tdiu From Bizarre Denial To Downout False Data

[dav_marine72]

At first when I found out I was denied A&A my service officer told me that it was based on not meeting the criteria. Considering that the VA examiner concluded I needed 24/7 supervision from my wife based on the dangers of my environment I thought this reason a little odd. Today I recieved the decision letter and all I can say is I am in shock. I have recieved some pretty crazy denials before but this takes the cake. I'll highlight the insanity:

It's being concluded that I have active service connected and non-service connected aliments I am being treated for. Now other than GERD this is a little confusing to me. The only possiblity they can be using is my feet problems. The last page attached in this scan has a diagnosis from a civilan podiatrist I saw last year. Just some qucik background on the feet. I broke my right foot in boot camp and my left foot in Marine Combat Training. I had no idea why this happens because I never had any issues with my feet prior to service. My meps physical also did not include any feet disorders. So when I get discharged in 95 I filed for service connections for my feet. I get connected at 10% for my right and 0% for my left. Less than a year after I was out I was diagnosed by VA podiatry with Pes Cavus (high arch feet) and ankle equinus. Over the years these diagnoses would go from mild to severe. I was also diagnosed with nerve entrapment on the tops of my feet based on the in service injuries. I guess since my feet were fine prior to going to the USMC I just assumed all these aliments would be a part of my service connections stated residuals of right and left foot injuries. Anyway in 1997 I started to get leg and back pains. By 2000 they were severe and I had my first back surgery. I asked for service connection at that time for my back. I had a podiatrist write a letter saying it was possible that my pes cavus rigid feet caused my back problems from all the humping and running in the Corps. My surgeon also wrote a letter saying it was possible the training in the Marines caused my back to go out. Since I had no history of back issues prior to service and then within 1 1/2 after getting discharged my L3-S1 were rotted and I was told my back looked like a man who had worked hard labor his whole life and was 65 yr old. SO the VA examiner reports that he believes my back was injured directly and seocndary from my feet based on the way I walk. He stated my gait included me shifting my weight off of the third metatarsals which were the ones I fractured. They ended up giving me direct service connection.

Last but not least in 2009 I had a low level back exam done that the VA had never done even though it's in their training manual on IVDS. The civilan dr who examined me measured my muscle groups in my lower extremities and found they were unsymmetrical. He opted I had muscle wasting and atrophy and tied each muscle group back to one of 3 discs taken out of my back. He stated this exam was concurrent with a similar exam he gave me in 2006. Now out of somewhere and I think it's the equinus the VA is stating I have a neurological condition in my legs that is not service connected. I was service connected in 2008 back to 2002 for lower extremity weakness based on straight leg raises. Now to combat this so called non-service connected injures which they don't really tell me about other than the legs I am going to go back to the podiatrist with all my records and ask for a nexus letter to connect Pes Cavus and ankle equinus to my feet or service. FYI Pes Cavus causes pressure on the metatarsal heads hence why I fractures 1 in each foot. Ankle equinus is directly connected to Pes Cavus as well. I probably had Pes Cavus prior to service but I had no issues and even if I did there is no doubt service aggravated it. I also had xrays at the VA in 2009 and they found arthitis in each foot in the 3rd metatarsal area.

Next wacked statement. They state I am not service connected for a right knee, left ankle sprain, fracture left foot, and the neurological legs. I already addressed the legs. As far as right knee, I have no problems with my right knee. As far as left ankle sprain goes the VA podiatrist asked me if I had ankle sprains during service and over the years based on my feet. I said yes but they have no functional impairment soooooooo what the hell? Then there is the fracture left foot. LOL this one kills me. I am service connected for a fracture of the left foot.

They also state that I do not meet the schedular requirment for consideration of this benefit, as you are not rated service connected disabled at 100%. I know these pain killers sometimes put me in lala land but as I recall as of March 2009 I am 80% schedular and TDIU 100%. Are they on crack? Then to make it even worse you don't even need to be 100% to be considered for A&A. Under the Manual M21-1MR, Part IV, subpart ii, 2.H.44© 8.13b, if a disability is rated less than 100% but a recent examination shows that the disability is so severe as to demonstrate a need for regular A&A, the claim should be submitted to the VA central office for an advisory opinion on whether to grant A&A. Lets not forgot Bradley vs Peake and or VA Gen. Coun. Prec. 66-91 (Aug. 15, 1991) and Manual M21-1MR part IV, subpart ii.2.H(a) which allows 38 CFR 4.16 (TDIU) to be used as a basis for entitlement to SMC.

Once again they finally deny me based on having non-service connections.

So glad I need to do their jobs for them. Hopefully I won't die from the stress so when I win these claims my family will be able to enjoy some of the extra money.

[windy city]

IF YOU READ MY POST I STATED THAT YOU MAY NOT BE WRONG AND IN NO WAY SAID THE OPPOSITE. EVERY REGIONAL OFFICE DOES NOT SOMETIMES GO BY THE REGULATIONS AND THEY ALL HAVE THERE WAYS ON WHAT THEY APPROVED OR DENY. IF YOU FEEL THAT YOU BEEN DONE WRONG THAN APPEAL IT THAT IS YOUR RIGHT AND I WISH AND HOPE YOU GET IT. FOR WHAT I BEEN TOLD A&A IS ONE OF THE HARDEST THING TO GET APPROVE. GOOD LUCK.

Windy city you are wrong. See bradley vs peake 2008 cavc decision. That allows TDIU recieptents to recieve housebound (s) etc. Look at the regs I quoted. A&A actually does not even need one 100%. SMC (s) says it does but the bradley vs peake overturned it.

[dav_marine72]

Windy,

Fully understand how the VARO's work. I have 10 SCs and I've been working my own case for 14 years. Know need to get mad and write in all caps. In Internet talk that is yelling. I did a full post which included the regs hence why I posted back because I had the references to backup what I was talking about. Thanks for chimming in and I did not mean any dispect. I posted because it shows how insane a VARO is. Not to mention in my TDIU award back in 2009 they didn't quote any non-service connected aliments (pulling it out of their butt). I always appeal and appeal if I know I'm right. Take a while but that's how you get the money you deserve.

[windy city]

I now how you feel it took me almost 4 years to get my sleep apnea sc. I hope you get it and never quit thats what I did not do besides the DAV telling me to let it go. just get your stuff ready for a battle with the VA because when it comes to money the va will fight till the end. good luck my brother.

Windy,

Fully understand how the VARO's work. I have 10 SCs and I've been working my own case for 14 years. Know need to get mad and write in all caps. In Internet talk that is yelling. I did a full post which included the regs hence why I posted back because I had the references to backup what I was talking about. Thanks for chimming in and I did not mean any dispect. I posted because it shows how insane a VARO is. Not to mention in my TDIU award back in 2009 they didn't quote any non-service connected aliments (pulling it out of their butt). I always appeal and appeal if I know I'm right. Take a while but that's how you get the money you deserve.

[dav_marine72]

Windy,

I hear you man. Lets fight the man not each other. I used to have DAV too. All SOs are different but I feel for them because they don't have enough time for everyone. I use American Legion just really to pass my paperwork and bounce things off of. No one will work on your claim like you.

[windy city]

i know what you mean i did all the work for the dav on my time but at the end it paid off. I normally write my own claims and turn them in my self making sure i get that stamp and then i call the dav and fax them the same copy with the stamp. if you know you have a case that go ahead and fight because nobody will do it for you. i will be rooting for you on this one and i wasn't trying to start a fight i just feel that sometimes you give your opinion and some people get mad and i can relate to that. good luck brother

Windy,

I hear you man. Lets fight the man not each other. I used to have DAV too. All SOs are different but I feel for them because they don't have enough time for everyone. I use American Legion just really to pass my paperwork and bounce things off of. No one will work on your claim like you.

[sixthscents]

OK I can state that all along as my condition has worsened and I fell under the qualifing requirements for A&A, I filed and sometimes got it right away, and sometimes had to NOD but did in the end get it. I went from K to L1/2 to R-1 eventually.. so it does work you just have to show how you fix into the different catagories.

Also... A&A can be really significant - I think I get something like $3700 in A&A now, along with my 100% comp. Also, the VA will and does provide in home assistance, I have a CNA that comes for 5 hours a day, and they pay for it. You can contact a social worker with that and get some help if you need it. They also pay my caregiver (can be spouse or family or anyone qualified)... uh 2 hours a day I think, she gets around $900 a month. So the programs are out there, someone justs needs to get you into contact with them... I would guess a VA social worker - they have them (I actually have 2 assigned I think). Mine were assigned through the spinal cord injury clinic, but I owuld guess that ortho, and others could also assign one to your case.