tdiu Tdiu/iu/unemployability

[Veldrina]

....or whatever u wanna call it. We've received Fast Letter 13-13, which states that VA will no longer presume a claim for IU is a claim for increase in ALL s/c (service connected) disabilities. From now on you must specify which of your condition(s) is causing your unemployability AND you must submit a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. If you do not submit a completed & signed form, we are denying your IU. If you do not fill in which of your disabilities is causing IU or otherwise identify which ones (whether on a separate paper or VA Form 21-4138 Statement in Support of Claim, we are denying your claim. Just figured I'd give u all a heads up. I've included the actual Fast Letter, but figured I'd put it in "English" first.

[john999]

Remember that just because you meet schedular requirements for IU, and fill out all the VA forms the VA may still dispute your claim for IU. I had 70% for one disability, and the VA denied my TDIU the first time saying that my SC disability was not the true reason I was unemployable, but that my reaction to pain medications were the reason. That took another IMO to get fixed and another 9 months with the DRO.

John

[VetFamily]

Oh my gosh. This maybe explains why my husbands TDIU claim was just denied.

The VA only considered one sc issue in the decision we got today. He has multiple sc conditions totaling 90% per VA math. Because it was denied before this time we even sent an IMO saying his combined conditions make any work impossible - VA cherry-picked the part about his back in the denial.

VA said his lower back injury does not prevent him working a sedentary job with nothing said about the other injuries that DO prevent sedentary work in the IMO. We had to scrape for months to pay for that IMO and all for nothing.

Because we thought a claim for TDIU meant ALL sc conditions would be considered we did not list them all on the form - we never did before. There is not room in that tiny box! They used the one we listed - his back. Our VFW service officer said this was fine and all would be considered anyway. We filed a year before this letter came out.

We thought we were so careful to get it all right this time. But we have been through 15 years of denials and appeals to get where we are. I never have known VA to just approve anything the first time. Now more years of appeals. We are getting a bit old to keep fighting the VA - they are gonna win by attrition pretty soon!

This is so disheartening.

[Berta]

Can you post the Reasons and Bases of the decision here? (cover the name,address and C file number if you can scan and attach it here)

We need to see what the VA said about the IMO.

"VA said his lower back injury does not prevent him working a sedentary job"

Was that in a C & P exam he had for the back or did they make it up?

Is the back a SC now? or is there a question as to the nexus of the back injury?

[VetFamily]

I do not have a scanner at the moment but I can transcribe what it says exactly.

Current combined disability ratings and date service connection granted:

Bilateral hearing loss 10% 1998

Scar right knee 0% 2013

Right knee instability 10% 2011

Tinnitus 10% 1998

Right Elbow Tendinitis 10% 1998

Left Elbow Tendinitis 10% 1998

Residuals of discectomy of right knee 10% 1998

Residuals of anal sphincterotomy 10% 1998

Skin Rash 30% 2012

Lumbrosacral strain/degen. Disc disease 40% 1998 (increase 2011)

Bowel leakage 50% 2009

Total compensable rating 90%

The rating decision for TDIU says:

=Begin=

"The claim for individual unemployability is considered reopened. Entitlement to individual unemployability remains denied because the evidence does not show that the claimant is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.

We have considered but denied entitkement to individual unemployability. Individual unemployability is granted when a veteran is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. A review of your 21-8940, Application for increased compensation based on unemployability shows that you indicated that lower back disability prevents you from substantially gainful employment. A review of the documents that you submitted shows your history of back pain and treatments with the recommendation in 2000 for physical therapy which the examiner stated you would benefit from. The vocational evaluation dated December 2010 from XXXXXXXXX M.S, C.V.E. shows that in his opinion that a combination of your service connected disabilities would prevent you from engaging in substantial gainful employment.

A review of your service connected disabilities examined shows the examiner stated you could perform other work not needing fine control based on the elbow and forearm exam. The knee and lower leg exam shows the examiner stating may be fine for work in which he is sitting. The examiner showed no impact on your ability to work as a result of your back disability.

A review of your current disabilities based on the exam results shown some improvement in your lower back, left elbow, and your hemhorrhoid disability, the improvement does not warrant a reduction at this time as the disability has not shown continued improvement however based on the evidence service connection for individual unemployability is is denied."

=end transcript=

That is the pertinent part. They never mention the 50% bowel leakage or the 30% skin rash in their decision, or tinnitus/hearing loss. Before they always looked at everything.

The physical therapy they mention in 2000 for his back? He did that for 6 weeks, it caused his pain to be 10 times worse and he stopped, then spent 9 days off work on bed rest. They somehow skipped that part and it was in that same evidence.

The QTC examiner who did the exam in October is a Family Practice doctor at our local clinic. He asked about tendinitis in both arms, back pain, knee pain and examined the knee scar. Had him sit, bend, stand. No measuring devices used. An x-ray of his back was taken. We do not have a copy of the exam.

The QTC examiner in did NOT perform a physical hemorrhoids exam - he asked about hemorrhoids and was told "Yes, they are constant and some days worse than others. Some bleeding on bad days." He made a note and said "OK, that's it." I was in the room with them.

I have accompanied him to dozens of QTC exams over the years and this one was a joke.

No idea where this "recent improvement" idea is coming from. The primary care doc at the VAMC just sent 8 more boxes of hemhorrhoid medication after his exam in September, re-did his prescriptions for pain meds and muscle relaxers for his back. He mentioned no improvements. Just picked new, stronger hearing aids last week.

This whole thing confounds me. I have seen a lot of ratings decisions over the years but never one like this. So frustrating.

Thank you for trying to help me figure this out.

[bhoward422]

....or whatever u wanna call it. We've received Fast Letter 13-13, which states that VA will no longer presume a claim for IU is a claim for increase in ALL s/c (service connected) disabilities. From now on you must specify which of your condition(s) is causing your unemployability AND you must submit a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. If you do not submit a completed & signed form, we are denying your IU. If you do not fill in which of your disabilities is causing IU or otherwise identify which ones (whether on a separate paper or VA Form 21-4138 Statement in Support of Claim, we are denying your claim. Just figured I'd give u all a heads up. I've included the actual Fast Letter, but figured I'd put it in "English" first.

I did it to the letter in which you are stating read my post!

> Mr. Howard:

> eBenefits is a portal that pulls data from one main system the VA uses.

> Unfortunately, because this only has the capability of generally reading one

> system (and the VA uses multiple systems for tracking information),

> eBenefits can reflect incorrect or outdated information or sometimes. After

> reviewing your file, it is determine that we have, in fact, received your

> 5103 waiver (VCAA response) along with additional medical records. However,

> this was not updated in one of the systems used by the VA which is,

> unfortunately, why eBenefits reflects otherwise. On 10-11-13, the VSR

> assigned to your case reviewed your file and determined we have all

> necessary evidence from you for a decision. Therefore, the file was sent to

> the rating board for review.

>

> Although eBenefits can be quite informative, unfortunately it is also a tool

> in its infancy and is regularly being updated in order to reflect the most

> accurate information. Therefore, if anything is conflicting on this site,

> please feel free to call 1-800-827-1000 where an agent can review more

> specifics regarding your file in order to provide clarification.

>

> I hope this helps! so explain this one I did exactly what exactly you have stated I have done it to the letter now my claim was at the rating phase now it has gone back to Gathering of Information phase.

Claims Status Process

Skip the Claims Process and go to the current phase.

Claim Received

Under Review

Gathering of Evidence

Review of Evidence

Preparation for Decision

Pending Decision Approval

Preparation for Notification

Complete

Change of Status: We determined that your claim needed additional review. If additional evidence is needed from you, you will receive a letter from us explaining what is needed.

Edited November 11, 2013 by bhoward422

[Veldrina]

^ Things can be yanked from "ready to rate" status if they deem something is missing. That something could be a number of things, from some development that wasn't done to an examiner not giving an opinion on something. Considering the huge bottleneck we have right now with exams, esp. QTC exams (i have a newfound hatred for them), I'm putting my $$$ on an exam screw-up.