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

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ljl

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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 by Linda Jordan
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I missed your last reply- 

"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 am a hardcore claimant.The VA does not  "automatically' infer  "inextricable connections"and they sure do not use Logic, nor are they required to, via 38 USC.

If they did my AO DMII death claim would have taken a few months, but it ended up taking almost 7 years.

BVA  uses the term inextricably interwined, in very few cases:

"The Veteran also contends that his kidney cysts are related to his currently demonstrated hepatitis C, which he asserts developed as a result of high-risk activity during his active military service.  The Board is required to consider all theories of entitlement to service connection.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence).  Furthermore, the Veteran's claim for service connection for kidney cysts is inextricably intertwined with the issue of entitlement to service connection for hepatitis C, which is being remanded for further adjudication.  Therefore, a final decision on the issue of entitlement to service connection for kidney cysts cannot be rendered at this time.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered)."

 

The veteran had a logical claim regarding the kidney cysts and his Hepatitis C, which an IME would have helped, possibly to support that claim. Unfortunately he was stuck with a Remand asdding more time to the claim.

"The Board is required to consider all theories of entitlement to service connection. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). Furthermore, the Veteran's claim for service connection for kidney cysts is inextricably intertwined with the issue of entitlement to service connection for hepatitis C, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to service connection for kidney cysts cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

https://www.va.gov/vetapp17/files1/1700898.txt

(sorry for double posts- weather has been affecting my Sattelite dish lately-so have not been here much)

As Broncovet said 38 CFR 3.156 (c) appears to be the best way to go here- Or they might have committed a CUE ( Clear and Unmistakable Error) in the 1990 decision.

We cant really opine on that without being able to read the decision and evidence list.

https://www.law.cornell.edu/cfr/text/38/3.156

And CUE:

https://cck-law.com/news/cue-claims-how-to-challenge-a-final-decision-video/

and in multiple discussions here at hadit in the CUE forum.

 I wish your  statement was true!!!!!!- that VA would connect the dots whenever they seem obvious.

But that has become our job, as claimants.

This is funny to me now-but not funny when my RO refused at first to even re- open my death claim.

My daughter USAF Intel, insisted I re open the claim and use this phrase along with the medical evidence I had ( (3 IMOs my RO ignored)-

-"since the VA had already admitted that their malpractice caused my husband's death due to undiagnosed and untreated heart disease and stroke, as well as improper medication for his HBP,( 1998 DIC decision)  it is 'as likely as not' the VA did not properly diagnose and treat his DMII from his exposure to AO during the Vietnam War.'

I threw that into the claim ,  because it was logical and made sense- but the probative medical evidence  was the main evidence I had.

I was in college at the time and had no time to continue to try to fight with my RO, so I was elated that the claim went to the BVA, where they gave the claim the actual FIRST  review of the evidence and they awarded it.

This was not a 1151 claim, it was for a direct SC death-I already had gotten DIC under 1151.

 

 

 

 

 

 

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I wrote to congress and the head of the regional center in Seattle. The vice head called me and they're deciding my claim by the end of the week. I sent in a Request For Higher Review. You have to opt in the new appeals system in order to do that and not have any new evidence for a Request For A Higher Level Review.

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Few Vet advocates recommend getting your congressman involved.  One reason is that the VA has a "insulation blanket" which really prevents the congressman from accomplishing much, except, as you noted, the Va will give a "status" on the claim when you inquire.  

The reason they dont recommend involving a member of congress is that its rarely productive.  Generally, the way VA handles congressional inquiries (other than give a status) is to wait until they have packs of 52 inquiries, then throw them all away together, like a deck of cards.  Remember, the VA is immune from prosecution except from their own kangaroo court, the VAOIG.  And, they have made it clear, "they take care of their own".  

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I guess we'll see at the end of the week.

I feel I have put forth my argument as well as possible. I wrote a very detailed list of points I wanted to bring up with specific documents referenced with dates. I did the research as well as I could, as to what evidence was actually used in my first claim as opposed to the subsequent claim granting service connection and referenced the specific documentation to support my assertions. I referenced specific actions and documents that corroborated my testimony.

 Also, while going through my records with a fine tooth comb, I discovered that indeed, a pre existing condition was never noted on my entrance exam. They tried to rebut the presumption of soundness with a letter stating I'd been treated as a teenager but that diagnosis was a completely diagnosis as anxiety and is disallowed for compensation - Adjustment disorder.

 I emphasized and stated in detail which records such as APRs and letters of recommendation both good and bad, depending on what time frame of my service were used in deciding my current claim. I referenced the marked pattern from a stellar start to my career to ending in a ball of flames that my personnel records illustrated and how heavy a weight they were given in the subsequent decision.

Clearly, there was a significant amount of evidence in the form of service records that were used in my subsequent determination that weren't used in the 1990 claim and I hope I was able to make my argument as clear and concise as possible.

 Hoping for a good outcome. Don't we all?

Edited by Linda Jordan
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