tdiu Denied Because Dav Rep Mistake, Filed Second Round.

[mav2u]

I've been out since Jan 03 when I was Med boarded from the AF for my back. I had a tumor removed from my spinal cord l4-l5 in 2001. I had nerve pain in the left side since 1998. After the surgery it helped a little but the pain was still there. Pretty much from the left side of the back at the belt line down to my foot all day spiking and throbbing pain. Insomnia because of the pain and the joy of all the meds I have to take to relieve the pain. Not to mention during the service I had a break down because of all the pain and the constant torment from command NCO's and Officers complaining about my condition thinking I was faking, which was then diagnosed as depression and was in treatment.

I got of of the AF and immediately filed at my VA an thru the years have received the following SC ratings.

70& bi-polar

20% cervical spine,

10% post lumbar laminectomy with tumor resection,

10% for radicular symptoms left lower extremity secondary to status post lumbar laminectomy with tumor resection

0% allergic rhinitis ( can't get them to give me anything even though I suffer an take alergy medicine 365 days a year )

0% residual moles removed on back

So I tried school when I got out as I definitely couldn't do Aircraft Maintenance any longer. I tried for about a year in a half when I started to fail miserably. I took a job that a friend got me as a loss prevention person at a store. Watching store cameras for people stealing. Only problem was that I had a hell of a time staying awake with meds and sitting for long periods was torture but I did it. I was always on the edge of being fired for my lack of performance or my anger. So I knew my time was coming short so I hopped over to another store doing the same thing for about another year. I finally figured something isn't right and went in an saw the Mental health. They figured I was having depression again, but after several months they determined it wasn't depression but bi-polar. Which explained a lot. I worked for Ford for about 8 months doing inspections of vehicle claims an was always on the edge for being angry, or because I was out of work so much for my back or headaches. Seeing that my time was coming short their I found another gig from a friend doing photography business for about a year an a half. By this time my back was hurting more, my right arm was burning on fire which it had while I was in service but they never found anything. My bi-polar was getting worse but I still hung in there. Lots of percocet helped through the days and ever changing bi-poplar medicine. Finally in 2008 I was getting worn down and the economy tanked so they let me go and I haven't had work since.

I never knew about TDIU until shortly after in early 2009 my Mental Health doctor told me to re file my Bi-polar for more as it was at 30% as I had gotten worse in condition. I received a 70% bi-polar rating in Nov 2009. My right arm which had become a burning inferno of pain finally got the diagnosis from a doctor outside the VA because I refused to see the VA doctor again or I was going to throw her out the window if she told me for the 5th time that nothing was wrong with my arm. Come to find out, I had a severe ulnar nerve entrapment in my right arm. I got immediate surgery on it after having this pain for 10 years in December 2009.

That was when I heard about TDIU. So I went to DAV at the clinic and told them I wanted to file for it and for my arm now that I had a surgery and they found what was wrong. So I wait until June 2010 and find out the DAV rep filed for some kind of temporary out of work disability like a workmen's comp for my arm that I just had surgery on. I was PISSED that this jackass screwed up that badly! They denied me saying I hadn't tried voc rehab and that my arm was denied as non-SC. Which I have paperwork for an it is in my records for being sent to a neurologist while I was active duty, but I got med boarded before the nueroligist to see more more than a couple times to figure out what was going on.

Thankfully there was another DAV person out there that knew what they were doing and filed my now denied letter for appeal submission stating that it should have been for TDIU and that my arm was a add-on on claim for disability. Filed in August 2010 they finally got all the stupid job history info in from my previous employers in December 2010. Which I had no idea they were waiting on or I would have gotten in to them sooner. So now here I sit, knowing that it is sitting on the desk of some person at the VA to be combed through with a fine tooth comb. At least that is what they said this person is going to do on a appeal like this is that they go through the entire file top to bottom.

Am I being optimistic that I'll get TDIU? Should I be prepared to get a lawyer? I'm just so tired of fighting this paper war with the VA and the incompetent few physcians that they have at the VA I just don't have much fight left. I left a bunch of stuff out in between the years with filing and doctors. I'm just tired of trying to survive on nothing. Blessed that my wife has stayed with me this long. I'm in my 30's an this is all life amounts to an it is pretty sad state of affairs. No friends left as I've pretty much taken care of annoying them or they don't want to hang with a cripple anymore when they go hiking or boating. If TDIU isn't in the mail soon, I'm not sure what else to do....

[jbasser]

The DAV didnt have to ask you about disagreeing with a decision. The VA does that. You received with the award letter: What do I do if I disagree with this decision?

Did the Doc tell you that if a nerve has been compressed for a long period of time you will still have problems?

You can get this fixed, but you are going to have to change your approach.

I dont know your claim spacifics but I am thinking you have some serious complexity issues regarding the claim and the issues involved.

J

[mav2u]

The DAV didnt have to ask you about disagreeing with a decision. The VA does that. You received with the award letter: What do I do if I disagree with this decision?

Did the Doc tell you that if a nerve has been compressed for a long period of time you will still have problems?

You can get this fixed, but you are going to have to change your approach.

I dont know your claim spacifics but I am thinking you have some serious complexity issues regarding the claim and the issues involved.

J

Yes, I went to the DAV to dispute the decision. Because they filed for the wrong thing the first time. That guy no longer is a volunteer there. I don't see him there anymore, thank god!!!!

No, the Docs at the VA are retarded baboons! They refuse to write anything for you in regards to VA claims. Half the time they don't even fill out the computer information for what I came in for on a particular day. I now make them fill in why I am there, if I can get them to do it. Some just say yeah yeah, I'll do it. A few type it an let me see what they typed in right there. I told them every year I request the previous years records an I'll see what they wrote. So write what your supposed to an I won't be pissed off an back in your office a year from now asking why you lied. Most put the info in. But they don't speculate or enter anything that might be a medical guess or theory.

So no, they don't put in any issues from the nerve being pinched, or rubbed or anything. As they don't really know why it hurts as there is no Flashing sign advertisement in an x-ray saying this is the problem 100% for sure. They aren't going to write anything then. They just say " Here is some more medication"!!!

How can I get it fixed by changing my approach?

[jbasser]

If you can prove the DAV screwed up your claim, you can go after them if if cost you any retroactive benefit.

As far as changing your approach, It can be done.

Have you sent in a NOD to the VA regarding the denial?

We can use attorneys now and many will look at your claim with a denial in hand.

Medicine is a science but not an exact one. That is why they call it a practice or practice the science of medicine.

It is an opinion based science. If your issues are related to your SC's issues, then you need opinions that are at least 50 percent in favor of your claim. The Benefit of the doubt rule takes over after that. ( That is the way it is written).

Hang in there and try to control your emotions, I know it is a difficult thing to do as I have had the exact same thing happen to me with the DAV.

J

[Berta]

Did the VA consider the side affects of the SC meds you take in their denial?

Was there any critical evidence in the SOC that they did not list and therefore did not consider?

You might need to consider getting an IMO. IMOs are costly but the cost can be absorbed if the IMO garners you a TDIU award within a few comp checks at a rate higher than you have now.

Then again an IMO doctor cannot perform a miracle.They must use strong medical rationale for their opinion and back it up with

direct references to the clinical record.

Do you receive SSDI benefits solely for the SC conditions?

I agree with John:

"I dont know your claim spacifics but I am thinking you have some serious complexity issues regarding the claim and the issues involved."

The denial letter your received contains some key points regarding TDIU that need to be overcome.

BUT-----

You mentioned this past decision:

". Which I finally dropped out taking pre- Trig and Chemistry as I could not memorize anything which is one of my symptoms of my bi-polar and medications. So wouldn't that trump them saying that I should take Voc-Rehab? Obviously if I couldn't do it on MGIB I sure the hell can't do it with the Voc-Rehab."

That is a VERY GOOD point.

Is there any way you can prove that?

Is there any college counselor who might be able to write a statement for you as to your memory problems?

Did you ever ask the college for any accomodations?

Would your overall college records prove to the VA that you could not do well due to your meds and bi polar?

Do you have a copy of this letter from your MH?

"Now I suppose they didn't read the file or they would have viewed the fact that as soon as I got out in 2003 I went to school on my MGIB and struggled and even took several classes over almost 3 time to pass them and had to have my Mental Health doctor at the end of 2005 finally write a letter to the college to grace my several classes that I was on a third time taking to wave the increased state fee for a 3rd time retake because of my mental health and physical issues impaired my ability to learn an comprehend. Which I finally dropped out "

I see that as dynamite evidence of TDIU and if they ignored this ,your rep should file for Reconsideration with this evidence or if it were me I would ask them to CUE themselves too as they have ignored and disregarded the aspects of 38 USC 4.3 and 4.6 as to evidentary requirements.

I have had a bi polar vet friend for over 15 years.

His bi polar prevented him from remembering stuff I asked him to do for his claim.

Phone calls and emails to remind him to send a SF 180 for his 201 file-always ended up where he forgot and again promised to do that.

FINALLY I was thrilled when he told me he did get his 201 file and found that part I asked him to find.

He submitted this to the VA and he got a brief opinion from his VA doctor that the 201 file info supported.

After twelve YEARS in appeals VA awarded him from NSC -NADA-

with a jump to 100% P & T-SC Bi polar.

Almost 1/4 million in retro.

You certainly ave made a very logical and important point here-

f they didnt consider that 2005 letter, they should have and this can possibly be the key to your TDIU.

[Berta]

http://law.justia.com/us/cfr/title38/38-1.0.1.1.5.html

38 USC Part 4 3, 4.6

Evidentary requirements for proper consideration.

[mav2u]

Did the VA consider the side affects of the SC meds you take in their denial? NO, no one ever mentions the meds. I take Methadone 2 times a day. ( Used to take Percocet but it became ineffective after so many years.) I also take Naproxen, Psuedoephedrine, Citalopam ( Bi-polar med ), Niacin, and Fish Oil. And I have my own bottle of prescribed muscle relaxer to take when ever I have bad back episode. Used to take many more but I finally got it down to these few.

Was there any critical evidence in the SOC that they did not list and therefore did not consider? They didn't consider anything but my movements, my pain level, and amount of episodes ( which she totally made up. Saying I only have a few episodes a month (true) and they only last 4 hours at a time. This is untrue for my back episodes. It lasts 2 or 3 days. BIG DIFFERENCE!!!!

You might need to consider getting an IMO. IMOs are costly but the cost can be absorbed if the IMO garners you a TDIU award within a few comp checks at a rate higher than you have now. Yeah, I have no outside insurance or enough money for something like that. We barely make the monthly parents for everything.

Then again an IMO doctor cannot perform a miracle.They must use strong medical rationale for their opinion and back it up with

direct references to the clinical record.

Do you receive SSDI benefits solely for the SC conditions? I have no Social Security Disability yet. I haven't filed even though I've been told I should.

I agree with John:

"I dont know your claim spacifics but I am thinking you have some serious complexity issues regarding the claim and the issues involved."

The denial letter your received contains some key points regarding TDIU that need to be overcome.

BUT-----

You mentioned this past decision:

". Which I finally dropped out taking pre- Trig and Chemistry as I could not memorize anything which is one of my symptoms of my bi-polar and medications. So wouldn't that trump them saying that I should take Voc-Rehab? Obviously if I couldn't do it on MGIB I sure the hell can't do it with the Voc-Rehab."

That is a VERY GOOD point.

Is there any way you can prove that?

Is there any college counselor who might be able to write a statement for you as to your memory problems? My Mental Health psych person wrote a letter to the college to give me another chance for the 3rd try of a class to I wouldn't have to pay full price as I have severe mental memory and medication issues. They allowed me to take the class again at regular price.

Did you ever ask the college for any accomodations? It is a community college, an the only accomodotion they give is a different chair in the classroom if needed or a different desk or table.

Would your overall college records prove to the VA that you could not do well due to your meds and bi polar? Yes, I failed several classes a couple times. Mainly the ones which required memorization like math, science, and history.

Do you have a copy of this letter from your MH? I have a copy of the letter from my MH, but now that I think about it I'm not sure if it is in my records. I don't believe it is. Can I still submit it at this point? I know I can have it added to my record. Which I will take to the VA on next apointment to have them add a copy to my medical records.

"Now I suppose they didn't read the file or they would have viewed the fact that as soon as I got out in 2003 I went to school on my MGIB and struggled and even took several classes over almost 3 time to pass them and had to have my Mental Health doctor at the end of 2005 finally write a letter to the college to grace my several classes that I was on a third time taking to wave the increased state fee for a 3rd time retake because of my mental health and physical issues impaired my ability to learn an comprehend. Which I finally dropped out "

I see that as dynamite evidence of TDIU and if they ignored this ,your rep should file for Reconsideration with this evidence or if it were me I would ask them to CUE themselves too as they have ignored and disregarded the aspects of 38 USC 4.3 and 4.6 as to evidentary requirements. I don't know what that means?

I have had a bi polar vet friend for over 15 years.

His bi polar prevented him from remembering stuff I asked him to do for his claim.

Phone calls and emails to remind him to send a SF 180 for his 201 file-always ended up where he forgot and again promised to do that.

FINALLY I was thrilled when he told me he did get his 201 file and found that part I asked him to find.

Yes, My wife bitches at me all the time for this type of stuff. Literally forgetting something she just said, or told me to do only seconds after. I have to work hard to sit down and think of the things I need to do during a day if I didn't write them down. Not that I have a lot to do, but forgetting to take the garbage out on Monday is important as trash only comes once a week. Remembering what day of the week it is without a calendar, computer or phone I would probably never remember.

He submitted this to the VA and he got a brief opinion from his VA doctor that the 201 file info supported. My VA doctor refuses to write anything. She says she is not allowed to write anything for me.

After twelve YEARS in appeals VA awarded him from NSC -NADA-

with a jump to 100% P & T-SC Bi polar.

Almost 1/4 million in retro.

You certainly ave made a very logical and important point here-

f they didnt consider that 2005 letter, they should have and this can possibly be the key to your TDIU.