tdiu Should He Or Should He Not

[Charleese]

My husband has a TDIU rating of 100% with an 80% rating. In 2007 he put in a claim for Pinch Nerve, Left Shoulder pain, and left hand carpel tunnel, which all 3 were denied. Over a year ago he was operated for left carpel tunnel, but was not given treatment. After a year of complaining, he was finally given treatment for all 3, but nothing has worked. They now tell him that neck pinch nerve has gotten worst, that he has a tear in his left shoulder which should be operated on; has 3 fingers that are numbed. The VA is saying that all 3 come from a fall that he had in 2008 which he is now service connected for spinal injury. This cannot be because of his 2007 claim, claiming all 3 conditions. We believe all 3 conditions were aggravated when he had that carpel tunnel operation and didn't get treatment over a year later..

My question is this at 100% TDI, should he (1) put in a new claim for Neck Pinch Nerve, Tear in Left Shoulder, and 3 Numb fingers on left hand for aggravation; (2) should it be an 1151 claim or just a regular claim; or (3) should he leave every thing as is (100% TDIU with 80% rating

Thanks in advance for your replies.

[Berta]

"The VA is saying that all 3 come from a fall that he had in 2008 which he is now service connected for spinal injury."


"This cannot be because of his 2007 claim, claiming all 3 conditions."

So VA attributed this to something they think happened AFTER he claimed the new conditions in 2007?


" We believe all 3 conditions were aggravated when he had that carpel tunnel operation and didn't get treatment over a year later.. "

That is certainly possible.

"My question is this at 100% TDI, should he (1) put in a new claim for Neck Pinch Nerve, Tear in Left Shoulder, and 3 Numb fingers on left hand for aggravation; (2) should it be an 1151 claim or just a regular claim; or (3) should he leave every thing as is (100% TDIU with 80% rating "

I would claim it under Section 1151, if you have medical proof ( an independent medical opinion that would show the operation and lack of proper after care treatment caused this additional disability. )

As to putting in a separate claim as a new claim, that might not be a good idea. Maybe a re opened claim...instead

Did he appeal the 2007 claim? If so is that still in the appeal process?

Can you scan and post their denial of that claim as to their Reasons and Bases and th evidence list and attach here? (Cover C file # name, address prior to scanning it.)

It might contain a CUE.... hard to say. ...that denial would show what the next step on that can be, in addition to possible 1151 claim..

What was the NSC rating for the 3 conditions pinched nerve, tear in shouldder (rotor cuff tear?), and 3 numb fingers in the denial?

The VA has to rate awarded 1151 issues separately.( and pay separately in some cases unless there are claimed as secondarys)

They paid me a 100% 1151 award separately as accrued, from a 100% P & T award of SC PTSD, in my dead husband's case.
(They did not pay the right amount...that is being worked on now by VA)

I also had filed a 1151 claim ,they denied recently but these claims are at VACO because I wrote to Ms Hickey.

I was not sure they would even acknowledge this 1151 claim.(for HBP - a small claim, 10% for 6 years unless they do a Fenderson rating)
The VACO Report I had as evidence stated the malpractice HBP ,in addition to the other major medical errors, contributed to my husband's death

Because they already paid the 100% under both 1151 and direct SC, for 2 independent separate disabilties, I wasnt sure they would even deem this claim as valid.....But they did acknowledge it.

My evidence came from VACO, in a report prepared for my FTCA case, that focused solely on the HBP malpractice, done by a head VA Cardio doc with 2 board certifications and with ample expertise in all cardio vascular disease and also HBP.

The report stated that along with the other proven major malpractice, the HBP negligence also contributed to my husband's death.

I was awarded shortly after this report was done, FTCA settlement and 1151 DIC.

I had considerable other medical evidence as well on the major issues.

The VA denied recently with a medical review ,with a ridiculous medical rationale, attempting to overrule the VACO OGC report ..

Does this mean that some VA doc,nurse or PA can overrule a VACO award under extraschedular? or any other type of VACO favorable medical opinion

I dont think so! In 20 years I have never seen that done.

The cardio doc still works for VACO...will she be asked to opine against her own report?

I dont even think a medical person even did this review at Buffalo. It should have awarded Relative Equipoise, at the least.The decision never mentioned how my VACO opinion was weighed and was misinterpreted in the recent review.

The director said she 'forgot' my request for a copy of it and the file was on it's way to VA in DC.

They dont want me to see it. I already knocked down at least 5-6 of their bogus C & Ps over the past 20 years.

I filed 4 CUEs on the decision with the Drector right away.She told me those CUEs are in the C file they sent to VACO and gave me the contact person info Friday.

My long point here is, I didn't know if VA must continue to pay 1151, even after they have made a 100% 1151 award, and in my case a 100% SC award, additional 1151 money. Like your husband with TDIU now, it would be the same situation...unless the denied disabilities eventually make him eligible for SMC "S"


I couldnt find a case or regulation like my situation..

However VA did not deny on some type of regulation that would prevent adjudication of this additional 1151 claim.....on top of the 100% 1151 I already got....

So they should be able to adjudicate a 1151 in your case, even if it does not raise to the SMC level.....

They did not state the HBP ( although it was part of the major malpractice case ), had been absorbed into my other 1151 awards or FTA settlement.

I hesitated in 2012 ,in filing this HBP claim, but then I realized the results would help others here..regardless of what they are...

So it is possible that even with a less than 60% rating for a successful 1151 claim,in your husband's case,( which would probably be the same as the NSC rating on the denied claim) they VA would not pay SMC "S" ,they could pay however, an additional compensation amount under 1151.

I think. They cannot combine it with the TDIU or deem it as secondary (I would not raise the secondary issue at all...yet)

If you feel you have a probative 1151 issue, supported by an IMO, (lots of FTCA and 1151 info here in those forums)
by time VA gets to handling your claim, I will know from VA Central, whether your 1151 claim (so similar to mine in one respect)
can be adjudicated with a monetary value,of at least 10% or more retro..

They already have an established rating for my HBP...this is why it would help if we could read the 2008 denial here and also what the NSC rating was for the 3 additional conditions.

Edited March 15, 2015 by Berta (see edit history)

[Buck52]

I would reopen the claim if you have medical evidence to show and proof he did not have any rehab treatments and why?

I don't think he would be reduced from TDIU 100% unless the VA can prove his disability's have got better.

it maybe a long battle but fight for what your hubby deserves!

you may need a Attorney (Bob Walsh ) veteran attorney comes to mind!

just my opinion however.

..............Buck!

[carlie]

If it will not garner any additional benefit, I personally would leave it all alone.

I do remember the fight that was already fought and won.

jmho