tdiu Handling Your Own Finances

[Steppenwolf]

Yesterday when i met a new service officer and told him that i wanted to request TDIU he informed me that some mental health issues that are TDIU require someone else to manage finances.

Don't think i ever heard that before. If there are circumstances where this is true how do i find out what they are?

He also informed me that a NOD was the wrong way to ask for an increase in %.

[Berta]

"i want to know if the 120 days only applies to filing with the CAVC then why should i rush to send the BVA a letter for reconsideration "now" when my instincts and past experiences tell me that if the BVA get's the letter before my HOD hearing at VARO; VARO will more than likely send all of my records back to DC delaying my hearing. Although no one else has thought that this is a possibility i'm thinking that it might be the case. Am i right about at least this last part?"

The good part about filing a Motion for Reconsideration with the BVA is that hopefully it will get a remand and more evidence can then come into play.

A Motion for Reconsideration should also include (as support for the Motion)any other possible new evidence that has direct bearing on the claim.

Once a claim gets to the CAVC there is no means in which to provide more evidence.Unless you get an attorney who can successfully argue for a joint remand so that the claim is again opened up for more new and material evidence to come in.

Personally if I were in your position- I would do both-file the Motion for Reconsideration with some new evidence and also make sure I was within the 120 day filing period for the CAVC docket.

Once you get onto the CAVC docket then lawyers will surely contact you.

If they dont- then try to find one to represent you before the CAVC.

A good lawyer will attempt to find any justfication at all for a CAVC joint remand.Most claimants going Pro se at CAVC do not know whether the BVA decision contains legal error enough to justify a CAVC remand.

I helped a CAVC lawyer by finding 2 BVA errors and his client got the joint remand.The bad part was I pointed out to his lawyer that I foresaw no possibility at all of his succeeding on his claim.

I guess my point is this- the VCAA letter and all subsequent denials tell us exactly what evidence the VA still needs,and if the VCAA letter did not comply with that-then that can be used as point of argument for remand.

But the fact remains -

Evidence awards claims.And the more the better.

Remands-I cannot state this enough----

a BVA remand tells the RO specifically what is still needed on the ROs end.

I have no faith or trust in anything the ROs do or say they have done.

If a remand calls for something specific, a specific record, proof of incident, or exposure or some DOD findings-than I feel it is imperative for the claimant to follow the remand themselves and try to satisfy and obtain what the remand tells the VARO to do or get.

[Steppenwolf]

Berta,

i'm sorry if it seems like i keep asking the same question(s)

Aren't the details of a case to some degree determinant to what one does to best serve the specifics of their case?

i keep referring to that VA from 4597. On one hand it seems to not only list the things a veteran can do "to appeal" is what it says on the top of the form. But it also give examples of what circumstances might determine which choice the veteran makes. Also in those instructions i read that if CAVC puts it on it's docket then the BVA in essence must ask permission from CAVC to hear, consider, talk to, the veteran. Am i reading that incorrectly? And along those same lines it seems to me that all things VA related are subject to who has the records.

Now: VARO has my records. I am waiting for a NOD hearing at VARO. If I send a letter to BVA informing them that i want my decision reconsidered, or vacated, or anything BVA then BVA will request my records be sent to DC and therefore delay my hearing. Moreover if CAVC takes charge VARO would have to send my records to them and then neither BVA nore VARO will have my records.

In a very interesting letter from VARO to my senator who wrote to them on my behalf; VARO gives a very interesting explanation about "what the records are" by spending a lot of time telling the senator ( and me ) what they are not. In essence they say that my records are but one physical container. Only THAT is what counts.

i also read in the 4597 that if i ask for reconsideration that there will be another 120 days to ask for a CAVC hearing AFTER the BVA considers my request.

What it actually says could be one of those mysteries that no one know for sure.

If you know, will you take my interpretation, put it in quotes and tell me what is wrong with it.

The clock is ticking on the first 120 days. From all that i've read, heard, and think maybe it would be best to let the 120 pass.

[Berta]

"The clock is ticking on the first 120 days. From all that i've read, heard, and think maybe it would be best to let the 120 pass"

If a Motion for Reconsideration with some new evidence has been filed with the BVA that could potentially stave off the CAVC deadline.

I cannot really add to what I have already replied with.

If this is question of VA stating that your medical evidence does not warrant an increase in rating or a TDIU award= an independent medical opinion from an expert in the field of disability might well support the award.

IM0s are expensive and an IMO cannot always ethically support something that there is no medical evidence for.

However in many cases only an IMO can match any negative evidence from VA to the point of Relative Equipoise ( the Benefit of doubt) and than VA will award.

I spent 4 thousand bucks on 2 IMOs for my AO death claim.I then sent 1750 to a forensic cardiologist for another IMO. I also sent VA an email from a former treating Neuro doc who treated my husband many years ago.He remembered the patient.The email was a freeby and my IMO doctor got him to put it on his official letterhead from his Neuro practice.

The BVA suddenly awarded , using the freeby, and the 2 initial IMOs. The cardio opinion was not needed at that point.It had not even been prepared by the cardio doc yet.I was sure I had more months of VA BS to go as it had only been 7 years since filing the claim.

This IMO money was an investment into a claim that VARO could have awarded based on the clinical record.But they refused to read my evidence.

The cost of these IMOs was absorbed with the monetary awards I received on this claim and its ancillary benefits.

I think it is disgraceful that any vet should have to pay for an IMO.

And they have to be pretty sure their medical evidence would gain them a strong IMO.

Has your vet rep suggested that this is what you might need in order to succeed?

[Berta]

To add one more thing-

You said:

"Aren't the details of a case to some degree determinant to what one does to best serve the specifics of their case?"

Yes -in my opinion they sure are.

I dont know if this is a PTSD claim you have pending on appeal for higher rating-I cant recall how I got that idea-

in any event-if it is- evidence can come from places that are not related to medical records.Maybe this will help someone else too.

My husband had pending claim for higher rating than his 30% SC PTSD and he died hours after the 800# said it went into the rating board.

He had said emphatically to me when the 800# person told him that both his Section 1151 claim and his PTSD claim were in the rating board that he knew the VA would kill him and he wanted my assurance that I would continue these claims.

After the shock of his sudden death a few hours later I re-opened his claims a few months later.

The evidence for the PTSD claim I used was

1. his SSA records (the VA continually ignored them.) SSA for CVA which we filed reconsideration on and won- the SSA award was changed to PTSD with better EED.

2.EEOC case. He filed EEOC case against VA, his employer. I used direct testimony from his supervisor and other employees as support for his PTSD claim. VA didnt ignore that.

3.ADA case. He had won the first ADA case in NY as a disabled veteran. The VA seemed to consider that case.It had some testimony in it that I obtained from DOL and used as evidence to support his PTSD claim.DOL sent it to me under FOIA by mistake. Then they threatened to send a US Marshall here to get it back.and told me I could not use the info I found. I used it.The US MArshall never came. a few years later I sent the file back to them.The VA did seem to use the probative evidence I found in the file.

4.Results of 6 psychiatric tests given to him by VA psychiatrist and his hypnosis records, These records were NOT in his med rec files for some reason and I got them directly from the shrink.These significant records were not in his VA "records"- something all should keep in mind.

6Results of his Voc rehab involvement.( also not part of his clinical record or C file.(VA ignored that)

Personal statements from me as his spouse (they ignored that stuff)

He was awarded 3 years after death 100% SC P & T for PTSD. In spite of the evidence they had ignored,what they did use was enough to award and lots of it was not in hs VA records at all.

The Section 1151 claim was awarded too. He was right.

That award -after 3 long years of beating them over the head with evidence-and the FTCA award replied solely on his clinical VA medical records and his autopsy.

There was no extemporaneous evidence I needed to seek.I didnt even have an IMO. It was malpractice -hidden but still evident in the clinical record.

As you said

"Aren't the details of a case to some degree determinant to what one does to best serve the specifics of their case?"

In my case that certainly was the situation and the details of my more recent AO claim was shaped to those specifics.

I could not sue them again for the additional malpractice I had found that involved an AO disability.My daughter, a vet, insisted I re opened the death claim.

I had to best serve the specifics of my case by not raising the malpractice issue in a way they could say that matter was resolved already but by wording and shaping the claim to prove he had a disease due to AO that never once appeared as diagnosed and treated in the clinical record.

And that VA's failure to diagnose and treat this AO disabilty caused his death.A direct Service connected death.

I am so exhausted for the 7 years that took that I cant even open the award file to fight them again=they still owe me money.

I presented a bit of the evidence briefly in email to my IMO doc ad he immediately called me and said it was a winner or something like that if I did have what I emailed I had as evidence.

I had done all of the leg work myself to make sure if I spent real money on an IMO that it would get me the benefit I sought.

You made a very provocative statement there and I hope all here read it.

What does the rep suggest as to the next step you should take?

Edited June 15, 2010 by Berta

[Steppenwolf]

Berta, You asked two things:

What does the rep suggest as to the next step you should take?

and

Has your vet rep suggested that this is what you might need in order to succeed? ( referring to an IMO )

In a way both of these questions can be answered with the same answer: My VSO up until now has clearly misunderstood the state of my case; hence the letter from VARO to my senator stating that they made a mistake and at the time of the letter ( about a year ago ) 2 issues on appeal had NOT been ruled on yet and they were asking me if i had any more evidence. i did/do, but my VSO would not talk to me. They would not return calls. So the extended time that VARO gave to me was about to pass so i submitted several important pieces of evidence three days before the deadline and had it time stamped to prove that it was submitted with-in the time frame they extended to me. However, VARO didn't wait for the evidence. They sent the records back to BVA early. My hope had been that the new evidence would generate a new SSOC to give me more time to meet up with the doctor who gave me my exit exam who is now a medical doctor/teacher at a university. i wrote to him and he was willing to look at my evidence and some pictures from that duty station to refresh his memory ( it had been 40 years ) but the good news was that he was willing to consider writing the letter that would contradict the VA's main reason for denial: " The veterans exit exam does not mention prostatitis "

Although the judge ruled against me, for the first time the VA has acknowledged that i did have prostatitis as early as the month of my discharge ( pun intended ). For the doctor to now say he erred in not stating it on my exit exam would remove the one thing that has been the foundation of the VA's denial.

So back to my VSO. It is interesting that a local rep is willing to submit my reconsideration paper work. He wants every piece of new evidence that i have including the statement from the doctor. He did not mention an IMO. It should be noted that an IMO from a private urologist that the judged allowed as new and material evidence to reopen the case is, according to a private attorney that i contacted " benefit of the doubt " but the judge stated that the letter was not "probative". The attorney said benefit of the doubt in essence is one expert saying yes he does and another saying no you don't. The letter was accurate however, had the doctor reworded the last sentence or two to address the nature of this disorder and the subjectiveness of a prostate exam the IMO may have held up better. But i think with the right doctor the IMO can be rehabilitated if one can say that about an "opinion". Once again, the attorney said that the existence of that letter constitutes benefit of the doubt.

An interestingly timed side note to this who thing is my visit yesterday with a VA PA-urologist who says " I've felt a lot of prostates but never one like yours. But I don't think you have prostatitis" "I think that you may have something else that is urological" HUH??? If this guy writes that down on my records that is not going to help. Plus he never offered to find out what it might be he just wants me to take three new drugs and come back in 6 months. Is it any wonder why I don't like going to VA doctors. My records are loaded with prostatitis DX; the judge even agreed that I have/had it.

Bottom line: my VSO is willing to submit my evidence but i'm not sure that i should count on what he plans on saying as being what needs to be said. He never asked about the IMO letter and wasn't interested in hearing about it either.

[Steppenwolf]

Berta,

PS Notice the heading here is about managing my own finances if i get TDIU.

i have three more doctors letters; tow are IMO's for TDIU or at least an increase to 70%. i also have a therapist who is willing to come to the hearing with me for direct cross examination. Of course if the hearing falls on her birthday or her sons wedding day i have a feeling which event she will chose.