tdiu No Sleep!!!!!

[cowboys4life]

I could not sleep at all last night thinking about what I am faced with. First off I know that the VA must require that evidence must include the veterans statements regarding his or her level of impairment when deciding the claim. I know someone must realize that if there is no input as the level of disability from the veteran then all the cases would be truly one sided and there would be no need for us to say anything about our conditions if they are going to be systematically omitted. I looked over my decision from the BVA and missing from that decision was all the lay person statements and my statements pertaining to the effect of my condition on my daily life. I also could not find reference to all the medications that I take for my heart conditions. As a matter of fact it seemed that the BVA wanted to get me to 100% exclusively by way of my pes planus and plantar fasciitis. They conveniently ignored my coronary artery disease while disproving it by simply citing the many tests that I had over the past 15 years regarding level of ejection fraction and METS. I know that is a noted procedure that gets a lot of weight, but there is a regulation that says the VA just can not submit test verbatim without giving the board the total picture of the veterans disability to include any statements from the veteran and any other laymen that give statements. I just do not know where I saw that information. I am also worried about the BVA use of the two medical doctors' opinions given back in 2002 and the weight that is given to it, stating that, that evidence outweighed the most recent opinion made by the C&P examiner. I have included a portion of that decision for you guys to look at. I posted it elsewhere because I did not quite understand that I could have a stand alone post on this site. I want to know a couple of things so I can get on with my life and not worry myself into the grave. One. Am I grasping at straws when I say that the BVA did not consider my total disability picture when it did not reference my assertions about the effects of my condition on my daily life, regarding every test result and opinion as the whole truth from my previous exams with respect to coronary artery disease. Two. Should I consider filing for reconsideration  to the board or an appeal to the CAVC. Here a copy of the decision and you tell me if I have an issue or I just do not understand the application of TDIU

[Berta]

Good to "see" you too Chris....

These were reconsideration requests filed by members here  after the RO decision was made.

This link here has the regulations they finally put into M21-1MR:

http://community.hadit.com/topic/65759-reconsideration/?page=5

but I need to search for some of the members here who did file this way and will post what I find. One member was advised by their lawyer to file for a reconsideration and one by the VA, after the 2016 regulations came out.I am sure we had a few successes on that type of request.

In my case, I should have used a tactic I have recently asked the Secretary to consider and put into a Fast Letter and M21-1MR, etc ...for my SMC CUE claim.(2003) It was awarded ,and never went to the BVA but it took 6 years.

Since then instead of asking for Reconsideration (which does NOT stop the NOD clock) I have immediately asked the VA to CUE themselves on a few decisions, I received, most recently a 1151 HBP claim.I got a denial in March 2015 and then an award in April 2O15...that is here somewhere.

Also this tactic worked on my 2010 AO IHD Nehmer death claim.They actually denied the claim  at first (2012)stating my husband ( a Vietnam Combat veteran) did not have IHD inservice per his SMRs. Say what?

I whipped out a GCY claim ( what I call a Go Cue Yourself claim) within a day later and they very swiftly  awarded the AO IHD claim. Absurd. These Marines were kids in Danang 65-66...none of them probably ever had any heart disease when they were in service.

I called Peggy (800#) at the time  to check the status on the IHD 1151 issue -separate from the direct SC AO issue and she said the AO IHD claim had been denied and then she said Wait a minute , something is wrong with the information here,it says awarded a few weeks later..same claim ..that can't be right.

I assured her that was correct info. I had called about the 1151 issue.

Also I got a double DRO review with this tactic in 2005 and posted a template here because it is the first thing I look for in any decisions we see here...a potential of CUE.

If a Recon request (like the CUE tactic I wrote to Sec Shulkin about) still have a NOD date looming over the

claimant, and the request is based on what is definitely a legal error ( like when they violate 38 CFR 4.6  ,(my favorite regulation for CUE), then by asking them to immediately CUE the decision -that can work faster than a Recon request can. But it depends on what the request is based on.

We have had other successes like that here recently using this tactic.

Under SPOs CUE and Allan's Recent CUE award.That one got me a compliment from Allan and from the VA itself. The tactic works!

My SMC CUE ( 4 CUES in a 1998 decision)and my subsequent recon request was based on the fact that they had completely ignored probative evidence as well as the actual 1998 rating sheet, my best evidence of all I had- the rating sheet itself  ) and they defied the SMC mandate,which I sent them copy of ,as explained in the VBM by NVLSP.They ignored  all that again and I filed my NOD within days of it's deadline.

The CUE (actually 2 separate CUES in 2003 and 2004  were awarded at the Nehmer VARO because I wrote to Phila Nehmer that the claim was  set for BVA transfer but filed prior to my AO IHD death claim and could impact the proper resolve of that claim.After the BS denial they made on the IHD, they quickly resolved all but one part of the claim, I am asking them to CUE it again...and then apply OGC Pres Op 08-97 to it.

Unusual situation.

Husband had FTCA/1151 stroke contributing to death.1997 FTCA/ , 1998 1151 award

Also I proved malpractice on his AO IHD and also his AO DMII. 

Direct SC for IHD death awarded under Nehmer 2012

Direct SC for DMII death awarded at BVA (2010) rendering 1151 DIC Moot.

VA OGC Pres Op #08-97- to me means they have to pay me more $$$$. 

100% SC, plus SMC,plus 100% 1151 CVA.

50% IHD ,direct SC, no 1151 rating, decided in 1998 award.

no rating at all for DMII-both were never diagnosed or treated by the VA.

The DMII award caused a refund of my FTCA offset (which I had to fight for but OGC squared them away on that.) Also I got REPS benefit, and about 6-7 thousand refund to my Chapter 35 degree from AMU and a new Chap 35 entitlement date

sorry for long post........

We all must try to Think Out of the BOX.And Never Give up.

 

 

 

 

 

 

 

Edited March 9, 2017 by Berta

[Berta]

had to add:

You stated:

 "This is because we are working really hard to find cases that can change the law for a lot of Veterans, especially cases that implicate constitutional violations we think the courts need to set standards for. "

Hooray for that!

My own personal lawyer asked me to help him with his VA claim and was shocked that we do not have Discovery rights. 

They should attach C & Ps from the farm out doctor to ebenefits or send them to the vet as soon as they get them.I think they only still give vets access to  C & Ps done at VAMCs.

Also the so called 5103 VCAA  waiver- I managed to use that as part of my recent 1151 HBP CUE and also to wrangle it into my next CUE on something else.

We cannot CUE DTA violations But we can CUE the result of the violations.In my case the big 5103 violation I got last year,like most of my other CUE claims caused a violation of 38 CFR 4.6.

BVA agreed with me in 2009 when I asked for a remand because my VCAA rights were violated.

But they remanded instead for another posthumous C & P exam. I was able to get a copy right away because it was done at the local VAMC, and sent my lay medical  rebuttal to the BVA.They agreed it was too speculative. 

I had 3 great  IMOs, they had 3 crap IMOs-and the VCAA violation they said ,at that point was moot, because they awarded.But it  was sure not a moot issue for years after 2000 when the VCAA caused the backlog to grow with remands because VAROs were violating the VCAA for many many claimants.

 

[cowboys4life]

Waiting on decision notification letter. Went to DAV and rep said original denial was referenced in

award letter which was 2004, I know that the judge gave more probative weight to my 2004 opinion

than the opinion of the c&p examiner in 2016. Letter is on the way and I will know soon enough.