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

[HorizontalMike]

Come on... breathe buddy, breathe...  There is nothing we can actually do to speed up the VA process, though we ALL hope that we can...

 

[ArNG11]

To a degree you are correct. However there is a way to assure your probative evidence is not ignored or dismissed. Use the corruption to your advantage. Records, medical evidence, probative medical opinions with nexus and medical rationale. Always list your evidence, always green card everything you send the VA. 

When my efforts become realized I will share what worked as well as the setbacks. 

Fight. Fight till your last breath. 

JMO.

[Guest]

ArNG11, sorry I don't know where my brain has been but I am trying to catch up with this post and hope things work out for you.

Buck asked

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.

Let's get one thing straight, out and clear VA don't care about veterans until maybe their story hit the news. I have seen when a veteran files for TDIU and s/he did not meet the minimum criteria, VA would raise one or two of their already service connected disabilities and grant them TDIU. I have also seen VA deny a veteran in a similar situation.  It's crazy, I always say that there is no standards at VA. It seems that each VARO do what they think they can get away with.

 

[ArNG11]

You think so, I would tend to agree, however, I have to add, for the indiscretions the VA can only get away with what you let them.  

I am on holding, flying a set pattern above the sky, eventually I will get cleared and land.

The raising of the percentages is correct. One disability at 60% or multiples adding up to 70% with one being at least a 40%.

§4.16   Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor,

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

I mean that is what is supposed to happen, but like the members on here have stated before "VA doesn't need no stinking rules" especially when it favors the Veteran.  We shall see how this regulation is interpreted beyond the local Regional Office.

JMO

Edited February 8, 2016 by ArNG11

[Guest]

ArNG11, I do agree with you but what really confuses me is my particular case. A VLJ remanded my claim twice knowing that I had proof in my records that VA should have granted my claim but after the local VARO continued to deny my claim the VLJ instead of granting my claim decided to deny my claim forcing me to get a lawyer and file a claim to CAVC in which it was remanded and that is when the VLJ granted my claim. It seems that a veteran will have to force VA hands at times. If I had not gotten and attorney I would be out thousands of dollars.

My point is even with all the evidence in front of them VA will still try to get away with denying veteran his/her benefits.

Edited February 8, 2016 by pete992

[ArNG11]

Pete, I agree with you.  This is just my observations from my experiences and personal acquaintances who have had similar accounts.  You have good attorneys and you have real crappy lawyers, or lack thereof.  Even with an attorney, it would behoove the claimant to become familiar with the laws and evidence that surround and apply to your case. While I can definitely state fighting a claim on your own is no easy task, however, I doubt you will find anyone else that will care more about your claim than the chap or gal you see in the mirror every day.

In my opinion you have to be a team with your representation, no one knows the particulars about your case like you do, communications between you and your attorney have to be clear.  One must be especially clear if you utilize a VSO.  There is too much at stake for you not to.  

The whole matter with the TDIU will be interesting.  The VA seems to choose when I am expert in my own claim and when it is convenient for them that I am not.  This is not Burger King " you can't have it your way"  I am very curious to see how my claim unfold.

I'm no one special and I have had to fight just like every one else here on this forum.  Back up your position with the regs, law, and especially the evidence to include an IME/IMO, you will most certainly have need for them all.  JMO

Edited February 8, 2016 by ArNG11
clear idea