tdiu Missed my one year NOD timeline now what?

[10mtnvet]

Hi everyone been awhile since I have been on here. First of all thank you all for how much knowledge that you guys (and gals) contribute about VA issues for veterans like me. I fancy myself to be pretty sharp most of the time but this process (va disability) is more overwhelming than anything I have ever tried to do in my life! Like most I suppose I lurk much more than I post but this site has been tremensously helpful for me especially in the really  complicated areas like CRSC. So thanks again really, I truly appreciate it.

My question has to do with what to do when you have passed your one year window to file an NOD. I was on the ball with all of this for almost three years when I was in the IDES process. However, between retiring in 2014 and my wife and I having our first child and getting PDRL and IU 100% I just dropped the ball completely and it is clear now that I need to get back on track. Sorry for the excuse matrix about my lack of initiative rant over. Anyway, I will try to be as thorough as I can and give some backgorund info so here it goes.

• I have a rating from the VA of 90% (final ratings issued Nov 2014) (will provide a detailed rating breakdown if necessary)
• I am being paid at the 100% level based on individual unemployability (back pay is up to date on that)
• I am on PDRL or permanently retired 
• I have an incorrect rating regarding post traumatic headaches/migraines, currently 30%
• I have a DBQ regarding these headaches which clearly meets the 50% criteria (severely debilitatitng several times per week) signed by a VA neurologist (dated 12/12/14) this was done a few months after my ratings came out 
• I also have issue with some of my other ratings and would like to file for an increase for those as well

So with all of that being said I have passed my one year mark to file an NOD. I was advised by a rep from WWP who was hadling my case (and then dissapeared) that I should not rock the boat and file all of my greivances with my ratings. The conversation went something like this. Me "A bunch of this stuff in my ratings is incorrect especially about the migraines I have a DBQ to prove it" WWP "well that's all good but you are being paid at 100% and you are permanent and total so there is nothing to worry about you won't gain anything monetary by filing and you are taking a risk." 

My opinion about that (and I should have been more assertive and went with my gut) is that since I meet the criteria for 100% schedular that I need to push to get it and further more it is in my best interest to make sure all of my ratings to be correct. Especially since I do plan on constantly trying to get better and hope to someday work again. Of ocurse if this happens now (me working) I will lose a ton of benefits. 

? Knowing that I screwed up by following bad advice and missing the timeline what is the proper termanology for what I should try to do next? Reconsideration? File for increase? Make a new claim? All of these terms are so confusing to me.

? Also I struggle with several cognitive defecits in addition to daily headaches and migraines and I am very apprehensive about going about this alone. Is there a good VSO or other advocate resource someone could recommend. I have struck out now with my AW2 advocate, Richmond VA and WWP. Not sure where to turn for help now? 

? One final question and I can post this in another section of the forum if necessary has to do with getting an attorney. Since I am being paid at the 100% level I don't believe that there is any back pay for me to collect or at least there is very little monetary gain to be had from my case currently. Most of the attorney websites that I have looked at particularly dealing with disability and va benefits want a percentage of your backpay. I am afraid if there is no backpay to be made that this will be a hard sell to get a good attorney on my case. I may be way off base with this assumption but I would be very interested in hearing any thoughts on this.?

 

Sorry for such a long post I really tried to make it as concise as I could. Thank you very much for your time I am looking forward to hearing from you guys. 

[Vync]

Welcome back!

Regarding WWP telling you not to rock the boat, start by reading this first. It should answer a lot of your concerns.

http://www.hadit.com/6-reasons-keep-pursuing-va-claims-appeals-reach-100/

[broncovet]

VYNC has given good advice.  However, I dont think I would persue chasing an increase if I were TDIU unless there was "something to gain".  

That "something" could be SMC S (statuatory) which you can get if you are 100 plus 60.  I have not read your claims file, but sometimes VA gets the wrong effective date, and its well worth persuing for years of retro.  

As far as you going back to work, that may be problematic.  The defination of TDIU is "unable to maintain substantial gainful employment" and, that this is likely to continue.   

If you were not unemployable and VA approved you for TDIU, you going back to work suggests this award was made in error.  

There is a real problem for you tor try to get to 100% if you gave up your IU.  Do you understand you need another 50% to go from 90% to 100%, because of "VA math"?   

Personally, my guess (without looking at your file) that it may be worth it for you to go for SMC S, or an earlier date, but asking for an increase then going back to work when you are IU, will raise big red flags.  This would be going down a rabbit hole to nowhere good, and there are many pitfalls down that rabbit hole.  Did you also get social security?  

[Vync]

I did not have time to respond in full earlier, but Broncovet covered most of it. Going from 90% to 100% is definitely an uphill climb for most veterans. 

If you are IU, then seriously consider filing for SSDI if you have not already. Unless you are terminally ill, they like for you to already be out of the work force for a while.

As indicated in the link I provided, earlier effective dates can be worth it, if they are a factor. I will explain briefly. With rating protection of 5 years, the VA must prove you have materially improved if they wanted to reduce ratings. At 10 years, SC status of a disability is protected. At 20 years of maintaining the same %, the percentage is protected.

Additionally, SMC would be an option. With some of side effects of medication, ED is often a factor and could mean an SMC-K award.

[10mtnvet]

Thanks for the quick responses guys!

Thats a great link Vync. That is one of the videos that I watched that sort of got me motivated again to get my records and ratings corrected. 

In regards to the va math I believe that my rating is actually over 90% but doesn't quite make the cutoff for 100%.  The WWP guy told me that he added things up and that correction of the post traumatic headahces would push me to 100% scheduler. I need to verify that for sure but I think it is correct. 

All of my ratings are dated as of my retirement date june 2014 but not sure I would still qualify for some retro due to smc s maybe. 

As far as going back to work I should clarify it is certainly not my intention to give up the IU and I do not see myself going back to work anytime soon or in the near future. Still I can't help but hope that maybe someday they find a migraine treatment that works or a new medication etc. (I am only 30) Whatever the case may be and all the sudden I find something that I can do and contribute I would like to be able to do it and not worry about jepordizing my family financially. If that happens 5,10,15, 20 years from now I don't want to look back and wish that I followed through and had my ratings corrected that's all. 

Great advice about ssdi. I have filed for that and am recieving it it has been a huge help to me and my family. 

I know all of these cases are different based on certain ratings etc. thats why I was/am considering getting an attorney or advocate to review my file and the conditions. It is all just so complex that I am almost positive that I am missing something. 

[Gastone]

Been 15+ hrs since your "What to Do" post, I trust you've at least started an FDC for Increase on your E-Ben site, right? If you haven't hit the "Submit Button," consider attaching a "Sworn Affidavit" and Pdf's of your supporting Medical Records to the FDC Filing.

Give VA Lawyer, Chris Attig's post about filing claims after your rated IU or Scheduler 100% a read. Check out his Vet Law Site, see what he has to say regarding, "What to do about missed Filing Deadlines." He has avery interesting discussion regarding the Pros of using a "Sworn Affidavit," as opposed to the generic VA 21-4138.

Way to early to think about needing an attorney. As to getting a Lawyer at this point, Why? More to the point, your not on Appeal and I don't think you mentioned any Denials, right. VA Lawyers can't be hired if your not on Appeal.

 With no sizable Retro (area of $20+K) on the table, it would be very difficult to hire a Fee (20% of Retro) based VA Appeals Lawyer. You might want to find a Local VA Appeals Attorney and get a Free (Face to Face) Consult regarding your situation.

Semper Fi

[10mtnvet]

Gastonia thanks for the response. I have not yet filed an FDC truthfully I didn't know what that was until I looked it up after reading your post. I'm not sure if I have received any official denials yet there were a couple of things that I claimed that I was not rated for that I disagree with but I'm not sure if that's the same thing. I think finding a local va attorney and trying to get in a consult is a really good idea and I am going to get the ball rolling on that Asap. 

 

So it appears that what I need to do is file for an increase via an FDC for the conditions that are already SC?

Also based on the article by Attig I need to get a sworn affidavit together rather than use the VA form. 

That is with the caveat that I should be careful to only do this with the conditions that I have extremely strong evidence for to help mitigate the risk of a reduction. 

Is there any strategic reason you can think of to submitting everything at once rather than one or two now and one or two later?

I should explain that a little better. For example I have strong evidence now that my post traumatic headaches should be higher via DBQ. However my wrist condition has also gotten worse but am just now seeking treatment for it.

So in this case can I go ahead and do an FDC for the headaches and other conditions that I have a strong case for and hold off on the wrist and other issues that I need to accumulate more medical evidence about?

I would assume that doing this would get me in the system and get things moving on the headache issue rather than waiting a year or whatever it takes to get my documentation in order for the other issues. I apologize that all may not be worded correctly or make much sense  but that is the best way I could think to describe it. Also spell check on my iPad is out of whack sorry for any misspelling, punctuation. 

Edited August 11, 2016 by 10mtnvet