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

[john999]

Your doctor should say in no uncertain terms that due solely to your SC disabilities you cannot work. Have you applied for SSDI? I can tell you I had a claim where doctor said I was totally disable, and could not work or even function on vegetable level. I got a 10% rating. This was 40 odd years ago and I did not appeal. I have lost the CUE for TDIU/100% so far. My doctor said I was unable to function either socially or occupationally. Nevermind, the VA doctor said I had slight case of schizophrenia and never even asked if I was working. I lost so far and my CUE is at Court of Federal Appeals. Those C&P doctors will trick you and lie. Mine did many times until I got good IME's and got the language right. By the time I got TDIU I was on SSDI and OPM disability and the VA still fought it. Get your TDIU and then worry about CUE. Are you still working part time? If not don't mention it. You are now 90% and unemployable solely due to SC conditions. I filed my CUE 5 years after getting TDIU when I reviewed original decision back in 1972 and evidence was there for 100% but VA just ignored it. That is a long story. What I learned 35 years too late is to always appeal your decisions during the one year NOD period.

John

[Berta]

I will ask Dr Bash on tomorrow's show about the CUE he found...

[FormerMember]

Allow me to illustrate something for you.

One thing that always eventually comes into play is wearing too many hats at the baseball game. Eventually someone like VA notices and says "Hey. I thought you were a neurologist but you're here today opining on gastroenterological conditions like HCV and the purported SGOT readings in 1969: http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files2/1416337.txt

Third, the opinion by Dr. Bash and Dr. Chudzik that exposure to Agent Orange caused elevated SGOT levels and/or the Veteran's chronic liver disease is not supported by the evidence of record or medical literature. To the extent that Dr. Bash notes that the 2008 IOM suggests a raise of liver enzymes in Veteran's exposed to Agent Orange, the Board points out that the Veteran's elevated SGOT levels occurred in early 1969, but he did not go to Vietnam until September 1970.

This is what I refer to as continuity when you build a claim. If you do not build the timeline, you get certain facts into the equation in the wrong order and everything works out until it's plotted on the timeline graph. Or worse, your medical facts are unsupported by science. Either way, the whole case suddenly disintegrates. Worse, as here, the evidence then is used against you and VA uses your supposition to fashion your own noose. IOM has the last say on what's in 3.309(e) anyway so it's a moot point here.

While I admire Dr. Bash for what he does for us, someone other than the chief opiner has to be in charge of the evidence room. That's you or hire a lawyer to supervise it. In the same decision, the VA evinces scorn at Dr. Bash's qualifications. That is not good:

A September 2005 document from Dr. Bash, a neuro-radiologist, is styled as an independent medical evaluation. Dr. Bash indicated that he had reviewed the Veteran's claims file and medical records, including service medical records, post-service medical records, imaging and laboratory reports, other medical opinions, and medical literature. He opined that the Veteran's failed liver state was a result of "either/both an extension of some occult liver pathologic process that he had in service which raised his SGOT values or/and a result of this patients loss of hepatic reserve (hepatocytes) during service when he had months of elevated SGOT values."

With respect to Agent Orange, Dr. Bash stated that Dr. Brown did not discuss the Veteran's liver cell loss due to Agent Orange in service, noting that the 2008 IOM report referenced a link between Agent Orange and liver enzyme elevation and that this should be a basis for service connection.

Veterans would do well to have nexus letters that address the disease and it's characteristics rather than simply impugn another doctor's findings. Peer-reviewed articles or Dorland's/Cecil/Merck medical tomes are the benchmark and VA's own studies are even more on point. And absent that, one thing that will never happen without a peer-reviewed AMA article in your favor is adding anything to the AO presumptives list like liver cirrhosis without the IOM weighing in. They are set to close up shop in 2016 and Vets have been hitting the wall on HCV/Liver problems = AO since 1991. It's still VA 5,000 Vets 0. Dr. Bash appears to be trying to attack this as a dual entitlement under a direct cause and/or as an AO presumptive. I could list thousands and they all say the same thing as this. This one is only unique because we have the battle of the doctors and "My doc's better than your doc" argument. When this occurs, they look at your specialty. Sadly, Dr. Bash came up short on gastrodoc credentials as well as the faux pas on the AST being higher in the states before Johnny Vet went to RVN.

In this case, the Board finds that Dr. Brown and VA examiners' opinions that the Veteran's chronic liver disease was less likely than not related to service are more probative. There are a number of reasons why the Board favors these opinions over those of Dr. Bash and Dr. Chudzik.

First, the Board points out that the Dr. Brown specializes in gastroenterology and hepatology, the specific area of medicine at issue. Hence, he has the esoteric knowledge and expertise required to make the necessary determinations in this case. Cf. Black v. Brown, 10 Vet. App. 279 (1997). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). On the other hand, Dr. Bash specializes in neuro-radiology and Dr. Chudzik is a primary care physician. While they presumably have some general medical knowledge of the issues at hand, they do not share the same level of expertise as Dr. Brown.

I find it works better to rebut with kindness as VA does. Ignore the ARPN VA examiner's opinion (or whoever's) and focus on why your nexus is far more probative. But mostly, you cannot be a jack of all trades and a master of one as here. If you are going to win, you have to create an unequal playing field. One winning technique we at asknod like is to slam the N&M evidence in out of the blue with no waiver of review at the AOJ in the first instance and make the VLJ decide with your newer, most excellent unrebutted nexus versus an old VA one that is equivocal at best. I've won three that way but I feel they were technically "gimmes" that should have been granted below at the AOJ.

clear prop

Edited November 26, 2014 by asknod

[free_spirit_etc]

I think that is great advice asknod. And you can also point out how their doctor's opinion doesn't actually refute, or conflict with, your doctor's opinion. Since their doctor's sometimes write opinions that somewhat side-step the actual issue, it can be pretty easy to point out, "Yes. The VA doctor said this and that, but he did not actually refute X." Or the VA doctor's opinion does not actually conflict with what my recent IMO states.

[Berta]

.

Snake Eyes I asked Dr. BAsh about this on the air today

" Dr. Bash has done these before and I'm sure if he had blowback, he would have simply provided the language and advised me submit the CUE separately.

The general consensus from Dr Bash and John Dorly was to file the CUE claim yourself.

Lots of info here in the CUE forum on how to do that.

You can hear the discussion we had on this CUE issue as Mike loops the radio show to the right of our main page.

Just click on the play thing and the show will pop up on your PC.

[Berta]

It is discussed in the opening minutes of the show....