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100%+Aa=Iu

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Jim 501st

Question

1) I was denied an increase from 50% to 70% in 2004 for PTSD. (I filed an IU the same time I filed for the 70% increase. Both these claims were denied so I appealed this to the BVA.)

2) I was denied a right knee injury in 2005.

3) I was awarded 30% hearing loss in 2007 but was denied Meniere's Disease 1/22/07.

4) I applied for left knee disability as a residual to the right knee.

These all went before the BVA judge at the end of 2009. In her decision, she service connected the right knee which the RO assigned 10% disability. She also service connected the Meniere's Disease which the RO had no choice but to award 100% permanent and total because of the evidence in their possession. She remanded the left knee residual which was service connected and awarded 10%. She also remanded the IU. (I applied for Aide and Attendance and was awarded at the L 1/2 SMC.)

This is where it is becoming very interesting. March 4, 2011 I had three C & P's for IU. The question to all three examiner's was "Is this veteran unemployable prior to 1/22/07."

1) One C & P was for hearing loss and under "Please describe how the veterans disabilities impact his ability to secure or maintain gainful employment." Based on the veteran's hearing loss, his ability to communicate effectively is severely impaired. Impaired communication can result in a difficulty working environment compromising productivity. People with hearing loss have difficulty getting and keeping a job. Those that have employment need communication accommodations to function most effectively. However, due to uncertainty or fear, employers are ofter unwilling to hire hard of hearing. This is illegal under various laws, but still extremely common. In the MarkeTrak VIII study of more than 40,000 households in the US on earnings and unemployment rates, hearing loss revealed a deleterious impact. (The Hearing Journal Oct. 2010 Volume 63, Issue 10). (I failed to mention that earlier in her report she had my hearing as severe to profound in both ears.)

2) Psychiatric report for PTSD. DIAGNOSTIC IMPRESSION: Axis I: Post-traumatic stress disorder, major depressive disorder. Axis II. No diagnosis. Axis III. Meniere's syndrome, traumatic arthritis of knees, degenerative joint disease of bilateral knees and lower back with history of back surgery. Axis IV. Multiple surgical health problems. Axis V. Global Assessment of Functioning equivalent to 40.

OPINION: The Veteran continues to suffer from symptoms of depression. The Veteran suffers from chronic pain. Has difficulty ambulating. Has hopeless, helpless, worthless feelings. The veteran has symptoms of PTSD related to intrusive thoughts, flashbacks, nightmares of the past. He has avoidance behavior to watching anything relating to war as well as crowds. He gets anxious and nervous. He gets hypervigilant with loud sounds. The Veteran, in addition, has multiple physical health issues; two major problems being Meniere's syndrome with constant dizziness and feelings of nauseous and difficulty with ambulation secondary to the same, and has to walk with the help of a cane as well as having problems with ambulation and balance secondary to arthritis of his knees. The Veteran had a 1961 right knee injury. He has had arthritis. He has had back injury and has had back problems. In addition,, he has heart problems, thyroid problems, cholesterol problems, GERD, etc. The Veteran's evaluation by Dr. -----on 7/29/04 indicated that he was unable to work since 1985 due to back injury and Veterans evaluation of 7/12/2005 of Dr. ------- ( C & P exam) indicated PTSD and associated with moderately severe to severe major depression with the statement that physical and emotional condition had affected him socially, industrially, as well as occupationally, matter being further compounded by his numerous physical problems including poor hearing and back pain. As far as opinion of impact of service connected disabilities a whole on his ability to secure or maintain gainful employment prior to 1/22/2007. The Veteran has suffered from multiple physical and psychiatric health issues prior to 1/22/2007 and the service connection was in effect for PTSD and right knee disorder at that time with PTSD evaluated at 50% and right knee as 10% disabling.

The Veteran has suffered from PTSD along with right knee condition as well as other multiple physical health problems for the last several years, and Veteran has not been able to work since 1985 with educations being 8 years of grade school with GED later in service and experiencing work as a supervisor for a construction company and unable to work full time since 1985. The Veteran has multiple physical health problems including service connected conditions as mentioned above which affect him severely with any kind of gainful employment or maintaining any gainful employment or substantial gainful employment prior to 1/22/2007. The Veteran did start with his back injury, unable to work, but over time the Veteran has had symptoms of post-traumatic stress disorder, right knee injury, chronic pain, balance problems, Meniere's disease, and multiple health issues which affect him on a day-to-day basis with physical and emotional issues affecting him in a negative way with social, occupational functioning including mood. The GAF is reflective of severity of Axis I diagnosis which is severe. The Veteran's condition does affect him severely in a negative manner. As far as ability to secure or maintain gainful employment prior to 1/22/2007.

3) C & P by medical doctor is too lengthy but in-a-nutshell he also said my service-connected knee injuries made me unemployable including sedentary prior to 1/22/2007.

Since all these issues were remanded to the RO, I have been awarded 100% secular for Meniere's but these reports must now go back to the BVA for a decision on IU. I don't know what the results will be, however, if she awards IU it would be back pay at 100% rate for two years prior to the original date of 100%. Any comments? Jim 501st

I have another question. I applied for aa after I was awarded 100% for meniere's, It was awarded but only back to the date I applied, Which seemed right at the time. Since the Brady decision I wonder if I should request an earlier effective date at least too the date of my C&P which is the date they used for the award? The reason I ask this questions because the C&P examiner stated in her report (The Veteran has a gait problem and this would prevent him from performing many activities of daily living without assistance.)

This case will now be returned to the BVA for a finale decision. should I bring this up soothe Judge consider it ?

Thanks Jim 501st

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Can you give us the Docket number and Citation number for the remand?

It certainly appears to me that VA is trying to determine your earliest entitlement date for TDIU.

"I applied for aa after I was awarded 100% for meniere's, It was awarded but only back to the date I applied, Which seemed right at the time. Since the Brady decision I wonder if I should request an earlier effective date at least too the date of my C&P which is the date they used for the award? The reason I ask this questions because the C&P examiner stated in her report (The Veteran has a gait problem and this would prevent him from performing many activities of daily living without assistance.)"

At the time of the decision that awarded L 1/2 SMC, did VA make any statement at all regarding A & A?

"It was awarded but only back to the date I applied"

Are you still in the appellate period on that?

"C & P by medical doctor is too lengthy but in-a-nutshell he also said my service-connected knee injuries made me unemployable including sedentary prior to 1/22/2007."

Dis they rate 100% or TDIU on that disability?

This too could warrant 100% or TDIU for PTSD:

"The GAF is reflective of severity of Axis I diagnosis which is severe. The Veteran's condition does affect him severely in a negative manner. As far as ability to secure or maintain gainful employment prior to 1/22/2007."

What I see is 3 SC disabilities here that could possibly warrant either TDIU or 100% each.

Did VA make any statement as to the SMC "M" award in the last decision?

Do you get SSDI for any of the SC disabilities and does VA have the SSA info on that?

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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1. The Docket no. is 08-00 380

2. no statement of AA was mentioned when award granted.

3.Proably not, I was awarded L1/2 on 3/15/2010

4. notice on the remand I droped the request for 50% to 70% ptsd. (due to bad advice from Lawyer.)

5. they rated me 100% secular for meniere's only. I would like to point out here that the C&P person (refered to by the Judge as a Practical Nurse) stated in her exam that this Veteran would require the aide of another person due to the seriousness of my meniere's., but she denied service connection which the Judge changed to service connected.

6. No the VA made no mention of SMC m

7. I do get ssdi due to a back injury. (non service connected)This was in 1985. My Shrink's have advised me since I was a work-a-holic prior to my injury is how I kept my ptsd under control. When I became idol is when my world colasped and all the memories came back with a vengance.

I hope I have answered all your questions. any insight would be greatly appreciated.

Jim

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No-the BVA had no jurisdiction over the A & A claim.

The remand states:

"After completion of the above

development, the Veteran's claim of

entitlement to TDIU should be

readjudicated, to include consideration

of the provisions of 38 C.F.R. § 4.16(b).

If the determination remains adverse to

the Veteran, he and his representative

should be furnished with a Supplemental

Statement of the Case and given an

opportunity to respond."

I can only assume that VA will determine that maybe your eligibility for TDIU preceeded the 100% award and thus could provide a better entitlement date- and now would fall under Bradley to see if the SMC level is correct and if you are eligible for A & A.

I meant SMC M-did the VARO mention that?

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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Berta

No the VA RO did not mention anything about SMC M

Will the varo who sent me for the three c&p's make a decision on the IU or will they send all there results back to the BVA and let them make the decision.

Also I am still wondering about the SMC L1/2 starting date.The RO used thr date I filed for smc, but clearly the lady who did the C&P stated I need Aid at the time of her exam..She denied service connection which the BVA reverset.It seems to me at the very least the starting date should have been date the same time I recieved my 100% as that was the evidence they used to grant the claim. It seems to me they drop the ball and commited a cue. What say you.

Jim

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