tdiu Why Is Varo Not Recognizing Gw Service?

[jmlo]

I have a claim that was recently denied under DRO. While they were "reviewing" I found out that I was eligible to be on the GW registry and scheduled for an exam. They canceled my exam twice but I ended up going anyway on the second time and they took me in, verified my service and did the exam. In the meantime, I sent the VARO a letter explaining this "new evidence" and then they quickly denied my case, stating that "although the doctor mentioned that the fibro is most likely service connected, he didn't base his opinion on a review of your medical records".

No where in the soc did it mention my GW service or that I am a GW vet. I also replied with a letter citing the CFR on this issue and where they made the mistake in applying the code, I also asked for a hearing at the VARO. They replied with a hearing date but again didn't mention the GW service. I thought they would issue a supplemental statement of the case after considering this new evidence. Whey have they not acknowledged this new evidence? Am I missing something?

Also, my hearing date is Jan 9th. I have done everything on my own and with the help of this board but now I feel like I need some help. Will the DAV be able to help on such short notice? I plan to contact my rep there this week.

One other thing, should I apply for TDIU? I am currently 60% combined but have not worked since the middle of last year and before that it was minimal. I have applied for SSD and had my hearing last month and I am awaiting a decision. The lawyer said it went well and hopefully I'll hear some good news soon. Should I wait to get that decision before applying for TDIU? and am I even eligible at 60% combined?

And, should I file form 9 for the appeal at BVA? Couldn't I withdraw that later if it goes well at the regional office hearing?

Thanks for any help. If anyone has any good links to BVA decisions re: fibro and GW please post them. I'm off to search now.

[Ricky]

jmlo - just a couple of questions concerning your post in order to clarify it:

-My assumption is that you have applied for SC of Fibro as presumptive to your GW service is that correct.

-When did the fibro begin and what does the medical evidence say about it ie symptoms.

-Is the hearing on 9 Jan with a DRO as a result of a request for a De Novo Review? If so I would not file any other action (form 9) until the entire DRO process is over with.

At this time the VARO's, all 52 of them seem to fight presumptive conditions for GW service. I do not know why but the do. Hopefully at some point and time a law suite will be filed by someone which will bring this issue into the light.

However, although it is a long wait, if all conditions are met for presumption normally the BVA awards the claim. This is not fair but simply how it is done.

As to your question about the DVA. Yes they can help if you have a good service officer. Although I have seen case upon case of GW presumption go before the DRO with Service organization assistance they were stille disapproved and had to go to the BVA. However with that said, I would still recommed that you seek their assitance before you hearing. Make sure you give them plenty of time to review you case etc.... I would start today by calling them.

I am a GW vet also who had to fight years to get a presumptive rating. It can be done. Just make sure you meet all of the presumptive requirements, the medical evidence supports your claim and then just scream presumption as loud as you can each and every time the get VA's attention (don't be nasty just loud).

Even with DVA help, Hadit is an excellent place to hang out and the experts here can still guide you through the claims process. If I can help you any further just post and I and others will chime in.

[Berta]

I would sure submit the TDIU form now-

the SSA decision could come any day and if this SSA award is solely based on the condition you claim for service connection-it is excellent evidence of unemployability.The SSA award copy should be sent to the VARO in support of the TDIU claim. I sure hope the award goes through for that.

SSA awards are in essense independent medical opinions.

Under # 18 Check off Yes and under Remarks # 25 (you can refer them to additional page attached) tell them anything else that would preclude employment with your disability- the meds side affects, anything like that- etc.Tell them if you had to take off time from jobs due to this disability too-

"Whey have they not acknowledged this new evidence? Am I missing something?"

Unfortunately veteran, this is often part of the frustrating the MOS of VA-

if they acknowledge the evidence it often means they have to make an award-

I would attach any of this evidence to the TDIU form and refer to it in the attached statement -so they cant miss it again.

"In the meantime, I sent the VARO a letter explaining this "new evidence" and then they quickly denied my case, stating that "although the doctor mentioned that the fibro is most likely service connected, he didn't base his opinion on a review of your medical records".

This could be challenged-

Is there anything in your SMRs that could possible show direct nexus to the fibro as well as the PGW regs for presumptives?

Edited September 24, 2007 by Berta

[Berta]

forgot- here is the TDIU form-

If SSA awards on the 60% disabilities you now have as SC- then the VA should award TDIU whether they SC the fibro or not-you could still appeal any denial on that however-because if this becomes SC as an independent disability not associated with the 60% ones- then this could set stage for Special Monthly Compensation in addition to the TDIU.

Also is it at all possible that the fibromyalgia could be found as a secondary disability the anything you already get comp for?

One more way to go-

I just read 25 BVA decisions on fibro-I found none were granted under the PGW vet regs-but there are plenty of fibro claims there ---then again some had been awarded but I could not tell on what basis-

PGW or direct SC because they were appealing higher ratings and the decision never said how they got the initial ratings.

GW vets have to pursue their claims using any potential basis for SC whatsoever.

TDIU_form.pdf

[Ricky]

Berta couldn't agree with you more :GW vets have to pursue their claims using any potential basis for SC whatsoever - however, we also need to push the button on the presumption issues. We can not just walk away and let them get away with murder. We are not at the point where we may be able to get some congressional review on this as the current GW goes on.