Limekiln Vet

WQW John, keep telling your story, and it is similar to mine. Both of us would be immediately removed from benefits according to Shulkin.

It is not fair! Trump is not aware of this I hope.

Please sign my petition: https://petitions.whitehouse.gov/petition/fire-va-secretary-shulkin-who-wants-steal-benefits-elderly-veterans-fund-his-pet-projects

Please sign my White House petition: https://petitions.whitehouse.gov/petition/fire-va-secretary-shulkin-who-wants-steal-benefits-elderly-veterans-fund-his-pet-projects

Please respond to my White House petition: https://petitions.whitehouse.gov/petition/fire-va-secretary-shulkin-who-wants-steal-benefits-elderly-veterans-fund-his-pet-projects

The only positive thing I can see about this IU/SS issue is that the same proposal has come up for at least the last 4 years and never went through. I have contacted all my congress reps, and called some of them, and tweeted to the Sec of VA, and POTUS, without any feedback. And have signed petitions, which will never go anywhere of course. The most convincing argument for me, to not take away this benefit, is that those of us on the benefit have planned the twilight years of our lives around the benefit. We received assurances like P&T, and no future exam is scheduled, and the 10 and 20 year thresholds that guarantee the benefit and our spouses certain benefits. It is not like we can say ok, its not gonna work so we have to go back to the past and make a new plan. I do wonder about all the federal regulations that would have to be changed to make the taking away of this benefit lawful. And I do worry about other than the financial implications; I expect the suicide rate will double by veterans within a few months of the implementation of this inhumane VA budget proposal.

BroncoVet, I live in Wisconsin, and normally my claims have been handled in Milwaukee, but I was told because my claim was forwarded for consideration for extra scheduler, those claims are handled in Louisville. Nevertheless, I see my rating decision was issued out of Milwaukee.

I should add that I also received 3 retro payments previous to this one when I at first got a 30% benefit, then 70% and then the first 100% benefit, and they totaled over 6 figures as well. When I first started this back in December of 2008 and was denied benefits (except for a 0%), my wife said just give it up, it is going no where. We would be just hoping for things we will never get (she said) But I did appeal thinking I had nothing to lose, so I am here to say don't ever give up!!!!

Here is the decision; actually this is the first time I really have read it. It begins by exclaiming that it is about my claim for service connected compensation received on April 17, 2015, but that was merely the date of an SAH claim I initiated online via Ebenefits. I certainly do not want to disagree with it! But it is odd that the CUE resulted in the loss of my 100% compensation for AS, and a reassigned benefit of 40%. It appears that was the only way they could qualify me for the "two or more service-connected" disability threshold to meet the IU requirements, since previously I had 30% for AS and 50% for a skin condition. And because I did not have the 40% criteria for the condition that rendered me IU, I did not qualify. It is almost like they had to do that in order to make the decision retroactive to December of 2008. Maybe this post might help some other Vet to understand the workings of the VA, I just hope they never ever look at my decision again. :)

Sorry everyone, I was not receiving notifications that anyone responded to this post. The key part of the CUE that was acted upon was this: "4. In my December 17, 2012 post-determination letter, which assigned the 30% rating for AS, it states "A higher evaluation can be granted under the provisions of 38 CFR 3.321(b)(1); however, a review of all the evidence received did not disclose any unusual or exceptional circumstances, such as those involving marked interference with employment or frequent periods of hospitalization, so as to render the application of the regular schedular standards impractical and warrant consideration of an extra-schedular evaluation by the Director, Compensation and Pension Service." At the time of the receipt of that award letter, the VA had all the information of my SSDI award from 2002, and the information about my LTD claim, both of which were successful approved applications for disability benefits based solely on AS, and as probative should have been considered as evidence. I did not get to the 70% level until many months later when they settled the skin condition issues subsequent to the remand by the VBA, but that 70% level was retroactive to December 2008. I believe the SSDI benefits evidence alone should have triggered a more thorough process into whether I might qualify for IU. For the VA to have stated back in December of 2012 in the award letter that there was no "marked interference with employment..." is preposterous. A case for that conclusion is well founded based on their now "forwarding" the claim for extra schedular consideration with no additional evidence having been submitted since the Dec. 2012 decision, other than an application having been made for IU." <end quote> I think the logic speaks for itself. After this CUE, back in September of 2014 I did receive the 100% schedular rating, but that was such good news I completely forgot about the CUE. Then as I mentioned in an earlier post, out of the blue they changed that decision to 80%, paid as 100%, retroactive to December of 2008, which I assume was due to the CUE, along with my application for SAH from April of 2015. And that resulted in my six figure retro. I will post the pertinent parts of that decision shortly.

It has taken me many months to get back into hadit.com to post again, they repeatedly denied my login, and I could never receive a verification of any kind to change my login, or even register with another name. Hadit.com makes it impossible to contact them, guess they are too big for us little folks anymore. I finally got in by creating a new account using a new email address... But I wanted to update you on my benefits. If you will recall Berta, in my CUE (which you helped me with) I suggested they made an error by not considering IU benefits in their original decision. In the decision referenced above, I had the 100% benefit. Then a few months ago I requested benefits for adaptive housing, and in their review for that benefit, they apparently ran across the CUE document, and they made a new decision based upon their failure to consider the IU benefits. This is pretty complicated, but I will try and explain it. They removed the 100% benefit for Ankylosing Spondylitis, and changed it 40%. Then they ruled that with one or more combined service-connected disabilities I was now at 80%, then they ruled that I should be paid at the 100% rate because I was unemployable due to those disabilities, and that it was permanent and total. At first that sounds bad, or even neutral, but the key was that they made the new 100% benefit retroactive to December of 2008, and I got a new payment of $101,106! Unbelievable! And all because I made a new request for the adaptive housing. It really is true that you have to be careful asking for more benefits because they might open your file and make some new ruling, but in this case it was in my favor by a landslide! I since asked them to withdraw my request for adaptive housing, I don't want them ever looking at my file again!

Thanks guys!

Thanks GP! I really appreciate your taking the time to comment. We have pretty good insurance for her right now also with a $50 deductible, but obviously we will sign up for champva as well. I believe champva has a $3000 annual deductible, right? Haven't quite figured how that works. I will be sure to get the DOD ID cards. Am working on the property tax credit for Wisconsin. Thanks again!

Thanks US Vet and Berta! It is still a dream. I was on my way for vacation with my son, to Vegas of all places, when I saw the 25k check in my account. Talk about celebrations! Berta, I am interested in the ChampVA for my wife. She wants to keep all her doctors, etc. And we have "Obamacare" for her right now, with premium at $100/mo, $50 deductible already satisfied for this year. I think we will get her signed up for champva and just keep both for awhile until we sort it out.

Finally got a decision, and got the 100%, but not for TDIU, they bumped up my 30% rating for AS to 100% permanent and total, also with SMC. It appears that having my Senator contact the VA got them moving. It moved from gathering information to complete in 2 days with a retro check.

Finally got a decision, and got the 100%, but not for TDIU, they bumped up my 30% rating for AS to 100% permanent and total, also with SMC. It appears that having my Senator contact the VA got them moving. It moved from gathering information to complete in 2 days with a retro check.

I just ran across this at http://www.vaclaims-help.com/9.html [40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]” One thing to keep in mind is that if a veteran doesn’t meet the scheduler requirements stated in sub paragraph (a), there is still the possibility of obtaining IU under sub paragraph (b). However, considerations under sub paragraph (b) rarely happen because, first, the RVSR must think you are unable to obtain and maintain a substantial gainful occupation due to your service-connected disabilities, which becomes a judgmental call on their part and, second, if the RVSR thinks you can’t work because of your service-connected disabilities, he/she must submit the claim to the Director of Compensation and Pension in Washington, D.C. for extra scheduler approval. Having said all of this, a veteran still should file the application for IU (VAF 21-8940) if they are unable to work because of their service-connected disability, regardless of their rating percentages. I say this because when a veteran submits VAF 21-8940, it also acts as a claim for an increase in evaluation. If the veteran does not meet the scheduler requirements stated in sub paragraph (a) and submits the IU application, the VA will first see if the disability(ies) warrants an increase in evaluation. If so, they will determine whether the increase then meets the scheduler requirement, and if they do, then VA will address the issue of Individual Unemployability. By submitting VA Form 21-8940 when one is unable to secure and maintain a substantial gainful occupation die to their service-connected disability(ies), regardless of their rating percentages, they protect the earliest effective date possible. Two things I find interesting, both in bold. First, it appears for me to get to Wash DC is maybe a good thing? Since (as it says above), it rarely happens. I interpret that to mean that being successful in the extra schedular is not as rare as having the RSVR actually thinking one is unable to have a gainful occupation, and making the determination that it should go to DC. In the 2nd bold, I am left to wonder what it means. I first made my claim in December 2008, and until now I felt it was a stretch to get any retro activity back to that date, since I just did the IU claim last July of 2013. But all of my SSDI and LTD applications go back to 2002, when i was approved and started receiving benefits. And my form 21-8940 indicates a date of last employment going back to 2002. Might that be the "earliest effective date possible?" If so it would amount to over $230,000 at a minimum. Thing is, given the fact that my claim is in a black hole, speculation is just more torture.:( Oh! And just got another reply from IRIS: This is in response to additional information provided to your inquiry to the Department of Veterans Affairs (VA) dated March 31, 2014. Thank you for your service to our country. After a careful review of our electronic computer file, our records indicate the regional office (RO) has requested a medical opinion from Washington, DC. We assure you that this is in your best interest, as we want to make a fair and accurate claim decision based on sufficient evidence. Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below. Sincerely yours, C. Boyd I love the "best interest" part! There are so many things that would be on my best interest list, none of which the VA has on their list I am sure.

I got a reply via IRIS merely asking the status on my claim, shown below. I wonder what they mean about a medical opinion from Washington D.C.? How do they get involved? "This is in response to your inquiry to the Department of Veterans Affairs (VA) dated March 31, 2014. Thank you for your service to our country. We apologize for the delay in responding to your inquiry. We are currently experiencing a large volume of inquiries and are working as quickly as possible to respond to each in a timely manner. Your claim is currently in the Development Phase of processing. This phase is where we gather all the evidence we need in order to make a decision on your claim. Our systems show that we are currently waiting for medical opinion from Washington, DC. If we determine we need additional information, we will contact you. Currently, claims at the regional office (RO) in Louisville are taking about 12 months to complete. Please understand that these time frames are only averages, and that your claim may take longer based upon the specifics of your claim and VA’s pending workload. We apologize for the length of time it is taking to process your claim, however, we must obtain all the necessary evidence in order to provide a fair and accurate decision on your claim."

Berta, did I mention that my wife of 34 years is named Berta?:) Here is what I have sent to them: Re: Claim for Individual Unemployability To: U.S. Department of Veterans Affairs Louisville VA Regional Office 321 W. Main St., Ste. 390 Louisville, KY 40202 REQUEST FOR EXPEDITED DECISION DUE TO ERROR IN CLAIM HANDLING : In Early 2014 this claim was in the Preparation for Decision Phase. Then it moved back to Gathering of Evidence. When I inquired as to what happened, I was told the following: “Dear .....: This is in response to your inquiry to the Department of Veterans Affairs (VA) dated January 30, 2014 and follow-up e-mail received February 15, 2014. Thank you for your service to our country. Your claim is currently being forwarded to VA Central Office in order to make a determination on IU based on extra schedular. Based on current regulations set forth by congress 38 C.F.R. 3.16 (b)..."rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section." Currently you meet the requirement of an overall combined rating of 70% but the service connected condition that prohibits you from working is currently rated at the 30% and not the required 40%, me must send it forward as an extra schedular. We apologize for the length of time it is taking to make a decision on your claim; however, we are currently experiencing a backlog of claims. The Decision Phase can sometimes be a lengthy process because we want to make sure every claim has a thorough review, as well as a fair and accurate decision. Once your claim is completed you will be contacted by letter. Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below. Sincerely yours, Laura Kuerzi-Rodgers VSC Manager TLN” And on ebenefits, it says the following: “Change of Status: We determined that your claim needed additional review. If additional evidence is needed from you, you will receive a letter from us explaining what is needed.” I respectfully request the VA to call a clear and unmistakable error on their above contemplated action I received via IRIS and to promptly correct it. A claimant cannot adequately prepare a NOD on any decision that is based on violation of established basic VA case law and regulations. Your legal errors in this IRIS response will manifest a detrimental altered outcome for me and, if not promptly corrected, will add to the enormous backlog of claims at the VA due in part to many appeals that could have been done right in the first place. 1. I cite your legal errors thus: I state that the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus: “Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ http://cfr.vlex.com/...idence-19774393 The VA erred in not properly considering my SSDI and LTD awards for my disability of service connected Ankylosing Spondylitis, rated presently at 30% which is prima facie evidence of total unemployability. 2. The VA failed to establish a proper rating of my SC Ankylosing Spondylitis, and it remains in this IRIS response at 30 %. I quote NVLSP (National Veterans Legal Services Program) in their 2013 Edition of the VBM (Veterans Benefits Manual, page 371, Footnote 468,thus: "a request for TDIU is not a separate claim for benefits, but involves an attempt to obtain the appropriate rating for a disability." 3. The third clear and unmistakable error the VA made rests with misapplication of the Extraschedular Consideration regulations as cited in this BVA decision: "Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating." http://www.index.va....es5/1343505.txt 4. In my December 17, 2012 post-determination letter, which assigned the 30% rating for AS, it states "A higher evaluation can be granted under the provisions of 38 CFR 3.321(b)(1); however, a review of all the evidence received did not disclose any unusual or exceptional circumstances, such as those involving marked interference with employment or frequent periods of hospitalization, so as to render the application of the regular schedular standards impractical and warrant consideration of an extra-schedular evaluation by the Director, Compensation and Pension Service." At the time of the receipt of that award letter, the VA had all the information of my SSDI award from 2002, and the information about my LTD claim, both of which were successful approved applications for disability benefits based solely on AS, and as probative should have been considered as evidence. I did not get to the 70% level until many months later when they settled the skin condition issues subsequent to the remand by the VBA, but that 70% level was retroactive to December 2008. I believe the SSDI benefits evidence alone should have triggered a more thorough process into whether I might qualify for IU. For the VA to have stated back in December of 2012 in the award letter that there was no "marked interference with employment..." is preposterous. A case for that conclusion is well founded based on their now "forwarding" the claim for extra schedular consideration with no additional evidence having been submitted since the Dec. 2012 decision, other than an application having been made for IU. 5. I do not have an exceptional disability picture; the evidence is clearly probative and prima facie, that I am totally disabled by my currently rated 30% Ankylosing Spondylitis. In your 2/13/2014 IRIS, it appears the VA provided no rationale or articulate probative medical evidence whatsoever, that would support a continued 30% rating for my service connected disability or a denial of the TDIU issue or even support a logical and legal VACO referral for the Extraschedular Consideration of the TDIU issue. In summary, first the VA erred in the determination of my disability rating going all the way back to the December 2008 date of first application, where they declined to assign a service connected disability rating to my condition of Ankylosing Spondylitis. That decision was overturned in appeal. Secondly the VA erred when they declined to consider Social Security Disability and Long term Disability records they had as early as December of 2008 as evidence of unemployability. It was their duty to assist me in my claim, as well as to make me aware of other benefits I might be entitled to. Finally, the VA has erred in how they are handling my claim for Individual Unemployability, by forwarding it to VACO, when it could have been decided at the VARO level. I submitted all records that were required, if not with the application, soon afterwards, and there has never been a contention by the VA that they are awaiting additional evidence. In as much as all of these errors can be easily remedied by expeditious treatment of my claim, I request that it be done as soon as possible. I do not expect I should be put in line in front of any other veteran, at least no others that started their claim before I did in December 2008, because "a request for TDIU is not a separate claim for benefits, but involves an attempt to obtain the appropriate rating for a disability." Sincerely, (etc.)

Yes, the skin condition was not a matter of record back in 2002 when SSA awarded benefits. I've never claimed that the skin condition prevents employment. However, from time to time I took family medical leave due to the skin condition for bad outbreaks, but I never wanted to muck up the issues by claiming it interferes with work. In a way I understand what the VA has done, and now it appears there is more than one way for them to make a decision, neither of them necessarily resulting in errors of process. I am not ready to say that the way they are handling this has anything to do with the skin condition ratings, it seems to be their position that because the AS disability I am claiming prevents employment, and it is only rated at 30% then they have to go extra schedular. Then I was surprised to learn that almost never is an extra schedular award granted, and that brought me to my OP trying to get an opinion. It appears that I may have a scenario that is not contemplated by any of their rules or guidelines., i.e. "if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more." §4.16 In my case I fit that scenario for multiple ratings adding up to 70%, with at least one at 40 percent, but they have chosen to add a new rule, which is not currently stated. They have pointed out that yes I meet the rules, BUT the disability that is at least 40% is not the reason I cannot work. I don't know, it starts to sound like all gibberish. It is like the guidelines never contemplated that a vet might have multiple ratings and one or more of them DO NOT result in unemployability, but one does.

It is 30% for AS, 50% for scarring of the head, face and neck, 10% scarring of the posterior trunk, 10% for hidradenitis with acne and 0% again for acne. They result in a combined rating of 70%. To clarify, there is one single rating of 50%, and other single ratings of 30,10,10 and zero, none of which results from a combination.

Berta said "Just a draft...I have to add the citation info and maybe throw in a M21-1MR citation" Were you going to make changes to the document?

Also, and I may use this only as a last resort. Every year The Hartford asks me to fill out paperwork to continue my LTD, and have it signed by a doctor. In the previous 10 years or so I had a private doctor I was seeing fill out the paperwork, indicating I have AS and it is permanent, and it prohibits me from working. Since I no longer have private medical insurance, I asked my assigned outpatient primary care doctor at the VA to fill it out, which he did. I gave him a copy of last's years completed form, and he filled out the new one, named AS as the disability, and signed it declaring the condition is permanent. I hestitate to declare it is probative, because he did not base the form on an exam done by himself, but merely on history and possibly VA records he had access to.

As far as the LTD records, they are not referred to in the case so far, but I do have a record they were uploaded and received as "other correspondence" attached to the case history.

As far as how long it takes the VA to get records from the SSA, I do not know, but in this case I have copies of them all and I sent them myself via the upload records function on the ebenefits site. Let me see if i understand the issue Berta. The VA should have made a decision to raise the 30% to a level of IU, based solely on SSA records which deemed me as unemployable, right? And they should not have forwarded my file for consderation of extra schedular, because they have sufficient evidence to make a decision by the VARO?