ptsd Need Help - Sorry Lenghty Post

[Ret.Navy]

I appreciate all of the advice and knowledge that I have received from this board. I am posting again because I have a unique situation that I need help with. My situation is rather lengthy, but I will try to be as brief as possible. I really need help understanding what is going on as well as what to do next. ( Past post at bottom of page related to this same claim)

I am a 35 year old disabled vet, medically retired from service, married with three kids. My disabilities have worsened in severity and I haven’t been able to maintain suitable employment since Nov of 2007. Trying to get back to the work force in a non-physical capacity I enrolled in the Chapter 31 vocational rehab program. I am %60 disabled and receive the corresponding compensation monthly along with the full time subsistence allowance which is barely enough to maintain my household with my wife’s income. I am fighting to get out of debt, but seem to face new challenges daily including the recent repossession of a vehicle.

After eight years of service in the Navy, I was placed on the temporary disability retired list and retired from active duty in April of 2004, and five years later, after two re-entry physicals was placed on the permanent disability retired list. My September 2004 award of 60% disability compensation trumped my retirement from DFAS so that is what I receive monthly.

In June of 2010, I initiated a new claim for increase of my current disabilities. Which I was receiving %50 for sleep apnea, %10 for asthma, %10 for sinusitis, %0 for acid reflux, %0 for allergic rhinitis, and %0 for migraine headaches from my initial claim decision on September 20, 2004. I was also denied an award for my back which was one of my issues.

My claim for increase included a re-consideration for my back issues. I received my answer December of 2010 with a %10 increase for my back (labeled L5-S1 herniated nucleolus pulpous w/spinal stenosis and peripheral neuropathy, bilateral lower extremities.)

This December 2010 decision also noted a CUE stating that I should not have received %50 and %10 for sleep apnea and asthma from the September 2004, rather I should have been receiving %50 for both, but under provision of 38 CFR 3.500(b)(2) no over payment shall be established.

The December 2010 decision was accompanied by a letter informing me that a consideration for IU (Individual unemployability) had begun and to return the requested information with included an application and additional medical evidence. I complied fully.

I also initiated an appeal for the 2010 decision for all of the before mention disabilities.

Since my December 2010 decision I have switched from a VSO to a VA disability attorney, simple because I was tired of the run-around.

The Run-around: (my claim and appeals are still going on during this entire process

I have had 2 back surgeries in 2011, February 7^th and July 8^th (requested temporary %100 percent disability for both with accompanying evidence and a request to expedite due to financial hardship.) I received a one month award after the February 7^th, but not from July. (Note: I am still recovering-just started physical therapy and still have the same restrictions given to me after my first surgery. All of my care and surgeries have been at the North Texas VA. I was also overdosed on my first surgery and needed to be resuscitated) I now live in more pain that I have ever known, walk with the assistance of a cane, and have been diagnosed with clinical depression. After checking and re-submitting my second request I was unofficially advised to wait until my June 2010 claim was complete so not to delay anything further. I complied.

I have had 2 surgeries and 4 additional C & P exams since initiating my June 2010 Claim.

In Oct of 2011 I was told that all evidence that was requested from me has been received, all of my C & P exams were received September 2011, and that no other evidence was needed to make a decision on my claim. Jan 2011 my claim is still in the development phase although again I am told that all the required evidence and documentation needed has been received.

As of today I have:

Open Claim: June 2010 decision on Individual Unemployability

Open Appeal: June 2010 decision of disabilities

Open Appeal: Effective dates of Temporary %100 for surgical recovery

My June Claim now is very complicated it includes

1. Pending appeals
   
2. Pending consideration for IU
   
3. Pending consideration for depression, after C & P, examiner wrote a statement in my evaluation that included a diagnosis for depression and PTSD
   
4. Pending consideration for PTSD, added by VA after receiving the before mentioned C & P exam results.
   

My other problem, I switched to going to school online after my surgeries in 2011, which runs longer then a 4-year school because I now take one class at a time instead of 3 to 4 at a time, and I just found out that my program limit runs out in March 2012, unless an extension is granted. If I lose the addition of the subsistence allowance chapter 31 adds to my household income, my debts will be my last problem. I won’t be able to maintain my household or provide the basic living essentials for my family. I need help. Even though my doctor hasn’t cleared me to work, I am still looking daily for a job to supplement my income. My next post will be entitled homeless vet needs help.

Post History: Same Claim

Nov 15 2010 -

Dec 20 2011 -

Rating Decision 11302010a.pdf

[john999]

When I had to retire from my job at the post office I waited about 8 months to get my SSD and another year to get IU. It felt like 20 years of waiting. I did have some savings, but I still lost about 25 pounds. The VA and SSD know that only the most disabled people are willing to put up with these disability systems. Nobody who can work would go through this crap. Working is so easy compared to waiting and worrying about getting disability.

[Testvet]

being physically or mentally disabled and having to appeal bad decisions to the BVA or SSA Judges is not for the weak it is one of the hardest jobs a person can have there is not a damn thing easy about being disabled it takes more out of a person than going to work every day my shrink wrote a statement in my treatment records every Feb from 2003 and still does it in 2005 the RO granted me 50% for PTSD I filed my appeal the very next day they also denied my CAD and hypertension that NOD was settled a year later when they granted me 100% P&T only on PTSD, I again filed an appeal on the CAD and HBP that took until June 2009 before I got the award letter and back pay for SMC S back to 2003 yes those big back pay checks are nice but in the meantime you lose most of your "normal life" and end up starting over it seems you have an understanding spouse do your best not to push her out of your life

it never is easy the not knowing when they will get it straight, will they ever get it straight etc drives most of us up the wall the waiting is the hardest

[Ret.Navy]

Thanks for all of the responses and advice. I'm not sure what my breaking point is, I just now that I am closer to it than I have ever been. Tryin to keep the faith.

[Ret.Navy]

Has anybody had any success requesting cliam be expedited due to financial hardship (which is probably every vet with a claim pending). or is that just a feel good measure so you can feel you've done all you can.

I added a request that my cliam for temorary 100% be expedited due to financial hardship after my Febuary 2011 surgery (L5-S1 disc herniation to relieve spinal stenosis) and recived one month of compensation at the 100% rate in June 2011. Had a repeat operation in July 2011and filed the same request for temporary 100% and the VA has no record of this claim. I think they confused that request with my earler request. I was trying to sort it all out, but a call center rep advised me to just let the claim be for now, because trying to sort that out could hinder progress on my main claim for increase and IU.

Anyway, just wondering if financial hardship has any effect on claim processing or is just moved from one pile to another.

[Pete53]

Hang in there. There are ways you can get your claim to move. Tou have mentioned that even though you can't work you are going to try and find some work to get by. This will not help your claim. Frtom what you have said you probably have reached the point where you understand that you can' maintain a job. Probably the hardest thing anyone can do.

I am not a service officer but I think I can help you expedite your claim.

[Teac]

Ret Navy,

I am having problems understanding how your disabilities prevent you from any gainful employment.

Before I tell you why, let me say that I have Asthma/COPD at 100%, back injury at 60%, and sinusitis at 10%... I also have sleep apnea that I have not even bothered to try and get a rating for and many other disabilities that for the purpose of this discussion don't matter.

I was medically retired from the Army at 30% for asthma, allergic rhinitis, back ,and a knee injury after 15 years of service. I worked for another 13 years before I was forced into a medical retirement from civil service because of my back injury.

First, I understand Lung disease and have read book after book concering lung disease and I know first hand asthma at 10%, even with sleep apnea is not disabiling enough to keep anyone from work. Sinusitis, is no fun either even if you have headaches it should not prevent you from some kind of work, and I know first hand how bad back pain is, I have had 4 surgeries, with 3 herninated disc, siatiac nerve damage, and drop foot... but a back injury rated 10% should not keep you from all kinds of employment either.

With that said, I know everyone is different and while my medical issues seem to be far more serious than yours, mine did not keep me from working untill I fell off a ladder at work hurting my back again, at the time I had a 40% rating, and it was increased to 60% with tdiu. It wasn't until i was retired for a long time that my lungs were rated at 100%.

I honestly don't see how your disabilities keep you from any kind of emplyment. First, the va is not likely to consider you for TDIU because you don't meet the minimum ratings to qualify.. which are one rating of 60% or one rating of 40% with a combined rating of 70%. You have neither a stand alone 60% rating or a combined 70% rating.. combined you are 60%. Now someone else is going to come along and state that TDIU regardless of ratings is still possible, and that is true, but only in extreme cases and only if approved by the Wash DC office, and in your case it just won't happen. This doesn't mean that your appeal won't produce results and net you a higher rating , it just means your rating at this time don't qualify for TDIU.

As to the issue of Sleep apnea and Asthma and seperate ratings vrs a combined rating... The rules are specific;

Rating coexisting respiratory conditions. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.

asthma is 6602 and sleep apnea 6847... so both of these conditions fall under the special rules.. but who really knows what the rule is meant to state. that is does the rule state do not award seperate ratings for diagnostic codes 6602 through 6847, or does it mean do not award seperate ratings for medical conditions within the two seperate groups. I think it means do not grant seperate ratings for issues that fall into each seperate group, otherwise the rule would state the groups of codes as one group and not two groups.

Ironically, asthma and sleep apnea has been rated seperately by some judges in BVA cases and in other cases it has been disallowed.

for example: if you look up the following case at the BVA.. you will find that seperate awards were granted in this case....

---Citation Nr: 0610557

Decision Date: 04/13/06 Archive Date: 04/26/06

DOCKET NO. 03-24 952A

The RO found that 38 C.F.R. § 4.96 bars the assignment of a

separate rating for the asthma condition apart from the sleep

apnea condition. However, that provision states that ratings

under Diagnostic Codes 6600 through 6817 will not be combined

with each other. That provision also states that ratings

under Diagnostic Codes 6822 through 6847 will not be combined

with each other. The two specified ranges of diagnostic

codes are stated in the disjunctive and thus, the provision

does not automatically prohibit the assignment of a rating

under Diagnostic Codes 6600 through 6604 in addition to the

assignment of a rating under Diagnostic Codes 6822 through

6847.

Furthermore, under 38 C.F.R. § 4.96, a separate rating can be

assigned for asthma even when the veteran is receiving

compensation for sleep apnea. While these respiratory

conditions each impair his ability to breathe, each condition

has distinct and separate symptomatology. The sleep apnea is

caused by obstructive factors and results in disruption of

breathing during sleep; the condition is alleviated by the

use of CPAP. The asthma is caused by exposure to allergens

and irritant particles and results in recurrent attacks of

spasmodic contraction of the bronchi; the condition is

alleviated by the use of bronchodilators. Because the

symptomatology does not overlap, a separate rating should be

assigned for the asthma. See Esteban v. Brown, 6 Vet. App.

259, 261-62 (1994).

You may be able to win an apeal concerning the asthma/apnea ratings based on the case above...

Good luck to you what ever the outcome...

Edited February 4, 2012 by Teac