To: Vet geniuses, such as Hoppy, Berta, PR, John and Carlie (there are more, sorry if I ommitted your name)
Received a BVA decision. Decision was remanded, denied, and partially awarded..all 3.
Highlights...
1. Appeal of RO denial of TDIU because it was moot was remanded.
"In a 2009 rating decision the RO determined that the claim for TDIU was moot because in the same rating decision, a 100 percent rating was granted, which fully resolved the issue in the Veterans favor. However the Board notes the CAVC has recently held that VA has a "well established" duty to maximize a claimants' benefits. (Buie vs Shinseki, Ab v Brown and Bradley vs Peake)
A TDIU is provided where the combined schedular evaluation for service connection is less than total, or 100%. 38 CFR 4.16(a). A TDIU is considered a lesser benefit tahan the 100% rating, and the grant of a 100% rating renders mooth the issue of entitlement to a TDIU when the 100 % rating is in effect. VAOPGCPREC 6-99; 64 FED REG. 52,375 (1999).
In a precedent opinion, VA's General Counsel concluded that a claim for tdiu for a particular SC disability may not be considered when, as here, a scheduaalr 100% rating is in effect for a SC disability. See also Green v West, 1998, Vettese v Brown (1994). In Nov 2009, however, VA's GC withdrew VAOPGCPREC 6-99 in light of the decision in Bradley vs Peake.
The Board recognizes the secretary is required to maximize benefits. See AB v BROWN 6 Vet App 35,38 (1993) (presuming that a claimant is seeking the maximum benefitts allowed by law and regulation); 38 CFR 3.103 a (2010).
38 CFR 4.16 specifically provides that a total disability rating for compensation may be assigned where the schedular rating is less than total, when, in the judgement of the agencey, the Veteran is unable to follow a substantially gainful occupation as the result of SC disabilities"
end of decision quote, for brevity and to protect Vets identity, some portions were removed.
The decision goes on, and, since I had applied for TDIU in 2002, but 100% schedular was not awarded until effective date 2007, the Board specifically said the TDIU issue was NOT moot under the circumstances. (It obviously affects the effective date retro).
The board pointed out that a SOC was never issued regarding the issue of TDIU. Specifically, the decision stated:
"Accordingly, the Board is required to remand the claim for entitlement to TDIU to the RO forr the issuance of a SOC See Manlincon v West 12 Vet App 238 (1999). "
I am pretty upset about the "remand to issue a SOC". Why is the board remanding to the RO so the RO is assuming it to be denied, again, because an SOC assumes a denial. I am angry the board automatically assumes another denial by requiring an issue of the SOC. Why does the board not give the RO an opportuntiy to render a decision where the Veteran could be awarded TDIU rather than go to more appeals?
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.
However, (and I have no idea of knowing whether or not you would likely succeed) Im unsure of why you seem to be so adamant against getting an increase in disability compensation.
When I buy stuff, say at Kroger, or pay bills, I have never had anyone say, "Wait! Is this money from disability compensation, or did you earn it working at a regular job?" Not once. Thus, if you did get an increase, likely you would have no trouble paying this with the increase compensation.
However, there are many false rumors out there that suggest if you apply for an increase, the VA will reduce your benefits instead.
That rumor is false but I do hear people tell Veterans that a lot. There are strict rules VA has to reduce you and, NOT ONE of those rules have anything to do with applying for an increase.
Yes, the VA can reduce your benefits, but generally only when your condition has "actually improved" under ordinary conditions of life.
Unless you contacted the VA within 72 hours of your medical treatment, you may not be eligible for reimbursement, or at least that is how I read the link, I posted above. Here are SOME of the rules the VA must comply with in order to reduce your compensation benefits:
NOTE: TO PROVE CAUSE OF DEATH WILL LIKELY REQUIRE AN AUTOPSY. This means if you die of a SC condtion, your spouse would need to do an autopsy to prove cause of death to be from a SC condtiond. If you were P and T for 10 full years, then the cause of death may not matter so much.
Question
broncovet
To: Vet geniuses, such as Hoppy, Berta, PR, John and Carlie (there are more, sorry if I ommitted your name)
Received a BVA decision. Decision was remanded, denied, and partially awarded..all 3.
Highlights...
1. Appeal of RO denial of TDIU because it was moot was remanded.
"In a 2009 rating decision the RO determined that the claim for TDIU was moot because in the same rating decision, a 100 percent rating was granted, which fully resolved the issue in the Veterans favor. However the Board notes the CAVC has recently held that VA has a "well established" duty to maximize a claimants' benefits. (Buie vs Shinseki, Ab v Brown and Bradley vs Peake)
A TDIU is provided where the combined schedular evaluation for service connection is less than total, or 100%. 38 CFR 4.16(a). A TDIU is considered a lesser benefit tahan the 100% rating, and the grant of a 100% rating renders mooth the issue of entitlement to a TDIU when the 100 % rating is in effect. VAOPGCPREC 6-99; 64 FED REG. 52,375 (1999).
In a precedent opinion, VA's General Counsel concluded that a claim for tdiu for a particular SC disability may not be considered when, as here, a scheduaalr 100% rating is in effect for a SC disability. See also Green v West, 1998, Vettese v Brown (1994). In Nov 2009, however, VA's GC withdrew VAOPGCPREC 6-99 in light of the decision in Bradley vs Peake.
The Board recognizes the secretary is required to maximize benefits. See AB v BROWN 6 Vet App 35,38 (1993) (presuming that a claimant is seeking the maximum benefitts allowed by law and regulation); 38 CFR 3.103 a (2010).
38 CFR 4.16 specifically provides that a total disability rating for compensation may be assigned where the schedular rating is less than total, when, in the judgement of the agencey, the Veteran is unable to follow a substantially gainful occupation as the result of SC disabilities"
end of decision quote, for brevity and to protect Vets identity, some portions were removed.
The decision goes on, and, since I had applied for TDIU in 2002, but 100% schedular was not awarded until effective date 2007, the Board specifically said the TDIU issue was NOT moot under the circumstances. (It obviously affects the effective date retro).
The board pointed out that a SOC was never issued regarding the issue of TDIU. Specifically, the decision stated:
"Accordingly, the Board is required to remand the claim for entitlement to TDIU to the RO forr the issuance of a SOC See Manlincon v West 12 Vet App 238 (1999). "
I am pretty upset about the "remand to issue a SOC". Why is the board remanding to the RO so the RO is assuming it to be denied, again, because an SOC assumes a denial. I am angry the board automatically assumes another denial by requiring an issue of the SOC. Why does the board not give the RO an opportuntiy to render a decision where the Veteran could be awarded TDIU rather than go to more appeals?
Opinions are appreciated.
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