ptsd Would Tdiu Being Deferred Be A Cue?

[thomasc]

I could really use some direction, just really confused and tired of being patient! So I think I might have a CUE.

July 2010, I was awarded 70% PTSD, 30% GERD, 10% ankle = 80%. I asked for an increase in PTSD and GERD and VA logged it as an appeal.

April 2011, I submitted for TDIU using 8940, turned in supporting evidence from Voc. Rehab (Oct. 2011), mental health doctor letter(Oct. 2011), SSA Award(Nov. 2011).

Feb. 2012, I receive a letter stating that Entitlement to Individual Unemployability is deferred because additional information or evidence is needed, IU will be address after appeal issues are decided.

May 2012, VA sends me a letter stating that my IU and appeal are intertwined. My VSO recommended withdrawing the appeal so IU could be decided, and so we did this.

Oct. 2013, receive rating letter with PTSD 70% staying the same, GERD 30->60%, no mention of ankle increase, with a denial of TDIU, because "I have not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities." I guess the good news is VA paid me for my time at PTSD inpatient.

So its hard to know were to start my questions exactly, but it seems that VA was wrong to defer TDIU when they had all the evidence needed to make a decision. Could I CUE this using Rice V Shinseki as this should not have been a separate claim for benefits but an entitlement? Does the VA think SSDI is a gainful occupation? My rating letter made no reference to SSA award but has it in evidence section.

I keep thinking asking for an increase(appeal) and TDIU should not have intertwined, but just another VA delay tactic.

I've been trying to find FL 08-06 (feb 27,2008) as it is referenced in TL 10-07 section The Rating Decision and explains resolving deferrals.

Thanks for reading and any advise would be greatly appreciated.

Edited January 15, 2014 by thomasc

[jbasser]

TDIU is treated as a claim for increase.

You should file a NOD and get an attorney to help you.

The Enemy doesnt care about you or you or your claim. In the appeal process, at least legal precedent starts to take over but it really doesnt kick in til it gets to the court.

J

I could really use some direction, just really confused and tired of being patient! So I think I might have a CUE.

July 2010 I was awarded 70% PTSD, 30% GERD, 10% ankle = 80%. I asked for an increase in PTSD and GERD and VA logged it as an appeal.

April 2011 I submitted for TDIU using 8940, turned in supporting evidence from Voc. Rehab (Oct. 2011), mental health doctor letter(Oct. 2011), SSA Award(Nov. 2011).

Feb. 2012 I receive a letter stating that Entitlement to Individual Unemployability is deferred because additional information or evidence is needed, IU will be address after appeal issues are decided. May 2012 VA sends me a letter stating that my IU and appeal are intertwined. My VSO recommended withdrawing the appeal so IU could be decided, and so we did this.

I heard nothing till Oct. 2013, and received PTSD 70%, GERD 60%, no mention of ankle increase, with a denial of TDIU, because I have not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. I guess the good news is they paid me for my time at VA inpatient for PTSD.

So its hard to know were to start my questions exactly, but it seems that VA was wrong to defer TDIU when they had all the evidence needed to make a decision. Could I CUE this using Rice V Shinseki as this should not have been a separate claim for benefits but an entitlement? Does the VA think SSDI is a gainful occupation? My rating letter made no reference to SSA award but has it in evidence section.

I keep thinking asking for an increase(appeal) and TDIU should not have intertwined, but just another VA delay go away and forget your claim tactic.

I been trying to find FL 08-06 (feb 27,2008) as it is referenced in TL 10-07 section The Rating Decision and explains resolving deferrals.

Thanks for reading and any advise would be greatly appreciated.

r c

[carlie]

Are any of the conditions you were granted SSDI for - non SC'd conditions ?

Also, this is not ripe for a submission of CUE.

[Berta]

“My rating letter made no reference to SSA award but has it in evidence section. “

Is the SSDI award solely for established SC conditions?

Did the VA obtain your Voc Rehab records ?

Did Voc Rehab state that your SCs render you unable to continue Voc Rehab?

“mental health doctor letter “

Did that letter specifically state that your SCs render you as unemployable?

I looked for that Fast Letter earlier and could not find it anywhere (FL 08-06 )

However the VA MUST comply with M21-1MR.

This link should take you to the VA's full gamit on TDIU claims.

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CDkQFjAA&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart4%2Fsubptii%2Fch02%2FM21-1MRIV_ii_2_secF.doc&ei=nU7QUpuaCcfrqQHLzYCYAg&usg=AFQjCNFmeGPdrTzYzXbz0XLQlN_kUwGdFw&bvm=bv.59026428,d.aWM

Did they support their rationale as to being employable with any statement at all?

You might have the basis to ask them to CUE themselves on this decision.

However, “Could I CUE this using Rice V Shinseki as this should not have been a separate claim for benefits but an entitlement? “

I would think the decision will reveal where the CUE is.

It might be a violation of 38 CFR 4.6. Hard to say yet....

Are you able to scan and attach the decision here and include the Evidence list they used?

(Cover your name,address, C file # before scanning it.)

If SSDI is awarded and the award contains any reference to a NSC condition as part of their SSA decision or if Voc Rehab records do not specifically say the veteran's SC's rendered Voc Rehab infeasible, those pieces of evidence can be very problematic for TDIU. Actully they would be useless for TDIU.

However if your MH doctor stated unemployable due to SCs,with a medical rationale , that should hold great weight.

“mental health doctor letter” was this a VA doctor or a private MH doctor...and what did the VA state regarding this letter and what did they say about the C & P exam results?

Do you have a copy of the TDIU C & P examination results.

Did they refer to the inhouse PTSD program records at all ?

I am surprised that they considered you as totally PTSD disabled for the inhouse program, yet still denied TDIU (although that can happen)but seeing the actual decision will help us more, to help you.

The M 21-1MR link will have some court citations in it I'm sure.

Rice V Shinseki is a good case but they might have crapped on your rights here in a different way and the decision and evidence list will tell us more.

http://38uscode.com/Courts/VetCourt/2009/Rice-1445.pdf

Edited January 10, 2014 by Berta

[Navy04]

Thomas,

Sorry to hear you have too many troubles with the VA as we all do. I have Crohn's Disease and bad GERD. How did you get the VA to up your GERD? My GERD is so bad that I have to have an Endoscopy along with my Colonoscopy every time. I am currently at 30% for Crohn's and GERD connected together, which I think is crap. Thanks in advance

[john999]

Do as John has suggested and get a lawyer. The VA defers stuff all the time. No CUE that I see. What was in the appeal you dropped? Dropping appeals usually bites you in the A**. This suits the VA.

[thomasc]

Wow, thanks for the fast replies! I went down to regional VA today and got a copy of FL 08-06(Feb 28, 2008) along with a couple old denial letters. I was in the habit of just shredding denied ratings, but now realize they are a tool to be used. Well when waiting I noticed that the date of the claim was off by a year, should have been a year earlier. I couldn't believe I hadn't notice, and asked the VA representative "what's the best way to fix this?" She said "ask for an earlier effective date." Does this sound right?

I have attached:

• the VA evidence list
• the VA narrative used to deny my IU
• FL 08-06 Feb. 28, 2008

My SSDI award was based solely on my service connect disabilities. My VA Psych. Doc. wrote a letter stating my unemployability. Voc. Rehab kicked me out of the program said I missed appointments, but I was never notified.

Thanks

Edited January 15, 2014 by thomasc