tdiu I've Been Away From This Board For Awhile, And Got A Little Rusty

[vaf]

Hi everyone,

I've been tied up trying to deal with four simultaneous Board remands on different claims for my husband, and am now turning my attention back to a claim that I don't know what to do with as to my next step. I need some guidance, and I looked over the Bradley v. Peake information here and can't find (or overlooked) what I need. Plus, I've lost some of the knowledge I gained from this board since my last visit. Can I come to you for advice, please? I apologize for the length of this.

The basic question is what does one do when the VARO refuses to accept a claim as a claim, tells the veteran they won't consider it via a perfunctory statement without any evidence list, or Reasons and Basis provided?

My husband has been rated 100% schedular P & T since August 2003 (prior to that, 90% since August 1993). His highest rating is 60%, so he is not TDIU. Above that 100% schedular rating, he was subsequently given, in November 2007, an additional 50% rating for sleep apnea, and 30% rating for bilateral cataracts, unrelated to any previously rated conditions.

My husband went on Social Security disability in September 2007 due solely to three disabling conditions that are service-connected at 60%,40%, and at the time we filed for his SSD, 30%. Recently, that 30% disability rating for Organic Mental Syndrome he's held since August 1993 was raised to 50% disabling effective November 2011. We are appealing the effective date since this has been an open claim since 1993 (bounced around between the VARO, the Board, and the Court several times since 1993).

In August 2010, we filed for SMC based on statutory eligibility when we heard about the Bradley v. Peake decision. We had asked if it would be more beneficial to the veteran to be considered for TDIU status in order to be considered for SMC under Bradley v. Peake. The VARO subsequently sent a VCAA notice dated September 2010, that addressed a different claim, but in that same VCAA notice, the VARO stated the following:

"We received your claim for a toptal disability rating based on unemployability; however, our records indicate that you are already receiving a 100% combined disability rating. Therefore, the issue of individual unemployability will not be considered"

In response, we wrote the VARO in September 2010, telling them that although their correspondence to us was not presented to us as a formal Rating Decision, it clearly carried the same force and indicated it was final. The VARO did not provide any legal citations, any evidence, any reasons or bases for its decision. We added that we were treating their statement the same as if it were a Rating Decision, and that our response was to be interpreted as our formal Notice of Disagreement.

We have not heard a word since, there has been no Statement of the Case provided to us, and I believe this claim is not being viewed as a claim.

To support our position, I brought up the fact that in Acosta v. Principi, 18 Vet. App. 53 (2004), the Court of Appeals for Veterans Claims pointed out that the considerations for TDIU and schedular ratings are different, and, if a schedular rating should be reduced for some reason, the TDIU could conceivably remain in place, so the benefits are not strictly congruent. Also in Acosta, the Court stated:

"Furthermore, the Court has previously concluded that schedular and extraschedular rating increase claims are not necessarily "inextricably intertwined" with TDIU rating claims predicated on the same condition. Colayong v. West, 12 Vet. App. 524, 537 (1999). Taking this into consideration along with the benefits that come with a 100% schedular rating that are not available under a TDIU rating, it is evident that the award of TDIU rating does not moot a claim for a 100% schedular rating."

We expected a challenge over our argument that the decision also applied in reverse, that the award of a 100% schedular rating does not moot a TDIU rating, either.

In Bradley v. Peake, the Court made it clear that the VA could not require one condition rated as 100% disabling to be a precursor for SMC(s) benefits. The Court held that Section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100% - it includes a disability that would support the grant of IU. In addition, the Court held that when a veteran has several service-connected conditions that combine to a 100% evaluation, if the veteran would be monetarily advantaged by having just one service-connected condition support a total IU rating and the veteran has other service-connected conditions, which combined are at least 60% disabling, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran.

Additionally, SMC benefits must be granted when a veteran becomes eligible without need for a separate claim (Akles v. Derwinski, 1 Vet. App. 118,121 (1991).

It appears the VARO is ignoring us. How does one CUE an agency that won't even acknowldge that the claim exists? I know they received everything because I have the certified mail receipts that prove it.

Or, am I totally wrong in my interpretation of my husband's eligibility for consideration under Acosta?

.

[Hoppy]

Have you considered a writ of mandamus. Your arguments seem strong enough for them to have done something other than what was done.

writ of mandamus - definition of writ of mandamus by the Free Online ...

www.thefreedictionary.com/writ+of+mandamusCached - Similar

You +1'd this publicly. UndoNoun, 1. writ of mandamus - an extraordinary writ commanding an official to perform a ministerial act that the law recognizes as an absolute duty and not a ...

[john999]

I agree about the writ and I remember long discussions about the VA not being allowed to rate a vet 100% schedular just to avoid a TDIU rating that would include SMC "S". This is where some lawyering might be handy.

[vaf]

Yes, it's crossed my mind -- a writ petition to the Court. I didn't know if that was protocol.

However, to follow what I know is normal protocol, I would have to be allowed access to the standard claims and appeal process. If I can't get my foot in the door at the VARO level, then the Court is my only alternative, I guess.

I've approached the NVLSP about this, may do so again. They were hesitant because we have an attorney handling unrelated claims that have reached the Court on appeal. The only issues my husband's attorney's firm is willing to handle are those that have already been through the Board and have been appealed to the Court (the security of knowing they'd be paid from EAJA funds, instead of totally depending on the good faith of the veteran -- nothing personal, just business). I haven't been able to pursue appeals the normal way, so they don't want this one. I think Bradley v. Peake claims make most attorneys nervous...

Of course, that poses a problem related to securing other representation. As long as a veteran is represented (even if only partial representation) for ANY claims, other lawyers don't want to get involved. That's how we ended up handling several claims pro se and the attorney ended up with the remainder.

[Teac]

"We received your claim for a toptal disability rating based on unemployability; however, our records indicate that you are already receiving a 100% combined disability rating. Therefore, the issue of individual unemployability will not be considered"

"Furthermore, the Court has previously concluded that schedular and extraschedular rating increase claims are not necessarily "inextricably intertwined" with TDIU rating claims predicated on the same condition. Colayong v. West, 12 Vet. App. 524, 537 (1999). Taking this into consideration along with the benefits that come with a 100% schedular rating that are not available under a TDIU rating, it is evident that the award of TDIU rating does not moot a claim for a 100% schedular rating."

We expected a challenge over our argument that the decision also applied in reverse, that the award of a 100% schedular rating does not moot a TDIU rating, either.

In Bradley v. Peake, the Court made it clear that the VA could not require one condition rated as 100% disabling to be a precursor for SMC(s) benefits. The Court held that Section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100% - it includes a disability that would support the grant of IU. In addition, the Court held that when a veteran has several service-connected conditions that combine to a 100% evaluation, if the veteran would be monetarily advantaged by having just one service-connected condition support a total IU rating and the veteran has other service-connected conditions, which combined are at least 60% disabling, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran.

.

From what I understand the va is not obligated to consider a TDIU claim if the veteran is rated 100%. However that is in direct conflict with Bradley v peake, since as you indicated above the veteran may benefit by having a TDIU rating vrs a 100% rating.

The problem is that you need to prove that he could justify a TDIU rating. If you can justify a TDIU rating based on medical evidence, and a work history that shows the veteran is unable to work because of a specific disability then you might then have a case for the TDIU and SMC, if he has a seperate rating of 60%.

I am really confused about his past and present ratings because of the way you have listed them.

Could you be more specific as to what his rating are right now..... and what conditon you think he should/could be rated TDIU.

If you can't show that he would be rated TDIU except for the 100% rating , you will have an up hill battle.

for example, I was rated TDIU for a back injury for 7 years before I was awarded a 100% rating for asthma/copd. During the time I was rated TDIU, I had additional disabilities rated at 60% or more,,, so in my case there was clear justification to retain the TDIU over the 100% rating if I could not qualify for SMC with the 100% rating.

However in your case he was awarded 100% prior to any consideration of a TDIU rating. Unless a doctor writes a statement that specifically states he can/could not work because of a specific disability ( that is rated at least 60%), since a specific date, I don't see anything coming of your claim.

From what I understand the va must justify the reason for denial, and even if they think it is a moot claim, it can still be appealed to the BVA. I did have a claim about 8 years ago that concerned auto adaptive equipment. The claim was denied locally and then it was considered moot by the BVA, but the COVA found in my favor. So even if it is denied as moot, there still is some hope. However if the va just flat out refuses to even consider the claim, that is another issue, one that may require some congressional intervention or the help with a VSO who sits at the regional office level or as others have said a whit of mandamus.

Best of luck

Edited March 18, 2012 by Teac

[Capt.]

Hello VAF,,, I believe you have posted some very strong points and agree what Hoppy and John both said.

First the main cause of your problems is the VA Regional Office being incapable of being fair or wanting to read and comprehend anything. You really can't sayd they are singleing you out .....they do it to everyone. So your evidence looks very strong and the Writ of Mandamus will at least get the claim moving again. It is possible that the DRO could get from that and be forced to act, but if it was me I would rather have a BVA sitdown and as John said ....with a lawyer. From the looks of your claim dates you would have a healthy retro even if you did have to give 20% to a winning lawyer . The main thing is your playing field gets alittle more even and its harder to pull shennagans with you.

I would count on gaining momentum to a win but it may take a little time to get the win for you at the court level using the lawyer.

Some others may offer advice to look at the Regional office with a DRO and if you have some good DROs there it might just get a rating from the Mandamus at that level. However , you still may have to appeal it for a higher schedular and to press home your rightful award for an SMC.

Glad to see you back . NEVER GIVE UP. God Bless, C.C.

[vaf]

Teac, to answer your questions:

"Could you be more specific as to what his rating are right now..... and what conditon you think he should/could be rated TDIU."

60% residuals from pituitary brain tumor surgery as of August 1993 (under Board remand)

50% organic mental syndrome (30% as of August 1993, 50% as of November 2011 - open claim

since 1993, we're fighting the effective date on that one) - (under Board remand)

50% sleep apnea as of October 2007

40% lumbar spine IVDS as of July 2003 (under Board remand)

30% bilateral field vision cuts as of August 1993

30% bilateral cataracts as of October 2007

20% cervical spine IVDS as of August 1993 (under Board remand)

20% adrenal disorder as of August 1993

10% bilateral tinnitus as of July 2003 (CUE pending re. effective date)

10% scar resulting from pilonidal cyst as of August 1993

10% sinusitis as of August 1993 (under Board remand)

He was rated 90% disabled from August 1993 through July 2003, then 100% P & T as of August 2003 to the present.

He held jobs on and off through the years 1993 through 2007 until he had to quit his last position because of the physical and mental job requirements he could no longer meet. He applied for and was granted Social Security Disability (SSD) in September 2007 due to the 60% rating above for pituitary tumor residuals, the 50% organic mental syndrome rating (which at the time of his SSD award was rated 30% by the VA), his 40% lumbar spine IVDS disability, and the 20% cervical spine disability ratings noted above. Those issues constituted the main reasons the SSA awarded his benefits upon his initial application for SSD. We did in fact obtain doctors' statements that supported the SSD application, which in turn, those records went to the VARO in support of pending claims for increase on several of the original ratings that are the subject of pending Board remands (yes, still pending to this day).

He didn't have the required 60% minimum above the 100% schedular rating until October 2007, when he received the additional ratings of 50% for sleep apnea and 30% for bilateral cataracts.

His 100% schedular rating is not as advantageous to him as being TDIU would be (with SMC(s) statutory elgibility) as of October 2007. We argued that if he qualified for SSD based strictly on service-connected disabilities, then the VA should explain to us why they do not want to rate him TDIU as of October 2007, when that status would make him eligible for SMC(s). They are obligated to do whatever is financially most advantageous to the veteran, and we have supplied more than enough evidence to tip the scale of reasonable doubt in his favor. The Court has clearly outlined the VA's obligations, however, the VA chooses to ignore the existence of a claim, let alone give us evidence, reasons and bases to support its "Decision" because there's been no bona fide "Rating Decision." That's the basis of our claim.

No, Capt. I realize we've got plenty of company regarding this issue. We don't feel singled out, we do feel, however, that they're making the mistake of thinking we'll just give up. After 19 years, the New Orleans VARO should know that my family will never give up. They probably went down to Bourbon Street during lunchtime one day, bought one of those scary looking voodoo dolls sold to the tourists, and put my husband's name on it -- or mine!

Edited March 18, 2012 by vaf