Appealing Retro Pay Percentage

[Jimmer]

Hi Everyone, thanks for all the get info that you have provided, it has helped me, to really begin to understand the nonsense that the VA pulls on us veterans.  I have a question, and your help would be greatly appreciated.  I had filed in 2007 for SC disability on my left eye.  The VA fought this repeatedly, saying I had poor eyesight prior to joining the military (not true) to just flat out denying with vague answers(Doesn't meet the criteria for SC disability).  In October 2013 I had a BVA hearing, in which they agreed my eye problem was service connected.    I was awarded a 10% disability, which I immediately appealed.  In February  2015 I had a eye exam at the VA, and they raised the disability to 60%.  Then later in 2015 they "CUED" themselves and raised the rating to 80%.  I had felt the VA purposely "low balled" my initial award because it went back to February 2007, of seven years.  This is the kicker"  I just found the letter that I had provided to the VA from five different board certified ophthalmologists  that stated my exact vision of both my left and right eye.  Looking at the code of ratings  (CFR 4.79) my rating fell between 50% to 60%.  In other words, the VA had this information, prior to assigning me the rating, and they deliberately ignored it to come up with their measly 10%.  I felt this was done purposely to avoid paying a higher rating covering seven years.  What would be my best way to proceed?  Hire a lawyer,  File a CUE?  As I said, they had this information, (even mentioned it in one of their denial letters)  but choose to ignore it.    Thanks.

[Gastone]

I would discuss your issues with at least (2) VA Appeals Attorneys, preferably "Well Seasoned." Take advantage of the "Free Consultation," what course do they recommend? I'd look for a Local VA Lawyer, for a face to face. The big E firms will tie you up for 20+ min just talking to Assistants and want you to sign a POA right away, not really a good idea.

You may very well be able to handle this yourself, without giving up the 20% of Retro Fee.

Have you filed an FOIA request for your complete C-File?

This could be considered by some to be a long shot, I would prepare a "Sworn Affidavit," addressing your EED issues. All the Med Evidence that you believe supports your contention would be attached to the filing and forwarded to your RO.

VA has a Policy regarding the "Receipt of New & Material Evidence," triggering an Automatic Review of your claim. by a Sr Rater or actual DRO. Will this work, won't know if you don't try it.

Have you discussed your concerns with the MFIC of your VSO located at your RO? His take would be interesting and just maybe, insightful.

Semper Fi

[Guest]

Since you already filed a timely NOD there is no rush in filing a CUE Claim. The greatest and best thing about filing a CUE Claim is that a veteran can file one at anytime. The worst is that you lose BOD (Benefit Of Doubt). You can check with all the Law Dawgs you want but you should allow the NOD to go through it may win your EED even though it may still have to go to BVA.

If you feel you must file a CUE Claim, you can file a Cue Claim on the older rating decision in a Bilateral attack to try to get the same benefits.

Edited May 1, 2016 by pete992

[Jimmer]

pete992,  Thanks for the information.  I found the letters the eye doctors prepared, which stated the vision of my left and right eye.  I then match that up to the  V.A. code of ratings for the eyes.  They fell between 50% to 60% rating.   The VA  had those letters, because they made reference to them, in the rating decision letter when  send me out the BBE .  Maybe they think I am a idiot, and don't read the decisions. 

[FormerMember]

The only problem with hiring an attorney is that you've been awarded the majority of the monies and there is little or nothing for a VA attorney to make it worth his/her while now. I see this frequently and just as often I see attorneys turn down the claims since there is much work, poring over a c-file for evidence and little remuneration. I've had Vets come to me asking for the name of a good atty. for a tinnitus appeal with an earlier effective date of 2010 or so. Figure it out. $1300 a year back pay times five years is $7,500.00. 20 % of that is $1,500 for 4 years of Appeals to the BVA. It doesn't pencil out. A law dog racks up about $180 K in school loans for seven years and then has to have a storefront with a legal secretary. Plus, he's paying interest on the loan. If your claim isn't worth much, you would be better to find a good VSO-if there is one.

[Gastone]

No "Pot of Gold" at the end, your on your own, at least till you get to the BVA.

A Nam Buddy, rated IU, was denied an ED SC and went to BVA with a VSO and Denied again 2014. He really had a Hard On for VA wronging him for so long. Told me he would fight his claim to the Supreme Court if need be, said it was a principle thing.

I pointed him to one of the better known VA Attorneys, that advertises and opines here on Hadit. I warned him going in, 20% of the maybe $36K Retro would be a problem. His only hope would be that the Attorney saw a Big Payday, if the Court granted Fees.

Needless to say, the Law Firm begged off, saying they were overloaded with clients and wished him well.

I had also told him of the Legal Team at the Veterans Consortium. He contacted them and they now Represent him on a Pro Bono Basis.

Semper Fi

[Berta]

I say file the CUE! Based on most of what you stated.

I lost a detailed post here in hyperspace to you....seconds ago.....weather problems  

 BUT

can you scan and attach the 2007 decision here first....(Cover C file # etc prior to scanning it)

because I do not understand what you meant by they 'mentioned' the non VA opinions.

And then ignored them.   Ignore means definitely a CUE,,,,mentioned means they manipulated something ....maybe not a CUE...

But often what they manipulate can be turned around to bite them in the a-- anyhow.

It should be a simple short claim to prepare from what I see here so far.....except for the 'mention' part and I see no need for a lawyer at this point.

I assume the rating in the new decision is correct. So no CUE there.