ptsd Advice On When To File Tdiu Please?

[Quint7]

Here is my situation:

Currently rated 90%- 70% PTSD, 40% spinal fusion/DDD/IVDS, 20% right knee, 10% radiculopathy.

I am 42, a firefighter and have had to have 2 meniscus repair knee surgeries on the SC knee in the past year after falling down the stairs at a fire. That is on top of having the same operation in 2006 after another work related injury. That earlier injury led to my knee being moved from a 0% rating to 20%. Things haven't gone well recovey-wise and the doctors have determined that i am not and will never be able to return to firefighting because of the knee, especially when combined with having a spinal fusion. They also diagnosed a cartilage tear in my hip this week that is most likely from the fall last summer. Today I met with my Union's lawyer to file for a performance of duty disability pension with the state. That process can take up to 18 months during which I will continue to be paid as I am now (tax free, directly from the fire dept. as we do not have workers comp for firefighters in NY) and when the pension is approved it will be the state paying me directly.

My lawyer originally said that considering my age and the infamous MAY contained in the line "with treatment the patient MAY be able to sit at a desk and do some walking but cannot return to the rigorous duty of firefighting" that is in the letter from the knee specialist Social Security will give me a hard time even though law in NY will prevent me from collecting any form of pay once the pension is approved (it's in the NY constitution, a whole other cluster-f). The fire dept most likely won't contest the pension application and assuming it is approved I will be legally prevented from having any form of employment unless I forfeit the pension (again, a state constitution thing) so in my mind it is time to file for TDIU. My lawyer said that my VA rating might change the game as far as Social Security since a realistic expectation of retraining and reemployment would have to be weighed against my PTSD and spinal fusion. The fact that NY state law will prevent me from being employed doesn't matter to them he said (and yes, this is a good lawyer, best in our city).

My question is when to file. I have the letter saying I am done firefighting, my pay is 100% tax free so therefore not 'income' according to the state and feds, but there will be a chance during the process that I can be forced into a light duty position (to break my stones...... it's a city budget/numbers for the mayor thing) where I would then go back on the books and be made to sit in what is basically a 'time out" room at the fire dept HQ until the pension is approved. That scenario is unlikely but is real enough to be a consideration to me.

I currently have claims in for temp 100% after last year's knee surgery (July 2011) and another in for temp 100% for this years surgery (the one resulting in me being declared permanently unfit for duty). My C file is at the BVA and that is the excuse I've been given for the delay processing the original claim ('we need to get a temp C file from BVA'). I think I should immediately send a letter requesting that my last claim for temp 100% be amended to be a claim for TDIU from the date of the last surgery (April 2012) and list the doctor's statement along with my other ratings as the reason. But part of me says I should wait for everything else to shake out and then file for TDIU with a effective date of this year's surgery once the state approves me.

I know VA is slower than the Mars rover and financially I am not in dire straights so there is no rush on that end, but after the fiasco VA has been with my other claims I have to think that sooner is better. I just don't know what the ramifications could be if the fire dept decided to mess with me and put me back to light duty after I apply for TDIU or worse, after I'm awarded 100% (they can lean on the docs to do what they want instead of what is best for the patient.... politics ya know).

I don't know if that makes sense but I do know there is no better place to seek out the info I need than here.

Thanks in advance for any replies.

[john999]

File for TDIU today unless you can do it yesterday! If you are unable to work file for TDIU. I filed when I was fired from the post office. I had just a 30% rating. I did not listen to all the people who told I could not do it. Within a year of being fired I had a disability retirement instead and was on SSDI. I also had a new rating of 70%. My TDIU went back to the day I filed back when I was just 30%.

John

[Quint7]

John thanks for the reply. Like I said, I also think I should apply now. I know it will take forever (a year? Who knows) for a TDIU claim to go through, I just don't know what the ramifications could be if I get approved and suddenly start getting a regular taxed paycheck for however long if they break my stones. I've been off duty for the most of the last 13 months, with only about 4 1/2 months total of work over that period of time (including light duty) and that was when I originally tried to return to work after the 1st surgery last October (about 4-5 weeks then light duty for December) and in the beginning of this year (mid-January til I went off for good at the end of March) when they hoped a cortisone shot would keep me from needing the 2nd operation I got in April.

[#1Cavtrooper]

I filed for IU when I filed my original claim on 1/23/2011. I was awarded on my claim on 5/16/12 and the IU was one of 4 contentions deferred pending exams, which I had on 7/31/12. So what I'm getting at is....... If you fit the criteria for IU, you should file ASAP!

[rpowell01]

It kind of feels they place TDIU claims at the bottom of the list over regular/increase claims. Even if you have all evidence in and even signed the 30 waiver I don't understand why it takes so long on a TDIU claim. Crazy if you ask me. I think there should be a timeline that is mandated by the courts. I find it appauling someone should wait over a year for a decision.

[john999]

One thing to consider is that the VA knows that once you are rated TDIU you will probably never work again and you will eventually get P&T. Your spouse and children will have benefits. Your spouse may get DIC for life and your dependents get ChampVA. This is expensive and the VA knows it.

[Quint7]

One thing to consider is that the VA knows that once you are rated TDIU you will probably never work again and you will eventually get P&T. Your spouse and children will have benefits. Your spouse may get DIC for life and your dependents get ChampVA. This is expensive and the VA knows it.

I agree 100%. Some administrator (not that all administrators are bad) decides that he/she is being the heroic public employee by saving the gov't money by denying a benefit, but by doing so they are violating not only the law, but the oath of office they took when they agreed to the job. I have been active in my union since my 1st day in the fire dept and it still amazes me that we the people have to constantly fight to protect the definition of the word 'shall'.