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FDC 4 TDIU is C&P exam necessary


Amazing Becky

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The Baltimore RO received my IU claim on 04/30/2019. It’s is an FDC and includes a DBQ from my therapist. Will I still need a c&p exam?The last one was done in 2016 and it was brutal. I’m hoping to avoid a repeat. Right now my claim is in Initial review. Has anyone had a claim that jumped from the Initial Review to Prep for Decision approval and how long did the whole process take?

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The standard answer is they certainly can and probably will. Your last exam was 3 years ago. I would be surprised if you don't. With a favorable dbq it is most likely you won't be decreased and it could go the other way. Be positive and above all, be sure to go to the scheduled exam. Don't put any faith in the status on ebenifits; it moves all over the place.

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C and P exams are discretionary.  They are not supposed to "develop to deny".  This means if there is already evidence in your file that "you are unable to maintain SGE due to SC conditions" you should not need more MEDICAL evidence.  

However, I have seen the VA does not like to take the doc's word on this.  Doctors are not experts in employability.  Voc Rehab specialists, however, should be able to opine pretty much the same thing, but you often need BOTH a doc and a voc rehab specialist opinion.

You may be able to get away with "just" a medical opinion, but VA sometimes wants you to be able to do "sedentary" work if you, for example, have bad knees.  This should not apply to PTSD or Depression, however, it did in my case.  

If you have the evidence you need, documented in your file, then a C and P exam should not be necessary.  

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5 hours ago, Amazing Becky said:

received my IU claim on 04/30/2019.

@Amazing Becky

As  @broncovetsaid C&P's are almost always discretionary. but PTSD is one of the few that are not.

You list you are SC for PTSD, the C&P, if ordered, would be for PTSD. I don't see your listing for % but if you are 70%  the C&P might bump you to 100% Schedular which is actually better for you, if you can get it.

How long ago were you rated for PTSD? If you don't have your award letter handy, look under Ebennies Documents and you will find your review date in one of them.

There is a specific Review DBQ that is different than the initial one, not much different just a specific form is used for the review.

The VA kinda hates TDIU and if you are showing signs of not getting better or even worse then bumping you is the path they will take over TDIU.

IU (for many things, just not PTSD) can be done just from the record but the record and documents have to be very complete.

These two links are to the M21-1 about TDIU

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014564/M21-1,-Part-IV,-Subpart-ii,-Chapter-2,-Section-F---Compensation-Based-on-Individual-Unemployability-(IU)

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014389/M21-1,-Part-V,-Subpart-ii,-Chapter-1,-Section-B---Determining-Disability,-Unemployability,-and-Marginal-Employment#2c

Having things like a Voc Rehab letter saying you are unemployable is strong evidence as in an IMO from a Shrink.

Make sure that they get your Social Security files about your work history and even your IRS taxpayer sheet showing taxable income over the years and it's sources. you may have to get that yourself.

Consider looking at Veterans Law Blog by Chris Attig. You may want to even invest in his TDIU field manual.

as others have said, they may fight you so you need to be prepared for that. may be lots of hoops and a C&P. and even a denial that you should NOD. Again look at Veterans Law Blog for more info on this issue.

Good luck and let us know what happens

 

Edited by GeekySquid (see edit history)
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I agree with Geekysquid, however, I wasnt aware that c and p exams are ever mandantory, even for PTSD.  I do know, however, VA "does not accept" a PTSD diagnosis from a private care doc.  VA thinks "only their doctors" can diagnose PTSD, and private docs have no clue.  That is an interesting position, especially since many doctors receive their internship training at VA OR in private practice and they are pretty much the same as far as education, so why would VA insist on THEIR Doc's diagnosis?  

    Yes, its another method to deny PTSD Vets.  Many people have PTSD diagnosis from stuff "other than" war, or war related.  People can be kidnapped, family members or friends can be murdered, or many other things, other than "at war" can cause PTSD.  

     Also agree Veterans law Blog by Chris Attig is a great source.  In fact, I looked on Chris Attig's site in regard to fighting VA on the effective date, and located something that I thought applied to me.  I contacted Chris Attig, and hired him as my attorney on the issue.  Just recently, he "won" a remand on the issue.  

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19 minutes ago, broncovet said:

wasnt aware that c and p exams are ever mandantory, even for PTSD.

 

Many conditions can be rated based on paperwork alone. PTSD is one of the very few that (mst is another) that must have an exam. Think about it. Vet from Vietnam era says I was shot at, killed people, messed me up. Then says I have been messed up for years, see I am rated for depression or knee, or agent orange, etc.

They would fail the claim. They would need the Caluza and a C&P to say it happened and is affecting them today.

As always the VA language can be tortured for real people. Someone needs to publish a VA-to-Human dictionary.

This is from the M21-1, Part IV, Subpart ii, Chapter 1, Section D - Claims for Service Connection (SC) for Post-Traumatic Stress Disorder (PTSD)

IV.ii.1.D.6.b.  Requesting Initial PTSD Examinations Other Than Personal Trauma

 
When evidence of exposure to stressors related to combat, experience as an FPOW, fear of hostile military or terrorist activity, or drone aircraft crew member duties is established by a Veteran’s individual decoration(s) or other military records, include a statement to that effect in the Remarks section of the examination request.  This evidence allows VA (including the examiner) to accept the Veteran’s own description of the specific events without further corroboration.
 
Important:  Evidence of experience as an FPOW, exposure to combat, fear of hostile military or terrorist activity, or drone aircraft crew member duties, in itself, does not satisfy the diagnostic criteria for PTSD.
 
Note:  When requesting a PTSD examination, specify that, if possible, the Veteran’s treating mental health professional should not perform the examination.
 
Reference:  For more information on evidence of stressors related to combat, experience as an FPOW, a fear of hostile military or terrorist activity, or drone aircraft crew member duties, see

IV.ii.1.D.6.c.  Requesting Examinations for PTSD Claims Based on Personal Trauma

 
In compliance with 38 CFR 3.159(c)(4), an examination will always be needed when a thorough review shows
  • a current medical diagnosis of PTSD or the Veteran’s lay statements describing PTSD symptoms
  • credible supporting evidence of the personal trauma incident or evidence of a marker in the in-service or post-service records
  • indication that the PTSD symptoms may be associated with the claimed MST stressor (established by applying a low threshold and liberal approach satisfied by virtue of a current diagnosis or symptoms and the presence of a marker), and
  • medical evidence adequate for rating purposes is not already of record.  
In cases where the only evidence of the personal trauma stressor are behavioral changes that may be markers of the claimed trauma, an examination is almost always needed because the marker itself does not establish the occurrence of the stressor, but the opinion of the qualified examiner can provide credible and probative evidence to make that determination.  The examination is needed specifically to determine 
  • whether a medical opinion can provide evidence for occurrence of the claimed in-service personal trauma stressor based on the marker and the Veteran’s lay statement, and
  • whether that claimed stressor is related to current PTSD symptoms. 
Important:  In order to ensure the examination request language is adequate, use the Exam Request Builder (ERB) or Simplified ERB (ERB-S) tool, as appropriate, and select either the PTSD MST or PTSD personal trauma (non-MST) medical opinion template based on the nature of the claimed stressor.
  
References:  For more information on
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Thanks for the advice guys. I am rated at 70% per DRO review on July 31, 2018. Their is evidence from my initial claim of being unemployable. However, I did try to work between 2017-2018. I was fired from my last job with the federal government...didn’t even last six months. I gave the VA a letter from my employer stating why I was let go. I’m hoping that helps because I didn’t have a Vocab Rehab letter to submit. I called the VA today and was told my VSO submitted paperwork for both IU and an increase. 

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6 hours ago, Amazing Becky said:

evidence from my initial claim of being unemployable.

@Amazing Becky

Okay when the letter arrives, and you scan it one or two times. Enjoy what you see. Put it down. Whoop it up for a while.

Then pick up the letter and begin a thorough review of EVERY page including the stuff that looks like boiler plate stuff, like the NOD form and instructions. Read each line by line, slowly. Take notes.

One of the first things you need to scrutinize is the list of evidence. Make sure everything YOU submitted is on that list. Make sure YOU have a copy of everything else they say they reviewed. I assume you have your C-file.

I also assume that you have requested your C-file again. If you just want all the docs in your file since the last production then ask for every file entered since the date of the NEWEST file in your existing copy of the C-file. Make sure you specify to include a demand for all files related to your health care, notes, letters requesting C&P exams, Letters requesting any other files from any other agency, business, or person, your DBQ's and the CODESHEET. Also make sure to ask for the proof of mailings and submissions.

Your VSO can also do this and in a fair world would know to get you everything.

you need every file, including SSA and IRS data they got on you.

They should have an explanation for every item you requested or was reviewed. Any item not listed that should be listed needs to be questioned, CUE'd or NOD'ed.

7 hours ago, Amazing Becky said:

However, I did try to work between 2017-2018. I was fired from my last job with the federal government...didn’t even last six months.

that is actually good evidence in favor of TDIU since you are SC for PTSD it fits right into the diagnostic codes for 70 and 100 percent ratings. The other things i mentioned above will tell you how to structure your response, including if it is that they erred by not making you 100% Schedular for PTSD.

The VA has a duty to maximize the award, so if they did grant TDIU and upped you to 70%, scrutinize the files to understand why. Look for deficiencies in the reasoning they supply. Did they not look at a piece of evidence? did they make a flat out statement with no supporting evidence? both are reasons to fight back over both the 100% Schedular and TDIU ratings they should have approved.  Did they mischaracterize your employment history? minimize that you got fired and have not regularly worked for many years? This is why they contact SSA and find out how many employers you have had, how many work gaps etc is all calculable from the SSA record. Same with IRS data sheets on taxpayers.

You don't say when your initial rating occurred and what it's percentage was. You also only show PTSD in your profile.

Are you rated for anything else? do you have any other conditions that are secondary to PTSD? for example in men ED is a common secondary for PTSD, unless there is anatomical damage it is usually rated as 0% with an SMC (K) award adding $100 bucks or so a month. There is a female equivalent, I just don't know what it is called. This is a self-reported condition and unless deformity is claimed, no physical exam is involved for men. I am not sure for women. Damage to our reproductive systems is compensable, and there are many conditions that PTSD will aggravate or cause.

There are also Genitorurinary secondaries to PTSD for men and women. I just found this out myself in a 2018 decision and have recently put in for Voiding Dysfunction per the VA decision letter. At max under the rating codes it is a 60% rating, which would put me at a total of 170% assuming they deny my other recent submissions. If they were not all listed as secondary to my PTSD I would be in SMC (s) territory.

Even if the Voiding dysfunction is just rated as SMC it would be K which is another 100 a month. If they do that I will NOD the heck out of them.

The point is look for secondaries to your rated SC condition, even if they are NSC conditions that are aggravated by the SC condition you can get compensation for them.

You don't say what years your were in, what your job was, or where you were stationed/deployed to.

Some jobs and locations it is all but a given you will have a hearing issue like Tinnitus or Bilateral Hearing loss.

Tinnitus is a phantom noise with no visible problem in the ear canal. There is no proven cause, but the medical literature favors the concept that your brain is expecting your ears to funnel noise to be deciphered. When there is no noise for periods of time the brain "creates" the noise to offset what it considers a void. Either way, ringing in your ears is common, sometimes it is testable when a physical problem can be detected like a bad ear canal from TBI or a blast going off near your head. If your ear gets ripped off in a blast you likely have tinnitus. If you have it file for it. It is compensable at 10%

If you were in a noisy job, combat or a combat area, look through your C-file for every military hearing test. compare the numbers from each one to the next from Day 1 in the service to your last day in the service. Look for a page that says either OSHA STR or "baseline rest" (or words similar) on one or more of the hearing tests. There is a checkbox on most of the forms if they find an in service significant threshold change of 20db or more. That makes an in-service medical record of your hearing loss. Your job or location is the nexus, and of course a hearing test will be the current disability. VA hates rating for hearing, but get it SC'd now. it is harder to do later on. Most get a 0% but as you age and become deaf that can mean more money. plan ahead.

I hope my suggestions are helpful to you, and please let us know what happens.

 

 

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@GeekySquid

This is the timeline for my PTSD claim.

May 2016 submitted claim for PTSD

December 2016 claim denied

January 2017 filed NOD DRO review

July 2018 DRO found error and granted claim

February 2019 received BBE

April 2019 filed for increase/IU

May 06, 2019 claim in the initial review stage

I do not have any other disabilities claimed. I do have high blood pressure which my c&p examiner noted was most likely do to PTSD.

I’m also awaiting results to see if I have sleep apnea. How do I get a copy of my c-file? My VSO took some paperwork from my first claim and included it in this one. However, I don’t know everything she submitted other than what I ha e her. When I received my letter in the mail back in February I noticed something kinda strange. I was actually rated at 100% for the first 5 months (June 2016-October 2016) based upon the DBQ I submitted with my claim from my therapist. My c&p exam was done in November 2016 and based on the results was lowered to 70%. Do you think the fact that I originally had 100% helps my claim?

 

 

 

 

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That is an interesting timeline, especially that you were 100% PTSD and then reduced.  They are not supposed to develop negative evidence from a C&P to reverse an earlier decision, but we know that the VA is an animal that forces you to follow the law but does not always follow the laws.  You can request your records by visiting your VSO or online on ebenefits.  I would keep fighting this including going to the BVA if necessary.

Edited by vetquest (see edit history)
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50 minutes ago, Amazing Becky said:

I do have high blood pressure which my c&p examiner noted was most likely do to PTSD.

@Amazing Becky

Ding Ding Ding Ding! you may have a claim for Hypertension secondary to PTSD.

Do you have that DBQ? can you scan it in and upload? (COVER YOUR IDENTIFYING INFO! We like you but we don't want you to accidentally reveal your personal details like SSN or address. )

What is necessary in it are the selections of the Magic Words "...More Likely than NOT..."

Have you been treated for the High Blood Pressure? if not WHY?

There are three parts to proving Service Connection called the Caluza Triangle. Each condition must have a medical diagnosis, a nexus and an in service event or aggravation.

Read about it here https://www.hadit.com/caluza-triangle-defines-necessary-service-connection/

In the case of a Secondary Condition, the primary it is under provides the nexus leg of the triangle but you still need the diagnosis and some indication that it started AFTER the harm. In the case of PTSD whatever the Stressor events were look to see if your BP has been consistently higher than it was before. Now there is also a caveat. If you already had documented High BP and after the events it got higher, that will satisfy too as any SC that aggravates an NSC is compensable as SC based on the level indicated in the rating table. The condition must be chronic and you currently (meaning today) suffer from it.

As for getting your C-File, strike one against your VSO! They should ALL tell every veteran to get their C-file as they should know we NEED it to become our own best advocate!!!!!!

https://www.hadit.com/requesting-your-va-c-file/

There are links on VA.gov to file for it electronically. The last one I got in 2018 came on a CDROM and took about 60 days. The first one I ordered in 2012 took 4 years and came as a box of papers out of no where. Long story and I type too much already.

Do not pass go! Do not collect $100! order your C-file ASAP! TODAY! NOT TOMORROW!... have I stressed that enough?

It is not like downloading an e-book or video. The folks have to collect, review, and assemble the stuff to burn to CDROM, and it is on a first come first served basis. Since you are a relatively recent veteran (that is when compared to some old folks like me) your files may already be fully electronic which speeds stuff up. They claim everyone's files are too be fully converted but as far as I know that project is not yet complete.

When you get it, there are tons of posts here on how to use it and  what to look for. In the meantime I would get a PDF manipulation program that allows you to Index, Edit and Make PDF's Searchable. I would also begin stocking up on printer ink, a case of paper and a couple of three ring binders, and a hole punch. Get some post it notes. If you don't already have one, consider investing in a printer /scanner /fax combo machine. as the most environmentally friendly thing to do related to organizing your C-File.

Make sure you copy the contents to your computer, put another copy in your on line Cloud like Drop Box or Windows Drive and then put a third copy on whatever place your back your computer up to. Then take the CDROM and put it in your Safe Deposit Box or fireproof metal lock box at home.

it is long, boring and not really in any order except theoretically newest to oldest.

50 minutes ago, Amazing Becky said:

When I received my letter in the mail back in February I noticed something kinda strange. I was actually rated at 100% for the first 5 months (June 2016-October 2016) based upon the DBQ I submitted with my claim from my therapist. My c&p exam was done in November 2016 and based on the results was lowered to 70%. Do you think the fact that I originally had 100% helps my claim?

That is an interesting occurrence and I want to make sure what you mean.

Are you saying the non-VA Doc who did the DBQ marked it as you meeting the criteria for 100% and the C&P Doc dropped you to 70%? (if this is the situation YOU have a case! ding ding ding. in cases where medical opinions differ you are likely in equipose, and in that case the TIE goes to the Veteran)

or are you saying that somehow the VA itself rated you at 100% and then dropped it to 70%? (you also have a case here, it is just a different one!)

Those are two different things.

Info you should know. The C&P Doctor does not "rate" you for anything in terms of VA Decisions. it is a misnomer we all use. If your therapy doc filled out the DBQ and checked that your condition most closely resembled the 100% criteria, that is not a rating in terms of compensation. They don't "award" anything.

The Docs at the C&P are not the folks that decide what your "rating award " is. They are only offering a medical opinion that your condition most closely supports the line in the rating schedule which gives a certain %.

Now if you have a VA Decision Letter that says the Amazing Becky is Rated 100% for SC PTSD and then the VA lowered it, you have a case. It takes a lot for the VA to lower a rate, even a new one, and they have to document the hell out of it to survive the BVA.

Let us know what is going on and upload those things as soon as you can so we can offer suggestions based on the facts.

 

Edited by GeekySquid (see edit history)
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Thanks for the advice about the c-file. I’ll ask my VSO if she can give it to me or I’ll go online and get it myself. I went back thru the c&p exam and the examiner stated, “ She is taking high blood pressure medication as it’s typically high secondary to stress”. I developed high blood pressure in 2015. I did not have it before then. After going through my personnel file the VA found markers at the end of military career which showed signs of my having ptsd. The Army put me out of the military with a honorable discharge due to my change in behavior. Which to me is another sign of not being able to work. At the time the original ptsd claim was submitted, my theory worked for the VA. The DBQ she submitted back then met the criteria for 100% scheduler according to the VA.

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1 minute ago, Amazing Becky said:

I went back thru the c&p exam and the examiner stated,

@Amazing Becky

which Doctor? civilian? VA doc? C&P examiner? sadly it is important to know which made that claim and which DBQ you are talking about.

2 minutes ago, Amazing Becky said:

She is taking high blood pressure medication as it’s typically high secondary to stress”.

The importance of this depends on the the previous question. either way it should "help" a secondary claim.

3 minutes ago, Amazing Becky said:

Which to me is another sign of not being able to work.

when you get your C-file, look at your evals, notes, comments etc after the stressor dates. You need to see how they characterized your decline in the Military record and Discharge orders.

 

5 minutes ago, Amazing Becky said:

The DBQ she submitted back then met the criteria for 100% scheduler according to the VA.

who is "she"? is she a private doc or a VA doc or a C&P doc? they are different things. Only a specifically trained and designated VA C&P doctor is qualified to do make a determination on PTSD. The same applies to MST. It is in the regs and they are two of the very few claims that are restricted to VA C&P certified and employed doctors.

When you say "according to the VA" what form and who in the VA said that?

I am not trying to be difficult, it is just important to make sure all the pieces are in place correctly.

There is no VA-to-Human dictionary and that means us mere humans use words and phrases we think make sense but are gibberish in terms of VA-speak.

 

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Becky, unfortunately you cannot argue that your inability to serve relates to inability to work.  I was discharged for a medical condition and my question was the same, "if I am too disabled to be in the military how am I able to work".  The VA will say that military is different than civilian life and the two do not correlate.

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Becky If you have been taking high blood pressure meds prescribed by the VA, then they had to have made a diagnosis and should be in your file. Look up diagnostic code 7101 for it and it tells you the amount of the disability based on the severity of your condition. The key is if you now take meds and it is now under control, unless you have adequate b p readings in your file, they could have you do a C&P and your readings will show much lower (because you are taking the meds, duh!) So see what you have for vitals in your str's. By the way, even if you get a 0%, that will give you coverage if you have other problems later, such as a stroke.

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@GeekySquid The C&P examiner is the one who mentioned the high blood pressure. I got a copy of the exam from the VA. The DBQ that was rated at 100% was done by a VA therapist that I’ve been seeing since 2016. When I say “according to the VA” I am referring to the decision that came in the mail. @vetquest thanks for letting me know.

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@GBArmy Thanks. I was originally diagnosed by a private doctor. I just started going to the VA this year and now get my meds thru them. My bp readings are being controlled with the medicine. So, does that mean if I file a claim for bp it will be denied because it’s controllable?

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43 minutes ago, Amazing Becky said:

When I say “according to the VA” I am referring to the decision that came in the mail.

@Amazing Becky

Okay, so based on getting an Official "decision letter" you got an Initial VA (Official) Rating for 100% PTSD and then for some reason on DRO you got dropped to 70% after a second C&P by a VA ordered C&P exam? Did you ever get a MONTHLY check for 100%? it would be about 3K for a single person.

This gets murky. A VA therapist that you have been seeing is typically NOT allowed to do your C&P, this is a VA rule and not 100%, however that Therapist has to be certified to do PTSD C&P exams for the VA. which means any DBQ might not be considered probative at the RO (which is wrong as a differing medical opinion puts them in Equipose, which the veteran eventually wins). 

with what you provided here, it sounds like you have a case for 100% Scheudlar rating, without all the docs there are unknown variables.

Once all the docs are in your hands scan and upload them. I mean all the decision letters, notifications, etc from the VA. Your C-file will take a couple months, but if those docs say what I believe you are saying your NOD can be done sooner rather than later to get this before the BVA (if necessary).

I suspect, if I am reading this right, if you NOD properly and specifically, the RO may reverse itself, mooting needing to go to the BVA.

Note that none of this applies this way if I am not understanding you properly.

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@GeekySquid My original claim was denied. The DRO rated me at 100% based on my therapist DBQ. My therapist didn’t perform my c&p exam. She just asked my questions in her office and filled out the DBQ. I will try and scan the first page which shows both ratings. I just emailed my VSO and asked if I can claim cue based on my originally at 100%. She said “Let's see what they say first - It is easier to see the results of a claim - then put in for an appeal based on an error”. So, I guess it is a waiting game.

 

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