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lotzaspotz

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Everything posted by lotzaspotz

  1. Will do. Do you think this calls for a writ petition, or is that premature?
  2. This isn't about SMC eligibility (I've addressed my questions under that topic below). This question is about what, if anything, can be done to get a Board appeal out of the VARO that performed illegal/improper use of a VCAA Notice to refuse to even process the claim. They basically declared they weren't going to process it -- period. My question is whether I should file a complaint with the Office of the General Counsel about the VARO's improper/illegal use of the VCAA Notice. Berta, am I remembering correctly that you did this, yourself? September 16, 2010 - The VARO used the VCAA Notice as a vehicle to make the declarative statement that it would not consider any claim for SMC(s) benefits under Bradley v. Peake. No Reasons and Bases were listed, nor any evidence. September 25, 2010 - We responded that the VARO made inappropriate use of the VCAA Notice, however, we were treating it as a formal denial, filed our NOD and requested an SOC. March 21, 2012 - We received a formal Rating Decision - denial . May 3, 2012 - We filed a VA Form 9 to file a Board appeal. December 4, 2013 - In a decision regarding an unrelated claim, the Board refers to the SMC(s) claim, based on statutory grounds, stating, "The Veteran filed a timely notice of disagreement with these denials and a statement of the case was issued in May 2012. These issues have not yet been considered b y the RO following the substantive appeal, and it is unclear to the Board whether the RO's development of the claims is complete, as it has not yet certified the issues to the Board. As such, the Board is not taking jurisdiction of these issues at this time, and rather refers them to the RO for appropriate action in accordance with the Veteran's substantiated appeal and normal VA procedure." I believe the VARO is prejudiced against this claim due to its original attempt to torpedo it via a VCAA Notice, and I really doubt that any "development" is taking place at all. After all this time, I thought the Board already had it -- that's where we had addressed our claim, now it's still sitting in New Orleans?. Would writing the Board and cc'ing the OGC about our concerns regarding how this claim's been handled be a reasonable response to the circumstances? The Board is basically saying that they don't know why the VARO hasn't sent them the claim yet, and I believe it's because we pushed the VARO to the wall on this claim, now they're sitting on it until -- when? The Board's given no indication that it's going to take any action on its own to get the claim out of the VARO. Thanks for any suggestions you may have.
  3. Asknod, we're filing based on statutory eligibility. He is not literally housebound. After 20 years, you might say we're used to underoing a lot of back pressure. We've been known to return the favor, on occasion. Any further advice on statutory eligibility? And about my question of the SMC(s) claim still sitting at the VARO since March 2012, after they clearly had no intention of processing it (as they stated in a VCAA notice) until we filed the NOD, asked for the SOC that never arrived, and when we did that, sent a copy to the Board? Wait till March and file a Writ of Mandamus petition, or is that still not enough time to have passed before it can be considered an unreasonable delay?
  4. Warren, Yes, the pituitary tumor with residuals was the main reason for the forced medical retirement.
  5. We did try for TDIU, it was denied. He was eventually increased from 50% to 90% schedular back to initial date of claim through the appeals process, then to 100% schedular in 2005 retro to 2003, if I remember correctly. It's the first ten years we've been fussing with them about.
  6. Let me correct the ratings information in another format, and in the case of increases, I'll just list the increased amount and effective date of the increase: 60% effective 8/27/93 50% effective 8/27/93 40% effective 7/8/03 30% effective 2/4/97 20% effective 8/27/93 20% effective 7/8/03 10% effective 8/27/93 10% effective 8/27/93 10% effective 8/27/93 10% effective 7/13/98 50% effective 10/28/07 30% effective 11/6/07 Those last two ratings are what I consider to be grounds for SMC(s).
  7. Read Buie, OMG! We filed this pro se. There appears to be some hesitancy on the part of vet attorneys (obviously not Ken Carpenter) to handle this particular type of claim. It appears that there's plenty of precedent (and plenty of retro to get 20% of), am I missing something?
  8. Thanks for the link, yes I need to read Buie now. Here's my husband's ratings with effective dates (the formatting is a little skewed, hope this is readable): Initial Rating and Issue Effective Date Increase % Effective Date Increase % Effective Date 60% for residuals of pituitary surgery 8/27/93 30% for organic mental syndrome 8/27/93 50% 8/27/93 10% for lumbar spine scoliosis 8/27/93 20% 8/27/93 40% 7/8/03 20% for bilateral visual field loss 8/27/93 30% 2/4/97 20% for hypoadrenalism 8/27/93 10% for cervical spine DDD 8/27/93 20% 7/8/03 10% for chronic sinusitis 8/27/93 10% for scar postoperative pilonidal cyst 8/27/93 10% for scar postoperative abdominal hernia 8/27/93 10% tinnitus 7/13/98 50% Sleep Apnea 10/28/07 30% Bilateral Cataracts 11/6/07
  9. Hi everyone, I've been gone for awhile. I just maxed out on facing this stuff after 20 years, and just received two Board decisions yesterday for my husband that immediately jarred me back into it. Anyway, I thought I'd share this with anyone who's interested. In late 2010 or early 2011, I filed a claim with the VARO for my husband who is rated 100% schedular, P & T, with one of his ratings being 60%, another being 50%, plus the others that make up the difference to 100% schedular per the combined ratings table, plus above that, he's got a 50% rating for sleep apnea and a 30% rating for bilateral cataracts (=70%). Almost a year later, I received a VCAA notice from the VARO that basically said they refused to process the claim because my husband is not TDIU. No reasons and bases, no evidence list -- nothing -- and yes, they did it via a VCAA notice. I wrote back stating that this was an improper use of the VCAA notice, but that we were interpreting that as a formal denial, and were filing an NOD with evidence, and a Form 9 for the Board appeal. I asked for an SOC and never got one. Fast forward to yesterday. We received two separate Board decisions dealing with other claims. In one decision, the Board referenced the SMC(s) claim, stating that the VARO still had it since March 2012, and was unclear as to why the VARO had not yet certified the claim to the Board. Considering the fact that the VARO tried to shut it down via a VCAA notice without evidence or discussion of reasons and bases, I doubt very much they're trying to "develop" the claim. But, it's only been a year and a half, so I figure I'll wait until March of 2014 at the latest, sooner than that if I get the urge to do something else. Is that a reasonable approach? Of course, I can always do a writ petition, but would that be enough time to let pass before the situation becomes unreasonable? Also -- please remind me, can I submit an IMO to the Board with a request for reconsideration? It would be new evidence. Are reconsiderations at that level running more than 120 days lately? (I've always gone directly to the Court, thought I'd consider a BVA recon for once). That's the most time I'd have after a recon request till I'd have to take it to the Court, anyway, correct?. If any of you remember me, you may recall I was fighting for 100% schedular from 90% schedular for my husband covering the first ten years of his medical retirement. We've gotten as far back as early 1997, still plugging away for the three years before that. Never give up, never give up!
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