claim, along with other pending claims that had been in the system which appear to just now starting to be developed. The TDIU was deferred in their decision which seemed to be awaiting further development, so I'm not understanding why it's being listed as "new." In the past, the VA has separated my claims, so I'm lost as to why they commingled the TDIU with the other claims. Is this protocol for them to handle a deferred decision in this way? I would have thought they would get to their "end product" with the deferred decision. This really concerns me because the decided claim took seven years to get to a rating with evidence that was already of record (claim never went to BVA), so is the prospect another delay in decision just because? Thank you all for any input!!

Thank you very much, Bertha. The vet only has sc conditions, so hopefully, the SSDI info. will help...

Would like to ask for some help in understanding TDIU evaluations, please. If a vet does not meet the % requirements for TDIU, is it necessary to submit a request for a higher rating, also, or does the TDIU application presume that? Does the VA look at evidence for a higher rating before making any decisions for TDIU? I am aware that VA and SSA do not have to follow each other's decisions, but if the vet was awarded SSDI based solely on VA and military medical records, the vocational aspects, and the judge's decision that the vet is not able to obtain or maintain gainful employment according to their law, will that help with VA's decision, although the VA had only rated the vet @ 30% for mental disorder and 10% for physical disorder? The TDIU evaluation seems to be moving rather quickly considering the backlog as the vet has already been scheduled for two C&P's...one for psychiatric; other for physical reason. Another concern is that in the notice of receipt for TDIU claim, it seems like VA keeps hitting on the "unusual circumstances" necessary for an extra schedular TDIU...is that just protocol in their form letters, or is that something to worry about? What "unusual circumstances" do they look for? I looked but couldn't get any clear picture of what that entails. Thank you very much to anyone that may assist with these questions.

Since the VA is taking an inordinate amount of time to decide some claims due to the backlog and other reasons, depending on how long since your husband worked, if it were me I would not delay with SSDI. With SSA's requirements for last quarters worked, it is important to not let that lapse. Although it's been quite some time since I worked, I doubt it's changed any since then...20 out of the last 40 quarters aka 5 out of the last 10 years of employment have to be met for SSDI purposes. It is very important that the agency's requirement for that be part of his decision to apply because there are some things within their law that are not appealable, one being one has to meet the eligibility, outside of the medical/unemployable issues. The quarters requirement that I mention are dependent on other issues, but it's in our best interest to apply sooner rather than later if the medical issues are there and let them make their decision. I have found that even with their own back up with claims, they move a lot quicker than VA, for the most part, at least with the first decision. If denied, I still believe that they move one through the system somewhat quicker to get to the hearing which could still lead to an award. Good luck...

My husband received a notice to reduce for the same reason once...no 21-2140 returned. Yet, that form had never been received by him. He copied one off the internet, completed, and faxed it to the VA and DAV (POA), to ensure VA receiving. Soon after, he received VA letter stating rating would continue. From that experience, we learned that the form is not always received by the vet, nor has he ever received another one to complete, but to avoid future issues, on his anniversary month he completes the form and sends it in. It is my understanding that VA was not necessarily sending out the form to many vets, but restarted doing that after an attempt to review some time ago that was discontinued, yet the form is not always received. The form is for employment status, so don't understand why a doc's statement would be needed...perhaps related to something else?

deanbrt, Are they allowing online ordering of meds now? I use the meds by mail program, but the prescriptions are submitted by mail, unless the online is a newer system that I'm not aware of. I've been using both (Medicare & Champva) for years and have never had a problem in claims being paid.

That is great news that your friend has been rated!! It is great that you pointed him in the right direction!! It is so true that some do not know about claims, some of us not even having known about the VA, or that we had access to it when we found out they existed. Gosh, I know I did not know when I left service. Later, when I did know, I was not aware that I was able to access VA medical services. Lucky for me, when I lost my health insurance and accompanying someone to the VA, I saw a posting on the bulletin board...the rest is history for me. After going there for several years, I still did not know that I could file a claim, until one very helpful staff recommended that I do that. It seems unbelievable to me now that I never knew. Your assistance is commendable!!

Perhaps others will respond with more information, but can you give more info., so the info. is more complete in order to respond? Was your father service connected? Did he die from service connection disability? Was he rated and, if so, was he rated 100% total and for how long, if so? Was your mom's bank account held jointly with your father's...is that why they took back the funds? What type of survivor benefit did she apply for...dic or pension? Does she have a vet advocate helping her? I am very sorry for your loss and very sorry that this situation now further presents itself. Unfortunately, the VA is not moving very fast with a lot of claims...

Moody, Please hang in there!! You've waited this long, so why withdraw the claim now? I felt the same way many times, just wanting to be done with the claim and the VA, but decided I was not going to give in to those feelings. Finally, it did get to a resolution. Do you have an advocate working with you? In my claim, I did make use of and got the POA rep. to give me more info. than what I was able to obtain directly. Good luck!!

Does the department offer any type of sick benefits, or do you have any sick leave? Do they offer a disability pension? I know that not all agencies do, but we're not always aware of what could be available. When I became unable to do my job, I was able to go on sick leave for my remaining leave, then went on leave without pay for some time, pending a disability retirement. It is difficult due to finances, but if you feel like you will be losing your job, I hope that you can research whatever may be available through them, also. Meanwhile, some in-depth treatment would be very helpful in getting you that additional help for the depression.

My information for SSDI purposes are from 2000 with medical evidence as far back as 1996 and VA got it from SSA recently. So, yes, it sounds like somebody was not totally honest about those records, but they are in storage. However, from that long ago, many are not on cd (mine are not), but actual paper copies, so that poses a problem to getting them ourselves, or even to view at local office. I attempted to get mine because I wanted to see what the VA got from them, but because it's not for a claim for benefits through their agency (SSA), I had to pay what could be quite a fee (told it could be around $800 by the local SSA office manager) due the records are on paper. In order to view at the local office, I still had to pay upwards of $150 from what I was told, due to processing the request, etc. However, I recently was informed by them, after I complained of the shadiness of that rule for my due process from VA since they have knowledge about me that I can't dispute since I never obtained those records, of the rules to be able to obtain them without that exhorbitant cost, so I need to get on that. Good luck with your claim...

Thank you very much...that is very helpful!!

rpowell01, If it were me, I would look on the site on occassion, just in case they've requested an exam and (forget?) to advice you. For me, the date showed up under the exam area that you looked on, then, about a couple of weeks later, I was called (letter never came) by the local VAMC for a C&P. After that one exam, the file did not show up as returned to VARO, but ebenefits still had the exam request noted. Then, about another month went by and I received a letter for a next exam. After the second exam, I noticed on ebenefits the file returned to VARO about a week after the exam. A month after that event, a decision was made on my claim, all of this info. being able to be tracked on ebenefits. Ebenefits has not always been up to date or useful in my case, but that one time, I was able to keep up with what seemed to be happening. I'm not saying this could be the same in your case, but it would not hurt to check every now and again.

Thank you very much to you both!! Tbird, I so agree...a great community!!

Thank you westcoastlv for your response. That's what I'm afraid of...that they will play around with the EED if they approve TDIU because the original application didn't include it, but I found several court cases that may go against that attempt. I made it over to SSA today for a print out of work history, so that will give me enough to jog my memory for the required employment questions on the form. Again, thank you so much and I hope great success for your spouse with his TDIU claim.

Hello to All, Today I received the award letter...70% rating and TDIU deferred. There is very little information in the letter as to what they need from me. I know that they need the TDIU form from info. gathered from here and other researching, but it was not included, nor mentioned. There are two sections where the IU is noted in the letter. Under "What We Decided," it states: "we have deferred a decision on the following issue because we need additional information or evidence: Individual unemployability" Under "REASONS FOR DECISION," there are two sections: "1. Service connection for Acquired psychiatric condition claimed as posttraumatic stress disorder (PTSD) and depression." This section then goes into the evidence, etc, and reason for the decision. "2. Entitlement to individual unemployability." In that section it states: "The evidence shows that you have not worked for several years, therefore individual unemployability is being inferred. The examiner did not state that your PTSD caused total occupational or social impairment at this time." Nowhere in the letter is there anything noting what additional information or evidence they need. I don't see how the examiner could have made a note of total occupational when she did not ask about that. She did ask me when I last worked, but that would not necessarily mean that I would be unemployable if she does not know or consider? After getting home from the exam, I realized that I did not make note that I was awarded SSDI many years ago, but it's in the VA record which she could make note of in her review of the file and I know that VARO already has the SSA records.The social impairment issue they state is not exact and is all over my medical records because I have severe impairment of that, also. So, I'm not in total understanding of what is it they are looking for, or maybe I'm just missing something. I am aware that SSA decisions and VA are separate, but it was for the same issue. Can someone please help me decipher what I need to do to get this going besides completing and submitting the TDIU form which I am going to do by the end of the week. There is no way that I can remember that far back for employment times, so am going to go to SSA and see if they have my work history available, so I can have at least an estimated timeframe for the completion of the TDIU form. Thank you for any thoughts, advice, or response.

Finally...after close to two months since decision was made, I received the letter today that confirmed what the POA rep had noted to me...the rating and TDIU deferred. Now, I'll have to work on the TDIU paperwork, see if I can get any more words of wisdom on here, but I'm confident I can do this!! Thank you all for the congrats!!

Thank you all so much for all the helpful information. I don't know if any will apply in my case, but I've been researching info. on this and at least two cases seem similar...Norris v. West and Roberson v. Principi. I can't wait until I see the "official" version, hopefully this coming week, to determine how exactly VA has worded the decision.

Thank you, john999

Thank you all!!

Thank you, broncovet...

Streewalker, Is there a possibility that you could take leave, pending OPM processing? When it was my time to leave the agency I worked for, that's what I did. The agency attempted to get me to go back or give up the job, claiming they needed somebody on the job, but the human resources department wouldn't let them put me out, only to hire someone temporarily to replace me, in the event that I did not get FERS approval, I would have the ability to decide if I could go back. FERS was a much simpler process since there was no other position the agency could accomodate me with. As I remember, it was a couple of months for the disability to be granted in my case. Recently, someone that I know applied for FERS through the same method (out on medical leave) and it was also a matter of months in their case to get approved. Of course, now they seem to be running slow to audit, so that individual was paid some of the retro and the monthly amount they would have received after the second year. It took an additional two years before OPM did the complete auditing of the claim for any amounts due. It still turned out to be a much simpler claims process than either SSA, definitely than VA. Good luck with your claims.