ptsd They Reduced Me Anyways!

[souldeliverer]

After my hard work in compiling evidence, the VA reduced my PTSD from 100% to 70%. If that wasn't enough, they also proposed to reduce my migraines from 30% to 10%!!! What is really going on at my RO? What should I do from here on out? Could this be age discrimination? Have I unwittingly made an enemy within the RO?

I am faxing and mailing my TDIU form tomorrow, and submitting a hearing request for the migraine reduction. Also, they are leaving my back comp at 10%, which I believe should be at least 30% for all the dang narcotics they have me on.

Can I submit an NOD for the PTSD reduction while simultaneously filing for TDIU???

Please look up my other posts for background info, or I can look them up if need be. I really need help with this one. I am getting jacked.

Please see: Had My Hearing For Ptsd Proposal To Reduce

Thank you all.

Edited June 13, 2008 by souldeliverer

[free_spirit_etc]

http://www.cafc.uscourts.gov/opinions/04-7020.pdf

The 1989 version of 38 C.F.R. § 4.16© read:

n cases in which the only compensable service-connected disability is a

mental disorder assigned a 70 percent evaluation, and such mental

disorder precludes a veteran from securing or following a substantially

gainful occupation . . . the mental disorder shall be assigned a 100 percent

schedular evaluation.

CURRENT ONE

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

(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, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 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 judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(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.

I think you have a case for the fact that you have ALWAYS been "unemployable - as you have NEVER had substantial gainful employment - you have ONLY had marginal employmment!

And from 1983 you have been unable to even maintain the MARGINAL employment.

I would think that the current regulation would apply to your claim. I am not sure what year they changed the regulation from the 70 percent factor. If that is within the life of your claim - it may apply retroactively.

And again, I think you have the same basis for being awarded SC back to the first application - which denied SC, but granted you were disabled for Pension purposes in 1983 - as they had for granting an effective date in 1992. Your SMRS were not in your record in 1992. They were not in your record in 1983.

I don't think they went far enough back on the effective date. The point that you FIRST applied for benefits and were denied - because the medical evidence to show the anxiety started in service (your SMRS) were not in your file - should be the effective date of the claim.

Free

I am thinking that the 70% mental rating being granted 100% TDIU has now changed since then (but still could be in play for Betty's claim or an earlier effective date) - but the parts about the evidence of record showing unemployability IS a claim for TDIU is still in effect.


Free

Does anyone know what the change is? The R.O with their grant of

the 70% did not send me a Form for TDIU.

Instead I was sent the Rehab form.

I do not believe this will benefit me after suffering from chronic

anxiety for 40 some years.

I did download the form from this site and filled it out

and sent records from Social Security that I had not worked since

1983. I do not draw Social Security Disability, as I was

always told that I did not have enough credits.

I don't understand why the Vetererans Service Manager did not

send me the form with their decision.

I had two C&P'S and each state unemployablity since 1983.

I also have the non service connected pension stating unemployability.

I filled out the form and took it with the Social Security Records

to the Roanoke Regional Office May 28, 2008 and to date

those papers have not been logged in at the Huntingon, West Va. R. O.

I should think they would be logged in by now.

It has been almost a month.

Thanks,

Betty

[tssnave]

SD,

I was stunned to read the outcome of your hearing in this thread. I printed and saved your previous "Had My Hearing to PTSD Proposal To Reduce" thread because I thought it was so well written and a good use of the regs and/or VBM. I am so sorry things didn't work out for you from the get go.

I haven't slept for several days but I do have a couple off the cuff comments for your consideration:

1. I agree w/ John (I think is who posted the GAF comment) that they are off in their references to your GAF and what that equates to in VA ratings. I had a GAF of 49 and that is equivalent to a 70% rating. In my case, it was because of the suicidal ideation which is part of the 41-50 GAF as well as the 70% rating criteria. Since the GAF is probative but not binding the VA can either use it to their advantage or ignore it if it's to your advantage so generally speaking I would pass on getting too wrapped up about the GAF but in your case they were misquoting the relationship between your GAF scores and the VA rating schedule. In your NOD I would suggest you quote court cases that clearly spell out the relationship of the GAF score to the VA rating schedule.

2. If you have a 2007 VBM then check out all of 5.10.3, especially where it says "A private medical opinion stating that the claimant has not medically improved since the 100% evaluation was assigned or continued can be crucial in these (reduction of 100% rating) cases."

Here's what I think has happened - you did an excellent job of presenting and analysing the treatment reports, data, and historical and current evidence in your file. HOWEVER, you are not a shrink and as such, your opinion doesn't count for much. You can, of course, offer a lay statement but a medical opinion needs to come from a shrink.

You need a good IMO because then you can stand behind M21-1MR where it states that the rater cannot supplant their own medical opinion over that of an actual medical professional. Right now it's your interpretation over a VA rater's interpretation and to loosely quote the guy from vawatchdog.org it is their game and their rules and their ball unless you get an IMO.

Again, I think you did a good job analysing a lot of information and that will help the IMO shrink see where you're comging from. Remember, they have to show sustained material improvement and you need a shrhink who will say that one fishing trip and one smile do not a sustained material improvement make.

Again, I thought you did an excellent job on your original hearing evidence (and thanks for letting us all know we need to read every word into evidence) report and believe you will ultimately prevail.

I have learned a lot from this thread - my thanks to all who replied so far, especially with the VA regulatory citations which really helps.

Hang in there and keep us posted on your progress.

TS Snave

[souldeliverer]

I want to thank you all once again for your continued support on this matter, and for all of your efforts. Here is the latest...

I recieved a call yesterday from the VA RO lady who told me they have recieved my application for TDIU. They went ahead and approved me!!! This is terrific news, as I no longer have to worry about where my family will live in a couple months. She said I will be considered 90% TDIU. This will go down to I think 70% TDIU if they decide to reduce my migraines to 10% from the current 30% rating, which they have proposed. She also told me that I am scheduled for a future exam in May, where I fear I will have to go through this all over again. I do not want to deal with this crap every year. It is way too stressfull for me to deal with on top of my PTSD.

Questions:

1.) Should I bend over and take this and leave it alone for now, and file for an increase after I produce more evidence?

or

2.) Should I continue my pursuit to be rated 100%? with or without TDIU?

or

3.) Should I go ahead and get an IMO? How long does it take to recieve an IMO? Do I have a year during which I can submit evidence, or is it 60 days?

Thanks again to all!!!

Edited June 26, 2008 by souldeliverer

[Josephine]

I am very pleased to hear this news.

I will let the experts answer your questions for you.

Always,

Betty

[Wings]

x

x

x

Sent you an email from Public Library (on the run from county fires and smoke) ... TAKE THE MONEY AND RUN!! TDIU pays 100% comp. will not propose a reduction unless you become gainfully (full-time) employmed, and stay fully employed for 12 months.

You can keep other issues in appeal, and continue to SC additional issues. Do not ask for 100% schedular until your disability issues reach the 5 year mark. My 2 cents, gotta run.

I'm on the coast all, away from fires, have been away from home with 13 y/o daughter and 2 dogs since Tues morning. Be safe. ~~Wings

[tssnave]

Wings,

In your June 18th post on this thread you wrote "...For one, they misapplied VA Directives on GAF Scores....."

Please post a link to the VA Directives on GAF Scores you are talking about. I assume you are referencing something other than the GAF scale link you posted.

I would like to see a clear VA Directive that gives the VA clear guidelines on how to apply a GAF score to the rating schedule percentages. I was unable to find anything like that when I did my NOD last year.

Thanks for all the great work you've put into this thread. I have printed a great deal of the information you posted for reference. I concur with Hoppy's comment: "Good Job!".

Thanks,

TS Snave