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Going For Tdiu Examination.

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Josephine

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  • HadIt.com Elder

Just found out from the toll free number, I am going for an

unemployability C&P.

I called straight to the VAMC and it is scheduled for the 20th of

August.

I thank My dear God above the C&P is with the first PhD Psychologist

who was so kind to me for my first C&P. October 18, 2004.

He gave me the "More likely than Not" my Anxiety was the result of

service.

Of course this didn't suit with the VA so I went before the two quacks

alone.

Of course their decision was a P.D. Disorder and not a result of

service.

BVA and the AMC and back to BVA Judge granted benefits.

It is written by the Doctor in this C&P of 2004, I last worked in

1983 and had to discontinue employment due to high levels of Stress

and Anxiety.

It has been 25 years since I last worked, this would be 1983.

I was granted benefits from 1992 to date. The VA has determined this

was my first filing date.

2005 - 2008 - 70% for Chronic Anxiety with Depression

Both C&P's have noted that I filed my first claim in 1978, but the VA

now insist it was 1992.

When I go would it be alright to show him his C&P and what

should I take with me.

Thanks as Always,

Betty

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  • HadIt.com Elder

Betty, if this doctor does his homework, and the good ones do, You should have it with no problems.

This doc already knows you from experience, I had the same doc for 3 exams myself, I can tell you to take the Hubby with you, and be yourself. Knowing the Doc will take the edge off.

The RO will abide by thi opinion.

Good luck and dont work yourself into a tizzy wrrying about it. This one will be alot beter than the last claim.

John

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  • HadIt.com Elder

John,

I just hope the VA will take his word for it this time and not

feel the need to seek another opinion to over ride his being that

he is a Phd Psychologist.

As you said, I do know him and he is Super Honest.

Thanks,

Betty

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Betty,

The advantage you have this time over the last time is if the VA does try to railroad you again (which, FTR, I think is unlikely) you have the Mariano case to fall back on now that says the VA isn't supposed to go on a fishing expedition if they don't like what the examiner says.

I suspect that the VA is simply doing the due diligence in your case since your IME had to do with service connection and whether or not you had pd. Now the issue at hand is whether or not your anxiety currently precludes you from working.

Since your pension was based in part on your other nsc health conditions and is so old I assume that is why they are ignoring the pension evidence.

You wrote "No, I have not mentioned the earlier date of filing. I am trying to get the TDIU and then go from there." That makes sense to me but just be careful with the NOD one year time frame. If they take longer to decide IU and your one year anniversary date rolls around then you need to go ahead and get an NOD in for the EED before the one year appeal period is over.

Now, about addressing the EED during the C&P exam - here are my thoughts on that matter, and please, take it for the opinion that it is - on the one hand I don't think it is relevant to the reason you have a C&P exam which is to ascertain if your sc anxiety is the reason you do not work. A C&P exam is not an administrative process but a medical one and the shrink is not qualified to address the effective date of your claim.

HOWEVER, having said that, I think it would be VERY relevant to your claim to tell the doc during the discussion of your symptoms that you have been very anxious about how your VA claim was handled overall and mention that even though your previous C&P exams, to include the one he wrote (and then hand it over to him) prove you submitted your claim in 1978 that the VA has given you an effective date of 1992 and that having to remain in battle with the VA has you upset, wringing your wet hands, crying, fighting with your husband, you can't sleep.... and whatever other symptoms you experience from being anxious about the whole VA process.

This would be a natural way during the exam about your anxiety to address the EED w/ the examiner and he may be willing to look at the documents (or has already and knows you are right about the EED) and make a notation in your C&P exam. The rater will read it and review the documents and the issue will resolve itself (ok, maybe that last part is more fairy tale ending than reality but I do think if you bring up the EED in the context of your exam for anxiety that you may find an ally in the examiner who may not appreciate the way the VA ignored his report, set you up w/ the 2 quacks, and then took years to give you the VA benefits he signed off on years ago - he may well want to advocate for you in the EED matter just on principal).

Keep us posted,

TS

Edited by tssnave
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  • HadIt.com Elder
Betty,

The advantage you have this time over the last time is if the VA does try to railroad you again (which, FTR, I think is unlikely) you have the Mariano case to fall back on now that says the VA isn't supposed to go on a fishing expedition if they don't like what the examiner says.

I suspect that the VA is simply doing the due diligence in your case since your IME had to do with service connection and whether or not you had pd. Now the issue at hand is whether or not your anxiety currently precludes you from working.

Since your pension was based in part on your other nsc health conditions and is so old I assume that is why they are ignoring the pension evidence.

You wrote "No, I have not mentioned the earlier date of filing. I am trying to get the TDIU and then go from there." That makes sense to me but just be careful with the NOD one year time frame. If they take longer to decide IU and your one year anniversary date rolls around then you need to go ahead and get an NOD in for the EED before the one year appeal period is over.

Now, about addressing the EED during the C&P exam - here are my thoughts on that matter, and please, take it for the opinion that it is - on the one hand I don't think it is relevant to the reason you have a C&P exam which is to ascertain if your sc anxiety is the reason you do not work. A C&P exam is not an administrative process but a medical one and the shrink is not qualified to address the effective date of your claim.

HOWEVER, having said that, I think it would be VERY relevant to your claim to tell the doc during the discussion of your symptoms that you have been very anxious about how your VA claim was handled overall and mention that even though your previous C&P exams, to include the one he wrote (and then hand it over to him) prove you submitted your claim in 1978 that the VA has given you an effective date of 1992 and that having to remain in battle with the VA has you upset, wringing your wet hands, crying, fighting with your husband, you can't sleep.... and whatever other symptoms you experience from being anxious about the whole VA process.

This would be a natural way during the exam about your anxiety to address the EED w/ the examiner and he may be willing to look at the documents (or has already and knows you are right about the EED) and make a notation in your C&P exam. The rater will read it and review the documents and the issue will resolve itself (ok, maybe that last part is more fairy tale ending than reality but I do think if you bring up the EED in the context of your exam for anxiety that you may find an ally in the examiner who may not appreciate the way the VA ignored his report, set you up w/ the 2 quacks, and then took years to give you the VA benefits he signed off on years ago - he may well want to advocate for you in the EED matter just on principal).

Keep us posted,

TS

Tom,

The VA pulled this stunt on this doctor once and I am sure he does not think to kindly of what they did.

When I saw him in 2004, you must remember the VA was already setting a plot for him and me to fall in.

They ask him to evacuate me from 1979 to present of 2004, when in fact my medical records from 1965 to 1979 were hidden scattered within the file.

He spend over an hour back tracking until he located each one of them.

He very quickly put a stop to this one.

Actually it only took a telephone call from Senator Warner to get this claim going. I think they were prepared to drag it out as everything else.

My question is what if he deems that I have been unemployable since service.

I had one full time job for one year in 1967 and that is it. The others were a month here and a month there.

Had to quit, couldn't handle it.

Betty

I sent this letter to the R. O

Subject: Claim for TDIU

This is not an NOD.

I am re- submitting the TDIU form to further assist in adjudicating my claim for TDIU to the best of my knowledge and belief. The counselor at the Rxxxxx Regional Office completed this form for me upon my first filing for compensation.

I know some of the information ask for on the TDIU form is not complete, but it has been 25 years since employment at Enxxxx Mxxxx. I did go the Administrator and ask for work history records and they were not to be found. If at all possible, perhaps you can access this information from the Internal Revenue Service.

I am requesting TDIU with the Effective Date, being the date that I first submitted evidence of a medical disability, made a claim for the highest rating possible, and submitted evidence of unemployability to the VA - as under Roberson vs. Principi, once those requirements are met “the “identify the benefit sought” requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.”

As the VA did not send me the TDIU form though they have had evidence of the above for a substantial number of years, I am submitting the TDIU form. I expect my TDIU claim be awarded to the earliest possible date the VA received the TDIU claim under Roberson and not from the date the I have sent the form to the VA.

Had it not been for the Negligence of the VA to acquire my psychiatric records from the St Louis archives upon my first filing date, my claim would not had been so complex to establish service connection. I am requesting the VA to accept the letter from Social Security pertaining to my work history. Additionally, I expect the evidence from my service medical records to be considered constructively in my file as of the date of my earliest claim for service connection / TDIU.

PLEASE READ

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 hereby certify the information given is true and correct to the best of my knowledge and belief.

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Betty,

Good job on the letter. Seems to me that all you need to do now is walk out the C&P exam and then, before the one year appeal date from your decision granting service connection, arguing for the 1978 effective date.

Keep us posted,

TS

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  • HadIt.com Elder
Betty,

Good job on the letter. Seems to me that all you need to do now is walk out the C&P exam and then, before the one year appeal date from your decision granting service connection, arguing for the 1978 effective date.

Keep us posted,

TS

Tom,

I will be prepared for this one.

Take care and many thanks,

Betty

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