Jump to content
  • 0

Lawyer Needed for TDUI or DIY?


2W1_Socal

Question

Currently rated at 60% and was previously rated at 20% since 2001 through 2017. My rating(s) is for lumbar disc disease and then for a spinal fusion. With my spinal fusion in 2017, I've got nerve damage on my left leg and then had hip surgery in 2018 to help elevate the chronic pain in my leg. This hasn't improved much and dealing with chronic pain every day is miserable. Over the past 2 years, I've missed countless days of work and have been very fortunate not to be fired yet. 

This last stretch, I had to take off 11 weeks of FMLA due to a deep depression and medication withdrawal due to one of the medications that were prescribed to me for nerve pain.  

I've been white knuckling the pain and trying to live and work, but it's becoming too much, impacting my health and mental state. After, speaking to two of my doctors (psychiatrist ongoing since 2006) & (therapist past year) they both have seen my downward decline and mentioned, that I shouldn't be working. 

I also recently submitted new claims/secondary claims for major depression, anxiety, increases for radiculopathy in both legs and for my hip surgery. Not sure if I should wait it out and see how all of these pans out or, just jump to what needs to be done and apply for TDUI. 

With all the above should I apply for TDUI and would a lawyer help with my claim? I personally think I have enough proof but don't want to be one of the many who gets denied and drag this out over the years. 

Link to comment
Share on other sites

11 answers to this question

Recommended Posts

  • 0

I wouldn’t pay a lawyer for something you and a good service Officer can do for free. You’ve got a lot of options, but going it alone is a bad one.  If you’ve got issues after a surgery by the VA look into the possibility of filing an 1151 Claim.  It may be wise for legal counsel on that approach.  Discuss it with a service officer first and any recommendation she/he may have.  TDIU you can not be working if you file.  Filing for SS is an option too.  Their standards are different for rating conditions and based on your length of work history.  A medical option by a VA doctor is the best option.  She/he must state in the option that your condition is due to or more likely than not due to your d/x disability.  Maybe even permanent and total in nature.  Again, this needs to be an MD.

  • Like 1
  • Thanks 1
Link to comment
Share on other sites

  • 0

VA quit allowing their doctors to opine on Veterans' conditions and whether they are service connected back in 2010. You'll have to look to an outside source in the private sector to get the opinion [option]. You can use an PA-C, PA, or ARNP but an MD is the best. VA often uses registered nurses at the ROs to make the decisions. They are called "VA examiners". Good luck.

  • Like 1
  • Thanks 1
Link to comment
Share on other sites

  • 0

A lawyer is going to advise you to get an IMO or IME.  @asknodhas already advised this so save your money.  DIY the first time, with the help of a good VSO.  How to find a good VSO is the issue.  Interview the one you are asking to help and get a feel for how they react to your questions.  Anyone who advises you not to file because you may be reduced you pass over.  Anyone that balks at an 1151 also pass over.  As @MPsgthas advised you may want to look at SS disability if you have used up your FMLA.  I went out on FMLA and then applied for SS and TDIU after my doctor wrote a letter saying I was disabled due to my military disability but SS took two years and TDIU took ten.  It is not an easy road, do you have long term disability insurance at your place of employment?  That is what carried me through.  

  • Thanks 1
Link to comment
Share on other sites

  • 0
  • Moderator

Most lawyers dont help with claims, they help with "appeals", and wont even represent you until you have gotten at least one denial letter.  

Until/unless you have gotten a denial letter, dont hire an attorney.  

This said, an attorney "may" look at your claim and point out any thing that he thinks wont fly and wont likely even charge you for that, but you need to discuss fees with an attorney.  

With TDIU you normally need these things:

1.  You need to not be working.  Duh.  

2.  Your doctor needs to have documentented that "you are unable to maintain SGE due to SC conditions."  Its not enough that he says you cant work.  That may help with social security, but with VA comp, your doc has to document WHY. (that its due to sc conditions). 

3.  Often you need a voc rehab assessment.  Here is why.  Lets say you have bad knees.  Your doc says you are not able to work because of those sc bad knees.  

However, that does not mean you could not be retrained to perform sedentary or other work.  That could come from a voc rehab counselor.  He could opine, for example, that, due to your age and experience, its unlikely that any retraining would result in a favorable outcome.  That is, in his experience and expertise, you are unable to maintain SGE due to your bad knees.  

Link to comment
Share on other sites

  • 0
14 hours ago, vetquest said:

  It is not an easy road, do you have long term disability insurance at your place of employment?  That is what carried me through.  

 

I do have long term disability insurance but, have returned to work in fear of getting laid off or replaced. 

 

5 hours ago, broncovet said:

3.  Often you need a voc rehab assessment.  Here is why.  Lets say you have bad knees.  Your doc says you are not able to work because of those sc bad knees.  

However, that does not mean you could not be retrained to perform sedentary or other work.  That could come from a voc rehab counselor.  He could opine, for example, that, due to your age and experience, its unlikely that any retraining would result in a favorable outcome.  That is, in his experience and expertise, you are unable to maintain SGE due to your bad knees.  

4

Thanks, I had to reschedule my Voc Rehab appointment due to my disability from 3 months ago and going in the next couple of weeks. Will discuss my options with the counselor.

Link to comment
Share on other sites

  • 0

You are now in a catch 22 area.  You are working to make money but your disability is making it near impossible.  You cannot get SS or TDIU because you are still working.  Follow broncovets advise and get a voc rehab letter if you can.  Then approach the situation with the full knowledge that it is a difficult road.  Can your long term disability insurance keep you afloat if everything falls apart?  Only you can make this decision.  I was ready to be fired due to not being able to perform my duties any more and the constant late and absent days.  Can you talk to HR or your manager about what is happening?  Don't get fired due to this, get your doctor to write a letter for you, then you should be able to collect long term disability.  With a doctor's letter the company will terminate you.  You just want to leave on good terms.

After you lose your employment get your supervisor and/or manager to write a lay letter for you explaining why you can no longer be employed there.  This carries weight at the BVA level, the RO's sometimes neglect to consider lay letters.

employer letter 2.pdf

  • Thanks 1
Link to comment
Share on other sites

  • 0
13 minutes ago, vetquest said:

  I was ready to be fired due to not being able to perform my duties any more and the constant late and absent days.  Can you talk to HR or your manager about what is happening?  Don't get fired due to this, get your doctor to write a letter for you, then you should be able to collect long term disability.  With a doctor's letter the company will terminate you.  You just want to leave on good terms.

After you lose your employment get your supervisor and/or manager to write a lay letter for you explaining why you can no longer be employed there.  This carries weight at the BVA level, the RO's sometimes neglect to consider lay letters.

employer letter 2.pdf 48.56 kB · 1 download

1

I've been going back and forth with HR and Doctors Office for little over a year now to allow me to work from home.  Speaking with HR, I've been grilled as though, I was making up my disability. They gave me a form for Reasonable Accommodations and gave it to my Neuro Surgeon 3x. Each time, I get confirmation from the Doctors office it has been faxed but, my HR never gets it and turns in to a loop. And, I got frustrated and gave up. 

Dropped off the Reasonable Accommodations letter again last week with another doctor in the same practice who performed my hip surgery, and is well aware of my situation. Waiting to hear back and see if it ever makes it through. 

Being able to work from home a couple of days and attend physical therapy might help in the short term, while, I work with my physicians, Voc Rehab and gather all my evidence to file for TDUI.

 

 

Link to comment
Share on other sites

  • 0

BroncoVet touches on an interesting precept with attys/agents. Most of us will never touch a new claim but will advise you to use a VSO to file it. The reason is simple. We are forbidden by law to charge you to file a claim. We only can enter in to the fray once a denial is issued. It also is a good experience to discover what "hands on" really means in claims development. I do not fault VSOs for their lack of ability. They are not trained to do this. They are glorified mailmen. They fill out your 526 and deliver it.  

I have learned to file an 8940 at the outset  of a claim regardless of whether a client is working. I've won on a Vet being "marginally employed" in a sheltered work environment. He was a CPA working for himself and all but unemployed but for some of his oldest clients. The VR&E angle is good but time consuming if attempted after filing. With the new AMA, you want that in your file at the outset if possible. I advise you begin that asap and prepare it as a tool ahead of time. I never procure an IMO until I lose. Why waste the money? I'm an undying optimist that VA might be agreeable and give my client his due. Of course, I was convinced we were going to win in SEA in 70-72. 

As with all techniques, VA is learning to deny IMOs by sending out to get second opinions. This is called developing to deny and is forbidden by Mariano v Principi and §3.304. Thus, I always ask for a SOC asap and submit it to a VLJ. I just got back from a TB hearing in Oakland before VLJ Matt Blackwelder last Thursday. My client has Hep C and he admitted to snorting toot in 88. He has no medrecs. They burned up in 73 or so VA says. I had to explain to the judge that Stage 4 cirrhosis takes 50 years-not 30. 1988 doesn't fit the medical scenario. You could never accomplish a win like this without an extraordinary IMO presented in person to the judge. He read it while we sat there and nodded in agreement. I never forecast wins but I feel good on this one. Absent qualified counsel, he could never have won it on his own or with a VSO. A videoconference would never have conveyed my client's advanced debility from the cirrhosis. 

One thing I cannot impress on you folks here. There is no template for a claim. Each of you is unique as are your circumstances. There is some commonality in how it is done but each one must be produced based on the evidence you possess-and most especially- what you do not possess. I like to use this as the ultimate example of what you can create with absolutely nothing to work with but negative evidence-or worse- no evidence whatsoever. The gentleman was advised in 2015 by his VSO not to waste his time filing as he could never win it. We shall see.

Edited by asknod (see edit history)
  • Like 2
Link to comment
Share on other sites

  • 0
On 4/3/2019 at 6:56 PM, asknod said:

VA quit allowing their doctors to opine on Veterans' conditions and whether they are service connected back in 2010. You'll have to look to an outside source in the private sector to get the opinion [option]. You can use an PA-C, PA, or ARNP but an MD is the best. VA often uses registered nurses at the ROs to make the decisions. They are called "VA examiners". Good luck.

Sorry gotta disagree with you on this one......

See VHA Directive 1134 dated 28 Nov 2016 

Titled :  PROVISION OF MEDICAL STATEMENTS AND COMPLETION OF FORMS BY VA HEALTH CARE PROVIDERS

but they have been allowed to give opinions at least since  2000   see VHA Directive 2000-29 dated 22 Sep 2000

I have had VA doctors ( all  VA C/P examiners)  opine just in 2016 and 2017 on three different claims that were granted...... 

 

 

 

VHA Directive 1134 Provision of Medical Statements and form by VA doctors.pdf VHA Directive 2000-029 VA doctor statements.pdf

Link to comment
Share on other sites

  • 0

 As a veteran who fought for SC for almost 30 years, and now accredited, I would ask you to review any and all DBQs and show me where there is a box that says "Is the condition at least as likely as not SC?" This option is available on the ones used by VES/QTC/LHI occasionally. However, regardless of what the VBA says, the general rule is as it states in your attachment ( VHA Directive 1134) above:

1. Service connection and disability ratings for VA benefits are purely legal determinations belonging exclusively to the Veterans Benefits Administration (VBA). VHA providers often do not have access to military medical records, and may not be familiar with all the health issues specific to military service, such as environmental exposure. Additionally, the issues of service connection and disability ratings are governed by statutory and regulatory provisions beyond the scope of VHA examination and/or primary care. Consequently, they are often not well suited to assess causality of a current condition in a manner helpful to inform the VBA adjudication process. VHA providers who wish to provide medical opinions that state causality must include clear and specific rationale citing evidence to support the conclusion reached, and should employ standard language appropriate for medical opinions (such as “at least as likely as not”, etc.)

As for the second document (VHA Directive 2000-029), it is obsolete. It was issued prior to 2010. I don't wish to argue with you. I'm sure you feel I'm wrong. I litigate each and every day for Vets. I live and breathe VA law and study new techniques. I pay $3,000 a year to maintain that accreditation by taking the required CLEs. If I don't know the answer, I use Westlaw to confirm it. Westlaw costs $59  a minute to access. If I thought using VA doctors was a viable option, you would have heard about it years ago, sir. The CAVC and the Fed. Circuit would have tons of cites saying a VA doctor's word is gold.

Now, if you are familiar with VA case law and precedence, you will know that a medical opinion is based on knowledge (the claims file and private medical records-or VA medical records). VHA doctors can fill out generic DBQs  listed at the link above. If they do opine, it rarely has any bearing on a win. If they have not researched your case via the claims file, it isn't a probative nexus, sir. Try talking your VA doctor into reading a 2,000-page c-file and providing a IMO with supportive, peer-reviewed studies. I see hundreds of "nexus letters" by doctors. VA ignores them if they do not specifically note they have reviewed the claims file. You are welcome to believe what you will but speaking from experience, depending entirely on a VA doctor for a nexus is not advised. Here's a few from my file I find very much on point taken from Fed. Circuit and CAVC decisions: 

>The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).

>However, Dr. Bash did not address contemporaneous evidence, including VA and private treatment records from throughout the period under consideration, that note the Veteran was, in fact, ambulatory, albeit at times with the assistance of a walker or cane.  His opinions are conclusory, inconsistent with contemporaneous clinically recorded data (which he does not acknowledge), and cannot be afforded any substantial probative value.

>See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions).

To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 304 (2008)

Remember, we are here to help Veterans win. Each must tailor his defense to win using proven techniques. As an example, if you try to submit a psychiatric evaluation from a private doctor at the beginning of your claim, it will be rejected even if it's probative. VA's shrink must always opine first. It's the law. VA c&p doctors/nurses offer their assessment of a disease or injury for the VBA adjudicators to study. It is not binding on VA. I've had hundreds who said "Yep. It's due to AO. A month later I get the denial saying it isn't. 

I take no pleasure in arguing with any of you here. My desire is to teach you what you need to succeed. As they say, you can lead a horse to water but you cannot make him drink. You are free to ignore my advice and it will not hurt my feelings. I've helped thousands over several decades attain SC-usually IU or 100% +. It's a recipe-just like baking cookies. If you choose to substitute baking soda instead of the baking powder called for, you don't get what you desire. Many tell me I'm wrong here at Hadit. Considering I have never lost a claim or appeal yet (knock on wood), I take it with a grain of salt. I wish the best for all of you. VA screwed me in '89 & '94. Every win is a b*tchslap for that treatment I received. They should never have said I was not in Vietnam. 

Edited by asknod (see edit history)
  • Like 2
  • Thanks 1
Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.



×
×
  • Create New...

Important Information

{terms] and Guidelines