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

[Wings]

United States Court of Appeals for the Federal Circuit

00-7009

HOWARD F. ROBERSON, Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

DECIDED: May 29, 2001

In March of 1989, 38 C.F.R. § 4.16 was amended to add subsection ©, stating: “in cases in which the only compensable service-connected disability is a mental disorder assigned a seventy 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 evaluation under the appropriate diagnostic code.”

"Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of un-employability, the “identify the benefit sought” requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. The VA must consider TDIU because, in order to develop a claim “to its optimum” as mandated by Hodge, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU.

I used this one myself,

Betty

Betty, Can you post a Link/URL to the entire decision. There's additional info. for Soulman. ~Wings

Soulman, That Rebuttal of yours should be re-entiled Amendment to NOD. You are so right on target with your CFR 3.343. Copy that OCG Precedent and attach that to your NOD as well. You can copy and paste (with edit) and information you find here that is pertienet to your NOD.

[Josephine]

I think I have it and thanks to Free,

Betty

United States Court of Appeals for the Federal Circuit

00-7009

HOWARD F. ROBERSON,

Claimant‑Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent‑Appellee.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David M. Cohen, Director; and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief were Donald E. Zeglin, Acting Assistant General Counsel; and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Donald L. Ivers

United States Court of Appeals for the Federal Circuit

00-7009

HOWARD F. ROBERSON,

Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.

__________________________

DECIDED: May 29, 2001

__________________________

Before GAJARSA, LINN, and DYK, Circuit Judges.

LINN, Circuit Judge.

DECISION

Howard F. Roberson appeals from the decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans Appeals’ (“Board”) decision that a 1984 rating decision did not involve clear and unmistakable error (“CUE”). See Roberson v. West, No. 97-1971 (Vet. App. July 27, 1999). We hold that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider total disability based upon individual unemployability (“TDIU”). We further hold that proving inability to maintain “substantially gainful occupation” for entitlement to TDIU does not require proving 100 percent unemployability. Because the Court of Appeals for Veterans Claims erred in holding that Roberson failed to make a claim for TDIU, and erred in applying an incorrect standard for TDIU, we reverse and remand.

BACKGROUND

Roberson served on active duty in the U.S. Marine Corps from May 26, 1967 until February 10, 1971. His service and medical records are negative for any psychiatric condition. In a 1975 rating decision, the regional office (“RO”) awarded service connection to Roberson for scars, and denied service connection for chronic low back pain with spondylolysis and high frequency hearing impairment.

In 1982, Roberson submitted an application for benefits for psychiatric problems, which he attributed to his service in Vietnam. In his application, Roberson noted that he had not worked in almost a year. He also included a statement from his wife describing his behavior and his inability to remain employed. One year later, in 1983, Roberson was admitted to a Veteran’s Administration (“VA”) hospital to receive treatment to “get his life together again.” Roberson was diagnosed with alcohol dependence and post-traumatic stress disorder (“PTSD”). Subsequently, a VA examination indicated that Roberson had been unemployed for two years. The examiner diagnosed Roberson with chronic PTSD, substance abuse in remission, and recurrent-type major depression. Included in the same VA examination, a social work services examiner reported that Roberson had held several construction jobs between 1972 and 1978, lasting for periods ranging from two weeks to seven months.

In a 1984 rating decision, the RO awarded service connection for PTSD and assigned a seventy percent disability rating, effective September 20, 1982, the date on which Roberson submitted his application for VA benefits for psychiatric problems. The RO’s rating decision noted that Roberson had a history of substance abuse, and had “been unemployed for 101/2 years primarily because of what was described as poor concentration.” Roberson was also awarded service connection for Tinnitus, evaluated at ten percent disabling, effective November 30, 1982, and his ten percent disability rating for scars was reduced to zero.

Independent of the VA’s actions, in 1987 the Social Security Administration (“SSA”) concluded that Roberson met the disability insured status requirements of the Social Security Act, because he had “not engaged in substantially gainful activity” between October 1981 and June 1984.

In March of 1989, 38 C.F.R. § 4.16 was amended to add subsection ©, stating: “in cases in which the only compensable service-connected disability is a mental disorder assigned a seventy 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 evaluation under the appropriate diagnostic code.” This amendment was brought to the RO’s attention by Roberson’s counsel, who requested consideration of a 100 percent disability rating to be effective as of September 1982.

In response, on October 2, 1990, the Board increased Roberson’s disability rating for PTSD to 100 percent. However, this rating decision was effective March 1987 rather than September 1982. The Board based its decision on the following: (1) a September 1987 vocational rehabilitation Board finding that Roberson “was not feasible for training;” (2) VA medical records; (3) a September 1988 social work survey; (4) private medical records; (5) testimony from Roberson and his wife in a 1989 RO hearing; (6) testimony from Roberson and his wife at a 1990 traveling Board hearing; and (7) evidence presented during the traveling Board hearing including evidence of receipt of Social Security benefits.

Five years after Roberson’s disability was increased to 100 percent, in a letter dated September 29, 1995, Roberson’s counsel alleged CUE in the 1984 rating decision, based on the RO’s failure to apply 38 C.F.R. § 3.340(a)(1). This regulation states:

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

Roberson’s counsel asserted that, based on Roberson’s unemployability and inability to concentrate, Roberson was entitled to a 100 percent disability rating under section 3.340 in the 1984 rating decision. In a February 28, 1996 response, the RO informed Roberson that he had not submitted a valid CUE claim. Roberson submitted a notice of disagreement and subsequently perfected his appeal.

In a letter to the Board dated March 1997, Roberson additionally alleged that, based upon the record before the RO in its 1984 decision, the RO “clearly and erroneously failed to follow the controlling regulations regarding total disability based upon individual unemployability [TDIU].” He stated that, because the record disclosed that Roberson had been unemployed for ten and a half years, he was entitled to TDIU. The Court of Appeals for Veterans Claims, however, noted that this statement regarding ten and a half years of unemployment was contradicted by a 1987 VA medical report stating that Roberson had been employed as a structural steel worker within that ten and a half year period. The court also found that “there was sufficient evidence of record at the time of the RO’s January 1984 decision to reasonably conclude that the veteran was not 100% unemployable.” Roberson v. West, No. 97-1971, slip op. at 6.

On July 7, 1997, the Board determined that the 1984 rating decision, establishing service connection for PTSD and a seventy percent disability rating, did not contain CUE because Roberson had failed to allege TDIU, and even if he had alleged TDIU, he was not eligible for TDIU because he was capable of maintaining substantially gainful employment. The Court of Appeals for Veterans Claims affirmed the Board’s decision that Roberson had failed to allege TDIU, and that he was not eligible for TDIU. Roberson timely appealed the Court of Appeals for Veterans Claims’ dismissal to this court. We have jurisdiction under 38 U.S.C. § 7292 (1994).

DISCUSSION

Our jurisdiction to review decisions of the Court of Appeals for Veterans Claims is limited. We have jurisdiction “to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292© (1994). Unless there is a constitutional issue presented, however, we may not review factual determinations or the application of law to a particular set of facts. Id. § 7292(d)(2).

38 C.F.R. § 3.155(a)

Roberson alleges that the Court of Appeals for Veterans Claims misinterpreted 38 C.F.R. § 3.155(a), governing informal claims, which states in pertinent part:

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought.

38 C.F.R. § 3.155(a) (1994) (emphasis added).

The Court of Appeals for Veterans Claims held that even if the VA had a duty to develop all possible claims that are reasonably raised from a liberal reading of the record, Roberson was required under section 3.155(a) to specifically request entitlement to the benefit sought – in this case TDIU. The Court of Appeals for Veterans Claims determined that because Roberson did not make a specific request for TDIU, the VA was not obligated to adjudicate such a claim.

Roberson alleges that Norris v. West, 12 Vet. App. 413 (1999), is applicable and holds that the VA’s requirement that TDIU be specifically requested “loses sight of the Congressional mandate that the VA is to ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.’” Norris, 12 Vet. App. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). Although Norris does not bind this court as precedent, it is both on-point and informative.

The facts of Norris are similar to the present case. Norris was rated 70 percent disabled from a mental disorder. Id. at 415. His rating was increased to 100 percent based on 38 C.F.R. § 4.16 (i.e., the same basis for increasing Roberson’s rating to 100 percent). Id. at 416. Before the Court of Appeals for Veterans Claims, Norris alleged CUE in not giving him an earlier effective date for his 100 percent rating. Id. The government alleged that an informal claim for TDIU was not raised under the specific facts of Norris’s case because entitlement to TDIU requires a showing of at least an informal claim specifically alleging TDIU. Id. The Court of Appeals for Veterans Claims rejected the government’s argument because such a position “loses sight of VA’s congressional mandate that VA is to ‘fully and sympathetically develop the veterans’ claim to its optimum before deciding it on its merits.’” Id. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). In addition, the Court of Appeals for Veterans Claims stated that developing a claim “to its optimum” must include determining all potential claims raised by the evidence and applying all relevant law and regulation raised by that evidence regardless of how the claim is identified. Id.

Despite this generalized holding, the facts of Norris are distinguishable from Roberson’s situation. In Norris, the Court of Appeals for Veterans Claims held that, under 38 C.F.R. § 3.157(B), an informal claim for an increase in rating percent was created with each VA examination report. Id. at 419. In addition, each informal claim for a rating increase included a claim for the highest rating possible, all the way up to 100 percent. Id. Thus, the court did not look at the propriety of the initial rating determination. This is an important distinction. In Norris, it was the subsequent informal claims that were found to raise TDIU. Id. at 421. The Court of Appeals for Veterans claims stated:

when the VA conducts a medical examination . . . if the results indicate an increase in severity in the disability, VA must then evaluate the circumstances as a claim for an increased rating. Further, the Court holds that when an RO is considering a rating increase claim from a claimant who’s schedular rating meets the minimum criteria of section 4.16(a) and there is evidence of current service-connected unemployability . . . evaluation of that rating increase must also include an evaluation of a reasonably raised claim for a TDIU rating. In that situation, where those two criteria are satisfied, a well-grounded TDIU claim is included in every rating-increase claim, and VA would be required to adjudicate that well-grounded TDIU claim.

Id. (internal citations omitted).

The court then held that Norris’s informal TDIU claims, having never been finally decided by the RO, were not ripe for adjudication. Id. at 422. Thus, CUE was never considered. Unlike Norris, Roberson’s original medical disability claim was decided by the RO and is the claim for which Roberson seeks the highest rating possible. Ratings decisions by the DVA are deemed "final and binding ... as to conclusions based on the evidence on file at the time the [DVA] issues written notification of the decision." 38 C.F.R. § 3104(a) (1994). But see Hayre v. West, 188 F.3d 1327, 1333 (Fed. Cir. 1999) (“[a] breach of duty to assist in which the VA failed to obtain pertinent [evidence] specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error . . . that vitiates the finality of an RO decision for purposes of a direct appeal”). Roberson has not alleged that the VA failed to obtain pertinent evidence. Thus, Roberson’s claim has been finally decided by the RO.

Roberson asserts that the 1984 rating decision involved CUE because the VA breached the duty to assist. As we held in Hayre v. West, 188 F.3d 1327, 1332-33 (Fed. Cir. 1999), breach of the duty to assist cannot form the basis for a CUE claim. This holding is specifically confirmed by DVA regulations. See 38 C.F.R. § 20.1403(d)(2) (2000); Disabled Am. Veterans v. Gober, 234 F.3d 682, 697 (Fed. Cir. 2000) (citing Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994)). However, the duty to assist under 38 U.S.C. § 5107(a) is a duty to assist a claimant “in developing the facts pertinent to the claim,” and that duty is separate from the VA’s mandate to fully develop the veteran’s claim. Even though the duty to assist cannot form the basis for CUE, we must nonetheless determine the standard that applies when the VA is considering a CUE claim. When a decision of the VA is final, as here, there are two grounds for attack on that decision under the statute. The veteran can seek to reopen a disallowed claim based on new and material evidence under 38 U.S.C. § 5108, or the veteran can seek to “reverse[] or revise[]” the Board’s decision based on CUE under 38 U.S.C. § 7111. In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), we considered the first type of error and determined that Congress has mandated that the VA is “to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” Hodge, 155 F.3d at 1362 (quoting H.R. Rep. No. 100-963, at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5795). We see no basis for applying a different standard to a CUE claim, and we hold that the DVA is thus required to consider a CUE claim using the standard of Hodge.

The government argues that, because Roberson never specifically requested TDIU in his original claim, he cannot be considered to have filed a TDIU claim despite his submission of evidence regarding his unemployability. We disagree.

Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the “identify the benefit sought” requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. The VA must consider TDIU because, in order to develop a claim “to its optimum” as mandated by Hodge, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU. Thus, we reverse the court’s holding that Roberson failed to make a claim for TDIU before the RO at the time of its 1984 decision.

38 C.F.R. § 3.340(a)

Having found a claim for TDIU, we consider Roberson’s entitlement to TDIU under 38 C.F.R. § 3.340(a)(1), dating back to the 1984 rating decision. Roberson alleges that, in determining his eligibility for TDIU, the Court of Appeals for Veterans Claims misinterpreted section 3.340(a)(1). This section stated, at the time the RO evaluated Roberson’s claim, “[t]otal disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. § 3.340(a)(1) (1983) (emphasis added). Roberson asserts that the Court of Appeals for Veterans Claims misconstrued “substantially gainful occupation” to mean “100% unemployable.” Roberson bases his allegation on the court’s statement that “there was sufficient evidence of record at the time of the RO’s January 1984 decision to reasonably conclude that the veteran was not 100% unemployable.” Roberson v. West, No. 97-1971, slip op. at 6. Roberson asserts that the plain language of the regulation does not require the veteran to show 100 percent unemployability in order to prove that he cannot “follow substantially gainful occupation.” We agree.

Requiring a veteran to prove that he is 100 percent unemployable is different than requiring the veteran to prove that he cannot maintain substantially gainful employment. The use of the word “substantially” suggests an intent to impart flexibility into a determination of the veterans overall employability, whereas a requirement that the veteran prove 100 percent unemployability leaves no flexibility. While the term “substantially gainful occupation” may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.

Having concluded that proving inability to maintain “substantially gainful occupation” does not require proving 100 percent unemployability, we remand to the Court of Appeals for Veterans Claims for a determination of Roberson’s eligibility for TDIU in accordance with this opinion.

CONCLUSION

We conclude that the Court of Appeals for Veterans claims erred in holding that Roberson failed to make a claim for TDIU, and erred in applying an incorrect standard for TDIU.

REVERSED and REMANDED

Edited June 20, 2008 by Josephine

[deltaj]

This is the cover letter I submitted at my hearing on May 1, 2008. Do I need to resubmit this information??? They never addressed any of this in the letter they sent me denying me, and saying they are going to go ahead with their proposal to reduce. Will this information ever be reconsidered, or am I battling their most recent letter?

COVER LETTER

The following is a listing of all the evidence being presented in the case for Me. This evidence is proof that my condition has not improved; therefore it is unlawful for my compensation level for Post Traumatic Stress Disorder to be reduced from 100 percent disabling. I will also provide concrete medical evidence that my condition should be considered permanently and totally disabling.

Evidence

EXHIBIT A:

A1: SOC dated March 26, 2008; proposal to reduce

A2: NOD dated April 02, 2008

A3: SOC dated December 01, 2006; award for 100 percent compensation

EXHIBIT B:

B: My rebuttal of Exhibit A1, citing a plethora of medical evidence as well as VA rules and regulations proving my condition has not improved

EXHIBIT C: Medical evidence from January 17, 2007 to April 15, 2008

C1: Progress Note by Dr. _____, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated January 17, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note points out my nightmares, rage, flashbacks, panic attacks and homicidal thoughts.

C2: Progress Note by Dr. ______, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated February 26, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note highlights my self-isolation, inability to work, panic attacks, increased startle reflex, and auditory hallucinations.

C3: Progress Note by Dr. _______, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated March 15, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note talks about my auditory hallucinations, where I hear a woman talking to me and sometimes screaming. Dr. ___ also states that I am unable to work due to increased anxiety and poor frustration tolerance.

C4: Progress Note by Dr. _____, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated May 22, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note states that I am explosive and easily provoked, fantasize about killing people, and have violent dreams.

C5: Progress Note by Dr. ____, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated July 24, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note states that I have panic attacks due to combat related triggers, nightmares, flashbacks from loud noises, irritability, poor frustration tolerance, anger problems, a strained marriage due to my PTSD symptoms, feelings of worthlessness, and fear of the future.

C6: Progress Note by _____LCSW, VAMC Nashville, PTSD clinic dated September 14, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note talks about my dissociative episodes which is grossly impaired thought process, intrusive thoughts of combat, anxiety, social avoidance, numbness, depression, sleeping problems, and difficulty creating and maintaining interpersonal relationships. It also mentions how since returning from Iraq, I am unable to express emotion, which negatively impacts my marriage, as well as homicidal and suicidal thoughts, physically assaultive behavior, and auditory and visual hallucinations. Dr ___ Ph.D. then added an addendum to this note giving the results of some phych testing, stating I suffer from chronic and severe PTSD.

C7: Progress Note by ________, Nurse Practitioner, VAMC Nashville, PTSD clinic dated September 14, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note discusses my previous suicide attempt, my suicidal thoughts and plan, and mentions my flashbacks, panic attacks, and intrusive thoughts.

C8: Progress Note by Dr. _____, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated September 28, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note mentions my increase in anger and rage, as well as panic attacks.

C9: Progress Note by Dr. _____, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated October 01, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note shows the severity of my symptoms as Dr. _____ has resorted to offering ECT treatments to help.

C10: Progress Note by _____ LCSW, VAMC Nashville, PTSD clinic dated October 19, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note talks about my heightened anxiety in public settings, my night terrors and flashbacks, and my inability to feel and express emotions.

C11: Progress Note by _____, LCSW, VAMC Nashville, PTSD clinic dated October 22, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note states that I have grown tired of hallucinations, dissociations, and guilty feelings about the war. A day doesn't go by that I don't think about these memories.

C12: Progress Note by Dr. ______, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated October 24, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note describes one of my dissociative episodes, where I blacked out while driving in Nashville and was stopped by a police officer, and again mentions my persistent auditory hallucinations.

C13: Progress Note by Dr. _____Ph.D., Clinical Psychologist, VAMC Nashville dated November 07, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note states that after the 6 week inpatient PTSD program in Nashville, my depression has increased, and my PTSD remaines unchanged. It also mentions my suicidal thoughts.

C14: Progress Note by Dr. ______, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated November 30, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note talks about my strained marriage, and my anger outbursts.

C15: Progress Note by Dr. _____MD, PCP, VAMC Nashville, Firm A dated December 03, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note is about one of my persistent dissociative episodes.

C16: Progress Note by _____, LCSW, VAMC Nashville, PTSD clinic dated December 04, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note describes one of my dissociative episodes, where I blacked out while driving after a man on I-24 to kill him,

C17: Progress Note by _____, Psychology Intern, VAMC Nashville dated December 12, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note discusses my strained marriage due to my PTSD symptoms, my depression, panic attacks related to identifiable triggers related to my trauma, my prior suicide attempt, and my suicidal thoughts. The author of this note also links my depression to my "severe PTSD."

C18: Progress Note by Dr. ______, Ph.D. LCSW, Team Leader, Nashville Vet Center dated March 25, 2008. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note talks about my emotional numbness, and hopelessness. It also says I am very unstable and I have a moderate to high risk for self-harm.

C19: Progress Note by Dr. _____, Ph.D. LCSW, Team Leader, Nashville Vet Center dated April 01, 2008. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note again discusses my persistent hallucinations and delusions as well as my paranoia. My thinking and judgment are impaired.

C20: Progress Note by Dr. _____ MD, PCP, VAMC Nashville, Firm A dated April 07, 2008. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note mentions my frequent flashbacks, panic attacks, nightmares, and Dr. ___ wrote that he is "concerned my PTSD may be getting worse."

C21: Progress Note by _____, LCSW, VAMC Nashville, PTSD clinic dated April 07, 2008. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note mentions my predominant emotions of fear, anxiety and numbness. My flashbacks of children being killed have increased since having a baby, and goes into detail on some of my delusions, hallucinations, and suicidal thoughts.

C22: Progress Note by Dr. _____, Ph.D. LCSW, Team Leader, Nashville Vet Center dated April 09, 2008. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note talks about my constant marital conflict since my return from Iraq, mentions how I ended up in restraints and seclusion last time I was an inpatient in Nashville, my paranoia and delusions, my hallucinations, and suicidal thoughts. The author stated I have a "very high level of risk," and that I "refuses to credibly contract for safety," and am displaying intermittent psychotic thinking.

C23: Progress Note by _____, LCSW, VAMC Nashville, PTSD clinic dated April 15, 2008. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note again talks about my persistent delusions and hallucinations, intrusive war zone memories, guilt, and the prospect of my wife leaving again.

C24: Progress Note by Dr. _____, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated April 15, 2008. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note discusses my "paranoid ideations," my panic attacks, and mood swings and the author stated I "endorses poor executive functioning, and decision making."

C25: C&P examination by Dr. ____ PsyD., Clinical Psychologist, VAMC Nashville, dated November 16, 2007. I have highlighted medical evidence proving my inability to adjust to social and occupational settings due to gross impairment in thought process and communication; persistent delusions and hallucinations; grossly inappropriate behavior; persistent danger of hurting myself and others; and intermittent inability to perform activities of daily living(including maintenance of minimal personal hygiene). This note describes a strained marriage, lack of social support, history of suicide attempt, history of violence, sleep impairment, panic attacks, suicidal and homicidal thoughts, poor impulse control, inability to maintain personal hygiene, severly impaired memory, flashbacks, and dissociative episodes.

EXHIBIT D: Letters in support of claim by medical professionals

D1: Letter from Dr. _____, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated November 01, 2006. This letter address my inability to work and states, "His symptoms of PTSD, which are directly combat related, are of a degree of severity high enough to have impacted major areas of life functioning."

D2: Letter from Dr. _____, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated August 20, 2007. This letter talks about some of my symptoms which ended my career, and states the "condition is considered chronic and long-term."

D3: Letter from Dr. _____, VAMC Nashville, Staff Psychiatrist, PTSD clinic dated April 17, 2008. This letter also mentions some of my persistent symptoms, and states, "given his current symptoms, it is unlikely that he will be able to maintain productive employment on an ongoing basis."

D4: Letter from by Dr. _____, Ph.D. LCSW, Team Leader, Nashville Vet Center dated April 11, 2008. This letter describes my symptoms in detail, and the author wrote, "It is this provider's opinion that the severity of veterans symptoms falls in the highest 2-5% of the clients seen in the Vet Center. He does not appear at this time to be capable of functioning in any work environment due to the disorganizing effects of his illness."

EXHIBIT E: Social Security Disability Award letter.

EXHIBIT F: Federal Employees Retirement System disability retirement award.

EXHIBIT G: Lay statement from my wife stating my condition has not improved.

Considering all the above evidence, I believe it is quite obvious that my condition has not improved, and I still meet the criteria for 100 percent compensation for post traumatic stress disorder. I also feel I have provided enough evidence to make that 100 percent rating permanent and total, as I previously requested.

If Social Security Disability has been awarded to you for the condition that you have been service connected for you need to immediately go down to the Social Security Administration and request that Social Security send copies of your medical records to V.A. in support of your claim for total disability and unemployability. Awhile back I read a court of veterans appeals case where a veteran had failed to submit copies of his Social Security medical records to V.A. The court actually stated that V.A. had a duty to assist in obtaining the Social Security records but that breech of a duty to assist did not encompass clear and unmistakable error. The court seemed to scold the veteran in the decision for failing to submit his Social Security medical records and refused to grant him an earlier effective date of his increased rating. I'm trying to remember the regulation but I think in 38 CFR 3.400 there's a subsection that pertains to new and material evidence submitted during an appeal period. My husband had Social Security submit his Social Security medical records during an appeal period and he won his appeal. I'm certain this advice to you is solid. Don't wait to do this. Sending a copy of your Social Security award letter triggers a duty to assist by V.A. but if V.A. doesn't request the Social Security medical records from Social Security they can cheat you out of 100%. Don't let them do this to you.

Edited October 20, 2009 by deltaj

[souldeliverer]

Thank you all so much for your help. I am working on all this stuff, but am feeling a little overwhelmed at the moment. As soon as I get something more put together, I will post it for critique.

Thanks again.

[free_spirit_etc]

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

United States Court of Appeals for the Federal Circuit

00-7009

HOWARD F. ROBERSON, Claimant-Appellant,

v.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

DECIDED: May 29, 2001

In March of 1989, 38 C.F.R. § 4.16 was amended to add subsection ©, stating: “in cases in which the only compensable service-connected disability is a mental disorder assigned a seventy 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 evaluation under the appropriate diagnostic code.”

"Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of un-employability, the “identify the benefit sought” requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. The VA must consider TDIU because, in order to develop a claim “to its optimum” as mandated by Hodge, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU.

I used this one myself,

Betty

[Josephine]

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