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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • Howdy all,

      The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

      a. Medical visit dated 24 Feb 76 for problem sleeping and depression.
      b. Physical exam dated 24 Jan 79 listed frequent/severe headaches" dizziness, and
      nervousness.
      c. Physical exam dated 07 Nov 83 listed frequent/severe headaches.
      d. Physical exam dated 16 Jan 85 listed frequent/severe headaches.
      e. Admitted to hospital 05 Aug 86 for chest pains and anxiety.
      f. Medical visit dated 14 Jul 87 for problem sleeping and morning confusion.
      g. Physical exam dated 25 Feb 88 listed dizziness.
      h. Physical exam dated 07 Oct 91 listed frequent/severe headaches
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      open and stop my disruptive snoring.
      k. Physical exam dated 29 Sep 99 listed frequent/severe headaches.

      So could you all take a look and let me know what you think.

      Redacted VA NOD SOC 04-09-2020.pdf
      VA 2008 Denial of OSA Redacted.pdf
      VA Claim Decision Ltr 08 Nov 2018 Redacted.PDF
      • 3 replies
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Nyree212

C&P results question

Question

Hello all I am fairly new to this forum however I get the majority of my insight here

 

Currently I'm rated at 90% overall , out of that my depression is currently rated at 50% , about 6 or 7 more disabilities each rated at between 10-30% as well ranging from back ,feet and hip problems and recently I have submitted my claim for tdiu back in October 2018 and this past Feb 2019 I had my c&p exam and I was wanting to seek feedback based on what my examiner wrote in the notes in the results I've copied and pasted the portion that stuck out to me most 

Do I have a good chance at tdiu? Its a very scary process 

 

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Encounter
Date/Time Encounter Type Encounter Description Reason Provider Source
           
   
           
           
 
  •      
      :here are some of key things that stuck out from my examiners notes- 

    At the time of the last exam she was experiencing a high level of work
    stress. This continued until her discharge in 9/19. She enrolled in
    College but only went to a day of school. She
    recalls, "it was pretty stressful, the wear and tear. Some of the
    classes were upstairs. Mentally I couldn't focus. I was excited, but
    when I went I felt overwhelm[ed], 'I can't do this.'"

    She has looked for work she could do at home but was unable to find
    anything. Has not had paid work since her d/c from military service.

    The veteran's depression is quite severe and would impact her
    performance in any job. She would be vulnerable to regular absenteeism
    and low productivity in any job. She would avoid social interaction and
    would particularly struggle to perform in jobs that involved extensive
    social interaction (e.g., team based jobs, customer facing jobs). She
    would likely struggle to tolerate the routine stress of most jobs or get
    through a work week without displaying obvious signs of depression and
    anxiety

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You meet the criteria for #2. Please review the information provided. TDIU is subject to having a future exam.

The key issue in a TDIU claim is the inability of the veteran to engage in "substantially gainful employment" because of his or her service-connected conditions. "Substantially gainful employment" means to hold a job that pays at least an amount equal to the annual poverty level set by the federal government. In order to qualify for TDIU benefits, a claimant must meet the following requirements:

  1. If the claimant has only one service-connected condition, that condition must be schedular rated at least 60% or more;
  2. If the claimant has two or more service-connected conditions, at least one of those conditions must be rated at 40% or more, and the veteran's combined disability rating must be 70% or more; and
  3. In either case, the veteran must be unemployable because of his or her service-connected conditions. 

To establish "unemployability" or "inability to substantially maintain gainful employment", the Veteran must provide:

  1. evidence of unemployment due to service-connected conditions, employment history records for example, and
  2. medical evidence that the veteran's service-connected condition renders him or her totally disabled and unemployable, generally a doctor's opinion letter.

Having a paying job does not automatically disqualify a claimant from a TDIU award.  If the wages are considered "marginal" (low paying) or "sheltered" (protected from usual requirements) employment are exceptions to the TDIU qualification requirements.  Examples of employment that are allowed under TIDU:

  • A job that pays substantially less than the prevailing poverty level,
  • A job that is protected from requirements that someone else in that position would be expected to satisfy, or
  • A job working for a friend or relative, may not be "substantially gainful employment."

Although it is always better to submit a specific claim for TDIU.  The VA has a duty to look for potential TDIU claims based on the evidence in the claimant's VA claims file, known as a "C-file". The VA is required to review the claims for TIDU, even if not specifically requested by the Veteran, because entitlement to TDIU is part of every claim for disability compensation. Upon reviewing the claim, the VA determines if TDIU is an appropriate award for the claim.  Evidence of unemployability can be submitted after an initial decision denying TDIU, if while a claim for schedular benefits is still being processed.

 

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The opinion isn't bad, but it isn't as strong as you'd probably like it to be to support your claim of unemployability.  The opinion definitely says your ability to work is impacted by your depression, but it never quite says you're unemployable.  That doesn't mean you won't be granted TDIU, but you could enhance your chances if you'll apply for a VR&E evaluation and, if they say you're unemployable, get an "Infeasible for employment" letter from them.

Other evidence you can get might also help.  Are you on SSDI, or have you applied for it?  Do you have a psych professional who will write an opinion that explains why you're not employable?

Even with good evidence, it can take some time and some appeals to prevail, but if you're unemployable, stick to your guns, and try to supply the best evidence you can to help your claim to be granted!  Best of luck.  It took me 9 years of appeals to finally get TDIU.  If it gets difficult, do not surrender.  

 

 

Edited by acesup

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@acesup 

The results from my physical disabilities I haven't been able to see what they were , I have about 3 lay /buddy statements I submitted

I've applied in TN for SSDI but I haven't been approved for it working on appealing that as well ....do I have to submit a voc rehab application in order to have an evaluation?..

 

I'm not sure if my chances are strong for unemployability tdiu or for a scheduled increase to 100%  because the symptoms my examiner put in the rest of my notes details 70% and I'm currently at %

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Nyree, 

Yes, you will have to apply for VA VR&E.  You can do it online through the eBaenefits site.  Do you have a VSO?  If so, talk to him/her about setting up an evaluation.

You are correct that your psych's opinion is great for the 70% level, which means impaired ability to work.  Nobody here can say whether or not you might be granted TDIU, but based on that opinion, you're facing an uphill battle.

Of course, if you're not reasonably certain you're unemployable due to your service connected disabilities, applying for TDIU is probably not advisable.  Requesting TDIU is treated as a request for review of all of your service connected issues, so it may result in a new round of C&P exams.  And, not to try to scare you, but be advised that reevaluation of disabilities can sometimes result in reductions. 

Bottom line is that if you're convinced that you are unemployable as a result of your SC conditions,  go for what is owed to you.  Seek out and submit evidence to help your claim.  And although you may not have to wait for a long time, prepare yourself for a lengthy journey through the appeals process.

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