tdiu Entitlement To Tdiu September 8, 2008

[Josephine]

This paragraph constantly haunts me as to what this C&P examiner was

stating to the VA.

Entitlement to Individual Unemployability

Entitlement to individual unemployability is granted because the

claimant is unable to secure or follow a substantially gainful

occupation as a result of service- connected disabilities.

Social Security Administration income statements show that you have

not worked since 1983.

Your VA examination, conducted at the VAMC August 22, 2008, showed

that you have been unable to work due to your severe anxiety.

The examiner noted that you would not be employable due to your panic attacks, anxiety,

and inneraction with customers and coworkers in a working

environment.

Based upon the opinion of the examiner, entitlement to individual

unemployability is granted effective April 12, 2005 to August 20,

2008, the date of you increase to 100 percent.

Now, my question is - Did the VA Examiner state I became unemployable

in 2005 or in 1983?

Remember the BVA Judge granted me service connected for chronic

anxiety back to 1992.

For 1992- 1997 I was granted 10%

1997 - 2005 grant of 50%

2005 - 2008 Umemployability

2008 100% P&T.

Thanks,

Betty

[Wings]

Wings,

If the VA tossed the 1978 filing date then it may have been tossed.

I do not understand this stadging.

By 1992, I had undergone 28 years of psychiatric treatment with God knows how many medications. The VA only service connected me when I located my service psychiatric records for them in 2004.

If you add 12 years more treatment before I received my first C&P.

I think I deserved a higher rating than 10%.

Had the VA gave me this 10% upon discharge then I may agree with it.

Thanks,

Betty

Betty, I say to mysellf often, IF ONLY I knew then, what I know now about the VA! I would have SAVED EVERYTHING ... BUT, when you go to review your Claims-File at the VARO, and you find evidence of an earlier claim, then you can file CUE on the effective date.

But the "staged ratings" are another animal altogether, and this I believe is what you are focused on now, correct?

I know little about staged ratings, but I think you could safely argue that they lowballed your percentage ratings without prejudice to your current award. I would not fear reprisal where your arguments are based on fact and evidence. Let's say you decide to accept that 1992 as the date of service connection; if the facts in evidence suggest a higher disability rating, then that 10% or 50% should be argued. ~Wings

38 C.F.R. Sec. 4.1 - Essentials of evaluative rating.

This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.

[41 FR 11292, Mar. 18, 1976]

38 C.F.R. Sec. 4.7 Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

[Philip Rogers]

Betty, wings is really pointing you is the right direction. She's right on the money. It would be great if there was never a decision made on the 1978 claim cuz that would be a pending claim. They've admitted it was made, so you should try to find the decision notice of the 1978 claim. If there is/was none, the possibilty remains open that the award could go back to 1978. There is also the possibilty of a CUE but that "may or may not" be a long shot. The only error wings made(sorry wings) is that SS can go back to before the date the claim was made, by up to 17 months, or further, if the ALJ/court orders it.

pr

Edited December 29, 2008 by Philip Rogers

[Berta]

"I would like to know where the board of two psychiatist received their information for the 1978, for this is the correct one claim date"

I wonder if they have records themselves on this that are not in your med recs.

A VA doctor-much to my surprise-pulled out of his files -his medical review of my husband eight years years after the fact. We were on the phone and he began to read the actual review he did -which was parsed considerably in the SOC I got.

He himself provided me with a copy of this and it helped one of my present claims as he had associated the veteran's high levels of PTSD to his heart disease.

Also none of Rod's psychiatric records ,after he filed his 1151 claim and claim for higher PTSD rating- were in his actual med recs files.Somehow the SSA got them but they never showed up when I asked for copies of his med recs.

I had to ask his shrink for copies of them.The doctor insisted these should have been part of his regular medical records but they never got in the med recs file I received-for some reason.

Many VA doctors maintain complete copies of stuff that-it appears to me -might never get into the regular records requests we make.Maybe these two doctors would still have some documentation they could send copies of to you.

I believe these were the docs who were WRONG in their opinions Josephine-

they might be very willing to help you now.

The doc I mentioned that sent me the complete report he did in 1996-

then completely agreed with my present claim- but he mentioned I had knocked him down twice already so any further opinions he had would not mean much to the VA.

The way the VA had manipulated his report was a crime-

He had made a statement that the veteran's death could have been due to a sudden arythhmia or to a fatal encounter with cocaine.I was besides myself with anger over that-knowing that the vet was drug and alcohol free- was in VA Day Treatment 3 days a week and home the rest of the time with me- drug and alcohol free too--and the Med Examiner had done a complete toxicology report because Rod was an organ donor.

The actual doctor's report had added -as the doc read his actual report--"but that any fatal encounter with cocaine or other street drugs could have been ruled out by a toxicology report." The VA had never given this doc the autopsy or toxicology report and also had never sent this critical evidence to the VACO for the FTCA claim.It disappeared 12 times from the C file when I kept sending it in.

When I found this all out I sent it to them myself in DC and was immediately awarded FTCA.

Josephine-I had a heck of an argument with the doctor 8 years before I called him again-

he treated me with utmost respect because he knew (I dont know how he found out)that his report had been inaccurate in many other ways as well.It was used in an SOC ans also a SSOC and I knocked him down both times.

We talked for quite some time.I apologised for the fight we had right away. When he agreed that-in his opinion- I had the medical evidence to definitely support my AO claim- it meant a lot to me even though I had no IMO from him and VA will never get one from him regarding my claims again.

These two VA docs might be actually willing somehow to help you now- as this doctor helped me.

Edited December 29, 2008 by Berta

[hurryupnwait]

Betty, wings is really pointing you is the right direction. She's right on the money. It would be great if there was never a decision made on the 1978 claim cuz that would be a pending claim. They've admitted it was made, so you should try to find the decision notice of the 1978 claim. If there is/was none, the possibilty remains open that the award could go back to 1978. There is also the possibilty of a CUE but that "may or may not" be a long shot. The only error wings made(sorry wings) is that SS can go back to before the date the claim was made, by up to 17 months, or further, if the ALJ/court orders it.

pr

Hi PR

I have a pending claim from 1973, when my claim was at the BVA, they noted in their remand letter that I was never sent a decision letter after the VA sent me to a C&P exam in 1973. My attorney is working on this EED.

I would urge all vets that filed claims in the 1970's to get a copy of their c file and look for decision letters.

Happy Trails

Paul

[Philip Rogers]

Paul, I'd love to get 10% of all the claims that I could win that never had decisions prior to 1989, when they started the Veterans Court, especially from the 60's & 70's. Nah, make it from WWII, then I could buy me a car company. I'd bet there are a lot of errors. LOL

pr

Hi PR

I have a pending claim from 1973, when my claim was at the BVA, they noted in their remand letter that I was never sent a decision letter after the VA sent me to a C&P exam in 1973. My attorney is working on this EED.

I would urge all vets that filed claims in the 1970's to get a copy of their c file and look for decision letters.

Happy Trails

Paul