Appeal or Supplemental Claim

[Smirak]

So I got my decision letter a week or so ago.  I was denied increase fro 70% PTSD to 100%, due to me not meeting the criteria for 100% according to the CFR.  I was also denied TDIU because my former employers would not send back the 21-4192.  I had an appointment with my local VA office and they were clueless.  They stated that since it was my responsibility to ensure that the 21-4192 were returned, and the employers didn't return, that is why my claim for TDIU was denied.  However, 

So, the question is, what's the better option?  Should I appeal the decision, or should I open a supplemental claim?  I have also read that if the 21-4192 is not filled out by the employer, it cannot be used negatively against the veteran in the decision making process.  

 

How should I proceed?

Thanks,

Kevin

[Smirak]

Thanks everyone for all the information. The decision letter for the TDIU states the following:

 

”Favorable findings identified in this decision:

Your service-connected disabilities meet the scheduler criteria for entitlement to individual unemployability.

You are not working.  You indicated that you have not worked since August 4, 2021.”

My actual denial reason states the following:

”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).”

It then goes on to state “…‘we sent your employers the 21-4192’ it is your responsibility to ensure the VA receives it.”

So to me it appears that the decision was denied because the employers didn’t send back the forms. But, the FAST letter 13-131 states that denial can’t be because the forms weren’t received.

thanks for listening, I’ll keep you posted on which route I’m headed.

kevin

[El Train]

On 1/2/2022 at 5:11 PM, Smirak said:

Thanks for the info bronco (and others).  Would you mind telling me who did your box rehab assessment?

Sounds like they're hoping you go away.  I'd hammer them with a Voc Rehab specialist IME like Bronc mentioned.  Don't go the appeals route.  Could get tied up for years. Have your VSO file a NOD with additional evidence after you get it. You have a year from the denial to file a NOD.  You can look into an outfit like this.

https://www.cliffordvocationalservices.com/

Can you walk in that form to you former employer and have them fill it out in front of you?  Doesn't hurt to try.

[Rivet62]

My situation is similar to Broncovet's, somewhat, but my situation unfolded more slowly perhaps.

Following my SSDI attorney's advice, she suggested trying to work again to establish the records she needed to prove unemployability. It was slow but sure fire. First, she suggested I seek the services of my state's Vocational Rehabilitation office (to show SSA I have tried. SSA wants to see that you've tried everything).  So I asked my state's Vocational Rehabilitation office for a statement of Schedule A federal employment eligibility, and I used that to increase the likelihood of employment at my local VAMC, since I didn't have veterans preference points for employment.

I got employed at the VAMC and simply let nature take its course. My employment ability at the VAMC unraveled quickly in real time, first with a medical transfer, then exhausting PTO, unpaid leave, and FMLA, in addition to frequent doctors appointments.  I ended things by submitting a medical resignation, with the support of my VA primary care doctor and  VA psychiatrist.

Meanwhile VA granted me 80% combined service connect, then about 10 months later my SSDI was granted based on all conditions that were SC'd in my vets claim.

My VA disability attorney filed an NOD (legacy system). I had the BVA hearing in August 2021 and the decision letter has been sent December 23rd. Still waiting to receive it. My attorney is 100% sure I'll get TDIU and 50% sure I'll get P&T.  

Last time I worked was July 2018, but my employment problems from all things SC'd has been ongoing for decades, literally, and my SS work record shows under-employment and gaps.

The point that I'm making here is that the advice my SSA attorney gave me, to build irrefutable documentation of unemployability, seems to have served me well in my pursuit for TDIU. I won't know until I finally get the SOC and/or BVA decision letter.  Prior to following my SSA attorney's advice I had very little documentation to show in the way of employment problems or SC conditions causing employment problems. As it turned out, my VA primary care doctor had to sign her opinion to the VA employment medical transfer, the unpaid leave, and finally the FMLA. In the end I don't think I needed her medical opinion supporting TDIU, because I had gotten her opinions all along in the problems of my employment at the VAMC. We'll see.

 

 

[broncovet]

I will try to get the name of the Voc Rehab specialist where I succeeded at TDIU after a CAVC remand to the Board.  (My attorney recommended him).  I have a better memory for numbers, than I do names.  

    You may be able to find it, here on hadit, with a search, as I posted his name as I thought it would likely help other Veterans.  

     I dont recall his name right now.  It may come to me.  

    His name may have "Clifford" or Patrick or Parker in it.  

Edited January 6, 2022 by broncovet

[pwrslm]

19 minutes ago, broncovet said:

I will try to get the name of the Voc Rehab specialist where I succeeded at TDIU after a CAVC remand to the Board. 

 

It would be nice to setup a sample letter as an example for those in this situation in the future. A specific outline for VocRehab applications would seal the deal in most cases.

[pacmanx1]

28 minutes ago, broncovet said:

I will try to get the name of the Voc Rehab specialist where I succeeded at TDIU after a CAVC remand to the Board.  (My attorney recommended him).  I have a better memory for numbers, than I do names.  

    You may be able to find it, here on hadit, with a search, as I posted his name as I thought it would likely help other Veterans.  

     I dont recall his name right now.  It may come to me.  

    His name may have "Clifford" or Patrick or Parker in it.

This is good information.

Bronco, can you separate these posts from the OP (Original Post). Smirak and Rivet62 should be two separate threads.