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K9MAL
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Posts posted by K9MAL
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I had a DRO hearing regarding 2 EED (Earlier Effective Date) issues and 2 ratings that I wanted to have increased. I'm currently waiting on the DRO's decision. I did not request TDIU but noticed last night on eBenefits that my contention is now listed as TDIU. I only want my ratings to be judged by the evidence that they have and do not want an inferred claim of TDIU. How can I prevent being labelled IU? Will not filling out a 21-8940 suffice? It doesn't sound like it when you read the quoted below.
My reasoning is that I would like to continue to have the freedom to try to engage in substantial gainful employment, if at all possible, and to the best of my abilities in the future. I do not want to be harnessed by the VA’s rules regarding IU and wish to pursue a career where I can find a balance between my injuries and my employment.
However, a veteran is not required to file this application form before the VA is obligated to consider and adjudicate a TDIU claim. When a veteran files an original claim for evaluation of a disability or a claim for an increase in the evaluation of a disability that has already been rated by the VA, the claimant is generally presumed to be seeking the highest benefit allowable. See AB v. Brown, 6 Vet. App. 35, 38 (1983); see also Roberson v. Principi, 251 F.3d 1378, 1383 (Fed. Cir. 2001); Norris v. West, 12 Vet. App. 413, 421 (1999).
Equally, when a claimant or the evidence of record reasonably raises a an informal claim for TDIU, the Secretary must furnish the claimant the form (VAF 21-8940) as prescribed by the Secretary. (38 C.F.R. 3.160)
***The VA Decision/Notification Letter should at least include a VA form 21-8940 as an attachment.***
If the VA has failed in compliance of any of the aforementioned on a failure to infer a claim for TDIU, then the veteran may have a basis to file a Clear and Unmistakable Error (CUE), these are very specific allegations of error, that are essentially a facial, and collateral attack on VA, and are given no deference via the VA's "duty to assist", nor is there ANY application of reasonable doubt doctrine (38 C.F.R. 3.102). -
Congrats on a job well done. Sue the lawyers for abandonment. ;)
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Most Vets advocates agree its not a good idea to fire your VSO in the middle of a claim. The VA does not need much of an excuse to delay you, so dont give em one if you can help it. Worse, they could send notices to your VSO, and, if you pull their POA, then you would not get those notices. This said, watch that VSO like a hawk to make sure (s)he is not booby trapping your claim with incompetence.
I just pulled mine after his feeble attempts at my DRO hearing. In the past 2 years I've never received a single thing from the VFW concerning any of my contentions. So, for me, no notices before I rescinded POA and no notices after.
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I checked ebennies today and saw that after the DRO the contention is now TDIU. WTF?!? I never requested TDIU and it looks like I'm gonna have to find a way to fight it.
My reason for not wanting IU is the fact that I can still work to a degree and I don't want the VA mandating what I can and can not do financially in terms of trying to make some extra money. I want them to assess my contentions and that's it!
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Nice post and congrats!
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Take any dates listed on ebenefits with a huge grain of salt.
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I am sure that is the case here in your tinnitus situation.
I have used BVA cases, to support legal points, in past claims I have had with the RO.
Do not hesitate to use this BVA decision as to their legal premise here.
I am assuming the past C & P s for tinnitus that you already had ( which did garner an award)
did not really consider that you have no other etiology or cause ,but for your Mil service and your past posts here revealed the doc did link the tinnitus to your military service, so as you said.......
a better EED for the tinnitus is sure in order.
And if the RO fails to do that right this time, a CUE claim IS IN ORDER on the older decision and even during the appeal period you will get if they make another bogus decision on the tinnitus.
Do you only reference the case number or do you print it out and submit it as evidence?
You are correct that there was no other etiology or cause and the hearing examiner opined that the tinnitus was due to military service.
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It sure is BS K9MAL but you are willing to persevere.......
Maybe this case will help.....
Thanks Berta! Reading the case now.
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Are these the contentions you are still fighting over:
Did you file a CUE on the tinnitus EED?
Have you gotten by now all of your Military records, your VA med recs and a copy of your C file?
If the tinnitus was ratable at 10% in the older denial, then that was, in my opinion, a CUE.
I actually filed a NOD for EED at this point. I think it's gonna get shot down but then I'll move on to the next level.
I'm pretty ticked at this point. They don't even consider the evidence right in front of their faces... I'm determined to win.
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Berta - My NOD covered the EED for tinnitus and PFS in the left knee. I also had a NOD for my migraine increase and another increase. Both were lowballed and should've been rated higher per the VA regs and what the doctors noted in my DBQ and medical records.
Personally, I think she was trying to test me and my resolve when mentioning the C&P's. I just had one about a year ago for these exact things so use the information you have. Delay, deny and all that BS.
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^^^ That's what I'm thinking in regards to the initial C&P.
yes they do but did they? did the DRO render you a decision?
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IF a veteran Request a Regional Office Hearing This must be conducted
No, they did not render a decision. I was under the impression that I could expect to hear something in about 6 months or more...
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They have the ability to set it up right then and there? I was pretty adamant about not wanting to jump through the hoops again. The only thing I'll gain is more time waiting for an exam and decision. I just want the ball to get rolling and move up to the BVA as soon as possible.
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Congrats! Keep up the fight.
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At my DRO hearing I was asked if I'd submit to another C&P to determine if my percentages should be raised. The VSO and the DRO were both pushing for it and I said I would submit to one if it was absolutely necessary. However, really I'd just rather get a denial and move on to the next level of appeals.
I read Benjamin Krause's DRO experience and he's stated that you can refuse a C&P at your DRO hearing. I'm wondering if anyone else has told them to pound sand or what the repercussions might be?
I'm contemplating drafting a letter and sending it to the DRO telling her that I don't want another C&P and would prefer for her to review the available evidence to make her decision.
Thoughts on the matter?
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What if you signed a letter stating your intent, scanned it in and uploaded it to ebenefits? Would that suffice or does it need to be mailed? I plan on emailing it to the VSO here locally and to their main office at the RO in Reno. A copy will be saved in my sent mail. :)
To Whom It May Concern:
Effective immediately, I hereby revoke my power of attorney (POA) with the Veterans of Foreign Wars (VFW).
Signed,
I'd like to punch my VSO.
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Hope the MOPH guy fell out of his chair. ;)
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Going to a DRO hearing with a VSO is a dangerous game to be playing. We have had this discussion here at Hadit before.
If you are denied and you are in line for Major Retro, Don't french Kiss the Rattlesnake. You need someone versed in VA law. Not VA Brother In Law.
J
I vote get it out of the RO as soon as possible. DRO reviews in my experience have been a waste of time. Get it to the Board and if need be, on to the CAVC, where you stand a decent chance of winning. The sooner the better.
Both great advice. Thanks!
I guess my next move is to wait for the SOC and then file the appeal to the BVA? Hopefully I'll get her denial soon.
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As long as this claim is alive you can pursue the earlier effective date via the evidence (controversy). The evidence of record shows entitlement began in 2000. Effective date has to be 2002 filing. File NOD and say incorrect. You don't say CUE. It isn't. It's a brain fart that needs to be corrected at a DRO or BVA hearing. Or go to DC pronto on traditional path. If VA wants to dig in, the quicker you get it to the CAVC, the better. As long as it was a matter of record and in the c-file in 2002, you win. Then you have to fight the staged ratings battle to now. That's a nice piece of change they're trying to cut you out of. Remember, if it goes over $25 K, it needs three signatures and one has to be the VSCM or Asst. VSCM.
I did file the NOD but I can tell by her reaction (woman DRO) that she's not gonna let this fly or the tinnitus, which I believe should be retro as well. I'm guesstimating $50k in retro at today's date so by the time all's said and done I'm not sure how much it'll be, about $300 per month going from 60 - 70%.
I'm not sure what "staged ratings" are so I'm off to do more research... Thanks again!
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I requested a MacBook Pro with the retina display, I'm typing on it now. If you want a specific PC, or a Mac, I suggest you research exactly what you want and be able to substantiate why it is you want that specific computer.
Otherwise, you'll just get what they throw your way. Like the piece of junk HP printer I got...
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Ohh ok, that makes sense now!
Do you see what I'm saying or am I in left field? To me, it should've been granted in 2002, and then they decided to grant it in 2014 with the same evidence because the C&P doctor and rater actually paid attention this time around.
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NavyWife - Sorry if I'm being unclear. Initially, in 2002 my left knee was denied service connection. Although, there were numerous reports of bilateral PFS while in service. The initial denial reads as such:
FACTS: SMR show veteran seen for bilateral knee pain and swelling in May 2000; he was instructed in physical therapy of knees; crepitus was also noted; X-rays normal; diagnosis: acute bilateral insertional patellar tendinitis, chronic bilateral PFPS.
In October 1999 he attended "knee school", a physical therapy class. He was seen prior to the class for pain and given a low impact aerobics training; diagnosis patella femoral syndrome (PFS) both knees. Veteran seen also in Aug 1999 for PFS diagnosis and treatments.
VA Medical Center examination dated November 6, 2001, shows subjective complaints are of pain in both knees, right worse than left. He can walk about a mile without experiencing pain. He avoids stairs as these do cause pain. Range of motions shows right knee: flexion 130 degrees, pain on full range of motion, no lateral instabililty, drawer sign negative, McMurrys negative. Diagnoses: Left knee: normal exam, Right knee: likely internal derangement with limitation of motion.
Now, in 2014, they granted service connection and it reads as such:
Service connection for left knee patellofemoral pain syndrome has been established as directly related to military service.
An evaluation of 10 percent is assigned from January 15, 2013. Although you claimed condition as secondary to right knee and ankle, VA examiner opined that currently disability is associated with complaints in service.
We have assigned a 10 percent evaluation of your left knee based on:
- Painful motion of the knee (38 CFR 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995), have been considered and applied under 38 CFR 4.59.
In my opinion, which may not mean much, they originally should've granted the service connection in 2002 under the same principles as they did in 2014.
The doctor's opinion from my most recent C&P:
c. Rationale: His left knee patellofemoral syndrome is not a result of his
right knee condition as his left knee problems began around the same time as
his right knee. His right ankle injury also did not cause his
left knee
patellofemoral syndrome as ankle injuries are very unlikely to lead topatellofemoral syndrome in a contralateral knee.
However, it is my opinion that his current left knee patellofemoral syndrome
is at least as likely as not a result of his left knee patellofemoralsyndrome that he was diagnosed with in service. He was diagnosed with
chronic bilateral patellofemoral pain syndrome on a note dated 5/13/2000.Patellofemoral syndrome is most often a chronic/recurrent condition.
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I woke up at 5am and started typing multiple things on my phone concerning having to submit to another C&P... This is a rough draft that I'd like to polish and then send to the VA... Is this worth doing or am I just wasting my time and need to appeal to the next level at the VBA? I don't want to waste time and more BS by having to submit to more C&P exams when they're not necessary. Sorry for the weird format, it's a cut & paste job:
I believe that I was unnecessarily pressured and coerced into acquiescing to future and further C&P exams by the VA's dro and the VFW VSO, xxx, during my hearing. Not only did there appear to be collusion but also an undue familiarity between the two.
Similarly, I felt undue pressure to submit an 8940 applying for individual unemployability without having been explained what the ramifications are for a decision of that nature. I do not wish to pursue IU at this time and only want an opportunity for the evidence to be weighed fairly and for it to be judged by the laws imposed by congress and the CFR. At this time I am dropping representation by the VFW and rescinding my power of attorney.
Unless the VA is calling into question the examinations by the previously mentioned physicians or a new C&P exam is medically necessary to treat the existing disabilities I think the existing C&P exam should stand on its own merits unless the testing performed by doc xxxx is to be called into question. Along with that the supporting evidence of a VA DBQ as performed by a board certified Gastrointestinal, doc Nemec, should be sufficient evidence unless the VA is calling into question dr nemec's integrity, his determination or the validity of his statements.
This is an obvious attempt by the DRO to "delay a denial" and is nothing more than a stalling tactic.
Furthermore id like to know the va regulation pertaining to existing C&P exams and the procedure for calling into question the physicians previously performed examination.
If there is no such law, rule or regulation pertaining to the aforementioned then I would like to have my case reviewed de novo with the previously submitted evidence post haste so that I may appeal in short order the expected denial of the earned benefits to this veteran.
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One thing many forget and that is the willingness of VA to concede error- let alone grant some huge retro. If the amount of retro exceeds $25 K, it won't get the three signatures locally unless it's as obvious as a foot missing. I've done three DROs and I'm 0/3. Fortunately, I won on appeal but by that metric, the DRO should have been aware of his own regs and statutes.
If all of my contentions were granted it would've been in the neighborhood of $80k if I have my figures right.
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I'm so sorry your DRO hearing did not go well...I didn't realize it was a videoconference hearing??.....was it just you and your VFW VSO?
& the DRO was on a montier?
I thought you were having a in person DRO informal Hearing?...anyway did you speak up when you didn't understand what they were saying? you can always say you don't truly understand and just say you disagree and why I can't you present your evidence?
the DRO should have already had your evidence prior to the hearing,....Fire that VSO and request an in person DRO Informal hearing or file for Reconsideration...you should have got some papers letting you know what to do if you disagree with the decision?
sounds like they throwed you under the rug don't let them get to you & don't give up keep fighting
Hang in there Buddy
I thought it would be an in person hearing as well. You're correct, me, the VSO and the DRO via video. I did speak up and they pretty much blew me off, I felt steamrolled by the whole deal and the VSO was even calling the DRO by her first name and was definitely on a casual basis with her. He was a jerk to me and acted buddy buddy with her and it was blatantly obvious where he got his bread buttered.
Tdiu Inferred But Not Wanted.
in TDIU Unemployability Claims
Posted
I want to be rated per the CFR and still be able to work as much as I possibly can. If it's not automatic than why would there be an inferred claim? Maybe I don't understand all of the implications but to answer your question, currently I'm in Ch. 31 going to school.