tdiu I "think" My Lawyer Screwed Up

[Army Chic]

Hello everyone. My lawyers filed an appeal for unemployability due to my migraines. I called the 800# tonight and was informed that the lawyers is appealing for a higher rating for migraines, but the thing is, I already have the highest rating. Before getting appointing them, my claim for IU was denied due to me being pregnant at the time, and they didn't do a complete C&P on me. My lawyer isn't appealing the IU though, only the migraines. The C&P examiner for my migraines did give an opinion that I was unemployable, and the rater said there was evidence there, as well. I would like to know how will all of this play out or if my laywer screwed me over? I am attaching the document that is in my c-file. That was from the rater that rated my migraines. Thanks in advance for your help.

Edited February 14, 2014 by Army Chic

[Army Chic]

From my understanding and the way the RO explained it to me today, the lawyer wasn't appealing the IU; he was appealing my migraines, but the Rater said it wasn't possible because my lawyer put the appeal date as August instead of October (when I filed for IU). The way the lawyer wrote up the appeal is what would have gotten it denied. I am still learning this whole process, and I don't mind starting over.

[jbasser]

Have you discussed with the lawyer?

J

[Army Chic]

Tried to contact case manager today, but no response. Left message and will try again tomorrow. Prior to this situation, I did ask them if they think I should appeal for IU becauuse of what the rater said regarding my headaches. I also asked her if the lawyer looked at my c-file, but he didn't. She said he won't look at it until after my NOD is denied. He based the appeal off of the rating that I sent them.

Edited February 13, 2014 by Army Chic

[Berta]

By "appeal" do you mean a Notice of Disagreement?

Can you scan and attach here (cover names, address, C file number) a copy of what the lawyer appealed?

[Berta]

Something you posted bothered me......you didnt get a complete C & P exam..... Although this statement from M21-1MR regards BDD claims of pregnant servicewomen,I believe this link also contains deferment of C & Ps for any pregnant veteran, as it would make sense, and extend proper rights to any veteran pregnant when a C & P exam is scheduled so that the claim could remain open until the deferred C & P ,or the deferred part of the C & P is done.

Did VA mention in anything you received from the, that part of the exam would be deferred?

e. Options for Processing BDD Claims for Pregnant Servicewomen

There are three options for processing BDD claims for pregnant servicewomen:

defer the entire examination until after delivery

rate the entire claim based on existing service treatment records (STRs) and evidence, or

rate any claimed conditions that may be granted based on existing STRs and evidence. Defer consideration of any additional disabilities that may not be examined until after delivery. For example, a claim for an amputated finger could be granted but the rest of the claim might be deferred until the pregnancy terminates.

Source:M21-1MR, Part III, Subpart iv, Chapter 3, Section A

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CC0QFjAB&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch03%2FM21-1MRIII_iv_3_secA.docx&ei=i7z8Uu-iI8mOrAHb7oG4Dg&usg=AFQjCNFFRNQEvFEw1qCWHmEvm9T_haCi-g&bvm=bv.61379712,d.aWM

[Army Chic]

By "appeal" do you mean a Notice of Disagreement?

Can you scan and attach here (cover names, address, C file number) a copy of what the lawyer appealed?

NOD- Notice of intent to appeal

Issue: Rating for headaches, which is addressed in Ration Decision dated August 24, 2012.

Dear Sir/Madam:

Please consider this the claimant's NOD on the above issue. The claimant disagrees with the Rating Decision dated 8/24/2012, and is appealing the above mentioned issue in that Rating Decision. The claimant is requesting the Decision Review Officer process.

Considering the severity of the veteran's headaches, and the fact that she is receiving the highest possible rating for this condition. Individual Unemployability (IU) should've been considered due to the severity of her service connected headaches.

Something you posted bothered me......you didnt get a complete C & P exam..... Although this statement from M21-1MR regards BDD claims of pregnant servicewomen,I believe this link also contains deferment of C & Ps for any pregnant veteran, as it would make sense, and extend proper rights to any veteran pregnant when a C & P exam is scheduled so that the claim could remain open until the deferred C & P ,or the deferred part of the C & P is done.

Did VA mention in anything you received from the, that part of the exam would be deferred?

e. Options for Processing BDD Claims for Pregnant Servicewomen

There are three options for processing BDD claims for pregnant servicewomen:

defer the entire examination until after delivery

rate the entire claim based on existing service treatment records (STRs) and evidence, or

rate any claimed conditions that may be granted based on existing STRs and evidence. Defer consideration of any additional disabilities that may not be examined until after delivery. For example, a claim for an amputated finger could be granted but the rest of the claim might be deferred until the pregnancy terminates.

Source:M21-1MR, Part III, Subpart iv, Chapter 3, Section A

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CC0QFjAB&url=http%3A%2F%2Fwww.benefits.va.gov%2FWARMS%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch03%2FM21-1MRIII_iv_3_secA.docx&ei=i7z8Uu-iI8mOrAHb7oG4Dg&usg=AFQjCNFFRNQEvFEw1qCWHmEvm9T_haCi-g&bvm=bv.61379712,d.aWM

I did put in a request for them to defer the exam for a month, which is seriously how long it took, but I guess they ignored my request.

THE C-FILE WAS NOT AVAILABLE FOR REVIEW (SEE BELOW):

CONTENTION: IU

OPINION: THE VETERAN'S SERVICE CONNECTED CONDITIONS ARE NOTED.

THE EXAMINER

IS CURRENTLY UNABLE TO PROVIDE AN OPINION DUE TO THE FACT THAT

THE VETERAN IS

IN HER 3RD TRIMESTER OF PREGNANCY. HER CURRENT STATE OF

PREGNANCY DOES NOT

REFLECT HER TRUE BASELINE. THE EXAMINER IS UNABLE TO OBTAIN XRAYS

OR PFTS

TO DETERMINE THE EXTENT OF DISABILITY· DUE TO HER CURRENT STATUS.

I just thought it was odd that they completely denied my sinusitis even though it is in my medical records.

5. EVIDENCE:

TAB B: MEB Exam p. 10-17,180

TAB C: Allergies/Allergic rhinitis p. 58, 133

TAB D: Entrance Exam p. 90-96

TAB E: Sinusitis p. 180, 202

TAB F: Loratadine medication p.208

^^This was from the compensation and pension exam inquiry.

Claim Received: 09/27/2012

Claim Type: Compensation

Claim Closed: 08/30/2013

Contentions: sinusitis (New), headaches (Increase), asthma (Increase), individual unemployability (New), VBMS (New)

So I still have a chance for this claim since it wasn't denied until August, 2013, is it possible for me to put in a reconsideration for this? Again, this wasn't the one that the lawyer appealed.

Edited February 13, 2014 by Army Chic