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.

[Pete53]

My primary doc ordered a nurse and aide 2 times a week for me

[dav_marine72]

Thanks sixth and Pete,

I didn't even know those programs existed. I guess I'm a little freaked with this decision not because I was denied but because I don't have any significant non-service connected conditions. Hell I got TDIU and they didn't even try to play this BS that I have non-service connections contributing to my disability. I guess I have a little taste of what the people go through that do have some serious non-service connections. Seems like a very easy way to shoot down benefits.

[JamesBreckenridge]

To get Special Monthly Compensation due to either being Housebound or in need of Aid and Attendance...

First, you have to be either 100%, or be in receipt of Individual Unemployabilty, both of those due to service connected conditions.

"Housebound" has two flavors. What we call "statutory housebound" in which you have one S/C condition at 100 percent (or IU) plus other completely unrelated condition(s) which combine to 60 percent that wasn't calculated in the 100 percent/IU. AN example would be 100 percent for some flavor of cancer, and then 60 percent made up of other conditions. So, you can be still able to work and get out and about, but we still pay for the housebound rate; hence we call it "statutory housebound."

The other flavor is "housebound in fact." In that case, you just have to be 100 percent or IU, but a doctor has to opine that your service connected conditions keep you housebound. This is much more rare, because people are generally either statutory housebound, or A&A.

A&A is not a big leap from housebound in fact. You have to be 100 percent, and you have to be in need of the daily aid and assistance of another to protect you from the hazards of daily life and perform your Activities of Daily Living (cooking, eating, bathing, toileting, etc) due to service connected conditions.

NOTE THAT THESE CAN BE TEMPORARY! All the time we have to consider Housebound/A&A when we do a temp 100 percent hospitalization rating (a vet goes in for knee replacement, has 60 percent in other stuff besides his knee. Boom, statutory housebound benefits attach during that temp 100 percent period). THere is no need for you to be PERMANENTLY 100 percent to receive the benefits. And just to repeat, yes, IU "counts" as 100 percent for housbound/A&A purposes.

There is an analogue to Housebound/A&A if you're not service connected. It's called Special Monthly Pension. NSC-Pension is to COmp as SMP is to SMC. You have to have wartime service and not be over the income limit, and it doesn't pay a lot (although more than regular NSC-Pension), but it's better than nothing.

Edited May 29, 2010 by JamesBreckenridge

[Pete53]

I am Housebound due to part B of the regulation which is Housebound as in agoraphobia. I believe I was cheated out of my real entitlement date even with a DRO Hearing when low and behold the deciding DRO was the same guy who made the original award and the award of 100% and yes the same one who had the DRO Hearing. He was actually quite amused as he pulls the trigger quick as I got 100% 5 days after first hearing, SMC S within 90 days of asking and denied the day I had my appeal.

I guess I should be happy I got anything.

[dav_marine72]

Hey James,

Thanks for your post. I am TDIU based only on service connections. I did recieve SMS (s) when I was temp 100% for my back. I appealed them taking it away and they stated my TDIU was for multiple service connections and not just my back. I am 50% back, 50% mental, 10% right foot, bunch of 0's. So they said I did not quailify for the +60. The rating I posted does not have the housebound decision. So the VA examiner says I am in need of 24/7 supervision because of possible injury to myself due to the harzards of my environment. She also stated I was housebound based on my conditions. So they blew off housebound saying I didn't have one 100% rating and they blew off A&A actually saying I'm not 100% service connected when I am TDIU LOL. They also brought up these fictious non-service connected aliments which there is no medical evidence for because I've never been seen for any of them except the leg condition. The leg condition however is already service connected under my back as lower extremity weakness. I had a low level exam done about a year ago tying all my lower extremity muscle groups back to my 3 removed discs stating they were all unsymentrical and had atropy and muscle wasting. Now the VA is stating I have another condition in my legs. Both my feet are service connected also. They have reaked some havoc on my lower extremities also so maybe that is where they are pulling this crap from.

Either way I'm writing the appeal as we speak. I think I'll actually have a hearing with a DRO so I can lay my evidence on the table and ask them on the record where the hell these non-service connections are coming from. Funny when I went after TDIU they didn't bring these up. Now I want an extra $600 a month that I rate and they screw with me.

[deltaj]

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.

I may be digressing here but years ago when I was a casualty claims representative, one of my bosses told me that many times people who have fractures develop arthritis years later. I'm not sure if you were service connected for the fracture but if you were, then you consider filing a claim to service connect arthritis as secondary to your service connected fracture. As far as I know, arthritis is ratable separately from other service connected conditions. On the subject of your arthritis, did you suffer any other traumatic injuries in service that could have contributed to your arthritis.