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HorizontalMike
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Posts posted by HorizontalMike
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9 hours ago, killemall said:
Man...I don't wanna wait another month!!!!!!!!!!
He'll no!!!!
I'm lucky, only been waiting 41 months since my origional claim date. What's another month or two at this point lol.
Keep those updates coming!!!!
Now that we're into September, I'm at 72-monrhs (6yr) on my original claim date, and I feel your anxiety for sure.
FWIW, I am getting the impression of RAMP procedures as something like this... Vets in RAMP will get a decision very quickly, but it appears that being notified of a decision to make a decision, is just one more method/way to string the appeals process out longer and longer. Kind of like punching the "walk light" button (decision #1), and then trying to determine if cross-traffic will prolong the "wait" time before the walk "light turns green" (decision #2). And then while the green walk light is illuminated green, trying to determine if cars turning right on red will actually let reach the other side before the walk light turns red (decision #3) and then the cycle begins again (decision #4 and then again turns into #1). Rinse and repeat until the vet(s) drop out due to attrition/death.
In my case, the authorizing step was claimed by the BVA actually to be a decision just to ALLOW them (BVA) to then to actually make a another decision based on the evidence. Who knows what that "next" decision will be...move my appeal from pile "A" to pile "B"?
BTW, logging onto Vets.gov, it appear that my earlier legacy appeals have been moved into RAMP. The only appeal supposed to move into RAMP was the Oct 2017 (FORM#9) and the other appeals dated (FORM#9 May 2016) were to remain in legacy appeal mode. And currently appeals dating to June 2016 are now being distributed to BVA judges. Am I being screwed by this RAMP unilateral decision or what?
LIKE I CAN BELIEVE ANY OF THE BELOW. BLOW THROUGH ~83,000 CASES IN 2-4 WEEKS? ...'shore...ju-betcha..."
Status of Your Claim
Preparation for Decision
- Submitted: 05/23/2018 (Appeal)
- Estimated Completion: 09/20/2018 - 10/18/2018
- Disabilities Claimed: EFFECTIVE DATE FOR IU (Reopen), SERVICE CONNECTION FOR DEPRESSION (Reopen), INCREASE FOR RESIDUALS OF TBI (Increase), SERVICE CONNECTION FOR SLEEP APNEA (Reopen)
- Representative for VA Claims: ADAM R LUCK
- Current Status: Preparation for Decision
- urrent Status Info Tooltip with additional i
How long until a judge is ready for your appeal?
The Board of Veterans’ Appeals reviews cases in the order they are received. When you completed a VA Form 9 in May 2016, your appeal was added to the Board’s docket, securing your spot in line.
The Board is currently reviewing appeals from June 2016 or older. Your appeal is eligible to be sent to a judge when it is ready for their review.
82,913 Appeals ahead of you
You are here
Front of docket line
195,418 total appeals on the docket
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Looks like another change in direction... AGAIN...
Geez... semantics...
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12 hours ago, broncovet said:
While it did not happen to me, its likely that the first exam had something that was inadequate...perhaps the examiner did not answer all the questions for VA, for example. No need to stress over this. Just be honest, be on time, and tell the examiner about your worst day, not your best day.
Broncovet has great advice here. We are all accustomed to responding to people in our everyday lives, in a well practiced manner when asked how we are doing. The default answer always tends to be "...I''m fine..." or "...Yes, I'm having a good day..." or something to that effect. We tend to answer this/that way in order to NOT have to get into a long protracted conversation with the other person. Don't fall into that trap. Lay it all out to the C&P examiner, in detail.
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Welcome to HadIt! Congrats on your 100% TDIU. PTSD is considered treatable and thus does not usually rate P&T. Best of luck in getting better, and eventually being employable in the future. That said, be careful about how you seek Voc Rehab. I have seen (online) where vets on TDIU get revoked just for "attending" school or other rehab programs. Keep this in mind as you go forward, so you don't get potentially blindsided if this happens. Keep in touch with Hadit, and best of luck!
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6 minutes ago, bpweryz said:
Have been in Pending decision approval since aug 1st. Anyone else in the same boat
Not sure that I have seen "...pending decision approval..." grouped like that before. The BVA is really black&white, they have made a decision or they have not. All of us at this level of appeals get rather anxious and we tend to try and "read" the tea leaves, attempting to predict the final outcome. I am as guilty as, or more so, at doing this and having to constantly remind myself to avoid doing exactly that.
FWIW, mine no longer says "pending decision" or "estimated completion date". Mine states that a decision has been made and that I am being notified of that decision via mail. That said, I have also seen it posted that I have/had been notified, when in fact I (or my lawyer) have NOT been notified with hard copy in the mail. That is why it is very important to constantly monitor your case online through ebenefits/vets.gov frequently. That is/was part of my reasoning in hiring a lawyer as well. Attorneys also have a higher level of access to BVA records than just us veterans, and that is well worth the $$$ IMO.
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I'm guessing here, but is this my RAMP Decision "to be communicated"? Does not say what decision is/was, so I guess I should check another day...
If it is, it is only for an earlier effective date of my TDIU. Still waiting on my other SC issues.
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1 hour ago, broncovet said:
Mike, I have had 3 attorneys and each was the same way:
"...We all have made choices in life, some were good, some not so good. You, too, could have studied hard and been a doctor or lawyer, but chose another path..."
Once, there was a lawyer who called a plumber to fix his sink. The plumber fixed it, and handed the bill to the lawyer for $400. The lawyer goes, "Gee, you were here 20 minutes, that is 1200 per hour, and Im a well known attorney and I dont make 1200 per hour.!!!"
The plumber responds, "You are right. When I was an attorney, I didnt make that 1200 per hour either."
You got it Broncovet.
My Doctorate in Educational Administration is in neither Medicine, nor Jurisprudence. My Doctorate was in another area, and I am sure there lies much of my problem in trying to be patient now. I gained an equivalent level of education and thinking skills and just hate not being kept informed. Geez, I have/had the qualifications to run the institutions that those types attended as students!!...
FWIW, after my TBI (unknown to me for decades) I over-compensated by pursuing more and more education. Problem was/is that my TBI did not allow me to get along with others and ended up alienating me at work and home, regardless of a bigger Desk/Position/Professional License/Doctorate. I just kept getting pushed elsewhere every ~2yr. I hate having such an invisible disability
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9 hours ago, broncovet said:
Yes, its possible you dont know about an IMO. An IME (Independent medical exam), however, requires your presence, while a IMO (Doctors opinion) does not require your presence, only your medical records.
Wow... Isn't THAT interesting...
Well, I can only hope that my attorney is actually doing that. The lack of his notification(s) just wears me out, trying to understand. Four years ago, while he and Julie were just starting up their practice together (and I finally hired them after +2yr without an attorney), they both were much more communicative and responsive to my queries. I guess that means that their case load(s) have gone way up, and hopefully their experience with it... We'll see...
This anal retentive vet has a hard time with "...I've gotta secret..." Knowing my past +40yr, and how I don't deal with this kind of crap, I'm sure my TBI is contributing to my frustration...
"...Just keep quiet Mike and sit on your hands Mike, sit on your hands Mike,... sit on..."
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Well Broncovet, I guess I am about to find out if my RAMP claim gets decided before my Legacy claims do. According to the VA "customer service" page, my MAY 2016 legacy claims are NOW being distributed to the BVA Judges. That just showed up on their webpage. How long it will take now, who knows. Please note that my attorney has not informed me what level my RAMP claim is submitted for.
QUESTION: Can one's lawyer just go ahead and get IMOs from doctors without you, the patient/vet, actually visiting said doctor(s)? In other words, without me even knowing about it?
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On 8/12/2018 at 3:31 PM, broncovet said:
Mike,
I have no idea if your attorneys ignored this, or maybe they just did not tell you, and DID have your back. You should find out in a few months or so.
This attorney no longer represents me, as I "won" a remand at cavc, got most of my attorney fees paid by EAJA. Then, the remand decision happened and I "won" but was not satisfied with the effective date of that board decision. Julie Glover elected not to repesent me (again), so I hired Chris Attig, instead, since I was again, at the cavc level.
I have now been represented by 3 attorneys, tho not by choice. One, the NVLSP, 2 Julie Glover, and 3, Chris ATTIG.
My experience has been that attorneys do very little or no "hand holding". They are not our counselors, they dont write us long emails detailing a rebuttal to our newest entitlement theory we sent them. While we may not think so, they dont make all that much money.
I think Julie billed EAJA for about 30 hours of attorney time. That was not near enough. My cfile was at least 1500 pages long. JUst to read that, if you can read a page in 2 minutes, is 50 hours. (Its a very fast reader to read a page in 2 minutes) This is not to prepare a brief, not to do anything..just read my file. So, she had to have done a lot of work and not get paid for it. Lots of it.
I dont know about you, but I dont like working and not getting paid...for all my hours. (Whatever the hourly rate is) You probably also wanted to get paid for all your hours worked when you worked by the hour.
So, I did/do not get a lot of handholding and they dont send me a letter then discuss ramp on the phone for an hour. No. They simply just do what they think is best. I dont blame them. I dont call every Veteran and explain every thing to them either. I tell them to go to hadit, read all they can, if their question is not answered I will try to get to their question, but others might instead. Im glad others answer questions.
VA law is not all that lucrative. At least one attorney I met "no longer does Vets benefits". Why? Well would you like to work for a man and then "maybe" get paid 5 years later? Its no wonder so few want to do Vets law.
Anyway, Chris Attig is also extremely busy and does not return every call and answer every time I ask him if he thinks this or that will fly. I read his brief he filed for me, and it was very very good, and he described my claim way better than I could. So did Julie.
I suggest you "hang in there"..with RAMP, you will likely know something maybe by the end of this year. I am glad at least one attorney recommends RAMP, as most dont like it. You will like it also, if you get some retro, even if you still have to appeal effective dates or whatever. Anything is better than waiting 5 more years on an appeal in my opinion.
Broncovet,
Yeah, understand the above. Sometimes it just takes me longer (TBI) than others. Though, I have not talked with Adam Luck on the phone for about 2years, and it had been since last December for getting any email contact. And that email was only to communicate the docket number(s) that I had requested. Trying real hard to sit on my hands and not react(overreact), but my MDD is very real and often gets in the way.
That said, I just discovered the "new" ebenefits page via IDME.ME and did not realize that this existed/exists. How long have I missed noticing this one? Will have to play around with this link and see what it offers... Any quick tips?
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On 8/11/2018 at 1:27 AM, pwrslm said:
My NOD--> RAMP took about 65 days +/- from 15 May 2018. It was originally 6 Sep 2018-15 Dec 2018 but closed 19 Jul 2018.
Dont go by the EBenefits estimation, its never right.
It sounds like the RAMP your Atty put part of you claim for the earlier effective date in should be done pretty fast.
Looks like my "lucky" attorney put the RAMP in on May 23, 2018 just one week after your RAMP date. So I am on day #81 of my partial conversion to RAMP. We'll have to see just what goes forward.
In my attorney's quoted email above, he is/has ignored a very important aspect of my appeal, and that is service connection for and rating of my Sleep Apnea and Major Depression along with the needed IMOs. I have a disturbing feeling that my attorneys are going to take the 100% TDIU as an end-all AND RUN ignoring their promised IMOs for OSA and MDD. That would exclude any SMC retro or future, or about $350/month going forward and $+25,000 of retro SMC. One would think that these lawyers would like that additional 20%/$5,000 in their pocket as well, but who knows...
They are already due ~$9,000 or so if/when the 100% TDIU retro portion goes through.
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Well, I just found out that my "lucky"(Bronco will recognize the name) attorney had already opted me into RAMP back on May 23, 2018 AND NEVER EVEN BOTHERED TO NOTIFY ME! The only way I found out was logging into eBenefits two days ago, 8/8/2018. According to my "lucky" attorney:
September marks 6-years on my claim(s). We have been at the BVA level for over 2-years, Form-9 date May 2016. Currently BVA cases are being distributed to the Judges up through March 2016 appeals dates.
So what does this actually mean for me? IMO, it looks like my current legacy appeals are probably going to be heard/decided BEFORE any RAMP decision. I'm still trying to wrap my head around this, however...
Estimated RAMP Decision date, 9/3/2018---11/20/2018.
QuoteHi Michael,
I checked on your case and everything is fine. You technically have 4 pending appeals (earlier effective date for IU, earlier effective date for TBI residuals, service connection for depression, and service connection for sleep apnea). Since your appeal for the effective date of your IU is a newer appeal (Form 9 filed in Oct 2017 vs. May 2016 like the other 3 appeals), we opted that issue into the RAMP program (the other 3 appeals don’t qualify since they are already activated at the Board). Since RAMP is a pilot program there is a disconnect between what is done on paper and how the information shows up in eBenefits because eBenefits does not have the capability to account for RAMP items. Therefore, when you see “appeal complete” it actually means “the appeal has been moved into the RAMP program”. Simply put, the VA never took the time to update eBenefits when it rolled out RAMP. Hence the confusion.
When we argue the effective date for TBI residuals at the Board it will actually include an argument for IU as well so the RAMP process on that claim is purely an effort to get your claim granted faster. If it is granted under RAMP, great, we saved some time and got you a faster decision. If it is denied under RAMP, no big deal because it is still part of the other appeal items that are already at the Board, so we didn’t lose any time.
I hope this makes sense. Please let me know if you have any questions. Have a great day.
[unquote]
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19 hours ago, Buck52 said:
Mike
''Your combined service-connected evaluation is: 70%' if you had another separate condition rated at 90% then that would meet the SMC Criteria'
From a 70% s.c. rating your IU P&Tb/c they used the 4.16 extra scheduler rating criteria to boost you up to the IU P&T because your s.c. condition's keep you from working.
I would love to see the CFR regulation stating that if a Veteran is granted IU P&T stand alone rating, then he meets the SMC Criteria. statutory/mandatory or if he/she can not leave home for work under the house bound in fact rule..or any regulatory revisions like Howell vs Nic I've read Howell but don't truly understand it.
also on Asknod blog he goes further than the Howell revision.
Quote from Asknod blog
''What was lost here is very important:''
''Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the
claimant is restricted to his house except for medical treatment purposes.''I've just never
seen the regulation? that if a veteran is IU he /she is entitled to the SMC?? and I know there's some members here at hadit that have been granted the SMC S H.B. for this purpose....
Have you been denied the SMC S H.B based on your IU P&T Award?
Asknod explains this TDIU and SMC-HB issue, better here:
https://asknod.org/2014/08/16/smc-s-attempting-to-cue-old-tdiu-decisions/
"...Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all. Mr. Howell does not contest this interpretation.
Having synthesized the essence of the interpretation, the Court proceeds to apply the coup d’ grace on the Veterans Law Judge.
Accordingly, we hold that leaving one’s house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC-HB benefits, and the Board’s interpretation of section 1114(s) to preclude the grant of SMC benefits on the basis of Mr. Howell’s leaving his house in order to attend VA medical appointments was erroneous as a matter of law.
That, fellow Veterans, is your can opener when you get hit with something like this. I have read numerous decisions that cite to the fact that the Veteran was able to attend his/her appointments and thus was free to move about the country.
The holding is well-cited and will stand you in good stead when they try to pull the blinders over your eyes. Always remember, Veterans. VA doesn’t know the law any better than your VSO or you. They make stuff up and run with it. If you are lucky enough to catch it or have an astute rainmaker who does, you will prevail. I can’t count how many Vets have come to me over the years and try to quote law to me to show why they lost. If 67% of all VA decisions are overturned, remanded, vacated or set aside for error or incorrect reasons and bases at the CAVC, then the smart money says appeal it. What is remarkable is that only a small number of Vets do so. Go figure..."
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16 minutes ago, Buck52 said:
I Believe the kicker her for you is if your not P&T IU then that stops the qualification for the SMC S H.B.
Although you maybe total IU but if your not P&T with the IU Rating then that's the kicker.
Buck,
This is copied directly off my VA Benefits Letter ( I only xx'd out dates). I am P&T. What Broncovet and I both hope and are working for is to have the VA recognize the TDIU actually IS "substantially housebound in fact" and thus qualify for SMC-HB.
VA Benefit Information
Summary of benefit information
You have one or more service-connected disabilities: Yes
Your combined service-connected evaluation is: 70%
Your current monthly award amount is: $2973.86
The effective date of the last change to your current award was: xxxx,xx,xxxx
You are being paid at the 100 percent rate because you are unemployable due to your service-connected disabilities: Yes
You are considered to be totally and permanently disabled due solely to your service-connected disabilities: Yes
The effective date of when you became totally and permanently disabled due to your service-connected disabilities: xxxx,xx xxxxHowell v Nicholson
https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/
AND WITHIN:
"...Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the
claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all..." -
20 minutes ago, Buck52 said:
okay
your 70%IU ....can you see the connection here? you need another 90% rating to meet the SMC Criteria
if you do not have a higher rating to boost your 70% or 80% with the 10% tinnitus added in you still will need a much higher rating at least 90% to boost you to the SMC S Criteria.
I was 90% TDIU P& T Being paid at the 100% rate with the Extra P&T Benenfit's
OK now with my already 90% and the 70% added in 2014 for the PTSD that is what boosted me up to the SMC S H.B....Unfortantately your under the 90% your 70%/80%..so you will need another S.C. Condition rated at 90% for them to grant the SMC S. H.B. Using VA Math.
70% IU and another S.C. Condition rated at 90% will meet the SMC Criteria According to VA Math.
Now with that said I do not understand it when a Veteran can get SMC S for being IU because he can't leave home for work? & then he is considered H.B. they have been giving this award out to veterans but I truly think it depends how severe the s.c.condition is or conditions and his age if your over 55 then that helps.
I am 100% TDIU, not 70%. I am not looking at getting 100% statutory. From what I understand, the 100% TDIU actually IS a total rating when connecting the dots for SMC. My MDD and OSA are what is being appealed for service connection at the BVA. Case will probably be heard about May 2019, based on my FORM9 filing date.
Basically, from what I understand is that I need just one additional 50% from either MDD or OSA to be added to my 10% Tinnitus to get to the magic "160%" for SMC.
From what Broncovet and I were discussing deals with the SMC-HB and 100% TDIU. Broncovet's links above appear to indicate that they actually do apply... that 100% TDIU should qualify for SMC-HB "housebound", since I am basically "housebound" because I cannot leave the house and/to earn a living.
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8 minutes ago, Buck52 said:
HorizontalMike
What are your ratings? are you IU at a combined ratings? or 100%?
Do you have a seperate & distinct condition rated 60% or higher? (along with what your currently rated at)
SMC is not a rating its a momentary service for veterans that have severe chronic injury or disease due to there S.C. CONDITIONS! (which is the Veterans burden of proof) with medical documentation.
I hear that a Veteran with TDIU P&T can get SMC S H.B on the fact that he can't leave home for work so to the VA this makes him HouseBound.
Obviously they must never had this when I got my 90% Combined rating for TDIU P&T in 2002, I was never given the SMC S H.B. back then(2002)
Moving forward I filed a PTSD Claim in 2013 I was awarded 70% PTSD IN 2014 and since I was TDIU P&T they inferred the SMC S H.B. and I am 65. (age is not supposed to be a factor but in my opinion it truly is.)
Anyway That made me 100% as a final degree and met the criteria for the SMC S H.B.
TBI = 70% (this singularly got me the 100% TDIU)
10% Tinnitus
TBD -- MDD
TBD -- OSA w-CPAP
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On 5/12/2018 at 4:13 PM, broncovet said:
EVERY VET who is TDIU should get SMC S, per Howell:
Referring to Howell:
https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/
In pertinent part, noting that this is not "statutory" SMC S, but rather, "housebound in fact":
Here is why I think every TDIU Vet should get housebound: If you are "unable to maintain SGE due to SC conditions", then you are unable to "leave the house in order to earn an income". If you are not able to work, then you arent able to leave the home TO GO TO WORK. Duh!!!
I will be fighting this fight with VA soon, but since I'm at the CAVC, I am waiting for my turn at the BVA for the SMC S issue. (Im at cavc about effective dates, and going to the BVA on a different issue, that is, SMC S.)
THANKS!
Howell v. Nicholson = Bingo!
And
Senate Report No. 1745-- U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2) = DOUBLE BINGO!
Questions:
- Since you appear to also be working on this, what is your opinion as to HOW can a veteran avoid the VA getting hung up on, distracted off-task with SMC-AA and SMC-S, and get directly TO SMC-HB "housebound in fact"?
- Currently the Board of Appeals is distributing cases from "June 2015" to the Judges. My FORM-9 was filed May 2016 and forwarded to Washington D.C. out of the local VARO's jurisdiction. As you can see above, I am currently less than 100% statutory and appealing Service Connection for both MDD and OSA. Do I have wait for these BEFORE claiming the "housebound in fact"?
- Is the VA going to argue that TDIU 100% actually is the "replacement" for SMC-HB? Can they do that? Or should TDIU compensation BE at the SMC-HB rate of compensation?
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1 hour ago, broncovet said:
Given what you posted, I would have to agree its a slam dunk, but its always best to not underestimate your opponent, or overestimate your own poker hand.
I take it you have reviewed your own file, and made sure everything else is in place. Im sure you know that a secondary nexus needs but 2 elements, since the primary established the "in service event or aggravation":
1. Current diagnosis of MDD (and TBI).
2. Your doctors nexus, that your MDD is "at least as likely as not secondary to your TBI".
As far as the mandantory MDD secondary to TBI, remember that does not establish a disability percentage, that is, your MDD could be at 0 percent, which wouldnt help you.
I think the bit about the secondary part of the primary is for the purposes of "seperate and distinct" criteria for statuatory SMC S...it means that the primary and secondary are NOT seperate and distinct from each other. In other words, a rating for MDD is not "seprate and distinct" from your TBI. That is, you wont be getting statuatory SMC S out of this.
As far as the pyramiding being prohibited, this is in reference to symptoms for different diagnosis. Refer to the criteria for mental health disorders, which are lumped into one. Let me explain with an example: Lets say you have "total occupational Impairment" because you have symptoms of repeatedly getting into arguements with supervisors. Well, you wont be compensated for THIS symptom in both TBI and depression...at least this is the way I interpret it.
My advice is to not overthink your case. Do the best job you can when you apply...update if needed, but you need to simply wait for the envelope. While waiting I like to make a plan for each of the following senarios:
1. Denial. Here I would be thinking about an attorney for the CAVC, if you dont have one anymore.
2. Award. You can estimate the retro, and plan out what you want to do with the money.
At this point, if you have given VA all the information they requested, and provided all the evidence, then you need to simply wait for the envelope.
Thinking out loud Brocovet, so how does this sound?
You bring up a good point about "separate and distinct". As I gather, it would/will be best to argue that my MDD stand on its own as a disability and NOT Secondary to TBI. I have not spoken with my lawyer (Adam Luck, which you know) for over a year or more, but I am now beginning to understand that he may be suggesting something similar. Look at my attached (below) "disabilities" from ebenefits, where it currently shows MMD "not serviced connected". It has been listed by the VARO as a stand alone disability and NOT secondary to anything.
QUESTION: Would or could it be important that my "severe adjustment problems" diagnosis occurred six (6) months after my TBI and thus has a distinct/different etiology:
- My "severe adjustment problems" diagnosis/note from my ship's doctor makes absolutely NO reference to my earlier TBI in any way... thus IMO separate and distinct.
- After all, looking at all the disabilities ratings criteria, we constantly see things like "one or more of..." then a list of multiple choices. Surely the VARO/BVA understands that THAT shopping list does NOT mean that a particular veteran has ALL items in any particular rating category of symptoms.
- This is where I think that the VARO goes off-task inferring that if I have disability A. in a category that has/includes "One or more of, A.B.C.D.E. and F." listed, then they want to insist that any diagnosis that has B.C.D.E. and F. cannot be used elsewhere, because of an existing diagnosis A.
QUESTION: Does the "Medical Description" (seeing rating letter below) limit what is considered duplicative or overlapping "symptomatology" in my TDIU determination?
______________
FROM a 2017 BVA Decision (I found this while researching recent rulings):
Citation Nr: 1736081
Decision Date: 08/30/17 Archive Date: 09/06/17
DOCKET NO. 13-25 163 ) DATE ) )
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia"...Rather, Diagnostic Code 8045 provides explicit instruction as to rating only "purely neurological disabilities" and "purely subjective complaints" associated with trauma to the brain. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). A diagnosed mental disorder, such as major depressive disorder or anxiety disorder, is neither a neurological disability nor a subjective complaint under the rating schedule; it is a separate disability. In this regard, the Board reiterates that separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See 38 C.F.R. § 4.14 (2016); Esteban, 6 Vet. App. at 261-62..."
_______________
and
MY RATING DECISION LETTER EXCERPTS Below:
What We Decided
If this account is no longer open, please notify us immediately.
We determined that the following service connected condition has worsened, so we granted
an increase in your assigned percentage:
Medical Description Old Percent New Percent Effective Date
(%) Assigned (%)Assigned
Residuals of traumatic 40% 70% Jul 8, 2015
brain injury to include
mild memory loss,
abnormal social
behavior, insomina
and light sensitivityBasic eligibility to Dependents' Educational Assistance is established from July 8, 2015.
We assigned a permanent 100% disability evaluation for your service connected disabilities
effective July 8, 2015.We granted entitlement to the 100% rate effective July 8, 2015, because you are unable to
work due to your service connected disabilities.No examination will be scheduled in the future for your permanent and total disabilities.
Your overall or combined rating is 70%. We do not add the individual percentages of each
condition to determine your combined rating. We use a combined rating table that considers
the effect from the most serious to the least serious conditions.THIS IS CONSIDERED A PARTIAL GRANT OF BENEFITS SOUGHT ON APPEAL
We have withheld 20% from your award for attorney fees per your signed agreement we
received with your private attorney. You will receive a separate letter regarding this
withholding in the near future.
We have enclosed a copy of your Rating Decision for your review. It provides a detailed
explanation of our decision, the evidence considered, and the reasons for our decision...
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On 1/6/2017 at 11:04 AM, paulcolrain said:
ok so.... little more news about docket #s
so when you file your form9 not your nod date not your claim date... its the date you file your form9 for appeal at bva.. not your dro , the bva. then it starts time. i dont mean to sound this way but so much he said she said on here....
the date you sign the form 9 and it is put through the checklists is the day you get a docket. this docket is not disclosed to you the veteran because you probably have an issue with it. thats another point but,.,,,
so if you have a few different appeals going and your newest appeal has yet to get a formal form9 then the bva mysteriously is allowed to give you a docket year of the last one. no matter if the others are older... if they roll all into one then you get the last date.
some might say who have royalty payments... well its because they are contentions close to each other...FALSE .... EARS HAVE NOTHING TO DO WITH ANKLES...... HANDS HAVE NOTHING TO DO WITH ERECTIONS.......
ANYWAY..... GET IN ON THE DISAGREEMENTS OF THE DOCKET RULES AND FIGHT.... ITS ABOUT US BUT ALSO THE ONES TO COME.....
I agree with all of the above but would like to add that you MAY NEED TO follow up with the VARO about the form9 date. As in, did they actually log it in? My form9 was NOT entered into the system for four (4) months and it was only when I got an erroneous ruling from my VARO (NOT a judge) that I questioned WTF was going on. Got my lawyer on it and I soon finally received notice/letter that my appeal had been forwarded to the Board of Veteran's Appeals in Washington DC.
Give'm Hell!
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Still waiting on my appeal +5-1/2yr and counting. Looks like "... the Board is generally distributing cases to Veterans Law Judges for adjudication with docket dates up to June 2015..." and mine was filed May2016, so maybe in another year...
Looking at other records to show SC for my Major Depressive Disorder (MDD). In my C-file I found a clinical record/consultation Sheet where my Ship's Doctor requested a Neural Psychiatric evaluation for me off ship. My Ship's Doctor noted:
“…20 yo WM with severe adjustment problems to Navy, absolutely
refuses to cooperate with peers or officers. (‘that’s just the
way I am.’) Please evaluate, make recommendations for disposition.signed R. Martin, M.D.…”
My QUESTION: Doesn't the above quotation, "severe adjustment problems" constitute a valid diagnosis under §4.130 Schedule of ratings—mental disorders "...9440 Chronic adjustment disorder..." since it was diagnosed/signed by the Ship's Doctor?
In my Disability Rating Letter, "...The examiner stated that you also have a diagnosis of depression which may also cause changes in cognitive function, but because of the considerable overlap of
symptoms between TBI and depression, it is not possible to determine if the cognitive symptoms are specifically related to either TBI or depression without use of mere speculation. The issue of
depression is currently on appeal and will be addressed at a later date by the Appeal team..." and "...This is a partial grant of benefits sought on Appeal..."I also attached a copy of §3.310—Disabilities that are proximately due to, or aggravated by, service-connected disease or injury because it clarifies that Depression shall be considered a secondary SC disability/condition.
Isn't this a slam-dunk? Is the VARO just jacking me around or is there actually more to it than that?
s3_310 Disabilities that are Secondary Service Connected to Original Disability.pdf
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On 2/16/2018 at 5:12 PM, Inarticulate&Distorted said:
So, i think i may have been approved for my TDIU Claim, no reason for them to pay my Lawyer if i didn't win right????
That was my experience. The remaing question is... at what rate/percent?
Great news I hope!
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Here in Texas it is a one consent State where only one party needs to give approval to record (and you are that one party in this case). I recorded my DRO hearing.
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Unfortunate, but here is the answer:
https://www.blogs.va.gov/VAntage/43654/va-contingency-plan-2017/
Appendix C – Functions to be Suspended
BVA Claims appeals will be discontinued -
Unfortunately, it looks like all BVA appeals will be suspended during shut-down. Never mind that the BVA is behind several years as it is... }8-(
https://www.blogs.va.gov/VAntage/43654/va-contingency-plan-2017/
Appendix C – Functions to be Suspended
Organization Functions to be Suspended VHA None BVA Claims appeals will be discontinued
VA Agents List 2018
in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC
Posted
Boy I agree with you Buck! My C-File dates from the early 1970s when everything was hard copy. BTW, the best part about those hand written hard copies is that when YOU scan them in with your home scanner you can take them into Photoshop or some other photo editor and play with the exposure and contrast levels and bring up what was next to invisible. Lowering the contrast is very helpful.