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IU denial despite positive IMO


Curmudgeon

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Good morning all,

Most of my claims battles with the va have been relatively smooth, until now. I am presently 70% MH, 10% right knee pain, 10% left knee pain, 10% tinnitus, and 10% pes planus for 80% combined. Have been 80% combined since 2009. Well, i had a major traumatic experience at my former employer which caused me to have a total breakdown. I sought help and was advised to file for IU. 

My initial filing was August of 2018 and I was administratively denied in December due to missing a QTC c&p exam that was scheduled while I was out of the state and unable to return in time despite frequent calls to QTC and peggy that I couldn't attend (even provided itineraries and tickets as proof). I paid for an IMO and it was a complete psychological evaluation spanning a gamut of tests including: the Lawton instrumental activities of daily living scale; repeatable battery for assessment of neuropsychological status (RBANS); behavior rating inventory of executive function adult version; beck depression inventory II; beck anxiety inventory; life event checklist 5; ptsd checklist for dsm-5; and finally the Minnesota multiphasic personality inventory 2 restructured form.

Well, despite language in my summary that says "Mr. Omitted has had an increase in anxiety and trauma triggers from his recent employment history that has contributed to his inability to function effectively at work, home, and in his interpersonal relationships." The VA denied me because my evidence did not state that I am unable to secure or maintain substantially gainful employment. 

Despite the really long winded post, I guess my questions are: should I attempt to have the Doc clarify and use specific terminology contained in 38 CFR 4.16(a)? Assuming I get the clarification, should I request a supplemental review? If I do not receive the clarification, should I request a higher lane review? Or at this point should I retain an attorney to fight. My VSO is entirely worthless and the only benefit to using them is that the state service officer I go to for periodic advice is able to see what the vso puts into the system. Any help would be appreciated. 

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Curmudgeon,

I would get your doc to write a letter stating you can't maintain gainful employment.  Then you will need to reopen your claim.  I think you will need new evidence or something to that effect to reopen.  Then when your C&P comes you make the appointment or this will happen again.  The more times you miss the more ammo you give the va to deny you!

I think you will need to take a higher lane review and whichever fits for you.  I know there is one on here that people hate, so dig around here and you will find out.  

Good luck and keep fighting!

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As shrekthetank suggested I would get new evidence and appeal the decision using the supplemental appeal where you can add more evidence.  If this does not work you have the BVA to go to.  At the BVA level I would attempt to get a lawyer.  

What I think is killing you right now is that you are still working.  The VA seldom if never grants TDIU when you are working.  I went left my job due to my SC disability and then filed for TDIU and still had a problem getting it.   I had proof that my job was in danger due to nonperformance and my doctor said I was too disabled to work so my company let me go.  If you have disability insurance I would see if with your doctor's letter if you can get placed on disability from work.  

I can only advise that leaving your job is the last resort.  It took two years before I was granted SSD and ten years before the VA granted TDIU.  It was a nice check but it did not make up for the lean years. 

And never miss a C&P, this is an automatic denial.

Edited by vetquest (see edit history)
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Well, yes.  The VA denies you tdiu unless you are "unable to maintain SGE due to sc codnitions".   Your IMO should have stated same.  

You can/should appeal, but you need to get a doc to state the above.  

I suggest you check your cfile to see if the statement, above, is actually in your records.  You dont know until you check.  

If its already there, then VA did not read it.  If its not there, you need to get it there with 38 cfr 3.156 new and relevant evidence.  

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I agree that, since I assume the IMO /IME cost you some money ,that the doctor should state  your SCs prevent you from attaining substantilly gainful employment, and should add a medical rationale, based on his testing results----

but I missed something- are you still working?

The VA cannot grant or even adjudicate a TDIU claim if the veteran is employed.

Edited by Berta (see edit history)
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I do apologize for not specifying in my original post. No I was forced to resign last July after screaming at my supervisor. I am still not working. I have an upcoming call on Monday with the psychologist who gave me the IMO. 

Thank you guys for replying. Sorry about the confusion.

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If you are not working go to VOC Rehab and request an evaluation for schooling.  If they turn you down this is also figured into IU requests.

Also apply for social security.

1 hour ago, Berta said:

I agree that, since I assume the IMO /IME cost you some money ,that the doctor should state  your SCs prevent you from attaining substantially gainful employment, and should add a medical rationale, based on his testing results----

Bertha tells you exactly what is required from your doctor.  He should also add a statement that he has read all of your medical records, if he has not read your VA records or military records get these for him.

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if you are currently working this kills the deal for IU

Also you quoted

Despite the really long winded post, I guess my questions are: should I attempt to have the Doc clarify and use specific terminology contained in 38 CFR 4.16(a)?

This is used as an extra scheduler decision 

and is for veterans that are rated under the 100% but still can't work due to there S.C. Disability    the CFR 38 4.16 was created for this reason.

You can't be working and file for IU.

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