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, GeekySquid said:

I hope it helps in some way. I appreciate the compliments but you don't have to churn my butter  lol.. we are here to support each other and offer our experience, hope and ongoing questions.

VA is never static and nothing is normal. The only constants are change and the feeling they are really not on our side all the time.

Hopefully you will hang around and help others with your own experiences. That is how we win this constant battle.

Most definitely, it helps tremendously! I'm obligated to provide my insight and experiences to the next vet who's starting out in this system as I would not have gotten this far without the encouragement and help from others.

[dawsonatl]

On 6/8/2019 at 1:33 PM, GeekySquid said:

I hope it helps in some way. I appreciate the compliments but you don't have to churn my butter  lol.. we are here to support each other and offer our experience, hope and ongoing questions.

VA is never static and nothing is normal. The only constants are change and the feeling they are really not on our side all the time.

Hopefully you will hang around and help others with your own experiences. That is how we win this constant battle.

After some time sitting and thinking on it, I finally had a good day to get focused and write my final CUE draft. I appreciate everyone's input and a big thanks to GeekySquid for your input. Any other advice and opinions on this final draft before I send it off would be greatly appreciated!

Final draft CUE.docx

[GeekySquid]

6 minutes ago, dawsonatl said:

Any other advice and opinions on this final draft before I send it off would be greatly appreciated!

 

A quick read shows your formatting is great. Organization great. You are clearly stating what you believe is applicable to each law and the reason.

Two questions.

First is easy....do you only have 1 enclosure? If so that is fine, just checking. Please make sure, since you did not include the enclosure here, that you are citing the right page and paragraph and that what is highlighted is correctly related to the item you claim in the way you claim it. I noticed you have Page 3 Para 2 highlighted twice in your document. please check that stuff over again.

Second.

you say "The rating examiner applied their own medical conclusions when they list the LHI exam as favorable and that the LHI examination confirms that I am incapable of maintaining employment but misuses and misquotes 38 CFR 4.16 (Enclosure Page 2, Paragraph 3, Highlighted)."

This needs further clarification and direction for the reader/reviewer.

You should include something that explains that

"..DESPITE LHI examiner stating you are unable to work, the VA decided that you were CAPABLE of working and failed to provide the medical opinion (to you) stating such and did not send you to a second C&P.

Further, two differing medical opinions exist in equipose and by regulation and law (you will have to look up the refs an incorporate in all appropriate areas of your doc), are to be decided in favor of the Veteran. The VA failed to provide the credentials of the medical person who contradicted the LHI Examiner and that second examiner did not speak with you on any subject.

(the bit about credentials does two things. First it boxes the VA into either saying "oops" or saying "we used a staff doctor to review your record".

If they say "oops" you are good, however if they try and ignore that bit and claim that another doc did the review, this bit helps you retain a another higher appeal at the Appeals Court and higher if need be.

Just so you know, to challenge the credentials of a doctor you have to raise that question immediately. Since this situation would be the first time they said another VA doc (or nurse) provided an opinion (if they do say that, that is), you have the opportunity to challenge their credentials and certs, but only if you declare that question immediately.

It is a bit of a legal thing involving procedure and the proper time to introduce certain types of evidence and declarations. In a normal path you would be filing a NOD and challenging the credentials there if you wanted to retain the ability to challenge them at a higher court. If you don't declare it at the earliest time possible, the CAVC and First Circuit will say you lost your chance to raise the issue.)

Overall it looks good, just consider the stuff I said here to improve your outcome chances. You don't want to give them a chance to say they didn't understand what you wanted or meant.

 

[Berta]

This is very well written. I always put Attention to: on CUEs and then put the initials inthe alphanumeric that appears on the top right hand side of the decision. This is the initials of th last person who handled your claim.

Have you posted here their decision and evidence list? When I get home from church I will try to find it-

just to see if there is anything else you need to add-

also I don't have time to find the  regulation to support this:

"Further, two differing medical opinions exist in equipose and by regulation and law (you will have to look up the refs an incorporate in all appropriate areas of your doc), are to be decided in favor of the Veteran. The VA failed to provide the credentials of the medical person who contradicted the LHI Examiner and that second examiner did not speak with you on any subject.

[Berta]

There are some very good citations in this article from Hill and Ponton:

https://www.hillandponton.com/va-benefit-of-the-doubt/

In part:

"“When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.”  38 C.F.R. § 4.3.  Section 3.102 defines the term “reasonable doubt” as used in § 4.3 as doubt “which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.”  38 C.F.R. § 3.102; see Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001) (stating that section 3.102 “restates” the provisions of 38 U.S.C. section 5107(b) (benefit of the doubt) in terms of “reasonable doubt”).  Thus where the Board concludes that the evidence is not in equipoise, specific consideration of section 4.3 is not warranted.  See Schoolman v. West, 12 Vet. App. 307, 311 (1999) (explaining that where the preponderance of the evidence is against an appellant’s claims, “the benefit of the doubt doctrine does not apply”).  Mayhue v. Shinseki, 24 Vet. App. 273, 282 (2011)."

https://www.hillandponton.com/va-benefit-of-the-doubt/

I will read the whole 12 pages when I get home---------you did a great job but no stone can be left unturned.

The director of my RO actually apologized to me for denying me BOD-they had listed my evidence but failed to consider it in the denial.The award came fast after that ( 1151 HBP claim)

You might not need the citations in the article but it is a good read.

 

 

[GeekySquid]

3 hours ago, Berta said:

There are some very good citations in this article from Hill and Ponton: 

@Berta

That is a good read on BOD when two medical opinions are in equipose.

From what @dawsonatl  posted about the situation is appears that the rater (maybe after consulting a VA medical expert? who knows at this point?) decided on their own that the C&P medical Doctor got it wrong. That some other evidence outweighed that Dr's medical opinion based on the in person C&P exam. They also seem not to have supplied him with that evidence depriving him of the opportunity to rebut their decision.

In my view, when you sue someone, and CUE is a type suit or can become one, if you can "box" the person you are suing into a position that they have to justify or explain in detail, then you are in a better position.

We know from experience and the records the VA seems to habitually believe they don't have to follow their own rules and the laws set by Congress. They also don't like obeying Court Rulings, even controlling opinions from SCOTUS.

We also know the BVA, CAVC, and First Circuit frequently take a dim view of that habit.

Of course we don't know all the facts, we don't have any of the documents to review, so we cannot say if his CUE will succeed.

What we can do is help him set the stage to get the CUE reviewer to look at his evidence and claim in the narrow light of the legal reasoning he provides. He can also, IMO, box in the VA by demanding the reviewer address (or ignore) a potential challenge to the credentials of the person who might (or might not) have provided a medical opinion in opposition to the C&P exam.

At a minimum, if the VA fights him on this CUE, he sets himself up to allow further and more aggressive legal challenges based on the potential "mystery medical opinion" that may have been made by an unknown VA medical person or even the rater themselves.

You of course are the Queen of CUE as I fondly refer to you, and any of your advice to @dawsonatl should be taken very seriously.