I was helping my husband's friend to get TDIU. He like my husband injured his knee in the service and gets a total of 60% for this injury.
Well yesterday he came by and brought me his papers to look at. His TDIU was denied. He is very upset and rightfully so. The reason they give for denial of TDIU is: Entitlement to individual unemployability is denied because you have not been found unable to secure or follow a sugstantially gainful occupation as a result of service connected disabilities alone. While your service connected disabilities certainly impact your ability to perform certain jobs, service connected right lower extremity disability is not shown to preclude employment in any capacity, rendering you unemployeable. You are considered unemployable due to non-service connected factors. The service connected disabilities, when cvonsidered apart from the non-service connected conditions, are not the cause of unemployability. While VA examination from 2004 does suggest that service connected disabilities could impact employment capability, the evidenvce shows that you were able to successfully work from 2004 to 2008 as a courier." He worked part time as a courier (25 hrs. per week) before he fell and had his accident in July 2008.
He hasn't worked since because his primary doctor has stated in writing "After a complete review of his medical records, it is my medical optinion that Mr. XXX fell because of the pain, stiffness and instability of his right knee related to the injury suffered in the time of service in the US Army. Furthermore, it is my opinion that Mr. XXX is permanently disabled and unemployable after the cervical spinal surgery and cornorbidities.
Under Reasons For Decisions in Decision it states: "The letter submitted by Dr. X states that he had cared for you for many hears, except for a 2 year period from May 2006 to July 2008. Dr. X reports the history of your work-related injury in July 2008, opining that in his opinion, you fell because of your service connected right knee disability. These opinions, however, are purely speculative, as those providers were not present at the time of your accident, nor involved in the medical care rendered subsequent to this event. Therefore, it is assumed that these opinions were based on your subjective report, which is not supported by the evidence of record showing multiple but varying reports of the circumstances of your fall, with no indication that you reported that your fall resulted from your right lower extremity disability, until VA joints exam in November 2008." His nuerosurgeon also wrote that he was unemployable and permanently and total disabled because of a work related injury (His July 2008 injury fall was on the job.
His reason for not going to VA until Nov. 2008 which is 3 months after fall was because he was in hospital and rehab until end of Sept. 08 and then was in therapy 3 times a week. Also he has medical documents from hospital stating that he said his left knee locked on him as well as a witness who was riding with him on that day who now will do an affidavit stating about his fall. I didn't know and he didn't know that doctors have to be present at an accident to give their medical opinion, because that's what this rater is saying about his doctors.
Please let me know what you think about all of this. Naturally he wants to NOD or have them reconsider this decision. Should he ask his primary doctor to answer this decision as well. Especially since he was under his care in July of 2008 before accident.
These decisions have made a big impact on how VA disability claims are handled, giving veterans more chances to get benefits and clearing up important issues.
Service Connection
Frost v. Shulkin (2017)
This case established that for secondary service connection claims, the primary service-connected disability does not need to be service-connected or diagnosed at the time the secondary condition is incurred 1. This allows veterans to potentially receive secondary service connection for conditions that developed before their primary condition was officially service-connected.
Saunders v. Wilkie (2018)
The Federal Circuit ruled that pain alone, without an accompanying diagnosed condition, can constitute a disability for VA compensation purposes if it results in functional impairment 1. This overturned previous precedent that required an underlying pathology for pain to be considered a disability.
Effective Dates
Martinez v. McDonough (2023)
This case dealt with the denial of an earlier effective date for a total disability rating based on individual unemployability (TDIU) 2. It addressed issues around the validity of appeal withdrawals and the consideration of cognitive impairment in such decisions.
I met with a VSO today at my VA Hospital who was very knowledgeable and very helpful. We decided I should submit a few new claims which we did. He told me that he didn't need copies of my military records that showed my sick call notations related to any of the claims. He said that the VA now has entire military medical record on file and would find the record(s) in their own file. It seemed odd to me as my service dates back to 1981 and spans 34 years through my retirement in 2015. It sure seemed to make more sense for me to give him copies of my military medical record pages that document the injuries as I'd already had them with me. He didn't want my copies. Anyone have any information on this. Much thanks in advance.
Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL
This has to be MEDICALLY Documented in your records:
Current Diagnosis. (No diagnosis, no Service Connection.)
In-Service Event or Aggravation.
Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”
VA has gotten away with (mis) interpreting their ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.
They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.
This is not true,
Proof:
About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because when they cant work, they can not keep their home. I was one of those Veterans who they denied for a bogus reason: "Its been too long since military service". This is bogus because its not one of the criteria for service connection, but simply made up by VA. And, I was a homeless Vet, albeit a short time, mostly due to the kindness of strangers and friends.
Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly. The VA is broken.
A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals. I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision. All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did.
I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt". Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day? Va likes to blame the Veterans, not their system.
Question
Charleese
Hi all,
I was helping my husband's friend to get TDIU. He like my husband injured his knee in the service and gets a total of 60% for this injury.
Well yesterday he came by and brought me his papers to look at. His TDIU was denied. He is very upset and rightfully so. The reason they give for denial of TDIU is: Entitlement to individual unemployability is denied because you have not been found unable to secure or follow a sugstantially gainful occupation as a result of service connected disabilities alone. While your service connected disabilities certainly impact your ability to perform certain jobs, service connected right lower extremity disability is not shown to preclude employment in any capacity, rendering you unemployeable. You are considered unemployable due to non-service connected factors. The service connected disabilities, when cvonsidered apart from the non-service connected conditions, are not the cause of unemployability. While VA examination from 2004 does suggest that service connected disabilities could impact employment capability, the evidenvce shows that you were able to successfully work from 2004 to 2008 as a courier." He worked part time as a courier (25 hrs. per week) before he fell and had his accident in July 2008.
He hasn't worked since because his primary doctor has stated in writing "After a complete review of his medical records, it is my medical optinion that Mr. XXX fell because of the pain, stiffness and instability of his right knee related to the injury suffered in the time of service in the US Army. Furthermore, it is my opinion that Mr. XXX is permanently disabled and unemployable after the cervical spinal surgery and cornorbidities.
Under Reasons For Decisions in Decision it states: "The letter submitted by Dr. X states that he had cared for you for many hears, except for a 2 year period from May 2006 to July 2008. Dr. X reports the history of your work-related injury in July 2008, opining that in his opinion, you fell because of your service connected right knee disability. These opinions, however, are purely speculative, as those providers were not present at the time of your accident, nor involved in the medical care rendered subsequent to this event. Therefore, it is assumed that these opinions were based on your subjective report, which is not supported by the evidence of record showing multiple but varying reports of the circumstances of your fall, with no indication that you reported that your fall resulted from your right lower extremity disability, until VA joints exam in November 2008." His nuerosurgeon also wrote that he was unemployable and permanently and total disabled because of a work related injury (His July 2008 injury fall was on the job.
His reason for not going to VA until Nov. 2008 which is 3 months after fall was because he was in hospital and rehab until end of Sept. 08 and then was in therapy 3 times a week. Also he has medical documents from hospital stating that he said his left knee locked on him as well as a witness who was riding with him on that day who now will do an affidavit stating about his fall. I didn't know and he didn't know that doctors have to be present at an accident to give their medical opinion, because that's what this rater is saying about his doctors.
Please let me know what you think about all of this. Naturally he wants to NOD or have them reconsider this decision. Should he ask his primary doctor to answer this decision as well. Especially since he was under his care in July of 2008 before accident.
Thanks for your replies in advance.
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