tdiu Playing P&t Games Again

[dav_marine72]

Well just when you think you can stop stressing the VA makes you stress again. I'm not sure how many of you so my posts within the last month but here is the deal.

My American legion rep goes up to the VARO and signs off on a September 16, 2009 decision granting a few things including TDIU and dependents educational assistance (DEA). Under the grant of DEA it states a Veteran is eligible for DEA when he or she is discharged under other than dishonorable conditions and has a permanent and total service connected disability.

I receive a grant letter dated September 18, 2009 with all the above minus the DEA award.

I call my SO and he says no your P&T.

I go to the VARO in the next couple of days and ask for a copy of my latest rating decision. I get a copy of the September 16, 2009 decision showing the grant of DEA. However, the rep won't tell me if I am P&T. He says I can tell you is that you are TDIU and have DEA benefits and he underlined them. I go down to my American Legion rep and he says by establishing DEA they have rated you P&T and you are eligible for champva. The only way you can get DEA is though P&T. I said why doesn't it say P&T directly on the letter. He says this is how they have been awarded P&T now. They used to actually spell out P&T.

Then since I filled out a release that day a few days later I get the September 18, 2009 rating decision again without the DEA.

So I'm cool and happy and file my CHAMPVA application. Then I call this morning and find out its denied because they say I'm not P&T.

I called my AL rep and leave a message. He tells me he went up to the RO and saw the September 18th decision without the DEA grant. However the code that was on the sheet he signed off on was P&T. He pleaded my case and we are waiting to hear back. WTF!!!!!!!!!!!!!!!!!!

[dav_marine72]

Hey Larryj,

No I have a real American Legion SO. He is actually a pretty dedicated one and has never done me wrong. This is the Hartford VARO in Newington, CT. There was no statements in the award letters stating "no future exams" The letter that my SO signed off on and that I received a copy from the RO just had entitlement to dependents educational benefits. According to the SO and another poster on here that is the standard way the RO's initiate P&T. If they have any standards that is.

Interesting note is in both of the letters under my award for convalescent leave they bumped my back rating from 20% to 40% which all along they said they would not due because my back was at the USCAVC and they didn't have jurisdiction. This was because my ROM had fallen into the 40% versus 20% criteria. They also stated since there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future examination review.

The evaluation they are talking about is my back and they are nuts because I just got a joint remand from the USCAVC for my back to go back to the BVA because they ignored critical evidence.

Now under the entitlement to individual unemployability it says 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. Evidence from your last two employers shows you were unable to make work commitments due to your service connected medical conditions. You had to leave or were fired because of time taken off due to your back condition and required treatment. You experience episodes of your back "locking up" which requires your wife to stay home from work in order to care for you. VA examination dated month/day/2009 stated it is at least as likely as not that your mental condition alone keeps you from working, but when combined with your anxiety/depressive symptoms and viewed in whole you suffer major impairment. Therefore, individual unemployability is granted effective / / / the date we received your claim.

I am thinking someone screwed up and gave me entitlement to DEA and they should not have. Then when it was reviewed they yanked it. My SO did go straight to the VARO Monday morning once he got my message that I was denied entitlement to CHAMPVA. He told me he was going to try to push it through no matter what happened. He was telling them I have a wife and four kids and my wife can't work because she needs to be home to take care of me and the kids. Which the VA did admit in my TDIU reasons. I went out and filed for civilan insurance for my wife and kids last week. It will be $600 dollars a month but what are you gonna to do. I have the BVA appeal coming, SS grant, etc.

[sixthscents]

I have also noticed tghat the VA lately is playing fast and loose with permanent and total. They have gotten a bit slick with some of their schemes, but it appears here they are trying a stupid approach.

I would certainly NOD the back and legs... adressing in particular loss of lower use of limbs due to atrophy. muscle loss, weakening and nerve damage/neuropathy which all seem to be present. I will say that normally to get a stupid loss of use determination you have to have AFO's, which you dont, but based on the info given for your condition I bet you need them. They simply keep you from falling due to foot drop, and I bet you have that bi-laterally and it's probably already diagnosed. Along with loss of deep tendon ankle reflex... tell me if I am right here huh?

[john999]

Do the NOD on denial of Chapter 35. If you win the appeal your eligibility will go back to the date you got TDIU. You need a letter from your doctor saying you are permanently and totally disabled. This would be new evidence. That is how I did it. I was just like you. I got TDIU but denied Chapter 35. I appealed the denial. First I got 70% but denied TDIU. Then I got TDIU but denied Chapter 35. I just kept getting more evidence from doctors, and sending it in to rebutt the VA. Just swamp them with evidence. It speaks louder than arguments.

[LarryJ]

Do the NOD on denial of Chapter 35. If you win the appeal your eligibility will go back to the date you got TDIU. You need a letter from your doctor saying you are permanently and totally disabled. This would be new evidence. That is how I did it. I was just like you. I got TDIU but denied Chapter 35. I appealed the denial. First I got 70% but denied TDIU. Then I got TDIU but denied Chapter 35. I just kept getting more evidence from doctors, and sending it in to rebutt the VA. Just swamp them with evidence. It speaks louder than arguments.

John, before he sends in an NOD, I think (personal opinion) that he should give the American Legion VSO a couple weeks, just to see what he comes up with. That way you're not "officially" filing anything, 'cause when you "officially" file something like an NOD, then it gets swept up in the big pile of paper that sits over in the corner, waiting on someone to actually read it, etc. Then, if he doesn't get satisfaction from the American Legion VSO's efforts, then file the NOD......a couple weeks could save months of aggravation and waiting.

[john999]

Larry

Sure that is a good idea. If the AL guy does not help then he can file the NOD. I am just so used to having to fight for every last thing that I am ready to whip out a NOD and hire an IMO right away. What is really awful is that sometimes even clerical errors require a NOD to make them right. You just can't always communicate with the decision makers except with a formal request.

[dav_marine72]

Okay this sounds like a good plan. Give it a few weeks and see it American Legion SO can work out.

Sixthcents:

wrote “I would certainly NOD the back and legs... adressing in particular loss of lower use of limbs due to atrophy. muscle loss, weakening and nerve damage/neuropathy which all seem to be present. I will say that normally to get a stupid loss of use determination you have to have AFO's, which you dont, but based on the info given for your condition I bet you need them. They simply keep you from falling due to foot drop, and I bet you have that bi-laterally and it's probably already diagnosed. Along with loss of deep tendon ankle reflex... tell me if I am right here huh?”

My response:

My back and legs are a part of a joint remand, which brings my back, chronic right testicle pain, and residuals of a right and left 3rd metatarsal fracture. When these items first went to BVA the BVA gave me 10% for lower extremity weakness, which obviously was a joke, and the USCAVA thought so too.

What's an AFO? You mean an IMO?

As far as my back you have seen mostly what have been diagnosed. The feet are a whole different monster. Going into boot camp I had no problems with either of my feet. Broke my right in boot camp and my left in Marine Combat Training. After that I just sucked it up and got out. It was three years later that I had an MRI of my lower back and it was desiccated and degenerated at L3-S1. I was basically told I looked like a 70-year-old man during hard labor his whole life at age 25. Now I had gotten out of the CORPS in November 95.

In 96 and 97 I saw the VA podiatrists a few times and a civilian podiatrist. They diagnosed high arch feet (Pes Cavus) bilateral and overall inflexible feet. The VA gave me special shoes and three different sets of inserts. All of these made my feet worse. The civilian doctor said none of these inserts or shoes would help me at all. From 97 to 2000 I focused on fixing my back with everything. Finally had an L3-4 and an L4-5 discectomy and laminectomy done. After that failed I went back on looking at my feet. The same civilian podiatrist I saw years earlier had now diagnosed me with tarsal tunnel syndrome bilateral. He also that it was likely my feet caused my back problems by the way. I ended up during steroid shots in both feet but I refused surgery. After having failed back surgery I couldn't deal with another failed one.

So while going after service connection for my back based on direct service (even though I had been out five years) or 2^nd to my feet I had my surgeon write a letter stating he looked at all my military and civilian records and thought it was possible my back was injured during service. I had a civilian podiatrist Dr. X write a letter stating with my pes cavus aka high arched feet it was possible my feet did not take the shock as they were supposed to and sent it up to my lower back causing my L3-S1 injuries.

The VA examiner came back and said direct service connection. He also stated if there was not enough evidence to connect directly he would have connected me secondary because of the way that I transfer my weight as I walk trying not to bare any weight on the residuals of my 3^rd metatarsal fractures. I know this is getting long but it’s key because my right foot is 10% and my left is 0%. They are now coming back to the VA on appeal since 2000. In 2004 I had a hearing and the VA DRO told me if I was to be rated for any with pes cavus or rigid feet I would need secondary connections. My problem with that was that I didn’t have any problems with my feet prior to service. You let me into the service because my feet were fine. First I fracture these metatarsals and then I know I was killing my feet and the pack on doing 25 miles humps or running 10 miles up the mountains of Camp Pendleton. You suck it. You a Marine you don’t say anything. I also have a VA examiner stating my gait changed because of the fracture and had the VA podiatrist in 96 state I had pes cavus and rigid feet. Well that was in the year and a half presumption period.

So now that I have a 2^nd failed back surgery I decide I better make sure my feet are not going to cause my back to further degenerate and or if the instability in my feet and ankles can get any better. So I go see Dr. X who I saw in 2000 and wrote me the letter stating my feet were possibly the cause of my back injuries.

Here is what Dr. X diagnosed:

Chief complaint = bilateral foot pain

History of present illness = 18 years (this puts me back to my first fracture in service)

Summary:

I will brief this. He writes patient comes back to the office after large gap in not being seen (2000). He presents with to discuss his pedal abnormalities and to discuss whether these could be contributory to some of the ever effects of his back condition he is experiencing. He had two back surgeries, which were of questionable success. He is here today not because of back involvement but because his ankle joints bilaterally are causing him significant discomforts. He has a Pes Cavus deformity. He has difficulty ambulating without irritation. He is a 37-year-old terminally disabled Veteran. Current medications noted. Of significant interest are his pain medications and as well as psychiatric issues that have developed because of the pain.

VASCULAR – normal

ORTHOPEDICALLY – Significant tight Achilles tendon is present. Dorfsiflexion to 90 degrees is barely possible and beyond 90 degrees there is discomfort in the lower extremities. Severe Pes Cavus deformity is noted. Range of motion of the subtalar joint bilaterally is normal. Range of motion of the ankle joint is without crepitus but significantly restricted.

IMPRESSIONS:

1. Severe equinus

2. Pes Cavus

3. Compensatory changes in the lower extremity due to the severe equinus

Treatment plan recommended:

Aggressive stretching plan to be done at home and at physical therapy. Strongly recommend Dyna Splits bilaterally, this device because of the dynamic nature of the splinting which will help increase dorsiflexion and help the ankle joint function more smoothly. Without proper dorsiflexion of the ankle the joint continued discomforts in the foot and subsequent arthritic sequelae of the subtalar and joint may development.