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TDIU must consider all service connected issues

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ArNG11

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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 by ArNG11
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Yeah you are correct.  If I had only one rating I must have at least a 60%, however, since I have many all I need is a one at 40% and multiples that add up to 70% combined to qualify.  I have that already.  What I am banking on is what I have evidence for my back rating should have been rated higher out the gate than what it was, the VA knows this, the VA knows that I am aware of that fact. 

My back is pretty messed up but the VA and even my law dog state I won't get more than 20%, I disagree and so does my evidence.  Ellis' opinion stated it at 

40% for Lumbosacral strain

10% right radiculopathy

40% left radiculopathy

That's not even counting the correct nerve damage ratings. Hopefully someone with authority will realize where the numbers should have been according to the evidence and severity of symptoms.  Hurry up and with though.

That alone would have gotten me to 70% mark.  Had they rated my back correctly even at 20%/20%/10%/10% the extra 10% is for the tinnitus that I didn't include above I would have had a 50% rating to start.  When it's all said and done I think it will be interesting at the least to see the correct percentages.  I just don't believe I will get rated correctly until BVA, hopefully there, I'm loosing steam, but if not to the CAVC we go,  if worse than that well then Big Boy Circus I go.  I am not turning back now.  I've come to far now to just quit and I'm angry,  way angry, just trying to use the anger constructively, if there is such a thing.

Edited by ArNG11
incorrect percentages
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  • Content Curator/HadIt.com Elder

Having left/right radiculopathy should count as bilateral if it is in the same limb. I don't know how they would calculate it if the %'s are different for each side, but it does help add to your combined rating.

Maybe the C&P doc did not get the memo Pete992 posted regarding choosing at least one condition. I'm with you. He asked which condition(s) and you told him! Poor dude just did not like the answer.

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I wanted to add a correction on this, when asking for TDIU the VA is asking you to pick one, ailment to be the final nail in the coufin sort of speak, that is asking you to be a doctor.  Big no no. That is why it's best to file for all your  service connected issues being a factor in your troubles in retaining or obtaining gainful employment. In most cases, all your disabilities and illnesses affect what you can do to be gainfully employed. The fact that the VA gets away with doing this really burns me up. Complete Dino poop. Old games old tactics. 

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The crazy one here, I sure hope I am wrong.  VA has been doing this for years and they (VA) just recently changed the rule in June 2013 that a veteran must list at least one condition but should list all conditions that makes him/her unemployable.  You are very fortunate that VA did not just deny your claim and gave you a chance to respond.  The problem you face now is that your TDIU claim is intertwined with your appeal claim and VA cannot really resolved your TDIU claim until they (VA) figure out what they are going to do with your appealed claims.

http://www.margbva.org/Other%20News/Miscellaneous%20Information%20Archive/Misc%20Info%202013/VA-TDIU-Fast-ltr-13-13.pdf

yeah I thought so at first, but these latest moves with the VA combining older claims with new ones might make things difficult for them. They will have to word the denials in such a way that makes sense with the time lines of your filings.  They can only BS for so long before they have to face the music, and admit the wool they've been pulling over people's eyes.

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What do your C & P DBQ's say as to the affect of your different SCs on your ability to work? Do you have a Professional Employment Councilors written opinion as to you being Unemployable due to your SC conditions?  Just might be time to get with the VA Vocational Rehabilitation Department. If the VA's own Professional Employment Councilor agrees that your too Fracked up due to your multitude of SC's to successfully complete a Voc Rehab Program, a Denial Letter could be the answer to your Evidence problem.

How old are your SCs, has there been  VA Medical documentation of significant deterioration regarding any of your SC DXs?  Have you filed for or are you now receiving SSD? Is there any medical evidence indicating you are precluded from "ALL types of SGI producing Employment," including Sedentary work? Proving that your unable to earn above the SGI $12,400 per yr ($238.50 per wk) is difficult without a (C&P DBQ or Voc Rehab Councilor's Denial Letter). You can't just be Unemployed or Under-employed.

What does your BVA Lawyer say? You have discussed your case with a VA Appeals Lawyer, right? Just a rough estimate, your looking at what, about $62K+ Retro? Can you afford to loose this appeal, the 20% ($12,400) fee, would be cheap for a WIN.

Semper Fi

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To answer your questions I will try to do so in order.  The DBQ’s that my private doctor filled out state the effect of my conditions to my work and career field that I had retired from. Been stating that since oh about 2013.  

 

I am only claiming that my service connected conditions are the reason for my problems at work and having had to retire  because of them.   The fact that I have other work related injuries and diseases is not the point.  My service connected issues however, are. 

 

Voc Rehab had approved me for 1 year of Voc Rehab but I requested to withdraw the application because it was uncertain if the ITP was going to terminal, I called from the hospital and cancelled the appointment. To be clear they never met with me or asked for any records.  I learned of the approval only after I received a Statement of case for my first claim and ebennefits showed approval for 13 months of VOC REHAB.

 

I have filed for SSD as it was necessary to do so to retire from Federal Service.  Denied once I applied and now pending after I discontinued working

 

My functional capacity exams and my private doctors DBQ’s and Independent Medical Opinions were ignored and probative evidence was blatantly disregarded in my decisions.  DRO confirmed this.  No range of motion evidence,  I rectified that the same day with Dr. Ellis’  independent medical opinion.

 

Regarding employment I could no longer perform my profession, 55K a year and retired from it because of work injuries and the effect of my military service injuries.  Because the VA has not rated them correctly and claims are in appeal currently is immaterial.  

 

The law dog well.  We have been butting heads and he is now realizing that I was correct as he is still defending me currently.  I just don’t believe in playing by VA’s rules and regulations when they ignore the very laws that protect our rights.  This is a game and because it’s my life I am choosing to get it done as quickly as it can be done.

 

 

The order in which events happened has complicated things, not to mention my health problems however, that will be sorted out once I am service connected correctly for the conditions that I filed for.  

 

The money is not the point for me, it’s the principle behind these agencies believing they are above the law and don’t have to follow correct protocols.  Plus I really despise being implied and/or being called a liar.  I’m not the one going out of the way to hide facts or evidence.  

 

I am angry but not you sir, just as the system.  I am not doing well and don’t want to waste any time that I don’t need to, especially the decade or two that I may have to wait to get this sorted out in the BVA and courts. That is my belief and opinions.

 

JMHO

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