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HorizontalMike
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UPDATE:
Even though the FORM 9 was filed with the VARO on May 10, 2016 it has taken UNTIL Oct. 6, 2016 (five months) to even acknowledge that the FORM 9 has been received. I even had to send the VARO and additional copy of it when I filed my annual "unemployment" form. Sent everything as Cert.&Signature as well.
In the mean time, my sleep apnea appeal was inadvertently denied (without a DRO hearing) and that needed correcting. It was on that FORM 9, BTW.
Since this was just posted on eBenefits yesterday, I have NOT received a BVA docket number yet. I also understand that this could take an additional couple of years or more to come to fruition (+4yr and counting).
Appeal Pending - Notice of Disagreement
VA has received your Notice of Disagreement. You will be receiving a communication from VA in the near future describing the next steps of your appeal.
Date not available
Appeal Pending - Notice of Disagreement
VA has received your Notice of Disagreement. You will be receiving a communication from VA in the near future describing the next steps of your appeal.
Date not available
Appeal Pending - Notice of Disagreement
VA has received your Notice of Disagreement. You will be receiving a communication from VA in the near future describing the next steps of your appeal.
Date not available
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I know that this is dated, HOWEVER, I feel it is important to note the importance of the deflection/diversion that the VA is attempting. Pay attention to THAT and you may see what the VA TRULY fears. Pay attention at all times!
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13 hours ago, Berta said:
I hope your lawyer agrees with it....
https://www.lawserver.com/law/country/us/cfr/38_cfr_3-310
GREAT citation Mike, but I think you mean 38 CFR 3.310 (d) iv.....and not (d) 1
I have no time to read it further until tomorrow but others will chime in.....
You are right Berta! At least sorta... Using your link, it should be 38 CFR 3.310 (d) (1) (iv)
I didn't catch that until you pointed it out. I think that just having the (1) may be enough since all of the (i),(ii),(iii),(iv), and (v) fall under 38 CFR 3.310 (d)(1). Right?
"...(d) Traumatic brain injury. (1) In a veteran who has a service-connected traumatic brain injury, the following shall be held to be the proximate result of the service-connected traumatic brain injury (TBI), in the absence of clear evidence to the contrary: ..."
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I got this email from my lawyer with the above Form 9 write-up. Notice how the lawyer is taking a double pronged approach, filing a NOD (on the TDIU rating) PLUS the Form 9 appeal to the BVA Board. I probably would not have thought to do that, so I am very happy/pleased to have a good lawyer on my side. Sure takes the stress out of much of this... 8-)
QuoteEMAIL from my lawyer:
Regarding the effective date for your TBI (and TDIU), that will be a twofold approach. I included it as an appeal in the Form 9 but will also be filing a NOD with the rating decision granting the TDIU. Sending the issue of effective date down both channels should open the door for a faster decision since it could be made by either the Board or a DRO.
We will keep pushing the appeal along so we can get it to the Board as quickly as possible and get a favorable decision. Have a great day!..."
[UNQUOTE]
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I thought I would share this Form 9 info because, even though I am 100% TDIU, the VA has screwed up the effective date, thus shorting me and my lawyer out of roughly $73k. When all is said and done, THIS is why disabled veterans should hire a lawyer.
Do note the various "tricks" that the VA uses to deny appeals. This is what you can expect from the VA, unfortunately. Keep your eyes wide open, if you are at this stage of the process.
This document was scanned and OCR'ed but several mistakes in the OCR are still present. Please ignore the grammatical errors and such:
QuoteMr. XXXXX disagrees with all decisions and reasons and bases contained in his Statement of the Case dated April 15,2016. Specifically,Mr. XXXXX asserts that DRO relied on an inadequate C&P exam that was directly contradicted by the evidence of record and the VA's own concessions.
Additionally, the DRO failed to consider 38 C.F.R. § 3.310{d)( 1) which provides for presumptive service connection of depression if it manifests
within 3 years of a moderate TBI. The Regional Office has already conceded that XXXX suffered a moderate TBI in service in October 1972. It also conceded that XXXX began being treated for symptoms of depression in 1973 which is within 3 years of his TBI. Had the DRO recognized that the C&P exam was inadequate and that XXXX met the requirements for presumptive service connection,then service connection for his depression would have been granted.
Additionally, the DRO failed to assign an earlier effective date for XXXX's 70 percent rating for his TBI because he mistakenly considered XXXX's 21-8940 for TDIU as a claim for increased rating rather than considering his claim as an appeal. As an initial matter, XXXX submitted the 8940 on July 8,2015 at the DRO's request during a hearing held on July 6, 2015. XXXX noted that his claim for TOIU was reasonably raised by the record and the DRO agreed but stated that he was unable to render a decision on TDIU without an 8940 on file per the new VA regulations. The DRO then improperly adjudicated XXXX's appeal of his TBI rating as if it was a new claim rather than an issue on appeal and used the date of the 8940 as the effective date of his increased rating. However.XXXX specifically disagreed with the original 40 percent rating he was given in a rating decision
dated October 19, 2013 and timely filed a notice of disagreement on March 6, 2014.Therefore, the original rating for his TBI was on appeal and his effective date was preserved.The 8940 requested by the DRO should not have been considered as a claim for increased rating of TBI. Additionally, the DRO failed to consider or discuss the favorable evidence of record that shows XXXX's TBI warranted a 70 percent rating since his original date of claim on September 17,2012 . The medical and lay evidence of record is consistent with the VA examiner's findings noting that XXXX's TBI results in a level 3 severity in the neurobehavioral effects which warrants a 70 percent rating.
This same reasoning is true for XXXX's 100 percent rating under TDIU.The DRO failed to consider and discuss evidence from 2006 to the present confirming that XXXX was unemployable due to his service connected disabilities.The DRO merely construed the 8940,that he specifically requested in the hearing, as a new claim. despite specifically discussing and conceding that the issue of TDIU was reasonably raised by the record because XXXX requested the highest possible rating and provided evidence that his service connected disabilities render him unemployable. In fact,XXXX specifically submitted several documents from employers and medical providers supporting his claims that he is unemployable.yet these were ignored by the DRO.
Finally,XXXX asserts that his sleep apnea is service connected.The DRO continued to misconstrue XXXX's claim as secondary to sleep apnea despite his specific clarification in written arguments from is representative stating "XXXX cl arifies that he is not claimi ng that hi s sleep apnea i s secondarv to his TBI but rather that the events that caused his TB I also caused his sleep apnea, which first mani fested dur ing service." Due to this error, the DRO failed to consider in-service incurrent of XXXX's sleep apnea and failed to consider all the favorable evidence of record.
[UNQUOTE]
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On 4/5/2016 at 4:17 PM, Berta said:
WOW! Yes those benefits are fabulous...There may even be a property tax exemption for you in your state or local.
You bet! After getting my 100% TDIU in December, I went to the property tax office and received 100% off on my property taxes! The only taxes I still had was for my "barn"/garage that is a standalone structure (<$200). I saved almost $2k/yr in taxes going forward! Ye Haw!
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On 3/25/2016 at 4:40 PM, DevilDog12 said:
I sent an email via IRIS this morning, and the Regional Office just called me and said it was a mistake on their part, a CUE, and no money will have to be paid back. They did screw up my retro date, however they said it was no fault of my own, and therefore the Overpayment is waived. What a relief!!!
I sure hope you at least recorded that conversation. It would not be impossible for the VA to "deny" ever having talked to you. Just saying (born skeptic).
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My SC OSA is still pending... DRO in July 2015 and C&Ps in September, and got the 100% TDIU in Dec. 2015, however NO movement on my OSA or my MDD appeals and this is the end of March 2016. I do not even have a Rating Letter from the VARO for anything at all. Logging into eBenefits only shows the NODs for the above.
The only positive is I have been getting my 100% compensation since Dec. 2015. Wrong retro/effective date but I at least now getting my monthly 100% $$$$.
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On 3/23/2016 at 6:18 PM, bangbangboom said:
So, my claim went from preparing for notification on Friday and Complete today, Wed. I called and they stated my packet will be put in the mail tomorrow, the 26th. When I click on disabilities it shows my secondary claim as not service connected with no change to my percentage. Is this a sure sign I was denied or could the system just not have updated fully yet?
Just like yours... my claims appeal has been "Complete" since Dec 2015, YET I have not received any "Rating Letter" at all. And this is FOUR months later. My MDD and my OSA appeals are still marked as NOT service connected. Please note that I have NOT received any/even a "Statement of Case" (SOC) regarding any denials regarding my claims appeal.
IMO, the VARO has their head up their sphincter in not sending a Rating Letter. Or better yet, this is a conscious effort on the VARO's part to postpone/deny my retro-benefits/check as long as possible, thus trying to wear out my lawyer's patience in their trying to get my lawyers' 20% of roughly $75,000 of correct retro-monies.
BTW, I got my 100% TDIU in December 2015, but it only used an effective date back to August 2015 just FOUR months earlier, some 3-years SHORT of my original claim date that would include my MDD and OSA. And get this, MDD is Secondary Service connected by the VA's own rules, yet the VARO is holding out even after that last C&P also opined "...it is as likely as not..." service connected.
So in the mean time, I am now getting compensated at the 100% rate WITHOUT getting either MY nor MY LAWYERs' retro. Frustrating to say the least.
Interesting read regarding secondary service connections with my TBI:
http://www.nolo.com/legal-encyclopedia/new-rules-veterans-disability-related-brain-injury.html
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8 minutes ago, Buck52 said:
I would suggest you fill out the questioner and send it in to your desanated ''Claims Intake Center'' ASAP.
...[snip]...
I am going to be sending one in every year from now on or until RO sends me a letter telling me not to and guard that letter with my life.
its always better to be safe than sorry.
jmo
.................Buck
BINGO BUCK! You can never have too much info for the VA. Great plan.
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7 hours ago, green said:
I just read the linked article and found it very interesting. In particular the General Counsel's decision to look for language that would allow a Vet to have Legal Representation accompany them or allow a vet to record an appointment. The decision was was based on there being no statutory language that allowed/suggested the idea of accompanying representation or the use of a recording device neither could be allowed. They didn't take the perspective that since it wasn't specifically prohibited it could be allowed (which I believe they should have in this situation). Something is seriously broken in this interpretation.....
Much has changed in the following 25years since that article. I record when I feel the need (SC short term memory issues). Also, please remember that Federal Law and State Law trumps any and all "policies" that the Va may try to institute.
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4 minutes ago, Andyman73 said:
Bingo! I mean, strike 2! Now that I'm behind on the count I don't want to see the next pitch coming down the pike. Sigh...ironically they gave me the number to the DAV and suggested that I call them. They already struck out without even swinging at a single pitch, for me.
I know this may not sound very good, however, your recent news may actually have a silver lining in that getting such news from an attorney's office may/can help in determining how best to spend your time and effort. This whole disability claims process consumes weeks/months/years of one's time, so having a head's up on what may be your chances of success/failure can possibly save you a lot of grief (from proverbially beating your head against the VA Brick Wall, so to speak).
The only possible suggestion I might have is to try and ask about what points of your case were missing or needed further documentation. Not easy getting such information from a law firm that doesn't want to take your case, but worth a try. Or take that attitude to a new attorney and make the inquiry. Good luck.
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16 hours ago, Gastone said:
Bronco: Based on no personal experience with BVA Lawyers, my understanding is, that just about all VA Lawyers, especially those hired strictly for CAVC representation accept the Legal Fees Awarded as payment in full.
25 years ago, if you Retained a Skilled Lawyer for a Civil case, it was right in the contract that if the case didn't settle, an Additional min $10K had to be paid against the clock, for the Trial representation. This was in addition to the Initial Retainer of $3K and hrly 150-250. What's the Avg Legal fees for a CAVC, probably well north of $30K.
Semper Fi
Yeah, things are much better, and easier, about obtaining a veteran's attorney for all C&P claims/appeals. I suspect that that very fact makes/puts the VBA more on the defensive... dotting all P's and Q's. Gone are the days of the VBA getting away with their blustering denials (at least with veterans who utilize attorneys, IMO).
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Broncovet,
Glad you picked Adam Luck to represent you. He seems pretty sharp on all the VARO (and above) tricks and stalling tactics. He got my 100% TDIU this past December, though they got the effective date wrong(as always). I, as well as the lawyer, get paid a large sum for a correct retro-date. In my case, 4yr, that comes to about +$75k over and above my previous disability rating. That will be another $11-12k for the lawyer's services when all is settled.
IMO, the VA does this on purpose in order to screw with veterans' lawyers, in order to make them work harder for their fair share. Spoke with Adam this morning and he has a couple other tricks up his sleeve to motivate the VA to start moving on completing my additional appeal areas (OSA and MDD).
Keep us posted on your progress. 8-)
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Unfortunately my bet is that the VA will consider your wife going to school as "rehabilitation" and thus preparation for employment.
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Please take a breath, and restate your concerns in detail BEFORE stating how the VA system reacted. This is time for patience, believe me. This is a slow process and can take anywhere from 1-20yr to complete. Yeah, I know that does NOT sound encouraging, but what is the alternative?
I'm pushing 4yr into the process, though I have received MOST of what I need, I AM STILL fighting to get the correct effective date. What does that mean?... Patience... Nothing moves quickly in the VA system. This SITE has great info and advice, so take some time and ask questions on how to proceed.
Best wishes...
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Look up the VA claims rates on ebenefits. NOT yelling here, but you will need to sign up for and familiarize yourself with the system in order to navigate and determine where the VA is at any time.
Welcome to the world of SLOW...
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23 hours ago, toddt said:
http://www.benefits.va.gov/compensation/rates-index.asp
Scroll down to the Combined Rating Table. 20 + 20 = 36
36 + 10 = 42
42 + 10 = 48
For a total of 50%
BINGO! Sorry to say, but new members/vets need to learn the strange ways of the VA-Math when it comes to tallying total disabilities, aka multiple disabilities...
Sorry but true... 8-(
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3 hours ago, broncovet said:
Berta has spoke on this topic before, but I was not able to immediately find it.
Under Bell vs Derwinski, the VA is "presumed" to have certain evidence even tho they may not acutally have it in their hands. Its called "constructive receipt". An example is when you go to a VA doc, Va orders your medical records, and the VA ignores said evidence, such as a probative opinion offered by one of your doctors.
(Constructive receipt mostly applies with VAMC records, which VA is presumed to have, but not necessarily with private medical records, as the VA may or may not have those, even if you signed a release to VA for them. The Va does not guarantee that Dr. X, in private practice, will send all or even part of your medical records to them.)
The difference here is important in an issue of CUE. You see, cue is based on the evidence in VA's possesion at the time of decision. If the VA does not have all the evidence, then it isnt CUE, but you can reopen with new and material evidence in 3.156. But, under Bell, the VA is presumed to have VAMC evidence, even if they dont actually have it. This means you can attack this with CUE OR, you may still be able to reopen with N and M evidence under 3.156. The problem lies is it "new" evidence if VA just plain did not read it.
The VA is required to consider all evidence.
DANG! Broncovet, you nailed it! This is GOOD!
For others,... PAY ATTENTION! This is good chips-on-a-shingle advice.
I am starting to believe that "...§3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury..." Amount to the keys to the city! At least in my case I can think of at least 2-3 additional secondary-service-connected disabilities that are, or will be, appealed... AND WON! Keep up the fight!...
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19 hours ago, rootbeer22 said:
HorizontalMike:
Thanks, the only reason that I finally submitted the TBI claim after many years was that I was told based upon my records that I did not need a an MRI? I'm severely claustrophobic and am being treated by the VA for it now.
...[snip]...
Frankly, my wife has been the one pushing me to get checked out because she's concerned about the long term care affects on my brain and our family life. My memory both short and long-term is now problematic and I carry a notebook with me everywhere to keep track.
Truth be told, the VA DOES NOT want to know if you have actual brain damage that might show up in an MRI. Not knowing makes it easier for the VA to deny you benefits. Just saying...
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On 1/30/2016 at 9:33 AM, waccamawwild said:
It is still hard for me to relax after fighting VA for so long but I am trying. My wife says that I am not tense all the time. Really wish all the best to all the members on hadit.com
Boy do I understand THAT feeling. Dealing with the VA is SO TIME-CONSUMING that that fight just never seems to go away... ever. I am dealing with that same feeling nearly all of the time. Granted, I have only been P&T for just a couple of months, so I sure hope that the angst of dealing with the VA will diminish over time but I sure do not want to let my guard down.
100%TDIU and turning 65 Medicare and VA?
in Entitlement - Veterans Compensation Benefits Claims
Posted · Edited by HorizontalMike
I have been on 100% TDIU for several years, and now I am coming up on age 65. I have a basic employee provided health insurance plan through Aetna from my Teachers Retirement System of Texas. This TRS-CARE1 program has informed me that after age 65, that they will become a "secondary payer". If I understand this correctly, what was once an 80/20 plan (TRS-CARE1) now becomes a 20/80 plan. I have a number of questions/concerns in how that works with VA 100% TDIU Disability.
I have attempted to talk with Aetna, but all I seem to get are sales-people who refuse/can't give any advise as to options. They only ask WHAT do I want... Not helpful to me at all. And when I watch the news that TrumpCare wants to 5X elder health rates, I get very depressed. BTW my major disability is TBI, so that may be factoring into my panic/depression about this as well. Not having fun... 8-(