Wrong Retro date for TDIU P&T and Secondary Conditions

[Penelope]

I recently received my award letter for TDIU and it was made Permanent and Total.  I want to thank all of you for your kind advice over the years and teaching me about how I should approach my claim.  It has helped in many ways, especially letting me know what to expect.

I filed a notice of Intent to file in February 2016 and submitted my claim in August of 2016.  In calculating the back pay, they went back only to August 2016 and not February 2016.  They said in the letter that since I left work in February 2012, they would only pay me from the date that I filed the claim, August 2016, since I did not file within a year of leaving work.  I don't think that is correct and think they should go back to February 2016 when I filed the Intent to file.  I just want to make sure I am right or they are right before I formally question that date.

My next question is:  Since I am rated TDIU and Permanent and Total, should I file Secondary Conditions.  I am rated at 60% and have had that since 1994.  My concern is that if something happens to me that my husband will be able to have some money coming.  

Again, thank you for helping me over the years.  I certainly appreciate it.

 

Penelope

 

[Berta]

"They had failed to consider any of my doctor's letters in the first decision, even though they had them."

If the VA fails to consider and completely ignores probative evidence, such as medical evidence from a non VA doctor, they have violated 38 CFR 4.6 and that is a valid basis for a CUE  claim.

I didn't realise there had been a prior VA decision.

If you can scan and attach that decision here (to include the evidence list) we can help more if it is a CUE scenario.

Cover the C file, name, etc.

Did you receive a SSDI award solely for your SC conditions?

If so, did the VA know of that award?

It certainly seems like something is wrong here but it is the actual words of the VA, in decisions, that reveals whatever errors they could have made.  and of course, if a vet has proof that VA received probative evidence, and then VA does not even consider that evidence, the Evidence list or the narrative of the decision will reveal if there is a CUE potential.

 

[Berta]

And you had this question:

"My next question is:  Since I am rated TDIU and Permanent and Total, should I file Secondary Conditions.  I am rated at 60% and have had that since 1994."

If the 60% is for  a separate disability than the TDIU award disability  , the VA should have already considered you for SMC S.

But if the 60% involves the TDIU award, yet you have other disabilities that render you hjousebound or fulfill the SMC criteria here ( suh as anything separate from the TDIU that can be rated at 60%, then by all means file for SMC.)

I use my dead husband's ratings as an example:

100% for PTSD P & T

100% for 1151 CVA stroke 

No consideration at all for SMC . 1998. I won a CUE on their lack of consideration.The decision refers to both a grant of housebound as well as the 100% plus 60%, but the retro was SMC S under only one theory

You asked:

"  My concern is that if something happens to me that my husband will be able to have some money coming. "

We never know what the cause of our death will be. I feel a veteran should claim and be rated for anything that can be service connected, even at a low rating that would not raise their standing compensation.

Another personal example.

My husband had been rated at 10% HBP NSC consistently for the past 6 years of his life.

I proved the 10% was malpracticed on and it became a 1151 "as if service connected" disability ( the award came under CUE 21 years after he died). My medical evidence from a VACO review in 1997 revealed that the malpracticed HBP contributed to his death.

I have a DIC award that was for the malpractice of his heart disease , and stroke under 1151.(and other multiple deviations from a standard of care". 1998

In 2009 I was awarded direct DIC, and then in 2012 another direct DIC award, for  DMII (AO)2009 and IHD (AO) 2012, and HBP -DIC 2015

My long point is that because the VA never rated the HBP as 1151 in 1998, and if I had not pursued the direct SC DMII and IHD, and a proper 1151award for the HBP and no FTCA case had been filed, .......

I would have been left with a denial due to all  NSC disabilities , (except 100%  SC PTSD) never documented as contributing to his death- and therefore no DIC at all.

My husband mentioned this the day he suddenly died. He brought up CHAMPVA and hoped the VA would straighten out his 1151 claim soon.What we did not know was that CHAMPVA does not come with 1151 deaths. Nothing does. Except DIC.

Vets, in my opinion, should always try to get a SC rating for anything that might eventually cause or contribute to their deaths.

Ironically VA is considering HBP as an AO presumptive. And also Stroke. For me it means another AO claim. But I have no idea what presumptives they might add...if any...to the AO list.

 

 

 

 

 

 

 

 

 

 

  

[Penelope]

Berta, Thank you for getting back to me.  Attached is the decision.  Thanks again to all for your help.  Hope the files came through ok.

 

 

 

 

 

 

 

Edited August 14, 2017 by Penelope
Personal info viewable.

[Berta]

I sure learned something new- I had never heard of the disability you have before but they rated it as analogous to Chronic Fatigue syndrome.

I feel they definitly made a CUE in the EED but then again this thread needs more input from others here.. 

But this is what I don't get...I hope others chime in

The Evidence list  states the date of the Intent to file claim as June 12, 2017, but then further down it states the ITF  form was filed and received on February 18,2016.

They used the date of the receipt of your TDIU claim as well as the same date they received the SSA info, as August 25, 2016...and also receipt by them of the 21-526 EZ form.

Why do they list the June 12, 2017 date as receipt of the ITF claim?

Did you ,for some reason file two separate Intent to File ( ITF) claims?

[Penelope]

I had to delete the award letter.  I was told that in spite of trying to redact private info, it could still be seen.  Thanks for looking at it.  I filed a separate notice of intent Feb 2017, or should say the VSO did because he thought I would have better success filing for secondary conditions.  I have yet to file that claim.  I do have about 6 dbq's ready to send in.

My service connection was very difficult to prove.  I had a diagnosis in the military and it continued.  When I got out everyone told me they never heard of such a thing.  I ultimately, 11 years after I got out had to prove the diagnosis was related to the newly titled Chronic Fatigue Syndrome.  I think it probably took about 10 years to get through BVA.  Believe me, after that I never through anything out.

I faxed the reconsideration in on June 8th 2017.  Perhaps the June 12th date is when they got to it.

I will be filing the secondary conditions, but wanted to wait until the TDIU claim was done.  I think that it might take a trip to BVA to get those approved.

Thanks again for your help.