tdiu TDIU - Permanent and Total

[Penelope]

I retired from the Post Office 4 years ago due to Chronic Fatigue Syndrome.  It was a regular retirement.  I left on my doctor's advice because I could not do the job and the stress was making my CFS worse.  I filed for SSDI and that was granted for CFS, as well as other issues.  Since that time,  My rating of 60% disabled for Chronic Fatigue Syndrome has been in effect for more than 20 years and I am 63 years old.  I think I should file for Permanent & Total and or TDIU, but am hesitant on doing so.  I tried to write up the paper work today, but it is so difficult to relive that time in my life.  I should also add that my VA doctor has written up letters over the 20 years with the same restrictions the entire time and stated that my disability and these restrictions were permanent and no endpoint was defined.   I was accommodated in my position until about 2007.  At that time, things changed and they no longer wished to accommodate me, as well as others.  They didn't want anyone there that had any type of restriction.  After more than 17 years in a bid and being accommodated for that long, the bid was abolished and it took more than 3 years to get a bid and an accomodation.  In that accomodation, I was told it was an accommodation of last resort and could be changed at any time.  They also abolished the occupational code, so I took a bid that I thought I had a chance that I could do.  It turned out that I was unable to do the bid and realized that I would have to start the whole process over again to find a job I could do and get accommodated.   That is why I retired.

I feel paralyzed and am not sure if filing this is the right thing to do or if I should just keep the 60% and let the rest lie.  I cannot risk my 60% rating.  My Chronic Fatigue Syndrome and restrictions are what lead to my retirement.  SSDI decision addressed the fact that I can no longer even do sedentary work.  The stress of even thinking about and following through on another VA claim is taking its toll.  I think that is why I have waffled on making this decision.

Your thoughts are appreciated.  Thanks for your time.

 

[rwskitch]

...just as broncovet, say's 'developing to deny' in his comment on 

I say your lawyer's up on the VA's shenanigans...!

[broncovet]

Interesting, Mike.  

    The VA tried that with me.  I already had a favorable competent medical opinion, and they scheduled me for another exam, who was not competent (she was an MD, but admitted to me she had no expertise/training/experience in sleep medicine/sleep apnea) and, of course, she gave unfavorable evidence to deny, and the VA denied.  In my appeal, I asked that the new c and p exam be disregarded because I have challenged her credentials, that an MD does not make her an expert in all areas of a medical nature in which she has no experience/training.    I should find out soon if my challenge to the examiners credentials was upheld.  Remember, if the VEt does not challenge the credentials by or before the BVA, the examiner is presumed competent by the presumption of regularity.  A Veteran can not challenge the credentials of the examiner at the CAVC level without first challenging them at the BVA or RO level, because the RBA is sealed when you appeal to the CAVC, and you can not submit new evidence to the CAVC.  The CAVC decides the case based on the record before the Board, and neither party can submit new evidence.  

      The c and p examiner is serving as an "expert witness"...that they examined the patient and determined, xxx and yyy, even tho the examiner need not be present at the CAVC, his report is sufficient.  The examiner, for his/her to be a valid opinion, needs significant experience or training in the field of which your C and P exam was done.  A psychologist can not opine on bone fractures, but the VA gets away with this, because Veterans do not know enough to challenge the competency of the examiner.   

[HorizontalMike]

2 minutes ago, broncovet said:

Interesting, Mike.  

    The VA tried that with me.  I already had a favorable competent medical opinion, and they scheduled me for another exam, who was not competent (she was an MD, but admitted to me she had no expertise/training/experience in sleep medicine/sleep apnea) and, of course, she gave unfavorable evidence to deny, and the VA denied.  In my appeal, I asked that the new c and p exam be disregarded because I have challenged her credentials, that an MD does not make her an expert in all areas of a medical nature in which she has no experience/training.    I should find out soon if my challenge to the examiners credentials was upheld.  Remember, if the VEt does not challenge the credentials by or before the BVA, the examiner is presumed competent by the presumption of regularity.  A Veteran can not challenge the credentials of the examiner at the CAVC level without first challenging them at the BVA or RO level, because the RBA is sealed when you appeal to the CAVC, and you can not submit new evidence to the CAVC.  The CAVC decides the case based on the record before the Board, and neither party can submit new evidence.  

      The c and p examiner is serving as an "expert witness"...that they examined the patient and determined, xxx and yyy, even tho the examiner need not be present at the CAVC, his report is sufficient.  The examiner, for his/her to be a valid opinion, needs significant experience or training in the field of which your C and P exam was done.  A psychologist can not opine on bone fractures, but the VA gets away with this, because Veterans do not know enough to challenge the competency of the examiner.   

BINGO!

Great information to know!  This may come in handy in my OSA claim, now appeal, that is still "in process".  A PA wrote the opinion slicing and dicing my appeal, via my lawyers remand to revisit.  I'll look into this, though it appears to me that she was and is unqualified to offer such an opinion.  She actually opined "...that this should not be serviced connected...", something she has no legal authority to do.  This was pointed out to me by my lawyer back in September 2015.

[broncovet]

The attorney who represents Vets, Chris Attig, has much on his website in what he calls, "junk science", where incompetent examiners give VA evidence to deny.  The examiner needs to be competent in the field of the exam, not "just" a doctor, or NP.  I mean puleeze.  Otherwise, I could use this to my advantage, too.  For example, 

I could get some of my PHD friends, with a Phd in computer science, to opine that all my conditions are "at least as likely as not related to military service."   After all, they have a Phd, (doctor degree)  right?   Of course, this would not fly as the VA could/would easily "challenge the competency" of the examiner in that their Phd in computer science does not make them a medical expert on knee fractures, sleep apnea, or hearing loss.

     Im not suggesting I would do such a fraud, nor would I recommend you do it.  No, a thousand times no.   Im just pointing out that not all C and P examers are competent and qualified to be an expert witness.  This is true in both VAMC employee exams and contractors who do exams, such as QTC.  

       These VA examiners make big bucks.  I read several years ago, that VAMC pays something like at least 350 dollars for an exam lasting less than an hour.   Enter QTC.  Lets hire a nurse practioner who lost their license to do exams.  This unlicensed NP will work for half of what a real NP would.  (They lost their license to practice medicine, but that does not mean they can not work elsewhere, and an examiner does not treat you.  They specifically say they wont treat you, that they do only exams.  So, they are not practicing medicine without a license, they are merely doing a consultation, and not any treatment, whatsover.   Berta, a week or so ago, checked on an examiner who had their medical license revoked.)

    Its easy to be deceived.  You go into a hospital or Doctors office.  The examiner has an office, where there are blood pressure cuffs, and medical charts on the wall, so this guy knows all about whether your diabetes is related to high blood pressure, right?  In theory, this could be the maintence man for the hospital, who put on a suit who knows how to speak like a doc.  "Hmmm...I dont think your diabetes has anything to do with your high blood pressure.  Your high blood pressure is due to stress."  

    Ok, doc.  By the way, didnt I see you at the Comacom?  What is your degree in, anyway, it sounds like you knew a lot about comic books?  Bingo, he has a degree in comic books.    The VA gets away with incompetent examiners all the time, because they know that most of the time, the Veteran is unaware he could/should challenge the competency of the examiner.  

Edited January 8, 2016 by broncovet

[HorizontalMike]

Absolutely!  And the examiner in my OSA appeal is NOT even a "doctor", of any kind!  Sheei..iP!  Even I have a Doctorate (in Educational Administration).  And I'm supposed to be bedazzled her wanna-be doctor's assistant status with only a BS or maybe an MS.  I got each of those as well!

I'm sure my lawyer is all over that aspect of it.  The thing is though, the VA is still dragging this crap out forever.  As mentioned earlier, the only thing I have is a Summary of Case, and THAT is NOT a SOC, or Statement of Case.  Still waiting on an Official Rating Letter as well, now 8-weeks after some but not all of the rating decisions were made.

As my lawyer said when I called and B&M'd about this with him, "...Until we get and Official Rating Decision, we know NOTHING..." of what the final rating decision is, AND WHY.

[broncovet]

Ok, Mike.  Lets put your Doctorate in EA to use.  YOu can do c and p exams, (you may have to shave and put on a tie).  VA will surely hire you because you can offer to work cheap and give evidence to deny.  

Then you can award every claimant.  When VA whines you are approving too many VEts, you can counter the VA is denying too many, and they cant fire you because you are disabled and can't read, so someone must have given you the wrong stamp of "at least as likely as not" instead of the one "not related to service".