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]

ferris, have you submitted this evidence to VA?

What was their response?

"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."

This was their response to my SSD decision and C&P examiners summary stating migraines prevent me from any employment. Unfortunatly I didn't notice the comment, "We have assigned a 30% evaluation based on your medical evidence showing that you have prostrating headaches 2 - 3 times monthly and at times weekly." I didn't see it until someone here on had it spoke to me like I was completely brainless, which sent me to my records to prove them wrong. (Thank you- in all seriousness)

I am still in the window for a reconsideration though, so I can still submit new evidence. The comment was taken from a CUE decision service connecting Migraines to DDD.

[Berta]

"The comment was taken from a CUE decision service connecting Migraines to DDD."

Was this a CUE decision you received???

Did they list yur SSA award as Evidence? and then mention it directly in the narrative?

"I am still in the window for a reconsideration though, so I can still submit new evidence."

Do you mean your formally requested reconsideration and the one year NOD period as not run out yet?

I had to file a NOD right at the last minute in 2007 (I had marked my calender to a year from the decision date.

I had filed for reconsideration right away but as the NOD year grew closer to being up-=although the VA had responded to my request- it was apparent to me I would be denied again and again and they hoped my NOD deadline would pass.

That claim ( actually 2 CUE claims combined due to rating errors on 2 decisions) has been pending since July 2004.

A reconsideration request does not stop the NOD clock.

It sounds like you have good evidence that they completely overlooked!

-------------------------

Wait a minute- in a past post you stated:

"Yes, I do have SSD (for DDD, migraines, and Raynauds) Got it in 2010- they went all the way back to 9/5/04, which was the day after I was medically discharged from the army."

I have to re- think what I posted-----

What is your SC% now and the breakdown of it?

What was your first VA claim for and when did you file it?

[jbasser]

"I also found this:

We have assigned a 30% evaluation based on your medical evidence showing that you have prostrating headaches 2 - 3 times monthly and at times weekly.

According to the chart THAT IS 50%. Even if I use their own words."

Prostrating is a term to get 30 percent. You are looking for the magic words to 50 percent. * Severe Economic Impact*. So if the headaches keep yopu from working then you may get 50 percent)

J

[ferris7060]

"I also found this:

We have assigned a 30% evaluation based on your medical evidence showing that you have prostrating headaches 2 - 3 times monthly and at times weekly.

According to the chart THAT IS 50%. Even if I use their own words."

Prostrating is a term to get 30 percent. You are looking for the magic words to 50 percent. * Severe Economic Impact*. So if the headaches keep yopu from working then you may get 50 percent)

J

I had C&P and examiner concluded that DDD would make most jobs difficult, and then stated Migraines would preven ANY gainful employment. And, I already have SSD for SC disabilities ONLY. They knew all of this at the time of decision, however threw in there that there is NO mention of ANY prostrating headaches after 2004 were found anywhere in my medical records ???. (makes no sense because of the quote, "We have assigned a 30% evaluation based on your medical evidence showing that you have prostrating headaches 2 - 3 times monthly and at times weekly." They upped my percentage from 10% to 30% due to two Neurologists confirming "frequent" and prostrating headaches in 2009. All I had to do at that point (in my opinion) was prove that I was also unable to work- I got SSD and the C&P examiner cinfirmed that JUST FROM MIGRAINES ALONE I was unemployable). So, it seems completely contradicting to me.

[john999]

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.

[ferris7060]

"The comment was taken from a CUE decision service connecting Migraines to DDD."

Was this a CUE decision you received???

Did they list yur SSA award as Evidence? and then mention it directly in the narrative?

"I am still in the window for a reconsideration though, so I can still submit new evidence."

Do you mean your formally requested reconsideration and the one year NOD period as not run out yet?

I had to file a NOD right at the last minute in 2007 (I had marked my calender to a year from the decision date.

I had filed for reconsideration right away but as the NOD year grew closer to being up-=although the VA had responded to my request- it was apparent to me I would be denied again and again and they hoped my NOD deadline would pass.

That claim ( actually 2 CUE claims combined due to rating errors on 2 decisions) has been pending since July 2004.

A reconsideration request does not stop the NOD clock.

It sounds like you have good evidence that they completely overlooked!

-------------------------

Wait a minute- in a past post you stated:

"Yes, I do have SSD (for DDD, migraines, and Raynauds) Got it in 2010- they went all the way back to 9/5/04, which was the day after I was medically discharged from the army."

I have to re- think what I posted-----

What is your SC% now and the breakdown of it?

What was your first VA claim for and when did you file it?

Thank you for taking the time.

This was not the CUE decision, this was an IU decison I filed in 8/10. The CUE was made in 10/08 and stated that they should have SC'd DDD and Migraines in 05' and did not.

They did refer to my SSD decision, but stated that they believe my Raynaud's 40% has improved according to my last 2 C&P exams. The first of those two stated that Raynaud's was still problematic and would limit my ability to work (not an improvement), the second stated all the things I do to avoid Raynauds attacks and basically painted a picture of my needing to take continuous steps to lead a normal life, yet he did not summarize the Raynauds at the end. The second C&P did however write down that attacks are 1 a week (even though I specifically said everyday I get attacks that change my fingers red and white, but once a week I get them so badly that my fingers turn gray. The Raynauds chart mentions nothing about severity of attacks, only frequency of attacks. Here was what they had to say about SSD (mind you NECK and MIGRANIES were listed as primary SSD factors, not Raynauds. But they insuate that they have disregarded IU do to a "proposed" Raynaud's decrease (making my highest percentage UNDER the single 40% disability needed to apply for IU. But still failed to consider the fact that I am SSD disabled without Raynauds.

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.

I plan to fight the Raynaud's hard. I seriously do have attacks everyday, have for 9 years. I am starting to take daily pictures of the clear discoloration of my hands and fingers with a dated newspaper.

I just got the decision last week, so I can still send in additional evidence.

Breakdown:

Raynauds Phenomenom 40%

Migraine Headaches associated with DDD C5&6 30%

DDD C5&6 30%

Mild Diastolic Hypertention 10%

Stress Fractures Involving Both Hips and Anterior Tibial Surfaces 10%

My first disability was Raynaud's at 40% immediately after being medically discharged due to it. Included at that time was Tension neck and headaches (later DDD and Migraines) rated 0% hypertention 0% and Stress Fractures Invovlving Both Hips and Tibial Surfaces 0%