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Hobby

  1. Ok I got the court to have the va give a response to the petition. ? Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case) Might also look at: Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. at 1322.” So i take this to mean after a cavc remand the bva isn't to remand to ro for a second development. Am I reading this wrong.
  2. I have posted the cavc set a side order. This the bva decision after the remand. Now the bva has only address the period from when I apply for smc. I got denied housebound by fact for the same reason as Howell v Nicholson. Because I was able to travel to medical appointments. Smh Guess the bva judge never read Howell v Nicholson. Not one piece of my evidence before 2018 was even address in this bva decision. Then the crazy part in the history they just run my disability together. They never address that the buffalo ny regional never cretifed my appeal in 1993. The court allow the the va to stage rate me from 1993-2001 20% for neck. 20%elbow/hand. I was give extra schedulers tdiu from 1993-2001. Because I was granted tdiu 2001 based on the neck 60%pt. And have never work since service. all done to not address my smc in the proper light. Well the last thing they remove this issue from the cavc remand docket and legacy appeal system. An put me in the new ama system I never opt in. Now I get a decision on my cavc remand tell me I can request a supplement review. And I have a new 2021 docket number for a appeal that start 2018. Well I will win the smc s they just kill there self by denied it because I can go to doctor appointments. I will win the effective dates once the court address there errors. Guys confine to one home is not been able to leave your home to make a income. That the law under Howell v Nicholson.
  3. Well today it change to be with the bva judge. I am a little happy I just hope they denied it so it can go back the the court. If they remand this again I am going to be mad. This is the last issues at the board Once they make the decision I will be do my cue
  4. This make no sense. I am not even going to let it mad. Ok I apply for smc benfits not a increase rating for my neck and hand/elbow. These have been rated for 25 years. I withdraw the increase claims in 2018. My case was remand by the court 2021 not for an increase rating. Well today I go to see if it was return to the judge yet. And this is what I see once again they are try to open an increase rating claim again. Even after I withdraw them. So now I bet I get remand again to not address my smc o and r. Or to not let it go back to court. Smh. Boy they trying every trick to not have to address this smc retro. Lol. The fight continues
  5. Now here is another example of the bva try to delay and develop evidence to denied. After a cavc remand. Ok I have a claim for smc r higher level in home care. Now I denied get a bva decision on that and see how it say higher level smc. So now I will not get a decision for smc r until my case is send back to the board. This is crazy. Now smc and increase rating are two different thing. Smc is Based on the record and effective by the record. Well my only hope to get pass all these delays is my petition. My petition was expidate by court due to my need of in home care. And the cavc case that remand it the bva. Do u see how the judge stated that my effective date for smc. Are downstream issue. And I have not disagree so the board doesn't have jurdation. How is a cavc remand issue a downstream issue. Lol See when u do the nod now you will get a new docket number. U will not have the cavc remand docket which is to be expidate. This is how the bva and ro hold cavc remands. And there no longer in the system as a cavc remand. Not legal. If I had not done the petition or understood. I would have been waiting years for them to address this. I am venting again. Oh and I did denied the exam. These qtc ppl are crazy. They will not tell me when it will be send back. So now a outside company has add months to the claim process because they don't return exam or claims back to ro. Smh now I got to fight qtc to return my issue back to ro
  6. Man I don't no if I am having bad luck or this is been done on purpose. First the cavc remand for smc o and r I got a ssoc Nov 22. But the ro refuse to return it to the board. No one will tell me anything again like where it is when will it be send back to the board. Why is it not been return. So anyway the board made decision on the other issues that were removed from the cavc remand docket an given new appeal docket numbers. They even advance my case to do this. Smh Well anyway I appeal the two decision back to the court. So I put in to have my case expidate again. The clerk will not put my motion in tell me I have to send something that I am on my death bed. Smh. I am taking this is a new clerk I call the supervisor. He tell me to send it again. And she call me tell me once again she is put in my motion there are rules. Now I did this two time before to the court I understand how it is done. If the judge order for me to give more evidence she will make a order and give me 15 30 day to answer. I am now fighting my case with a court clerk. Smh Well I did get something from cck in the mail about doing this appeal. I did the intake I am waiting for the lawyer to call. If he see my case the way I see it and as long as my issues are not abandon I might just let them handle this cavc cases this time. Still think on that tho. Well it has been a month that my petition for extraordinary relief has been with the judge. Maybe she will do the right thing and not let this come back to her court to be remand again. Because the board didn't follow the cavc remand order Finger cross lol. I have to give this get my motion put in to the court go for a few days. I am mad this will be the second week I have be trying to get this lady to put my motion in. So I got to cool off
  7. Ok this is crazy I have never seen this before in any of my case. Ok this is the bva decision on my increase on the adjustment disorder and I guess the decision for smc l Need of help for this condition. The Board acknowledges the Veteran’s assertions of entitlement to an increased rating. Further, the Board notes that the treatment records demonstrate that the Veteran had symptoms associated with both a 70 percent disability rating, such as obsessional rituals which interfere with routine activities and near-continuous panic or depression affecting the ability to function independently, and symptoms associated with a 100 percent disability rating, such as intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. However, the weight of the medical and lay evidence shows that the severity, frequency, and duration of the Veteran’s listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent disability rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent disability rating, throughout the period on appeal. See 38 C.F.R. § 4.1 Based on the foregoing, the Board finds the Veteran’s adjustment disorder symptomology has been productive of, at most, occupational and social impairment with deficiencies in most areas during the entire appeal period. As such, a rating in excess of 70 percent for the Veteran’s service-connected adjustment disorder with depressed mood is not warranted at any time. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The claim must be denied. I have never seen a bva decision like this. First told I meet both the 70 and 100 rating. What happen to the veteran will be give the higher of the two rating Then when is it that the bva can say the benfit of the doubt don't apply in my case. Smh never seen that before on no decision. I might be wrong It will be remand by the court again for them to play more games smh
  8. I have been gathering law to used to cue this bva extra schedulers tdiu decision. This cue is based on that they didn't inferr smc benfits by this decision. And that the board has been aware that I have been housebound by fact since service. I have never been able to leave my home to make a income since service the bva decision address this but smc s for been housebound by fact wasn't inffered. The bva decision address my loss of use and again smc for loss of use wasn't inffered. The bva decision address my need of help the statement from my ex. Smc for need of help of other wasn't inferred. Ok here is my thing I was granted smc s and l 2018. But the va and board will not address anytime period before I apply for smc benfits 2018 also. So I feel my smc effective dates are 1993 by this bva decision. And by cfr and va manual. And Howell v Nicholson If they follow the law on smc benfits. Which are granted by the record and effective by the record. So I need the hadit legal team help. Lol I just can't seem to be able to word it right. What laws would you use and how would you word it is my ? Here is the bva decision I will be do a cue on. Citation Nr: 1212024 Decision Date: 04/02/12 Archive Date: 04/11/12 DOCKET NO. 09-19 043 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) In Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to August 16, 2001. ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from October 1, 1993 to December 13, 1993. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In December 2009, the Board remanded this appeal for additional evidentiary development. In May 2011, the Board again remanded the claim for corrective action regarding the previous remand. The appeal has since been returned to the Board for further appellate action. In addition to remanding the claim listed above, in December 2009, the Board also granted service connection for a left elbow disability, granted an increased initial rating of 20 percent, prior to August 16, 2001, for the Veteran’s service-connected cervical spine disability, and denied a disability rating in excess of 60 percent for a cervical spine disability since August 16, 2001. In January 2010, the Veteran filed a motion for reconsideration of the Board’s denial of an increased initial rating higher than 20 percent, prior to August 16, 2001. In September 2010, the Board denied the motion. Thus, there are no pending appeals regarding increased ratings for the cervical spine disability. Please note this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900© (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The evidence for and against whether, from December 14, 1993 to August 16, 2001, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation is in equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, from December 14, 1993 to August 16, 2001, the criteria for TDIU were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). As the Board is granting TDIU from December 14, 1993 to August 16, 2001, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance “if no reasonable possibility exists that such assistance would aid in substantiating the claim”); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). TDIU – Law and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15 (2011). Substantially gainful employment is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (the CAVC) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the CAVC indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the veteran’s actual industrial impairment. The Board is bound in its decisions by the regulations, the Secretary’s instructions, and the precedent opinion of the chief legal officer of VA. 38 U.S.C.A. § 7104© (West 2002). In a pertinent precedent decision, the VA General Counsel interpreted the controlling VA regulations as generally providing that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. The VA General Counsel also interpreted “unemployability” as synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Analysis of Entitlement to TDIU During the period prior to August 16, 2001, two service-connected disabilities must be considered – cervical spondylosis with chronic muscle strain of the left neck, rated at 20 percent disabling, effective December 14, 1993, and residuals of a left elbow fracture with paresthesias, rated at 20 percent disabling, effective December 14, 1993. Therefore, with respect to this period, the Veteran does not meet the schedular criteria for consideration of TDIU. See 38 C.F.R. § 4.16(a) (2001-2011). A TDIU is in effect since August 16, 2001, and this is based in part on the increase in the disability rating for the Veteran’s cervical spine disability from 20 percent to 60 percent, effective that date. The Board has specifically found that a rating in excess of 20 percent for the cervical spine disability is not warranted prior to August 16, 2001 on a schedular or extraschedular basis. Therefore, the Board’s decision here hinges on a finding that, irrespective of the above factual background, the combined effect of the Veteran’s service-connected disabilities renders him unable to secure and follow a substantially gainful occupation. The current effective date for TDIU of August 16, 2001 is not based on a change in his physical condition on that date, but is based on the date the claim for TDIU was received at the RO; however, the Board found in its July 2009 decision that the claim for TDIU actually arose from the Veteran’s January 11, 1994 original claim for compensation, as a component of the appealed initial rating for a left neck disability assigned in the resulting June 1994 rating decision. In this context, the current effective date of August 16, 2001 has little to support it. The Board’s decision must be based primarily on the impairment resulting from service-connected disabilities before August 16, 2001, and whether such impairment precluded a substantially gainful occupation. For reasons that will next be addressed, the Board finds that the evidence for and against such a finding is in equipoise. The Board is most persuaded by what appears to be a consistent level of overall occupational impairment over the entire period since service. While the particular factors such as limitation of motion and attacks of intervertebral disc syndrome may have changed over this period, the evidence indicates that the effect on occupational impairment has remained largely the same. A VA examination in April 1994 reveals that the Veteran was not working because of his injured neck and left arm at that time. In that examination, and in a February 1997 examination, the Veteran reported decreased sensation and pain associated with most activities, and especially attempting to lift. In a November 2000 physical therapy initial evaluation, it was noted that the onset of chronic pain was five to six years prior. A June 2001 report indicates a five-year history of increased pain and neck stiffness. In May 2003, the Veteran’s girlfriend stated that she had been in a relationship with the Veteran for 13 years. She noted that, for this period, the Veteran could not play with his son or daughter because of his neck, that he was not able to hold his son because of the lack of feeling in his hand, and that he was not able to contribute to household chores such as mowing the lawn, taking out the garbage or even minor repairs. Thus, regardless of the specific findings pertinent to the rating schedule that were present during this period, the overall effect of the disabilities on the Veteran’s employment appears to be roughly the same as it was and is after August 16, 2001. Regarding the medical opinion evidence, this evidence is generally favorable to a finding that the Veteran’s service-connected disabilities precluded a substantially gainful occupation from December 14, 1993 (the first day after service separation) to August 16, 2001. A July 2003 VA examination includes the opinion that the Veteran had been unemployed since service separation. The examiner felt that the likelihood of his returning to work was slim. While this opinion is after August 2001, it deals with the entire period since service separation. In a June 2010 addendum to a January 2010 VA examination report, the VA examiner specifically commented on the Veteran’s employability from April 1994 through August 2001. The examiner opined that the Veteran could only stand one hour at a time. He could only walk with a neck brace up to 45 minutes. Without a brace, he could walk 20 minutes. He had severe restrictions with any bending, lifting, and twisting, as well as reaching and grabbing with his left hand. The examiner noted that the Veteran’s skill set was that of a tanker, and that he could obtain employment with the above restrictions. There are other opinions indicating that only sedentary work would be appropriate for the Veteran, notably, a November 2003 private opinion. A January 1995 vocational rehabilitation counseling summary notes that the Veteran had an impairment of employability. It was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs he would qualify for. It was specifically noted that the Veteran “cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he’s really qualified to do from an educational standpoint.” The counselor noted that the Veteran has not overcome the effects of the impairment of his employability and he does not have suitable job skills to offer the civilian job market, either from training or work history. A January 2001 counseling record for VA vocational rehabilitation notes that the Veteran has some employment impairments including that physical labor is difficult, overhead lifting and heavy lifting are precluded. According to the January 2001 examiner, the Veteran could not do entry-level manual jobs. The examiner recommended that the Veteran become trained to be a computer technician. A narrative summary includes the assessment that the Veteran’s service-connected neck condition limits him from doing any overhead or heavy lifting and that he lacks suitable skills to find employment that is not physically demanding. The Veteran ultimately withdrew from vocational rehabilitation due to complaints of headaches, which he attributed to his neck. A March 2011 VA social and industrial survey notes that the Veteran’s service-connected neck condition and non service-connected disabilities place him at a competitive disadvantage in obtaining employment when competing with jobs for the nondisabled, as he is not able to do any jobs that require excessive physical demands. The examiner noted the findings in the vocational rehabilitation file, as well as the factors such as the Veteran’s substance abuse. The examiner provided the opinion that, with the Veteran’s limited education and work experience, the type of work he could do would be primarily physical; this would be compromised by his physical disabilities, including service-connected disabilities. The examiner continued that it is clear that the Veteran’s service-connected disabilities disabilities had a notable impact on his ability to obtain and maintain substantially gainful employment prior to August 2001. The Board remanded the claim for an addendum opinion in light of the March 2011 examiner’s apparent consideration of other physical disabilities in addition to service-connected disabilities in formulating the opinion as to unemployability. An August 2011 addendum to the social industrial survey reveals that, in the reviewing physician’s opinion, the Veteran’s cervical spine condition from April 1994 to August 16,2001 caused the following limitations: the Veteran could only stand one hour at a time; he could only walk with a neck brace for up to 45 minutes and without a brace he could walk 20 minutes; he had severe restrictions with any bending, lifting, or twisting; and the Veteran’s elbow injury also restricted physical labor that required repetitive use of the left upper extremity. In the physician’s opinion, these limitations due to service-connected disabilities caused the Veteran to be unemployable in both physical and sedentary work during this time period. The opinion was that the Veteran was not employable in any type of labor during this time period due to his service-connected disabilities. The RO referred the case to the Director of the VA Compensation Service (Director) for extraschedular consideration decision in December 2011. In a January 2012 opinion, the Director noted that, from April 1994 to August 16, 2001, the sole service-connected disability was cervical spondylosis with chronic muscle strain of the left neck, evaluated at 20 percent. The Director found that physical examinations prior to August 16, 2001 do not support the contention that the Veteran’s service-connected cervical spine disability was so exceptional or unusual, as to render the use of the regular rating schedule standards impractical. The Director found that there are no medical statements or records indicating that the Veteran could not perform in any sort of occupational environment. The Director also noted that May 18, 2001 was the first time employment functioning was mentioned in terms of the Veteran’s neck disability, and this appears to be verbal history from the Veteran, not a professional medical opinion. The Director noted that the Veteran stopped attending vocational rehabilitation due to headaches, which he claimed were due to the neck, but no link has been provided, and he is not service connected for a headache condition. The Director acknowledged the recent VA opinion that the Veteran was unemployable due to his cervical spine disability prior to August 2001. While this opinion was taken into consideration, the Director found that the objective evidence does not support the examiner’s finding. The Director concluded that, while available evidence demonstrates that the Veteran’s cervical spine disability would have affected his ability to work prior to August 2001, evidence does not show it would have precluded all types of employment, such as sedentary employment. The Board notes that the Director only considered the Veteran’s cervical spine disability as service connected during the period in question. While this was technically true at the time, service connection was subsequently granted for residuals of a left elbow fracture with a 20 percent rating assigned effective December 14, 1993. The service-connected left elbow disability must also be considered in determining TDIU entitlement, but apparently was not considered by the Director. The Board also notes that the Director did not explain why the objective evidence does not support the examiner’s finding. In addition, the Director appears to have found that the evidence must show that the Veteran’s service-connected disabilities would have precluded all types of employment, such as sedentary employment, in order to warrant TDIU on an extraschedular basis. Such criteria appear stricter than what is provided in VA regulations. The Board finds most persuasive the fact that, as determined by the Veteran’s vocational rehabilitation counselors, the Veteran ‘s service-connected neck disability limits him from doing any overhead or heavy lifting, coupled with the fact that he lacks suitable skills to find employment that is not physically demanding. Indeed, regarding sedentary employment, it was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs for which he would qualify. It was specifically noted that the Veteran “cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he’s really qualified to do from an educational standpoint.” The VA vocational rehabilitation counselor noted that the Veteran has not overcome the effects of the impairment of his employability, and he does not have suitable job skills to offer the civilian job market, either from training or work history. In Moore, 1 Vet. App. At 359, the CAVC discussed the meaning of “substantially gainful employment.” The CAVC noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Here, it is uncontested that the Veteran’s service-connected disabilities would preclude any form of employment that is more than sedentary in nature. Moreover, as a result of his inability to complete his education and his limited vocational experience, the Board finds that the types of sedentary occupations available to the Veteran would be quite limited. The Board emphasizes that the test is not whether the Veteran would have been precluded from all types of employment, such as sedentary employment, but whether such employment was realistically within the physical and mental capabilities of the claimant. On this question, the evidence in this case is at least in relative equipoise. An additional factor considered by the Board relates to medication taken by the Veteran to treat his service-connected disabilities. In a May 2003 RO hearing, the Veteran testified that he took pain medications and muscle relaxers for his service-connected disabilities. A July 2003 VA examination reveals that he had been taking codeine for pain. A June 2011 VA social and industrial survey shows that he was taking the muscle relaxant Cyclobenzaprine. The effect of the Veteran’s long-term use of pain medications and muscle relaxers to treat his service-connected disabilities cannot be ignored when considering his overall functional impairment due to service-connected disability. See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability). In sum, given the severity of the orthopedic disabilities affecting neck, cervical spine, and left upper extremity, the Board finds that the evidence for and against whether substantially gainful employment is realistically within the Veteran’s Physical and mental capabilities is in equipoise. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities preclude him from performing substantially gainful employment. 38 C.F.R. § 5107(b). Therefore, TDIU is warranted from December 14, 1993 to August 16, 2001. ORDER A TDIU from December 14, 1993 to August 16, 2001 is granted. J. Parker Veterans Law Judge, Board of V
  9. I really use to feel that the va was here for the veteran. Now thing have change. Anyway I did the little iris thing to the board on va.gov. Dec 12 I get a call today about the iris and the lady tell me I am from the 1800 call center we handle all call now. We do all iris to the board smh So what is the purpose of a veteran doing a iris to the board if the board isnt going to respond.and they are going to get the same info that the 1800 got Well she was so nice and told me sorry she can help but they have no way to communicate with the board also but by doing a iris. If you do a white house hot line complaint the board will not respond it will be the call center. Ppl it is over they are set up to have claims delay and you will have no contact with anyone to get get right at the board. I remember the appeal management center there was not contact with this place claims would sit there for years. It is now call droc DC. These were the ppl who didn't process my cavc remand in the system right The mail stuff the comp exam stuff. There are alot of pit falls now this my opinion. I think the process is about what bva judge you get some go over your evidence some don't. Some follow the law and some are new judges that are new to the process. I will not be fighting with the va ever again this is my last ride. I will say this is hard process than get my 8 year retro tdiu. And all because there is less contact with bva and droc. Done venting for the day
  10. Ok I have been see a lot of veteran posting about have exam done on all there condition. When they apply for one issue. I have seen veterans have 4 5 exams for the same thing over and over. I am one of these. Veterans are applying for there smc benfits because they are not been inffered by there record. The va is treating them as increase rating claim for all there condition And ordering exams for everything now Veterans can't even get a copy of the exam before the va use it as evidence or make a decision. The comp exam company should have to mail a copy to the veteran. Its the veterans medical record. The veteran shouldn't have to do a freedom of information act just to see a medical report done on them. I for one have had over 9 comp exam during me applying for smc benfits. It got Remand by the court and they still are try to order more exams again. When does a veteran have the right to say I don't need any more of your assistance. The va use Duty to assist a veteran to claim they need to order all these exams. well I am the veteran who will refuse there assistance anymore. I really feel if like 25 50 veterans started a lawsuit the va and Congress will not be allowed to contract our comp exams out anymore. veterans are have comp exam in hotel room ex rays in parking lots. they are been seen by work comp doctors and SSI doctors. these doctors are trained different. va is a non adverse system the other are. so how is these doctors now part of the va system. ok I am done but I see it as a new way to turn the va system to SSI work comp. but not say it. and the va is give them the right to address all a veteran disability there will be a lot of appeals for reduction and denied coming down the pipe line. here is one class action suit Godsey v. Wilkie I am at a point with all this if I get a remand again for my smc o and r and for my loss of use under smc benfits. and it's for another medical opinion I will be trying to suit myself. Pro se
  11. Ok here it is and I can't believe this Ok let start with do u see that nothing is address before 2018. We understand smc Is effective by the record and granted by the record. Ok. The court set a side the effective dates an explain to the va to address early time period. Not done because they change the court remand order to granted effective dates in first instance. So now I am back at the court to appeal the same effective dates the court set a side. Ok. I apply for smc s under Howell v Nicholson. It is never address I even got denied because I can travel medical appointments. The same reason Howell was denied smh. Last I had a judge remand the cavc. That a different judge remand it again. Than a different judge just made the decision. All in six months I guess the judge who was handling the remand st first retire than the one who remand again retir. Because this is the only way you have 3 different judges on a cavc remand. Ain't no 2 bva judge's retire In.6 months of handling my cavc remand. Here the decision I will.ein st the court just made.they are playing all these games.
  12. Well when I apply for smc benfits I thought the va would follow the law. And Grant smc benfits by the record and effective by the record. Its going on 4 years and the va has never address my granted of extra schedulers tdiu 1993-2001 or the tdiu 2011. So I understood I had a cue for smc benfits due to this decision. I keep it in my back pocket lol. So a ? I can have a cue claim and the appeal at the court same time I believe. I am thinking about filing this week. Why wait. This decision address everything. Loss of use need of help of other The error of not certified my appeal from 1993-2001. The granted of tdiu 2 Ii Citation Nr: 1212024 Decision Date: 04/02/12 Archive Date: 04/11/12 DOCKET NO. 09-19 043 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to August 16, 2001. ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from October 1, 1993 to December 13, 1993. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In December 2009, the Board remanded this appeal for additional evidentiary development. In May 2011, the Board again remanded the claim for corrective action regarding the previous remand. The appeal has since been returned to the Board for further appellate action. In addition to remanding the claim listed above, in December 2009, the Board also granted service connection for a left elbow disability, granted an increased initial rating of 20 percent, prior to August 16, 2001, for the Veteran's service-connected cervical spine disability, and denied a disability rating in excess of 60 percent for a cervical spine disability since August 16, 2001. In January 2010, the Veteran filed a motion for reconsideration of the Board's denial of an increased initial rating higher than 20 percent, prior to August 16, 2001. In September 2010, the Board denied the motion. Thus, there are no pending appeals regarding increased ratings for the cervical spine disability. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The evidence for and against whether, from December 14, 1993 to August 16, 2001, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation is in equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, from December 14, 1993 to August 16, 2001, the criteria for TDIU were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). As the Board is granting TDIU from December 14, 1993 to August 16, 2001, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). TDIU - Law and Regulations It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2011). Substantially gainful employment is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (the CAVC) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the CAVC indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. The Board is bound in its decisions by the regulations, the Secretary's instructions, and the precedent opinion of the chief legal officer of VA. 38 U.S.C.A. § 7104(c) (West 2002). In a pertinent precedent decision, the VA General Counsel interpreted the controlling VA regulations as generally providing that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. The VA General Counsel also interpreted "unemployability" as synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. Analysis of Entitlement to TDIU During the period prior to August 16, 2001, two service-connected disabilities must be considered - cervical spondylosis with chronic muscle strain of the left neck, rated at 20 percent disabling, effective December 14, 1993, and residuals of a left elbow fracture with paresthesias, rated at 20 percent disabling, effective December 14, 1993. Therefore, with respect to this period, the Veteran does not meet the schedular criteria for consideration of TDIU. See 38 C.F.R. § 4.16(a) (2001-2011). A TDIU is in effect since August 16, 2001, and this is based in part on the increase in the disability rating for the Veteran's cervical spine disability from 20 percent to 60 percent, effective that date. The Board has specifically found that a rating in excess of 20 percent for the cervical spine disability is not warranted prior to August 16, 2001 on a schedular or extraschedular basis. Therefore, the Board's decision here hinges on a finding that, irrespective of the above factual background, the combined effect of the Veteran's service-connected disabilities renders him unable to secure and follow a substantially gainful occupation. The current effective date for TDIU of August 16, 2001 is not based on a change in his physical condition on that date, but is based on the date the claim for TDIU was received at the RO; however, the Board found in its July 2009 decision that the claim for TDIU actually arose from the Veteran's January 11, 1994 original claim for compensation, as a component of the appealed initial rating for a left neck disability assigned in the resulting June 1994 rating decision. In this context, the current effective date of August 16, 2001 has little to support it. The Board's decision must be based primarily on the impairment resulting from service-connected disabilities before August 16, 2001, and whether such impairment precluded a substantially gainful occupation. For reasons that will next be addressed, the Board finds that the evidence for and against such a finding is in equipoise. The Board is most persuaded by what appears to be a consistent level of overall occupational impairment over the entire period since service. While the particular factors such as limitation of motion and attacks of intervertebral disc syndrome may have changed over this period, the evidence indicates that the effect on occupational impairment has remained largely the same. A VA examination in April 1994 reveals that the Veteran was not working because of his injured neck and left arm at that time. In that examination, and in a February 1997 examination, the Veteran reported decreased sensation and pain associated with most activities, and especially attempting to lift. In a November 2000 physical therapy initial evaluation, it was noted that the onset of chronic pain was five to six years prior. A June 2001 report indicates a five-year history of increased pain and neck stiffness. In May 2003, the Veteran's girlfriend stated that she had been in a relationship with the Veteran for 13 years. She noted that, for this period, the Veteran could not play with his son or daughter because of his neck, that he was not able to hold his son because of the lack of feeling in his hand, and that he was not able to contribute to household chores such as mowing the lawn, taking out the garbage or even minor repairs. Thus, regardless of the specific findings pertinent to the rating schedule that were present during this period, the overall effect of the disabilities on the Veteran's employment appears to be roughly the same as it was and is after August 16, 2001. Regarding the medical opinion evidence, this evidence is generally favorable to a finding that the Veteran's service-connected disabilities precluded a substantially gainful occupation from December 14, 1993 (the first day after service separation) to August 16, 2001. A July 2003 VA examination includes the opinion that the Veteran had been unemployed since service separation. The examiner felt that the likelihood of his returning to work was slim. While this opinion is after August 2001, it deals with the entire period since service separation. In a June 2010 addendum to a January 2010 VA examination report, the VA examiner specifically commented on the Veteran's employability from April 1994 through August 2001. The examiner opined that the Veteran could only stand one hour at a time. He could only walk with a neck brace up to 45 minutes. Without a brace, he could walk 20 minutes. He had severe restrictions with any bending, lifting, and twisting, as well as reaching and grabbing with his left hand. The examiner noted that the Veteran's skill set was that of a tanker, and that he could obtain employment with the above restrictions. There are other opinions indicating that only sedentary work would be appropriate for the Veteran, notably, a November 2003 private opinion. A January 1995 vocational rehabilitation counseling summary notes that the Veteran had an impairment of employability. It was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs he would qualify for. It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint." The counselor noted that the Veteran has not overcome the effects of the impairment of his employability and he does not have suitable job skills to offer the civilian job market, either from training or work history. A January 2001 counseling record for VA vocational rehabilitation notes that the Veteran has some employment impairments including that physical labor is difficult, overhead lifting and heavy lifting are precluded. According to the January 2001 examiner, the Veteran could not do entry-level manual jobs. The examiner recommended that the Veteran become trained to be a computer technician. A narrative summary includes the assessment that the Veteran's service-connected neck condition limits him from doing any overhead or heavy lifting and that he lacks suitable skills to find employment that is not physically demanding. The Veteran ultimately withdrew from vocational rehabilitation due to complaints of headaches, which he attributed to his neck. A March 2011 VA social and industrial survey notes that the Veteran's service-connected neck condition and non service-connected disabilities place him at a competitive disadvantage in obtaining employment when competing with jobs for the nondisabled, as he is not able to do any jobs that require excessive physical demands. The examiner noted the findings in the vocational rehabilitation file, as well as the factors such as the Veteran's substance abuse. The examiner provided the opinion that, with the Veteran's limited education and work experience, the type of work he could do would be primarily physical; this would be compromised by his physical disabilities, including service-connected disabilities. The examiner continued that it is clear that the Veteran's service-connected disabilities disabilities had a notable impact on his ability to obtain and maintain substantially gainful employment prior to August 2001. The Board remanded the claim for an addendum opinion in light of the March 2011 examiner's apparent consideration of other physical disabilities in addition to service-connected disabilities in formulating the opinion as to unemployability. An August 2011 addendum to the social industrial survey reveals that, in the reviewing physician's opinion, the Veteran's cervical spine condition from April 1994 to August 16,2001 caused the following limitations: the Veteran could only stand one hour at a time; he could only walk with a neck brace for up to 45 minutes and without a brace he could walk 20 minutes; he had severe restrictions with any bending, lifting, or twisting; and the Veteran's elbow injury also restricted physical labor that required repetitive use of the left upper extremity. In the physician's opinion, these limitations due to service-connected disabilities caused the Veteran to be unemployable in both physical and sedentary work during this time period. The opinion was that the Veteran was not employable in any type of labor during this time period due to his service-connected disabilities. The RO referred the case to the Director of the VA Compensation Service (Director) for extraschedular consideration decision in December 2011. In a January 2012 opinion, the Director noted that, from April 1994 to August 16, 2001, the sole service-connected disability was cervical spondylosis with chronic muscle strain of the left neck, evaluated at 20 percent. The Director found that physical examinations prior to August 16, 2001 do not support the contention that the Veteran's service-connected cervical spine disability was so exceptional or unusual, as to render the use of the regular rating schedule standards impractical. The Director found that there are no medical statements or records indicating that the Veteran could not perform in any sort of occupational environment. The Director also noted that May 18, 2001 was the first time employment functioning was mentioned in terms of the Veteran's neck disability, and this appears to be verbal history from the Veteran, not a professional medical opinion. The Director noted that the Veteran stopped attending vocational rehabilitation due to headaches, which he claimed were due to the neck, but no link has been provided, and he is not service connected for a headache condition. The Director acknowledged the recent VA opinion that the Veteran was unemployable due to his cervical spine disability prior to August 2001. While this opinion was taken into consideration, the Director found that the objective evidence does not support the examiner's finding. The Director concluded that, while available evidence demonstrates that the Veteran's cervical spine disability would have affected his ability to work prior to August 2001, evidence does not show it would have precluded all types of employment, such as sedentary employment. The Board notes that the Director only considered the Veteran's cervical spine disability as service connected during the period in question. While this was technically true at the time, service connection was subsequently granted for residuals of a left elbow fracture with a 20 percent rating assigned effective December 14, 1993. The service-connected left elbow disability must also be considered in determining TDIU entitlement, but apparently was not considered by the Director. The Board also notes that the Director did not explain why the objective evidence does not support the examiner's finding. In addition, the Director appears to have found that the evidence must show that the Veteran's service-connected disabilities would have precluded all types of employment, such as sedentary employment, in order to warrant TDIU on an extraschedular basis. Such criteria appear stricter than what is provided in VA regulations. The Board finds most persuasive the fact that, as determined by the Veteran's vocational rehabilitation counselors, the Veteran 's service-connected neck disability limits him from doing any overhead or heavy lifting, coupled with the fact that he lacks suitable skills to find employment that is not physically demanding. Indeed, regarding sedentary employment, it was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs for which he would qualify. It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint." The VA vocational rehabilitation counselor noted that the Veteran has not overcome the effects of the impairment of his employability, and he does not have suitable job skills to offer the civilian job market, either from training or work history. In Moore, 1 Vet. App. at 359, the CAVC discussed the meaning of "substantially gainful employment." The CAVC noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Here, it is uncontested that the Veteran's service-connected disabilities would preclude any form of employment that is more than sedentary in nature. Moreover, as a result of his inability to complete his education and his limited vocational experience, the Board finds that the types of sedentary occupations available to the Veteran would be quite limited. The Board emphasizes that the test is not whether the Veteran would have been precluded from all types of employment, such as sedentary employment, but whether such employment was realistically within the physical and mental capabilities of the claimant. On this question, the evidence in this case is at least in relative equipoise. An additional factor considered by the Board relates to medication taken by the Veteran to treat his service-connected disabilities. In a May 2003 RO hearing, the Veteran testified that he took pain medications and muscle relaxers for his service-connected disabilities. A July 2003 VA examination reveals that he had been taking codeine for pain. A June 2011 VA social and industrial survey shows that he was taking the muscle relaxant Cyclobenzaprine. The effect of the Veteran's long-term use of pain medications and muscle relaxers to treat his service-connected disabilities cannot be ignored when considering his overall functional impairment due to service-connected disability. See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability). In sum, given the severity of the orthopedic disabilities affecting neck, cervical spine, and left upper extremity, the Board finds that the evidence for and against whether substantially gainful employment is realistically within the Veteran's physical and mental capabilities is in equipoise. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude him from performing substantially gainful employment. 38 C.F.R. § 5107(b). Therefore, TDIU is warranted from December 14, 1993 to August 16, 2001. ORDER A TDIU from December 14, 1993 to August 16, 2001 is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of V
  13. This crazy so I get the ssoc for the smc o and r court remand. Nov. I been trying to find out why it's not been return to the judge. Here is a email I get today. Thank you for your inquiry. Your appeal has been transferred to the Board. The appeal is pending intake actions to receive and docket the appeal. When your appeal is placed upon the Board’s docket, you will receive a notification letter from the Board. Ok now I have to wait for a cavc remand to be docket. Smh It already have a docket number it is to be return to the judge. Man I am get frustrated with this you can't talk to anyone they just so whatever and process it than u are fight to get there errors fix. This is on purpose. Man I ask the court to sanction the department veterans affairs. For there handling of a cavc remand Under Grove v. It explains how a cavc remand should be handle and it's law. Crazy part they advance my case again oct. Because of my need of higher level in home care. But will not return the smc r and o to the judge for a decision. Well guess this will be a new fight getting a Cavc remand return back to the judge. I guess they are going change the cavc docket to a new appeal again in the system. Smh man if the court don't address all this in my petition. I am now take the petition to federal court pro se. I am not just let all this go. Find out the droc DC who did all this is the old appeal management place. They just change the name. These are there old tricks. That had veterans waiting years to get a decision on a Cavc remand. Do to doing things like this. That why Grove vs address it at the court. I ain't let this stuff go
  14. Ok let me start here u should go to any exam the va orders. Now are there times when the va is just ordering exam for no reason. Yes. I am not just stating this the va inspector general has done reports on this. Now let get to the my belief and the law I feel backs it up. I am only base this on smc benfits and if you have a Cavc remand I will use my case. I apply for smc benfits and the va order 5 different exam loss of use and increase exam and a@a exams Then they defer it two times. I withdraw the increase rating at the hearing with the dro. On appeal I was send to 3 more exams and even a specialized loss of use exam. I was granted smc l from when I apply for smc benfits. I continue the appeal to the court. It was remand to address smc r and o and the effective dates of smc s and l because the va never address any time period before I apply. Ok let look at smc benfits laws b. Responsibility for Determining LOU The responsibility for determining whether there is loss of use (LOU) of an extremity • rests with the rating activity, and • cannot be delegated to the examining physician. Ok so based on this the rater is to make the determination not the examiner. So the rater should use your record to make this determination. Ok in my case the bva judge denied my 25 years of evidence and my specialize loss of use exam. Because the examiner didn't state i have loss of use. Here is the law Do not request that the examiner • determine LOU, or • express an opinion as to whether there is, or is not, LOU of an extremity or extremities Ok there not following the law and ordering unnecessary comp exam. Note: If LOU cannot be determined upon review of an examination report, request an appropriate specialized examination. I had the specialize exam. Ok so they didn't accept the specialize exam because it was favorable. Ok here is more laws for veterans. Exercise considerable care when requesting examinations in connection with claims involving SMC under 38 U.S.C. 1114(1) through (n). I had over 8 comp exam for smc and the specialize exam. I guess that would not be call considerable care. Ok after the court remand it I wasn't going to anymore exams. Why because of this. Someiano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case)Adam v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. At 1322.” And the bva judge still remand it for a medical opinion. Now should a veteran press the issue about all these exam I say yes But some say just let the va do what they feel and hope for the best. I am not from that school. Ok now that we got that part. Let look at ordering increase rating exam when a veteran apply for smc. Medical providers within or outside of VA may complete VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, to provide evidence that a claimant is in need of aid and attendance (A&A) and/or housebound benefits. Notes: • Statements by medical providers on VA Form 21-2680 which meet the requirements of 38 CFR 3.326(b) and 38 CFR 3.159(a)(1) are acceptable for rating purposes. • Statements by medical providers or other clinical evidence contained in the VA Form 21-2680 may be accepted as a claim for increased evaluation for an existing SC disability if worsening of the disability is shown. Ok I see may be used as a increase rating if the disability worse. For an increase rating. Now if a veteran disabled can't get an increase any higher or does want and increase of his rating claim. Or feel they may play with his rating or whatever reason. Can he withdraw it. And the va still have to process the smc benfits. Yes. Now I am 25 year protected so yes I refuse exams. I have a 25 year record over 6 bva decisions and two court cases. That are part of my record. Use that. I post this and hope it can help others understand. The law
  15. Ok I am address housebound by fact. Not smc for having 100@60% No need to bring that to this post we understand that. Now let look at housebound by fact and what it mean. Howell versus Nicholson, March 23, 2006 number 04-0624 CAVC “The term “substantially confined” is not defined by statute or regulation. See id. 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. To the extent substantial confinement does not include departures for medical purposes, we agree that the interpretation that the Secretary presents in his supplemental briefing is reasonable and consistent with statute and regulations. See Jackson, Thompson, and Cropper, all supra. 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. Ok from all this I can't see any other veterans this would apply to but tdiu veterans who are pt. We have never been able to leave are homes to make a income What evidence do we have the employment question paper we had it have to do prove you have never been able to leave for a income. Now I could be wrong but I feel the court has already set this in stone. I don't see many tdiu veterans getting housebound by fact tho
  16. Well today start the new process of appealing these bogus decisions. On the adjustment disorder and the effective dates for smc s and l. The va has 30 days to file the bogus decisions to the court. That when I will put in the motion to expidate my case at the court and ask for the new rule 33 telephone conference for pro se veterans. I am point out the process for veterans that might have to start there appeal to the court pro se. If you can't find a lawyer in the 120 days make sure you file the notice to appeal and the hardship for the 50.00 filing fee. This all can't be done online and by email. Once the case is file lawyers will be send things to represent you. Now here the thing I still have a petition for extraordinary relief at the court it doesn't stop the 120 days to appeal to the court. So I not waiting 120 days I could be well into to court process why I wait for the court to rule on the petition. So you can have your appeal started at the court and have the petition going. And if the court rule for my cases to be return to the board I will withdraw the appeal to the court. Always remember the 120 days to appeal to the court. Any final bva decision It could kill your case.
  17. I don't no if the va has just hired new ppl or what but this process is crazy. Ok I get the ssoc for my court remand Nov 16 2001. The only two issues still under the remand is smc r and o. They will not return it to the board again. Now I am been told I am waiting for a cavc remand to be cretifed back to the board. Smh Since when does a cavc remand had to be cretifed again to go back to the judge who remand it. Smh So now once again I have no decision to appeal to the court. I am going to have like Three different appeal go at the court over issues that were all together. And remand by the court together. The petition for extraordinary relief has been going on since July. And the court is just let them process my cavc remand like this. They will not even rule on my petition. Everything has been with the judge since November 3. I just want them to give me the bva denail for the smc r and o. So I can appeal everything back to the court together.
  18. ? I been looking into this but can't seem to find. We're do you send the petition the board or the us court.
  19. Well today I look on ebenfits and the effective dates for smc s and l have change to been reviewed by a judge now. The mmd hasnt change yet but I feel it will be next. The board got 6 more day to answer the court. I just hope they get it right this time. Don't feel like I have another court fight in me. Well I am just glad my cavc remand is been return to the judge. 6 month smh Oh and this was the cavc remand issue that was been shop for the last 6 month for a medical opinion. We will see
  20. Ok so I go to to a look an see if my cavc remand for smc o and r had been return to the board. And I find this for my effective dates for smc s and l. Smh. They change one month smc s to s smc l award. I look and it a 370.00 retro check now I might be wrong but the difference between smc s and l in 2018 was not 370. Smh. Than I see this. Ok how do u ask for a supplement review on a cavc remand. They are just doing anything to not say they mess up processing a cavc remand. Now I got beef to get this decision. Shit I aint even got the ssoc that was done nov14 in the mail yet. The Veterans Benefits Administration corrected an error On November 23, 2021, a judge at the Board of Veterans’ Appeals made a decision that changes your disability rating or eligibility for benefits. On November 29, 2021, the Veterans Benefits Administration sent you a new decision that updates your benefits. If you disagree with either the Board decision or the Veterans Benefits Administration decision, you can request another review. The review options available to you depend on which decision you disagree with. This appeal is now closed What if I disagree with the November 23, 2021 decision? If you disagree with VA’s decision, you can choose one of the following review options to continue your case: Add new and relevant evidence A reviewer will determine whether the new evidence changes the decision. This option is called a Supplemental Claim. Available until November 23, 2022. Appeal to the U.S. Court of Appeals for Veterans Claims The court will review the Board’s decision. You can hire an attorney to represent you, or you may represent yourself. Available until March 23, 2022. Not available for this decision Ask for a new look from a senior reviewer (Higher-Level Review) Appeal to a Veterans Law Judge (Board Appeal) Your decision has information on additional ways you and/or your representative can address errors. Learn more about your decision review options. What if I disagree with the November 29, 2021 decision? If you disagree with VA’s decision, you can choose one of the following review options to continue your case: Add new and relevant evidence A reviewer will determine whether the new evidence changes the decision. This option is called a Supplemental Claim. Available until November 29, 2022. Appeal to the U.S. Court of Appeals for Veterans Claims The court will review the Board’s decision. You can hire an attorney to represent you, or you may represent yourself. Available until March 29, 2022. Not available for this decision Ask for a new look from a senior reviewer (Higher-Level Review) Appeal to a Veterans Law Judge (Board Appeal) Your decision has information on additional ways you and/or your representative can address errors.
  21. Ok so just now the va put in there response to the court on my petition. And just like I thought they are saying they made decision on my appeals once again. Never addressing the change of my docket numbers. Which the court order them to address. Here is the insert from the decision if you notice it doesn't state this is a remand from the cavc. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). That rating decision effectuated a January 2020 Board decision that granted entitlement to special monthly compensation based on housebound criteria and aid and attendance criteria being met and assigned the respective effective dates. On his VA Form 10182, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021 rating decision on appeal. 38 C.F.R. § 20.301. Effective Date of Special Monthly Compensation (SMC) The Veteran contends that he is entitled to special monthly compensation prior to May 9, 2018. In this case, effective May 9, 2018, the Veteran was awarded SMC under 38 U.S.C. § 1114, subsection (s) based on statutory housebound requirements being satisfied. Effective July 17, 2018, the Veteran was awarded SMC on the basis of aid and attendance under 38 U.S.C. § 1114, subsection (l). well I am just get ready to appeal to the court again because I believe the court is about to let this all stand. and dismiss my petition in the next week or two. think I might start the appeal to the court Friday I am try to wait on the last decision but the way I see it I will not get it until the 120 days to appeal these decision is almost over. smh this make no sense.
  22. Ok so I need a few opinions on this. 38 CFR § 3.340 - Total and permanent total ratings and unemployability § 3.340 Total and permanent total ratings and unemployability. (a) Total disability ratings - (1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. (2) Schedule for rating disabilities. Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met. (3) Ratings of total disability on history. In the case of disabilities which have undergone some recent improvement, a rating of total disability may be made, provided: (i) That the disability must in the past have been of sufficient severity to warrant a total disability rating; (ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and (iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation. (b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Ok here my thing part b. To get a PT rating u must have one of these conditions. Loss of use hand etc. So if veterans get a PT rating they should be getting loss of use under smc benfits by this Now in my case they keep make me apply for loss of use. When I been out over Pt 26 years. Am I reading this wrong.
  23. Well I think I will be going back to the Court. Like I said one issue they remove from the cavc remand. And put in the new appeal system It say I can ask for a supplement review. The effective dates smc s and l. One say granted one denied. I am going to take it that I was granted the same effective dates I appeal to court. Smh. The adjustment disorder was denied a total rating even after changing my tdiu to the adjustment disorder. It total for tdiu but they don't want to rated it total. Well this issue which also was part of the cavc remand. It state I have a 120 day to appeal to court. Well the smc o and r remand also by the court is waiting to be return to judge. So like I said I will now have three appeal to the court for a cavc remand. I am happy tho I am getting this out of the bva hands and they were not able to play me. With the change of the one issue docket and telling me I was 100000 in line. The fight continues. Oh I no my petition will be denied now It was like the court gave the bva 10 days to make a decision. This was quick. Well I still have to wait on the bva decision for the smc r and o. It should be coming before the 120 days. This is the only issue that's still under the cavc remand docket. I am about to call to see if I can find out what the granted thing is. On the effective dates for smc s and l. I am like a 100% sure they are acting like they granted the same effective dates I appeal to the court smh
  24. Man so I am looking at the granted for the 70% for adjustment disorder. I forgot I use my service records to reopen this. Is the effective date the date of the services records. It was denied in 2001. But my case go back to 1993 service because the va never cretifed my appeal to the board back then.
  25. Well today the fight is over to get all my cavc remand issue return to the bva judge. This has been a six month fight. The only thing mess with me they still have them listed as three different appeal. But I am not about to start a new fight. For this. And I still have the petition at the court maybe they will order them to get it right. I just want a bva decision they can denied it or granted it. It been a 4 year roll coaster for smc benfits.
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