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.

[Berta]

"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!"

That looks like the basis for a Cue claim!

And/or a 38 CFR 3.156 claim:

"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? "

That is right...injuries that result from improper diagnosis , lack of treatment, and any other form of VA negligence that has caused a veteran additional ratable disability or death. (ratable at least at 10%)


"Could you elaborate?"

My whole story is in the FTCA forum.

A brief overview:

Husband, a VA employee, collapsed on the VA job and they rushed him to the VA ER.

They did an EKG that revealed probable inferior infarction.The medical certificate of that day revealed more concerning symptoms and medical words and acronyms that it took me a while to learn when I finally got his med recs. .

They treated him instead for a sinus infection and sent him home for 3 days.They sent him sudafed for the next 6 years! I proved he didnt even have a sinus condition and the sinus med contraindicated his heart disease.

He did not receive a proper diagnosis, nor any follow up cardiac care, as the Med cert stated he would, and was never told of the heart problem.

He dropped dead 6 years later of heart disease.

He had a Section 1151 claim pending when he died for better PTSD therapy but threw in at the end he feared they were negligent with his PTSD treatment and he felt he could end up dead due to another misdiagnosed stroke or even possible heart disease that VA failed to treat.

We knew VA had misdiagnosed the stroke for 3-4 weeks but they sent him to a more appropriate VAMC for Neuro care after I threatened to call my congressman.
.
That VAMC then covered up the extent of the rest of the malpractice from the first VAMC.Their chief cardio doc told me there was "nothing" wrong with his heart , after a ECHO revealed he already had a foot in the grave.

This was almost 2 decades ago.I immediately got all of his med recs, and filed FTCA and 1151 to continue the claim he had filed.

The results were that I had proven the VA failed to properly diagnose and treat a condition they were well aware of, yet failed to advise the veteran or me of that.

It was a wrongful death claim.with multiple other malpractice issues and disabilities. This is a very brief description of what a 1151 claim is.... and I also filed FTCA as well...you might still be in the Statute of Limits for FTCA...I cant tell here. It is usually filing a tort against VA within 2 years after knowledge of the negligent event.

Malpractice has a snowball effect.

They settled FTCA in 1997 with me, and in 1998, 1151, but in 2010 and in 2012 I won additional malpractice awards and I also have another malpractice claim pending under 1151.

One morning 20 years ago my husband made me promise if the VA killed him,I would continue his 1151 claim, and take every step I could to prove the case.

"I said Honey the VA isnt going to kill anyone." We were hoping the 1151 would get him better PTSD care.

Four hours later we walked out to my barn to check the livestock . I was the family livestock farmer.

He suddenly dropped dead, I administered CPR but I knew he died as I gave CPR to him.

I know I have been repeating this alot lately here...due to Phoenix situation.

I think every vet who reads this forum who has a spouse or any dependents should get a little familiar with the 1151 and FTCA regs.

I sure hope the Phoenix families are doing just that too.

"Evidence Requirements

As a result of VA hospitalization, medical or surgical treatment, examination, or training, the evidence must show you have:

An additional disability or disabilities, OR
An aggravation of an existing injury or disease, AND

The disability was:

The direct result of VA fault such as carelessness, negligence, lack of proper skill, or error in judgment, OR
Not a reasonably expected result or complication of the VA care or treatment OR
The direct result of participation in a VA Vocational Rehabilitation and Employment or compensated work therapy program."


http://www.benefits.va.gov/COMPENSATION/claims-special-1151.asp

My husband was also in VA Voc Rehab at time of the initial malpractice but VocRehab was not the cause of his death.

As I suggested many times in our FTCA forum.....(which includes the 1151 info),

unless you are willing to practically become a doctor and a lawyer (as I practically did )and feel confident enough on the regs and evidence to go toe to toe with the General counsel VA lawyers, you will need

1. an independent medical opinion that fully reveals the malpractice and the extent of it and

2. a lawyer with malpractice experience.

If you get # 1 and the additional disability has a good monetary value, you will have no problem getting # 2.

Death claims pay more than other VA fiascos in many cases. Then again a PTSD vet recently got millions.

Either the OGC denied him under FTCA or he didnt like the settlement amount and took his case into the Federal court system.

I posted that info here.recently in the FTCA forum.

I have won under CUE and 1151 and everything I know on these issues is in the FTCA and CUE forums .Others have certainly added to that info as well.

If I were you I would take the time to read it all and then run it by a Vet rep who is well versed in CUE and 1151.

Most Vet reps got the same training I did, from NVLSP but I found , in my case, they didnt have a clue on 1151 or on CUE.

We are our own BEST vet rep.

Edited May 7, 2014 by Berta