Still Loosing It, Help Please.

[livingrock21]

Hello To All Again,

I haven't posted here for a while! I'm still in the same boat and on my last appeal. Here is a link from my original post http://www.hadit.com/forums/index.php?showtopic=15124&hl= .

A little background. I got medically retired from the Navy August of 07. Filed my BDD claim July of 07. Got my findings in Nov. of 07. When I got my findings I immediately saw an error on the VA's part. They rated me per a condition that I didn't have, nor was it even really related. They had me rated under "Paralysis of the median nerve" (unsure of the VASRD code, believe it was 8517). I should have been rated under Erythromelalgia, diagnostic code 7119.

I've been appealing this since. I'm on my third and final appeal and am very discouraged. At one point I thought I was going to recieve help from a VFW Service Officer. He said he would take my claim to the STAR Review, and it would be fixed there. Seemed as though he was going to be very helpful, only to have him come back and say they were no help.

On my last Statement of the case, they agreed they made an error rating me under paralysis of the median nerve and agreed to rate me under erythromelalgia, but didn't change my percentage as they should have.

_____________________________________________________________________

Here's an excerpt from the VASRD on this particular condition (this pertains to my questions:

7119 Erythromelalgia:

Characteristic attacks that occur more than once a day, last an average

of more than two hours each, respond poorly to treatment, and that

restrict most routine daily activities.................................................................. 100

Characteristic attacks that occur more than once a day, last an average of

more than two hours each, and respond poorly to treatment, but that

do not restrict most routine daily activities........................................................ 60

Characteristic attacks that occur daily or more often but that respond to

treatment.......................................................................

...................................... 30

Characteristic attacks that occur less than daily but at least three times

a week and that respond to treatment................................................................ 10

Note: For purposes of this section, a characteristic attack of erythromelalgia consists of burning pain in the hands, feet, or both, usually bilateral and symmetrical, with increased skin temperature and redness, occurring at warm ambient temperatures. These evaluations are for the disease as a whole, regardless of the number of extremities involved.

________________________________________________________________________________

_______________

My questions:

Is there anything else I could be doing? I'm so scared their going to come back and say everythings fine and deny my appeal to correct the percentage.

I have a letter from my active duty dr, in my medical record, stating that the attacks occur daily. They last more than two hours, and do not respond to treatment. So how could they have me rated at 30%?

Also, while in the appeals process, I have been granted Social Security Disability due to this condition. If you look at the rating criteria, the diference in 60% and 100% is the ability to perform daily activities. I can't do the most daily activity, work. Should I submit evidence as to the fact that SSD found me disabled? I called today and my appeal is in the DRO's hands. I was told it's been there for atleast the past 5 months.

This is off topic with the VA claims processing, but.... I don't get SSI because they include my VA compensation. I'm rated at 40%. Are they allowed to use this as income? I've seen people on here that are 100%, getting SSD and SSI. What am I doing wrong? I'm only at 40% and can only get SSD?

Thanks for your help in advance. Hopefully someone can point me in the right direction.

[broncovet]

Living Rock

Social Security Disability can be used for evidence for your TDIU claim, but it is certainly no guarntee that you will "get TDIU". Social Security's defination of qualifying for SSD is different than VA's eligibility for TDIU. Yes, it would make sense if it was like you say, but it just is not that simple, unfortunately. Getting one does not mean you will automatically get the other.

For one thing, SSD can even be used against you, if the conditions Social Security granted you disability for are not service connected by the VA. For example, if you have applied for TDIU based on PTSD from the VA, and you were awarded Social Security Disability for a back injury, then your regional office is probably going to contend you are not eligible for TDIU because the reasons you can not work are not related to your military service.

I recommend you look carefully at your SSD decision, and your VA decisions as well.

ONLY the VA can answer the question as it pertains to you..yes you COULD get social security disability AND TDIU. But whether or not YOU WILL GET it remains to be seen. I could win the lottery, but the odds are against it.

I am not against you getting TDIU..not at all. I am very much pro Veteran. I am just telling you what I have seen happen. Search hadit, Veterans Benefit Network, Court of Veterans Claims cases, and decide what is best for you, because you know way more about your conditions than we do. Some people post decisions, medical exams..etc..to get opinions. If you dont do that, we posters, altho we are merely trying to help..are just guessing.

[rentalguy1]

Wondering who's right? Will I get the TDIU since I recieve SSDI, or not? I guess that plays the biggest factor right now as to what I'm going to do.

As broncovet previously pointed out, to be eligible for TDIU a veteran has to have a VA disability compensation rating of 60% for a single disability, or 70% for a combination of disabilities (with at least one of the combined disabilities being rated at 40%). You can be granted TDIU without meeting these criteria, but it is extremely rare. Also, as broncovet said, if your SSDI was awarded for condition that is not a service connected disability, then the VA would use that against you in a TDIU claim. This even holds true if SSDI was awarded for 10 conditions, and 9 of them were service connected. They would use the one non-service connected condition to deny the claim. This would most likely be overturned on appeal, but you would lose up front. I don't hink anyone can count on a TDIU award without first meeting the minimum criteria, and then it can still be a uphill battle.

[Berta]

I am re-thinking the part about your rep wanting to see the SSA records-

He is doing the right thing-and as these guys said-

he wants to see if the award is for exactly what your 40% SC is for.

If one federal agency determines medically that a veteran is unemployable solely due to the very same condition(s) that the veteran has proven were due to service -then the vet "should" get TDIU or even a direct 100% SC award.

There are plenty of vets here and at the BVA web site

who "should" have gotten TDIU but are still fighting the VA over that.

I also now feel that- since you get 40% and this does not mean you cannot apply for TDIU-but I realize your rep is trying to assess -by looking at the SSA records-if you should in fact apply for TDIU.

SSA records as NVLSP states: "are relevant to the determination of the appellant's ability to secure a substantial gainful occupation under 38 CFR 4.16."

VBM 2008 Edition page 318

My husband "should" have received 100% from VA in his lifetime.

SSA for PTSD and 30% SC VA.

There was additional other evidence as well to support his claim.

As I mentioned he did get a posthumous 100% P & T SC PTSD award.

3 1/2 years after he died-

it didnt do him any good.

The VA defies regs all the time and ignores probative evidence.What they should do in a clear cut case of a valid TDIU award, depends on what they WILL do.

[Berta]

Cowgirl posted this good info under Yoggie's post-

With this form you might be able to get exactly what you and your rep need from the SSA records.-I imagine just a call to the SSA would have them send this form to you.

"Oh here it is, the Disability Determination and Transmittal form SSA-831-C3. It specifies the Primary Diagnosis and Secondary Diagnosis, each having their own code no., when the disability began (well for ssa date different than va, more associated with work stoppage)."

[livingrock21]

Cowgirl posted this good info under Yoggie's post-

With this form you might be able to get exactly what you and your rep need from the SSA records.-I imagine just a call to the SSA would have them send this form to you.

"Oh here it is, the Disability Determination and Transmittal form SSA-831-C3. It specifies the Primary Diagnosis and Secondary Diagnosis, each having their own code no., when the disability began (well for ssa date different than va, more associated with work stoppage)."

So the form that I need from SSA is SSA-831-C3? This will spell out what conditions they awarded SSDI?

I'm still wondering what I'm going to do about my claim. I think I'm going to get this form to my VSO and then let him try to do the STAR review. I guess this is my only option. Hopefully all the conditions listed from SSA will be service connected. I'm really second guessing that now. I mean all they used was my Service MEdical Record (no examination on their part), but I'm wondering.

[rentalguy1]

The STAR review team is based at the Nashville, TN VARO, and they randomly choose which files they are going to review for quality control purposes. This VSO does not have the ability to get a claim "STAR reviewed" that I am aware of. If someone (poolguy) knows differently please let us know. I would get the SSA paperwork together ricky tick and post up what they list as your qualifying disabilities versus your sc'd disabilities. Let's make sure they match up before we send them downrange. If they do not match up, you're going to have to figure out a way to combat the differences.