Fisrt time TDIU attempt on already approved disabilities.

[waynewal]

Am 72, retired, Vietnam Vet, 4 years active 23 years active reserve and NG, Military pension. Had  HPV-16 virus in tongue and applied for AO connection but was denied. Getting SC 90% disability for:  Tinnitus 10%, Agent Orange diabetes II 20%, left and right hand nephropathy. 20% each. Lumbarsacrol strain arthritis of spine, inverterbrae disc syndrome and lower lumbar spondylosis 40%, SC for radiculopathy was 10% for both feet then denied as being pinched nerve from back that was not considered SC. In the military, fell off a helicopter (AH-1) while postflighting. Fell on left side bounced on wing, then metal weapons pod, and then concrete. Broke left wrist, Worked my way back to active flight status and left unit after getting static about passing an alternative PT test. Went to Reserve unit and just toughed it out till retirement. Went to chiropractors from 1992 till present  to stay flying with Reserves and airline till retirement. Still seeing chiropractors.  Even though have documented hip problems, VA says no record of diagnosis on active duty or reserves status so denying service connection for post service pain and disability.

The Veteran Service Officer working with me from local County is directing me to go in for a TDIU supplemental claim, as with my 40% and other disabilities I would qualify for TDIU. Originally told me that it was a formality since I had all the 'requirements' - but VA now bringing me back in for a full exam. Is this normal? Any advice on what to bring up or not? While in constant pain from back, neck and shoulder - I feel stupid for doing this with already a 90% rating with all the guys and gals with WORSE conditions than I have. Plus am retired already with a pension. Anyway the items they will check are below. I will try to look up the number here on the web site. Thanks for any input, guidance of what to bring up or not during exam.

• DBQ MUSC BACK (THORACOLUMBAR SPINE CONDITIONS
• DBQ NECK (CERVICAL SPINE) CONDITION
• DBQ NEURO PERIPHERAL NERVES CONDITIONS EXCEPT DIABETIC NEUROPATHY
• DBQ MUSC SHOULDER AND ARM CONDITIONS
• CPT 90354, CPT 99090

[broncovet]

You posted:

Quote

VA says no record of diagnosis on active duty

Its a lie.   You do not need a "diagnosis" on active duty.   Instead, what you do need are the Caluza elements of:  

1 CURRENT diagnosis.  You do not have to have a "diagnosis in service".  Allow me a single example refuting the "diagnosis required in service" myth..

Many Veterans have contact Hepatitus C during the military.  "There  was no test" for Hep C, back then, it was "NonA Non B" hep, test and you didnt need that either.  Is it your fault that medical science improved and they can NOW better test and diagnose issues that were not diagnosed in service?

2.  In service "EVENT" or aggravation.  You may need a record of "the event", which could be a fall from an airplane!  I dont know if this is documented or not, did you seek treatment for it and tell the doc you fell out of an airplane?  That should suffice as "event in service".   Caluza vs Brown lays it out:  You do not need an "in SERVICE diagnosis".  

3.  Nexus, or docs opinion that your current diagnosis is at least as likely as not due to your fall from an airplane.  

 

     I agree, TDIU is a good way to go "if" you are not working due to SC conditions.  

     Get the Caluza elements and get SC.  Did you appeal the old denials?  Are they over a year old?  If less than a year, file a nod.  You can cite the Caluza elements, claiming the fall as an "event".  The BVA will check the Caluza elements.  I have read hundreds of BVA decisions.  Many/most  cite either "the Caluza vs Brown" elements have been (or not been met).   

Edited December 21, 2020 by broncovet

[broncovet]

Your VSO should know that a "in service diagnosis" is not required.  If he does not know what the Caluza elements are, he should not be flying that plane, just like I should not be flying the plane if I dont know what "flaps" are.  

Does your decision state that you were denied because there was no "in service diagnosis".  If that is what it says, then this is likely Clear, Unmistakable Error:  Misapplication of caluza elements.  

Edited December 21, 2020 by broncovet

[waynewal]

wre: SC for fall. The incident was an LOD an is a fully documented incident and approved by COLO NG office in 1991. I think I will have to get in and do an appeal as they are saying there is no SC. "Service record dated 10 July 1993 (my note: accident was July 4, 1991) shows complaint of left hip . (Note - shows denial). Problem is getting a doctor to say 'more likely than not.

Denial/award letter was dated 8/11/20 - I think the VSO is falling down on me about this. THIS is something he should have caught. Part of the problem  is that even though I got  treatment thru my insurance company for chiropractor visits.  Two of the 3 chiropractors I have been seeing over the years say that it is difficult to determine if the current condition is a result of the fall. Short version: was on an AH-1 up near the head using 'kickout steps' do do a post flight. Started to come down and hand slipped on grease on head. Fell horizontally and hi the wing, bounced or rolled onto the TOW missile rack, then the concrete. Broke wrist, hit head. Have a small disability for left wrist. Since it was broken and on record, and had a VA exam in the last 2 years. Problem has been no one wanted to review the Method of Injury.

I did not want to be a whiner then (and now) and although I had back and some neck problems I felt stupid applying for anything as I could get along okay at the time. Stuff bothered me more as time went by and finally after retiring from airline and 5 years went by hurt more and more.  VA was sent xrays of back and neck from my back doctor (who retired and cannot contact him) and 'invited me' to apply for disability for back and neck. Did so and went in for an exam. Thanks for referring me back to the award/denial letter will have to either get the VSO to appeal or find a VA oriented lawyer from HadIt or Veterans Law Blog and try to get hooked up with a local doctor. 

Did a quick review of the recent  full exam I did with the chiropractor a couple weeks ago for the TDIU application.. He states  on his findings page that " In my professional opinion, based on patients history and examination findings, that Mr. W***** injures could be a result of his accident which reportedly occurred while serving in the military, while on active duty." That is as close as I have gotten anyone to write that. Thanks for the help - I will be searching the site for anything on TDIU exam, ie, what to talk about - what NOT to say.... Thanks very much for taking time to reply. Have to get back on this - but hard to motivate with the pain and general 'ugh' feeling.

[broncovet]

This is a deal killer you must fix:

Quote

In my professional opinion, based on patients history and examination findings, that Mr. W***** injures could be a result of his accident which reportedly occurred while serving in the military, while on active duty."

"Could" is the deal killer.  VA considers this "speculative".  I "could" win the lottery and not need any VA benefits.  The nexus  needs to be in this format:

Quote

The Veterans fall in military service is "at least as likely as not" the cause of his (current diagnosis).

You are gonna need a nexus.  Your VSO should have helped you with a nexus.  Your nexus can not use the words "may" "maybe" "could" "might be", etc.  You need the docs opinion that it "as least as likely as not" due to an event in service.  

Look in your records, you may already have an acceptable nexus.  Or, one of your doctors may provide it "in a language that VA understands", above.  

Otherwise, you will need a doc opinion to (IMO) to get SC.  

Now, its similar with TDIU.  You need a doc's opinion that your "(SC conditionS) are at least as likely as not the reason you are unable to maintain SGE (Substantial Gainful employment).  

I suggest you go for both..TDIU, and appeal your denials.  Either or both of these may win for you.  

[broncovet]

You said your fall was "documented" good.  Thats 1/3 of the battle.  The next 2 are current diagnosis, and nexus.  Then, you are good to go..

[kanewnut]

9 hours ago, waynewal said:

I did not want to be a whiner then (and now)

That will be fine with the VA. It's my experience the VA is not going to go hunting for you to award you benefits. 

I applied for TDIU in 2003 and was denied. I have finally been awarded TDIU permanent and total this year. But of course the VA is screwing me on the effective date. So now I am spending some money to get a vocational assessment to show the idiots that all of my SC disabilities prevent all employment from the last day that I could work.

Have you looked at M21-1 TDIU. There is a lot to read in there that will probably be helpful. It discusses retirement and voluntary withdrawal from the work force. They used the fact that I quit in every denial and kept using it even after I supplied them with the M21-1 to show it didn't matter. 

They are going to be looking to whether or not you can do any substantially gainful employment. If you have back, neck and shoulder problems like I do they will say you may be limited in manual labor but not sedentary. This they used on me for years. I was a computer programmer, which is definitely sedentary labor, until I couldn't do it anymore.

I don't think I did a very good job in the C&P exams telling the doctors what prevented me from working. I did what ever they asked and answered all their questions. I can see now looking back over the history of this fiasco that I apparently didn't get it across to the C&P examiners how all my issues prevented all employment. Of course when you have a mental C&P exam and a physical C&P exam it is up to the rater to put the puzzle together. My experience some just don't do their  job.  

11 hours ago, waynewal said:

Originally told me that it was a formality since I had all the 'requirements' - but VA now bringing me back in for a full exam. Is this normal?

Yes, this is normal. Application for TDIU is also considered a request for increase on all disabilities. 

 

11 hours ago, waynewal said:

I feel stupid for doing this with already a 90% rating with all the guys and gals with WORSE conditions than I

I don't know why but this never crosses my mind. What does bother me is seeing where someone who was not even in the military got benefits and is later caught. How in the hell does that happen?

 

11 hours ago, waynewal said:

While in constant pain from back, neck and shoulder

If this prevents you from working make sure you can articulate it to the C&P examiner.