tdiu The Va Can Be Evil...please Help

[ferris7060]

I am at a complete loss for words. I got my denial for TDIU last week. I was too busy fuming to post until now. I was diagnosed with Raynaud's Phenomenom in 2004. I was discharged for this reason and awarded 40%. There is no cure for Raynaud's. I seriously do have Raynaud's attacks every single day. I have stopped bringing it up at doctors appointments due to the fact that many Rheumatologists have explained to me that I have tried all treatment without improvement- so my only course of action is lifestyle change- wearing gloves- even in the house during the winter, not going outside for more than 5 minutes in the winter, holding a napkin when taking a cold can from the fridge. In the summer I avoid tempurature changes such as sun to shade, Showering in luke warm water rather than hot, and air conditioning. I do all these things. I have always noted these lifestyle changes when asked about Raynaud's, but I do not bring it up on my own at appts. It's a dead issue. It's not going away, and they can't help me. They have proposed to take the 40% away do to Raynaud's improving. I have no paper trail to offer. Only old evidence proving that I was tested, poked, and proded by specialists for 3 years before giving up hope of improvement. Each time I was tested, I was diagnosed with Raynaud's. The problem is there is no quick test to go take to prove symptoms are still as severe. Although Raynauds is uncomfortable/painful, I have never claimed that I cannot work due to Raynauds. There are certain jobs out there, inside work, that could be done with this disorder. I did work after medical discharge from the Army until my neck/migraines got worse- which brings me to my second complaint.

I am also service connected for DDD C5 & C6. I had surgery in 2006. They connected migraine headaches to my neck. I claimed in 2006 for connection and was denied. In 2009, due to CUE migraines were connected. I have literally 2 pages of dates where migraines were reported at doc visits, most stating 2 days a week, prostrating, and needing bed rest. I have had a Neurologist confirm (which lead to CUE). I have been on several medications that did not work. My migraines are at 30% currently (percentage stayed the same with new decision).

C&P examiner 10/2010

Employ opinion: It is at least as likely as not that the veteran's service connected disabilities would negatively impact his ability to obtain/maintain gainful employment. Veteran's DDD cervical spine and headaches are severe. Veteran's neck condition would prevent him from doing any heavy physical work, repetative lifting, or a job that requires repetative bending of the neck. The severe headaches would prevent any useful employment. He gets at least two bad headaches each week requiring bedrest all day due to pain, nausea, and emesis.

The C&P examiner did not ask hardly anything about Raynaud's and did no hand testing, other than to say coloring is good at this time. Did however mention the precautions I take to reduce attacks. Also noted Raynaud's happens less than once a week. Really? Who the hell told you THAT? Wasn't me. I would have had to have forgotten that I live with this and it definately happens every single day for some reason or another.

Now for the EVIL raters opinions, where he came up with them? I do not know!

For migraines:

A review of the evidence indicates confirmation of your service connected diagnosis with your subjective reports of weekly headaches with most being prostrating. A review of your VA outpatient reports from September 7, 2004 to the present is negative for any report of your having or needing bedrest other than the October 2010 examiner's statement based on your reported complaints. There was no evidence of any prostrating migraines since 2004 other than your current exam. Based on the evidence considered, the evaluation of service connected migraine headaches assiciated with DDD of the cervical spine, which is currently 30 percent disabling, is confirmed and continued. A higher percent of 50 percent is not warranted unless there are very frequent, completely prostrating, and prolonged attacks productive to severe economic inadaptability.

HUH? According to that I have never had a migraine in 7 years. Wonder how I got 30%, a CUE, tons of medications, Neurologist appointments, and two pages of specific dates where migraines were complained about, with every doctor noting the severity?

DDD was increased and an additional 10% is granted for forward flexion of the cervical spine being 15 degrees or less. (Now DDD is 30%)

Individual Unemployablity:

A small number of you disabilities that were examined were found to warrant a change in the evaluations. Your DDD was determined to meet a higher criteria, however Raynaud's was found to have improved, based on the outpatient treatment reports (meaning I have not had any or complained about an untreatable condition- lessoned learned on that one- it should always be the worst day of your life when dealing with the VA). It should be noted that the evaluation of the migraine headaches disability was not warranted as the objective evidence in your OPTs failed to support the examiner's determination which were based on your subjective reports. All OPTs were reviewed (definately not the case) and none could support claims of prostrating attacks as the result of the weekly migarine headaches claimed.

As stated earlier, in order to be entitled to IU, your combined evaluation must be at least 70% disabling with one of those SC disabilities being at least 40%. Receipt of SSA information strongly support this criteria as it was a condition stated in that SSA decision, it is also service connected, and it is 40% disabling. However, as all service connected conditions needed to be examined, the previous rating, as well as this rating did not warrant that evaluation. If anything, it has been proposed to be 10% disabaling. In accordance with the VA regulations, you are provided 60 days to provide evidence showing that this reduction is not warranted which will also assist your claim for TDIU.

Okay, for starters they claim that both the past two C&P evaluations did not warrant 40% for Raynauds. The 2008 C& P stated "Raynaud's is still problematic and would limit veteran's ability to work. (even though I wasn't saying I could not work due to Raynauds). 2010 C&P all sounded great in my favor until the guy put down an answer of "once a week" to a question he never even asked me!

Okay...HELP! What to do?

[ferris7060]

The VA is not evil. They just don't care and that is why you have to take it to them. You have to prove your case.

Evil was a strong word, that I probably should not have used. For the most part, the VA has been more than kind to me. Togus, where I usually get my claims processed has always been fair and helpful, this was sent to Buffalo, and I was floored by their obvious unwillingness to consider the evidence I submitted. I guess Togus has spoiled me. It's not that they always say yes, it's that if they say no, they have a good and valid reason for doing so. I was angry. But I will say, even though evil was a poor word choice, I think "not caring" for those you promise to care about- is pretty low. My problem is, I feel I did prove my case- quite well- they just didn't even look at it, which was made apparent by stating that no doctor has ever said I have prostrating headaches since 2004. Two Neurologists, and my PCP have, and that was right infront of them.

[halos2]

Please remember to watch your dates...you don't want to miss your NOD...

[carlie]

ferris7060,

I would contact some legal representation.

You could contact the firm below if you want and see what they can offer

and/or suggest - they provide help on our SVR radio show.

They can help you NOW and from what I THINK I see, you might also have a claim for CUE

on evaluation percentage on an earlier decision.

They can rep you for no charge up front and a percentage that is limited by law if they can

get you a win and some retro pay. That is all the money you would pay them as lawyers

aren't ever entitled to any of your regular monthly compensation.

JMHO

http://www.vetlawyers.com/contact.aspx

[ferris7060]

ferris7060,

I would contact some legal representation.

You could contact the firm below if you want and see what they can offer

and/or suggest - they provide help on our SVR radio show.

They can help you NOW and from what I THINK I see, you might also have a claim for CUE

on evaluation percentage on an earlier decision.

They can rep you for no charge up front and a percentage that is limited by law if they can

get you a win and some retro pay. That is all the money you would pay them as lawyers

aren't ever entitled to any of your regular monthly compensation.

JMHO

http://www.vetlawyers.com/contact.aspx

Thanks so much for the link. I did contact a lawyer today and he agreed to take the case, but spoke to a vso also who seemed pretty pumped about the evidence and possibilies of where to go from here. I'm not used to enthusiasm from a VSO (and they are free).

I was thinking a CUE under 38 CFR 4.7 that states that your disability fits into two percentages they must go with the higher percentage. I brought it up to the VSO and he asked me to send my evidence through email, so I did. We'll see.

[Hoppy]

I am going to focus on the headaches. It appears the C&P examiner also focused on the DDD and headaches.

The C&Pexaminers report is sufficient to issue TDIU or an extra scheduler rating of 100%. The C&P examiner said you cannot work. I was awarded SSI for a C-4 injury. I know what you are dealing with. The VA went to very creative lengths to throw out the C&P report. If you ask me they went way too far and they need to be stopped even if you have to go to the CAVC or higher.

They referred to the objective evidence in your OPT's as failing to support the examiners determination which was based on your subjective statements. The problem is that they did not identify the objective evidence they were talking about. They did the same thing to me saying there was evidence my disease was the result of post service employment. They did not cite any reports by name of the clinician, date, symptoms or diagnoses. On appeal I was awarded by a DRO. They completely fabricated the evidence my disease was the result of post service employment.

I have not seen any objective evidence that contradicts the C&P examiners report. It appears that they are referring to the fact that they decide there was no evidence of frequent prostrating events between 2004 and present. I understand you believe there is evidence of frequent prostrating events noted. If there are you should file an immediate appeal based on a factual error stating that documents in your medical records which were available at the time of the denial were not reviewed. Site the reports by date and clinician showing you told the doctors of prosrtating events. You should file for what is called a 930 review. It is faster than a reconsideration. Sharon could clarify this process. At the time you request the 930 review I would also throw in some preemptive arguments that they would not want to risk losing in ahigh court.

If they are referring to the fact that your records were silent for frequent prostratingevents between 2004 and present as objective evidence that out weights your or contradicts the subjective statements you presented to the C&P examiner,this little trick needs to appealed until someone produces a president court decision or known CFR allowing such an interpretation. I would argue that objective evidence against the claim would require a medical opinion that specifically contradicts the credibility of the subjective statements you made to the C&P examiner. Otherwise what you did not tell examiners or what the examiners failed to note in the records is nothing more than a subjective history that predates the subjective history given to the C&Pexaminer. It is not objective evidence. Baring a statements that you might have made telling doctors between 2004 and present that you headaches were mild and not prostrating there is nothing they can use to discredit the statements you made to the C&P examiner. If they want to argue that your statements to the C&P examiner can only be given weight when they are specifically collaborated by subjective statements in the OTR's rather than contradicted by the objective medical evidence or contradictory statements notedin the OTR's I would appeal this to a higher court. I would argue that the C&P examiner was aware of the entire record and if the C&P examiner thought that the silence or contradictions of the OTR's were sufficient to question your credibility he would not have written a report that your were unemployable due to your neck condition. Rather he would have stated he thought you were a faker. I have seen C&P examiners write such negative reports. It should also be noted that that the C&P exam would be credible even if the frequency and severity of the headaches had increased since your last visit to any other doctor. The C&P examiner could easily have considered recent symptoms as being indicative of not having a good prognosis. I would argue any specific reference to frequency and severity of prostrating events noted in the OTR's is not relevent. The C&P stands on its own.

Edited September 16, 2011 by Hoppy

[Hoppy]

Continued from previous post

In the future continue to report your symptoms of neck pain and headaches. Keep a daily log of your events and ask the doctor for a prescription for bed rest for each prostating event. It sounds like a pain in the a** and the doctor might even get weird about it. But tell the doctor it is what is needed when you are service connected. This will make it impossible for them to throw out the next C&P.

Edited September 16, 2011 by Hoppy