Trying to get 100% P&T rating

Question:

Mr. Strickland, I was wondering if you can provide some expert advice as always on my current situation? sorry for the lengthy explanation, but I did not want to leave out any details., I am writing this letter hoping that I can have a legal case to ascertain a final 100% (Permanent and Total rating) finally. To give you a quick snapshot of my profile, I am currently being paid at 90%, but with the VA Math I am at 92%, meaning that I am 30% shy of 95% for the 100%. The disability that is in question is my left hip. I had previously been turned down in 2008 because they did not have any record of it happening in the military (I was previously OK with the decision!) Fast forward to 2014ish where I resubmitted a claim for an upgrade on the lower back (20%), which I was able to get an increase to (40%). During that same time, I had submitted a claim for left hip, which was immediately denied due to the same reason, but this time I claimed the left hip was secondary to one of my many lower extremities Disability Percentage Lower Back 20%, but now is 40% Left Thigh Myositis Ossification 10% Left Sciatica 30% Left Knee 10% Right Knee 10% Left Ankle 20% Right Ankle 20% Right Hip 3 (10%s) And rated for 2 scars, left wrist, totaling to 92% due to the bilateral factor. But getting back to the matter at hand, the hip operated on October 1, 2015, performed at the Indianapolis VA Hospital, which did not go well at all. I received severe Hetero-topic Ossification around the new prosthetic, severe nerve damage, drop foot, and I have been seeing a psychologist for the depression and pain issues. The current diagnosis for my injuries is Somatic …............. Due to all of the issues that I was and am still going on, I have become exhausted with fighting the VA juggernaut over technicalities.

The first question I wanted to ask you;
1.) Is it standard practice for the Surgery Orthopedic service to send down an inquiry for a DBQ without even seeing myself personally? The Nurse Practitioner has submitted “not so favorable” DBQ write up, stating “That my hip was demise was due to natural progression over the years”, which the local VA office based their decision to deny! I inquired about this snafu and I was not given an official answer, but a “well they normally do this.” In addition, the DAV rep that was responsible for my case had mysteriously left the office, which meant no one was directly involved in my case (I have emails showing my correspondence) to the issue.
2.) I submitted an appeal (NOD) back in 2015 to go directly to the BVA, which received my case and REMANDED my case back to the local VA office. What was odd is that they sent the previously mentioned lower back and the Left Hip on the same decision letter. In addition, the DAV VSO that was handling my case was either removed or left for another positon, which caused a lapse in my case.
3.) The local regional office had called me on my personal and only phone . The agent called only about my lower back, which he stated that I was going to be upgraded to 40%. I also inquired about my Left Hip, which he replied that the issue was closed out. I interjected that no one had called me about my left hip Remand. After fighting the VA for over 20 years it becomes tiresome fighting the “system.” But I was checking my recently “C file”, which I received from my Tort Claim Lawyer concerning the botched surgery, which was settled for $300,000. Within the “C File” I was able to find the corresponding “Report of …....” for the lower back (which they called the correct number and that I spoke about my back increase!) But for the corresponding “Report of ….... for the left hip was closed by the agent stating that they called my number twice and when no response they close my case out within the mandated 30 days of the BVA Decision Letter. What was odd that the “Report of …...” stated that they called my number, which was my old number (732 76*-****), which I had already called or they called and updated the information, as demonstrated by the other agent calling the right and current number (317) ..... It seems that the agent involved with handling my Left Hip Remand took the easy way out by covering his tracks by saying the he called, which never happened!
Due to this snafu and oversight I was not properly evaluated, which would of have at a minimum rated myself at 100%, due to all I needed was a 30%, which would have been the minimum after the botched hip surgery per the 38 CFR. The effective date would have been around October 1, 2015. I submitted for Temporary 100% for that period, but was denied by stating that is what not service connected. On another note, if I would have been rated for the new prosthetic the rating alone would have been between (30% to 90%) due to the severity of the botched surgery.


Summation; I wondering if I had a case on the snafus do the previously mentioned inquiries above? In addition, due to my injuries and botched surgery I had to medically retire from job (VA IT Specialist) on February 3, 2017 and was awarded SSDI on the first try on August 2017. I would like to forward all of the corresponding evidence, so that you can follow and make a determination about my case (Decision Letter, Report of …...., DBQ inquiry before surgery, and left hip surgery notes. The left hip surgery has called all types of problems since the surgery (gait severely off due to longer leg, drop foot, depression, anxiety, taking Amitriptyline antidepressant 3 times a day) and now that I just had two painful hip revision surgeries. The first one was performed on December 3, 2018 and the second one on December 31, 2018. I had gone to at least three (second opinion) on helping my current situation. I had vowed never to go under the knife, but the orthopedic explained that if I did not have revision(s) surgeries lord know what would happen due to abnormal posture. As for the back I had to get an Epidural (11/15/2018) shot for the nerve and back pain, which did not really provide relief. The doctors tentatively stated that surgery would eventually be needed for the lower back and the right hip too. As you can see at 51 years old, I have been through a lot and I am still not 100% and not Permanent and Total due to my injuries. Any advice or help from your firm would be great. Please help!!!!!!
Thanks in advance.

Jim's Reply:

You're in the sort of fight that many veterans get into trying to reach that final nth % to get to 100. The problem is that you're now caught up in the minutiae of details of rules and regulations that VA thrives on...they live for this stuff. VA can do this a lot longer than you can so I think you're fighting a losing battle and I don't want to contribute to that. You're clearly eligible to apply for the 100% TDIU benefit, you aren't gainfully employed with all the disabling conditions you cite. The TDIU or unemployability benefit is the exact same benefit as the one you're working so hard to achieve. The money is the same, all the peripheral dependents benefits are the same...TDIU was made for your case. So...apply for the TDIU rating and stop picking at the tens of thousands of nits VA can generate for you.