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Appeal on docket, opinions on

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Eileen Gabellini

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 My name is Eileen. My appeal is going before the BVA seeking an increase for specific phobias increase evaluation for hearing loss earlier effective date for both increase in the valuation for residuals of right clavicular fracture which is currently 10%. Earlier effective date for residuals all right clavicular fracture. Evaluation in excess of 40% for traumatic brain injury. Service connection for PTSD. Entitlement for TDIU. I am currently at 80% disability. I am paid for 60% disability. 40% is for the brain injury 10% is for phobias 10% is for tonight is  at 80% disability. I am paid for 60% disability. 40% is for the brain injury 10% is for phobias 10% is for tinnitus tonight us tinnitus. 0% for a hearing loss. 10% for right clavicle fracture. I can't remember the other 10% of the moment.

 0% for a hearing loss. 10% for right clavicle fracture. I can't remember the other 10% of the moment.  I have a letter from the neurologist at VA in North Carolina. His statement is pretty long but the summary is after this type of injury when I would expect to see memory loss and poor organizational skills from the temporal lobe damage, mood swings and panic attacks and powerful emotional outbursts  from the frontal lobe damage as well as depression from the temporal and frontal lobe damage. She has poor balance and dizziness which is also consistent with head injury. These ongoing and permanent effects of her head injury Will not improve. They affect her daily. She is unable to function in any employment situation due to these problems Will not improve. They affect her daily. She is unable to function in any employment situation due to these problems. 

 My legal representation also had a vocational expert review my entire file and interview me about the effects I experience from my brain damage. When we got to the part of dizziness and disequilibrium  he said that he didn't need any more information from me. Do any of you have an opinion as to how you think this may play out? I would appreciate your input. It's been a long eight years getting to this point 

Edited by Eileen Gabellini
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Ok, so you asked for an earlier effective date, and an increase,  to include TDIU,  which was apparently denied by the regional office.  

What reasons and bases did the RO give for denial of an earlier date and for the increase(s)?   What reasons did they say you were not TDIU?   

 

Usually, when I submit an appeal, I like to demonstrate how the reasons and bases were erroneous or not applicable, or contrary to law.  Did you do this?  

Have you ordered a copy of your cfile, or do you have it already?  

Mostly, EVIDENCE wins cases.  It sounds like you have some good evidence, at least, for TDIU based on what you posted.  Im assuming you have not had substantial gainful employment recently.  Have you been awarded Social Security disability?  If you have, and Social security lists conditions which are service connected, then this can be probative evidence. 

In order for us to give a specific guess for your claim, we need the above details.  

Are you represented by an attorney, by a VSO or neither?  

 

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My previous atyorney did not file form necessary for TDIU claim  when it went before the regional office about three years ago. I was awarded a Social security disability not based on earnings , for hcv prior to original desicion from va giving me 50%. My income from VA disability exceeded what I was getting from Social security not based on earnings. As a result social security came off of the table. I had hcv when released from service in 1981, and didnt have it going in in 1979. No attorney wants to pursue that. I may eventually. Also theVA treated me second time for HCV and wound up with hashimotos post tx as side effect of treatment. Saving that fight until this one resolves.

i was self employed about 8 yrs ago. My earnings were 6 to 7,000 for reiki business. I was married almost 5 yrs prior to that, low part time earnings. A year.  Of school post divorce. I have never earned over 10,000 a year in my entire employment history.

THE hCV tx really scrambled my brains to hallucinating visually and auditorry on tx.  I lost the ability to do a simple math computation. Basic grammar also flew out the window. After the treatment my thyroid was low, and then I suffered severely from autonomic dysreflexia and felt like blacking out anout 18 times a day. My son would leave me at  hospital lobby so I could get to er if needed while he went to school, so I wouldnt keep disrupting his classwork. C4 through c-6 were impacted in MVA that did this damage to neck and brain in service.In last three years VA finally did MRI showing frontal, temporal lobe and diffuse shearing axonal injury. It affects many things, bladder, bowel, balance, peripheral neuropathy. My GAF score  45 and about that several other times scored.

i was represented by Paul Goodson inCharlote NC who didnt even file TDIU properly. My appeal after DRO he claimed to have filed didnt show up for almost a year with  VA. Not on e benefits or the 800 number you call. I asked for specific information to give VA to find my appeal, they refused and fired me as a client as others needed the time I was wasting with the questions.

After that I found A qualified attorey in Providence Rhode Island. They have been doing a very excellent job. I think they will get the TDIU and hopefully increases in important issue. I am only rated mild TBI.  The neurologist who gave evidence in a letter for my claim stated that he sees mild to moderate brain injuries every week with no changes whatsoever in an MRI. To be so evident in his opinion is significant to severe traumatic brain injury. 

State that I am a patient in the neurology clinic. That I have a history of a head injury in a motor vehicle accident while in the military. This is an extremely severe head injury. Severe cocusdion with prolonged period amnesia. Lacerations to head and left arm. Needed physical therapy to regain use left arm, and then all the other info I gave you. I did not have this evidence at beginning of claim or at RO level. 

ENT doc gave evidence as likey as not for hearing loss and tinnitus to TBI or mechanical exposure on flight line. This neurologist now includes the vertigo to TBI, which The ear doctor without more information like MRI was unwilling to opine upon. At that time I didnt have MRI.

my GAF score is 45 and close to that number several other assements. My memory getting worse. Missed 4 medical appts last few months. I never miss appointments. I no longer drive and struggle to even be passenger in a car from PTSD with car after that accident. Self medicated for years to be able to manage my car issues. Got sober almost 13 yrs ago, and cant manage driving sober. I get lost on buses and forget rout or how to get home even after doing same route several times.

VA consistently denied me PTSD. It os on my Axis treatment plan VA. I went to PRRC

 and focused specifically on PTSD from MVA in service. At RO only gave me phobias. Does this answer your question? I hope so. 

Edited by Eileen Gabellini
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The good news is that the "mandantory TDIU form" is recent, so that error several years ago should not hurt you.  (I think the IU form became mandantory in April 2015, but others can chime in).  

Alex Graham is way more qualified to opine on Hepc or HCV, as Im not familiar with those claims.  Maybe he will see this and chime in, assuming you filed for HCV.  

If you have "the law firm in Providence" that I am thinking of, then you are likely in good hands, and I am not going to even think about making a suggestion in conflict with what they tell you to do.  

Given what you posted about driving, and forgetting things, I would heartily recommend you let the law firm handle it, as the law firm in Providence that I am thinking of is one of the very best.    It sounds like they are doing a good job for you.  

YOu also forgot to answer my question about the "reasons and bases", but you can bet your law firm is on that like white on rice.  Im not being critical, but just trying to be helpful.  VA sometimes sends letters that request information.  Like yourself, I forget things.  I forgot to respond to a letter from VA back in July, and that did not exactly help my case.  I read the letter, intended to respond, but could not back then, and then forgot.  LIke the advice Im giving you, Im taking it myself.  Im turning mine over to the lawyer, and persuing hobbies that I love.  Im visiting grandchildren, and will try to visit another VEt, so Im not always worried about "my" problems.  If I try to help others, then I wont be so worried about my own problems.  

I would humbly suggest,  you "get" or participate in  a hobby something different than anything to do with VA.  Fishing.  Play cards.  Collect stamps.  REading. Make friends.  Go to church.   Do what you enjoy, and what makes you happy, and let the lawyers do their lawyering.

YOu can ask your lawyer questions, but dont call them every day or even once a week.  They dont like being driven crazy with questions, and you want them on your side, not frustrated from trying to answer endless questions.  If you are seeking emotional support, dont ask your law firm to do that, get that help from a mental health provider (counselor) at VA.   

Edited by broncovet
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That is why I got legal representation. I dont really know what you mean by reasons and bases. I do feel like in excellent hands with the attornies representing me. I did some research, and another attorney here in Charlotte highly recommended them. I have been quite impressed with their excellence, especially after the first ine Goodson, who I am certain was much less competent.

I am a mom of one working on his bachelors in social work now. Deans list again last semester. He makes me proud, and he is so great helping me get to va appts and many things when my health is worse. I garden. I am involved in helping feral felines. Trying to get into doing trap and relase to stabilize the population of our local ferals. I do phone banking for CVA. I try to have a life. Of course friends, baking, and reading. I want to learn how to do some basic crochet so I can make my son an afghan.

The HCV I am not claiming, because everyone tells me its too hard to win. The damage from a treatment the VA provided for HCV would be much easier, and will pursue after this resolves.

keeping my fingers crossed . Its just very nice that there is light at the end of the tunnel, and that life may become less hard. Thanks for your. Opinion and suggestions. I have read stuff here a number of times. Years back I looked in but just read. So i will let you know how it ends up. Pretty sure I will get tdiu. It is better to get there i tjink the word is schedular. I know one thing is I wont quit trying to get it all sorted properly. 

 

 

Edited by Eileen Gabellini
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Oh yes I do not call or text my representation in less they want something from me, or a serious question. They decline teleconference. I was sure they had good reason, but did inquire what it was. That was our last communication. I am just waiting. Im sure they will let me know when there is news. 

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When VA makes a decision, the law requires they give reasons for doing so.  In other words, if they deny you, they have to say "why".  The reasons are important, especially when you go to appeal.  

Many lawyers appeal decisions that have a faulty or lacking reasons for decision.  If requested by the claimant, the court can review the reasons for the decision.  

Generally, the VA has to use the criteria to rate you.  The criteria for TDIU is 

1.  You have to be unable to maintain substantial gainfull employment,

2.  That has to be to conditions that are service connected.  

    If the VA denies, and uses "non criteria", then I usually nail them on that.  In other words if the VA says,

"we are denying your TDIU"  and the reasons and bases is because "we dont like people who cheer for the Broncos", then that wont fly, because that is not one of the criteria.  

You often see BVA decisions that state you either do/dont meet the criteria.  The other stuff does not matter.

If the VA denies your TDIU, they should explain what evidence provided showed you either WERE able to maintain employement, OR, that your inability to work was from something else, not SC conditions.  

Often the VA will say things like, they think you can do "sedentary" employment, especially if they are applying for TDIU because of foot or knee problems.  

Here is one of the regulations describing TDIU:

4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.
(Authority: 38 U.S.C. 501)
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.
Edited by broncovet
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