tdiu Tdiu Claim Questions

[pdepalma]

I recently applied for TDIU after the VARO sent me the paperwork to fill out of their own accord. What I am curious about is why no two people at the VA or DAV seem to be able to agree on eligibility.

DAV says I am definitely Eligible.

The Benefits Counselor I sat down with at the Satellite of my Regional Office tried to tell me that I was not.

I am currently 70% and have a reconsideration in because I dont feel my claim was handled properly. I will explain more on that in a moment...

My rating breaks down as follows:

20% Rt Knee (Post OP Reconstruction DJD)

20% Neuropathy Rt Lower Extremity

20% Rt Ankle Partial Paralysis

10% Left Knee

10% Left Ankle

I wear a brace on my right leg that locks my leg at 60% so that I don't fall when my leg quits on me. I also walk with a cane. These are both VA Dr. Prescribed.

I had also claimed my Back due to a T-8 Compression Fracture and Spinal Contusion but they denied it because XRays had not initially revealed it even though I was complaining of pain all along. Several Years later they performed an MRI and discovered the Fracture...that was 2005. the Spinal Contusion and Spinal Cord Damage wasnt discovered until last year when a Dr actually finally tested me for it.

This last claim jumped me from 20% all the way to 70% but what surprised me is that they SC all of this even though its caused by the back injury BUT...they denied the Back for SC. Go Figure...

ALL of my SC is in my Lower Extremities which, to me and to the DAV Officer, satisfies 38 CFR 4.16 Part 1 yet the VA's Benefit Counselor tried to tell me that my Neuropathy disqualified me because its not an actually disability of the lower extremity. (I will clarify the VA's Counselor was extremely arrogant and worked overtime to convince me that he knew everything there was to know about...well. EVERYTHING!)

This makes no sense to me because the wording on my award letter is precisely...and I quote "Service Connection for Neuropathy, Right Lower Extremity is awarded..."

So I would like the input of any of you other Vets who have been thru this process...

Bottom Line, I cannot Sit longer than 30 min without searing neuropathic pain and spasms in my right leg and cannot stand for than 15 min or so without extreme discomfort (pain, instability, etc) in my right leg. This doesnt include the damage to my back that has me permanently wearing a TLSO Brace (Full Torso Back Brace) and nauseating back pain that sets in after about 10 minutes standing. The Back Claim is currently being reconsidered.

The only relief I get is laying down flat on my back for around 2 hours. Its a heck of a way to exist...And I have not been able to work since 2005

So my Two Questions are:

1) In your Opinion...does my rating satisfy the requirements for TDIU

2) For those who have gone thru this process, Please give your opinion of my chances...and fill me in on what to expect as the process unfolds...

And I thank you in advance for your input and advice.

[stillhere]

If you see yourself in the below description then yes you should be IU. Stillhere §3.340 Total and permanent total ratings and unemployability.

(a) Total disability ratings—(1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

(2) Schedule for rating disabilities. Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met.

(3) Ratings of total disability on history. In the case of disabilities which have undergone some recent improvement, a rating of total disability may be made, provided:

(i) That the disability must in the past have been of sufficient severity to warrant a total disability rating;

(ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and

(iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation.

(b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence.

© Insurance ratings. A rating of permanent and total disability for insurance purposes will have no effect on ratings for compensation or pension.

[26 FR 1585, Feb. 24, 1961, as amended at 46 FR 47541, Sept. 29, 1981]

[stillhere]

And this set of laws/rules:

§4.18 Unemployability.

A veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. With amputations, sequelae of fractures and other residuals of traumatism shown to be of static character, a showing of continuous unemployability from date of incurrence, or the date the condition reached the stabilized level, is a general requirement in order to establish the fact that present unemployability is the result of the disability. However, consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability. Where unemployability for pension previously has been established on the basis of combined service-connected and nonservice-connected disabilities and the service-connected disability or disabilities have increased in severity, §4.16 is for consideration.

[40 FR 42536, Sept. 15, 1975, as amended at 43 FR 45349, Oct. 2, 1978]

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Stillhere

[Philip Rogers]

38 CFR 4.16(b) covers you, provided you are unable to work due to your SC disability(s). The VA often quotes 4.16(a) as a means to mislead claimants. They used this tactic on me many yrs ago and I almost fell for it. Go get 'em!!!

pr

[Berta]

"! had also claimed my Back due to a T-8 Compression Fracture and Spinal Contusion but they denied it because XRays had not initially revealed it even though I was complaining of pain all along. Several Years later they performed an MRI and discovered the Fracture...that was 2005. the Spinal Contusion and Spinal Cord Damage wasnt discovered until last year when a Dr actually finally tested me for it."

Was the X ray done by the VA?

"discovered until last year when a Dr actually finally tested me for it."

Was that discovery done by a VA doctor or a real doctor....

When did they actually start treating the back problem? Last year?

You might have a basis for a Section 1151 claim here.

"This last claim jumped me from 20% all the way to 70% but what surprised me is that they SC all of this even though its caused by the back injury BUT...they denied the Back for SC. Go Figure..." ???? yeah.....strange

But the VA is incapable of 'connected the dots' . Maybe the C & P examiner did.......

"This makes no sense to me because the wording on my award letter is precisely...and I quote "Service Connection for Neuropathy, Right Lower Extremity is awarded..."

Your VA counselor sure needs to get up to speed.

"1) In your Opinion...does my rating satisfy the requirements for TDIU"

YES! If solely due to the SC conditions, you cannot work.

Do you get SSDI and if so is it solely for SC conditions? SSDI is prime facie ecvidence for TDIU....if awarded solely for SC disabilities.

So is Voc Rehab if VA Voc Rehab ever turned you down for VR solely due to your SC conditions.

On the TDIU form make sure you tell them of any SC meds you take that would prevent or hinder employment.

The drug printouts will show what side affects the meds have....like Do not take and drive, can cause confision ,drowsiness, etc etc.

"2) For those who have gone thru this process, Please give your opinion of my chances...and fill me in on what to expect as the process unfolds..."

"The Back Claim is currently being reconsidered."

Good!!!!! but do not allow the VA to piss away your one year deadline (from the decision) for filing a NOD.

They do formal Reconsideration Requests two ways....either very fast or VERY slow, hoping the NOD isn't filed in time.

Been there myself on that.

Can you scan and attach the Reasons and Basis part of the decision here.(And the evidence list)...cover your name, address, C file number first?

Did you get a QTC exam or a C & P done by the VA?

Do you have a copy of the results?

If we can read the decision here we can offer more thoughts on all this.

I wonder if the VA saw a $$$$$ 1151 potential and this is why no SC for the back problems.

In some cases of TDIU or 100% SC awards, if there is a significant additional 1151 award as well, VA MUST pay both the SC comp and then 1151 comp.too.

My Recon Request involved that issue. Claim was filed in 2004/2005 and the VA awarded the Recon issue in 2012.

It was a different issue though but shows how powerful a Section 1151 award can become....in certain circumstances.

They paid some of the 1151 100% retro but forgot about 15-16 more months due me, which I promptly called to their attention., with probative evidence.

If I see the decision I could determine if there is a 1151 possibility here ( in addition to the TDIU).

[Berta]

forgot....do you still have the 2005 denial?????

This might even be basis for a CUE claim.

"caused by the back injury BUT...they denied the Back for SC. Go Figure..."

Did you raise the conditions they awarded you for as secondary (due to) the back disability?)

Is the MRI listed as evidence?

Edited May 6, 2014 by Berta

[pdepalma]

To answer your Questions...

1) In 2005 The C&P Examiner Opined that the Back injury was "as Likely as not..." (Which should have caused them to rule in my favor) but the Rating specialist Denied based on two factors... 1) He couldnt find it in my Military Medical Record (Duh! They didnt do the MRI til 10 yrs later!) and 2) They claimed I hadnt shown for my C&P. Ummm...the Examiner rendered an opinion based upon the exam!

To me honest, I got sick of the VA's shenanigans and walked away for several years. at the time ?I could afford my own medical...that is no longer the case.

2) I had a C&P done, Yes. In fact they even did an extra one. that was the first time I was ever sent for multiple C&Ps...it rather surprised me.

3) Yes, the X-Ray was done by the VA...as was the MRI. The X-Ray did not initially reveal the damage and I was told by the X-Ray Tech that spinal fractures do not always show on X-Rays.

4) As for SSDI, I recently found out I don't have enough recent credits to qualify since I havent been able to work since 2005.

5) The Test for the Spinal Damage (Spinal contusion) was performed by the VA Doctor who specializes in Spinal Injuries and Rehabilitative Medicine. I believe it was her detailed notes that got me the jump in my current disability. She is actually with UCDavis but works with the VA as part of the partnership between the VAMC and the UCDavis Medical School. They just started treating the Back issue a few years ago when my financial situation deteriorated enough to where the VA started giving me full medical treatment. Unfortunately I wasnt eligible until then...

I do have the Decision info but dont have my scanner up and running at the moment.

I am aware of many of the tricks and games the VARO's can play and I am watching the timeline very closely.

When I filed my reconsideration I summed up the disability, the NEXUS, and the proper decision in 16 pt type, bolded, in red with yellow highlight, and then attached a copy of the CFR that applied. If they happen to rule against me then, on appeal, its going to make the Rating Specialist look REALLY bad! lol

As for the TDIU Paperwork, I provided a detailed list of my meds and dosages. Even the average layperson has some understanding of how narcotic pain killers, especially at their max dosage, can affect a persons mental clarity, so I imagine that should work in my favor.

I apologize for the delay in my response. I kind of have to type this up in parts since sitting too long is a bit of an issue these days. Thanks to all of you who responded with very helpful information.

I just have one question for SVR...

I am not clear on how this matter might be a 1151 Issue? I thought that was predominantly used for injuries sustained as the direct result of a VA action or while participating in Voc Rehab? Could you elaborate?