NOD, CUE, or some other process

[GeekySquid]

Hi all,

As i said in another post I am new here and looking for guidance, opinion, options that may be available to me.

Without all the gory and boring details, I am currently rated SC 70% PTSD, 10% Tinnitus with a statement that my bilateral hearing loss is not service connected.

This all comes from the same original claim in 2012.

I found out last year, 2017, that in making the bilateral determination the doctor only looked at my second enlistment and did not review any records from my first enlistment.

I found this out when going through my records which took years for the VA to "Find".

In the records are audiology test records from the first enlistment which show the damage occurred in service. In my first enlistment I had 3 audiograms. 1 to enlist, 1 diagnosing problem, 1 to re-enlist. in my second enlistment I had exactly 1 audiogram which was when I completed my enlistment.

In the record from the first enlistment is a piece of paper that says  "rehabilitation plan complete." but no other information. When I took the 2nd test they told me to wear earplugs when i could. That was it.

In the test results between enlistment and the 2nd test it shows the loss in both ears.  The final test on discharge says hearing is the same as at re-enlistment which was after the damage.

So here is my question on this:

What are my options to challenge this decision? I did not discover that they did not look at both enlistments until last year, which is 5 years after they granted me my initial 70 & 10 percent ratings.

Is there an option? Do i start it all over again? would I need to get a lawyer?

any suggestions would be great

Thanks

 

 

[GeekySquid]

16 minutes ago, Lemuel said:

That is right.  Even at 70% if you are not working, or working in a sheltered environment make sure your claim includes TDIU for 100%.  It is presumptive at that level.  You can take up date revisions and other issues on appeal including TDIU.  You just have to have a claim filed for TDIU or some request that is reasonably close to a claim for TDIU.  Just having said I'm not working or I can't work well is enough.

@Broncovet

Thank you again for the response. Sadly the way my mind bounces all over the place getting new information generates new questions.

You may or may not have a view on this scenario but I am asking anyway.

Since I don't have the "results" from my C&P review yet, if I put in the TDIU claim now,  will it a) affect the outcome of the C&P review ( or at least is it likely to affect it) and  B) if the rater of the review gives me 100% based on the new information and a TDIU claim has been made, will the VA prioritize one classification over the other?

Obviously everyone would rather 100% Schedule P&T, at least if they are able to work to some degree and don't want the income limits of TDIU. Additionally the Dept of Ed has pushed through a new rule that vets who are 100% disabled will have any student loans erased without tax implications. The challenge comes in if the vet is TDIU and eventually gets to  point of being able to work, they will have to pay back or re-affirm the student loan debt. In either case the recipient can expect to never get another fed student loan.

I have 100K in student loans that come due in September. I am on the IBR plan but the services are notorious for playing games to get borrowers tripped up so they can revert them to accelerated full payment plans, though it is unclear if this payback has a limitation or lasts for the rest of your life. So writing indicates that if TDIU lasts for 3 years you are clear of possibly having to re-affirm the forgiven loans. So this would be a big benefit to me either way, but better if Schedule vs. TDIU.

Thanks for any further info on this.

Mike

 

[broncovet]

The VA has a duty to maximize your benefits.  (In theory.  In practice, this means the VA has a duty to delay, deny, or lowball as much as possible)  

Worrying about waiting to submit paperwork (including a new application) because you think it delays you would be like sitting down at a resteraunt, and waiting to order your drinks, because you are afraid it will delay your food order.   Tatoo this on your arm, if necessary:

Quote

Your claim IS going to be delayed.  If the VA does not currently have something to delay, they will find it.

    Most Vets, who have actually received 100 percent, have only done so after one or more appeals.  Currently appeals to the BVA are taking at least 5 years.  Yes, I understand you want your benefits in 60 days

[Lemuel]

3 hours ago, broncovet said:

The VA has a duty to maximize your benefits.  (In theory.  In practice, this means the VA has a duty to delay, deny, or lowball as much as possible)  

Worrying about waiting to submit paperwork (including a new application) because you think it delays you would be like sitting down at a resteraunt, and waiting to order your drinks, because you are afraid it will delay your food order.   Tatoo this on your arm, if necessary:

    Most Vets, who have actually received 100 percent, have only done so after one or more appeals.  Currently appeals to the BVA are taking at least 5 years.  Yes, I understand you want your benefits in 60 days

I'd use both new evidence "not considered" that existed under 3.156 and 3.105 CUE.  CUE automatically revises the date.  New evidence claims can be assigned the date of the claim with new evidence.  That is the reason I'm claiming both.  In old cases, not at hand at the moment, new evidence had to be something that was not in the file at the time.  If it was in the file at the time it had to be a CUE claim.  So to escape that trap file both.  3.156 seems to have been changed since I first reviewed it and since my attorney cited it to me in 2011.  She may have been going on the old cases.  The 3.156 quoted by Bronco seems to apply to anything they left out of the evidence considered.  

Use a claim of "safety denial of less mentally stressful employment" such as using motor skills, driving, etc with the hearing problem to claim 30% as a "definite impairment of  industrial adaptability."

Also depends what level you are teaching at.  Adult Ed is much less stressful than K-12.  K-12 burnouts from stress move to adult Ed.  Junior College or College has students that are applying themselves.  Much less stress to the teacher and much less leaning on by the Superintendent.

In re-reading your first post it isn't clear to me if you are in appeal to the BVA or in a reopened claim.

I'd consider taking a rest, applying for TDIU presumptively, getting the 100% that way while attending the new VA PTSD group therapy "Cognitive Therapy Program" (CTP) and individual therapy for a couple of years before trying to work.  That would at least put you student loan on hold if not cancel it.  It would give you time to get yourself together before trying that teaching job.  I would go as a substitute or part time after a couple of years and work up to stamina.  You have no idea, unless you are working full time now, what full time work stress is going to add to your PTSD.

36 years after my first PTSD therapy I'm back in therapy because of the stress of just pursuing my claim.  I had 26 years of unemployment and being unable to pursue my claims until I finally received TDIU from 2009.  Still pursuing  service connection and date revision under CUE for my PTSD claim of 1984 which is aggravated by the lower stress threshold of a brain that has a moderately severe TBI history.  It is my claim that the two aggravating each other should give me 100% from my last full time employment to 2009 when I was finally granted TDIU in a BVA decision of May 11, 2017.

I was an honor roll student when I got my BBA in 1976 but couldn't hold a job.  Very little stress as a student and the teachers overlook that "off day" which is noticed less than on a Job where multiple off days get you fired.

I'm now being treated, since August of 2015, for temporal lobe seizures with Keppra.  A life changing experience.  I'm more employable at 77 than I was at 33 when I got out of the Navy after 13 years, 5 years after my SC TBI.

Take a careful assessment of your stress tolerance before you jump.  If you find anger is a current problem back off from that urge to do employment and stand on your feet for family.  Take your time to heal.

[GeekySquid]

@Lemuel

Thank you for taking the time to continue this conversation. This is long so I understand if you don't want to wade into it.

The easiest (?) thing first. The "status" I am in is that I was finally rated as SC 70% PTSD 10% Tinnitus in 2103. Since then I have not applied for anything. Last week I got notified by QTC that the VA mandated I have a 'case review' with them, and that occurred on Thursday the 16th. If i missed the appointment I would have my benefits cut off, so I went.

The doctor who did the review stated that even though they (qtc) were not supposed to comment or opine on what the raters would do, in his experience his vets were getting a decision in about 5 weeks and that the report he was writing 'should' increase my rating significantly and he was 'adding' 3 new conditions to the report.

I have no idea how valid his claims are, but the whole thing started me digging into finding out my 'next steps', and hence I came here and started reading and asking questions. I really don't know how to do many of the things that you experienced folks take for granted with filing for claims. The processes tend to bog me down. I don't want to muck up his review, but I also need to do things like get my C-file (which I am still not sure how to do and I cannot get into ebenefits right this minute, it says my login is bad and I cannot change my password more than once in 24 hours DERP).

I am trying to find out how to file for TDIU, the extra income will help situations listed way below this in the post.

I have an appointment to get my Primary Care doc assigned on Sept 4.

My anxiety is up, my depression is spiraling, my nerves are shot, i am dizzy two or three times a day (which I thought was diet related but might not be) my visions have doubled in content and intensity and my night terrors have gone from a normal 2 per night to sometimes 3 and 4 episodes per 24 hours. I don't sleep more than 2-3 hours at a time and do that sporadically during any given day. On the rare day I get 4 consecutive hours I wake up more exhausted than not. My mind races constantly.

that is the simple one.

The more complex situation involves my problems, how I found a way to cope and work, and what that means in terms of how the VA views my employability and total ratings.

Starting at the beginning:

In 1984 I asked the Navy for help after the events happened. The doctors on base and my commanders informed me that if they entered my problems into my records they would have to discharge me and that would deny me any veterans status or benefit. I got progressively worse and by oct 89 I was becoming a danger to myself and my shipmates. If I re-enlisted I knew beyond a doubt someone would be harmed by me or my actions, so I got out when that enlistment was over. I had planned on doing 20, but was only able to do 10.

In 1990 I went to the first of a dozen VAMC's and RO;s seeking help. They were the first to deny me any help and the first to say they could not find any record of me serving despite my handing them my DD214's and other records.

In 1990 I got a job because I needed the income, and figured, wrongly, that once I left the environment of the military my problems would recede. They didn't.

I found that my problems caused problems staying employed, and by Sept of 1990 I bolted. I abandoned my house (turned back to bank in foreclosure), turned in my car, paid all my cc's and made sure my will and bank accounts were up to date. I had some money set aside and I figured, wrongly, that I was just going to take a restful vacation. I told my friends I would be back sometime and asked one to act as my legal rep while I was gone. I ended up living in a cave in the Mexican desert near Chihuahua for 18 months. There are some great crystals there and tourists will by them sometimes, so could make a little cash and do hard labor which helped calm my mind with the physical exhaustion of each day.

When my mind and emotions untwisted, I returned to civilization. My friend had faithfully taken care of my accounts and I was able to start rebuilding a life back in society.

This time I got work as a consultant doing set duration projects. I actually made more money than if I was an employee doing the same work year round. I also had control of when, where, and how i worked.

Over the next decade and a half the cycle was predictable as snow in December. Things got bad, my visions and night terrors got worse, my temper got shorter, my social skills dropped off, and all my emotions became heightened.

What I experienced is that in work that occupied my mind every day to the point of exhaustion, pushed the bad stuff far away and the night terrors were not so bad. The things I see every day became normal. I also started working out daily to add a physical exhaustion to the mental exhaustion.

In 2005 I retired to New Orleans with money I had stashed from the DOT COM boom ( i am very geeky and kinda smart in the tech stuff). I expected to live out my days quietly, but a piece of property and build a big fence around it. put in a garden. If things got bad, I would just lock the fence and put out a sign 'gone fishing' and deal with my problems.

By this I was done trying to get help from the VA.

10 days after my household stuff arrived and was put in storage, Katrina hit. I rode out the storm, and then ended up living in a nearby swamp for several months.

Late 2006 I was emerging and starting to get back on the path to 'normal' (or what passes for it in my life).

Late 2007/2008 the economic crash hit and my savings and investments all but evaporated.

I went back to my swamp. BTW Nutria may be ugly rat looking critters, but they are good eating and plentiful out there as are gators

2009 I emerged again and since my money was all but gone, tried to get regular jobs. This did not work, but I was able to create work-arounds to earn enough to eat. I mostly lived in buildings still not repaired from Katrina.

2011 I got back to working as a contractor, got an apartment, started rebuilding.

2012 Hurricane Isaac destroyed my apartment with me in it. I spent five days in there with no roof and the storm raging.

I went to try and get help from FEMA, barely holding on, when I ran into a VSO (did not know what that was) in the line and we started talking. I told him I was a vet and without a roof, basically homeless if FEMA did not help with immediate funds.

He talked me into trying the VA again, this was right after all the VA drama was made public so they were hypersensitive to not helping vets which I think made the process actually easier and functional for me and the VSO did the heavy lifting on my claim.

I got rated 70% PTSD, 10% Tinnitus. No one ever mentioned TDIU or IU. I did not know in any concrete way those were an option or meant additional money to me. What the VA did was even though I already had advanced degrees was to allow me to get 'new' credentials in the form of a new degrees. This is unusual and i don't know exactly how they got past me already having advanced degrees, but I did not argue and I did not question them. I make sure to never mention my older degrees to anyone at the VA.

I finished an MBA in Dec 2017. Literally 3 days after I graduated I was assaulted by the adult son of a neighbor in my complex and called the police. Turns out he was a former marine kicked out for being "violent" and had a long rap sheet. The landlord knew all this and had allowed him to illegally live in his mom's Section 8 1 bedroom apartment with her and his girlfriend. When I called the cops the landlord turned it back on me because it exposed his illegal renting habits to DHS.

I ended up being homeless in NOLA again.

It was apparent that I would not find gainful employment there, as I am a geek, so I contacted several old friends in Seattle, people I used to hire to do work no less, to see if i had opportunity up here. They said yes and one said I could rent a room in his house.

I packed up, stuff in storage, and drove across country. I kept in contact with my soon to be roommate every day right up until the day before I would hit Seattle. He stopped responding to me. I figured he was busy.

Got to Seattle, tried him again and again. no answer. Got a hotel room. Called other friends and they tried to find him. no answer. Went by his address and no one was there. Short version is he has disappeared. His former wife says he has not contacted her. She filed a police report.

I am now living in my car in Seattle. I am able to shower at a friends house when her schedule allows. I have a power inverter for my car so I can boil water fry eggs etc using very little gas.

I contacted the local VA to get into the Seattle system, contacted VR&E, contacted Worksource, contacted Homeless Vets program. Contacted SSVF program. I have applied for over 100 jobs, professional and labor type jobs. no luck.

My VA compensation is $80 a month too little to have the qualifying income for any of the subsidized housing programs in this area. SSVF will pay first, last, deposit if I can get a job paying enough to qual and the program(s) find an apt that will accept me.

In the middle of this the VA decided I needed to have my case reviewed by QTC, which brings me back to why I am on here asking questions.

I suspect that by being able to "Find a way" around my problems in the past is now going to act as a negative. I was unaware that if I presented myself to be as pathetic as possible I would actually help myself in the short and long runs. By nature I cannot be deceitful and it is painfully difficult to actually tell people all of the gory details about my conditions, the effects, and in being homeless.

As a side note the people in this McDonalds are getting antsy that i have been here this long today on their WiFi so I will be going back to my camping spot soon. I will try and check here tomorrow.

That's the bulk of the details. there are other minor things involved but this is way to much to type at one time. My emotions are raw and just typing this has made me angry for no reason.

Thanks for listening. I will try and keep any future posts or responses much shorter.

 

 

 

 

 

[Gastone]

I did a quick read, you have PTSD 70% Award and 10% Tinnitus.

What do you base your Loss Of Hearing SC % if an Appeal were to change it as SC? Could you post a redacted copy of your Private and VA C & P Hearing GraphHearing Losses and your Test Word Results, 90% guessed or understood?

Did your private ENT and the VMC C & P Hearing Losses compare results from the Hearing Testing and Word  Results, regardless of SC or not.

[GeekySquid]

@Gastone

I am 70% SC rated for PTSD and 10% SC rated for Tinnitus. My Bilateral hearing loss was rated NOT SERVICE CONNECTED and no percentage given.

Exploding aircraft loaded with ordinance and as well as spent uranium cartridges are part of the events that created my nexus.  The spent uranium burned which I now believe is part of my respiratory issues and sleep apnea. 

All tests and evals were done by the VA and / or VA contractors. Prior tests were done by the U.S. Navy.

I have no privately paid for IMO's on any of my noted conditions.

The files I have are in a storage unit on the other side of the country. I just moved to Seattle and have not yet had my stuff shipped. It is cheaper to store them in NOLA than in Seattle so until I get permanent housing they stay there.

I am going to request my C File. One or the other will show up first and then i will post redacted copies of all the tests.

1st test -on enlistment

2nd test- complaint of ringing and hearing loss to Nav Med on base

3rd test- enlistment/re-enlistment

4th test - discharge

nothing that amounted to "treatment" other than being told that I can wear hearing protection. But oddly there is a page that says "baseline reset" after the 2nd test but before the 3rd test. I don't know what that means as there is no other supporting information in those files.

VA-single hearing test in 2012

Ratings granted 2013

10 minutes ago, Gastone said:

Did your private ENT and the VMC C & P Hearing Losses compare results from the Hearing Testing and Word 

not sure what you mean by "Hearing Testing and Word."

The VA C&P doctor only looked at my second enlistment /re-enlistment test according to records. that means they did not see the actual baselines and when the losses occurred. As I said I have never had a private doctor look at any of my rated conditions.

That record is a letter in in my files ( but I never received a copy in the mail with that determination) in the storage unit, so once I get that stuff or my C-file i will figure out how to 're-open' or 'challenge' that decision from back in 2013. Since I did not find out about that letter until I got those files until 2016/2017 and the box contained several thousand printed pages.

I was told by @Berta that the Bilateral Hearing Loss should have had a % assigned even if it is not SC. Ebenefits does not show a % and until I get the files i cannot speculate on if that is an error on Ebenefits or if they just did not give one.

Just so you know, I have never appealed or argued with any of the ratings mainly because I fought with the VA for over 25 years just to get them to admit I was in the service and had problems they were responsible for helping me fix. When I got rated i was over joyed and did not want to rock the boat. Based on what VA employees said to me it seemed the smarter idea to just accept things and move  one.

Now that they forced this review on me and the C&P reviewing doc from QTC said what he said, I am rethinking that whole "don't rock the boat" perspective.