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We're back, trying to parse through two file cabinets of VA paperwork to get some answers. We filed for unemployability in 1996, after a series of job losses within a very short period of time, due to his inability to learn new skills, lack of patience,mood swings and other reasons -- the claim was denied. We didn't pursue it because my husband thought he could perform better than he actually ended up being able to do -- he has always been a hard worker and prided himself in his vocation -- what he did for a living was pretty much who he was. He was formerly an air traffic controller watch supervisor, so trying to change his mind at that point in time was not something I was able to achieve, he viewed himself the way he used to be, not the way he actually was. He would not accept the facts. He had been through enough turmoil, having had to medically retire after over 20 years in the USAF, having his ATC ticket pulled for medical reasons, etc., I didn't want to make it worse for him. Plus, I was working, he had his military retirement coming in, we had some VA comp coming in, and we were also raising our daughter, etc. -- you know, just regular life stuff going on. So we let it go. Eventually, it became apparent that he had been somewhat optimistic. There's a story with this that I won't bore you with, but just know that we did, in fact, file for IU after he had gone through approximately 3-5 jobs in fewer than 12 months. The list grew until 2000, when we found something he could do relatively well. He had to retire in 2007, due to having to be on some serious pain medication for his spinal disorders (worked in a drug-free workplace environment), being required to learn new skills other than what he had been doing for awhile (through rote, the same actions over and over again, he could deal with the job, but new stuff while suffering with OMS is a challenge). By then, I suggested he apply for SSD and he got it. The SSA performed a mental functioning test that he didn't pass, it measured his ability to maintain an occupation (at some level), I have a copy of it. That and the medical evidence we provided regarding his spinal disorders were the basis for SSD. Didn't Acosta indicate that the VA is wrong in requiring just one disorder rated at 100% if the veteran has a series of disorders that total 100%, one at least 60% (which he has), which formed the basis for his grant of SSD, in that in that case, the veteran should be considered for TDIU due to it being more financially advantageous to him when he would also possibly qualify for SMC(s)? I would love to hand this over to an attorney, but in one of my previous posts, I discuss the challenge we've encountered with obtaining representation of a Bradley v Peake based. claim. Will come back later today when I have more ducks in a row. I'm thinking that we're caught in a Catch 22. I want to file a writ petition pro se with the Court, but I suspect they'll deny it because I haven't been through due process with the VARO and the Board. But, the VARO is denying me access to due process, so where does that leave me? CUE the VARO? Will they deny that too, based on the VARO's obvious refusal to consider this as a bona fide claim? Thanks again, everyone, I so appreciate you all!

Thank you all, it's a lot to digest. I'm taking a quick look at the responses again before heading off to church, and will work on a response when we return re. diagnostic codes, etc. Berta, I wanted to re-post part of my original post that also indicates, at least to me, that the Court said the veteran isn't limited to just one disabling condition that makes him/her 100% disabled for SMC(s) purposes (along with the extra minimum of 60& total ratings beyond that). In Bradley v. Peake, the Court made it clear that the VA could not require one condition rated as 100% disabling to be a precursor for SMC(s) benefits. The Court held that Section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100% - it includes a disability that would support the grant of IU. In addition, the Court held that when a veteran has several service-connected conditions that combine to a 100% evaluation, if the veteran would be monetarily advantaged by having just one service-connected condition support a total IU rating and the veteran has other service-connected conditions, which combined are at least 60% disabling, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran. That's the part that really grabbed my attention. Voodoo dolls are cheap down here -- billboards are big money, I would be flattered to attract that kind of investment as some backward sign of respect. Instead, they're reserved for messages like the one not too far from our house that warns drivers not to even think about burning their cars for insurance money, or to promote the casinos around here...

Teac, to answer your questions: "Could you be more specific as to what his rating are right now..... and what conditon you think he should/could be rated TDIU." 60% residuals from pituitary brain tumor surgery as of August 1993 (under Board remand) 50% organic mental syndrome (30% as of August 1993, 50% as of November 2011 - open claim since 1993, we're fighting the effective date on that one) - (under Board remand) 50% sleep apnea as of October 2007 40% lumbar spine IVDS as of July 2003 (under Board remand) 30% bilateral field vision cuts as of August 1993 30% bilateral cataracts as of October 2007 20% cervical spine IVDS as of August 1993 (under Board remand) 20% adrenal disorder as of August 1993 10% bilateral tinnitus as of July 2003 (CUE pending re. effective date) 10% scar resulting from pilonidal cyst as of August 1993 10% sinusitis as of August 1993 (under Board remand) He was rated 90% disabled from August 1993 through July 2003, then 100% P & T as of August 2003 to the present. He held jobs on and off through the years 1993 through 2007 until he had to quit his last position because of the physical and mental job requirements he could no longer meet. He applied for and was granted Social Security Disability (SSD) in September 2007 due to the 60% rating above for pituitary tumor residuals, the 50% organic mental syndrome rating (which at the time of his SSD award was rated 30% by the VA), his 40% lumbar spine IVDS disability, and the 20% cervical spine disability ratings noted above. Those issues constituted the main reasons the SSA awarded his benefits upon his initial application for SSD. We did in fact obtain doctors' statements that supported the SSD application, which in turn, those records went to the VARO in support of pending claims for increase on several of the original ratings that are the subject of pending Board remands (yes, still pending to this day). He didn't have the required 60% minimum above the 100% schedular rating until October 2007, when he received the additional ratings of 50% for sleep apnea and 30% for bilateral cataracts. His 100% schedular rating is not as advantageous to him as being TDIU would be (with SMC(s) statutory elgibility) as of October 2007. We argued that if he qualified for SSD based strictly on service-connected disabilities, then the VA should explain to us why they do not want to rate him TDIU as of October 2007, when that status would make him eligible for SMC(s). They are obligated to do whatever is financially most advantageous to the veteran, and we have supplied more than enough evidence to tip the scale of reasonable doubt in his favor. The Court has clearly outlined the VA's obligations, however, the VA chooses to ignore the existence of a claim, let alone give us evidence, reasons and bases to support its "Decision" because there's been no bona fide "Rating Decision." That's the basis of our claim. No, Capt. I realize we've got plenty of company regarding this issue. We don't feel singled out, we do feel, however, that they're making the mistake of thinking we'll just give up. After 19 years, the New Orleans VARO should know that my family will never give up. They probably went down to Bourbon Street during lunchtime one day, bought one of those scary looking voodoo dolls sold to the tourists, and put my husband's name on it -- or mine!

I'd like to add another one. Making a rating increase effective based on the date of the most recent C & P exam, not the date the claim was filed, as a result of a Board or a Court remand. This is especially important when many years pass between the initial date of claim and whenever the VARO actually gets around to scheduling a C & P exam in response to the remand. We've appealed the effective date of a grant of increase for a service-connected condition for which we filed an initial claim in 1993, received a 30% rating for the condition, then filed an NOD in 1994 when we received my husband's rating decision; at that time, we specifically argued that the evidence we provided met the criteria for a 50% rating. The claim was denied at the VARO, denied at the Board, went to the Court, the Court remanded, and then was bounced between the VARO/Appeals Management Center and the Board for years. The Board issued periodic follow-up remands to the VARO regarding the delay in scheduling a C & P. We finally filed a writ of mandamus petition in 2008, and got got the Board to ORDER the VARO to schedule the C & P, which finally came through in November 2011. My husband was awarded an increase from 30% to 50%, but it was only effective the date of the most recent C & P exam - November 2011. We are appealing the effective date of claim, arguing that it should be the initial date of claim in 1993, since the claim has been open since then. The VARO's decision made a perfunctory statement saying there was no evidence for an earlier effective date, without presenting any evidence to back that up, nor did it even introduce the topic of staged ratings in the discussion.

Yes, it's crossed my mind -- a writ petition to the Court. I didn't know if that was protocol. However, to follow what I know is normal protocol, I would have to be allowed access to the standard claims and appeal process. If I can't get my foot in the door at the VARO level, then the Court is my only alternative, I guess. I've approached the NVLSP about this, may do so again. They were hesitant because we have an attorney handling unrelated claims that have reached the Court on appeal. The only issues my husband's attorney's firm is willing to handle are those that have already been through the Board and have been appealed to the Court (the security of knowing they'd be paid from EAJA funds, instead of totally depending on the good faith of the veteran -- nothing personal, just business). I haven't been able to pursue appeals the normal way, so they don't want this one. I think Bradley v. Peake claims make most attorneys nervous... Of course, that poses a problem related to securing other representation. As long as a veteran is represented (even if only partial representation) for ANY claims, other lawyers don't want to get involved. That's how we ended up handling several claims pro se and the attorney ended up with the remainder.

Hi everyone, I've been tied up trying to deal with four simultaneous Board remands on different claims for my husband, and am now turning my attention back to a claim that I don't know what to do with as to my next step. I need some guidance, and I looked over the Bradley v. Peake information here and can't find (or overlooked) what I need. Plus, I've lost some of the knowledge I gained from this board since my last visit. Can I come to you for advice, please? I apologize for the length of this. The basic question is what does one do when the VARO refuses to accept a claim as a claim, tells the veteran they won't consider it via a perfunctory statement without any evidence list, or Reasons and Basis provided? My husband has been rated 100% schedular P & T since August 2003 (prior to that, 90% since August 1993). His highest rating is 60%, so he is not TDIU. Above that 100% schedular rating, he was subsequently given, in November 2007, an additional 50% rating for sleep apnea, and 30% rating for bilateral cataracts, unrelated to any previously rated conditions. My husband went on Social Security disability in September 2007 due solely to three disabling conditions that are service-connected at 60%,40%, and at the time we filed for his SSD, 30%. Recently, that 30% disability rating for Organic Mental Syndrome he's held since August 1993 was raised to 50% disabling effective November 2011. We are appealing the effective date since this has been an open claim since 1993 (bounced around between the VARO, the Board, and the Court several times since 1993). In August 2010, we filed for SMC based on statutory eligibility when we heard about the Bradley v. Peake decision. We had asked if it would be more beneficial to the veteran to be considered for TDIU status in order to be considered for SMC under Bradley v. Peake. The VARO subsequently sent a VCAA notice dated September 2010, that addressed a different claim, but in that same VCAA notice, the VARO stated the following: "We received your claim for a toptal disability rating based on unemployability; however, our records indicate that you are already receiving a 100% combined disability rating. Therefore, the issue of individual unemployability will not be considered" In response, we wrote the VARO in September 2010, telling them that although their correspondence to us was not presented to us as a formal Rating Decision, it clearly carried the same force and indicated it was final. The VARO did not provide any legal citations, any evidence, any reasons or bases for its decision. We added that we were treating their statement the same as if it were a Rating Decision, and that our response was to be interpreted as our formal Notice of Disagreement. We have not heard a word since, there has been no Statement of the Case provided to us, and I believe this claim is not being viewed as a claim. To support our position, I brought up the fact that in Acosta v. Principi, 18 Vet. App. 53 (2004), the Court of Appeals for Veterans Claims pointed out that the considerations for TDIU and schedular ratings are different, and, if a schedular rating should be reduced for some reason, the TDIU could conceivably remain in place, so the benefits are not strictly congruent. Also in Acosta, the Court stated: "Furthermore, the Court has previously concluded that schedular and extraschedular rating increase claims are not necessarily "inextricably intertwined" with TDIU rating claims predicated on the same condition. Colayong v. West, 12 Vet. App. 524, 537 (1999). Taking this into consideration along with the benefits that come with a 100% schedular rating that are not available under a TDIU rating, it is evident that the award of TDIU rating does not moot a claim for a 100% schedular rating." We expected a challenge over our argument that the decision also applied in reverse, that the award of a 100% schedular rating does not moot a TDIU rating, either. In Bradley v. Peake, the Court made it clear that the VA could not require one condition rated as 100% disabling to be a precursor for SMC(s) benefits. The Court held that Section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100% - it includes a disability that would support the grant of IU. In addition, the Court held that when a veteran has several service-connected conditions that combine to a 100% evaluation, if the veteran would be monetarily advantaged by having just one service-connected condition support a total IU rating and the veteran has other service-connected conditions, which combined are at least 60% disabling, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran. Additionally, SMC benefits must be granted when a veteran becomes eligible without need for a separate claim (Akles v. Derwinski, 1 Vet. App. 118,121 (1991). It appears the VARO is ignoring us. How does one CUE an agency that won't even acknowldge that the claim exists? I know they received everything because I have the certified mail receipts that prove it. Or, am I totally wrong in my interpretation of my husband's eligibility for consideration under Acosta? .

Carlie, I merely said it caught my eye, I didn't say that the information was incorrect. Secondly, the regs prior to 2008 applied to our claim, as it may very well apply to other veterans who filed similar claims prior to 2008. Many of us here, you especially, know what it feels like to have been battling this fight for many, many years. Finally, the use of all caps to emphasize is not needed. My eyesight is fine, and the use of caps,as I've read here many, many times, is interpreted as screaming. No need to do so. I get it.

Your statement: "Organic brain syndrome, is rated under mental conditions, and thus can not be used in determining entitlement, under 38 CFR 3.350(s) as it must be separate and distinct, involving different anatomical segments or bodily functions. As the requirement states, single disability independently ratable, the BVA noted that the TDIU was primarily based, meaning that the TDIU rating requirement could well be based on just the single, 70% rating for PTSD. This BVA decision based the additional 60% rating on independently ratable percentages, as required according to 38 CFR 3.350, and not erroneously using the combined rating schedule, for which there is no legal basis to use, in ratings over 100%." caught my eye, because I used a prior Board Decision that stated just the opposite, that OBS is a physical disorder and PTSD is a mental disorder. My husband has been rated 30% for organic brain syndrome since 1993, and it's been under appeal and the subject of two writ petitions since that time, still unresolved. The last C & P he received for OBS resulted in the examiner diagnosing him with PTSD, as well, so we filed a separate claim stating that PTSD was a mental disability, while OBS was a physical disability (in our case, the result of a brain tumor) per Board Citation Nr. 0825366, Docket No. 96-18976, Dated 7-29-08 that stated in part: "In July 2005, the Board remanded the issue of a separate rating for cognitive disorder. In February 2007, a VA examiner clearly separated the cognitive disorder from PTSD. Because the Board now has jurisdiction to address service connection for OBS, we must ask the VA examiner to clarify whether OBS represents a disability separate from cognitive disorder. Although the February 2007 examiner stated, "I did not find evidence of another psychiatric disorder in today's examination", this statement rules out the presence of other mental disorders, but does not tend to rule out the presence of OBS, which is not a mental disorder. Rather, OBS appears to be an organic disease of the central nervous system. See 38 C.F.R. § 4.124a, Organic Diseases of the Central Nervous System, Diagnostic Code 8045, Brain disease due to trauma. "

Forwarded to me by an ace veterans law attorney and his paralegal... Duty MOS Noise Exposure List.xls

Has anyone been able to pull up the Duty MOS Noise Exposure List yet? I've seen the same link provided through several other websites, besides it being the same in Fast Letter 10-35, but when I enter it, I still get an error cue as if it's a faulty link. Thanks!

You might try contacting Dr. John W. Ellis at the Ellis Clinic in Oklahoma City. www.ellisclinic.com He has experience writing IMO's for the VA, and can evaluate your evidence without personally examining you, but it's always better to be personally examined as well, if you can go there. His credentialing information is there, as well, so you can judge for yourself. He specializes in workers comp cases and occupational medicine. He also teaches. Just an FYI.

My husband received both a computerized and an interview-type memory examination. The interview one is basically recalling lists of words given to him, and then number sequences. Also, in his case, spelling a bunch of words backwards, which was very hard for him to do (I told him to expect that, including the word, "world," which in fact happened). Also repeating the list of presidents backwards, starting with the current one. He was so worked up about the exam the night before, he didn't get much sleep, which only serves to make the test more challenging, if you get what I'm saying...

Your income level has nothing to do with anything other than the $50 filing fee required to send your appeal to the Court. If the $50 fee poses a hardship for you, then there's a form you can fill out that asks for a waiver. Once your appeal reaches the Court, you will get a lot of mail from lawyers who watch for new cases, and then approach the veteran in an attempt to have the veteran hire that attorney for the Court appeal. Under EAJA, the attorney is paid by the government. In our case, once the appeal was joint remanded back to the Board, my husband had to sign another agreement with the attorney which included a fee agreement. If the claim is granted, the attorney would receive a percentage (usually around 20%) of retro compensation due the veteran. However, at the Court, the veteran does not pay, as the Court does not normally grant appeals. They review the process the Board took, and either agree that it was proper, or decide that it was not and then will send it back to be re-done properly.

My husband had lumbar issues rated as lumbar sprain when they should have been rated under more favorable rating criteria for intevertebral disc syndrome. We had to appeal the Board decision to the Court, and at that point, we were solicited by attorneys who wanted to take the case, due to their fee being paid by the government under the Equal Access to Justice Act. We picked a veterans law attorney who has done a wonderful job for us in negotiating a joint remand from the Court (which is a "win," as the Court normally doesn't grant claims, it just decides whether the Board followed the appropriate process in place, and if not, the Board gets it back to weigh it properly). The $50 filing fee at the Court can be waived if you complete a form for economic hardship. Sometimes, the only thing you can do is go to Court, at which case you take it out of the so-called "non-adversarial" VA disability claims process within the VA and enter the adversarial judicial process which is outside of the VA system.

David, I'm not Carlie, but my husband was rated 100% schedular P & T, and he worked until he couldn't keep up with it anymore. Yes you're allowed to work under those circumstances, but many cannot. It just depends on what brought you there. 100% schedular rating for PTSD, for instance, would be a distinct detriment to working, I would think. A total rating based on TDIU means you cannot work. Schedular means your total disability is not based on TDIU, in other words, you actually have the ratings that bring you to 100% on the Combined Rating Table in 38 CFR.

This sounds like the proverbial chicken vs. egg and which came first question. I'll explain our situation as an example. 1) The veteran never filed a formal claim at the time the evidence indicated SMC(s) should have been considered. 2) The VA never considered it without a formal claim. 3) After finding out about Court cases Acosta, Bradley and Akles, the veteran asked the VARO to consider it. 4) The VARO denied the "claim" due to what I believe is its refusal to comply with Acosta, Bradley and Akles. 5) The denial came in the form of a letter, not a Rating Decision, and did not contain reasons or bases, nor did it contain information on appeal rights. 6) No VCAA notice was previously issued prior to the the "decision," which also violates provisions of the Veterans Claims Assistance Act. So, you're saying this isn't yet a CUE and the one year period started running at the time of the "decision" letter that wasn't a formal Rating Decision? That prior to one year, we should instead call it a "grave procedural error?" If we let the VARO kick this to the Board, it will end up being remanded based on these grave procedural errors. We're trying to have them handled at the agency level that made these errors, so CUE vs. grave procedural error, isn't it the same difference?

"The court also ruled that when a claimant is awarded 100% schedular the issue of TDIU becomes moot." Please provide a citation, which Court case is it to which you are referring? In Acosta v. Principi, the Court pointed out that the considerations for TDIU and schedular ratings are different and if a schedular rating should be reduced for some reason, the IU could conceivably remain in place, so the benefits are not strictly congruent. The decision stated: “Furthermore, the Court has previously concluded that schedular and extraschedular rating-increase claims are not necessarily "inextricably intertwined" with TDIU rating claims predicated on the same condition. Colayong v. West, 12 Vet. App. 524, 537 (1999). Taking this into consideration along with the benefits that come with a 100% schedular rating that are not available under a TDIU-rating, it is evident that the award of a TDIU rating does not moot a claim for a 100% schedular rating.” And I would argue, vice versa. Also, you said, "I'm sure you're already aware that CUE doesn't happen until the 1 yr appeal period has expired. The failure of the VA to consider SMC (ie:HB), when awarding 100% schedular, does not reach the level of CUE." Akles said that the veteran does not need to file a formal claim for SMC(s), that the VA's responsibility when the evidence implies that SMC(s) may be appropriate is to consider it without the veteran having to ask for it. That means that any effective date would be the date that the evidence became available to the VA. If I've got that right, then when would the one-year "appeal" period you refer to start and end? I'm arguing a CUE because in my husband's case, the evidence became available to the VA in 2007, well over a year ago, but I really didn't think this was a factor, in view of Akles.

Yes. it is a CUE. I filed a CUE based on the same circumstances. Husband is rated 100% schedular, one of those ratings is 60%, plus he is rated an additional 70% beyond the 100% schedular rating. Bradley stated that the VA is to rate the veteran in the way that best monetarily benefits the veteran. Acosta stated that 100% schedular ratings do not moot a TDIU claim, and vice versa. VARO won't consider statutory SMC s because they say 100% schedular ratings moot IU, when it does not. Know that you'll be denied and will end up appealing it, but get it in the works. You are not alone on this.

Berta, we had an appeal at the Board for seven years, over two which had been at the Appeals Management Center after a Board remand with no end in sight. We couldn't get a Board decision because the AMC wouldn't process the claim, and wouldn't give us any idea of when they would take any action. When this kind of thing happens, there's no way the vet can exhaust all avenues of appeal because the veteran can't access the process. We wrote our own writ petition, which wasn't all that difficult. When the veteran is filing himself, the rules are not as strict as they would be if an attorney filed. Even though the petition was eventually denied, it blasted the appeal out from under the AMC and back to the Board. The AMC recommended a denial, we countered with additional evidence that had evolved during that period of time, and the appeal is now pending at the Board. If it goes much longer, I may consider another writ petition because it's been there now for over two years. All we want is a Board decision, up or down, so if we need to, we can go to the Court and secure attorney representation.

I think that's the reason it's referred to as "statutory" housebound benefits vs. literally being housebound, two totally separate qualifying criteria. You can be one or the other, but you don't have to be both.

John, it sounds like this veteran is getting into the same situation my husband is in with 100% schedular P & T, plus 60%, but not TDIU. I am telling you guys, the VA will not grant SMCs under those circumstances without a fight. Expect it. Their position is that even with a schedular 100% rating, one of those ratings being at least 60%, plus at least 60% over the 100%, the schedular total moots IU and they will not consider changing it. We are arguing CUE under Bradley that the VA has not met its responsibility to rate the veteran in the way that is most monetarily beneficial to the veteran. Anyone in this situation should file a claim immediately -- you'll be denied and will have to fight it, but it needs to be done.

Tell your attorney to file a writ of mandamus petition. That ought to get the DRO's attention. The DRO decision might go against you, but at least you'd get some movement. What usually happens with a writ petition is that the VA will take the action it should have taken earlier, and then the Court will deny you the writ because the issue has become moot. The whole purpose is to get some movement, so if you get movement, you in essence have won even if the Court says otherwise. It sounds like you're desitned for the Board, regardless.

Personally, I don't think he has one. My husband's lawyer is handling the claims that reached the CAVC, but we have many others that didn't get that far -- yet. From what I understand, this situation is not all that uncommon. Many attorneys only want to handle the EAJA eligible cases (at the Court), and I guess others will take appeals at lower levels. The problem really comes when you start hiring different lawyers to handle different claims. That could also easily happen because you might find the lawyer you've already hired isn't interested in defending claims other than those that he or she agreed to handle at the time he or she was hired. Also, I've posted previously about my husband's NOD under Bradley, and I did in fact call it a CUE, so I'm glad to know the VARO also interpreted it that way.

Berta, I did send the fast letter with the NOD to the "decision." My husband has applied for statutory benefits for SMC(s), however, he is not literally housebound. The letter states the two conditions that qualify the veteran for housebound. I did note to them that the letter states that the veteran must meet the rating requirements OR be (literally) housebound, not AND be (literally) housebound. I called a CUE on that, as well as the fact that they did not render a formal Rating Decision, they merely denied the claim in the opening statement of the VCAA notice.

I'm equally concerned about the VA's attempting to circumvent the claims adjudication process by issuing a claims denial in the first paragraph of a cover letter of a VCAA notice. This statutory housebound claim is a perfect example of the VA choosing to ignore the findings of the Court of Veterans Appeals in Bradley, Acosta and Akles, and then trying to disarm the veteran by denying him access to the appeals process, or the grounds for the denial.