tdiu Dysthymic Disorder And Other Questions

[Paul Allison]

I've been a long-time lurker on this site. Thank you all for your wonderful service to disabled veterans.

I recently received a decision on my claim for service-connected compensation. My old rating was 20%. My new rating is 90%. I feel fortunate (though it is deserved) given the experiences of many of the veterans and their struggle with the Va.

But there are inaccuracies within the decision letter. So, I'm hoping that several of you will offer me some guidance on how to proceed.

1) I was rated 50% for Dysthymic Disorder. What is needed to be rated 100%?

2) I disagree with the examination from VA Medical Center XXX, 2008, which showed that I denied current suicidal ideation or any past attempts. I did NOT deny current suicidal ideation. I did deny homicidal ideation. At the time of the examination, I DID have suicidal ideation and stated as much to the examiner. Suicidal ideation is corroborated by the results of the MMPI-2. Further, I did NOT report having five friends. I reported having less than five friends. There is also documentation supporting deficiencies in work, family relations, thinking and mood.

This is important because my medical evidence (i.e., letter from medical doctor, letter from psych

iatrist, letter from psychologist, and MMPI-2 results) support (at minimum) a 70% rating.

How do I get this corrected within my record? Can this be accomplished within the NOD?   

4) What are comorbid or secondary conditions that I should be exploring given the Dysthymic Disorder?

5) I disagree with the examination from VA Medical Center XXX, 2008, which showed that I am currently employed part-time with XXX. I am NOT (nor was I at the time of the examination) employed by XXX. My last month with XXX was XXX, as indicated in my federal tax records. This is an error that must be amended in my C-file. I am unemployed and have been unemployed since XXX.

This is important because I filed for individual unemployability. It was denied. However, the decision letter states, "It is the examiner's opinion that you are not a candidate to work because of your service connected disabilities." It is also supported by an evaluation of 50% for Migraine Headaches, 

which indicates "very frequent, completely prostrating, and prolonged attacks productive 

of severe economic inadaptability", and a letter from my medical doctor indicating life-long difficulties regarding acquiring and maintaining a job.  

How do I get this corrected within my record? Can this be accomplished in the NOD?

If you've made it this far, thank you.

Paul 

[Berta]

Welcome aboard Paul-

Do you receive SSA disability for the same conditions that are now SC?

"This is important because I filed for individual unemployability. It was denied. However, the decision letter states, "It is the examiner's opinion that you are not a candidate to work because of your service connected disabilities." It is also supported by an evaluation of 50% for Migraine Headaches,

which indicates "very frequent, completely prostrating, and prolonged attacks productive

of severe economic inadaptability", and a letter from my medical doctor indicating life-long difficulties regarding acquiring and maintaining a job."

Obviously the examiner was declaring you TDIU but forgot to state it correctly and forgot to send the money.

I get furious when I see crap like this-

the evidence is clearly in the decision for TDIU!

They must have focused in on the 'part time ' employment part.

If I were you (this does NOT stop the NOD year filing period) I would definitely file a Reconsideration request and raise all of their errors- specifically since the examiner stated:

"It is the examiner's opinion that you are not a candidate to work because of your service connected disabilities."

Make sure they know that the C & P statements are wrong!

I dont get it-the decision indicates you are TDIU and then states why-as to the migraines-and there is an IMO doctor's opinion too-

Did they list the outside doctor's opinion as evidence and then did they address it at all within the decision?

Did they actual rebutt -with medical evidence-anything at all in your claim?

Seems to me the rater wanted to award TDIU but it must have been lunch time so they gave you 90% instead-without even considering what they stated themselves.

Unless the C & P statement about working is the problem and it might be.

Would this IMO doctor be able to prepare an IMO that conforms with each part of the criteria I posted here under topic Getting an Independent Medical Opinion?

"In light of the foregoing, the Board concludes that the

schedular criteria for the next higher, 50 percent, rating

for migraine headaches are not met. Referral for

extraschedular consideration is not indicated, as factors

suggesting schedular criteria might be inadequate, such as

marked interference with employability due to, or frequent

hospitalizations for, migraine headaches, are not shown. See

38 C.F.R. § 3.321."

from: http://www.va.gov/vetapp07/files1/0708963.txt

Clearly you present a claim that should have had extraschedular consideration-if they hinged on the part time employment or not-

then again - you get 50% for migraines and 50% for the dysthymic disorder-

and with the rater's statement that should have been TDIU.

Did the VA-in that decision-state why they did not consider you for extraschedular consideration or why they felt that ,even though the evidence and the rater themselves show you as unemployable due to service- you decision does NOT reflect that medical fact at all.

This case ,on remand, is due to the vet having 50% Dysthymic disorder but had applied for TDIU- the remand shows

what they are looking for-

it certainly would help if you get an IMO or get the other one you have clarified as to how both of these disabilities are preventing you from working-

I feel the RO should have made an EXtraschedular consideration-but that takes time-

they erred however in NOT doing this and

it looks to me that they have no medical evidence to rebutt themselves-

"It is the examiner's opinion that you are not a candidate to work because of your service connected disabilities."

You can rebutt that the C & P doctor was wrong about you being employed- in the Request for Reconsideration-raise the MMPI point also-a VERY good point-

I suggest to file this-and then you have time to see if you even need another IMO- I dont see why you would-

get some statements noratized from anyone- even one statement would be good that you are not employed even part time anywhere-

Also maybe you can get a SSA earnings statement -that would show NO earnings-and even show that you did not have any wages via IRS-if you filed a return for some other reason-

All I can think of is that they denied TDIU due to the C & P false statement of employment.

You might want to consider one other thing too-

if you DO file a NOD at some point-you can obtain an attorney under the new attorney for vet regs- the attorney will be paid from the retro-

I dont remember the % they can legally charge.

Attorneys-when the VA sees them on the POA- gives the claim to their best people-

(which isnt fair to the thousands who cannot obtain a lawyer under these new regs-because their NOD was filed before June 21,2007 and they are still in limbo land at ROs-)

That is an option to consider- I feel they should award TDIU when they get your Reconsideration Request-

but if they dont and they string it put- the retro grows- and will be enough for you to absorb the attorney fees when they finally give you the proper award.

[Berta]

I was so ticked off when I read this I might have forgotten this:

Tell them they erred when they did not consider you for extrascedular consideration-whether they thought you were or were not employed.

Then tell them clearly (and attach any evidence at all like SSA wage earnings or a buddy statement- even from a landlord etc-someone who knows you dont work)that with these facts you present a clear picture reflecting TDIU , per VA case law and regulations governing TDIU,and it should be promptly granted.

[Paul Allison]

Thank you for your response to my thread, Berta. Warning: long message.

The entire appeal process (filing to deposit of money in my bank account) took less than six months. I think my case was expedited because I am (just) 31, incurred a service-connected mild traumatic brain injury, and had evidence from many doctors.

The decision included:

1) Evaluation of dysthymic disorder due to post-concussive syndrome/cognitive disorder at 50%;

2) Entitlement to a separate evaluation for migraine headaches at 50%;

3) Evaluation of degenerative disc disaese and cervical spondylosis C4-C7 at 10%;

4) Evaluation of plantar fasciitis, right foot, at 10%;

5) Evaluation of neuralgia, right sural nerve, at 10%;

6) Evaluation of left upper extremity (minor) weakness 

due to herniated discs, cervical spine, with radiculitis at 10%;

7) Diabetes insipidus (DI) at 20%;

8) Entitlement to individual unemployability is denied.

This totals 90%.

I do not currently receive SSA disability. The rater didn't attempt to rebutt anything in my claim. It appears I was not awarded TDIU because the C&P "mental" evaluator reported I was employed, which was (and is) not the case. He spent maybe 15

minutes with me. This is in contrast to the C&P "physical" evaluator who spent over

3 hours with me. He was a specialist in TBIs (or at least presented

himself that way). He asked very specific questions that none of my very good

private doctors ever thought to ask about. He took notes nonstop. I've requested

a copy of my "C" file.

I don't know what to do regarding TDIU. Since their evaluator recommended me for

it (essentially), I think I have a strong case to appeal. However, given my age I am conflicted. Healthwise, I have mangeable days and VERY bad, dark days. If I take TDIU at 31, then I am capped at ~14 grand/annually in part-time work. I can make twice that in such work at this time in the 2-3 mangeable days/week. The ideal situation for me is to be rated at 100% and retain the ability to hold full-time employment, thus no cap in earning

potential, while leaving the door open for unemployability given that all my doctors think as I grow older, it's only going to get much worse.

So, in some ways, the VA's mistake might not be so bad for me if I can get the scheduled rating up to 100%. I just don't know how to do it. As you know, that last ten percent is very difficult to achieve.

I think the areas I can argue include diabetes insipidus and dysthymic disorder. The DI was rated at 20% because the blood work records I submitted proving two separate periods of dehydration without parenteral hydration were outside of the one year required for the 40%. And since my endocrinologist has placed me on desmopressin, my BUN/Creatine ratio (used to gauge dehydration) is within the (high) acceptable range. The DI is awful though... I urinate (on medication) 3-4 times/hour. I am quite sure it contributes to my low quality of life. I don't know how to argue to have this rating increased given the lack of medical evidence. The dysthmic disorder is a different story. The decision letter contai

ns

several egregious errors. I just don't know how to get this rating increased; 

thus, why I inquired about secondary or comorbid conditions to investigate that 

might lead to a higher rating. If this rating could be increased to a 70%, and the DI to a 40%, I would be at a scheduled 100%, I believe. Not sure. The better option would be to somehow argue for an increase of the dysthymia to 100%. Not sure if this is possible, despite the MMPI-2 scores that reflect I am suicidal, homicidal, etc. My psychologist and psychistrist had my GAF between 45-55. The VA examiner put it at 60, I believe.

So, below is my tentative NOD; rather, the one I will ask the VSO to write and

send. It is:

Department of Veteran Affairs

Attention: XXX – In reply to: XXX

                        

Dear Sir or Madam,

I received a rating decision dated XXX. Consider this letter to be an official “Notice of Disagreement” (NOD) regarding the following disability:

1) Evaluation of dysthymic disorder due to post-concussive syndrome/cognitive disorder.

I disagree with the examination from VA Medical Center XXX, which showed that I denied current suicidal ideation or any past attempts. I did NOT deny current suicidal ideation. I did deny homicidal ideation. At the time of the examination, I DID (and still do) have obsessive suicidal ideation and stated as much to the examiner. Suicidal ideation is corroborated by the results of the MMPI-2. Also, I did NOT report having five friends. I reported having less than five friends (<2) and difficulty in establishing and maintaining relationships. These inaccuracies must be amended within my record.

Further, as indicated in the neuropsychological testing conducted XXX by XXX (included in the original PEB disposition), resulting in an Axis II diagnosis of Obsessive-Compulsive Personality Traits, XXX stated: “Mr. Allison is seen as a highly obsessive individual who does present with some obsessive-compulsive personality characteristics.”

Further, there ARE deficiencies in most areas, such as work, school, family relations, thinking and mood that interfere with routine activities, as indicated in a letter from XXX dated XXX:

• “Paul faces lifelong limitations due to this traumatic brain injury”;

• “The memory deficit has created a lack of confidence and profoundly effects inter-personal relationships”;

• “Paul is unable to drink coffee, tea, colas, and any number of beverages that have a diuretic effect. He is restricted to carefully chosen dietary items, as he has found a large number of foods ‘not worth it’ since symptoms can be very disruptive in a social, work, or classroom setting. Restaurant choices must be made very carefully”;

• “Paul’s career choices will be limited …”

• “Since the XXX accident created a traumatic brain injury it is as likely as not there will be a continued decline in function and working memory which will impact Paul’s way of life, potential livelihood and inter-personal relationships.”

Further, it is the VA medical “examiner’s opinion that you are not a candidate to work because of your service connected disabilities.”

In consequence, I disagree with the VA decision to award only 50 percent for the service connected dysthymia. The higher evaluation of 70 percent IS warranted given the documented occupational and social impairment, with deficiencies in work, family relations, thinking and mood. (should I push for 100%? -- I'm not sure what that requires)

I am requesting a “De Novo Review” by a new Decision Review Officer.

2) I disagree with the examination from VA Medical Center XXX, which showed that I am currently employed part-time with XXX. I am NOT (nor was I at the time of the examination) employed by XXX. My last month of employment was XXX, as indicated in my federal tax records. This inaccuracy must be amended in my record. I am unemployed and have been unemployed since XXX.

I will be awaiting your reply.

Sincerely,

Paul Allison

24 March 2008

Thank you for reading this Berta. Suggestions are welcomed. I've been piecing my claim together for several years from the threads on this forum and with the help of a loved one.

Paul

[cowgirl]

Paul, hope you dont mind if I hop in. Looks like a good letter from what I've seen. But as I review my notes on how to do the NOD, shouldnt your letter read ??"...(NOD) regarding my claim for disability RATING for..........basically the.letter that states that you disagree with the decision. ...

Also, I dont see a specific "I intend to appeal statement" in your letter. I wonder if thats needed as well.

Best to ya, cg

Edited March 24, 2008 by cowgirl

[Berta]

Paul- I see that rater's statement as the sole reason they didnt give you TDIU-

I agree with the advise here from others and feel that a reconsideration request might bring you a faster and better decision-

Mark your calendar for the last week you can file a NOD -it must be postmarked one year after the decision-but try the Recon request first-

Make sure they know of the urinary problems- how could anyone work with needing so many trips to a bathroom-during the day. Also tell them of any side effects from your SC meds that render you unemployable, and if Voc Rehab ever turned you down due to your SC tell them that too.

The only problem I see here is that the VA thinks-based on the examiners statement- that you are working.

This has to be corrected.And I think they could handle that with a reconsideration request.

[Berta]

Just put Reconsideration Request on a letter and then state you are asking them to reconsider their decision of (date) based on the following facts:

and tell them the stuff you posted here.

Just watch the NOD date-

I have a recon request in process but the NOD date was almost due-

And then I wanted to get a lawyer for this claim.They kept saying they were working on my recon request and I did get letters from them on it-but the NOD date was coming fast-

I managed to file the NOD days within the year time frame but a day after the new attorney for vet regs came out.

I have an attorney now looking at this claim.

Men and women the VA is fully aware of the fact that any denials these days will give vets the right to hire lawyers.

Because the NOD will be filed after June 21, 2007 date of the new regs. I think that is wonderful.So you would think maybe they will begin to get their act together.