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]

I read over everything here and can't add anything new. But  I don''t understand this:

One LHI examiner said you cannot work and another one said the opposite,who was not a VA doctor, but a rater?

As Geeky Squid said, this needs to be clarified.

Also I forgot: In May you said:

.” The fight continues..I will see what my attorney has to say about the letter and proceed from there.”

And on May 25th you said:

'flo1, the denial letter actually went to my attorney's office as well and they contacted me yesterday. I have a secondary migraine appeal going on and the tdiu denial letter automatically was sent to their office. The case manager I spoke with said yes this letter seems very contradictory but that they have encountered quite a few of such denials lately. It's just a shame that the attorney may get a nice chunk of change out of my denial without having to put in any effort and legwork. It's plain to see that this is a clear and unmistakable error on the RO's part. Also, thank you as well and I appreciate your response. Give me a little more hope that this may get resolved and straightened out when I see others have went through the exact same thing. 

Are you revoking the lawyer's POA to file the CUE without them?

Did the lawyer in any way suggest CUE ?

 

 

 

[GeekySquid]

On 5/25/2019 at 9:24 AM, dawsonatl said:

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

 @Tbird  just posted the MR21 document on SMC ratings with references to TDIU

I suggest @dawsonatl read section 10 starting around page 30 for SMC(s).

I also suggest @foreveryoung does the same.

 

[dawsonatl]

3 hours ago, Berta said:

I read over everything here and can't add anything new. But  I don''t understand this:

One LHI examiner said you cannot work and another one said the opposite,who was not a VA doctor, but a rater?

As Geeky Squid said, this needs to be clarified.

Also I forgot: In May you said:

.” The fight continues..I will see what my attorney has to say about the letter and proceed from there.”

And on May 25th you said:

'flo1, the denial letter actually went to my attorney's office as well and they contacted me yesterday. I have a secondary migraine appeal going on and the tdiu denial letter automatically was sent to their office. The case manager I spoke with said yes this letter seems very contradictory but that they have encountered quite a few of such denials lately. It's just a shame that the attorney may get a nice chunk of change out of my denial without having to put in any effort and legwork. It's plain to see that this is a clear and unmistakable error on the RO's part. Also, thank you as well and I appreciate your response. Give me a little more hope that this may get resolved and straightened out when I see others have went through the exact same thing. 

Are you revoking the lawyer's POA to file the CUE without them?

Did the lawyer in any way suggest CUE ?

 

 

 

Good Evening Berta,

Thank you for your input and advice. No, the LHI examiner concluded that I am unable to maintain employment and the rater stated that even though I was found to be unable to maintain employment I am denied because I did not meet the scheduler as provided in 38 CFR 4.16. I may have worded something wrong, I will go back and correct some things. Yes, I revoked the lawyer's POA and am filing the CUE without them. An veteran's advocate who I was referred to by a friend suggested the CUE to me after reading through my decision letter, but I had already pretty much intended on going the CUE route beforehand.

[dawsonatl]

2 hours ago, GeekySquid said:

 @Tbird  just posted the MR21 document on SMC ratings with references to TDIU

I suggest @dawsonatl read section 10 starting around page 30 for SMC(s).

I also suggest @foreveryoung does the same.

 

GeekySquid,

Will do, thank you again. I will definitely take heed to your advice and dig into my final draft again and make more corrections.

[dawsonatl]

19 hours ago, GeekySquid said:

 

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.

 

Geekysquid,

I actually have two enclosures. One is the decision letter and the other is a page of the regs I felt were violated.  I will go back and clarify how they misused 38 CFR 4.16 more. Again, I really appreciate it.

[GeekySquid]

36 minutes ago, dawsonatl said:

two enclosures.

make sure you list each enclosure on the letter so they cannot say they were not included and if I were you I would quote the decision letter as denying me near the top of the cue. That incorporates both enclosures and put their words on the table directly instead of as a inference.