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#41 RSG

 
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Posted 27 July 2010 - 06:59 PM

RSG,


This is probably a problem in getting IU granted,

"In your fully favorable decision from SSA - what disabilities were considered and of record to grant your claim for SSA benefits."


"Major depression and congnitive disorder from my multiple strokes."


If you have had multiple strokes there certainly would have to be additional medical factors
other than the depression, that you are SC'd for

.

Yes, there are other medical conditions I have. insulin dependant diabetes, neuropathy very extensive, serious nerve damage from my neck down.....as well as some kind of degenerative disc disease. I had carotid artery surgery at the va hospital, to prevent further strokes
some other thing to do with my vision..... But none of these can be contributed to the service

jmho



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#42 john999

 
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Posted 27 July 2010 - 08:01 PM

RSG

These NSC issues need to be taken off the board somehow. The only way I know is for a shrink to say that "yes, you have NSC issues, but the SC depression is the reason you can't work". I can see the VA just latching onto these NSC issues. IU must be solely for SC conditions. When I got IU I did have other problems but the SC problems were the ones that appeared in my SSD and in my medical reports. You might even want to try to get 100% schedular rather than fight this IU with all these other issues.

#43 Testvet

 
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Posted 27 July 2010 - 09:42 PM

my shrink covered that problem by stating in the treatment records "that this patient would be totally and permanently disabled solely by his symptoms from his PTSD" he wrote that in my record every Feb since 2004 and continues to write it as late as this past Feb and I was SC in 2005 at 50% which was raised to 100% P&T in May 2006 I don't think my VA trusts the VA not to play games down the road either so he writes excellent treatment notes I have been seeing the same doc for more than 7 years what surprises me as we all know the turnover of doctors I seem to get a new primary care doc at the rate of normally annually cardiac doc every 2 years so to keep one doc for more than 5 years seems amazing

when the RO has another medical issue to blame you being totally disabled by they will use it against you so I agree with John you have to get a psychiatrist to state that your PTSD is totally disabling regardless of your other medical issues and if you didn't have them you would still be considered to be totally and permanently disabled and that he does not expect you to ever be able to recover from them

if you have had PTSD more than a decade and it hasn't gotten better it more than likely never will get better (I am not a doctor and that is just my own opinion but it's as good as the janitor they have doing some of the C&P exams)

#44 RSG

 
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Posted 28 July 2010 - 02:49 AM

my shrink covered that problem by stating in the treatment records "that this patient would be totally and permanently disabled solely by his symptoms from his PTSD" he wrote that in my record every Feb since 2004 and continues to write it as late as this past Feb and I was SC in 2005 at 50% which was raised to 100% P&T in May 2006 I don't think my VA trusts the VA not to play games down the road either so he writes excellent treatment notes I have been seeing the same doc for more than 7 years what surprises me as we all know the turnover of doctors I seem to get a new primary care doc at the rate of normally annually cardiac doc every 2 years so to keep one doc for more than 5 years seems amazing

when the RO has another medical issue to blame you being totally disabled by they will use it against you so I agree with John you have to get a psychiatrist to state that your PTSD is totally disabling regardless of your other medical issues and if you didn't have them you would still be considered to be totally and permanently disabled and that he does not expect you to ever be able to recover from them

if you have had PTSD more than a decade and it hasn't gotten better it more than likely never will get better (I am not a doctor and that is just my own opinion but it's as good as the janitor they have doing some of the C&P exams)

I have been battling this for 40 years, the majority with no help for 30+ years

#45 Bravo6

 
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Posted 28 July 2010 - 04:17 AM

Have you tried having a VRE counselor write a statement stating you are unemployable? Have you gone through VRE, if so, have you had an ILS assessment of your home from a VRE counselor? This would help your claim, IMHO, big time!




I was denied IU but once I had this statement from VRE stating that I was unemployable due to my SC condition, I was granted within a week. Literally, I read the denial on a Friday, called my VRE counselor that same day (in which he just left my house on the day of the denial), he wrote said letter, by the next Wednesday, he called and told me that I was granted IU! So for me it took said letter to be granted TDIU!

B6




#46 RSG

 
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Posted 28 July 2010 - 04:22 AM

Have you tried having a VRE counselor write a statement stating you are unemployable? Have you gone through VRE, if so, have you had an ILS assessment of your home from a VRE counselor? This would help your claim, IMHO, big time!




I was denied IU but once I had this statement from VRE stating that I was unemployable due to my SC condition, I was granted within a week. Literally, I read the denial on a Friday, called my VRE counselor that same day (in which he just left my house on the day of the denial), he wrote said letter, by the next Wednesday, he called and told me that I was granted IU! So for me it took said letter to be granted TDIU!

B6



What is the VRE?

#47 Bravo6

 
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Posted 28 July 2010 - 04:39 AM

Vocational Rehabilitation and Employment (VR&E)


Independent living services (ILS)


http://www.vba.va.gov/bln/vre/

Edited by Bravo6, 28 July 2010 - 04:40 AM.


#48 RSG

 
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Posted 29 July 2010 - 07:33 AM

I found that the Va has been trying to deny me because I had tried to work but couldn't. I earned less than the poverty level nor did I have a "substantially gainful employment" VA Quote.....So I think it's the same ole story,
screw the VET any chance you get...They can't even consider income if it does not even reach the poverty level or their definition of substantially gainful employment...Tell me if I am wrong.....
tnx

#49 carlie

 
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Posted 29 July 2010 - 07:54 AM

RSG,


Your NSC medical problems are the reason that VA has denied IU.


I am sure from what VBA stated in the Rating Decision that the VA does have a copy of your SSA decision
and the disabilities listed by SSA show additional disabilities that are non service connected.
VBA stated,
" Additionally, disability determinations as rendered by the Social Security Administration are not binding on V A. Entitlement to Individual Unemployability can only be granted when a veteran's inability to maintain gainful employment is due solely to service-connected disabilities. That is, a veteran's service-connected disabilities alone must be of such severity as to render him incapable of securing and maintaining substantially gainful employment."



You posted,
"Yes, there are other medical conditions I have. insulin dependant diabetes, neuropathy very extensive, serious nerve damage from my neck down.....as well as some kind of degenerative disc disease. I had carotid artery surgery at the va hospital, to prevent further strokessome other thing to do with my vision..... But none of these can be contributed to the service".


The non SC'd issues and not having a mental health doctor, or vocational / occupational specialist, statement fully supported,
stating that regardless of your NSC disabilities,your are in no way able to hold any employment due solely to your mental health disability.


jmho

#50 RSG

 
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Posted 29 July 2010 - 08:05 AM

CArlie


So, If I got a letter from my Va doctor stating that the I can not hold a position of employment should be what I need. Correct...and only because of the depression, correct? See
that if you are 100% upfront and honest about everything the Va uses it against you correct.....pretty normal, me thinks.

RSG,


Your NSC medical problems are the reason that VA has denied IU.


I am sure from what VBA stated in the Rating Decision that the VA does have a copy of your SSA decision
and the disabilities listed by SSA show additional disabilities that are non service connected.
VBA stated,
" Additionally, disability determinations as rendered by the Social Security Administration are not binding on V A. Entitlement to Individual Unemployability can only be granted when a veteran's inability to maintain gainful employment is due solely to service-connected disabilities. That is, a veteran's service-connected disabilities alone must be of such severity as to render him incapable of securing and maintaining substantially gainful employment."



You posted,
"Yes, there are other medical conditions I have. insulin dependant diabetes, neuropathy very extensive, serious nerve damage from my neck down.....as well as some kind of degenerative disc disease. I had carotid artery surgery at the va hospital, to prevent further strokessome other thing to do with my vision..... But none of these can be contributed to the service".


The non SC'd issues and not having a mental health doctor, or vocational / occupational specialist, statement fully supported,
stating that regardless of your NSC disabilities,your are in no way able to hold any employment due solely to your mental health disability.


jmho



#51 carlie

 
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Posted 29 July 2010 - 08:33 AM

RSG,
A MH specialist would need to state that in their medical opinion,
regardless of your non service connected disabilities, it is their medical opinion that you are more likely than not,completely
unemployable for any type of employment due solely to your service connected mental health disability.
They must fully support this opinion by listing and stating medical evidence from below, in their written opinion.

Usually I would post the at least as likely as not statement - but I really feel your issue will need the more likely than not statement at this point.

You could still use a Voc / Occupational specialist supporting all of this. Having both would be the best.

Since the Rating Decision you posted is from a DRO - I think you could submit new and additional medical evidence (if you can get it)
and request the DRO reconsider your claim (due to this new medical evidence) and either increase your percentage for MH to 100 percent
or grant IU.


You would need to do this right away - and you probably will also have to submit your Form 9 to appeal to the BVA on time.


Below is what the MH doctor needs to support their medical opinion for an increase to 100 % MH or to support your IU claim.
The opinion does not have to list every one of the below - but should show the majority of these symptoms.

Again, this is only my opinion - you need this ammo to win.

General Rating Formula for Mental Disorders:

Total occupational and social impairment,

due to such symptoms as:




gross impairment in thought processes or communication;

persistent delusions or hallucinations;

grossly inappropriate behavior;

persistent danger of hurting self or others;

intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene);

disorientation to time or place;

memory loss for names of close relatives, own occupation, or own name ..........100



#52 Cruinthe

 
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Posted 29 July 2010 - 08:37 AM

Have you submitted your SSDI award as evidence in support of claim? Also, did you clarify, on paper, that a GAF of 50 or below AUTOMATICALLY implies unemployability?

#53 RSG

 
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Posted 29 July 2010 - 09:17 AM

Have you submitted your SSDI award as evidence in support of claim? Also, did you clarify, on paper, that a GAF of 50 or below AUTOMATICALLY implies unemployability?



Yes I have submitted that, and also shows multiple times the GAF score of 40 or below...

#54 RSG

 
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Posted 29 July 2010 - 09:21 AM

Hi carlie,
I have submitted 2 IMO's already that state exactly what you specified. The last one was from approx 3 months ago..
RSG


RSG,
A MH specialist would need to state that in their medical opinion,
regardless of your non service connected disabilities, it is their medical opinion that you are more likely than not,completely
unemployable for any type of employment due solely to your service connected mental health disability.
They must fully support this opinion by listing and stating medical evidence from below, in their written opinion.

Usually I would post the at least as likely as not statement - but I really feel your issue will need the more likely than not statement at this point.

You could still use a Voc / Occupational specialist supporting all of this. Having both would be the best.

Since the Rating Decision you posted is from a DRO - I think you could submit new and additional medical evidence (if you can get it)
and request the DRO reconsider your claim (due to this new medical evidence) and either increase your percentage for MH to 100 percent
or grant IU.


You would need to do this right away - and you probably will also have to submit your Form 9 to appeal to the BVA on time.


Below is what the MH doctor needs to support their medical opinion for an increase to 100 % MH or to support your IU claim.
The opinion does not have to list every one of the below - but should show the majority of these symptoms.

Again, this is only my opinion - you need this ammo to win.

General Rating Formula for Mental Disorders:

Total occupational and social impairment,

due to such symptoms as:




gross impairment in thought processes or communication;

This is correct and specified already


persistent danger of hurting self or others
this specified already




memory loss for names of close relatives, own occupation, or own name
this also is specified in the IMO's




#55 Bravo6

 
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Posted 29 July 2010 - 10:58 AM

You need to be assess by an Occupational Therapist supporting your physical limitations. Have your PCP give you a referral to see an Occupational Therapist, they will conduct a Physical Limitation test (push, pull, walk, etc) to support that you are PHYSICALLY unable to work. Once that is done, you will be referred to VR&E which will contact you for a ILS assessment (well this happened in my case). Usually this person is a VR&E counselor, so they can write a letter stating that you are unable to gain suitable employment. Once this is done, POOF, you have new medical evidence to support being awarded TDIU.


The statement above is EXACTLY what I did. Then a week later I was granted IU! PERIOD!


Good Luck,
B6

#56 mobie16r

 
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Posted 29 July 2010 - 11:10 AM

RSG,thanks for your service that said the people on hadit have posted some very good information. Seems like when the va looks at a claim,everythings thats negative, va user against you, and in my opinion, on the statement your doctor Brewer wrote about you suffering with mood disorder and possible non combat ptsd,the ptsd was negative and possible play a big part in your claim being denied.Like everyone said your psychiatrist of psychologist need to state in detail that your major depression is the only disability that keep you from gainful employment.Good luck

#57 RSG

 
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Posted 29 July 2010 - 11:21 AM

tHANKS, i WILL TRY THAT...
RSG


You need to be assess by an Occupational Therapist supporting your physical limitations. Have your PCP give you a referral to see an Occupational Therapist, they will conduct a Physical Limitation test (push, pull, walk, etc) to support that you are PHYSICALLY unable to work. Once that is done, you will be referred to VR&E which will contact you for a ILS assessment (well this happened in my case). Usually this person is a VR&E counselor, so they can write a letter stating that you are unable to gain suitable employment. Once this is done, POOF, you have new medical evidence to support being awarded TDIU.


The statement above is EXACTLY what I did. Then a week later I was granted IU! PERIOD!


Good Luck,
B6



#58 carlie

 
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Posted 29 July 2010 - 11:48 AM

You need to be assess by an Occupational Therapist supporting your physical limitations.
Have your PCP give you a referral to see an Occupational Therapist, they will conduct a Physical Limitation test (push, pull, walk, etc)
to support that you are PHYSICALLY unable to work.

Once that is done, you will be referred to VR&E which will contact you for a ILS assessment (well this happened in my case). Usually this person is a VR&E counselor, so they can write a letter stating that you are unable to gain suitable employment. Once this is done, POOF, you have new medical evidence to support being awarded TDIU.

Good Luck,
B6




Sorry - but NO - NO - NO - in this case that will not work AT ALL in helping RSG get IU.
He is ONLY SC'd FOR MH Disability.

His physical conditions are NON SC'd, so just bringing that up will help VBA to continue a denial,by providing even more evidence
that his NON-SC'd disabilities are the reason for his inability to hold employment.

#59 mobie16r

 
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Posted 29 July 2010 - 11:53 AM

I agree with you carlie

#60 RSG

 
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Posted 29 July 2010 - 11:56 AM

Makes sense to me.....All I see in the decision is that it's the employment thing.... but there again maybe I just can't understand what I am reading. in either case.. I found this with help...maybe this is a clue....
tnx, RSG

The VA’s Individual Unemployability program
Did you know that you don’t have to be rated 100% disabled by the VA to receive
compensation at the 100% rate? Sounds counterintuitive, right? However, under
the VA’s Individual Unemployability program veterans may receive 100% rating
compensation if they are unable to maintain substantially gainful employment.
How does the VA define “substantially gainful employment?”
Substantially gainful employment is “employment at which non-disabled
individuals earn their livelihood with earnings comparable to the particular
occupation in the community where the veteran resides.”
That means, that even if you are not rated 100% disabled AND work but are not
gainfully employed as defined above, you may be eligible for 100% disability
compensation so long as your income does not exceed the poverty level.
Who is eligible for this special benefit?
Veterans with one service-connected disability rating of 60% or more OR veterans
with two or more service-connected disabilities so long as one disability rating
was at least 40% and you have a combined rating of at least 70%. Even if you
don’t meet these rating requirements, you may still be considered unemployable
and qualify for Individual Unemployability. Additionally, if you have evidence
of an exceptional or unusual circumstance where your disability interferes with
your job or requires frequent hospitalizations, you may be eligible for the
program.


and this....

Total disability based upon individual unemployability - TDIU - is an
extraordinary remedy available to veterans who do not meet the 100% disability
requirement, but who are otherwise unable to secure a "substantially gainful
occupation". In these instances a veteran may be awarded TDIU and receive
monthly disability compensation benefits as if rated 100% even though the
veteran has not received an 100% disability rating.



The TDIU Approach to Disability Compensation


The normal disability formula bases the dollar amount of monthly benefits on the
percentage awarded. This percentage is determined on an averageimpairment of the
ability to work. If a veteran receives a 30% disability rating for a service
connected medical condition, the VA had found an averageveteran suffering from
the same medical condition would be 30% disabled for VA purposes. It is an
analysis which looks at a broad spectrum of all veterans. From it an average
composite is created from which the disability regulations are based.


TDIU bases the monthly compensation on the specificveteran's ability or lack
thereof to work. To understand it another way, TDIU is an acknowledgement by the
VA that even though the veteran, because of his or her specific conditions
unique to the veteran, is not entitled to an 100% disability rating, overall
objectively, there are subjective reasons unique to the individual veteran which
allow the VA to assign to him a 100% disability rating. The VA focuses on the
veteran as an individual, and not on how his or her medical condition measures
up against an average composite of all other veterans.


Basic Requirements to TDIU


In order to qualify for TDIU consideration, the veteran must meet two threshold
requirements. These are:



1. Is the veteran unable to secure, or follow substantially gainful occupation
as a result of a service


connected disability or disabilities?



2. If the veteran has only one service-connected disability, is it rated at or
above 60%? Or, if the


veteran has a combined disability of 70% or more, is one of the disability
ratings at least 40%?


If so, the veteran is entitled to consideration for TDIU.


If it is awarded, a TDIU award may be temporary or permanent depending on the
facts involved.


Claims for TDIU are judged on a case by case basis. Each veteran's life is
remarkably different. Accordingly, the awards are as unique. They are entirely
fact specific.


Occasional lapses in employment due to incapacity caused by the disability /
disabilities often is not sufficient to trigger TDIU consideration. The VA
examines the veteran's employment history, current employment status, and annual
income from work amongst a host of other things.


A Substantial Gainful Occupation


The primary focus for an award of TDIU is whether the veteran can "secure a
substantial gainful occupation".



As a backdrop the VA reviews the veteran's earnings, his type of job skills, and
the area in which he lives. The VA then compares the veteran's earnings to the
earnings of a person likewise situated who does not suffer from the veteran's
disability / disabilities.



Marginal employment, which is normally defined as a job which generates an
income less than the poverty threshold as defined by the Census Bureau, is not
considered "substantial gainful employment". Accordingly, the veteran does not
have to prove he is 100% unemployable. Establishing a veteran earns less than
the poverty level is a significant step in establishing the first requirement.
[However, in some instances such a when the veteran works for a family business
or sheltered workshop - known as a "protected environment" - the veteran may
earn more than the poverty threshold amount and still qualify for TDIU
consideration.]


Extraschedular TDIU


In some instances the veteran may meet the first requirement [lack substantial
gainful employment], but yet fail to meet the second requirement [a single 60%
disability rating or 70% with multiple disabilities with one exceeding 40%]. In
such an instance, the veteran may still be entitled to consideration for TDIU.
This is based in the policy of the VA to rate all veterans as 100% disabled who
are unemployable because of their service connected medical disabilities
regardless of the percentage awarded.


Normally, the VA must find the specific case presents such an exceptional or
unusual disability picture the regular disability scheduler standards are not
practical. Normally, the veteran's disabilities markedly interfere with
employment or the veteran's frequent hospitalizations make employment not
workable. In such extremely rare instances, the claim is referred to the
Secretary's designated official to consider the claim on a special, unique
basis.



Non-Factors


Although the focus is on the unique characteristics of veteran's situation,
things which would seem reasonable to be considered are expressly not
considered. These include the veteran's age, whether elderly or youthful, as
well as the veteran's non-service connected disabilities.



Obviously a veteran's age and his non-service connected disabilities impact his
ability to have "substantial gainful occupation". However, the VA will not
consider such in its determination and the veteran's advocate must be able to
compartmentalize veteran's medical conditions in order to persuade the VA of
veteran's entitlement to TDIU. The VA, in fact, will have expressly to explain
in its decision a differentiation between the service-connected and non-service
connected disabilities.


Factors to be Considered


The VA will consider the veteran's level of education, as well as his
occupational history. However, a well-educated veteran who was recently employed
may not be denied TDIU simply because he or she is well-educated and recently
employed. The focus should be on the present status of the veteran's
predicament.


The VA additionally must examine the veteran's Social Security Administration
disability benefits records if the veteran is receiving those benefits. The
determination of disability for gainful employment by the Social Security
Administration is relevant to the award of TDIU.


As in every case, the "benefit of the doubt" always leans in favor of the
veteran's claim. This is equally applicable to distinguishing between the
effects of service-connected and non-service connected disabilities.


Maybe these will help you...



Sorry - but NO - NO - NO - in this case that will not work AT ALL in helping RSG get IU.
He is ONLY SC'd FOR MH Disability.

His physical conditions are NON SC'd, so just bringing that up will help VBA to continue a denial,by providing even more evidence
that his NON-SC'd disabilities are the reason for his inability to hold employment.



#61 Bravo6

 
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Posted 29 July 2010 - 12:23 PM

Sorry - but NO - NO - NO - in this case that will not work AT ALL in helping RSG get IU.
He is ONLY SC'd FOR MH Disability.

His physical conditions are NON SC'd, so just bringing that up will help VBA to continue a denial,by providing even more evidence
that his NON-SC'd disabilities are the reason for his inability to hold employment.

Great point.......I totally realized it after I wrote it. I actually realized it not more than 10 minutes ago, after remembering he has MH problems versas physical limitations!

So I came back to make a correction and see that I've been corrected! Awesome! Thanks Carlie, I was missing the boat on this one!!


B6



#62 carlie

 
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Posted 29 July 2010 - 12:31 PM

In order to qualify for TDIU consideration, the veteran must meet two threshold
requirements. These are:

1. Is the veteran unable to secure, or follow substantially gainful occupation
as a result of a service connected disability or disabilities?


Non-Factors

Although the focus is on the unique characteristics of veteran's situation,
things which would seem reasonable to be considered are expressly not
considered. These include the veteran's age, whether elderly or youthful, as
well as the veteran's non-service connected disabilities.


Obviously a veteran's age and his non-service connected disabilities impact his
ability to have "substantial gainful occupation
". However, the VA will not
consider such in its determination and the veteran's advocate must be able to
compartmentalize veteran's medical conditions in order to persuade the VA of
veteran's entitlement to TDIU.
The VA, in fact, will have expressly to explain
in its decision a differentiation between the service-connected and non-service
connected disabilities.



****** "compartmentalize veteran's medical conditions"
this is exactly what I've posted to you in saying,
"MH specialist would need to state that in their medical opinion,regardless of your non service connected disabilities,


it is their medical opinion that you are more likely than not,completely unemployable for any type of employment due solely to your service connected mental health disability."


They must fully support this opinion by listing and stating medical evidence from below, in their written opinion.


In regards to:

"As in every case, the "benefit of the doubt" always leans in favor of the veteran's claim.
This is equally applicable to distinguishing between the effects of service-connected and non-service connected disabilities".

***** In order for VBA to even consider the application of the BOD, first of all the medical evidence
must be in relative equipoise.

Here is an example:

Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley, supra; see also Massey, supra.The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. As a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and service connection for ......"



**** It is my guess that most of the medical evidence that has been submittedin your claim for IU - to include the IMO's - have not "compartmentalized" your service connected mental health disability as the sole or MAIN reason you areunemployable.



#63 RSG

 
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Posted 29 July 2010 - 12:59 PM

Well I guess I don't understand why there is a difference between suffering major depression/****, and being treated for it in the service for 5 month's,being fired/discharged because of itin "69" filing claims for depression for from "69" till 2004 and being denied, again, again, again ,being treated again in 1995. being retired for major depression bt SSA, in 01, being treated for the same by the VA starting again in 2001, until the present and being described by the VA Shrinks with a 40 or below gaf score, can not tell that this is not service connected.... But the BVA already said It was and it is SC"d in 09.retro to 02.But, it's still not a valid claim. I don't know what else I can do.... I guess that's how are friendly VA see's the whole deal.....


by the way I was a design eng....for 35 years, and my ability to remember how to do that is entirely gone along with my comprehension electronic mechanical design
systems,, my abilty to do simple/advanced math, my abilty to spatially build a device and then build it is gone......Not to mention the PHYsical issues..

I guess I am just so frustrated I am having a hard time....... I am sorry for bothering you guy's.

Edited by RSG, 29 July 2010 - 01:05 PM.


#64 carlie

 
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Posted 30 July 2010 - 08:57 AM

RSG,
I do not see where you have bothered anyone.

I looked thru (again) the decision you posted and from what I understand you have already
taken your claim issue of IU to the BVA and it was denied at that level.
Is this correct ?

#65 Hoppy

 
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Posted 31 July 2010 - 01:39 PM

Berta, carlie and RSG

Carlie, Berta please read this section . Ron my response to you is below

The VA, in fact, will have expressly to explain
in its decision a differentiation between the service-connected and non-service
connected disabilities


Is this from a decision, the M-21 or where. The reason I ask is because it may be an issue in a current claim. The veteran was previously awarded a NSC pension for the same exact condition he was awarded 50% service connected. The is no explanation of how they reduced the rating. It appears they are just saying that they gave him the NSC without reviewing the records and now that they reviewed them he is only 50%. However they continued the NSC pension because it is a higher rating.

There was a diagnosis “invented” by the C&P examiner of personality disorder that the C&P examiner said was causing the unemployability. I can’t figure out why they reduced him to 50 yet continued the NSC pension without giving weight to the PD diagnosis. There is absolutely no identification of a non service connected disability that was used to obtain the higher rating that would allow the continuation of the NSC pension. I figured that this might be something that comes out in the SOC rather than the decision.

.Berta

If a veteran gets SSDI solely for service connected conditions, it is practically impossible for the VA to deny TDIU. (Washington V Derwinski)

This is why I think they are claiming the veteran has improved since the award of NSC pension. He was awarded SSDI for the same exact condition. However, he has been in treatment and the psychiatrist has been giving him GAF’S of 65 for the last year and a half. There are several problems that I can show that will have this psychiatrists opinions put in the trash..

This psychiatrist has been stating that the veteran is unemployed. I have notified the VBA that this is a significant assessment error that would result in an inaccurate GAF. Actually, the clinician is completely unaware of the fact that the veteran has been receiving an NSC pension. The psychiatrist has also diagnosed the veteran with panic disorder WITHOUT agoraphobia based on clinical assessments.

The veteran is also being treated in the anxiety clinic. The anxiety clinic has given the veteran psychometric testing and interviewed the veteran more times than the psychiatrist. They determined as the result of testing that the veteran had panic disorder WITH. Agoraphobia and gave him a GAF of 40. The C&P exam and the award letter is totally silent for any reference to the anxiety clinic.

Ron.

I think the most important problem to deal with in your claim involves the cognitive disorder, recent diagnoses of mood disorder or PTSD is not as big of an issue unless the PTSD stressor is not related to service. The fact that you are seeking a higher rating will be confused by the non service connect cognitive issues. If an examiner determines that the cognitive disorder and other symptoms of stroke is mild and not causing unemployability this would work in your favor. I would get this type of statement. If you cannot get this type of statement then get an IMO as described below.

If it were me I would seek an IMO based on a review of the records only that existed prior to the onset of any symptoms for non service connected conditions including of cognitive disorder. Do not have any interviews with the examiner, Thus, the VA cannot accuse the examiner of using your subjective input for the basis of the new IMO. If there is sufficient evidence of record to meet the criteria for the higher rating for you service connected condition based on this type of review submit the evidence in support of any current claim. It might also require a CUE.

If there was any evidence in your file showing that the cognitive disorder had onset prior to the SSDI determination and those records of cognitive disorder were not reviewed by the SSI evaluator at the time you were awarded social security, I really doubt the VA will give weight to the SSI decision. In order to rebut a refusal to give weight to the SSI evaluator you would need to include in any IMO that the records not reviewed by the SSI evaluator do not support a determination that those symptoms of non service connected conditions would have made you unemployable.

The VA has a way of writing denials in such a way that you really do not know what is being used against you. Thus you cannot rebut that which you cannot identify. This is the best I can do.









#66 RSG

 
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Posted 02 August 2010 - 08:50 AM

Hi CArlie,
no it has not gone to the BVA, it went thru a DRO and they denied it, and told me to send it to the BVA...

RSG,
I do not see where you have bothered anyone.

I looked thru (again) the decision you posted and from what I understand you have already
taken your claim issue of IU to the BVA and it was denied at that level.
Is this correct ?



#67 Berta

 
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Posted 02 August 2010 - 09:12 AM

Hoppy-

as RSG posted last week:
"Yeah I know Berta, I don't know what the problem is...I am still waiting and was waiting to file the CUE claim we worked on, until I got this assanine decision, again."


I spent quite a bit of time on writng the CUE claim. I think it would have helped resolve all of these issues.

But it hasn't been filed.

#68 carlie

 
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Posted 02 August 2010 - 09:12 AM

Hi CArlie,
no it has not gone to the BVA, it went thru a DRO and they denied it, and told me to send it to the BVA...



RSG,
Now this has become even more confusing to me since you've said it (the issue is IU) it
hasn't gone to the BVA.


In the decision you posted it says,

" We received the Board of Veterans Appeals decision dated August 20,2008. Your claim was decided on August 10,2009. You were fumished a copy of the decision and provided your appellate rights on August 11,2009. Your timely Notice of Disagreement (NOD) was received on September 10,2009, with your election of the Decision Review Officer (DRO) process on November 23,2009. As a result of your election, this decision is based on de novo review of the evidentiary record. You have been advised of the information and evidence necessary to substantiate your claim. All reasonable efforts have been made to assist you in the development of your claim. You have not indicated any other evidence which may be obtainable. Therefore, the notice requirements of the Veterans Claims Assistance Act (VCAA) have been met and VA's duty to assist you in the development of your claim has been fulfilled.

ISSUE:

Entitlement to Individual Unemployability.

EVIDENCE:

Board of Veterans' Appeals decision dated August 20, 2008, and all evidence cited therein " ....



#69 RSG

 
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Posted 02 August 2010 - 09:40 AM

The BVA SC'd me in 2009, for 70%, the paper work you saw, that I posted was from the DRO w/ reference to the denial of IU about 2 weeks ago.
tnx

RSG,
Now this has become even more confusing to me since you've said it (the issue is IU) it
hasn't gone to the BVA.


In the decision you posted it says,

" We received the Board of Veterans Appeals decision dated August 20,2008. Your claim was decided on August 10,2009. You were fumished a copy of the decision and provided your appellate rights on August 11,2009. Your timely Notice of Disagreement (NOD) was received on September 10,2009, with your election of the Decision Review Officer (DRO) process on November 23,2009. As a result of your election, this decision is based on de novo review of the evidentiary record. You have been advised of the information and evidence necessary to substantiate your claim. All reasonable efforts have been made to assist you in the development of your claim. You have not indicated any other evidence which may be obtainable. Therefore, the notice requirements of the Veterans Claims Assistance Act (VCAA) have been met and VA's duty to assist you in the development of your claim has been fulfilled.

ISSUE:

Entitlement to Individual Unemployability.

EVIDENCE:

Board of Veterans' Appeals decision dated August 20, 2008, and all evidence cited therein " ....




#70 RSG

 
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Posted 02 August 2010 - 10:48 AM

Hi Berta,

I don't know if I should have sent the CUE, because I was told that the VA does not multi-task very well. And it would confuse the issue with the IU, if I did send it in...
Obviuosly it's confused enough right now...

I will be sending it off in a couple days. Do I need to do anything else to acheive an EED dating back to "69", or will the CUE accomplish the task....tnx
RSG


Hoppy-

as RSG posted last week:
"Yeah I know Berta, I don't know what the problem is...I am still waiting and was waiting to file the CUE claim we worked on, until I got this assanine decision, again."


I spent quite a bit of time on writng the CUE claim. I think it would have helped resolve all of these issues.

But it hasn't been filed.



#71 Commander Bob

 
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Posted 02 August 2010 - 12:08 PM

JMHO. Find a lawyer, and file a NOD. I sense an EED of 1969, long before PTSD was recognized by the medical community and the VA...

Try not to torment over it. JMHO...you are doing the right thing by following this thru to a successful conclusion.



Good luck.

#72 RSG

 
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Posted 02 August 2010 - 12:25 PM

I keep trying to find an attorney, the one I did have wrote me today and dismissed me as his client..don't know exactly why, but I don't think he wanted to handle my CUE....that figures...So they now won't do anything with my claim....RSG




JMHO. Find a lawyer, and file a NOD. I sense an EED of 1969, long before PTSD was recognized by the medical community and the VA...

Try not to torment over it. JMHO...you are doing the right thing by following this thru to a successful conclusion.



Good luck.



#73 Berta

 
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Posted 02 August 2010 - 12:44 PM

Attorneys cannot handle a claim on the POA until a NOD is filed.

The CUE claim wasn't filed so there was no denial yet and no NOD, so I don't think that is why the lawyer dropped you.

There is no quarantee that a CUE claim or any type of claim will succeed.I felt you had a very good chance for this CUE claim. It is up to you to file it or not.

#74 Berta

 
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Posted 03 August 2010 - 07:56 AM

http://www.answers.c...est-corporation

This link contains contact info for Carquest's main office and I assume their CEO listed there is still the CEO. Also it seems that Autozone is affiliated with Carquest.

The VA is definitely holding to their position that-without evidence that your SC affected your employability,they will not award TDIU on that basis.

But this is the only reason it appears they denied you TDIU.

Is it possible that Carquest would be able to provide VA with the information you need after the 'construction' is done?

Then again-they must have employment records saved somewhere.

Maybe by getting your request for your employment records to their CEO would make them willing to find what the VA needs.
That should include the Autozone records as well.

Did any of these positions involve Unemployment insurance? Would the employment office (if you collected unemployment)have
the reason for lay off or termination?

Have you considered buddy statements from co workers who could clearly state to VA that you were employed at these businesses but that your SC disability interfered with your ability on the job?

I certainly had the same problem when the VA refused to even obtain my husband's SSA records (he got SSA solely for PTSD)
but statements from his co workers helped a lot.In that case however those statements were generated by DOL and EEOC complaints he had made.But still how could VA disregard 'buddy statements' from your co workers? Have yopu tried to contact your last supervisor at car quest via google search?

His VA shrink also stated emphatically to the VA in a letter that his SC PTSD prevented any employment potential.Did your IMO fully state medical rationale that your SC disability renders you unemployable?

It seems to me that this is the only thing in the way of a TDIU award for you and maybe you have to go higher than the local places you worked at for personnel records -as well as try for some co worker's statements -to get the information that VA needs.

#75 RSG

 
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Posted 04 August 2010 - 07:21 AM

Hi Berta,
I already found out that all the car quest stores are franchised stores. THe carquest operation has no oversiight capabilities with reference to them keeping employment records...I did check with them to see if they had anything. the response I got wasd, They found my name on one pice of paper, and it had nothing to do with employment. I reqiuested a letter and they refused.....
RSG

http://www.answers.c...est-corporation

This link contains contact info for Carquest's main office and I assume their CEO listed there is still the CEO. Also it seems that Autozone is affiliated with Carquest.

The VA is definitely holding to their position that-without evidence that your SC affected your employability,they will not award TDIU on that basis.

But this is the only reason it appears they denied you TDIU.

Is it possible that Carquest would be able to provide VA with the information you need after the 'construction' is done? Their construction was done a 1 1/2 ago...

Then again-they must have employment records saved somewhere. They have nothin, I checked multiple times....

Maybe by getting your request for your employment records to their CEO would make them willing to find what the VA needs.
That should include the Autozone records as well.
I called autozone 3 times a week for six weeks trying to talk to the VP in charge of human resources, I never got a response....

Did any of these positions involve Unemployment insurance? Would the employment office (if you collected unemployment)have
the reason for lay off or termination? NO They did not.....


Have you considered buddy statements from co workers who could clearly state to VA that you were employed at these businesses but that your SC disability interfered with your ability on the job? I had no one there that I would even consider a buddy, or ayone tha would right a letter... I even tried contacting the store managers about this.


I certainly had the same problem when the VA refused to even obtain my husband's SSA records (he got SSA solely for PTSD)
but statements from his co workers helped a lot.In that case however those statements were generated by DOL and EEOC complaints he had made.But still how could VA disregard 'buddy statements' from your co workers? Have yopu tried to contact your last supervisor at car quest via google search?

His VA shrink also stated emphatically to the VA in a letter that his SC PTSD prevented any employment potential.Did your IMO fully state medical rationale that your SC disability renders you unemployable? YEs

It seems to me that this is the only thing in the way of a TDIU award for you and maybe you have to go higher than the local places you worked at for personnel records -as well as try for some co worker's statements -to get the information that VA needs.


Edited by RSG, 04 August 2010 - 07:25 AM.


#76 carlie

 
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Posted 04 August 2010 - 07:41 AM

RSG,
I have a proposal for you.
Go out in your area and apply for a few jobs AND list your medical conditions.
I did this one time many,many years ago and one employer actually wrote me
up a brief letter stating they were very interested in hiring me for XXX position,
but regretfully,due to my medical conditions it would not be possible for them or me
to have the position.

Have you tried Voc Rehab yet ?
If so - did they decline training for you ?

#77 carlie

 
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Posted 04 August 2010 - 08:46 AM

RSG,
I am going to post a copy of the letter verbatim so you can clearly see what
I am referring to.


At the time I was not service connected for anything BUT I had a claim in for SC
of seizures and other issues,I was being treated and medicated for seizures at my VAMC
and I had only been separated from active duty for 11 months.
Due to my seizures, the VA Neurologist assigned to my care had to notify the Florida
Department of Transportation that I no longer met the eligibility requirements to hold
a valid drivers license and the state pulled my drivers license for several years.


I was too VBA dumb at this time to realize that VBA should have inferred a claim for IU.
Three years after this letter was written VBA granted me SC for seizures at 40 %
with an effective date back to day following separation.


Maybe if you can go out and get a couple of letters like this it will be enough to
support your claim for IU.




This is the letter my prospective employer wrote for me.
This letter is type written on company letter head.


June 20,1979
Company Address:
Company Phone Number


To Whom It May Concern:


I have just completed my interview with Miss XXXXX XXXXX.
She had applied for the job as Manager Trainee with Western Sizzilin Steak Houses.
My only reason at this point for turning Miss XXXXX down was for the lack of a drivers license
which is quite imperative for the job and for her recent past history of seizures.
I do not feel at this time that it would be fair to either Miss XXXXX or ourselves
to put her in the training program.


Respectfully yours,
XXXX XXXXXX, Manager
Western Sizzlin Steak House

#78 RSG

 
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Posted 05 August 2010 - 08:32 AM

Thank you, That's an excellent thought.... I should probably try that.......
The following statement occured to me after I read yours, and I thought it was comical....
but sometimes, I think, that this statement reflects the way the VA thinks...

But then the VA would say," Because I looked for a job, and had multiple letters from prospective employers on dates that were supposed to be after my disabilties occured, I was not disabled..... therefore your claim is denied" ....LOL






RSG,
I am going to post a copy of the letter verbatim so you can clearly see what
I am referring to.


At the time I was not service connected for anything BUT I had a claim in for SC
of seizures and other issues,I was being treated and medicated for seizures at my VAMC
and I had only been separated from active duty for 11 months.
Due to my seizures, the VA Neurologist assigned to my care had to notify the Florida
Department of Transportation that I no longer met the eligibility requirements to hold
a valid drivers license and the state pulled my drivers license for several years.


I was too VBA dumb at this time to realize that VBA should have inferred a claim for IU.
Three years after this letter was written VBA granted me SC for seizures at 40 %
with an effective date back to day following separation.


Maybe if you can go out and get a couple of letters like this it will be enough to
support your claim for IU.




This is the letter my prospective employer wrote for me.
This letter is type written on company letter head.


June 20,1979
Company Address:
Company Phone Number


To Whom It May Concern:


I have just completed my interview with Miss XXXXX XXXXX.
She had applied for the job as Manager Trainee with Western Sizzilin Steak Houses.
My only reason at this point for turning Miss XXXXX down was for the lack of a drivers license
which is quite imperative for the job and for her recent past history of seizures.
I do not feel at this time that it would be fair to either Miss XXXXX or ourselves
to put her in the training program.


Respectfully yours,
XXXX XXXXXX, Manager
Western Sizzlin Steak House



#79 RSG

 
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Posted 05 August 2010 - 08:43 AM

RSG,
I have a proposal for you.
Go out in your area and apply for a few jobs AND list your medical conditions.
I did this one time many,many years ago and one employer actually wrote me
up a brief letter stating they were very interested in hiring me for XXX position,
but regretfully,due to my medical conditions it would not be possible for them or me
to have the position.

Have you tried Voc Rehab yet ? NO, I have not.....
No one has ever even mentioned that, be cause my cognitve state. when it comes to short to medium term memory is gone and my ability to design,my math skills, my spatial design abilities have gone....I am not even considering the physical pain that I deal with 24/7/365.


If so - did they decline training for you ?



#80 RSG

 
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Posted 05 August 2010 - 08:46 AM

JMHO. Find a lawyer, and file a NOD. I sense an EED of 1969, long before PTSD was recognized by the medical community and the VA...

Try not to torment over it. JMHO...you are doing the right thing by following this thru to a successful conclusion.



Good luck.

You hit that nail on the head....And I am gonna stay angry about it until I do accomplish my task........PERIOD
....




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