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?
These decisions have made a big impact on how VA disability claims are handled, giving veterans more chances to get benefits and clearing up important issues.
Service Connection
Frost v. Shulkin (2017)
This case established that for secondary service connection claims, the primary service-connected disability does not need to be service-connected or diagnosed at the time the secondary condition is incurred 1. This allows veterans to potentially receive secondary service connection for conditions that developed before their primary condition was officially service-connected.
Saunders v. Wilkie (2018)
The Federal Circuit ruled that pain alone, without an accompanying diagnosed condition, can constitute a disability for VA compensation purposes if it results in functional impairment 1. This overturned previous precedent that required an underlying pathology for pain to be considered a disability.
Effective Dates
Martinez v. McDonough (2023)
This case dealt with the denial of an earlier effective date for a total disability rating based on individual unemployability (TDIU) 2. It addressed issues around the validity of appeal withdrawals and the consideration of cognitive impairment in such decisions.
I met with a VSO today at my VA Hospital who was very knowledgeable and very helpful. We decided I should submit a few new claims which we did. He told me that he didn't need copies of my military records that showed my sick call notations related to any of the claims. He said that the VA now has entire military medical record on file and would find the record(s) in their own file. It seemed odd to me as my service dates back to 1981 and spans 34 years through my retirement in 2015. It sure seemed to make more sense for me to give him copies of my military medical record pages that document the injuries as I'd already had them with me. He didn't want my copies. Anyone have any information on this. Much thanks in advance.
Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL
This has to be MEDICALLY Documented in your records:
Current Diagnosis. (No diagnosis, no Service Connection.)
In-Service Event or Aggravation.
Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”
VA has gotten away with (mis) interpreting their ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.
They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.
This is not true,
Proof:
About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because when they cant work, they can not keep their home. I was one of those Veterans who they denied for a bogus reason: "Its been too long since military service". This is bogus because its not one of the criteria for service connection, but simply made up by VA. And, I was a homeless Vet, albeit a short time, mostly due to the kindness of strangers and friends.
Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly. The VA is broken.
A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals. I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision. All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did.
I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt". Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day? Va likes to blame the Veterans, not their system.
Question
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?
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