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, kanewnut said:

I would suggest looking up the different 38 CFR regs and copying them directly from that source. I just copied the relevant part and not the whole reg. I don't want that to cause you a problem.

I second the different text.

Definitely. I had thought that myself as well and wrote the 38 CFR regs down on side to dig into it further. I will definitely be implementing the whole regs in on final draft. I figure this whole process will take me a week or more to get straight. I really appreciate your input!

[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

 @dawsonatl

Hey, I am a little late in reading this today, been at the VAMC all day UGH.

I don't see a second draft posted, so I am going to comment on the copy I do see.

This CUE is a pro se filing, which means it does not have to have every I dotted and T crossed, but it has to be accurate in its claims in general and very specific about what law, or part of the law was violated and what that violation is.

I have attached a reformatted doc with some suggestions.

As with all VA submissions you have to lead them by the nose to make them agree with your claim. In this case you are a filing a CUE on legal grounds. You have to tell them both the law they violated and HOW they violated it as it applies to your claim.

Once you look at my version I would suggest you hyperlink[edit here: I am brain dead. this is a cue, hyperlinks won't help. sorry.] the laws and regs listed in the top section. That gives them an immediate path to what YOU are relying on. Use the hyperlinks in the MR 21 section to link to the cases I show in that list. My doc adds the words to each section saying "states in part "..."

The phrase along with the ellipses bring the reader to the exact info that you want them to read. It focuses them away from extraneous info that might contradict or be used to contradict the outcome you want.  It tells them what YOU want them to accept and act on.

In your closing you state you have had a detrimental outcome, what is the specific harm? as well what is the specific correction?

In answering what is detrimental you might consider Cushman v. Shinseki  which rules that VA benefits, once awarded, vest a property right under the 5th Amendment Due Process Clause. You have been awarded the benefit, but VA is not applying the other laws and regs appropriately thereby denying you full access to your vested Due Process rights of property. The VA has a duty to maximize your benefits and construe your claim liberally in your favor. I would cite those requirements in the top list and in this section. along with Cushman.

Further consider including language suggesting that if the VA does not accept your argument that the rating agency created its own medical opinion, then you have two completely opposing medical opinions. When two medical opinions exist that are of equal value they are in equipose and that means the tie goes to the veteran. that is per regulation.

Including this sets up a trap of sorts on the issue of the VA making up medical evidence. If they agree with you and accept the CUE, it has no harm. If they disagree it defines (for future legal reasons) the parameters of what they got wrong.

The VA would have to decide to claim their opinion was a) a valid medical opinion and b) it has equal or greater medical value than that of the contracted medical doctor who said you can not work. Under the law and fact they would lose on both parts. Hemming them in might just enhance the speed in which they accept the CUE.

Be specific about what you want from the correction. TDIU and EED? then say so, don't let them guess.

Hope this gives you some ideas or help.

cue suggestions.docx

Edited June 8, 2019 by GeekySquid
brain death on my part

[dawsonatl]

11 hours ago, GeekySquid said:

 @dawsonatl

Hey, I am a little late in reading this today, been at the VAMC all day UGH.

I don't see a second draft posted, so I am going to comment on the copy I do see.

This CUE is a pro se filing, which means it does not have to have every I dotted and T crossed, but it has to be accurate in its claims in general and very specific about what law, or part of the law was violated and what that violation is.

I have attached a reformatted doc with some suggestions.

As with all VA submissions you have to lead them by the nose to make them agree with your claim. In this case you are a filing a CUE on legal grounds. You have to tell them both the law they violated and HOW they violated it as it applies to your claim.

Once you look at my version I would suggest you hyperlink[edit here: I am brain dead. this is a cue, hyperlinks won't help. sorry.] the laws and regs listed in the top section. That gives them an immediate path to what YOU are relying on. Use the hyperlinks in the MR 21 section to link to the cases I show in that list. My doc adds the words to each section saying "states in part "..."

The phrase along with the ellipses bring the reader to the exact info that you want them to read. It focuses them away from extraneous info that might contradict or be used to contradict the outcome you want.  It tells them what YOU want them to accept and act on.

In your closing you state you have had a detrimental outcome, what is the specific harm? as well what is the specific correction?

In answering what is detrimental you might consider Cushman v. Shinseki  which rules that VA benefits, once awarded, vest a property right under the 5th Amendment Due Process Clause. You have been awarded the benefit, but VA is not applying the other laws and regs appropriately thereby denying you full access to your vested Due Process rights of property. The VA has a duty to maximize your benefits and construe your claim liberally in your favor. I would cite those requirements in the top list and in this section. along with Cushman.

Further consider including language suggesting that if the VA does not accept your argument that the rating agency created its own medical opinion, then you have two completely opposing medical opinions. When two medical opinions exist that are of equal value they are in equipose and that means the tie goes to the veteran. that is per regulation.

Including this sets up a trap of sorts on the issue of the VA making up medical evidence. If they agree with you and accept the CUE, it has no harm. If they disagree it defines (for future legal reasons) the parameters of what they got wrong.

The VA would have to decide to claim their opinion was a) a valid medical opinion and b) it has equal or greater medical value than that of the contracted medical doctor who said you can not work. Under the law and fact they would lose on both parts. Hemming them in might just enhance the speed in which they accept the CUE.

Be specific about what you want from the correction. TDIU and EED? then say so, don't let them guess.

Hope this gives you some ideas or help.

cue suggestions.docx 16.58 kB · 2 downloads

@GeekySquid..funny you say that, I actually came from the VAMC yesterday myself. Place stresses me out, had a splitting headache afterwards. But thank you very much for the great information and Insight! I'm truly thankful and it is a blessing to run across fellow vets as yourself. From yourself, @kanewnut, and @Berta and other I may have forgot, you guys have given me hope and motivation, because I was very down for a split minute. But I will definitely use your edited document as a guideline and when I am all finished to send it off I will post my final draft. One question though pertaining to the hyperlinks, that should only be included assuming if I'm intending to send them the CUE electronically rather than through mail, correct? Or should I do both? Regardless, thank you very much sir I appreciate it!

[GeekySquid]

1 minute ago, dawsonatl said:

I'm intending to send them the CUE electronically rather than through mail, correct? Or should I do both? Regardless, thank you very much sir I appreciate it!

@dawsonatl

Hi,

The reason I put in the edit is that, unless something has changed that I have missed, CUE's are only submitted via paper document. The new AMA process has changed stuff but I don't think there is a CUE path under AMA. It would be great if there was as you then have a traceable path to prove submission, at no cost.

You should have an address for your RO as well as the RO number that caused the CUE. That is where you send the documents.

Make sure you do so as Certified Mail Return Receipt Requested. You really want to make sure you document that they got it and when. Keep that info for ever!. Until the Rocky Mountains Crumble and Lincoln Blows his nose on Rushmore.

When I mentioned hyperlinks I was tired and brain dead. Documents scanned into a system that allows hyperlinks is a very sophisticated system and hyperlinks can create malware and spyware problem so most scanning and upload systems will block the recipients access to them anyway.

I cannot be sure what VA does with hyperlinks in an uploaded or scanned documents but their tech side is not a stupid group of people.

As for the draft suggestions i made. They are suggestions on form and format. The comments I made about contents are really hard suggestions....If I was teaching you in a class with that information I would be stamping my foot to make sure you took notes LOL.

You must lead this pig to the sty and make it roll around in the muck, but you want it to be the muck you choose not the muck they want to roll in. (yes that is a tortured metaphor).

anything you submit to VA, including original claims, needs to light up a very narrow path for them to follow to get to the destination you want.

It is my suggestion that even when you submit that original claim, your personal writing in support of that include a list of enclosures that you are also uploading, and in a very logical and sequential way craft the document and reference every one of those enclosures in terms of what it says.

say you have a PTSD claim and a medical study that says soldiers in the middle east who were swarmed by those gigantic spiders consistently developed PTSD. you would literally want to use the "...foo foo foo" format to reference that in your writing.

then you would need a buddy letter or an actual troop report showing you were swarmed by those spiders to prove nexus.

One more point I would like to make. As you can see, I am not a concise writer in the context of posting online. In terms of official documents however I use as few words as possible. Get to the point you want and DON"T give any extra information.

Americans have rights under Miranda that say we can keep our mouths shut or have anything we say used against us in a court of law. Criminals usually talk themselves into jail because they cannot shut up. Vets harm themselves in claims by spewing too much information. Collectively we need to learn to just give the most concise statements possible. Extra information can be your downfall, don't create your own bad outcome!

I look forward to seeing your final, but do post here before you send. Just to have new eyes look for potential mistakes, typos, or oversights. When we write things we often become too close to them to see that others won't follow our path. It is a human thing. We know what we mean and just don't see the mistakes we make.

 

[dawsonatl]

Great points and insight with a humorous twist to it lol. Your a sharp, articulate guy..everything you said has been duly noted.

[GeekySquid]

16 minutes ago, dawsonatl said:

everything you said has been duly noted.

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.