Two Matters: Denied TDIU Despite Rating of 70% on Two DBQs and Retroactive Benefits for Subsequent Service Connection

[ljl]

My title practically tells the story..

 I have two issues here. I don't know if I should have posted separately but here they are. The first is regarding my denial for TDIU and the second concerns making a connection for retroactive benefits between a recently service connected claim and an original.

 I was recently service connected at 70% for anxiety and applied for TDIU. I have two DBQs on file both of which rate me at 70% occupational and social impairment. 

The denial letter was very vague/didn't contain an explanation as to why they denied me. They only stated that despite my 70% they'd found I was capable of gainful employment. 

 I sent in 7 years of tax returns all showing my income to be at close to 50% of the poverty level and I've been unemployed for a year.

What happened?

 I've contacted my Congresswoman's office for help and am waiting to hear back. My VSO has been of very little help. He told me to get two letters from my doctor or whoever, stating I can't work but my counselor just went on post pregnancy leave indefinitely and my new counselor isn't familiar enough with my condition to write a letter. My primary care doctor wouldn't be qualified or willing to write such a statement I wouldn't think although I haven't asked her yet. 

Second issue: I filed an original claim for depression and anxiety in 1990 within one year of separation which I didn't appeal and it is final. I'm sure I can connect it with my recent service connection. My most recent claim was filed in 2017 for MST that I hadn't brought up in the 1990 claim. I was service connected with anxiety as a result of that claim but not MST (funny, i was sexually assaulted three times and continuously harassed from the day I entered into service in 1982 till the time I was discharged in 1990).

I'm thinking that I need to reopen that 1990 claim with new and material evidence but I'm not sure whether or not this process should have been automatically started due to the inextricable connection between the original and new claims. Is there legal basis upon which to compel the VA to consider the first claim service connected without reopening the claim? I'm thinking through the concept of reasonably raised claims (they should logically look back through my files, see the 1990 claim for anxiety, and put two and two together) and/or the fact that my two claims are obviously inextricably intertwined.  

 I'm getting ready to make some sort of communication with the VA regarding the latter of the two issues above. I'm just looking for clarification on how to pursue the second, specifically, should the two claims automatically be connected by way of similarity and should I argue that with the VA or should I proceed with reopening my 1990 claim with new and material evidence? 

Edited February 18, 2019 by Linda Jordan
misspelling

[broncovet]

1.  TDIU denial.  You left off the "critial" information:  Did your doctor state that you were "unable to maintain SGE due to sc conditions?"  If he so stated, then appeal, but you may need a voc rehab assesment to succeed with this claim.  Get your cfile, and see if the doc so stated.  

2.  Earlier effective date.  Ramp has lowered the standard for New evidence.  Its now called "new and relevant" evidence, which is a lower bar, which used to be called new and material evidence.  There are 2 important considerations here:

    a.  Was the missing evidence "new service records"?  If so, it should not matter the date you submitted this new evidence.  You should be able to get an eed.  Example:  the VA did not have in service records documenting mst, so they denied it.  You supply those service records and you should get retro back to when you filed, provided that the doc did not state your disablity began in xx date.  You see, the effective date is the later of the facts found or the date you applied.  If your doc said you were disabled in 2018, then it wont matter if you applied in 2012, you cant get it earlier than the facts found.  See 38 cfr 3.156 c

    b.  Was your claim "pending" when you submitted new evidence?  Example:  You apply for benefits in april 2012.  In May, 2013, you send them new evidence that is "matrial" to your case, such as an IMO.  In June, 2013, your claim is adjuticated.  Since this claim is pending, you should still get the same effective date.  

     Make no mistake here:  The GS7 rating specialist adjuticating your varo claim does not have the authority to authorize you a six figure retro.  That will only be made by a judge (BVA or CAVC, probably cavc).  This means you will need to hire a lawyer.  

     Without a review of your file, I cant determine if you have a good chance of winning an earlier effective date.  A lawyer who represents Vets and is familiar with eed, will likely review your file and advise, if you ask him/her.  

Edited February 18, 2019 by broncovet
add more

[ljl]

Hello Broncovet,

 DBQ : Under box 2b. Relevant occupational and educational history, the doctor said "History multiple jobs and applications for jobs since military. Inability to obtain employment due to background checks, reflecting legal problems including subsequent to substance use associated with emotional consequences of military sexual trauma". 

 In box 6. Remarks regarding employability are: "Occupational: Unemployment/underemployment, many jobs attempted/applied for without success, attempted vocational rehabilitation/training, inability to obtain employment due to history legal problems, physical condition adversely affects ability to work" . "Other: military sexual trauma/rape (substantiated by military records) contributing to employment problems and substance use".

"SECTION 1C AXIS IV: Severe symptoms depression and anxiety including recent history suicidal ideation,post traumatic anxiety."

I filed my original claim for anxiety and depression within one year of separation which should, in and of itself,  earn me retroactive benefits I would think according to 38 C.F.R. 3.4 00 as follows (sorry for copying such a long document): I've made the text blue where it's most pertinent. 

§ 3.400 General.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claimreopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.

(Authority: 38 U.S.C. 5110(a))

(a)Unless specifically provided. On basis of facts found.

(b)Disability benefits -

(1)Disability pension (§ 3.3). An award of disability pension may not be effective prior to the date entitlement arose.

(i)Claims received prior to October 1, 1984.Date of receipt of claim or date on which theveteran became permanently and totally disabled, if claim is filed within one year from such date, whichever is to the advantage of the veteran.

(ii)Claims received on or after October 1, 1984.

(A) Except as provided in paragraph (b)(1)(ii)(B) of this section, date of receipt of claim.

(B) If, within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt ofclaim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim. For the purposes of this subparagraph, the presumptive provisions of § 3.342(a) do not apply.

(2)Disability compensation -

(i)Direct service connection (§ 3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.

 As far as the MST goes, it's in the form of my testimony as although I reported it to my commander, there is no record of this particular event in my service records. There is, however, secondary evidence by way of actions that happened as a result this incident. Does my testimony qualify as service records? My c-file was available to the adjudicator but not to the psychiatrist who did my C&P exam for the 1990 claim. The records were available but the medical examiner didn't have them for reference as he stated at the top of the document he wrote of the evaluation. 

 I haven't reopened the 1990 claim as I'm not sure how to proceed. As far as hiring an attorney, isn't there a requirement to have filed an NOD? I haven't done that yet as i was advised not to concerning my TDIU claim and I can't find an attorney who will take on my case at this point in the game. 

I feel like I've fallen between the cracks. 

 

Edited February 18, 2019 by Linda Jordan

[MrStryker]

I see two problems. 

1. MST isn't a diagnosis.... The depression and anxiety are.  As  Broncovet stated, you need to get a Voc - Rehab counselor to specifically say that your anxiety and depression due not allow you to gain substantial gainful employment, due to your service connected anxiety/depression, then state why it hinders you from such.

2. EED - There was no appeal filed, so as you stated the decision is final.  Once again if there is something in your service records that the VA did not have available, but should have, then you'll have a chance to get an EED.  If the VA had all the documents that are relevant and an appeal wasn't filed you're more than likely not going to get an EED.  Seek counsel, there are many lawyers.  You could get an EED up to 1 year from the date you filed or intended to file for an increase if you're granted an increase and you have records dating back a year.

 

Edited February 19, 2019 by MrStryker

[ljl]

I took a closer look at my denial letter from 1990 and sure enough, my c-file wasn't used. Only my service medical records. My c-file clearly shows I began my service at the top. I set the shop record for the CDC course, made below the zone Senior Airman, made staff under four and on and on. My performance took a severe crash and I went down in flames. I would think dramatic decline in performance would have served to prove aggravation and PTSD as a result of my newly reported MST. I understand MST isn't the condition. 

 I'm looking for an attorney. Any suggestions for resources to look toward?

[broncovet]

You are on the right track..Look over your documents carefully..its your life and your money.  

You could represent yourself or with a vso at the BVA level and below especially with hadit assistance, since most of us have been through it.  The best time to hire an attorney is just after a bva denial.  Why?  Because eaja pays the attorney fees often with Vets represented at the cavc. 

However, not everyone has the patience/skills/resources to successfully appeal to the bva level.  It would appear you have excellent writing skills (good), not everyone has good writing, and search skills.  

Generally I suggest one of the NOVA law firms.  https://www.vetadvocates.org/directory/widget_search?current_page=1&sort_type=featured&filter={"additional_info.show-profile-on-sustaining-membership-directory"%3A+"yes"}&asset_type=company_user&display_type=default

Bergman and Moore, CCK law, Hill and Pontoon, Attig Steele (Chris Attig, my attorney), are all reputable firms.  Oh, and Ken Carpenter out of Kansas.  There are other good ones also.  

Often I suggest you send the most recent decision to several firms BECAUSE, some of these may be booked up and not interested and I dont want you to get discourged before you even get an attorney.  

Yes.  I have an attorney.  

Your nexus is "shaky" and requires the VA to connect the dots.  They often do not.  They want, "Unable to maintain SGE due to sc conditions".  

You posted the doc said you were unable to maintain SGE do to "Background checks".  Those 2 things may be related, BUT it needs to be stated clearly.  

Worse, some jobs dont require background checks, so you would need to explain why you didnt take one of those.  

My advice:

   Appeal this decision yourself, knowing you will likely need to "fix" your nexus, as I explained, in order to get benefits.  You can get an IMO/IME, another VA docs opinion, and/or a voc rehab assessment.   Lastly, sometimes VA does not grant IU, but instead they grant 100 percent (PTSD/MDD, etc..etc if you have "total occupational and social impairment".  

   If you appeal (pro se or with a vso) to the BVA and lose there, THAT is the time to get an attorney.  Why? Because EAJA regurarly pays attorney fees at the cavc level.   You could hire one now, however, if you like, and will likely pay 20 percent of the retro as attorney fees.  

 

[Berta]

Can you scan and post the 1990 denial as to the VA rationale, and post the evidence list as well?

Cover your C file #, name, address prior to scanning it.

When  a veteran succeeds on a claim, for the same disability  that has been denied in the past, they can often recover retro under 38 CFR 3.156 or under a Valid CUE claim.

But that depends on what evidence VA had at time of the denial. We cannot determine whether either 3.156 or CUE would help, until we see the denial from 1990.

Do you receive SSDI, and if so is it for anxiety /depression?

Has VA Voc Rehab ever turned you down solely due to your present SC condition?