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Your Claim Is Currently Being Forwarded To Va Central Office In Order To Make A Determination On Iu Based On Extra Schedular

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Limekiln Vet

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As the topic title suggests, that is the latest status of my claim. I applied in Dec. 2008 for various claims, was denied for all except 0% for a skin condition and I appealed the most important one, that of Ankylosing Spondylitis which they said was not service connected. It goes back to my service from 1977 to 1985, and was quite difficult to make the nexus.

Around December of 2012 I won the appeal, and was awarded 30% for AS. And the skin condition claim was remanded back by VBA. Then in April 2013 I was awarded various percentages for the skin conditions, 50%, 10%, 10% and 2 at 0%.

So I was then 70% combined. I then opened a new claim for IU, I have been unemployed since 2002 due to the AS. I was approved SSDI specifically for the AS, and also have a small amount each month from a LTD claim, all going back to 2002.

My thought was that now I was 70% combined, with at least one at 40%, barely squeaking into what I considered to be eligible. Around 8 months into the latest claim (February 2014), I was notified of this current status since AS being the cause of my unemployment was not the 40% rating, only 30%. I considered this rather postive, but now my research here and other places indicates to me that approval of such claims are almost non-existent, i.e. IU via extra schedular.

I had what appeared to be a very positive C&P exam in December 2013, and the VA has absolutely everything they need, such as all the Social Security information, and LTD records, and I receive ongoing treatment for AS up to and including just having started Humira. And I also had open heart surgery at the VA hospital in October 2013, which probably has nothing to do with this claim, just mentioning it.

So what does anyone think? Am I right in concluding this is a nearly impossible claim to win? It has been about 6 weeks since it was forwarded, does anyone have a sense of how long that step might take? And finally, if approved what should the retro date be? I think there is a case to suggest it should go back to December 2008, since until the appeal was settled I was unable to make the IU claim. Thanks anyone!

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Thanks Berta, I hope your optimism turns out to be true.

"Are you able to scan (cover C file number, name and address first)
and attach here to a post the VA's reasons and BAses part of the decision as well as the Evidence list they used?"

I have never received anything from them since I filed the claim, I rely on the information in ebenefits and replies via email regarding the status of the claim. Or did you mean once the claim is settled post that information?

"VA Fast Letter TDIU claims # 13-13."

That letter is confusing to me, and most cerytainly there is no part of it that I have experienced in this claim, however it may explain one thing. When I went for a C&P exam last December, the questions the doctor was asking seemed divorced from the issue I thought was at hand. I asked him what he was asked to do, and he said he was to examine me for an increase for the AS, and I said but I merely filed for IU, which he said he was not aware of, but we moved forward on the presumption that they were related subjects.

I believe they have mishandled this claim, for a couple of reasons. Two months ago it was in the preparation phase and I was quite excited, then it moved back to gathering of evidence, with the following information being given on ebenefits "Change of Status: We determined that your claim needed additional review. If additional evidence is needed from you, you will receive a letter from us explaining what is needed."

Secondly, they were waiting for months for VA Form 21-4192, which I specifically told them would not be possible because the company was out of business. And, referring to their form M21-1MR, Part IV, Subpart ii, Chapter 2, Section F (I had not been employed in 11 years), I told them they should not be waiting for that form, because their own guidelines indicate "Exception: Do not send VA Form 21-4192 to the Veteran’s last employer if it has been more than five years since the Veteran last worked." They very well knew the dates of my employment, as stated in my application for IU.

"Something seems wrong here and I hope the VACO referral isnt just to stall".

I agree with you there Berta, and I wish there was something I could do to get a better understanding of what is going on. I do not think there are any questions remaining on my claim, I either qualify or I don't.

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"they were waiting for months for VA Form 21-4192, which I specifically told them would not be possible because the company was out of business. And, referring to their form M21-1MR, Part IV, Subpart ii, Chapter 2, Section F (I had not been employed in 11 years), I told them they should not be waiting for that form, because their own guidelines indicate "Exception: Do not send VA Form 21-4192 to the Veteran’s last employer if it has been more than five years since the Veteran last worked." They very well knew the dates of my employment, as stated in my application for IU."


Good for you.!...you can use M21-1MR against them...and you are right ......they know the reg.... this is one more stall in my opinion.

Do you have a vet rep?

This other new vet here has a similar situation as well:



The VBM (NVLSP) 2013 edition on page 371 states:

"Although practitioners and the court describe a "claim" for TDIU,in discussing veterans seeking entitlement to TDIU, this is actually part of the determination of an appropriate rating."

They cite Rice V Shinseki 22 Vet App at 447. Rice is here under a search.

Also the VBM makes the point that TDIU can be "inferred" when the evidence they (VA) has triggers them to consider it (evidence such as an IMO, Voc Rehab document, SSA award etc....my added statement here not theirs.)

Also on this same page (I am not allowed to post too much from the VBM due to copyright laws) they reference Servello V Derwinski and make the point that I made here in the past that a TDIU EED can be more favorable then the 21-8940 filing date but I have explained all that here already under a search...but something for any vet with TDIU claim should consider.

The favorable EED date was the only thing the VA did right first time around in all of my claims, that accrued from my husband's claims.

I have to get my taxes done and need to leave and might not get back in time to call NVLSP about this today but sure could call Monday ,if based on the info here, and other replies , and opinions here ,as this seems to be something that is causing VA to make errors ,perhaps in their interpretation of the Fast Letter.



The Fast Letter was not discussed in the latest 2013 version of the VBM.

I just dont get this.....The VA had evidence that your disability rose to a level that prohibited employment and they continued the same rating instead of realising that "this is actually a part of the determination of an appropriate rating" as quioted above from the VBM.(by NVLSP)

NVLSP National Veterans Legal Services Program These are pro bono lawyers who won the Nehmer case and have enhanced the comp of AO veterans (and AO survivors of AO vets like me) by getting millions in compensation for them over the years due to disability from this weapon of mass destruction ,aka Agent Orange.

As a hardcore claimant I sure know like others here, that VA makes many errors due to lack of basic knowledge of VA 101 but those who do know what they are doing at VA can snafu and fubar a decision ,in their favor , and they hope we never catch their errors and just walk away.

What also bothers me here is that Extraschedular consideration requests from the ROs are not very common.

I think they did this as a stall tactic but maybe others here will chime in and enlightment me on this whole situation.

,

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And to add, if this is plain BS from the VA, ALL veterans need to be aware of it.

The other vet I mentioned with link to---in his case it appears the VA caught their error and called a CUE on Themselves....

That might be the next tactic you could consider.......VACO might fart around with this Exrtraschedular request longer than it would take to teach the ROs how to read.their own regs and M21-1MR.

:wacko:

Edited by Berta
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I just noticed in the fast letter..."

Note
: Request VA Form(s) 21-4192 for the
Veteran’s last year of employment
even if
the Veteran has not worked for five years or
more."
So maybe they were following that? However, I did notify them that the company was no longer in business.
Berta, you are talking about "you can use M21-1MR against them", which confuses me. As far as I know I have no imput whatsoever in this process, in its current stage. I do not have a vet rep.
Edited by Limekiln Vet
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Berta said "I just dont get this.....The VA had evidence that your disability rose to a level that prohibited employment and they continued the same rating instead of realising that "this is actually a part of the determination of an appropriate rating" as quioted above from the VBM.(by NVLSP)"

I got to thinking about your statement that they had evidence already of unemployability, so I dug out the December 2012 award letter, which assigned the 30% rating for AS, and it states "A higher evaluation can be granted under the provisions of 38 CFR 3.321(b)(1); however, a review of all the evidence received did not disclose any unusual or exceptional circumstances, such as those involving marked interference with employment or frequent periods of hospitalization, so as to render the application of the regular schedular standards impractical and warrant consideration of an extra-schedular evaluation by the Director, Compensation and Pension Service."

At the time of the receipt of that award letter, I was thinking nothing but hooray! And I knew much less about this system than I know today. But in retrospect, they had all the information of my SSDI award from 2002, and the information about my LTD claim, both of which were successful applications for disability benefits based solely on AS. I now suspect it was just a stock statement without actual review of the evidence, and as I stated in the OP, I did not get to the 70% level until many months later when they settled the skin condition issues subsequent to the remand by the VBA.

It was only when I got to the 70% level that I became aware I might be eligible for IU; I never thought about it when it was at only 30% for AS alone. I now believe the SSDI benefits alone should have triggered a more thorough process into whether I might qualify for IU. For them to have stated back in December of 2012 in the award letter that there was no "marked interference with employment..." is preposterous. A case for that conclusion is well founded based alone on their now "forwarding" the claim for extra schedular consideration with no additional evidence having been submitted since the Dec. 2012 decision, other than an application having been made for IU.

Unfortunately, none of this matters much, since they have put me in a position of merely waiting in line for someone to pick up my file and move it on in the process, except perhaps getting a leg up on the appeal if it becomes necessary. Sigh...

Edited by Limekiln Vet
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Berta said "What also bothers me here is that Extraschedular consideration requests from the ROs are not very common.

I think they did this as a stall tactic but maybe others here will chime in and enlightment me on this whole situation."

What does the VA have to gain by such conduct?

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