Still Loosing It, Help Please.

[livingrock21]

Hello To All Again,

I haven't posted here for a while! I'm still in the same boat and on my last appeal. Here is a link from my original post http://www.hadit.com/forums/index.php?showtopic=15124&hl= .

A little background. I got medically retired from the Navy August of 07. Filed my BDD claim July of 07. Got my findings in Nov. of 07. When I got my findings I immediately saw an error on the VA's part. They rated me per a condition that I didn't have, nor was it even really related. They had me rated under "Paralysis of the median nerve" (unsure of the VASRD code, believe it was 8517). I should have been rated under Erythromelalgia, diagnostic code 7119.

I've been appealing this since. I'm on my third and final appeal and am very discouraged. At one point I thought I was going to recieve help from a VFW Service Officer. He said he would take my claim to the STAR Review, and it would be fixed there. Seemed as though he was going to be very helpful, only to have him come back and say they were no help.

On my last Statement of the case, they agreed they made an error rating me under paralysis of the median nerve and agreed to rate me under erythromelalgia, but didn't change my percentage as they should have.

_____________________________________________________________________

Here's an excerpt from the VASRD on this particular condition (this pertains to my questions:

7119 Erythromelalgia:

Characteristic attacks that occur more than once a day, last an average

of more than two hours each, respond poorly to treatment, and that

restrict most routine daily activities.................................................................. 100

Characteristic attacks that occur more than once a day, last an average of

more than two hours each, and respond poorly to treatment, but that

do not restrict most routine daily activities........................................................ 60

Characteristic attacks that occur daily or more often but that respond to

treatment.......................................................................

...................................... 30

Characteristic attacks that occur less than daily but at least three times

a week and that respond to treatment................................................................ 10

Note: For purposes of this section, a characteristic attack of erythromelalgia consists of burning pain in the hands, feet, or both, usually bilateral and symmetrical, with increased skin temperature and redness, occurring at warm ambient temperatures. These evaluations are for the disease as a whole, regardless of the number of extremities involved.

________________________________________________________________________________

_______________

My questions:

Is there anything else I could be doing? I'm so scared their going to come back and say everythings fine and deny my appeal to correct the percentage.

I have a letter from my active duty dr, in my medical record, stating that the attacks occur daily. They last more than two hours, and do not respond to treatment. So how could they have me rated at 30%?

Also, while in the appeals process, I have been granted Social Security Disability due to this condition. If you look at the rating criteria, the diference in 60% and 100% is the ability to perform daily activities. I can't do the most daily activity, work. Should I submit evidence as to the fact that SSD found me disabled? I called today and my appeal is in the DRO's hands. I was told it's been there for atleast the past 5 months.

This is off topic with the VA claims processing, but.... I don't get SSI because they include my VA compensation. I'm rated at 40%. Are they allowed to use this as income? I've seen people on here that are 100%, getting SSD and SSI. What am I doing wrong? I'm only at 40% and can only get SSD?

Thanks for your help in advance. Hopefully someone can point me in the right direction.

[livingrock21]

You guys are awesome!!!! Def. helping, and easing my mind!

Rental guy,

I'm def. taking everything you said into consideration. Need to discuss everything with the wife, but this maybe the route I take.

yes, that is a CUE. It will be a uphill battle, but with the correct information you can win it. You need to first settle the appeal at hand on way or the other. If you have filled out a Form 9, then you are headed to the BVA, and there is nothing a VSO can do to stop it. He is full of bologna. And yes, waiting for your claim to be decided at the BVA will take well over a year, and two to three years is a more likely time frame.

I still suggest your first action should be to contact the VARO and set up a time to review your C-file. That way you will know exactly what action has been taken by the VA and what you need to do to fight it. You will know right away if your claim has already been forwarded to the BVA. Next, if I needed the money, I would withdraw the appeal, and file a new claim for increase on that particular disability. Then, after I had secured my increase, I would file a CUE claim, based upon misapplication of the regs concerning the dx code, and using the current increased evaluation under the correct dx code as evidence. That should be able to gain you the retro money that you lost by giving up the appeal to seek a quicker monthly income.

Give this a lot of thought. It is a tough decision to make. You are doing the right thing by asking as many questions as you can and getting as much information as you can before making a hasty decision.

Berta,

I haven't yet got the SSA documentation to the VA. My Navy dr.'s statement was the first page of my SMR, so they should have taken it into consideration, but apparently didn't.

Also, I don't think I'm allowed to recieve TDIU due to their low ball rating. I'm only at 40%. Which is unbelievable, but fact. SSA had the same records (SMR) as the VA, and granted me SSD. How is this possible? It shouldn't be. I know they fall under different rating systems, but SSD is supposibly harder to get from what I hear.

To all,

Should I wait and see if this STAR review pans out before I'd possibly disregard my appeal? Since my VSO would be able to get a "reconsideration" with the SSA evidence, wouldn't that be a viable option also? How long does the STAR review process usually take? Anyone know? My VSO made it sounds like it could be done in weeks once I'd get the SSA information to him.

I couldn't get an appointment to get this information from SSA until the 14th of Febuary. I may just go in with out an appointment and talk to a representative. I'll have to sit there for a while, but would probably be able to get the info. The woman that originally did my SSA claim was very helpful, and told me if I ever needed anything to come visit her(her husband was also a Ret. Navy Vet).

Thanks again for all the great info so far!

[Berta]

Here it is-

There is nothing on the TDIU form that states a vet has to have a specific % of SC to apply for TDIU.

The VA only considers TDIU if the rating gets up to 70%.

I had a NSC vet. Based on his disability info I sent him the TDIU form and told him what else he had to send in with it.

(such as his SSA award info and his private treatment records.

In an astonishing 4 months he got 100% comp-SC TDIU-PTSD.

Also my husband died at 30% with a TDIU form claim pending.

I re-opened his claim after he died.

3 years later (they failed to get his SSA records many times -he got SSA for PTSD)

he was posthumously awarded 100% P & T for PTSD with a retro date one year prior to the date of his TDIU claim- they used the SSA date of unemployability as his EED for the retro.

It does not matter what % a vet has if their SC renders them unemployable.

VA will only infer TDIU and consider this if the vet is at 70%.

Also any vet who was dropped from the VA Voc Rehab program due to a Voc Rehab counselor documentiong that their SC disability prevented them from continuing Voc Rehab program- is unemployable-bexcause they are unvoc rehabable and they should immediately apply for TDIU if they have documentation from Voc Rehab of this type.

TDIU_form.pdf

Edited January 23, 2009 by Berta

[Berta]

If you tell me what VARO this is I might have some contact phone numbers for you.

[livingrock21]

It's the Pittsburgh VARO.

If you tell me what VARO this is I might have some contact phone numbers for you.

[carlie]

living,

If this star review may produce a decision soon, I would hang on a bit and

continue waiting for that decision.

Then once the decision is made -- then your can argue the EED due to

inaccurate application of DC.

jmho,

carlie

[livingrock21]

Ahhh... was just typing a response and lost it due to spelling check.

Berta,

If i could get this TDIU rolling that'd be great. Atleast it would help with the economic hardship I'm in right now. Can I do this while I have the appeal in? How does that work? Would the claim have to be final first? Should I try to get TDIU through my VSO. He never mentioned it, but if I mention it to him, maybe he'll do it? I would have thought as soon as I mentioned getting SSD a bell would have went off in his head if I was elligible for TDIU.

I believe you as far as the regs, I want to believe you anyway. Does eveyone else agree also?

To all,

Should I wait to see if the STAR review would pan out before withdrawling my appeal? MY VSO said if I can get the SSA documentation to him, it would be enough for him to make the VA "reconsider my claim", and while it was being reconsidered he could take it to the STAR review that's in the building. What's the usual out come of the STAR review. Time frames? Anything else I need to know about the STAR review.

Thank you all. You really are great!!!