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.

[FormerMember]

You will always get an attorney free if you go to the CAVC regardless of the relative merits of your claim or its intrinsic worth. The NVLSP , Veterans Pro Bono Consortium and numerous others will take it to fill out the requirement that they put in 30 + hours per year for pro bono work. As for the myth of EAJA fees, the lodestar stands at $187.50 an hour. If, and a big if, you "substantially prevail", your attorney's EAJA hours will still be discounted and he/she will get a rump settlement from VA. If they spend a year appealing the EAJA to CAVC- what? More time expended like a dog chasing its tail with nothing more gained but wasted energy in pursuit of $200.

Even I, if and when I get my agent's certification,  will have to "donate" pro bono time as well. I have no objection to that. Vets, by right, shouldn't have to pay to get what is due. Unfortunately, you get what you pay for in life. Do you want an experienced navigator from the outset guiding your claim or Leagalzoom.com in charge? If you do it yourself, logically you should pursue it as far as possible before resorting to help (outside Hadit or my site). VA attorneys serve a useful purpose in cases where the Vet has been egregiously wronged. But, like any "lawsuit", it has to have value or the attorney cannot invest years pursuing $100. In addition, if the records (c-file) are silent for the claimed malady, there is really no case to build. 

I wish you well in this pursuit.

[Jimmer]

Berta, When I submitted five different letters from "board certified ophthalmologists" they stated the vision of my left eye and right eye.  (20/400 left eye 20/200 right eye).  One doctor stated I was legally blind in the left eye (VA later confirmed it).  After I received the 10% rating, the VSO, said "something not right", because the doctors had your vision listed on the letters.  He then gave me a copy of the Title 38   4.79 -Schedule ratings of the eye, and each  50-60% disability range.   The VSO  filed a NOD.  In the rating decision letter, as part of evidence, the VA refers to the letters they received from the eye doctors.  The BVA appeal award was from February 1, 2007 to January 2014.   In January 2015, the VA had a eye exam performed on me, which immediately raised my disability to 60%, then in December 2015, the VA "CUE'D" themselves and raised it to 80%.  I feel I was "low-balled" at 10% because of the amount of time seven years of retro pay.

[Berta]

 "The BVA appeal award was from February 1, 2007 to January 2014.  "

I didn't know this was a remand.

Do you have the citation # and docket # for it as if so we can find it at the BVA.

I agree with the VSO that something is not right but

I have no idea if you were lowballed or if this is a CUE ,without being able to read their exact words and the Evidence list ,from the older decision.

[Jimmer]

Berta., the docket number is  10-11 412.      Thankd

[Berta]

Thanks. This is one of the briefest remands I have seen yet:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files5/1343503.txt

Obviously the eye exam results are there in the remand ...showing high level of impairment.

Have you asked the VSO about a CUE potential?

We still need to see the actual decision and the evidence list.

[broncovet]

If this is "in remand", then you need to wait for the results of the remand to appeal any further.  The CAVC will reject and dismiss an appeal where that issue is in remand status.    Other than a writ of mandamus, the CAVC will only hear a "final" board adjutication...meaning it is not a remand.  A remand means its not final.  

This said, however, if the RO refuses to act on a board remand, then a Writ may be appropriate to compel the RO to comply with the terms of the remand.  

Unless you are filing a writ to compel compliance of the remand, stay out of the CAVC when you have a remand.  You simply have to wait your turn, and see the results of the remand.  Example:

You file at the RO and are denied.  You appeal, and the board remands this back to RO for a C and P exam.

You can not appeal this remand to CAVC..in favor of an award.  You must wait for the RO to comply.  

If the RO denies a second time, you file a NOD, disputing that denial.  Now you can proceed with your appeal, because once the RO implements the remand and denies again, then you have an appealable issue.  

I have said this before.  If Berta tells you to x, and I suggest its y, then do what Berta says.  Her and Alex are the resident experts.