tdiu Bva Decision What Do You Think

[Charleese]

Hi all,

My husband was reading his BVA decision dated Sep. 20, 2010 and it states:

Service Connectional Cervical Spine states in part - The record also contains medical and lay evidence in support of a nexus between the Veteran's current cervical spine disability and the service-connected residuals of a tibia fracture. During an April 2004 VA examination, the examiner found that the Veteran manifested left knee instability that had resulted in frequent falls. Additionally, the November 2008 VA examination report and an April 2009 statement from the Vetran's private physician both provided medical opions in favor of the Veteran's claim finding that the Veteran's July 30, 2008 fall was the result of his left knee instability. The Veteran and his wife have also provided statements detailing the Veteran's frequent falls due to left knee disability, and an April 2010 statement from the Veteran's stepson describes how the Veteran stated that his left knee had stiffened moments before the July 2008 fall. The record therefore contains two medical opinions in favor of the claim and lay statements describing how the Veteran fell due to his left knee disability. A claim will be denied only if the prepondence of the evidence is against the claim. In this case, the evidence weighs in favor of a nexus between the Veteran's residuals from a cervical disc herniation and discectomy and his service-connected left knee disability. Accordingly, the claim is granted.

Order - Entitlement to service connection for residuals of a cervical disc herniation and discectomy as secondary to service-connected residuals of a left tibia frcture is granted.

Remand - With respect to the Veteran's claim for TDIU, the claim is inextricably intertwined with the grant of service connection for a cervical spine disability discussed above. 's After implementing the Board's grant of service-connection, the RO should readjudicate the claim for TDIU. The Board notes that the Veteran's residuals of a left tibia fracture, left knee recurrent suluxation, and left knee tender scar are disabilities of a ommon etiology, and therefore meet the schedular criteria for a grant of TDIU under 38 C.F.R. Section 4.16(a). Then the examiner should opine as to whether without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, and, in particular, his residuals of a left tibia fracture and cervical spine disabilit, either alone or in the aggregate, render him unable to secure or follow a substantialy gainful occcupation. The examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background.

Because of the above husband believes that BVA is giving examiner a way out to deny him TDIU. What do you think is husband right. He has exam on May 11th.

Edited May 2, 2011 by Charleese

[john999]

What is vet's current rate of disability. The BVA says the vet is eligible under 4.16A for consideration of TDIU. What kind of work did the vet do before the injuries? What is his level of education. With leg problems and cervical spine problems what kind of work can he do? Probably not much.

[Charleese]

What is vet's current rate of disability. The BVA says the vet is eligible under 4.16A for consideration of TDIU. What kind of work did the vet do before the injuries? What is his level of education. With leg problems and cervical spine problems what kind of work can he do? Probably not much.

His rate is 60% for left knee injury, they haven't rated his cervical spine injury yet. Yes he is eligible. They will rate him after exam for spine. He was a courier delivering pay checks when he fell and injured his cervical spine in 2008. He hasn't worked since. Doctors have written and said he is unemployable because of these sc injuries. It will be interesting to see what orthropedic doctor say on the 11th as to type or types of work he can do if he/she deny him TDIU. See Post on Fusion Rating concerning cervical spine injury.

Edited May 3, 2011 by Charleese

[jbasser]

§ 4.19 Age in service-connected claims.

top

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e. , for the purposes of pension

That is why the wrote thast statement without regard. I believe it will be OK.

You should also consider an orthopedic IMO if need be to offset any negativity you may get from a C and P exam. ( I would do it even at the thought of it)

JBasser

[Charleese]

§ 4.19 Age in service-connected claims.

top

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e. , for the purposes of pension

That is why the wrote thast statement without regard. I believe it will be OK.

You should also consider an orthopedic IMO if need be to offset any negativity you may get from a C and P exam. ( I would do it even at the thought of it)

JBasser

He had an orthropedic imo done in June of 2010, and submitted to VA but they have yet to recognize it. Orthropedic doctor stated that it is felt that the patient has severe ostoarthritis, postraumatically induced. I feel the right knee is probably within a reasonable degree of medical certainty related to the fact that he has been limping for the past 20 years favoring the left side has caused an effect of producing arthritis on the right knee. At the present time, the patient is unemployable since ambulation for any long periods of time bothers him and he cannot stand for a long period of time, anything longer than 20 minutes of the time and also when he sits in one position for a while, his legs start to cramp up and bother him as well as pain in the lower back, so he has got to get up and move. This IMO pertains to his left & right knee not cervical spine. If need be he will get another IMO after C&P exam. He intends to bring June 2010 orthropedic exam results with him to May 11th C&P exam.

[Berta]

"He had an orthropedic imo done in June of 2010, and submitted to VA but they have yet to recognize it."

The BVA decision was Sept 2010.

Did you send this evidence directly to the BVA?

I sent the BVA evidence as soon as my claim was transferred and continued to do that.

I then would check with the BVA ombudsman to see if they received it.

When the claim was remanded ,I followed the remand and ordered my 4th IMO.The C & P had been requested from a Cardio but I got a VA PA opinion and it was easy to knock him down with a rebuttal I sent to the BVA.But still I expected a strong Cardio opinion in the mail to come any day.

I thought the next BVA mail I got was a decision for someone else (that happened to me twice) and I didnt open right away.

It was an award letter.

I lost some money on the cardio opinion as the doc was just about to prepare it but I called them as I no longer needed it.

They refunded part of the IMO fee I had paid.

My point here is that when a claim is transferred to the BVA, the ROs only keep a temporary file and additioanl evidence sent to the VARO wont likely make it to the BVA.Unless we send it there ourselves.

I dont know if others had different experiences on this.

The BVA in my decision took note of the 3 IMOs and other evidence in the file sent to VA many times yet ignored for almost 6 years by the RO.

They said importantly that I had mitigated a VCAA error myself with probative evidence so that VARO error was not prejudicial to me.

Once I was on BVA docket, I was not going to allow the RO to control my evidence any more and I sent the BVA plenty.

[carlie]

I also think it's important to include a signed Waiver of RO Consideration

with any additional submissions to the BVA.

JMHO