Philip Rogers

vaf - I'm not really sure but I believe it was COVA/CAVC, but it may have just been a BVA case. I don't remember the case or citation but I believe it involved a TDIU claimant who wanted an upgrade to a 100% because his state offered additional benefits to 100% rated vets. In that case they ruled since the benefit was essentially the same the issue was moot. The one year deadline starts the day the claimant receives the decision. pr

broncovet - I'm sure you're already aware that CUE doesn't happen until the 1 yr appeal period has expired. The failure of the VA to consider SMC (ie:HB), when awarding 100% schedular, does not reach the level of CUE. My understanding of it is that that portion of the claim remains open and would be considered a "grave procedural error." SMC(HB) "is" an inferred issue when a schedular award of 100% is awarded. There has been a decision, within the past few yrs, by the court that if you had five claims pending and they decided four of them, w/o mentioning the fifth, that the fifth is considered denied, even tho there was no mention of it in the decision. I believe the NVLSP appealed that decision and lost. Additionally, I believe you must be fairly specific in your NOD's these days. True you can add additional evidence but unless you waive RO review, it gets remanded and adds 2-4 more yrs to a claim. You stated: "It seems that once a Vet files a NOD, it pretty much seems to cover all the issues. That is, the VA doesnt seem to be willing to say, "Well, yes, you filed a NOD, but you didnt bring up THAT issue in the NOD so THAT ISSUE became final. I think the claim is either pending or not, final or not, and they dont seperate the issues saying, well, your Depression is final, but your tinnitus is not final because you didnt appeal that issue kind of a thing." They do separate issues. The court also ruled that when a claimant is awarded 100% schedular the issue of TDIU becomes moot. I'm not trying to be difficult, just realistic. Anyway, I wish you the best of luck but I just don't see it happening. jmo pr

Chuck75 - I gotcha now. Thank you for spelling it out!!! You are right, I was confusing the VAMC w/claims. I see your point and stand corrected. Thank you for taking the time for the remedial lesson! ;-) pr

An improper original rating would be a Clear and Unmistakable Error (CUE) and can be filed anytime. There is much here, at Hadit, on CUE's, if you do a little searching. You'll need to find out exactly what was damaged, in the accident. pr

Thanks, pete! I just couldn't remember their names, at the moment. I saw the movie, as a kid. Good movie!! pr

I'd suggest he contact an attorney, first, prior to doing anything. Maybe the NVLSP could represent him or point him in the right direction? He may need to spend a day or two in the slammer but for the most part the Gov't doesn't want the press and gives these guys a general discharge. I hated when they gave those guys amnesty!!! I figure ya made your decision now live w/it but that's just me. jmo pr

Good on you!!!!! Enjoy and live a long life, just to p*ss them off!!!! We deserve it. pr

He could be eligible but first he'd need to turn himself in. I'm surprised they haven't picked him up, already. It's unlikely the military would pursue criminal charges, at this late date and he could be eligible. I seem to recall that all brothers couldn't serve, in VN, at the same time. It has to do w/the 5 brothers, who's names escape me, at this moment, who were killed aboard ship, in the Navy, during WWII. It's worth looking into. jmo pr

I guess you folks are not understanding me or the VA system. Prior to finding SC the VA needs to decide if you are 1.) a veteran? 2.) Wartime service? 3.) Honorable service? 4.) Necessary length of service?? 5.) etc?? This must all be done prior to deciding whether you fall under the "presumption." Just because you know you are doesn't cut it. There is a process that must be followed. jmo And yes, you should have to request the refund but that's another issue. pr

I'm missing your point. I agree that until it's adjudicated the claimant must pay. Once SC'd they can request a refund. pr

Now I'm thinking did they rate him properly, when he was first rated, at 10%, especially w/the nerve damage, etc??? Just thinking outloud. pr

Berta, I have a lotta questions on this one. He has tricare for life??? You don't get tricare for life unless you're a military retiree. Usually you'd need 30% or more to be medically retired. I'm not understanding something here. How do you sever a forearm, w/o losing the hand? I'm lost. pr

broncovet - it is possible, but unlikely, the VA may be awarding the 100% to avoid the SMC issue because when they award 100% schedular it takes either A&A, HB or an additional 60% to get the SMC. With TDIU the claimant may be able to qualify for SMC easier. However, once they award 100% schedular I still see the TDIU issue as moot. Also, if you disagreed, w/the 100% award, you had 1 yr to file a NOD, correct?? Good luck!! pr

JB - you were not wrong to apply for TDIU!!!!!! I hope you are appealing the reduction and have done so within the allowed time period, to prevent this happening. Now you must attack, not defend. I would appeal the proposed reduction, stating that they made an error and should have previously awarded TDIU, based on your 80% and should do so, retroactively. Also get a letter from Voc Rehab about your inability to be trained, due to your SC disability. It is excellent evidence and will go a long way. pr

john, that's hard to say but in light of Bradley it could be. I see that the VA should readjudicate all those claims but, we know, that's unlikely to happen. pr I'm not a lawyer but I'd like to play one, on TV.

Personally, I feel he can service connect(SC) the diabetes and stroke, since he had a SC amputation, and eventually win 100% SC, but bear in mind the VA moves very slowly and will probably fight this the whole way. Amputations are known to cause heart disease and circulatory problems like HBP, etc. In the mean time, they would probably award non-service connected(NSC) pension, w/A&A, but that is based on income and assets. You stated he was a military retiree? They don't usually retire unless a 30% rating or more and if so why did he wait until 1999/2000 to apply for VA comp?? Connecting the stroke should be relatively easy. jmo Is he receiving social security??? If so, retirement or disability?? If not he should apply, now. pr

john, the VA must state in the "reasons and bases" whether they considered HB. If no statement is made then it's a gross procedural error or CUE, depending on the date of the decision. pr

Contact the VA's scheduling office and ask why you are being scheduled for another C&P exam when you are over 55yo and P&T, stating that it conflicts w/what's written in 38 CFR 3.327. It may be an error, but if they insist you attend be sure to attend. pr

What the VA says and does are two different things. When they see you have an absolute winner they lowball you, hoping you'll take the bone they threw your way and accept it. How many vets do accept it???? Rarely does a claimant appeal a TDIU denial when they read 4.16(a). Sad but true. Just look at the questions, we get here, about meeting the minimum requirements. Just think about how many claimants abandon their claims rather than fight the long protracted battle for justified benefits. You know they don't process claims properly. They train the VSO's and tell them to qoute 4.16(a). I'd bet most VSO's don't even know what 38 US Code and 38 CFR are!!! Again, jmo! pr

Yes, I guess, that is what I'm saying... Just so you know the BVA lawyers are there to protect the VA. When someone is awarded 100% schedular the VA is required to consider SMC (ie: A&A/Housebound), which they generally deny because the claimant doesn't usually have problems with the "activities of daily living," which they usually quote. Some time ago, the court ruled that the claimant is assumed to be seeking the highest "rating" possible. I don't believe SMC is a rating but is an adjuctant benefit. Hey, go for it, if you want, but I doubt you'll win and if you do I see a long protracted battle. jmo Your analogy about the employer doesn't make sense, to me. You can't go anywhere other than the VA for benefits. Remember the rules, for the VA, are written by lawyers, mostly to protect the VA. M-21, etc, gives directions and the process is spelled out exactly. Why else would the VA deny TDIU, explaining 4.16(a), in their denial, but not 4.16(b), if not to mislead the claimant. Again, jmo! Good luck!!! I hope you win but I just don't see it. pr

They accepted you and are stuck w/whatever happens. It'll be a battle but you should prevail. pr

I'm going to disagree, here. It's assumed that the claimant is seeking the highest award possible, not the most monetary paying benefit. The 100% award does that by giving the highest award available, thereby making the TDIU issue "moot," period. Sorry, I agree w/the VA. I can't see the court changing that. pr

It's a separate issue but could also have bearing on your depression. pr

You can file for P&T. I'd suggest doing it otherwise you might never get it, especially if you wait for the VA to do it. jmo pr

I'd pursue it, if it were me. pr