Unwarranted TIDU Denial Letter Received

[dawsonatl]

Good Afternoon fellow Vets and a Blessed Memorial Day weekend to all. I am a new member and this is the first site I have came upon in order for me to vent. I will jump right into it. I am a combat vet (Iraq) rated at 70% PTSD. I filed for an increased rating and TDIU back in November of 2018 as the symptoms I experience regarding my PTSD were worsening and keeps me from maintaining employment. I left my last place of employment in June of 2016 due to anxiety and constant panic attacks. After a C&P exam for the rating increase in December I was approved for the increase this March of 2019. A second exam for a medical opinion regarding TDIU because of my PTSD was scheduled May 13, 2019. The exam went very well I thought and the denial letter I received confirmed this. The letter stated, "Logistics Health Incorporated LHI examination dated May 13, 2019 confirms that you are incapable of maintaining employment." It also reads, VA Examiners Rationale: Individual has difficulty maintaining concentration and focus on work over an extended period, he tends to skip from one task to another without completing the prior task. Individual has significant difficulty functioning, around other people and has difficulty functioning as a team member and feels uncomfortable around others. Individual has other mental health problems or symptoms, e.g., panic attacks, irritability, suspiciousness, etc that interfere significantly with the ability to work. He has panic attacks and is easily irritated, agitated, suspicious of the motives of others."

And here is the statement where I am totally confused and that got me highly agitated and irate at the time. I feel this was a gross human error and someone just clicked a submit button with doublechecking their work or paying attention to what was stated in my files. It reads, "Although you have been found unable to maintain employment, you do not meet the scheduler as provided in 38 CFR 4.16, therefore entitlement to individual unemployability is denied." I'm at a loss of words regarding that last statement. As I previously stated, I am rated at 70% PTSD and therefore meet the scheduler rating in 38 CFR 4.16. How could they blatantly mess something up so obvious!? It's unfortunate that the decision makers at the VA make things so hard for us and have some of us contemplating going to extreme measures to be heard and taken seriously about our issues and entitlements.

Thanks for reading and any opinions and advice on this matter from you guys would be appreciated.

 

[GBArmy]

Are you 70% combined, or 70% just for one disability, PTSD.  38 CFR 4.16 reads:

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a)of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

The decision letter doesn't provide any additional explaination?

 

 

 

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[dawsonatl]

7 minutes ago, GBArmy said:

Are you 70% combined, or 70% just for one disability, PTSD.  38 CFR 4.16 reads:

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a)of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

The decision letter doesn't provide any additional explaination?

 

 

 

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GBARMY, I am rated 70% for just one disability; PTSD. I actually highlighted another inaccurate statement at the beginning of my letter that I overlooked. It states, "Service connected disability currently rated as 70 percent does not meet the scheduler requirements for entitlement to individual unemployability." Which I'm 100% sure is also not factual and inaccurate for as I understand any one disability rated at 60% and higher meets the requirement for entitlement to individual unemployability.

[GBArmy]

That was what I was thinking and why I asked about the 70% combined. There is no other clarification in the decision letter? You should enclose it in your response after you reedact your name, soc. security number address etc. so we can see the VA response. It really could be as simple as the RO is just trying to low ball you and hope you just go away. They make stupid errors because they don't read evidence all the time.

[dawsonatl]

GBArmy, other than that there is no other pertinent clarification in the decision letter. I'm totally confused and at a loss of words as for their reason for the denial. I will attempt to enclose the letter as possible.

[broncovet]

Here is the REAL reason for the denial:

Quote

Because they can.  

There is no such thing as accountablity in the VA for making gross errors.  

Now, you need to either appeal it, or try a cue as Berta may suggest.  It does take a high level of knowledge and skill to write a winning CUE.  

     Remember, there is significant financial incentive for VA to deny.  Why?  Well, there is a chance you wont appeal, and, even if you do appeal, there is still a good chance you will die before the appeal is finalized, get too sick to continue, or so tired you give up.  

      Even if you cross every T and dot every i and succeed in winning your claim, the VA still gets an interest free loan from you for at least 5 years or so.  

[dawsonatl]

1 hour ago, broncovet said:

Here is the REAL reason for the denial:

There is no such thing as accountablity in the VA for making gross errors.  

Now, you need to either appeal it, or try a cue as Berta may suggest.  It does take a high level of knowledge and skill to write a winning CUE.  

     Remember, there is significant financial incentive for VA to deny.  Why?  Well, there is a chance you wont appeal, and, even if you do appeal, there is still a good chance you will die before the appeal is finalized, get too sick to continue, or so tired you give up.  

      Even if you cross every T and dot every i and succeed in winning your claim, the VA still gets an interest free loan from you for at least 5 years or so.  

Broncovet, sad but true I definitely agree. I just have to stay patient and stay at it and if it's meant to be and for me to have it will happen. If we feel like we deserve a certain entitlement, we have to keep fighting for what's ours regardless of these bogus denial letters they be sending us that make no sense whatsoever. Makes me wonder what's the purpose of even attending an exam when what the examiner writes in my favor is not even taken into regard..smh. The fight continues..I will see what my attorney has to say about the letter and proceed from there.