ptsd TDIU must consider all service connected issues

[ArNG11]

I have been noticing a trend in mostly all Veterans cases for TDIU as is happening in my case.  I got a call from the VA requesting that I clarify which service connected issues render me unemployable.  I stated all. But they concentrated on two.  As in my case I stated that I have combination of injuries that have disabled me however, it is my service connected illnesses and injuries that prevent and make it very difficult to have continued my profession. More importantly,  substantial gainful employment that is.

In that I realized that the VA is asking me to be a "doctor" and state which two injuries or disabilities render me unemployable.  Guess which two the VA decided to go for TDIU.  Back injury and tinnitus although I claimed all service connected issues, undecided issues, and those on appeal affect employability. 

First this is relying on the Veteran to become a medical expert to choose and prove which injuries and illnesses prevent the veteran from substantial gainful activity.  Second per regulations it is required that the whole disability picture of a Veterans case be considered.  In my case I am stating that all my service connected issues and those pending and on appeal affect my employability. I retired due to all my injuries and diseases affecting my employment, but I maintained to keep military injuries separate from federal service injuries.  At least I have been trying to. Although I have stated there are non military injuries at play, I have made sure to keep those separate from my VA claims, however they are still part of the overall disability picture. Those will eventually become a part of my SSDI claim, however, that is completely separate from my TDIU claim and I have made it clear to VA several times.

Second the disability status must focus on the WHOLE disability picture of a Veteran, that is, with VA, that only his/her service connected issues be the cause of not being substantially gainfully employed. How can you force the VA and in my case the BVA it might seem as that is where I am heading,( 2 year wait of course )to consider all the facts. I know the some of the laws and regs that pertain to this however, not so easy to get my point across to the VA.

Back 20% on appeal VA's reasoning for unemployability

GERD 0% on appeal

 IBS 0% on appeal

GERD and IBS now combined rating still 0% on appeal

Left hip ,on appeal, having surgery on left side in two weeks. right hip surgery at a later time on appeal for service connection

radiculopathy 10% left and 10% right lower extremities on appeal

Anxiety with Depressed mood 50% on appeal MDD/PTSD/ANXIETY/DEPRESSION only going for a correct rating for one Mental Health issue.

Left knee, right knee 0% on appeal, requiring surgery at a later time.

Tinnituts 10%, VA's reasoning for unemployability 

Hypothyroidism 10% on appeal

chronic fatigue, mental sluggishness initially denied now lumped with 10% hypothyroidism rating

sleep disturbances initially denied but now service connected with Mental rating (50%)

Sleep apnea denied on appeal

little ring finger 0%, fused,   no higher rating,

IU claim

 

Granted folks, I understand I have complicated things, however, I could not control how the agencies would interpret my claims. Also I didn't get to be a part of this wonderful site until after the fact with VA and learning as I go.  

I have been looking at CAVC cases but haven't found one that relates completely to my case only in part.  

Thoughts? Attacks? Pertaining regs to this predicament?

 

 

 

 

 

 

Edited November 21, 2015 by ArNG11

[Buck52]

pete992

Do you mean if  Veteran has a claim in for one or multi conditions  and on appeal and then files for IU that he is in for a long time until they adjudicate both claims?

 Looks like they would give the higher evaluation to the veteran and if they made him unemployable  then rate the IU and get to his ''other appeals at the same time.

because if they don't do that and the veteran can't work due to his SC Disability  would certainly put a hardship on the veteran  but the veteran can file for his SSDI...But the thing is the VA Benefits pays 3 times as much.

 

I would give the the disability that warrants the IU  (The worse one)...they are suppose to do that....if they would read all the evidence.

 

jmo

 

.........................Buck

[ArNG11]

pete992

Do you mean if  Veteran has a claim in for one or multi conditions  and on appeal and then files for IU that he is in for a long time until they adjudicate both claims?

 Looks like they would give the higher evaluation to the veteran and if they made him unemployable  then rate the IU and get to his ''other appeals at the same time.

because if they don't do that and the veteran can't work due to his SC Disability  would certainly put a hardship on the veteran  but the veteran can file for his SSDI...But the thing is the VA Benefits pays 3 times as much.

 

I would give the the disability that warrants the IU  (The worse one)...they are suppose to do that....if they would read all the evidence.

 

jmo

 

.........................Buck

Buck yes it would be in the best interest for the Veteran, but we all know the VA won't do that until they have a weapon to their head.  Even then they laugh at the decisions from above and if I may the hamster wheel keeps going.  

Yes I am going to have to choose eventually which benefit I will go for.  Idealistically I would like to get the benefits or due awards from the perspective agencies.  That is to say what I am entitled to and what I have paid my dues for, nothing more and certainly nothing less. 

DOL and SSA will exchange information and already have exchanged records between each other.  I am in the hopes that my efforts to have that play out correctly time out with when I get to DC.  I just didn't account for the unexpected attitudes of the lawyers.  Fighting on principle isn't a thing any more, that is just my observation though.

I was trying to outsmart these agencies with the breaking of the laws and regulations. They would engage each other and get caught in the lies and regulation breaking however,  it is getting complicated and difficult to get them in the right set of crosshairs. My choices would have been my back and noggin issues but thats not what the c&p s are for. Imagine that.

I stated clearly that I am only claiming my service connected issues, those undecided and on appeal, make me unemployable.  VA didn't listen. Neither did DOL.  

[ArNG11]

I did submit and 21-8940 but when it asked for which injuries or illnesses I claimed "all pending and service connected injuries and illnesses."   When they rebuttal I will state that I am not a medical professional and neither have the training nor the expertise to narrow down what specific condition precludes me.  I think I may be shooting myself in the foot in a way but it seems like the only logical step and reason for me.

[john999]

You need to submit the disability you have at least 40% for now.   You could have 15 30% claims but according to VA rules they would not grant TDIU unless you have at least one rating of 40%.  If you have 50% then use that rating and submit evidence to show it has gotten worse as in 70%.  I got 70% for depression, ptsd, anxiety attacks etc.   Then I got TDIU.   The VA will fight you on these little rules because the longer you are not TDIU or 100% the less they have to pay and they also can put off P&T so spouse is left out in the cold.

[ArNG11]

Yeah John that is what I'm doing. The 50% for.mental is what I am basing it on, second to my back when it's finally rated correctly. The issue is the evidence, while they list it, I can assure it is not being weighed.  I'm tired of dealing with the Regional office but mighty law dogs like to camp there for too long. I guess I'm just stubborn but I don't see the point in dealing with the locals when you know the outcome.  I believe it will get resolved just not at the lower levels. Ask NOD is right on point with his book. I  was trying to head to Washington for both my DOL and VA games, but it seems the timing will not synchronize correctly. 

[Chuck75]

You need to submit the disability you have at least 40% for now.   You could have 15 30% claims but according to VA rules they would not grant TDIU unless you have at least one rating of 40%.  If you have 50% then use that rating and submit evidence to show it has gotten worse as in 70%.  I got 70% for depression, ptsd, anxiety attacks etc.   Then I got TDIU.   The VA will fight you on these little rules because the longer you are not TDIU or 100% the less they have to pay and they also can put off P&T so spouse is left out in the cold.

"according to VA rules they would not grant TDIU unless you have at least one rating of 40%"

The VA can wave that. although it might be a "cold day in H".  Has to do with other regs/laws when multiple conditions/disabilities are present, and the totality prevents working.