Still Loosing It, Help Please.

[livingrock21]

Hello To All Again,

I haven't posted here for a while! I'm still in the same boat and on my last appeal. Here is a link from my original post http://www.hadit.com/forums/index.php?showtopic=15124&hl= .

A little background. I got medically retired from the Navy August of 07. Filed my BDD claim July of 07. Got my findings in Nov. of 07. When I got my findings I immediately saw an error on the VA's part. They rated me per a condition that I didn't have, nor was it even really related. They had me rated under "Paralysis of the median nerve" (unsure of the VASRD code, believe it was 8517). I should have been rated under Erythromelalgia, diagnostic code 7119.

I've been appealing this since. I'm on my third and final appeal and am very discouraged. At one point I thought I was going to recieve help from a VFW Service Officer. He said he would take my claim to the STAR Review, and it would be fixed there. Seemed as though he was going to be very helpful, only to have him come back and say they were no help.

On my last Statement of the case, they agreed they made an error rating me under paralysis of the median nerve and agreed to rate me under erythromelalgia, but didn't change my percentage as they should have.

_____________________________________________________________________

Here's an excerpt from the VASRD on this particular condition (this pertains to my questions:

7119 Erythromelalgia:

Characteristic attacks that occur more than once a day, last an average

of more than two hours each, respond poorly to treatment, and that

restrict most routine daily activities.................................................................. 100

Characteristic attacks that occur more than once a day, last an average of

more than two hours each, and respond poorly to treatment, but that

do not restrict most routine daily activities........................................................ 60

Characteristic attacks that occur daily or more often but that respond to

treatment.......................................................................

...................................... 30

Characteristic attacks that occur less than daily but at least three times

a week and that respond to treatment................................................................ 10

Note: For purposes of this section, a characteristic attack of erythromelalgia consists of burning pain in the hands, feet, or both, usually bilateral and symmetrical, with increased skin temperature and redness, occurring at warm ambient temperatures. These evaluations are for the disease as a whole, regardless of the number of extremities involved.

________________________________________________________________________________

_______________

My questions:

Is there anything else I could be doing? I'm so scared their going to come back and say everythings fine and deny my appeal to correct the percentage.

I have a letter from my active duty dr, in my medical record, stating that the attacks occur daily. They last more than two hours, and do not respond to treatment. So how could they have me rated at 30%?

Also, while in the appeals process, I have been granted Social Security Disability due to this condition. If you look at the rating criteria, the diference in 60% and 100% is the ability to perform daily activities. I can't do the most daily activity, work. Should I submit evidence as to the fact that SSD found me disabled? I called today and my appeal is in the DRO's hands. I was told it's been there for atleast the past 5 months.

This is off topic with the VA claims processing, but.... I don't get SSI because they include my VA compensation. I'm rated at 40%. Are they allowed to use this as income? I've seen people on here that are 100%, getting SSD and SSI. What am I doing wrong? I'm only at 40% and can only get SSD?

Thanks for your help in advance. Hopefully someone can point me in the right direction.

[livingrock21]

Any one else have any thoughts or ideas on this situation?

[Ricky]

Ricky, The dx code has already been changed to the correct one. Now the trick they are going to pull is to not send this vet to a new C&P so that they can continue the low ball rating based on a old C&P. This vet is living on the good graces of family members and cannot afford a IMO. SInce he is low on funds, he may need the steady flow of monthly income worse than he wants a large lump sum check. With that in mind, if he dropped the appeal, and filed a claim for increase on the condition with the dx code change, he could have a new C&P and decision within six months, and have a steady flow of income to sustain him and his family. Otherwise, his claim could lanquish at the DRO level for over another year (it's been there less than a year, and waiting two or more years for a DRO review is far from unheard of), and during that time he could fall further into financial despair. Sometimes it's not all about the retro. Sometimes it's all about sheer survival, and getting the flow of income in as short a time as possible. Therefore my advice was not bad, and made perfect sense. I personally have a appeal working, and I doon't really care if it takes 5 years. I have a steady flow of income, and a mindset that the longer it takes, the bigger the retro check will be.

he could have a new C&P and decision within six months -

hmmmm.... guess we should not hear any more complaining from vets who have requested reopened claims for increases. Keep in mind that only during his initial claim will he fall under the super duper speedy processing. All follow on claims are thrown into the lake with ours so be careful with your wording. It could cause a vet to lose his "not always about the large retro" payment only to find out his or her request for increase is still pending 14 months later and guess what still no C&P either.

So my question to livingrock what do you mean by 3rd and final appeal? As Shane has provided the DRO process can be quite lenghty. However, at your current point it would be less lenghty than a lenghty new claim followed by a lenghty DRO review. jmho You need to find another SO in your area that can take a look at your claim so they can review all of your medical evidence.

Edited January 24, 2009 by Clown Man

[livingrock21]

he could have a new C&P and decision within six months -

hmmmm.... guess we should not hear any more complaining from vets who have requested reopened claims for increases. Keep in mind that only during his initial claim will he fall under the super duper speedy processing. All follow on claims are thrown into the lake with ours so be careful with your wording. It could cause a vet to lose his "not always about the large retro" payment only to find out his or her request for increase is still pending 14 months later and guess what still no C&P either.

So my question to livingrock what do you mean by 3rd and final appeal? As Shane has provided the DRO process can be quite lenghty. However, at your current point it would be less lenghty than a lenghty new claim followed by a lenghty DRO review. jmho You need to find another SO in your area that can take a look at your claim so they can review all of your medical evidence.

Clown Man,

As I understand, the third appeal is final. It's taken before the BVA and their decision for that appeal sticks. Correct me if I'm wrong, that very well could be the case. I def. understand your perspective about the withdraw of my appeal, as with a few others on here. I'm not sure what the right decision would be, either keep my claim how it is and know it's going to take a while, or withdraw it and possibly have a decision within the next 7 months. Granted that decision may not be one I want to hear.

To all,

I've still only heard a little bit about the STAR review. Am I pretty much wishing on something that will never happen? Which would be my claim being adjusted by them due to the errors made in my claim to begin with? Has anyone ever heard of any good outcomes with the STAR review proccess? Is my VSO really blowing smoke up my a*#?

Lets say I let this appeal roll, and they decided to deny me again. Could I at that point ask them to CUE themselves? Would that get the retro pay I've been waiting on when they would finally fix everything?

I'm almost more confused then when I started. *SIGH*. I'm still very appreciative of everyones input. I'm just not sure what route I'm going to take at this point. It's def. seeming like a judgement call, and I don't have the experience to make. It's so unacceptable that VA employee's(the ones that make sure this old and unjust system is still inplace) feel that this is okay. It's really immoral and they are going to hell. I seen a post earlier today that there should be laws against such acts. I feel the same. These people should be put to trial and thrown in jail. Their ruining my life. You could say not physically, but they actually are. At this point I can't afford to put a roof over my family, thank god for relatives. As I've stated many times before, I've about over the ledge to the deep end, so that accounts for the emotional destress. Sorry for the ramble.

At this point, the only thing I am clearly going to do is file the form Berta was talking about. The one for TDIU. I was def. unaware I'd be entitled to these benefits since I currently recieve SSD. Thats def. one positive! Still not sure what I would do about everything else. I'm kind of almost leaning towards letting my appeal go and see what happens. Especially if I'd be recieving TDIU in the mean time. Atleast I'd be able to get back on my feet.

Thanks again for everyones time. I lookforward to hearing everyones input and opinions on all this.

[Ricky]

It is my impression that your appeal is still at the RO level is this correct?

If it is in the DRO's area due to the fact that you have formalized your appeal via a Form 9 then it could be there for quite a long time. Current BVA actions are taking 18-24 months and the Appeals Team at the RO will hold on to your file until the BVA calls for it.

At any rate since you recently were approved for SSDI I would send that paperwork to the RO in support of your claim. Even if the Appeals Team is simply holding the file for the BVA and has not certified the file to the BVA yet, and you submit new and material evidence the DRO will review the evidence and either make the award or issue a SSOC and continue to hold the file for the BVA. At least this is the proper process, as you know with the VA it may take quite a bit of prompting them to get them to follow through the way they should.

The problem is that you are going to get many varied opinions here on hadit. That is what makes the board so great. However, only you know for sure what can withstand in your personal life and must be the one to process all of the information and make the final decision on the claim. Regardless of the decision you make hadit is here to support you and we wish you the best of luck on your claim.

Edited January 24, 2009 by Clown Man

[broncovet]

Living Rock

You said,

"I'm kind of almost leaning towards letting my appeal go and see what happens. Especially if I'd be recieving TDIU in the mean time. Atleast I'd be able to get back on my feet."

IMHO, this will NEVER happen. They just arent gonna "award TDIU" while you are awaiting an appeal. The VA does not "hand out" TDIU like it was a free pen at a bank. TDIU is a highly coveted award where the VEteran is paid at the 100% rate, and it is only awarded after MUCH pain. I have been trying to get TDIU since 2002, even tho I have recieved a "complete grant of benefit sought" by the Board of Veterans Appeals, I have not been able to get it yet.

To get TDIU you first need to be service connected with one disability at at least 60%, or, a combination of disabilities totalling 70%. Then, you have to proove that you are "unable to maintain or sustain gainfull employment". Most of the time that means you went through 1-2 years of training at Voc Rehab, and your doctor and VA counselor said unaminously that you are unable to complete your voc rehab training due to service connected disabilities. Just because you got both legs blown off in the war, does not mean you cant do ANY job..you would also have to demonstrate WHY you could not retrain and push paper with your wheel chair.

Saying you will just "get TDIU while waiting on appeal" would be like saying..I think I will just be president of the United States while I am waiting for my unemployment to come through. You have a better chance at winning the lottery. Keep your appeal active and buy a lottery ticket.

Edited January 24, 2009 by broncovet

[livingrock21]

Living Rock

You said,

"I'm kind of almost leaning towards letting my appeal go and see what happens. Especially if I'd be recieving TDIU in the mean time. Atleast I'd be able to get back on my feet."

IMHO, this will NEVER happen. They just arent gonna "award TDIU" while you are awaiting an appeal. The VA does not "hand out" TDIU like it was a free pen at a bank. TDIU is a highly coveted award where the VEteran is paid at the 100% rate, and it is only awarded after MUCH pain. I have been trying to get TDIU since 2002, even tho I have recieved a "complete grant of benefit sought" by the Board of Veterans Appeals, I have not been able to get it yet.

To get TDIU you first need to be service connected with one disability at at least 60%, or, a combination of disabilities totalling 70%. Then, you have to proove that you are "unable to maintain or sustain gainfull employment". Most of the time that means you went through 1-2 years of training at Voc Rehab, and your doctor and VA counselor said unaminously that you are unable to complete your voc rehab training due to service connected disabilities. Just because you got both legs blown off in the war, does not mean you cant do ANY job..you would also have to demonstrate WHY you could not retrain and push paper with your wheel chair.

Saying you will just "get TDIU while waiting on appeal" would be like saying..I think I will just be president of the United States while I am waiting for my unemployment to come through. You have a better chance at winning the lottery. Keep your appeal active and buy a lottery ticket.

Wondering who's right? Will I get the TDIU since I recieve SSDI, or not? I guess that plays the biggest factor right now as to what I'm going to do.