Appeal 50% Dro Rating Or Apply For Increase In Rating?

[tssnave]

After a long, 3 year process and one really cruddy C&P exam, I have been granted 50% sc disability for mental illness through the DRO process. The check has arrived (and been cashed) and I’m in the process of sending in the other paperwork (marriage license which I sent with my original claim, insurance, trying to figure out how to set up direct deposit – again, this info went in with the original packet but I’ll spare you that rant and try to stay on topic).

However, after reading the rating decision and talking with my DAV rep I see very clearly that I fall in the 70% rating. Even though there were notes from a couple of the 70% factors, most of what was in the C&P report fell out at 50%. My GAF was 49 (which I read somewhere, maybe on this board, that a 49 GAF would correlate to 70% but apparently the VA can use the GAF as they see fit).

I believe I got 50% because I was so depressed during the C&P exam that I couldn’t think straight, didn’t answer the questions fully, and didn’t expound on closed ended questions that I should have (who knew?) so the 50% rating is in part the fault of my sc disability (what a round robin this whole system is).

The other side of that coin is that there were several areas of the rating that weren’t even addressed in the C&P exam. How can they evaluate me on that which they do not ask?!? Since I am uninsured and have only been going to my civilian primary care doc, I don’t have treatment notes and they won’t accept the ones from several years ago when I was seeing a shrink when I had insurance.

So, I didn’t perform well on the C&P exam and the C&P exam didn’t cover all of the topics used to rate mental illness and I wound up at 50% instead of 70% where my symptoms fall out.

My DAV rep has advised me to go to a shrink and talk it all out. Tell him everything that goes on with my sc mental illness and get clinical notes to give to the VA. I have that appointment set up next week. The shrink said we’d talk for 2-3 hours (much longer than the half hour C&P exam), he’d talk to my spouse for symptoms I am not clued into, and he’d write up clinical notes, though he won’t make any disability determination. That along with my most recent clinical notes from my visit to my primary doc should, according to the DAV rep, be enough to get the VA to reopen my claim and hopefully go to 70%.

I have a couple of questions about this route:

1. In my situation, is it better to appeal the 50% and provide additional independent clinical notes to show them I am really at 70% or is it better to take the 50% and try to get an increase to 70%? Please tell me why you believe either choice is best. If there’s not a clear best way to go on this please list the pros and cons of both routes (appeal the 50% vs go for an increase).

2. If I go for an increase can they back date it to the original date of the 50% rating? Does the VA recognize just how hard it is to work your psych claim when you’re a psych patient??!!??

3. If you go for an appeal do you have to go through another C&P exam or will the clinical notes suffice?

4. If you go for an increase do you have to go through another C&P exam or will the clinical notes suffice?

5. If I do have to do another C&P exam will they still consider the clinical notes from the independent shrink?

Thanks in advance for the replies.

ts

Edited March 15, 2007 by tssnave

[Tbird]

i think sixthcents covered it pretty well and i know vike will chime in when he reads the post.

like sixthcents said get into the va system for your pychatrist and a therapist, i go the vet center for therapy and that works really well for me, i go to the va for the pyschatrist. it saves me a ton of money i could never afford all the therapy i go through :) getting into the va system with a pysch doc and therapist will help you keep good documentation about when and what is going on with you. and therapy is good for you like hot soup B)

[Berta]

TSSnave-if your service connected disabilities are rendering you unable to work-

and I see a rep told you to see a private shrink-

it would be good to get the private shrink to state that fact and give a complete medical rationale-

and I suggest you apply for TDIU.(100% rate)

You belive you already fall into the 70% criteria but a vet can apply for TDIU regardless of their SC % -even if they have no SC % -if they have medical evidence that supports TDIU.

Question # 18- check Yes and apply for SSA disability too-

Question : # 25- Remarks- you can refer them here to additional page- tell them how your SC meds -if any-affect you

and tell them anything else that will help show your SCs make you unemployable.

A copy if yur annual SSA wage statement can help and you can attach it- and anything else that shows that SC has rendered you unemployable.

If the DAV questions you for filing this form-

let me know and I will email the rep-

or just print this off for him-even if you are emploed but at or below the poverty level and SC interferes with your ability to work- I would file for TDIU if I were you-

There is no specific criteria within VA case law or regs that requires a vet to have SC at any specific percentage to apply for TDIU award.

The VA makes TDIU awards for 0 SC % as well as 10% and 30% SC-

if the medical evidence supports TDIU-they will award.

However it is 70% that triggers VA to consider TDIU-and send the vet the form-

I dont think a vet should wait for them to decide the 70%- the TDIU award can make all other claims issues moot.

Here is the TDIU form:

[Berta]

TSSnave-if your service connected disabilities are rendering you unable to work-

and I see a rep told you to see a private shrink-

it would be good to get the private shrink to state that fact and give a complete medical rationale-

and I suggest you apply for TDIU.(100% rate)

You belive you already fall into the 70% criteria but a vet can apply for TDIU regardless of their SC % -even if they have no SC % -if they have medical evidence that supports TDIU.

Question # 18- check Yes and apply for SSA disability too-

Question : # 25- Remarks- you can refer them here to additional page- tell them how your SC meds -if any-affect you

and tell them anything else that will help show your SCs make you unemployable.

A copy if yur annual SSA wage statement can help and you can attach it- and anything else that shows that SC has rendered you unemployable.

If the DAV questions you for filing this form-

let me know and I will email the rep-

or just print this off for him-even if you are emploed but at or below the poverty level and SC interferes with your ability to work- I would file for TDIU if I were you-

There is no specific criteria within VA case law or regs that requires a vet to have SC at any specific percentage to apply for TDIU award.

The VA makes TDIU awards for 0 SC % as well as 10% and 30% SC-

if the medical evidence supports TDIU-they will award.

However it is 70% that triggers VA to consider TDIU-and send the vet the form-

I dont think a vet should wait for them to decide the 70%- the TDIU award can make all other claims issues moot.

Here is the TDIU form:

TDIU_form.pdf

[john999]

I applied for IU when I was 30% and then got bumped up to 70% and was granted IU. I was just as IU at 30% as I was at 70% but the VA does this to justify the award.

[Vike17]

TSSnave,

I read your PM to me. I'm sorry it took so long for me to respond, I'm just having major computer problems the past few weeks.

To answer some of your questions, iw ouls pretty much echo what Sixthsense posted; however, one thing must be noted;

"Further and finally if you do file an appeal, the new rater can always decide the old rater gave you too high of a rating... and reduce it. Now this is highly unusual, and I haven't seen it happen, but it can...."

this is incorrect. If a veteran appeals a decision, regardless of which route they choose to have the appeal handled, the VA cannot reduce the rating below what has already been awarded, unless there was a CUE made in the previuos decision.

"OK now since you filed a NOD, and the appeal was substantiated, and a new decison rendered, I THINK (Vike help me out here) that bascially you can simply file another NOD regurading the rating decison... at that point the DRO can either agree with your appeal, or is a Statement of Case... then you go to BVA...I'm shakey on this since a NOD has already been filed... so check me on this, but I've always just filed another NOD in the same circumstances and they've taken the action I stated.... (Vike you can jump in here any time now....)"

Once VA issues a rating decision (it doesn't matter if the decision was issued through the appeals process or not), the veteran can appeal it just like any other rating decision with the appeals time frames in tact. Also the only time your appeal would be "subtantiated," or "perfected" is if you submitted VA Form 9 to your regional office after receiving a Statement of the Case (SOC). I didn't notice anywhere in the posts of you sending in VA Form 9. It just looks like the DRO granted service-connection at 50%.

One other thing to keep in mind is if you send in "new" evidence (evidence which VA was unaware of at the time of their previous rating decision) within the one year appeals period, you can have the VA "reconsider" their previous decision without having to go through the appeal process. If you do this and the claim is granted (in your case an increase to 70%), generally, the effective date wouls also go back to the original date of the claim. Furthermore, a request for "reconsideration" normally goes faster thatn an appeal because the claim goes back to the rating activity instaed of the Appeals Team and is worked according the orginal effective date.

If you decide to flat out appeal the decision, you must file a NOD within one year of the rating decision. You would want to file a NOD if you just plain disagree with the VA's decsion based on the current evidence of record. Havng said that though, you can also submit "new" evidence along with your NOD.

I hope this doesn't sound to mumbled and jumbled, I'm just trying to post this as quickly as possible before my computer crashes on me again. If you have any other questions, I'll try to get to them as soon as I can.

Vike 17

[tssnave]

Thank you, thank you, thank you to everyone for your replies!

Berta – my SS statement shows that, with the exception of making $4,300 in 2000, I haven’t worked since 1997. For most of the years between 1988 – 1997 I usually earned above the poverty thresholds for those years. From 1981 – 1987 I was in the National Guard and in college so what I made fell below the poverty threshold for those years. I wasn’t sure whether or not my SS records would help me or not. Since I haven’t worked in that last 10 years that would seem to support my IU claim. However, because I did work between 1988 – 1997 and generally earned above poverty level, even if it was from a couple of different jobs a year because I kept getting fired due to my sc disability, I am concerned the VA will look at that and say that I used to be able to hold down a job(s) and meet the poverty threshold.

So, given the last ten years I haven’t worked (except 2000 earning $4,300) but I did work the ten years prior to that, do you think my SS statement would help or hurt my IU claim?

Also, you said to check yes to Question 18 and apply for SS disability. I thought I was not eligible for SS because I haven’t worked 5 of the last 10 years. The statement they send me says I am not eligible. Am I still eligible for SS if I haven’t worked for the last 5 out of 10 years?

I appreciate your help.

BTW, have you disabled your private message feature on the hadit website? I was unable to get a pm to you and wasn’t sure if it was something I did or if you preferred not to get pm from vets on the site.

Thanks,

ts