Denied

[RSG]

Ok,

for the second time I was denied IU again and told to take my claim to the BVA...Why does the VA keep doing this. I haven't been able to work since 2001 and was retired for the same medical issues by SSD..

I can't understand this.......Tnx

RSG

[carlie]

In order to qualify for TDIU consideration, the veteran must meet two threshold

requirements. These are:

1. Is the veteran unable to secure, or follow substantially gainful occupation

as a result of a service connected disability or disabilities?

Non-Factors

Although the focus is on the unique characteristics of veteran's situation,

things which would seem reasonable to be considered are expressly not

considered. These include the veteran's age, whether elderly or youthful, as

well as the veteran's non-service connected disabilities.

Obviously a veteran's age and his non-service connected disabilities impact his

ability to have "substantial gainful occupation". However, the VA will not

consider such in its determination and the veteran's advocate must be able to

compartmentalize veteran's medical conditions in order to persuade the VA of

veteran's entitlement to TDIU. The VA, in fact, will have expressly to explain

in its decision a differentiation between the service-connected and non-service

connected disabilities.

****** "compartmentalize veteran's medical conditions"

this is exactly what I've posted to you in saying,

"MH specialist would need to state that in their medical opinion,regardless of your non service connected disabilities,

it is their medical opinion that you are more likely than not,completely unemployable for any type of employment due solely to your service connected mental health disability."

They must fully support this opinion by listing and stating medical evidence from below, in their written opinion.

In regards to:

"As in every case, the "benefit of the doubt" always leans in favor of the veteran's claim.

This is equally applicable to distinguishing between the effects of service-connected and non-service connected disabilities".

***** In order for VBA to even consider the application of the BOD, first of all the medical evidence

must be in relative equipoise.

Here is an example:

Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley, supra; see also Massey, supra.The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. As a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and service connection for ......"

**** It is my guess that most of the medical evidence that has been submittedin your claim for IU - to include the IMO's - have not "compartmentalized" your service connected mental health disability as the sole or MAIN reason you areunemployable.

[RSG]

Well I guess I don't understand why there is a difference between suffering major depression/****, and being treated for it in the service for 5 month's,being fired/discharged because of itin "69" filing claims for depression for from "69" till 2004 and being denied, again, again, again ,being treated again in 1995. being retired for major depression bt SSA, in 01, being treated for the same by the VA starting again in 2001, until the present and being described by the VA Shrinks with a 40 or below gaf score, can not tell that this is not service connected.... But the BVA already said It was and it is SC"d in 09.retro to 02.But, it's still not a valid claim. I don't know what else I can do.... I guess that's how are friendly VA see's the whole deal.....

by the way I was a design eng....for 35 years, and my ability to remember how to do that is entirely gone along with my comprehension electronic mechanical design

systems,, my abilty to do simple/advanced math, my abilty to spatially build a device and then build it is gone......Not to mention the PHYsical issues..

I guess I am just so frustrated I am having a hard time....... I am sorry for bothering you guy's.

Edited July 29, 2010 by RSG

[carlie]

RSG,

I do not see where you have bothered anyone.

I looked thru (again) the decision you posted and from what I understand you have already

taken your claim issue of IU to the BVA and it was denied at that level.

Is this correct ?

[Hoppy]

Berta, carlie and RSG

Carlie, Berta please read this section . Ron my response to you is below

The VA, in fact, will have expressly to explain

in its decision a differentiation between the service-connected and non-service

connected disabilities

Is this from a decision, the M-21 or where. The reason I ask is because it may be an issue in a current claim. The veteran was previously awarded a NSC pension for the same exact condition he was awarded 50% service connected. The is no explanation of how they reduced the rating. It appears they are just saying that they gave him the NSC without reviewing the records and now that they reviewed them he is only 50%. However they continued the NSC pension because it is a higher rating.

There was a diagnosis “invented” by the C&P examiner of personality disorder that the C&P examiner said was causing the unemployability. I can’t figure out why they reduced him to 50 yet continued the NSC pension without giving weight to the PD diagnosis. There is absolutely no identification of a non service connected disability that was used to obtain the higher rating that would allow the continuation of the NSC pension. I figured that this might be something that comes out in the SOC rather than the decision.

.Berta

If a veteran gets SSDI solely for service connected conditions, it is practically impossible for the VA to deny TDIU. (Washington V Derwinski)

This is why I think they are claiming the veteran has improved since the award of NSC pension. He was awarded SSDI for the same exact condition. However, he has been in treatment and the psychiatrist has been giving him GAF’S of 65 for the last year and a half. There are several problems that I can show that will have this psychiatrists opinions put in the trash..

This psychiatrist has been stating that the veteran is unemployed. I have notified the VBA that this is a significant assessment error that would result in an inaccurate GAF. Actually, the clinician is completely unaware of the fact that the veteran has been receiving an NSC pension. The psychiatrist has also diagnosed the veteran with panic disorder WITHOUT agoraphobia based on clinical assessments.

The veteran is also being treated in the anxiety clinic. The anxiety clinic has given the veteran psychometric testing and interviewed the veteran more times than the psychiatrist. They determined as the result of testing that the veteran had panic disorder WITH. Agoraphobia and gave him a GAF of 40. The C&P exam and the award letter is totally silent for any reference to the anxiety clinic.

Ron.

I think the most important problem to deal with in your claim involves the cognitive disorder, recent diagnoses of mood disorder or PTSD is not as big of an issue unless the PTSD stressor is not related to service. The fact that you are seeking a higher rating will be confused by the non service connect cognitive issues. If an examiner determines that the cognitive disorder and other symptoms of stroke is mild and not causing unemployability this would work in your favor. I would get this type of statement. If you cannot get this type of statement then get an IMO as described below.

If it were me I would seek an IMO based on a review of the records only that existed prior to the onset of any symptoms for non service connected conditions including of cognitive disorder. Do not have any interviews with the examiner, Thus, the VA cannot accuse the examiner of using your subjective input for the basis of the new IMO. If there is sufficient evidence of record to meet the criteria for the higher rating for you service connected condition based on this type of review submit the evidence in support of any current claim. It might also require a CUE.

If there was any evidence in your file showing that the cognitive disorder had onset prior to the SSDI determination and those records of cognitive disorder were not reviewed by the SSI evaluator at the time you were awarded social security, I really doubt the VA will give weight to the SSI decision. In order to rebut a refusal to give weight to the SSI evaluator you would need to include in any IMO that the records not reviewed by the SSI evaluator do not support a determination that those symptoms of non service connected conditions would have made you unemployable.

The VA has a way of writing denials in such a way that you really do not know what is being used against you. Thus you cannot rebut that which you cannot identify. This is the best I can do.

[RSG]

Hi CArlie,

no it has not gone to the BVA, it went thru a DRO and they denied it, and told me to send it to the BVA...

RSG,

I do not see where you have bothered anyone.

I looked thru (again) the decision you posted and from what I understand you have already

taken your claim issue of IU to the BVA and it was denied at that level.

Is this correct ?

[Berta]

Hoppy-

as RSG posted last week:

"Yeah I know Berta, I don't know what the problem is...I am still waiting and was waiting to file the CUE claim we worked on, until I got this assanine decision, again."

I spent quite a bit of time on writng the CUE claim. I think it would have helped resolve all of these issues.

But it hasn't been filed.