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]

2 hours ago, GBArmy said:

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.

10-4. After reading you guy's great input and advice I am definitely going to go for the Motion of Revision Based on CUE. Is there a specific form to gather to file this motion? I haven't seemed to come up on one thus far. Once again, I sincerely appreciate everyone's advice and input..thanks to all!

[GeekySquid]

14 hours ago, kanewnut said:

I haven't been able to get them to get my VR&E report.

@kanewnut

I am curious, did you get your cfile after your VR&E decision? if so it should be in there.

If not, order a new cfile or specific records from Janesville.

 

 

 

 

 

 

[GeekySquid]

17 hours ago, Berta said:

I have filed many CUEs

@Berta

As the Queen of CUE's as I affectionately call you, I do have a question before you take your break from Hadit.

I have multiple items that I believe are CUE that all revolve around the same issue and arise from the same exact problem.

Should I , in your opinion, file each as a separate CUE or include them in a single cue?

[Berta]

You can file many CUEs if they are found in a single decision.

List the legal errors under CUE separately, and make sure you identify the date of the decision and attach it as an exhibit (or enclosure)

If these involve separate decisions, you need to file CUE on the legal errors for each   specific decision.

My current issue identifies two CUEs in one decision. 

I filed about 4 CUEs maybe 5 on a past decision. Both of these decisions I cued were award letters and not denials.

We have CUE templates here and others will help you.

 

 

 

[GeekySquid]

7 minutes ago, Berta said:

You can file many CUEs if they are found in a single decision.

@Berta

thank you.

They all involve the same decision letter.

I just was not sure if I should file them all separately or if I could combine in one document.

I appreciate the help

[dawsonatl]

21 hours ago, Berta said:

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!

 

 

 

 

 

 

 

 

Thanks!