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Is Total And Permanent Needed For Individual Unemployability?


tssnave

Question

Is it necessary to have a “total and permanent” assessment verified to get Individual Unemployment?

The reason I ask is that I have a form from my POA for my doctor to complete. It has the rating schedule for mental disorders at 70% (where my symptoms fall out) and 100% (where, thankfully, they don’t). However, because of my symptoms, I am not able to hold down a job so we are going to go for 100% IU. I haven’t worked for the last several years other than a brief job that I got fired from due to my sc mental disability causing attendance and concentration problems.

In addition to the 70% and 100% rating criteria, this form also asks if the doctor believes that “In your opinion, is the veteran unemployable due to his service connected psychiatric condition (to include sedentary employment) Yes/No.”

OK, no problem with that one. I believe both my doc and psychologist will say yes to that one due to my problems and work history I am unemployable.

There is a second question that asks, “In your opinion, is the veteran’s service connected psychiatric condition permanent and total in nature? Yes/No”

I believe this last question will present a problem. Even though I have been treated for my mental disorder for over 25 years and have had severe reactions to psychotropic drugs, since there are new drugs on the market that I have not tried (and am afraid to try given the severe reactions I’ve had to other drugs) I do not believe either one of them will say yes, it is permanent and total.

No psychologist wants to say he can’t fix you with counseling and a referral to a psychiatrist for drugs. My primary care doctor refuses to prescribe any psych meds because of my past history with bad reactions and wants me to go to a psychiatrist as well for a med referral. At the present, I have not gone to a psychiatrist nor do I intend to (look, I’ve almost killed myself on psych drugs and at least when I’m not on drugs I don’t kill myself – call me crazy, I do have mental disorder – but I just don’t see the percentage in trying any more drugs).

So, while I believe they will check the rating schedule for 70% which is where my symptoms fall out and they will check yes for unemployable, I do not think they will check yes for permanent and total.

If they say that my psychiatric condition is not permanent and total in nature will it prevent me from being rated 100% for Individual Unemployability?

Thanks,

tssnave

Edited by tssnave (see edit history)
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  • HadIt.com Elder

tsnave,

If it is a requirement for IU, then the doctors have no problem saying YES. I know of many veterans who are 70% + IU for psych conditions. Psychologists are not as optimistic about the outcome of treatment as you might think they are. Especially, as in a case where the condition as existed for 25 years.

Stay in treatment, get some rest and do not worry about this until you cross this bridge. Wait until they say "NO" before you start fighting them in your own mind. You can always fight them later. It does not seem to me to be as improbable that they say "NO" as you might think.

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  • HadIt.com Elder

You can still be rated IU even if you are not rated P&T. If you are rated as IU and are denied the P&T you can appeal that denial. The VA will probably look over your treatment records and decide if you are then considered P&T.

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I thought I posted a response to this but my DSL modem is acting up so I'll try again.

Permanent and Total is NOT required for TDIU...

How it works is the VA can grant TDIU with a follow-up date in the future to see if the disabling condition has improved. They actually do this quite a bit. Then if it has they can remove the TDIU, or if not either grant T&P or set another date.

In fact the VA can do this with ANY rated injury. They can set a follow-up date for the future if they think the condition might improve, and at that time can either decrease the rating, or simply accept it and follow the same path of resetting the follow-up date, or granting permanent rating....

I mostly see this with PTSD actually, and some low-back claims. The problem is though that the NOT granting of T&P means that ChampVA, Chapter 35 and a whole slew of ancilliary benefits are not allowed. So, whenever possible fight for T&P.

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Guest RickB54

The short answer is NO. P/T is not a requirement for TDIU. However, you will need T/P for dependant Education, and Champva medical care for dependants.

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T/P is a status assigned to a rating by the VA after they have determined that the disability is static and no future possibility exists for improvement in the disability. It is not a requirement for any VA rating.

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What everyone here has said is correct, but I wanted to add that VA's failure to establish DEA when granting IU benefits is a very frequent error. If the evaluation of any of your service-connected conditions is going to be reviewed in the future, there should be some discussion regarding this fact towards the end of your rating decision. On my last rating decision, it was provided in the last paragraph. If you have not received this notice, the odds are that VA forgot to consider the issue of permanency.

Your representative should have a copy of your rating decision and could also look at the code sheet of the decision which established IU and tell you whether or not a future examination has been established. If no examination is listed on the code sheet then the VA should have granted DEA.

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Thanks, guys, for the clarification and information on T&P for IU.

Hoppy, thanks for the words of wisdom and kindness.

I appreciate your prompt replies.

Thanks,

ts

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My biggest apology. I have not been here a lot due to other obligations in the MCL, DAV, VMW, M4L, helping get the support for two bills to be passed in NY, vets, and establishing a localized Visiting Veterans Committee...Ugh...and my disabilities have been rough....Like I said my apology.

Here is what you will need for I/U:

-Evidence that your SC Disability/Disabilites are sufficient, without regard to other factors, to prevent you from performing the mental and/or physical tasks required to get or keep substantially gainful employment

AND

-Generally, you meet certain disability % requirements as listed in 38 CFR 4.16 (I.E. one disability ratable at 60% or more OR more than 1 disability with one disability rated at 40% or more and a combined rating of 70% or more)

IF You dont meet these above.....

-In order to support your claim for an extra schedular eval based on exceptional circumstances, the evidence must show that your SC disability or Disabilities present such an exceptional or unusual disability pciture, due to such factors as marked interference with employment or frequent periods of hospitization, that application of the reg schedular standards is impratical. The evidence must still show that you are incapable of substantially gainful employment solely becuase of your SC disabilities.

VA Determines Disability Ratings on:

-Nature of symptoms

-Severity *(here is where P/T comes into play)

-Impact of the condition and symptoms on employment.

-Disabilities can always get worse or in a few occasions better.(I've never seen the later). If evidence shows that the disability will never get better or is so bad that your disabilities meet 100% in reference to 38 CFR Part 4.

-The VA holds the right to change your disability rating if your condition changes.

-In addition, they can assign a disability level other than the levels found in the schedule for a specific condition if your impairment is not adequately covered by the schedule.

-Under no circumstances do you need P/T to achieve 100 % I/U.

-100% is 100 %. I have not been told differently, but I'm sure you don't need P/T to obtain benefits for your Dependents (ChampVA, Educational Benefits)

- If you have something lets say like a New PTSD claim and they have a Re-evaluation Date in 2 years scheduled, they can terminate your future exams for the condition if they evaluate you for higher increase or grant 100%. If you look at your I/U request it indicates it is an application for increase in benefits. The VA may schedule an appointment and then increase your already granted disability ratings, if they disagree with the rating previously given.

Sorry for the long delay, again. I hope this helps and isn't too off topic.

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Good points Spike and theotherguy... I learned something, and thats what this is all about. I hadn't considered the rating decision and what it mentioned. I will in the future.

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  • HadIt.com Elder

TS,

I got your message asking about your unemployability situation. This is my understanding of your progress. let me know if I got some thing wrong.

I do have some experience with this. I was given a IU status many years ago and can remember the process to some extent.

In my case I had not worked for 10 years due to my disability before I even applied. The record clearly showed this huge gap in employment. I also had a GAF of 40. I do not remember how it came about, somebody scheduled an appointment for me to see a specialist to determine if in fact I was unemployable. This appointment could have been scheduled because of the GAF or the 10 period of not working. The specialist determined that I could not work.

In your case you have a GAF of 40 and a service connected rating for this GAF of 50%. You also stated that you can not work because of your service connected disabilities. I take it you have some service connected medical conditions that are keeping you from working.

Your GAF of 49 might not be low enough for them to give you a 70% which is usually necessary for the IU evaluation. You claim that your service connected disabilituies keep you from working. However, consider that you are technically trying to get them to give you a higher rating than the schedule allows based on your complaint that you cannot work. Although there is a legal road open to get a rating that is higher than the schedule allows for, it appears the VA has no intention of giving the higher rating just becuase you claim you cannot work. The VA is resistant to extra schedular ratings.

There has to be some point in time where they will have to consider a long period of unemployment as being factored into the GAF. In my case it could have been the 10 years that got my GAF so low. What I am saying is to keep getting re-assesments of your GAF until it is low enough to get the 70%.

I can not be of any assistance in developing an argument to get them to give you a rating that is higher than the schedule allows. I do not know how to pull this off. I just cannot imaging that if you continue to stay out of the labor market that this will not effect the GAF at some point in time to be low enought to get to the 70% level.

One other suggestion that I have made before to other veterans is that when you submit evidence of unemployment that you take with you to your doctors appointments and submit to the RO a copy of your Social Security earnings statement. They do not have to believe you are not working just because you tell them you are not working. Take them documentation. Such as, the SS earnings statements or any letter from employers who have terminated your employment. Fortunately, in my case I was loaded for bear. I had letters from my employer (City Govt.) letters from attorneys, my SS earnings statement showing no income for 10 years and I had been on Social Security disability for 7 years when I filed my claim with the VA. It was hard for them to give me a GAF higher than 40.

This is my take. Hope it is of assistance.

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Hoppy,

You wrote, "Your GAF of 49 might not be low enough for them to give you a 70%" - please tell me that the VA cannot use your GAF score alone as the sole determination for your rating. Don't they have to consider the actual words that the examiner writes about your disability?!?

My IMO doc gave me a GAF of 35 so if this is the issue with my rating hopefully the IMO doc's GAF should help.

I have a letter from the CPA who does our taxes stating that I haven't worked since 1998 and then I only earned $4,000. Will send that in as well.

Thanks for the post.

TS

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  • HadIt.com Elder

you need to ask for a reconsideration of the award and the percentage granted in lieu of the fact you show you have only earned 4000 in the past 10 years, the IMO shows a GAF of 35 versus the CA C&P quickie of 49 GAFs are not supposed to be the sole basis for % the other factors should be taken into account, treatment record, family and social skill level etc, on any given day you can fluctuate on GAF from 35 to 70 depending on if you took your meds, are you having a good day or a bad day did you get dressed for Sunday church when you went for the C&P when you don't normally dress that way, with the stress of the VA for PTSD awards right now, it's a struggle I think it's harder now to get a correct rating than it was last year, because of the news focus and the cost have you filed for SSD based on PTSD

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  • HadIt.com Elder

TS

If you can get SSDI you can get TDIU. I think you should have gotten 70%. I got it with a GAF of 50, but I had plenty of other evidence of being unemployable including SSDI and disability retirement from the federal government. I had a Voc Rehab letter saying I was not fit for rehab. All these things add up.

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I'd like to add one thing to this thread. Someone said something about sending in a letter from the CPA to the VA. Listen, To file for IU there is a form in which you have to put the dates and the addresses of your previous employers. You don't need to and please excuse me if this sounds rude, overboard i.e. sending in letters from your CPA, next door neighbor etc......What that will do is make your C File become overloaded with a whole bunch of stuff that will confuse the PreDetermination Team, the VSR's the Rating Board and Authorizers more than it will do good for your case. The simple saying of K.I.S.S. Keep it Simple Stupid saying works great with the VA. They already make a ton of errors already.

Another thing, it is natural human reaction to look at a pile of 1 cm folders and look at a 12 inch thick file, and pick the 1 cm stacked folders, if given the opportunity. They are evaluated at how many files they turn out. Help them help you get your file done as quickly as possible.

Simply fill out the form, get your previous employers to respond quickly, and get a IMO to support your claim for I/U, and you will be on your way. From start to finish for my I/U.....I sent it up March 4 it was granted, returned and authorized with payment in hand by the 9th of April.

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  • HadIt.com Elder

Spike,

You tell the VA where to get your medical records also. Then they deny your claim and say they could not get the records. They denied one of mine saying that the VAMC I told them had my records did not respond to the RO's request for medical records. My SO, who was a rating specialist for the VA for 20 years before becoming an SO, said the best way to have the RO make a decision on a claim is to submit it yourself.

Although you need to turn in the document Spike pointed out, I would not rely on the VA contacting employers. If you have or can get a letter from an employer obtain it your self and submit it. I am not sure though that the VA wants to hear from a CPA. They also do not need to hear from your neighbors. However, keeping it simple does not work with the VA. The Social Security income report will do much verify and clarify for the RO any statement you make to a doctor about being unemployed.

If the RO people were more reliable at obtaining info they would not have to deal with documents submitted by the veteran. In my case, not only did the RO get the records from the VAMC, they lost them and then said the VAMC did not respond. When I got the decision and read that the VAMC did not respond, I went to the VAMC and went nuts on the records people. The VAMC produced a copy of the documented signed and dated by the RO employeee who picked up the records. The VAMC told me this was not the first time a veteran came in their office with a decision saying that the VAMC did not respond. That is why they require the RO to sign for the documents.

TS,

The VA does not have to give weight to every word or assesment a doctor puts in a report. The logic as to how the determination was made is also important. A previous post points out that when there is a question as to the reliability of the determination by the doctor then the RO can weigh the reliability of the report. If the report is well written and supported then the RO can only rebut it with medical evidence.

Veterans who try to win psych claims based on a single C&P exam have a difficult time. The best way to win a psych claim is to be in treatment and submit ongoing treatment records. Like John said he had a GAF of 50 plus some other good evidence. Also, the other poster said. GAF's can change from day to day. So can any other determination based on your explanation of your condition to an examiner on a single exam. If the C&P examiner bases the GAF on the one exam, it is not as strong as a GAF given by a C&P examiner who bases the GAF on a stack of treatment reports that have an ongoing history of a GAF.

When I went to my C&P I had been in treatment at a VA hospital for two years and all the C&P examiner did was site a significant history of treatment reports showing a GAF of 40.

The best way to win is with strong and ongoing medical/psych treatment and evidence that such treatment produces. A C&P can work but I would not rely on a single exam for anything with the VA.

One other problem that occurs and you are noticing is that the denials are written in such a way as to leave you confused as to what it was that caused them to make their decision. Their logic is supposed to be clear. However this is not always the case and can be cited as reason for a new decision. I wrote my appeal saying the decision was so vague as not to meet VA standards. This is a phrase I got from reading BVA remands. I am not sure where the exact instruction is in the M-21 that expalns the adjudicators obligation to write a decision with clear logic.

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  • HadIt.com Elder

TS,

By the way the reason I had two years worth of treatment notes available to the C&P examiner is because of my SO. I told my So I wanted to tack a secondary psych claim to my service connected angioedema. My SO had been in the business over 20 years. He filed the claim before I left the office.

He told me specifically to enter therapy at a VA hospital and plead my case to VA shrinks. He told me that it would be quicker and less complicated than using private doctors.

There is more than one way to work this system. However, my SO's plan went through smooth as silk. I was never denied the secondary conditions and even though the VA sought a C&P to verify what was a matter of record the C&P examiner could not rebut the treating doctors based on the amount of work and the quality of the reports written by the VA treating doctors.

My SO thought that just waiting for a C&P was not a good idea. I would recommended this approach based on my success. However, keep in mind that each case is different and the doctors respond to their patients differently. They used very disguised techniques and have specific questions designed to determine if you are being deceptive. The MA actually made a report to the PHD that he detected deception. The PHD accidently or maybe on purpose gave me the report when returnng other documents back to me. Sometimes they do things to see how you will react. I found this report and scheduled an extra appt. with the PHD to straighten out the MA. That appointment went well and the PHD admitted that the original test used by the MA was not one of those designed to determine deception. The PHD wrote very favorable reports on my behalf.

I was seen on numerous occassions by a Psychiatrist, a PHD in clinical and had many tests given by an intern with a MA. There were some minor complications based on mis information documented by the MA. However, it was all straightened out by the PHD.

I think that the RO takes into acccount the psych tests and or lack of psych tests and treatment when giving weight to a diagnosis. They are usually vague as to why they do not give weight a specific opinion. However, strong diagnoses are based on numerous appointments and the standard psych tests used by the shrinks.

I rec'd retro all the back to the original filing date.

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Spike- you said a mouthful --K.I.S.S.!

Keep it short and simple- or whatever way you put it---

and you are right- the RO is a production line- quantity not quality counts-this was clearly revealed in an Inspector General's report re: VAROs that I posted here last year.

They simply are not reading much beyond a page or two-

I have seen claims that involved long long renditions, pleas for sympathy, unsubstantiated statements that had nothing to do with the claim at all----

I get a lot of emails from some vet orgs regarding claims they want help with-

the worse thing I get is a LONG rendition by the claimant----

I dont even want to read long claims stuff-

I do considerable reading for school-and certainly read BVA decision and CAVC stuff every week-a long claim rendition bores me-so it must bore the RO too-

a claim is based on usually only two factors-

what is the current disability?

how can that be associated to the service period with an established nexus?

or as secondary to an already established SC disability?

or (I get a lot of widow claims)

how is the veteran's cause of death related medically to their SC or their service?

I-9s another thing- I posted a template here as to how to fill them out-

On Page one (that little area on the bottom got smaller since the 1990s)-when they ask why their decision was wrong-

tell them exactly why on page one-

expand on more pages if you need to but this is the main page they look at.

I-9s used to turn a decision around-

these days maybe they will read yours at the RO and maybe only the BVA will-

regardless- tell it all like it is- without long renditions.

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  • HadIt.com Elder

Berta,

Yes, your explanation of kiss is well put. However, I would not take it so far as to tell the VA where the evidence is and rely on them to get it. My SO always submitted evidence a veteran had even if it would be available to the VA if they requested it. This gave the RO a better idea of what to look for. As it turns out the records the RO requested and the VAMC sent to the RO covered a period of many years and was a foot high.

I scanned the section of my decision where the RO said the VAMC did not reply and I scanned the document the VAMC gave me showing the name of the person at the RO who took possesion of the records.

I put these scans on my website five years ago where they remain to this day. For anybody who is interested how the VA could take 8 years to award a SIMPLE slam dunk case check out the link below. The scans I discussed here are at the bottom of the page.

http://www.anthemlabel.com/va.htm

Hoppy

Edited by Hoppy (see edit history)
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