tdiu Need Some Helpful Advice

[ReallyAngry]

I need some feedback, thoughts, advice, even just a smile would do right now. I'm fortunate because right now I'm at 100% S/C TDIU. I can't find someone in my area who is knowledgeable, trustworthy, and willing to help. None of the experts/lawyers are willing to help me because I'm already getting 100%, so there's no reason to do so. I'm having a hard time even with the thought of talking about this with someone else, but this forum is fairly anonymous, so I'm here. And right now I'm feeling pretty bleh, but I have to get some input.

Twenty years ago I went for my first C&P straight out of the army. Some shady things happened on my C&P, but after the exam was over the examiner took me into a room and did something pretty awful to me. I thought it was part of the exam at first, but it became all too clear that it wasn't. Especially since the guy invited me to come back once a month for follow-ups. I turned him down and left. Within a couple of months I was s/c with a really low percentage, which I thought was wrong, but I didn't want to go anywhere near the VA for several years so I kept quiet. It was especially hard since I was also a victim of a similar event in service. It was years before I could go to a doctor on any regular sort of basis. I still don't trust any of those... people. I only just last year revealed this information to the VA. I was interviewed by a professional in mental health who asked for information and a name to report. Nice gesture, about two decades too late. He asked me if I ever thought about finding the guy and killing him. I said I never wanted to see him again.

Shady business on my exam, it turned out much later, included lying to the VA and failing to perform necessary tests. it pained me everytime I looked at that report, so I didn't care to look too closely, but I'm sitting here going over it finally to see what all he did to me and if there's a snowball's chance I might be able to CUE because the VA still likes to play games with this one. My biggest fear is that they will attempt to sweep me from the rolls because they can; I mean, if they can just lie and ignore evidence whenever it suits them, why wouldn't they? The main reason the VA said my rating was so low on that decision was because my range of motion tests were normal. When I looked at the numbers again, something bothered me, so I checked around and I'm thinking the guy also lied on that--either he just made up a bunch of numbers or made a mistake, but the VA didn't even look twice. They said my range of motion was normal.

So here's the numbers for my lumbar spine: anterior flexion 130 degrees, posterior extension 35, lateral flexion 45 degrees bilaterally, rotation 45 degrees bilaterally. Do those numbers look odd to anyone else? What I'm reading says the normal range should be a combined 240 or better on thoracolumbar and 340 on cervical spine. Now, if that's correct, by my math, depending upon how one interprets the range given as bilaterally, I was either the most flexible 240 lb male the world has ever seen, or otherwise my numbers should have put me below 240 ROM (if you divide the numbers between the two sides), in which case it might have changed my rating. Either way, that seems like a pretty clear and unmistakable error to me that the VA just glossed over. And the guy didn't use any instrument to measure angles either. He just eyed it. Am I missing something or misunderstanding something, or did that guy really do what I think he did with this?

First, I had a good reason not to appeal the matter within a reasonable time frame. I wouldn't even talk about it now, but the rage inside is getting the better of me. Second, it seems to me that between the lies he told and these numbers he pulled out of thin air, I should be able to get a CUE. I could really use the vindication, and the money wouldn't hurt either. But I don't know what to say or how to say it or if it's even worth the bother. The depression, which I'm on medication for, makes it hard to get things done. I start to try, but feel overwhelmed. Then it just seems so pointless. Not going to talk about it in a group. Not going to talk about it with a snippy therapist. There's a lot more to it, but nobody needs to hear all that.

Anyway, thoughts?

[Army247]

Sorry this happened to you. My best advice is to post this to the forum so the experts can review this or anyone dealing with a similar experience. I pray you get some peace and a speedy response.

[ReallyAngry]

Thank you. I appreciate that. So.... I posted in the wrong place? If so I'm sorry. I don't really know what to do, but talking isn't the only thing that's going to fix this.. and I'm not certain that talking ever will.

[Andyman73]

RA,

First off, I am so sorry to hear that you got railroaded by the VA. Welcome to Hadit, where there are no trains anywhere! You came to the right place to begin your journey to vindication. There are a good group of Vets and civilians here who can and will give you guidance. Better late than never, as I myself am finding out.

Semper Fi.

Andy

[broncovet]

I, too, am 100% but seeking an earlier effective date, so you are not alone. Im determined and, even tho I have achieved several victories, I have not quite yet won what I feel I deserve. I was "no balled" (rated at 0 percent) before I was "lowballed" (rated at 40 percent). Our circumstances are different, but I "finaly see the light at the end of the tunnel", and I now know that VA will NOT be able to deny me my benefits for much longer. Just a few days ago, after writing to Allison Hickey 3 months ago, I received an email from the VARO director, and its clear to me I will be getting my back pay, its just a question of when. Persistence is key, nothing short of it will work. You give up and you lose. Knowledge is power.

It is going to take much more effort on your part. First, you should order your cfile, and read over the examiner opinion and compare it with (apparently) a later exam where you ultimately were awarded your 100 percent. Compare it with other exams. You may well need to take it to an attorney. If this doc did this to you, he likely did the same to others. Based on what you posted, it sounds like the doc retaliated on you with your unfavorable C and P exam, because you rebuked his advances. See if you can find out if this "doc" was arrested, or his license revoked. C and P examiners dont ask you for follow up, they dont treat, they do an exam for compensation and pension purposes.

You, too, could accuse this doc of, well, whatever happened, tho it does hurt your case by not doing this 20 years ago. If the doc is convicted, then I think you could argue CUE. There may well be other Cue theories in your file, but you have to order it and read it to find this out. Cue has to be argued with specificity, and your unsubstantiated allegagations against a doc will not fly as CUE, IMHO. You will have to document your allegations of abuse, but that may be fairly easy if this doc was convicted of a crime, since if he did this to you, he may well have done it to others. You should be able to get the examiner name by ordering a copy of your medical records. To do this, go to your VAMC in the "release of information" desk and request a complete copy or at least a copy of this exam.

However, there are more than one way to get an eed. An important one is 38 CFR 3.156. Do you have any "new and material evidence" to support your claim for an earlier effective date or higher rating earlier?

You also need to read over decisions. What are the reasons and bases? Did you appeal the 100%..or are you still within the appeal period?

HOw soon did you "apply for an increase" ? There are circumstances where this can result in backpay, that is, result in an EED.

Read over my posts on effective dates and see if any of that applies to you.

Its your claim, and winning takes great effort. You are in the right place.

Edited June 17, 2015 by broncovet

[Berta]

If those documented numbers,when compared to the VA Rating Schedule they used at time of the exam (all of the rating criteria is here under the Rating Schedule link) are wrong, thus the low percentage, you should file a CUE claim.

You will need to file it on the older decision and use the Rating sheet as evidence.

A CUE claim has nothing to do with how a doctor treated you, it rests solely on medical evidence,established at time of the decision you file the CUE on.

Most CUEs ( legal errors by VA) are found on the rating sheet.

If the diagnostic codes were wrong, as well as the rating, and you have documented medical evidence ( such as the C & P exam) to prove the rating should have been higher, by all means file the CUE claim.

It sounds like he failed to use a goinometer to measure the ROM properly.

We have an entire CUE forum here explaining CUE.

Need to add before I forget....... a "lack of "any rating on a decision",meaning a disability has not been acknowledged on a rating sheet at all, yet VA had evidence of it, is also a CUE.

I dont recall seeing anyone here yet who had that happen to them except for me, but I think that might happen more than we know.

This is why I got the Nehmer VARO to adjudicate 2 CUEs I had pending in Buffalo RO on a 1998 decision.

VA failed to acknowledge and rate the main disability ,the malpracticed .IHD.my husband had, on the rating sheet , that was mentioned in the DIC award narrative. The stroke CUE was rated in 1998 but that rating was wrong and they awarded it , almost 20 years later.

In your case, the fibro, is that SCed?

If not have the other disabilities impacted on the fibro to a ratable level?

How long ago were any ratings done for what you get the TDIU for now?

"Twenty years ago I went for my first C&P straight out of the army."

Did they use the day after your discharge for the retro on the initial claim?

It sounds like you filed that claim very soon after your discharge.

[broncovet]

Berta posted:

"...... a "lack of "any rating on a decision",meaning a disability has not been acknowledged on a rating sheet at all, yet VA had evidence of it, is also a CUE".

While I certainly do not doubt you, I would love it if you posted (probably reposted..or supply a link to the old post) where you did just that, and especially the wording you used and the regulations you cited to get a CUE for failure of the VA to process a claim.

I agree with you, Berta, but was unaware of this until you pointed it out, so thank you. I know VA does this all the time (including several times to me) ..the Veteran submits a claim, and it is simply "forgotten" about. You see, there is no time limit at all the Va has to process a claim. You apply 20 years ago...VA ignores it....the VA can simply say, "gee..this isnt CUE we are backlogged and getting to it as fast as we can...sorry for the delay." (Of course this is BS)

However, the VA delaying the claim 20 years or you calling CUE, may achieve the same result, because, if the benefit requested is awarded, then the effective date would be the date of claim or facts found, which would be 20 years ago in this example. And, it is still unclear to me that the VA can comply with certain case law, and still get away with a deemed denial. It would seem difficult, tho, as case law suggests "the Veteran needs to know his claim is denied" for a deemed denial. I would guess if the Vetran did not get a check, then he could assume it is denied. I recall you saying something to the effect there are no more deemed denials, but that has not stopped VA from trying that fast one with me, even tho they avoided the term "deemed denial" like the plague. Still, it has amounted to a deemed denial.

While we are on the topic of CUE, I think you will agree that it is also CUE when VA fails to give a reasons and bases for decision, tho they may argue that may not be outcome determinative, one of the criteria for CUE.

Importantly, probably because of your oft quoted 4.6 and 3.103, if the Va does not give a reason as to why they did not grant any one of your "entitlement theories" then this could be CUE.

I have had this one happen also. I propose an "entitlement theory" and VA simply ignores it. A great example is that I proposed an "entitlement theory" that I have an incorrect effective date due to the VA shredding my evidence. It was never addressed by the BVA even tho I raised that theory.

I have sent an email to my director that I am entitled to a written decision giving a reasons and bases as to why my Special handling request for shredded evedence was denied. (I never received a decsion denying SHR, I just found out by reading "notes" in my cfile. Im sure they did not want those in there, but they are in the RBA, and I plan on using that against VA to the fullest extent possible.)