lumbosacral Cue For Inferred Tdiu Claim?

[Snake Eyes]

I was rated as follows:

70% Generalized Anxiety Disorder

50% Sleep Apnea

10% Lumbosacral

10% Right ankle

90% Combined rating

With my original claim, I submitted a Statement in Support of a Claim which detailed various instances of inappropriate acting out in the workplace. A follow up statement after my C&P clarified a comment I made in an earlier statement submitted with my claim that "I have been unemployed since 2010" -- pointing out that I am working about 20 hours weekly as an independent contractor for an online school.

Working conditions and frequent breaks to lie down for pain relief (something you can do in a work-from-home environment) were described in that statement along with my earnings for the three years I've been doing this -- well below the threshold for marginal employment.

The VA in my award letter did not mention either statement and apparently did not infer a TDIU claim based either on my schedular ratings or the statements I submitted.

QUESTIONS: If I submit a TDIU claim and cite the documents I submitted with the original claim -- and win the TDIU, will my TDIU effective date be the effective date of the original claim?

If the VA is supposed to treat this combination of rating and documents explaining my work environment and earnings over three years as an inferred claim, would this be an example of a CUE worth pursuing?

Edited May 9, 2014 by Snake Eyes

[FormerMember]

Check the FRE ( Federal Rules of Evidence) Chapter 8 defines credibility and the potential for endangering it. Granted, the VA doesn't subscribe to the FRE but they accept much of its premises. You are believed until you or those you have testifying on your behalf demonstrate their involvement undermines their (and by extension-your) credibility. The cards are already stacked against us. VA will use any perceived imperfection or inconsistency/collusion to deny. It takes one statement to pollute the credibility well and years of litigation to refute and set it aright. I have this happen with combat Vets from Vietnam. VA doctors are renowned for "assuming" HCV arrived in a syringe full of heroin. Absent a UCMJ notation, the willful misconduct aspersion is frequently used via some "admission" at a Kumbaya group therapy on the Vet's part. Most I know do not go crowing about their drug habits-even if they had one. In two years back to back, I never saw anything more serious than pot or White Horse (speed). Neither involved shooting up or snorting. Most guys I served with over there were consumed with trying to stay alive and being on their toes. Best of luck, sir.

a

[Snake Eyes]

FWIW, Dr. Bash is pretty well known in VA circles as a doc who does not write nexus letters on contingency. He gets paid the same no matter how favorable his comments in the opinion may be.

Hopefully, his noticing the alleged CUE and commenting on it won't cause the VA to throw out all other contentions.

The base claim is TDIU and the rest is medical issues that, if rated, would increase my schedular from 90% to 100%. The CUE is really an asterisk in the grand scheme of things.

On the FDC claim app, I list all the issues and on the line for the TDIU claim I made a note that Dr. Bash discovered the CUE. My VSO saw that and seemed OK with it.

[Berta]

"VA will use any perceived imperfection or inconsistency/collusion to deny. It takes one statement to pollute the credibility well and years of litigation to refute and set it aright. I have this happen with combat Vets from Vietnam"

INDEED Alex...I made that point somewhere here early.....

One single inconsistency can have the VA deem the veteran as an unreliable historian.

Just like in civil court trials ..if you feel the witness lied about one thing, you can disregard any other statements they make.

Another problem I have seen is that vets often claim stressors or other inservice stuff , that,down the road ,they find they cannot prove at all.

That doesnt say the stressor never happened, but it can mean many denials.

Best to claim a stressor with the best chance of being proven.

[FormerMember]

Roger that, Berta. I advise my guys and gals that unless they are covered by 1154(b) to walk a fine line. Just saying you have X stressor(s) does not a claim make. Credibility is one of those gifts we enjoy like the presumption of soundness. An overactive piehole has destroyed more claims than I can count. Repairing them is often a tall order.

As you know, I work for Vets with nebulous risks that are hard to pin down with medical evidence where HCV is concerned. Knowing it didn't manifest for 30 + years had always allowed VA to use Maxson v. Gober up until recently. Same for AO stuff when the military record is less than clear on being in-country. Bent brain requires that special touch as well and often the credibility factor is the tipping point-most especially with women and MST.

In the new VA paradigm, we are the purveyors of our own evidence. Duty to assist has always been a hollow concept anyway. Every item has to be viewed from several angles so as to be seen in the best light. I don't mean to criticize any here but having an MD put on the Perry Mason suit is almost waving a red flag in front of them.

regards

The "content contributor"

[Snake Eyes]

Good point about the overactive pie hole... At a C&P exam, the doc tricked me into describing things I did beyond work that could help me on my job. That turned a 10 to 20 hour part time contract into ac50 hour a week full time job. Fixed it, but I'm more careful now :-)

[Berta]

Alex said:

"we are the purveyors of our own evidence" and that is a statement of FACT!

I get chills here once in a while when I realize ,after many posts, that a veteran here and there over the past 17 years, has told VA a story that they seem unwilling to try to prove, particularly if it involves a valid stressor needed to support a PTSD claim. It makes me wonder of the stressor itself has any validity at all.

It is a good point you made as well as to CUE issues that an IMO doctor, like Dr. BAsh...a former VA doctor, could discover in a claim.But Dr. Bash's right hand man, John Dorly, is a former VSO and perhaps John noticed what appeared to be a CUE.

After the last show Craig asked me to call him up and we BSed about something ....unrelated to

the show or anything else.I have 'known' Dr. Bash for over 10 years.

He did say ,before hanging up, if I needed his help for my pending claim to let him know.

I was very happy with his last 2 IMOs because although on 1997 I won a wrongful death claim (FTCA) with no IMO nor any lawyer at all....VA concurred ( after a battle) with my lay medical assessments) but

that FTCA award and settlement in my C file might be the reason that every single claim I had after that , to become long ridiculous battles, with the end result being I succeeded anyhow.

So I certainly didn't want VA to say my lay evidence and opinions were Not probative, for my AO DMII death claim,.even though they were probative to my FTCA claim ( an award on a separate basis than my other 2 death claims awards. And I hired Dr Bash.

But one other point...what I have pending os a GCY claim on the results of the initial GCY claim I filed on the most ridiculous decision I ever got in 20 years from VA....My initial Nehmer decision...

I told them to CUE one sentence , citing the regs they broke, told them why it was a CUE to my detriment (they forgot about 15 months of additional 100% accrued)and Iattached about 12 pieces of evidence to support that.Only one piece might not have been in the VAROs possession because it came from the UnderSec of VA in 1993,,

on his letterhead from VA Central in DC. That is still considered in VA's possession at time of the SMC CUE I won in 2012 on a 1998 decision because the former Secretary's statement was based on the medical evidence of the 1998 decision ..

CUEs whether traitional or GCY claims involve medical evidence that was established at time of the alleged CUE and in VA's possession.

In that respect Dr. Bash cannot really medically opinion on that type of scenario, unless maybe he perhaps had helped to establish the medical evidence at time of the CUed decision.

But I am not 100% sure of what I just said. I think the fact that either he or John Dorly saw something that could have triggered the veteran to file to CUE however, is

just as important and helpful as when we are able to do that here from time to time, when we see something that indicates a past CUE could have occurred.

Dr. Bash will be at 1-347-237-4819 tomorrow AM for the hadit Radio show....

If I get a chance I will try to ask him a generic question as to him mentioning potential CUEs in his IMOs tomorrow. .

One thing for sure, he has raised additional potential SCs in IMOs....one disability my husband had ,per his IMOs, I had never claimed ,but still could under 1151, and a friend of mine in Buffalo....his IMO from Dr Bash also raised at least one or two other potential secondary SC issues that the veteran formally claimed.

I think he has done that for some vets here as well.

.

Edited November 25, 2014 by Berta