tdiu Seeking Guidance From My Old Friends (And Hopefully Some New Ones)

[rentalguy1]

The folks who have been on this board for a while know me, and know what my last VA battle entailed. A quick rundown for new folks, or the old ones that have forgotten, though:

I am 90/ TDIU/ P&T since October 2008. I have not had any C&P's scheduled, and it is written in my last decision letter that no more will be scheduled. I've been around the VA long enough to know that what is written in that decision letter and a dollar will get you a cup of coffee, though. I have several conditions that are currently SC'd and rated. The list is:

Neurogenic Bladder - 60%

Intervertebral Disc Syndrome - 40%

Mood Disorder Due to a General Medical Condition - 30%

Sciatica - 10%

Left Knee - 10%

Right Knee - 10%

Hearing Loss - 10%

Tinitus - 10%

Left Foot Plantar Fascitis - 10%

I have moderate to severe central canal and foraminal spinal stenosis, facet joint arthritis, and degenerative disc disease in my entire lumber spine. I also have healed compression fractures at T-11, T-12, and L1. This has led to a foot drop on the right side that I have to wear a AFO brace for. I have a torn meniscus and sctretched PCL in the right knee, and "runner's knee" in the left knee. I have to take about 30 pills a day in order to function at a minimal level, and have been doing so for many years.

In the last 2 years, I have started to go downhill in many areas. The medicaations have caused me to have chronic abnormal liver enzymes and chronic gastritis type symptoms. I took a fall in 2010 when I tripped over my droopy foot and injured my right shoulder. Last winter I started developing sciatica on the left side, and last month I was diagnosed with bursitis in my left hip, which is every bit as debilitating as the back pain.

While researching on Hadit for a friends claim, I found a Fast Letter from 2010 regarding TDIU. It states that if a veteran is rated as IU based on a single issue, then that issue is considered a total (100%) rating for the purpose of assigning SMC - S. I am thinking about filing a claim for the S award based upon my IU for IVDS (the condition used in the VA's decision to grant me TDIU) and having a 60% award in addition. I am also thinking of filing a claim for a K award based upon the right side foot drop. Since I would already be filing, I am thinking I might as well ask for SC for the shoulder injury, hip bursitis, left side sciatica, digestive issues, and elevated liver enzymes. I would also seek a increased rating for the right side sciatica, due to the foot drop and possibly attempt to reopen a claim for GERD that they have denied a few times, but I almost got overturned on a DRO review in 2009 (they wanted to scope me for the C&P when the findings of that test weren't pertitnent to the rating criteria in any way, so I said no).

The thing is, I know I am already considered 100% P&T. I know I may get a schedular 100%, but I don't know if it would effect my P&T status. I know the additional schedular ratings would not increase my monthly compensation amount, but the two SMC awards would. However, I don't really need the extra money, since we are doing fine right now. My main points for wanting to do this is 1) I have legitimately earned the ratings, and feel I should be compensated for them, and 2) I want to have the digestive system, liver abnormalities, and GERD SC'd, because any one of them could turn into a life threatening condition down the road (should I die of a SC'd condition my family would still have some benefits).

My head is telling me to file these claims for the main reasons I just stated. My gut is telling me that I am currently off their radar screen and will be for a long time because of the OIF/OEF vets filing their claims, and the enormous backlog of claims that the VA is currently dealing with. Knowing that, my gut says to let sleeping dogs lie until they wake up on their own. In other words, my gut is saying when the VA decides that they didn't really mean P&T when they put it in writing, and call me in for a C&P, I could file the claims then. What do you guys and gals think? Go for it, or leave it be?

[Capt.]

Hello Carlie,,,,, I probably deep down would not want them messing with me at 100 percent anything ,,,,,but I am SO ANGRY at the VA and the recent reports from Bergman and Moore on the amount of remands from ALL regional offices. I am livid and am wanting blood coming out of their ears. You know what I mean . I also want Shane to be taken care of because he is one of the good guys they have tried to mess with and he has really gone down hill fast. I also met with a group of Wounded Warrior Vets and it was sad to see what the VA and the DOD Med boards are trying to do to some of these guys . Makes me want to throw up.

Yes your right ,,, stress is a killer and most of us don't need any more than what the VA would dish us out but then again if all of us don't get ahold on these VA regional office folks no one is going to be left to stand within the timelines. I still believe Shane does have a fight and would rather see him get the schedular over the TDIU.... ...... I think you might agree with this even though you have stated to leave the GIANT alone and don't kick it. I used to feel that way but now I am on the fence with that for the moment. Anyway you provoke meeeees to alot of thought....... and maybe my suspicions on the VA and its wickedness should try and calm down.....

Ok ,,, I think I feel better so ................NEVER GIVE UP.......and I won't either ...God Bless, C.C.

Edited June 12, 2012 by Capt.Contaminate

[john999]

Bradley vs Peake is the decision you want to examine for the total plus 60% for a "S" award. I was 70% when I got total. Some years later back in 2008 I got an extra 60% for a AO DMII secondary claim. Teac and Phil began to talk about Bradley v Peake and I tought about it for a few days and I filed. I was actually 90% at the time just like you including the 60% rating for a single issue. I have the rest of my life to fight with the VA. I have a CUE that is 6 years old and I intend to fight that baby to the supreme court if my lawyer will go there with me. The VA cheats many thousands of vets out of money so we are just making a small dent in what they owe. I don't think they are going to go back in your case and refight all those ratings. I have 7 different ratings myself. You can take that 400 bucks and put it right in the bank when you win.

John

[broncovet]

Yes, but, That sleeping dog can wake up and bite you even if you never say a word.

While submitting other claims can" wake up the dog", that dog will be woken at 10, and 20 year periods because the VA likes to check and make sure they can reduce you before the period expires. That is, the dog can wake up, even if you dont utter a word. That dog can "smell" you.

While I cant deny that some dogs have been awakened by Veterans submitting more claims, I think its also possible the opposite is true.

Hypothetical example:

You got SC by the hair of your chinny chin chin. You apply for something else...then it gets the typical denial and then onto DRO..BVA...CAVC etc. Remember it is the RO who reduces you...the BVA wont grant you less benefits than what the RO awarded. That is, the BVA does not do reductions the RO does.

So...in the 3 or 4 years your file is at the BVA..can the RO reduce you? Probably not easily. Why? Remember the RO is on a "paper" system with only one copy of your C file. So if your c file is at the BVA its NOT at the RO to do a proposed reduction.

[carlie]

For the record - my post is not suggesting for veterans/claimants

to not file more claims.

My thoughts and posts by history are clear.

Hammer them into the ground to get the best deal you can

with your evidence.

But once you start hitting the top of the totem pole - use a great deal

of caution and be very aware of what you are doing -

we already know what va can do.

Point to be made - without being evaluated for a continuous 20 years

for a disability at a certain percentage - - - all bets are off

and the VA continues to hold the power

on their scales.

[rentalguy1]

Thank for all the input. It is a lot to think about, for sure. At this point, I not only know what it takes to win claims for myself and others, but I know how to do it in their own language while I am cramming their own laws, precedents, rules and regulations down their throat. The one DRO review that I had to attend, the reviewing rater asked which RO I used to work for. When I told her none she asked where I earned my law degree. I said nowhere.Then she asked how on earth I learned so much about how the VA operates and the medical conditions that I had. I told her that it would be wise for the VA to not send a vet to college to earn a degree in communications, and then piss him off. The army taught me how to get appropriately pissed off, and then take offensive action in order to secure the objective. The education taught me how to research any subject known to man, and then write about that research in a way that educates the reader or listener. It is a win/lose when I file a VA claim. I win and they lose. I know that sounds cocky, but I can back it up. There's more than a few members on this board that can back this claim up.

Make no mistake, I am in no way scared of waking the dog. I just don't know that I have the fight left in me to pursue what would come next. What I do know is that I don't feel well, and it gets worse every month. I'm having near constant chest pain and shortness of breath that we have determined is not cardiac/respitory related. It could be from the GERD, but not in the location it currently resides. The pain is to high and localized. My liver enzymes are out of whack, and have been since not long after starting the opiods. I have the medical records to prove that the condition (drug induced hepatitis) is there. I just don't have a written nexus yet. That is a hurdle I'm not concerned about, because I know I can get it. This condition can and often does lead to cyrhosis, which can and does kill people. I also know that my chronic and worsening GERD, which I am now barely able to control while on high doses of two different drugs, was caused by the decades of taking NSAIDs. I have a nexus for that one. I know that condition leads to Barrett's Esophagus, because I watched my brother go through the same exact thing (and the medical literature states so). I also know that Barrett's Esophagus can and does lead to esophageal cancer, which is a death sentence. I also know that chronic gastritis not only ruins what little quality of life I have left, but that it is also a precursor to various digestive cancers, which can kill you. I know the stomach problems all come from my IVDS nerve damage and the medications I have to take in order to put one leg shakily in front of the other.

Carlie is right, and she always has been. I am very near the top of the totem pole, and they can decide at any time to knock me down. Given that I know the current states of all of my medical conditions, and what each practitioner has had to say about them in my records, I am not worried about a proposal to reduce. I know that it would cause a lot of undue work on their part. I know that when they open my volumous C-file that they will see they are not dealing with a normal vet, but one who knows their games and is comfortable fighting on their level using their own weapons against them. Should a new claim on my part still make them take the decision to review my current ratings, I know how to fight back against that process as well. I have had numerous C&P exams, and I know how to handle them. I agree with your statement about all bets being off if you are under the 20 year mark, But just like broncovet says, "That sleeping dog will wake up as soon as he is ready, whether I am or not." I think I'd prefer to be ready by throwing the first punch. It woud be one of my typical first punches, though. It would include every scrap of evidence that boosted my claim, and every regulation and law that they have to follow in order to adjudiate. I've always filed my claims by telling them "This is what is wrong with me - with documentation to back it up, this is when it happened to me - with documentation to back it up, and this is how the two are tied together - with medical documentation to back it. Then I also send in all the pertinent regs, laws, BVA opinions, and CAVC opionions - each marked up with a highlighter so they don't have an excuse for not seeing it.

My wife has been with me every step of the way in my fight with the VA. We took a breather for a few years, and now that I have most of the documentation I need to win, I think it is time to move foreward. I have this sense of duty to my family to get the possible life threatening stuff SC'd, so that when it kills me a few years down the road she can still count on survivors benefits. Therefore I feel like a need to get these conditions SC'd, even if they would be currently at a 0% rating.So, if I am filing those three claims, and it might wake up the sleeping dog, then I might as well file for the S and K awards. Since that increases the chances of wakig up the dog even more, then I might as well go all in, and file the new claims for the shoulder, the hip bursitis, and the left sciatica, and the increase for the right sciatica/foot drop.

Like it was said, the dog may wake up anyway at any time, so why should I wait until I am possibly in such a condition that death would be near? I'm just unsure if I lack the stamina to follow it through all the way to the end. Maybe I should start out by gathering all the records, obtain the definitive nexus statements that I need, and writing the claim request. I know you guys will expect to see a 10 page claim letter, and I can't let you down, lol.

/

[rentalguy1]

rental - I don't know that I would count on that fl, in your situation and current evaluation for ivds.

I'm not following your line of thinking on this. Please elaborate. The way I am reading the CAVC precedent:

Bradley v. Peake, 22 Vet.App. 280 (2008) The provisions of 38 U.S.C. § 1114(s)

do not limit a “service-connected disability rated as total” to only a schedular 100-

percent rating. A TDIU rating may serve as the “total” service-connected

disability, if the TDIU entitlement was solely predicated upon a single disability for

the purpose of considering entitlement to SMC at the (s) rate

means if my TDIU award was based upon a single disability, then that becomes the "total" disability when evaluating for a S award. In my claim, I stated that I had several ratings, and the mimial 40%/70% required for the TDIU award, but it was the IVDS that made me unemployable. That is what was printed in the decision letter.So the way I read it, the IVDS would count as a 100% rating, and teh Nerugenic bladder rating of 60% is what would make me eligible for the S award. If I'M reading it wrong or missing something, please let me knwo.