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Anyone More Familiar With This Section Related To Tdiu?


Ethan'sGrandma

Question

Can someone please help me decipher what a section in CFR 38 (4.16) refers to in a more clear sense than what I am reading? In 4.16 section, it states: "...It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgement of the rating agency such service-connected disabilites render the veteran unemployable..."

This entire TDIU opinion by a doc has complicated my claim and VARO looks at nothing else but an opinion given. Is a C&P examiner's word the final word, even if it does not fit, but made to fit? Does it matter if the examiner was not a mh specialist and noted to vet that he was not qualified to opine on TDIU for mh, but he went on and opined anyway, using a whole another diagnosis in his opinion? Gosh, this became more of a mess than it already was in my years of fighting with this claim. He did not allow my mh service-connected condition for his opinion on TDIU for that. Then, the physical condition that was service-connected, his opinion was that I could still do "sedentary," work, but it is clear from reading his report that his examination did not consider all aspects of the condition which would negate what the definition of "sedentary" work is for from the rules for SSA and Dept. of Labor, but I could not find the rules for VA for sedentary, but am surmising they are the same.

Today I received part 1 of what I expect there to be a part 2 for my claim since after sending more medical evidence to VSO (some of which was missed by C&P examiner) regarding physical condition which was submitted to VA on my behalf with a request for reconsideration, I am adviced that VARO has accepted and changed the rating decision. The information I've received is that schedular 100% was arrived at and approved. However, that being for a much newer claim that was submitted by me, the retro from the older claim (the TDIU that was inferred in prior decision) will be lost, unless the effective date can be successfully appealed. That is what has me stumped because I don't see that happening, realistically, since it was for different claim dates to begin with. I am awaiting my follow up notice as it is in preparation for decision stage in ebenefits which has corresponded with correct info. for my claim thus far.

This is all seeming too convenient, but it is what it is, and the way that it's been decided. So, I am wondering if anyone has come across similar situation or is more knowledgable about that section in 4.16? My claim still has appeal time left on it, but I would like to be more aware, if I could, before deciding on how to proceed with this development. There is one more evidence item that may/may not work for me to request a reconsideration on which I am to pick up tomorrow from the clinic. It's already in the medical file, but it does not appear to have ever been viewed/considered by VARO or examiners to date. My ratings thus far: 70% for mh; 40% for diabetes; 20% each for bilateral upper and lower neuropathy; and 10% for headaches. The examiner opined on the diabetes/neuropathy for the sedentary opinion, not making note of all effects with the condition, but my concern is that he made no allowance for the s/c mh condition at all, sort of rearranging all diagnosis to fit an opinion. This has happened to me before with an inadequate exam which was successfully challenged and another C&P was scheduled with more attention to detail by examiner, but it seems mindless for this to be happening again.

Today's notice also has wrong information under "evidence" which I wondered what that is about. It has me down as having had a C&P for review of PTSD and headaches, but those were not part of the C&P exam that I was scheduled for, nor the date. The dates are not even jiving, but there never were scheduled exams for the noted date, either. I copied the appointment from online access to prove that, but I don't know where they obtained and used that information that does not apply to me, but is noted as part of the evidence.

So, if anyone has any idea, can you please share? Thank you very much...truly appreciated!

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Many of us have been there before. It sounds like you have a "negative" (unfavorable) C and P exam to overcome.

An unfavorable exam can be overcome, but only with other medical opinions, not "lay opinions".

To overcome this, you need another "favorable" exam. There are 3 ways to get this.

1. You can try contacting the examiner and ask him to change it, pointing out his error. I dont expect that one to work except in rare circumstances.

2. You can ask for another doc, and see if another Va doc will offer a more favorable opinion. You arent supposed to " doctor shop" for medical opinions, but if you sincerely dispute this docs opinion/qualifications, then you may well need a second medical opinion to win your claim.

3. You can get an IMO/IME but you will likely have to pay for these.

You will need to appeal, file a NOD and state why you dispute the examiners opinion.

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