hypertension Question And Help

[USArmy98J]

I am presently 50% SC for low back and knee issues. I have been taking Oxycodone for the past 5 years for pain and have now been put on Fentanyl patches (25 mcg/hr). In February I was sent to MHC by by PCP and was diagnosed with Major Depressive Disorder and had a GAF of 47. I was put on Citalopram and Temezpam by the shrink. I have not worked since Jan 2007 when the pain became unmanageable. I had a C&P on 14 Aug and the shrink said "all the depression is directly related to the back and pain issues" and the second doc I saw said basically it would be a premanent thing but meds would help to a degree and when I asked his opinion on employability he said "I feel it is rather difficult for employment while you are on these meds and you have to be on them".

Now the starange part. I did request an increased rating in late Februaruy 2007 for pain, depression, arthritis, and hypertension. Now what I don't understand is that I received a letter from my RO on 9 Aug and enclosed was the form for IU along with a request to complete and return it along with an authorization for my last employer (only worked there for 3 weeks) to complete.

It is my understanding that I would not qualify for IU based on a current 50% SC rating and I have no idea why the VA would ask me to fill out the necessary forms. This all happened prior to my C&P exam for the claim.

Can any of you guys/gals shed light on this as I am totally lost on this one..

Help an old Army 98J soldier understand what is going on and how/what I should do at this point.

Thanks in advance

Bill

US Army

98J

[KamiKappa B]

Berta,

Thank you very much for the form. I contacted the DAV and was informed that because of my SC being the percent that it is the form would be like asking for a special favor from the VA. I was told that i need to have a doctor's note saying that the SC are preventing me from working. How likely is this to happen if I only go to VA clinics, and is there anything else I need to be doing? Thanks.

Kappa

p.s.

My apologies for butting into your post USArmy98J.

[Pete53]

Kami does your Service Officer represent you or the VA. If you have PTSD and can't work that is not asking for a favor it putting in a claim for an earned benefit.

Your other question is and can only be answered by your VA Doc. You should ask if they think if you can work and if so why and if not why? You have a right to know.

Good Luck

[Stretch]

Pete, is right the VSO has no right to discourage you from filing TDIU. I have been up and down this route. File the TDIU form.

[cloudcroft]

Well, I have to say here that it still is COMMON PRACTICE for the VA to simply ignore any TDIU claim -- actually, I mean they DENY it -- if you do not meet the schedular requirements as stated in §4.16 part a...but they don't COME OUT AND TELL YOU it's because you don't meet the minimum schedular requirements...so you end up thinking your TDIU case is weak on evidence. It may well NOT be weak, but the VA doesn't tell you THAT in their denial letters.

I can tell you FOR SURE that in MY case this denial (and why it was denied) was rendered each time I applied for TDIU UNTIL I reached 70& (I went from 50% to 70%...there was no 60% possible). After this was accomplished, I got TDIU soon afterwards pretty quickly. But as I said, I was REGULARLY DENIED when I was only at 50%.

Now according to the VA regs it certainly is possible NOT to meet said minimum schedular requirements and still get TDIU (see §4.16 part b as cited below) but this is the RARE EXCEPTION and not the rule. Chances are EXTREMELY SLIM that "Director, Compensation and Pension Service," will step in grant TDIU. Ask the current/past VA employees (experts) here on Hadit or over at the VBN forum how many of THESE "extra-schedular" TDIU claims they have EVER seen granted. Almost zero.

So let's not be too hard on people -- whether they be other vets, VSOs or VA benefits reps -- saying TDIU claims need to meet the schedular minimum requirements. That's pretty much the reality of TDIU and expecting to get TDIU "extra-schedular" is a defnnite long shot at the very best. You may have a better chance of seeing a Unicorn in your front yard, getting bit by a shark in your bathtub or being abducted by aliens. Okay, that last one is more possible.

The simple reason may be that if one's SC disabilities are THAT BAD to prevent gainful employment (not to be confused with marginal employment) then there should be a high disability rating already. Now that's just my logic, but it may be the VA's, too. I mean, all of a sudden some vet becomes "unemployable" with no SC rating % in his/her records, or a low % rating? Where is the progression of worsening of the disability in the medical record? It didn't happen overnight, did it? This is one big reason for filing a claim for a rating increase when you think your disability has worsened.

So, I am just saying that the VA SURE DOES apply §4.16 part a, and RARELY applies §4.16 part b, which has lots of dust on it as it sits there undisturbed.

I can relate to this rarity myself because I was working and still was able to get TDIU. Even though it was marginal employment, people here on ths forum and even lots more over at the VBN forum constantly told others (and me) that "You can't get TDIU if you are working," and that "If you did, it is so rare it almost never happens." Even the "experts" told me that, not just other vets posting there, but I got TDIU anyway...wasn't easy though and took me 4 years. So I am kind of a rare animal myself here and likewise, so is any vet who gets TDIU "extra-schedularly," according to the experts (who are usually current/former VA employees, i.e., I'm talking about current or former VA rating officers, DROs, etc.).

Were it I and I didn't meet the minimum schedular requirements for TDIU, I'd progress in two phases: (Phase I) get my SC-ed disability responsible for my unemployability RAISED to AT LEAST meet the minimum schedular requirements, and (Phase II) then go for TDIU if the VA does not automatically consider TDIU as they are supposed to. In my case I submitted form VA 21-8940 at the very beginning so the VA was very clear re: my intentions...but I still had to get my rating % raised higher than 50% because I kept getting denied, and only then was I considered for TDIU. That's just how it is.

I am not trying to discourage anyone here, I'm just stating the RARITY of extra-schedular TDIU awards. But as Berta says, if a vet wants to try for "extra-schedular" TDIU, and he/she has a good case (I mean a knock-out/slam-dunk...no "borderline" stuff here), then go for it, but be prepared for denials from the get-go.

-- John D.

§4.16 Total disability ratings for compensation based on unemployability of the individual.

§4.16 part a.

Total disability ratings for compensation

may be assigned, where the

schedular rating is less than total,

when the disabled person is, in the

judgment of the rating agency, unable

to secure or follow a substantially

gainful occupation as a result of service-

connected disabilities: Provided

That, if there is only one such disability,

this disability shall be ratable

at 60 percent or more, and that, if there

are two or more disabilities, there shall

be at least one disability ratable at 40

percent or more, and sufficient additional

disability to bring the combined

rating to 70 percent or more. For the

above purpose of one 60 percent disability,

or one 40 percent disability in

combination...(snip)

§4.16 part b.

It is the established policy of the

Department of Veterans Affairs that

all veterans who are unable to secure

and follow a substantially gainful occupation

by reason of service-connected

disabilities shall be rated totally disabled.

Therefore, rating boards should

submit to the Director, Compensation

and Pension Service, for extra-schedular

consideration all cases of veterans

who are unemployable by reason of

service-connected disabilities, but who

fail to meet the percentage standards

set forth in paragraph (a) of this section.

The rating board will include a

full statement as to the veteran’s service-

connected disabilities, employment

history, educational and vocational attainment

and all other factors having a

bearing on the issue.

EDIT: I had to write-in "part b" to avoid using "b" alone followed by a parenthesis which results in a cool, hat-wearing smiley face. Not cool.

-- John D.

Edited August 22, 2007 by cloudcroft

[Pete53]

To get Part B you have to ask for it by VA logic. Course most Vets don't know to ask.

[Berta]

It all boils down to the medical evidence.

And often a vet with either private psychiatric records for mental disabilities or a good IMO can get TDIU much easier than depending on VA to make a TDIU determination.

An IMO can be costly but it can be the best investment many vets can make in their claims-

One or two TDIU checks can recover the initial IMO investment.

I had appointment at the local VA with a vet rep regarding a vet I was helping.many years ago-

I could not help but hear what he told the vet sitting at his desk while I waited-

The vet asked him how he could apply for TDIU for his PTSD.

The rep said "you have to be 70% first for PTSD before VA will consider that."

The vet said- I get SSA solely for PTSD now -will that help a TDIU claim?

And the rep said 'maybe' -wait until you get up to 70 % and then tell the VA about the SSA.

I was very upset when I heard all this-

the vet left and I told the rep to look up Washington V Derwinski and send this COVA decision in with the vet's SSA Award letter and the TDIU form.

Then luckily I found the same vet in the canteen and asked him to have a cup of coffee with me and I went over what I told the rep-

he said he was very surprised at how little concern this rep had over the SSA PTSD award and said he was thinking of getting the DAV to rep him instead.

I said dont bother- you will get the same DAV bunch my husband had-in Syracuse- they dont value SSA awards for PTSD either.When Rod got SSA for PTSD the rep told me he didnt think it would have any bearing on Rod's claim.

I told this vet to send in the SSA award to the VA and ask for higher PTSD rating under the TDIU regs

(in those days only reps had the TDIU forms but I told him where he could get one- at the county VSA not far from the VAMC) and tell them to consider the claim under Washington V Derwinski.( SSA records were found as material and probative evidence of unemployability to VA claims involving same disability)

There are many vets who get medical treatment out of the VA system who could support a VA claim with those treatment records.

and SSA records are, in essense, a medical opinion-independent of the VA.

TDIU is a medical determination of unemployability solely due to service disability.