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

[Narose]

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 May 27, 2020 by Narose
Changed examiner to rater in one section

[kanewnut]

12 minutes ago, Narose said:

Roanoke specifically, that place is a shit show. 

That gave me a big belly laugh. I think the last time I was there it was for a C&P that a NP screwed up completely. She said nothing was wrong with me and I was taking morphine for headaches. I went to the BVA without my C-file because DAV said not to request it I would loose my place in line. So I had no idea why the judge was so concerned about headaches until I later got my C-file and read the C&P that was screwed up. 

I have been able to ask the DAV if something is in my record or not. Sometimes they tell me and sometimes they don't. They were worthless at the BVA. The little guy knew nothing about my case. I think he only printed off my SCD's and read from them. I am starting to educated now and will be much better prepared if that is the path I have to take again. 

20 minutes ago, Narose said:

The rep said that he could not see what regional office my claim was handled out of

I have a feeling the QR code at the bottom right has all of that information. I find it funny that all of my IRIS inquiries and VA Secretary letters are routed to Roanoke for them to answer, but nobody knows who adjudicates anymore. 

 

25 minutes ago, Narose said:

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. 

They use any and all activities against me. To read the denials I get the impression that there is nothing wrong with me at all. They continuously use the phrase "evidence of record does not show that you terminated your employment due to your service connected disabilities." I cussed out my supervisor over the phone from my house and never went back into the building at work. I got a friend to pack up and bring me my stuff. I think this is part of my mental issues and that is now my highest rated SCD at 70%.

 

31 minutes ago, Narose said:

voluntary withdrawal from the labor market."

I keep pointing this one out to them. So far it is not doing any good. I get the distinct impression they are trying very hard to deny rather than follow the law as written by congress. I can't find the law at this moment but it talks about after a complete and compassionate review, to which I say horse hockey. I got a call from Roanoke a few weeks ago. She said they just wanted to help veterans. I had to laugh. She didn't stay on the phone long after that. I don't like them to call me. I want an email so it is in black and white. Then they can't deny it.

[Narose]

I have truly never had any good experience with the Roanoke office. When I was pregnant, they denied my claim and falsely stated that I was a no-show... to an appointment that THEY cancelled. They never have any answers to questions and good luck getting the same information from two different reps; I swear they use a magic 8 ball for inquiries. I have little doubt in my mind that Roanoke is one of those ROs that has some covert memo that just says "screw everyone you can using any justification available".

I tried scanning the QR Code on my letter and I got nothing useful out of it, just a bunch of numbers with zero search results or corresponding info. Probably for the best because if I knew it would just send me further down the rabbit hole. ¯\_(ツ)_/¯

[pacmanx1]

On 5/27/2020 at 12:36 PM, Narose said:

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

Having to go through what I am going through is not what I planned on in life, after getting hurt in the military I had to come up with a new plan.  After working as a government employee for several years I had to come up with a new plan.  While being treated at the VA, I met a Rheumatologist that suggested that I quit work at a young age. Since I was young and thought I had time to do anything and everything I continued to work until my body gave up on me. I was in so much pain I had to quit my nice air conditioned, well seated comfortable government job that paid very handsomely. I still love that job but I could not go back to work. I had to make a new plan.  After that I decided to focus on school and getting my degree. That went well for about another two years until my body decided to screw with me even more to the point where I could not even make my classes. I missed a lot of semesters but I finally did graduate.  After talking to my doctor he suggested that I consider quitting work all together. I had to realize that I could probable get a job but I could not keep a job. I had to realize that I had to put on my big boy pants and do whatever I had to do to support my family. If that meant filing for SSA that is what I had to do. By this time I was increasing my VA disability, 10%, 20%, 30%, 50%, 70%, 90% and finally 100% P & T scheduler. I honestly hate the things I am going through and I would not wish them on anyone. (well maybe VA employees from time to time) Let's see how they would deal with what I am going through and then take away their livelihood and see how they would handle that. Pride will keep food off your table and clothes off your back.  In doing my research of SSA and VA benefits I learned there was a way that I could support myself and my family. I could get Insurance for my family and most of all my kids had a way to go to college.

Edited May 28, 2020 by pacmanx1

[Narose]

Hi there everyone, back with an update!

I submitted my supplemental claim and included a letter outlining the obvious errors and issues with the original decision, along with a letter from my VA Psychiatrist and a lay statement from my spouse. 
 

Mailed it on 6/18

VA received it 6/22

Decision made today, 6/25

 

TDIU granted along with P&T!!! Packet will be mailed tomorrow so I don’t have many details yet, but thank you to everyone for your advice and support!  I am somewhat concerned with the effective date; not sure which date they are using for retro pay, but I will find out soon enough. 

[GBArmy]

Narose, that's terrific! We are happy for you.. Good job. Now, It's probably to late and your expectations are sky high now, but you really need to get that decision letter in hand. Read it carefully and let us know if you have any questions.Congrats!

[Narose]

11 minutes ago, GBArmy said:

Narose, that's terrific! We are happy for you.. Good job. Now, It's probably to late and your expectations are sky high now, but you really need to get that decision letter in hand. Read it carefully and let us know if you have any questions.Congrats!

Honestly my expectations are that they went with the bare minimum in terms of effective date. I’ve been dealing with them long enough to know that they will probably use the later date of the claim filing without considering the ITF, so I’m mentally prepared for it. I’m just relieved that the worst of it is done and I can take a moment to breathe without worrying.