TDIU increase and other issues

[Rivet62]

So, I'm updating my back issues with physical therapy findings. VA sees records dated 4 years ago, but things have changed for the worse.

I'm filing for TDIU but I would also like to file for other increases too just in case TDIU is denied or it takes forever.

Is that possible?

Edited January 28, 2022 by Rivet62

[Rivet62]

2 hours ago, Buck52 said:

As for as filing for another condition seperate from your original condition that made you Unemployable, 

you should file for that  in your increase   , because if you have TDIU and another seperate distnk condition  RATING AT 60% OR MOREthat makes you eligable for SMC S.

I'll look at the regs and diagnostic codes, I'm not sure if I can reach for 60% together with the TDIU request but that would be THE PLAN. I am awaiting the scheduling of a spine specialist to help bring the whole thing current as of 2022 and hopefully he can identify if more joints are involved. I'm getting there though. I can FEEL I'm getting closer to needing SMCs.

2 hours ago, Buck52 said:

substantially confined to his or her dwelling or immediate premises as a result of a service-connected disability.

I don't think I'm there yet, and I'm saying this as a matter of lifestyle.

2 hours ago, Buck52 said:

SO ANOTHER SEPERATE  CONDITION RATED 60% OR MORE WOULD RENDER YOU A 100% RATING WITH SMC S   AND THATS ANOTHER 380.00 OR SO ADDED INTO YOUR 100% RATING.

I'm pretty sure the back issues will get me to this rating, in time.

[Rivet62]

2 hours ago, ArNG11 said:

My IU is based on my bent brain, however, my other disabilities get me passed 90%. That in conjunction with medically retiring through OPM back in 2015 and getting on SSDI put over the hump for being unemployable due to some of my service connected disabilities being the reason for my having to retire medically.

Darn, you do sound a lot like me. Yes. My 10% issues, rated according to my records of 2018, can go to 20% each according to the ratings regs. And yes, I went on SSDI for the same SC'd issues with an effective date of within two weeks of medical resignation from the VAMC. Weird how it all worked out around the same timeframe.

2 hours ago, ArNG11 said:

Your going to need increases in those 10% in order to get where you wanna get.

Yes. I'm looking at 2 current ratings of 10% (based on 2018 records) that need to increase to the current medical status as of 2022. There are two other ratings at 10% based more on range of motion, and they were rated based on records of 2018. As of 2022, my range of motion shows that those could each increase to 20% if the regs are followed.

2 hours ago, ArNG11 said:

 Also you can force the VA hand with having other agencies declare you unemployable. You are on SSDI right? Though they don't have to follow other agencies decisions,  it is compelling evidence of you're not being gainfully employed.

Yes, I'm on SSDI for the same SC'd conditions and the SSA decision letter states that my skills and experience are not transferable to other occupations based on the numbers of like-kind jobs in the national economy.

2 hours ago, ArNG11 said:

I noticed that your nerve ratings for each side have a 4 year gap, was this due to not having symptoms of both consecutively or did it progress?  Did medical records not show notable symptoms of both or did it progress?  

There is a 4 year gap, only because one of my doctors finally entered the right side radiculopathy, but the symptoms were there all along as I described them in MyHealth eVet messaging (which ended up in my medical record. So the RO just gave the effective date of the first doctor that addressed that, without digging deeper into the evidence of symptoms all along.

Edited January 29, 2022 by Rivet62

[Rivet62]

7 hours ago, Foxhound6 said:

I know my attorney filed for increases but asked that TDIU be considered WITH those increases. For example, I had increases filed and had exams for them. However, in addition to that, the examiner had to fill out another form regarding employment with their increase exam. I would go this route.

Well my attorney didn't believe in standard procedures such as submitting the standard form for TDIU, VA Form 21-8940, preferring to windbag it for years arguing for "an inferred claim of TDIU" so I lost the opportunity to file TDIU along with increases noted in the NOD. It might have worked out, jumping to the Board hearing but that hearing was dismissed based on a technicality of "docket error" (score 10 for my bumbling attorney) and so I'm back at submitting the proper form this time without him but with a DAV VSO instead. The opportune time, for me, to have filed the TDIU form would have been when employment ended, and the second opportunity might have been to file with the NOD. Both were ignored by my attorney. So now I'm at the SOC stage, filing a TDIU, and I'll request the schedular increases as my current medical records grow (hopefully within one year of the SOC.

I don't think I can or want to submit for newer increases with the TDIU (following the SOC) because that would delay the TDIU request perhaps by a year, because I'm still trying to bring my medical records current as of 2022. So, I wish to file for increases separately as I can. Therefore, the TDIU will be based on my current rating. And I want to submit for increases as my records grow to get me to schedular 90% or greater.

Edited January 29, 2022 by Rivet62

[ArNG11]

I understand that part.  I was partly successful because of when I retired, when I applied for medical retirement, all of the agencies coming to the same conclusion mostly because they would have been hard pressed to disagree with medical evidence to the contrary.  Mind you they don't have to follow suit, however, I didn't really give them a choice.  I was fortunate because of the timing and having my records in order. 

Filing for IU, I mean the VA has to raise those issues legally when they where informed that you retired medically. Don't hold me to this conclusion, but it gets into the realm that the VA knew that your service connected disabilities were part of the reason of your difficulties in sustaining gainful employment at which point the issue of IU should come up.

If I am wrong in this pattern of thinking I ask that the forum correct me if I am.  My case is complicated and every thing that applied in my case may not apply to your case per the circumstances, details, and time frames.

I would discuss the issues with the attorney as he would be the expert in the interpretation of the law, however, I have learned in my experiences not to rely solely on an attorney.  No one will care more about your claim than you will.  It is your life, your struggles and your disabilities, they just have a 20% stake in your retro if you win.  This is just my opinion so please understand that.  Discuss when there is something that is contrary to the regulations and laws that apply to your case with the medical evidence that was used for your claims decisions.

[Berta]

Great responses from  ArNG 11 and everyone else.

 

This is something as far as EEDs go re: TDIU and an additional one year EED to the date of the claim.

 

https://cafc.uscourts.gov/sites/default/files/opinions-orders/09-7104.pdf

 

Gaston V Shinseki clarifies this issue in th above opinion.

 

My husband applied for TDIU within one year of receiving SSDI solely for his 30% SC PTSD.1992.

 

After he died the claim was still pending and the VA awarded me, his surviving spouse, as accrued , an EED of the date SSDI had declared him unemployable due to his PTSD.  EED November 1991.

 

If he had not died perhaps the VA would have considered an extraschedular TDIU ---(maybe-he was only at 30% PTSD , but had significant medical records to support the TDIU) .But they cant award TDIU to a dead person, so they awarded 100% P % T SC due to SC  PTSD back to Nov. 1991.

 

100% SC  is made P & T by death.

 

ArNG11- any potential burn pit issues?

Tbird opened a burn pit forum and there has been discussion here recently on "particulate matter" and a better definition of Soutwest Asia Persian Gulf War claims.I posted a map of all that too.

[ArNG11]

1 minute ago, Berta said:

Great responses from  ArNG 11 and everyone else.

 

This is something as far as EEDs go re: TDIU and an additional one year EED to the date of the claim.

 

https://cafc.uscourts.gov/sites/default/files/opinions-orders/09-7104.pdf

 

Gaston V Shinseki clarifies this issue in th above opinion.

 

My husband applied for TDIU within one year of receiving SSDI solely for his 30% SC PTSD.1992.

 

After he died the claim was still pending and the VA awarded me, his surviving spouse, as accrued , an EED of the date SSDI had declared him unemployable due to his PTSD.  EED November 1991.

 

If he had not died perhaps the VA would have considered an extraschedular TDIU ---(maybe-he was only at 30% PTSD , but had significant medical records to support the TDIU) .But they cant award TDIU to a dead person, so they awarded 100% P % T SC due to SC  PTSD back to Nov. 1991.

 

100% SC  is made P & T by death.

 

ArNG11- any potential burn pit issues?

Tbird opened a burn pit forum and there has been discussion here recently on "particulate matter" and a better definition of Soutwest Asia Persian Gulf War claims.I posted a map of all that too.

Yes, however, my health issues have not been directly tied to this fact. We used burns pits in Camp Bucca.  I know because we used jet fuels to always keep them burning.  Granted I am just speaking from the details I had when it was my turn to do the detail.  If I had to make an educated opinion I would say the Hypothyroid, GERD with IBS, Sleep Apnea, rhinitis and sinusitis, but am having a dandy of time trying to force the VA to come to this decision and acknowledge directly.   I hope that made sense.  It sort of made sense in my head but you know how that goes.  Emotions and pain get in the way of reasonable thinking at times for me.  Well to be frank, it is most of the time but I don't want to beat a semi -dead horse.