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ketchup56
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Posts posted by ketchup56
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Superimposed. ....That's the magic word . It Clearly states in the x-ray report that Superimposed Osteoarthritis was caused by the original CONGENITAL /ABNORMALITIES therefore if osteoarthritis is still present today (chronic ) it according to the CLEAR AND UNMISTAKABLE standard of rebuttal this should be a slam dunk for service connection. .... I won a claim at bva based on a pre existing back condition 26 years after service with absolutely NO service treatment records. Your path to a win is AGGRAVATION of a pre-existing CONGENITAL back condition superimposed upon. JMHO
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2011 is your date.
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They owe you retro from 2011. Although you were only 30% at that time you were considered unemployable at that same time. They should have either raised your ratings at that time to 70% (which they eventually did in this rating) to makes you automatically eligible for tdiu (especially if mental health pads) OR submitted your appeal for early effective date to the director of comp and pension for extraschedular consideration. The are trying to now cover their rear by passing you with the 70% award. APPEAL the effective date under the theory of 38cfr 4. 16 (b) and ask for extraschedular consideration for that time period you were 30% but unemployable.
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Early Effective date of tdiu was awarded yesterday. They still did not award back to last date worked, but I will appeal that part to bva along with my appeal for early effective date of service connection which is already at bva. Never give up when you know you're right. Fight their bs with the correct evidence you'll win. Early Effective date of service connection appeal goes back to 1983.
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I'm currently at VACO per my regional office director email yesterday. The director directed her staff to submit eed for tdiu. The Oakland regional office shorted me 13 months of tdiu by establishing the incorrect effective date of tdiu. It's always good to have either the varo or bva establish vaco consideration, as that indicates that the evidence needed for an award is already there. HOWEVER vaco usally denies anyway based on some stupid reason. Therefore you still remain in appeals status and must appeal that decision to the board. In your case that part is done. It will just be returned to the board for final approval. Why this procedural step is needed is beyond me and the courts. SEE BENNETT V. SHINSEKI. ...Great case.
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Jbasser gave you the correct answer to you post, along with the regulations that backs it up.Y out should CAREFULLY read these and you have your answer. (Date entitlement arose) Concentrate on that theory.
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34 months just to a supplemental statement of case. Check your decision carefully. They might have just thronged you a bone to cover their rear on the extra long delay of issuance of the ssoc.Congratulations on your win....
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Hell of a win.Way to go.Fenderson ratings are not always necessary either. Sounds like the va hung themselves with the pre existing crap. They put themselves in an almost impossible position to deny when they stated that. CLEAR AND UNMISTAKABLE EVIDENCE requirement to rebut that presumption is almost ext to impossible in the claim support. I know this because i beat them on service connection for aggravation of pre existing condition after 30 years out of service and to top it off WITHOUT a y service treatment records to show the increase in severity in service. I too have this same appeal in for eed back to 1983 one day after service. Fenderson ratings seems to me to already been established by bva in their decision also. Either way that's a good win. CONGRATULATIONS .......
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They told you some BS.They simply cannot deny you tdiu just because your former employer failed to respond to their letter. Relax usally that's the last step in adjudication of tdiu..They usually already have enough evidence to award without this letter. Relax.
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Congratulations Berta. As you know aswe ddiscussed in another thread that my claim for early effective date was supposedly at the OGC for review per the director's email to me. Come to find out that OGC would not review my claim/appeal because it would be a conflict of interest just in case it went to the cavc or fed.cir.courts. This was relayed back to me via e-mail from the director's office. They certainly will play these stupid games when they know their reasoning is wrong. What they did do was expedited my certification form 9 appeal to bva.I verified certification by calling bva and they verified certification and just waiting for iniatial review from bva judge. I'm just like you in that they thought I would just tuck my tail in between my legs and run.Not me .I plan on perusing this all the way to the Fed Cir courts if needed. You are a real champion and I admire your willingness not to give up when you're right. Motto is NEVER GIVE UP when you have solid evidence to refute their BS.
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You never stated when you filed your claim .Dec.1 2014 date you describe is not your but represents the last date of cost of living adjustment. Date you filed claim and date claim is awarded. That's what you're being paid.
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Using the 1154 combat route is the best way in aggravation claims if not documented in str's. There is a presumption right off the bat.Once you establish that va has an onerous burden to rebut that presumption. I just beat va on an aggravation claim with absolutely no medical records. I used my ex wife to corroborate my lay statements and va could not muster the clear and unmistakable evidence hurdle. You must be extremely careful not to get caught in the credibility area because once va catches you there you're toast. Was your pre existing condition noted? If so 1154 probably the best way to go. Here is my bva docket no.12-04 464 Decision date 05/22/2014. If used correctly clear and unmistakable evidence standard is really onerous on va's part to rebut. JMHO Good Luck.
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What that means is that for peripheral disease claim, the c&p exam you had for that is being returned to the examiner for an addendum on something that needs clarified in the exam report and will be finalized upon return of that addendum. This is good because most raters just simply deny without the clarification.Deferred means they still have not made a decision but plan to at a later date, usally after the exam report is returned to the varo. You must also hold their feet to the fire as they sometimes forget about deferred issues. Give it about 30 days before initiating an inquiry on this. JMHO.
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I concur on all you just mentioned. I'm sending an email back to the director as you advised to get that general counsel contact information. In the interim im typing up my arguments on form 9 and its long. That's how bad there reasons and basis for denial is. Varo Oakland used an outdated ruling Brokoski v Shinseki (2009) stating because I didn't identify the benefit sought on my 1983 claim it was denied. However that ruling has been knocked down many many times by va's failure to consider Roberson v Principi, Moody v Principi and Szemraj v Principi and as of late Harris v Shinseki and Charles v Shinseki. Now remember folks they never sent me final notice in 1983, never did secure my str's (still missing today)as requested on the application for benefits in 1983. The evolution of the pending claim doctrine explains this scenario in full details yet they use outdated reasons and basis to deny legitimate claims. I will fight this till my breath with instructions to my daughter's to do the same in my demise.These people do this on purpose to make you give in.Not me. Berta I would like to send you by email this soc for thoughts and a promised good laugh at their reasoning.
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115 is total range of motion combined which equals a 20% rating per regulation. Also exam states that back disability effects employment which is good evidence for tdiu consideration. JMHO..
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Talk about incompetent......How the he#/^) 'll could this have happened and on top of it that long to be corrected is beyond me. Congratulations on your success with that email.
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Basically chronic means long standing and continuity is continued chronic symptoms of the malady. Sometimes va uses the lack of treatment to try to overcome or rebut this rule but recent fed.circle.rulings overturned that theory. If your malady was chronic in service and it's still treated for today its chronic. Read 38cfr 3.303 (b) it explains in detail how to use this against the va. I used this after being out of service for over 30 years with no service treatment records on record and I won. If used correctly you can box va in where they have no choice but to award. Pay close attention to paragraph (3) of this rule. Also read Davidson v. Shinseki (fed.cir.Sept.14, 2009). This validates 38cfr 3.303 (b) Good Luck...
- Buck52, they dont care and vern2
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Your claims for sciatica is rated by va as "radiculopathy" and each lower extremity is rated separately with a bilateral factor included. Sciatica is a symptom with radiculopathy being the actual diagnosis. They know this but they sometimes play dumb and leave this point out when rating. Stress this point if needed. ..
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File for tdiu now.Tdiu is also a claim for increase and must be considered along with the mental health claim. It also reserve's your effective date. You have documented evidence of unemployability and already at the percentage level so why would you NOT apply for tdiu.Your varo will give you c&p exam/opinion and you take it from there.
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Yes.Currently files are being reviewed for a eed claim varo oakland refuses to award dating backto 1983. Im in email contact with the director from Oakland varo Julianne Boor with all my correspondence being cc'd to keep a paper trail. You must have a paper trail because these people will feed you so much BS. Files are currently per director with the OFFICE OF GENERAL COUNSEL in Washington. I feel much better because these people can read or at least give better reasons and basis for their denials to better counter their reasoning. I feel confident because my evidence speaks for itself on my issue.
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PENDING CLAIM DOCTRINE makes it kinda onerous for them to their own writing's.
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BTW im still waiting on the soc from Oakland varo. Can't wait for this laugh. Will post back upon arrival.
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Everything you just posted is exactly what im arguing. The claim from 1983 I never received notice one way or another that it had been considered and denied. No notice it just sat there all these years until this subsequent claim was adjudicated and finally awarded by bva. You noticed also that vlj noticed that in his decision which is damn good evidence for the correct early effective date. Yes I have complete copy of my c files and there is no notice of anywhere. I'm fighting this tooth and nail on the PENDING CLAIMS DOCTRINE which was also written by bva attorneys themselves. I'm 70% tdiu as of now.The 70% should go back to 1983 day after discharge if im correct barring Fenderson ratings. Im sorted happy this is going to general counsel first before going to bva to get their reasons and basis on paper then attack their reasoning from there. If needed I will get this to an attorney for Cavc.
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I actually woke up at 2 AM to read this decision again....it is so unbelievable.
I predicted to Ms. Hickey this claim would be screwed up too.I emailed her yesterday that these issues and the responses from my VARO
are starting to border on the Absurd.
Free Spirit..I think it is both reasons. As well as a deliberate stall because they owe me money.
Ketchup said:
"On Friday i get an email from my regional director that a expedited soc is being sent but at the same time she's sending my files to VACO general counsel for another review"
Is this for a FTCA case or a Section 1151 Peer Review? It's for eed for a pending claim they made a decision on in 1983 for the same disability I just got service connection for. See bva docket no.12 05 464 Decision date 5/2014.
Is your RO director from Buffalo VARO? Oakland varo Julianne Boor
How many other VARO directors are sending stuff to VACO that should probably not need to even be there in the first place?
And doesn't that show they have no control over the reckless ways some of these claims have been handled?
If more vets and survivors start complaining via email to Sec Bob or to Under Secretary Hickey, with valid complaints as to the adjudication of them, ,
the upper echelon of VA will start to see what claimants deal with.
I certainly am not putting up with this crap anymore.
I am collecting ALL of the ridiculous decisions I have gotten over the past 20 years, to figure out the best way to use them for other similarly situated VA claimants. I think my Chapter 35 was the only claim they didnt screw up.
But they did screw up my daughter's Chap 35 claim. She is a veteran.
I sent the Under Secretary the email from Buffalo in which the director said both of my claims were denied.
I asked them to CUE the 1151 denial already.I sent the CUE to Ms Hickey at VACO as well.
My RO director apparently didn't even understand that the decision clearly says my CUE was "granted."
I cannot imagine why any RO director ,who I assume has leadership ability ,and might well be a veteran themselves,
would want the VACO (VBA,OGC, and VHA are all umbrellaed within VA Central Office)
to review probative claims and find out just how incompetent their RO claims employees really are.
If other ROs have done that as well,due to our complaints to Secretary Bob and to the Under Secretary,,
this might become the BEST thing that has happened to us victims of illiteracy and incompetence at the RO levels ,in decades!
VACO will know and then , as likely as not, Fox News will find out.
gen.coun. prec. 82-90
in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC
Posted
The proff is the x-ray's....Chronic osteoarthritis. ...If it's documented as chronic in service and currently chronic now it's service connected......However I argued my case as I said as AGGRAVATION with 38cfr.3.303 (b) as an second additional theory for service connection. ....From what you have posted above the easiest path (JMHO) is to go the AGGRAVATION route claiming the chronic provision as a second theory. ....The CLEAR AND UNMISTAKABLE standard of evidence that the onus being on VA is VERY VERY hard for vba to rebut the presumption that'given to you...They already established by medical evidence that your condition was pre-existing and you have the medical evidence of treatment in service via treatment, x-rays which establishes the AGGRAVATION prong you must establish for them to rebut ,current treatment of osteoarthritis there's nothing to rebut...Have you read 38cfr.3.306 ? Look like it Clearly pertains to you....As stated above you would never win this going the CUE route to service connection. CLEAR AND UNMISTAKABLE EVIDENCE. ...... You have the evidence to make them TRY to rebut this at least. However this never happen's at the regional office level of adjudication. They just don't get it..lol...again JMHO...