tdiu Tdiu Denied

[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.

[cowgirl]

I am sorry for your freind and at the same time happy you are able to be there for him. I am curious about his SC conditions that render him 'unemployable' and what NSC conditions the VA referred to.

Is this vet on SSDI? Is the back surgery SC? Did this vet request an Increase for his knee condition? How does this vets C&P report read for this main SC condition?the other conditions? Has the vet requested any care for this or any other associated condition at the VAMC? If so, was the care extensive and what do the clinical records show for diagnosis and treatment?

Please understand, unemployability is difficult to get and even if the vet worked partime at a low paying job, it does reflect 'some ability' to bring income home. The VA used the last day of my low paying job as a 'start' date for IU. They recognized it as a non-gainful work, but they say the date represents work anyway.

If the vet is eligible to file for IU by percentage, then other SC health conditions were probably considered as well. The c&p examiners report should be read soonest for validation.

Hoping the best for the vet,

Cg

[pacmanx1]

I agree with cowgirl, what are his other service connected and non service connected conditions?

Did the veteran ever file a claim for left leg condition secondary to his service connected right leg?

What did his doctors report say was the cause of his fall?

Edited March 12, 2010 by pacmanx1

[Charleese]

The vet is sc 60% for his right leg and yes he put in a claim for his left leg which was denied and he NODed that decision which has yet to be resolved. He has no other sc injuries. After fall he put in for neck and back as secondary to his sc right knee and leg injury. That was denied in this latest decision.

As far as nsc conditions they say VA examination dated November 2009, shows examiner opinion that you would have difficulty in any job requiring walking or climbing due to your service connected right knee and non-service connected left knee problems. She also stated that you would not be able to perform any job requiring prolonged standing or sitting due to your non-service connected cervical and lumbar spine condition (meaning neck and lower back which they denied as secondary). Decision further states that: "Entitlement to individual unemployability is denied because you have not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities alone. While your service connected disabilities certinly impact your ability to perform certain jobs, service connected right lower extremity disability is not shown to precvlude employment in any capacity, rendering you unemployable. You are considered unemployable due to non-service-connected factors. The service connected disabilities, when considered apart from the non-service-connected conditions,k are not the cause of unemployability. While VA examination from 2004 does suggest that servive connected disabilities could impact employment capability, the evidence shows that you were able to successfully work from 2004 to 208 as a courier." His 2008 C&P Doctor states in part that ".......HE HAS HAD A RECENT FALL THAT IS AT LEAST AS LIKELY AS NOT THE RESULT OF THE WEAKNESS AND LOCKING OF THE RIGHT KNEE (which is sc). It goes on to state: "This fall was significant as it resulted in a herriated cervical disc requiring fushion and discectomy as stated above."

Because they refused to grant his claim for neck and lower back injuries as secondary to his right knee and leg injury, as well as refusing to accept his primary doctors written medical opinion statement stating that it is secondary he was denied iu.

My question again is: should he get his primary care doctor to write another medical opinion answering VA concerning them saying that his opinion is speculative? Also where does it state in VA regulations that a doctor has to be at the scene of an accident to give their medical opinion?

Thanks!

[jbasser]

Get a Lawyer. A Good one. Nod this crap.

He also needs an occupatiuonal specialist to Opine about his conditions VS working.

J

[john999]

I was rated 70% and denied IU. I went back to my doctor and got her to write another IMO disputing the VA's lame brain decision. It took a few extra months, but I got TDIU. You take the decision to the doctor and get him to rebutt the VA's denial word for word. Getting a good lawyer is not a bad idea especially if the lawyer has contacts in the medical profession he can refer you to to get a good IMO. The VA always goes for the alternative NSC explanation of why a vet can't work. You can't rely on VA doctor's for this. There are no slam/dunks in the VBA.