What Is The Va Definition Of " Ability To Function Independently" ? ..

[tssnave]

I am starting to work on my NOD and need some help trying to figure out just what the VA means by the words they use. Pete, John, Josephine, 1968VV, Betrayed, Vike17, Berta, elders, advocates, or anyone that has experience with the mental disorders rating and VA rigamarole, please chime in.

According to the VA Decision, my claim (mental disorder rating schedule), which was rated 50%, was not rated higher because:

"this does not affect your ability to function independently"

However, the CP Exam shows the following:

IS THERE PROBLEM WITH ACTIVITIES OF DAILY LIVING: Yes

HOUSEHOLD CHORES, GROOMING, BATHING, DRIVING OTHER RECREATION ACTIVITIES: MODERATE

The Virginia Dept of Rehabilitative Services states:

DEFINITION: Independent Living is the ability to carry out basic Activities of Daily Living.

So I'm confused on what, exactly, the VA uses as their definition of indepentdent functioning. The generally accepted rehab definition is the ability to take care of your activities of daily living but apparently the VA has some other definition. If you know what that would be, please enlighten me (with the location in the VA reg, if possible so I can quote their own regs back to them in my NOD).

The 70% rating criteria for Mental Disorders lists "....near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively.....neglect of personal appearance and hygiene...."

The 100% rating criteria lists "... intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene)......."

It seems to me that the C&P exam has covered the issue of how my disability affects my ability to function independently and since this is the sole reason cited for not giving me a higher rating, I'm confused on how to approach this in my NOD.

From my understanding the VA is either saying:

1. we don't recognize the standard definition of independent living so we're keeping your rating at 50%

2. we do recognize the stanard definition but even though the CP Exam says "Yes" we don't acknowledge that affirmative answer because you are only affected "MODERATE"

3. we are denying you 70% because you don't have the right wording based on the VA criteria in your C&P exam for 70% and we'll just ignore the fact that you do have the correct wording for 100%

4. we see that you have a valid claim for 70% (and IU, but that's another story) but we want to see if YOU see that you have a valid claim for 70% (ok, just ignore that one, I know we're not supposed to bash the VA but I have been in an emotional basement for months now over this mess and am just now crawling out to try to get this NOD done and get frustrated and depressed everytime I sit down to work on it).

Could someone please give me a VA reference that explains what they mean by function independently?

I would appreciate any suggestions on how to approach this in the NOD. At this point, I have simply quoted the C&P exam back to them. I have also gotten an IMO that is very strong on this point but feel like I need to address the C&P since I want the effective date to be the date of my original claim.

Thanks,

TS Snave

Edited July 11, 2007 by tssnave

[Berta]

TS- has the VARO confirmed that they received your TDIU 21-8940 application?

The evidence you have with the NOD- that should be sent in for the TDIU claim-

I do see your point better now than I did--- and I am surprised that they are the ones who focused on one aspect of the evidence-

I would-if I were you- just write a brief NOD-

To VARO C file number date

NOTICE OF DISAGREEMENT

I disagree with the RO's decision dated ______

because

1.I believe my medical evidence reveals that I should definitely fall into a higher rating in the Schedule of Ratings.

2.The C & P examiner clearly stated:

"IS THERE TOTAL OCCUPATIONAL AND SOCIAL IMPAIRMENT DUE TO MENTAL DISORDER SIGNS AND SYMPTOMS: Yes"

3. My TDIU claim was filed on_____and the attached IMO clearly states I am unable to function independently (and attach a copy of that IMO)

4. The rating I received on _____ conflicts with the evidence you have and warrants ,along with the TDIU application, a total SC disability award.

enclosed: (Copy if IMO) Respectfully,

-----------------------------

(Actually I feel as long as the VA has the TDIU form already-that you could ask for Reconsideration-but that does not stave off the NOD time- how much longer do you have on the NOD?)

TS did you tell them on the TDIU form of the side affects of your SC meds?

Did they mention in any way at all that they actually have the TDIU form?

I have a bi polar vet friend who I helped get SC and I understand how difficult this can be for you-

The NOD does not have to be complex at all-

I think the shorter we state our stuff, the better our chances are that they will read it.

Edited July 12, 2007 by Berta

[Pete53]

If it was my NOD I would stress that I have not been able to work for the amount of time and that it is unlikely that I will ever be able to work in the future due to symptoms. Don't forget to enumerate the meds that you take and their side effects. If you get SSD attach the award letter and if you do not get SSD apply for it ASAP.

Good Luck

[SLEDGE]

This is a perfectly normal situation.

They see a TDIU vet that will help them out with the 'completed claims' stats by playing the bounce game with the RO.

They won't give you what you legally and morally deserve and you refuse to let them get away with it.

It's a classic case.

All you can do is play their little game until they decide to let you have the benefits that the evidence already predicts.

Keep the NODs short, simple and unemotional!

Send in the IMO and get the date stamp.

Showing the VA anger and frustration will just give them more incentive to mess with your head in the expectation that you will let the claim go in favor of your own sanity.

You will win!

I know this and the VA knows this.

sledge

[Josephine]

Tssnave,

I know that my post are not much help to you, but make sure that you get that NOD into the VA and definitely have it date stamped.

I believe that after that C&P, I am fighting the principal of the claim and not the actual claim.

The person that they are speaking about in that C&P, I don't even know her. My, Oh, My!

I sure hope that my post are helpful to someone in Hadit land.

Always,

Josephine

[john999]

Josephine

Just encouraging vets to get IMO's and NOD's date stamped makes your post worthwhile. The VA has lost everything I ever sent them at least once so getting a date stamp is worth the effort.

[Josephine]

John999.

That was awfully nice of you.

The only smart thing that I ever did was to get my things date stamped.

Of course getting those medical records from the archives has maybe lit a fire under the VA.

At least they can't say to me anymore" The records don't exist".

I proved that they did and now I am working on dis-crediting those two psychiatrist.

I just haven't gotten the answer as to why I needed the second C&P 5 months after the first one to begin with.

As I have told the VA, I have my suspicions, but?

Thanks a bunch!

Josephine