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100% And Working Question

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Guest Berta

Question

I am going over the Rating schedule in regards to my husband's entitlement for SMC under a CUE claim I filed and also under Nehmer-

I realised- based on medical evidence in his VA med recs (and subsequent diagnoses of what he had been misdiagnosed with that a proper rating for a period Aug 13-1988 to Oct 14, 1991 would be this:

30 % SC PTSD from 1984 to Oct 14,1991 (it went to 100% that day)

60 % criteria for his August 13 1988 heart attack (misdiagosed)based on the documentation and rating schedule under DC 7005

30% under 9305 ( vascular dementia- due to cerebral atherosclerosis under 8046)evidence needed is MRI proof of TIAs.which I have.

So this looks like a combined rating of 100%-

After Oct 14, 1991 to Oct 14, 1994 the med recs reveal 3 100% disabilities and I am asking for the SMC "M" award- based solely on medical documentation and SSA records to show A & A status etc and lose of use of both hands.

What is unusual here is that Rod managed to work for almost two more years out of this 3 year period when both his heart disease and transcient strokes were never properly diagnosed or treated by VA. (documented)

His sudden memory problems, sudden visual losses, and other work related problems (too many bathroom breaks, couldnt do the VAMC menu right etc) were well documented in EEOC case he filed against the VAMC.

And also the VA gave testimony that he was crazy- he was 30% PTSD at that time and did not take any VA crap so he was "crazy"when he challenged his boss about a VA law.Although he started out in Voc Rehab ding well , in 1988, by fall after numerous mini strokes, that too went down hill.

Question-His med recs reveal a 100% rating from 1988 to 1994.(AFter Oct 1991 due to the posthumous PTSD award of 100% I feel the "M" SMC is certainly reasonable.

BUT- since he somehow managed to work with escalating heart disease and cerebral damage up to Aug 1992 when he had a major stroke, how would VA look at a 100% retro award for the years he did work?

The VA never told me or this veteran he had heart disease.Only an MRI in 1992 (and subsequent autopsy) revealed the extent of his heart disease, the 1988 heart attack,fatal 1994 heart attack and the severe brain trauma. WHen they said in the accrued award I got for 100% for 2 years less the 30% he received -he was not eligible for SMC under any circumstance. They repeated this twice again in subsequent denials for it and this is why I filed a CUE. I had no appeal rights for that statement.

Has anyone ever heard of a vet getting 100% under Sec 1151 (and this would be under Nehmer separately too) yet worked while they got it? I dont know how he managed to work but he did yet had numerous difficulties on the job.

We felt his problems on the VA job was due to PTSD which VA said was only 30% at that time and his Sec 1151 charge was actually due to his belief that his PTSD was misdiagnosed too as to its extent.

He received no medication, was refused access to the PTSD hospital group, had the VA family counselor instead of the real PTSD shrink,(who didnt have a clue about Vietnam) and it took my Congressman to call the hosp one day when they refused him admission to the PTSD ward and he was in horrific shape.

By Aug 1994 the VA had put him into the PTSD 21 day program and realised his PTSD was "catastrophic".

I re-opened his Sec 1151 claim because he ended it by saying that he feared his PTSD was not properly assessed or treated and he felt he would have more strokes or drop dead of a heart attack if the VA did not recognize how ill he was from PTSD. He did drop dead 6 months after filing this claim.

I claimed to VA last year that- along with my other claims, this claim-as part of the Sec 1151, has never been decided and is still an open claim.

Now I forget the question I had-

apparently my claims file is still with VA's "expert" doctor who will either agree with the preponderance of medical evidence or try to make up an entirely new disease that no one in the whole world never had before- so that the VA can deny my claim.

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Question-His med recs reveal a 100% rating from 1988 to 1994.(AFter Oct 1991 due to the posthumous PTSD award of 100% I feel the "M" SMC is certainly reasonable.

BUT- since he somehow managed to work with escalating heart disease and cerebral damage up to Aug 1992 when he had a major stroke, how would VA look at a 100% retro award for the years he did work?

Has anyone ever heard of a vet getting 100% under Sec 1151 (and this would be under Nehmer separately too) yet worked while they got it? I dont know how he managed to work but he did yet had numerous difficulties on the job.

I have no expertise or knowledge of these things but am doing what I can to learn. I noticed this the other day, and though I'm sure you know these Regs pretty good it may help, if it can be applied.

Code of Federal Regulations- 4.15 Total Disability Rating

The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it..........(first two sentances)

The reg goes on to make exception for individuals that are below average impairment and cannot work, but in my opinion states clearly that a persons over achievements should not be considered in Rating. (I firmly believe that C&P examiners nor raters nor anyone in the claims dept. should know of employment or non-employment. they are there to assess medical-mental functioning, not personal drive to succede.) If you are disabled to that extent, and still desire the fullment of an earned income you should be rewarded with the aditional funds, not punished. Also, this is supposed to be COMPENSATION-a return or replacement of something lost (a huge list here), NOT a handout.

Sorry for the added commentary. I do not know of any actuall cases.

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