ptsd Tdiu Application - Need Assistance, Please

[vaf]

You guys are much smarter than I am about this, please help me get this right (sorry for the length). We may need to file for unemployability for my husband. He's been struggling to put it off, but I think the time has come...

Brief Background

The VA rated my husband 90% schedular. He's got a documented learning disability (from two psychiatrists at Wilford Hall Medical Center in San Antonio in 1992) that resulted from a service connected pituitary surgery. 60% on that, 40% on a lumbar back condition, plus other items, equalling 90% (I think with a recent BVA decision, he's at 100%, but he's still being paid at 90% at the moment - another issue). He is a 'Nam vet, with two breaks in service. He was an air traffic controller, he went out on a medical retirement over 20, and his air traffic controller license was pulled because he had a seizure prior to surgery (hasn't had one since, and that was in 1992). He is not taking seizure medication, as the seizure was due to a pituitary tumor, which was removed, along with the pituitary gland. He is on hormone replacement therapy, as well as HBP medication, made necessary as an outcome of the need to take testosterone injections.

From 1993 through 2000, he went through approximately 15 jobs. He'd either be unable to learn information regarding procedures and products (sales), or he would leave due to having the terms of his employment, usually having to do with salary, changed after he started, mostly having to do with sales commissions. Despite this, he applied for and was denied increased compensation due to unemployability after losing another job, sometime around 1996, I think. He more than likely had mild PTSD early on, but does not currently exhibit any of the classic symptoms.

Current Situation

For the last five years, he's been dealing cards full-time at a local casino and is currently employed. It was something he understood, with a lot of rote memory items involved. Since we have a kid in college, he's been trying to hang on to a job at least until she graduates next year. He's on FMLA for his back, but has had increasingly significant concentration problems, due to either his short-term attention span being compromised (along with normal aging) and/or his back hurting him (dealers stand during the game). He's just received a second write-up for a minor error he made (thinking a player had 16 instead of 18 during a blackjack game, as he described it), the second since October. One more and he's fired.

I've got the form to file. We have his SMR's and his VA medical records, plus his in-service X-rays, which are at his chiropractor's office, as well as more recent ones the doctor took; we're awaiting his writeup regarding my husband's back conditions, which he already told me reflects a much more serious picture than the VA described and rated.

I don't know if it's better for my husband to exhaust his FMLA and then file for TDIU, stick it out when/if he gets a third writeup and is fired and then file, or if he should leave before being fired, citing his service-connected medical conditions as the reason behind the resignation, along with some kind of medical documentation from a psychiatrist and/or back doctor. We would also file for Social Security disability.

Please let me know what your opinions are as to the course of action that might be the best to take. Thanks!

[pearl]

Vicki, do you have any idea when you will get the results from that BVA action? Why do you feel that he is already rated at 100%? The reason I ask this is because other than going for a permanent and total rating or trying to receive extra benefits for having a rating that exceeds 160% there is no need to apply for IU. With a schedular 100% rating your husband can still work and receive his VA benefits. Except for adding dependents the monetary pay is the same for 100% IU or schedular. If he does not get the schedular 100% the difference between 90% and a 100% rating is sigificant and IU may be a feasable alternative. If you have medical documentation that your husband's back is worse than the VA claims ask for an increase of benefits and request an MRI if the evidence is not enough to award you the increase. I am not sure if quitting his job would be beneficial in getting his claim awarded. That might infer that he only quit to get the IU awarded. You said if he makes another mistake that they would probably fire him. This might possibly add credence to the idea that he is unable to work because of his physical and mental disabilities. I am sure others will have more advice that may help in your decision.

Pearl

Edited February 15, 2006 by pearl

[vaf]

His Board hearing was last October, and he was awarded an additional 10% for sinusitis. His ratings previous to that amounted to 94%= 90%. With the added 10%, he would be at 95% = 100%, but since his file is now at the Court of Veterans Appeals, appealing all the items the Board denied, the local VARO will not discuss anything regarding his ratings, including verifying the items he was rated for and at what amount previous to October 2005, with us. His pay has not changed.

Everything I have in our files regarding his claim tells me he should be 100% right now. It's very frustrating. It appears that until the Court is done with his case and the file is returned to the local VARO, the VARO will not talk to us or give us the information we've asked for. So, I guess our only recourse is to treat the situation as though he is still at 90% and go for TDIU due to the circumstances I described.

Did I see somewhere posted here the VA's internal examination criteria for TDIU?

Thanks again...