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.

 

[Berta]

That is technically right- BVA accepts more evidence up until their decision is made, CAVC, however, reviews the evidence that has already been established

.but maybe I can clarify this-

M21-1MR is the VA handbook for adjudicating claims at the VARO level.

Everything that prior VA case law has established- to explain the M21-1MR , is to be implemented at the RO level.

This case, as far as I know  is at the RO level.

The BVA is higher than the RO and the CAVC is higher than the BVA.

The best thing any veteran can do is try to get an award from a RO, an award that they do not have to appeal.

This vet  hs a clear cut CUE basis. The ROs have to follow M21-1MR. 

By filing a CUE within the appeal period, this could become a TDIU award. If not it can be appealed.

I have filed many CUEs within the appeal period that did not even require a NOD.They resulted in fast awards.

Kanewnut-you have an excellent handle on  CUE, I apologise, I didn't mention it was you who threw in some very good stuff for this veteran to use .

 

 

[dawsonatl]

36 minutes ago, Berta said:

That is technically right- BVA accepts more evidence up until their decision is made, CAVC, however, reviews the evidence that has already been established

.but maybe I can clarify this-

M21-1MR is the VA handbook for adjudicating claims at the VARO level.

Everything that prior VA case law has established- to explain the M21-1MR , is to be implemented at the RO level.

This case, as far as I know  is at the RO level.

The BVA is higher than the RO and the CAVC is higher than the BVA.

The best thing any veteran can do is try to get an award from a RO, an award that they do not have to appeal.

This vet  hs a clear cut CUE basis. The ROs have to follow M21-1MR. 

By filing a CUE within the appeal period, this could become a TDIU award. If not it can be appealed.

I have filed many CUEs within the appeal period that did not even require a NOD.They resulted in fast awards.

Kanewnut-you have an excellent handle on  CUE, I apologise, I didn't mention it was you who threw in some very good stuff for this veteran to use .

 

 

Thank You for everyone's input and great opinion. @Berta, I'm thinking of filing for a Higher-Level Review. Would that be better than filing a CUE claim?

[dawsonatl]

3 hours ago, kanewnut said:

 

 

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.

Thank you for your input and opinion sir. I just saw my counselor at the Vet Center and she said she could not understand how something so clear cut was denied and advised for me to file for a Higher-Level Review. I'm strongly considering going that route.

[vetquest]

A higher level review might be denied under the same mistake.  I would go with the advice to file a CUE and then appeal to the BVA if your CUE does not work.

[kanewnut]

26 minutes ago, vetquest said:

A higher level review might be denied under the same mistake

I did a higher level review and it was denied. I haven't been able to get them to get my VR&E report. I have refiled a supplemental claim. The next step will be a CUE if needed.

 

[GBArmy]

I think Vetquest has the best advise, and Kanewnut confirms it. Not a big fan of higher level review. For it to work it has to be a hands down decision the the first decision was wrong. Most will just agree with the first decision and know that a majority of the veterans will not appeal AGAIN; they will just give up in frustration. Higher level review doesn't do anything for your claim except maybe  allow the claim to continue while you gather more facts/evidence for a Supplemental. You hardly ever hear anyone commenting any success stories because of a Higher Level Review. Follow their advise.