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TDIU for PTSD denied... because I am a parent??

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Narose

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Okay so this is my first post, but I have been a long time lurker and just want to say thanks for years of informative and helpful content!

I recently applied for TDIU due to my PTSD rated at 70% (90% overall rating) in April of this year, with an intent to file dated back to October 2019. I am honestly flabbergasted at what the rater used as the basis for their decision. I have never seen or even heard of something like this and am looking for input on how to proceed. I am definitely appealing but thats as far as I have gotten at this point. 

 

Here is a brief timeline for reference:

January 2019 - Started struggling at work (desk job, minimal interaction with people outside of email/calls) 6 months into my job due to issues related to my PTSD

June 2019 - My employer and I mutually decided that I should resign due to my ongoing PTSD related performance issues; this essentially was them saying they didn't want to fire me but I could not continue working there in my mental state at the time. They don't have to pay unemployment insurance, I get to keep them as a positive reference on my resume for when/if I am able to work again, win-win for everyone. 

August 2019 - My last day at work, the previous month was spent finding my replacement and using up sick/vacation days, etc. 

September 2019 - Former employer fills out VA 21-4192, everything about the statement is favorable to unemployability. 

January 2020 - I give birth to my 4th child. 

April 2020 - I submit the claim for TDIU; I waited until this point to file so that I did not go over the income requirement and get an automatic denial based on that.

April 2020 - C&P exam for PTSD, examiner opines favorably and conclusively that I am not employable due to PTSD.

May 2020 - Denied. Copy of the basis for denial down below, with the only edits made for protection of privacy (names, dates, locations, etc.)

 

Entitlement to Individual Unemployability

Entitlement to individual unemployability is denied because you have not been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. You are considered capable of gainful employment. {38 CFR 4.16, 38 CFR 4.18}

Although you and your previous employer noted issues with reporting late to work, missed days at work, and unsuccessful attempts at teleworking it should also be noted that during that time you appeared to be the primary caregiver to three young children and were approximately six months pregnant when you left their employment. During the examination conducted in April, the examiner noted: "Veteran is either in a panicked state or depressed, so could be emotionally unstable in a public environment. She has flashbacks and distressing memories daily, which could make it difficult for her to attend to tasks and support other staff. She has issues with mood and affect and cannot tolerate strangers or crowds, which could make it difficult to work customer facing or in a sheltered work environment. She does not get sleep, has poor concentration and memory, which would make it difficult for her to learn and retain as well as use new information." However the examiner did not address concerns related to non-service related post partum depression and possible thyroid issues, which can affect mood, concentration, and memory. Although you have had consistent issues with chronic sleep impairment, a newborn would also affect sleep which could also affect memory issues (which was also noted as a new symptom), however again this was not addressed by the examiner. The examiner also did not appear to consider the job that you do at home with regards to primary caregiving for four young children.

Evidence indicates that you completed four years of college and have not tried to obtain employment since you left your previous employer in August 2019. It's noted that you had your fourth child in January 2020, just prior to the COVID 19 outbreak and that unemployment rates are currently at an all time high due to pandemic restrictions. The SSA determination letter copy dated March 2013 noted that you were denied disability benefits as you are not considered disabled under their rules. 

While your service connected disabilities are substantial and may preclude you from doing certain types of work, the evidence does not show that you are prohibited from all forms of substantially gainful employment. Being unable to find a job, being unable to perform a particular job, the feasibility of working full time with four young children at home, or experiencing difficulties while being the primary caregiver to four children while trying to work are not sufficient reasons to find you unemployable due to your service connected disabilities. Recent VA Medical Center treatment records indicate that although you still struggle with your PTSD symptoms that you are able to appropriately care for yourself and serve as primary caregiver to your three children and newborn, even during current restrictions due to COVID 19. 

After carefully considering the available evidence, we cannot establish entitlement to IU. In order to establish entitlement, the evidence must show that your service connected disabilities by themselves prevent you from performing physical and mental acts required for any employment. 

 

A few important things to note:

I was service connected for PTSD in 2013, and have been rated 70% for the past 7 years, with one dip to 50% for a few months in 2017. My medical record shows a clear and consistent picture of my mental health, with most issues remaining the same or worse, and I have had the same VA Psychiatrist for the past 4 years. I have NEVER been diagnosed with  Post-partum Depression, nor has it ever even been suggested anywhere in my record. The "possible thyroid condition" mentioned was the result of an abnormal blood test done on the same day as my exam, so the examiner obviously would not have that information as they did not even have the results that same day; never had any abnormalities with thyroid hormones before, the most recent test prior to that was done in May 2019 and was normal.The "new" memory issues are not new and are documented in my medical record. The SSA denial mentioned was from SEVEN years ago for an unrelated neurological condition. I even included a statement with the claim to that effect just for clarification.

The fact that it feels like the rater essentially said that because I am a parent then I that means I am employable really bothers me at my core. I am not the primary or sole caregiver of my children; I have a spouse and a part time nanny who shoulder the majority of the burden. This really feels prejudiced because I am a woman who recently had a baby, so clearly that means that I am fine. The sleep issues I've had for over 7 years are apparently invalidated because I have a newborn who is the real reason my sleep is affected. Men who have children certainly are not denied IU because they are parents, so why is it that I was? It was the focus of the denial and it feels personal somehow. 

My VA psychiatrist was the one who recommended applying for TDIU and she will be writing a letter on my behalf refuting the statements made above, so that will be the new evidence used in the appeal. I am really trying to pinpoint what legal basis was used for this decision and how to move forward with my personal statement. 

There are a lot of little details missing but that is the gist of it, so sorry for the wall of text, and thank you all in advance for your input and help!

 

Edited by Narose
Changed examiner to rater in one section
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  • HadIt.com Elder

Roger that,  sounds like a good plan.

just don't get to frustrated and quit  that's exactly the VA INTENTIONS.

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1 hour ago, Narose said:

Would you recommend filing the SSA claim at the same time that I am managing the appeal with the VA? It feels like it would be too much for me to handle all at once in terms of stress. I’m not sure what timelines the SSA runs on for initial claims, I would just hate to have to be dealing with both at the same time. I know I should bite the bullet, I just feel very discouraged and overwhelmed following this setback. 

The good thing about SSA lawyers is you don't have to use local guys. You can use any law firm that specialize in Social Security Disability Insurance.  Once your claim is denied, all you have to do is contact them.  As stated above, they will send you all the forms you need to fill out. They will review your records and make a decision to take your case or not. You may have to shop around but they will let you know if they will take your case. I heard that Binder and Binder is a good law firm but as stated if they don't take your case you may have to find another law firm.  Don't get discourage this is how they (SSA) weed their applicants out.  Yes, you have a disability and you want to help support your family but some individuals decides that it is not worth the fight and continue to try to work as long as possible but that only cause health problems years down the line.  Fight now, let an attorney take most of the pressure and stress off of you. It is your call but these claims take time and the sooner you start the better it will be for you and your family. OK, you must try to understand that it is most likely that you will never work again and your basic purpose is to stay healthy for you and your family.  It is very discouraging but you can handle it. Just keep thinking that you are doing it just not for you and your husband but for those babies of yours. A lot of us here at Hadit.com has been in your shoes and we are willing to try to help and guide you. We know of the aches, pains, disappointments, hurts, let downs, frustrations, anger and anything you can think of and we are here to help. I recently won an EED (Early Effective Date) from BVA back to 1998. VA denied my claim all that time while the evidence was sitting in my folders.  Talk about being frustrated with the system but you can win.  Hope I see that retro check one day, I think Bronco recently won one also.  So as you can see we all have been there and I know you can do it.   Always know, if you have a question, just jump online here and someone will try to help you out.

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3 hours ago, pacmanx1 said:

The good thing about SSA lawyers is you don't have to use local guys. You can use any law firm that specialize in Social Security Disability Insurance.  Once your claim is denied, all you have to do is contact them.  As stated above, they will send you all the forms you need to fill out. They will review your records and make a decision to take your case or not. You may have to shop around but they will let you know if they will take your case. I heard that Binder and Binder is a good law firm but as stated if they don't take your case you may have to find another law firm.  Don't get discourage this is how they (SSA) weed their applicants out.  Yes, you have a disability and you want to help support your family but some individuals decides that it is not worth the fight and continue to try to work as long as possible but that only cause health problems years down the line.  Fight now, let an attorney take most of the pressure and stress off of you. It is your call but these claims take time and the sooner you start the better it will be for you and your family. OK, you must try to understand that it is most likely that you will never work again and your basic purpose is to stay healthy for you and your family.  It is very discouraging but you can handle it. Just keep thinking that you are doing it just not for you and your husband but for those babies of yours. A lot of us here at Hadit.com has been in your shoes and we are willing to try to help and guide you. We know of the aches, pains, disappointments, hurts, let downs, frustrations, anger and anything you can think of and we are here to help. I recently won an EED (Early Effective Date) from BVA back to 1998. VA denied my claim all that time while the evidence was sitting in my folders.  Talk about being frustrated with the system but you can win.  Hope I see that retro check one day, I think Bronco recently won one also.  So as you can see we all have been there and I know you can do it.   Always know, if you have a question, just jump online here and someone will try to help you out.

I honestly feel like I have been avoiding submitting an SSDI claim out of pride. It was hard enough for me to accept the fact that TDIU was necessary but now that I have finally accepted that I know that the next logical step is to follow suit with the SSA. I am fortunate to have a VA doc that is both knowledgable and supportive, so I am hopeful that will work in my favor throughout the process.

After a successful military career, and professional and academic successes in spite of my struggles with PTSD, surrendering myself to the fact that my disability has become overwhelming and obstructive was the hardest thing for me to do.  I had a good job that paid far beyond anything I could receive between the VA and SSA combined, so the most frustrating aspect of this case is the implication that I can work, I just don't want to because I have kids, really is infuriating. I feel compelled to see this through not only because it is necessary, but also based on the principle of it.

If (more like when) the SSDI claim gets denied, it is comforting to know that a law firm would essentially be handling the case and shouldering the weight of the stresses that go along with an appeal. I will be researching firms and getting a list together for if and when the time comes to appeal; better to be prepared and not need it than the other way around.

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4 hours ago, Narose said:

I will be starting my application for SSA later today

Good. IMO I think there will be enough wait time between decisions and replies that you won't get bogged down. I forget SSA's time frame for replies but the VA gives you a year, so you could set the VA stuff aside for a few weeks and then get back to it. I think SSA's procedures are still the same as when I went through it in the 2005-07 time frame. You will most likely get denied at first, then appeal, then get denied again and then hire a representative. I think it was early in the process that SSA sent me for the exams. The mental exam took far longer and was much more detailed than any C&P I have ever had with the VA. If you are awarded SSDI based solely on service connected disabilities, that is another good point for TDIU. The SSA will get all of your medical records. Hopefully yours are all correct. After you get representation you get to go before a judge. That is were it was decided that I don't have the residual functional capacity to work, all based on SCD's. SSA CFR 404 deals with social security. You can read through it and see what you can find. I can look up more from my stuff if you need me to.

You can search for M21-1 TDIU and read what the adjudication manual says about it. I have read it many times and I can't remember anything in there about being pregnant or being a parent. I usually reread everyone of the 38 CFR sights that they post in my decision. Sometimes things pop out at me reading it along with the decision. 

I see you are listing yourself as in Virginia. So am I. Dealing with the mental midgets at Roanoke is hilarious. They just sent me another TDIU denial. This time they say I was denied SSDI in dd/mm/2006. I can't find that in my SSA records. I did find on the same dd/mm/2007 my grant of SSDI. They took the time and effort to get two responses from the C&P exam to reduce a rating from 40% to 20%. Reading through the M21-1 shows they should not have done that. Yet they took the time to get information to reduce a rating, which had no overall effect on anything but to piss me off, and they couldn't look through the SSA records and find where I was granted SSDI. But, they are mental midgets, what can you do?

You mentioned DAV as your representative. They are mine also. The ones I am dealing with are in Roanoke. Unfortunately for me, they don't know their tail from a hole in the ground. I have been extremely disappointed with them. Hopefully your experience will be much better than mine has been. 

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24 minutes ago, Narose said:

I honestly feel like I have been avoiding submitting an SSDI claim out of pride.

Well, don't let that stand in your way. When you can't work, VA is fighting you, and you don't have a spouse or anyone else to fall back on it can get pretty bad. But you have a spouse and four kids to help you. If you think the kids won't be any help, just start crying in front of them and see if they don't try to cheer you up. I haven't been able to work since I was forty. It is a huge adjustment. 

You certainly don't have to look on this as the end of ever working again. You can get both SSDI and TDIU and if you ever feel like it you can try again to work. I think the SSA called me often several times to bring up things I might could go into to work. You can check with VA VR&E. In my case they had sheets they wanted filled out by my doctors. When they said I couldn't work I was denied retraining. This is probably what will happen with you if your doctor has said you can't work either. Then you can use this evidence in your TDIU case also. I have done this but Roanoke is twisting every which way they can to not use it. 

You can also look into volunteering if you get free time. Don't look on this as the end of anything, it is just a new chapter to write. Hopefully you won't have to learn as much as I have about VA law and how it operates just to get your benefits. Don't get fixated and get frustrated on what you have to give up. It doesn't help. I had a very large sum of money in my IRA when I couldn't work anymore. I had to live off of it for many years till I finally got SSDI. If I hadn't I would have most likely been very well off by now. It just doesn't do any good to worry about what might have been. 

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15 minutes ago, kanewnut said:

Good. IMO I think there will be enough wait time between decisions and replies that you won't get bogged down. I forget SSA's time frame for replies but the VA gives you a year, so you could set the VA stuff aside for a few weeks and then get back to it. I think SSA's procedures are still the same as when I went through it in the 2005-07 time frame. You will most likely get denied at first, then appeal, then get denied again and then hire a representative. I think it was early in the process that SSA sent me for the exams. The mental exam took far longer and was much more detailed than any C&P I have ever had with the VA. If you are awarded SSDI based solely on service connected disabilities, that is another good point for TDIU. The SSA will get all of your medical records. Hopefully yours are all correct. After you get representation you get to go before a judge. That is were it was decided that I don't have the residual functional capacity to work, all based on SCD's. SSA CFR 404 deals with social security. You can read through it and see what you can find. I can look up more from my stuff if you need me to.

You can search for M21-1 TDIU and read what the adjudication manual says about it. I have read it many times and I can't remember anything in there about being pregnant or being a parent. I usually reread everyone of the 38 CFR sights that they post in my decision. Sometimes things pop out at me reading it along with the decision. 

I see you are listing yourself as in Virginia. So am I. Dealing with the mental midgets at Roanoke is hilarious. They just sent me another TDIU denial. This time they say I was denied SSDI in dd/mm/2006. I can't find that in my SSA records. I did find on the same dd/mm/2007 my grant of SSDI. They took the time and effort to get two responses from the C&P exam to reduce a rating from 40% to 20%. Reading through the M21-1 shows they should not have done that. Yet they took the time to get information to reduce a rating, which had no overall effect on anything but to piss me off, and they couldn't look through the SSA records and find where I was granted SSDI. But, they are mental midgets, what can you do?

You mentioned DAV as your representative. They are mine also. The ones I am dealing with are in Roanoke. Unfortunately for me, they don't know their tail from a hole in the ground. I have been extremely disappointed with them. Hopefully your experience will be much better than mine has been. 

To be honest, using the DAV as my representative has only been fruitful in my efforts to gain more information than the VA makes readily available in a timely manner. They have not been of much assistance in the claim itself, but I have been able to get things done faster because of their access to the system. The rep said that he could not see what regional office my claim was handled out of, and the letter also does not specify so I can only assume that it was done via the national queue system. I can definitely say that you are not alone in your experience with Roanoke specifically, that place is a shit show. 

Searching the M21-1 under TDIU hasn't produced much clarity, but this excerpt seemed relevant: "A Veteran whose sole employment consists of performing household duties may qualify as unemployable, if the Veteran is no longer able to perform the principal household duties without substantial help." This is the case in my situation, as my husband and nanny both pick up a lot of the work, with me only handling about a 25% share, averaged across both good and bad days. Due to the nature of disability, I have some "good" days where I can do more, but not consistently or reliably.

Another technicality that I feel is relevant is the assertion that being a caregiver somehow equates to gainful employment. I am a parent in my own home who is caring for my own children with considerable assistance; nothing about that is "gainful" by definition. 

And last but certainly not least: "The following factors have no bearing on a determination of whether an SC disability renders a Veteran unemployable:

  • age
  • NSC disabilities
  • injuries occurring after military service
  • availability of work, or
  • voluntary withdrawal from the labor market."

So it seems to me that the rater completely ignored M21-1 IV.ii.2.F.4.c when commenting on NSC disabilities (that I do not have nor have I been diagnosed with), and the availability of work due to COVID 19.

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