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.

 

[dawsonatl]

4 hours ago, broncovet said:

For me, "Venting" is only productive when I get real ideas on how to fix the issue.  

To "spew" just so "I feel better" does not work for me, tho I have to realize that Im "very glad" everyone is not exactly like me.  

I do agree with Alex.  I suggest, when hiring an attorney, to do a good enough job investigating to "make sure" its your best option, and the best option specific to that attorney. 

Once you render a decision, I suggest you think of it as a "5 to 10 year" committment, not unlike that of marriage.  Its almost never good to be "attorney hopping".  Stay with that attorney "at least" until the present issue  is resolved.  

Unfortunately, in this environment its not always possible to hire an attorney for life.  Why?  Well because, for example, my attorney did not represent Vets at the BVA level.  He limited his practice to the CAVC, and, after the remand, it meant Im attorneyless.  

I get why they do that.  It takes 2 years to get through the CAVC, sometimes less, or 5 years, sometimes more, to get through the BVA.  As one attorney explained, "our business model does not work (if we have to wait 5 years to get paid)".  

Im sure glad I dont have to hire people to do my yard that way: 

"Ok..please cut my grass today, trim the hedges, weed wack, install new landscape, and you "should" get paid in year 2024.  You are okay with that, right?"  

Dont expect many takers on that.  

For my grass cutter, I expect to pay him as soon as he is done.  Cash.  Once in a while, if he wants to cut my grass and I have not yet been to the bank, he will cut it and I pay him next week.  Never, do I make them wait over a week, and that is usually because there is a compelling reason to make them wait a week.  

Make NO mistake about this:

"Your attorney is doing you a big favor accepting your claim on contingency, where he may not get paid EVER, or, best case he may get paid in 5 years".  

He is lending you his own money..for years..no interest.  

Great read and points.

[kanewnut]

On 5/31/2019 at 8:00 PM, dawsonatl said:

Entitlement to individual unemployability is denied because you have not been found unable to secure or follow a substantial gainful occupation because of service connected disabilities. Service connected disabilities currently evaluated as 70 percent do not meet the schedular requirements for entitlement to individual unemployability. 38 CFR 4.16 provides that individual unemployability may be granted where there is one disability evaluated as 60 percent disabling, or

 

On 5/31/2019 at 8:00 PM, dawsonatl said:

Although you have been found unable to maintain employment, you do not meet the schedular as provided in 38 CFR 4.16, therefore entitlement to individual unemployability is denied.

 

On 5/31/2019 at 8:00 PM, dawsonatl said:

Logistics Health Incorporated LHI examination dated May 13, 2019 confirms that you are uncapable of maintaining temployment.

This looks like a CUE to me. The rater lists 38 CFR 4.16 and then miss uses it. The rater then states you can't maintain employment and then misquotes 38 CFR 4.16 again. Then the rater lists the LHI exam as favorable. This looks like it violates the following 38 CFR regs - 

4.2 It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work.
 4.6 Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.
 4.16 (a) 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,

Just my opinion.

[Berta]

It is  a CUE under 38 CFR 4.6:

" Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

I suggest that you tweek this and get it to them:

To VARO name                                                                date 

Attention to: ( put the alpha part of the alpha nurmeric here- it is on the right hand top of the decision.

This is a Claim of Clear and unmistakable Error under auspices of 38 USC 5109.I have copied that part of your ( date) decision and enclosed it, regarding these CUEs.

You violated 38 CFR 4.2 thus:

4.2 It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work.

You violated 38 USC 4.6 thus:

" Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

The C & P examiner specifically stated I am unable to work:

"Logistics Health Incorporated LHI examination dated May 13, 2019 confirms that you are incapable of maintaining employment".

That is a medical determination. You are not an MD, you are a rater. You have not properly applied 38 CFR, 4.16 et al,

That also is a violation of  established VA case law and regulations.

These errors have manifested a detrimental outcome to me.

Please correct them.

 

Sign, copy for your records, and send in or via ebenefits  but before you do---Thank you Dawsonatl!!!!!!

We need more CUE people here!!!!!!  

I also want to see if I can find the CAVC decision or regs that says the raters cannot make medical interpretations----

Anyone knows?

It would be a nice final  additional touch!

 

 

 

 

 

 

 

 

Edited June 6, 2019 by Berta

[Berta]

this is what I mean:

 M21-1MR, Part III, Subpart iv, Chapter 5, “the RSVR may not rely upon his/her own unsubstantiated medical conclusions to reject expert medical evidence”.

That would go for anyone who made this decision.

I just wish I had the Legal citation-----in any BVA or CAVC decision- stoll looking

 

Edited June 6, 2019 by Berta

[Berta]

Yippee! from above M21 link:

"d.  Rejecting Medical Evidence    Unless the historical facts upon which a medical conclusion is based are dubious or untenable, reject medical evidence only on the basis of other medical evidence.

The RSVR may not rely upon his/her own unsubstantiated medical conclusions to reject expert medical evidence provided by the claimant.

Reference:  For more information on the basis for rejecting medical evidence, see
•    Shipwash v. Brown, 8 Vet. App. 218, (1995), and
•    Colvin v. Derwinski, Vet. App. 175 (1991)."

You can add this as an additional CUE: Violation of M21-MR Part III, Subpart iv, Chapter 5, and what I have done is attach and refer them to a printout of the Actual M21-1MR above highlighting the part I quoted.

I did that for my SMC CUE.

Edited June 6, 2019 by Berta

[kanewnut]

27 minutes ago, Berta said:

•    Shipwash v. Brown, 8 Vet. App. 218, (1995), and
•    Colvin v. Derwinski, Vet. App. 175 (1991)."

 

I glanced through these two and they seem to be talking about the BVA decision at the CAVC. I am a little confused but I guess the Ratings Veterans Services Representative [RSVR] gets appealed to the BVA and then the CAVC. Then the CAVC opines about the BVA and not the RSVR. Is that right?