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Extra Schedular Consideration For Iu Retroactively


broncovet

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As many of you know, I recently got a BVA remand/denial/award. The remand portion is to remand consideration back to the RO for TDIU retroactively. In other words, I applied for TDIU back in 2002, and it was not adjuticated until 2008, where it was denied as it was "moot" as I was awarded 100% schedular. However, my schedular rating only went back to 2006, so the Board is remanding my tdiu claim back to the RO meaning I have a potential to be awarded TDIU from 2002-2007.

I am in a pickle as to what to do. My choices are:

1. Do nothing and wait to see if Tdiu is awarded by the RO, per the BVA remand, which specifically states I should be referred to VACO for extra schedular consideration for TDIU as I did not meet the "regular" TDIU criteria with only a 40% rating. If I did this, I would be "committed" to going for TDIU and basically "giving up" any chance of getting 100% schedualr retro to 2002, because of no appeal to the board makes it die.

2. File a MFR at the Board level, because the BOard did not address all my issues, and especially did not address my allegations of shredding. I contend entitltement to an EED based on the shredding of evidence which would have rendered a 2002 effective date.

3. Go ahead and appeal to the CAVC and skip the MFR. The problem with this is I can not introduce "new" evidence to the CAVC, and I dont know what evidence the Board had when they made their decision, as I dont know the extent of the shredding.

Of course, I am considering a lawyer at this point, but there are even delays obtaining a lawyer, and I am trying to keep what little sanity I have left, as it is very frustrating as I know this decision could be critical in determining the retro. I lost my home to foreclosure due to the VA shredding my evidence and now I have vowed to get my home back with the retro. (Or one like it if that one is not available)

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“ per the BVA remand, which specifically states I should be referred to VACO for extra schedular consideration for TDIU as I did not meet the "regular" TDIU criteria with only a 40% rating “

" If I did this, I would be "committed" to going for TDIU and basically "giving up" any chance of getting 100% schedualr retro to 2002, because of no appeal to the board makes it die.

Would that be a bad thing as to the TDIU ? The comp would be the same.

Maybe I am missing something there.

Since receiving the remand has the RO provided you with any correspondence such as referenced in this BVA decision>:

http://www.va.gov/ve...es2/1015063.txt

In part:

“1. Provide the Veteran written notification specific to the claim for an extras-chedular rating for his back disability under 38 C.F.R. § 3.321(b)(1), to include informing him of the relevancy of any evidence from an employer or former employer relating to his claim of significant work impairment caused by his back disability. See Thun discussion, above.”

that is worded specifically regarding your claim. The Thun discussion in this decision is critical to these types of claims.(Thun V Peake)

in part: “Subsequent to the prior remand, however, the United States Court of Appeals for Veterans Claims has set forth a three- step analysis which provides additional guidance in determining whether referral for extras-chedular consideration is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008).” The decision goes on to explain Thun further. One question I have is whether Thun only ap[lies to those claims remanded for extraschedular consideration,after the CAVC Thun decision or can cover claims filed prior to Thun as well.....??????

Edited by Berta (see edit history)
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the extra scheduler is a long shot, at best. I am one of the very few that was ever referred to VACO for it so you would have cleared a major hurdle just getting there. But even in my case I was turned down after an initial remand.

If IU gets you the retro, what is the downside? You cannot work, that is true

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Thanks Berta, and Deanbrt

The retroactive TDIU would be great! The money would spend the same, as no one will ask me if this was tdiu retro I was paying for this item or was it 100% schedular..the money is the same. It would almost be as good as an eed for 100% schedular, except for I get more "protections" as far as ratings go so it would be harder for the VA to reduce me if I had 10 years of schedular. rather than 5 years schedular and 5 years tdiu. Mind you, I am not complaining about TDIU retro for 5 years..I love the idea..BUT..will it happen, and if it does not, did I just "burn down the bridge" for a 2002 retro for 100% schedular?

(I am afraid by not appealing the 2012 Board decision, allowing it to become final, would essentially "terminate" my eed claim for 100% schedular, as I would then be forced to try to prove CUE, and, if I place all my bets on TDIU retro, that is what would happen)

This "forces my hand" and would appear I have to choose whether to persue TDIU (non schedular) or eed on depression, but not both. I really dont want to "drop" either claim, but want to persue the most likely to bear fruit.

Deanbrt..there really is no downside to tdiu, and I have passed the "rater" as the Board has already direceted that tdiu be sent to vaco for extra schedular consideration. To meet extra schedular consideration for TDIU, I have to have "unusual circumstances".

About the only "unusual circumstance" I can cite is that I had shredded evidence. I wonder if that will work?

yes, I was unemployed and likely unemployable in 2002.

Edited by broncovet (see edit history)
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Good point, Berta, and I dont know if Thun would apply either, as it was apparently in 2008.

The decision Rice vs Shinseki (CAVC), which cited Thun suggests that, since their is no "freestanding" claim for IU, then they would have to also consider depression, since that is the condition to which they are attaching IU on. It says it this way:

Mr. Rice argues that his request for TDIU should be considered part of the determination of

the appropriate disability rating in the adjudication of his claim for disability compensation for

PTSD, rather than as a freestanding claim for a separate benefit. In this case, he is correct; there is

no freestanding claim for TDIU

...end of Rice quote...

So, maybe since the BOard is trying to "create" a freestanding claim for IU, at least so it would appear, then I could appeal this at the CAVC.

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I will ask a related, question Berta.

I understand that you can not appeal a "remand". ...you have to let it run its course, and then appeal if you dont like the RO's implementation of the Remand, I guess back to the Board. So, if the Board remands, the RO denies based on the remand, and the Vet appeals the RO decision, I guess that would keep the claim pending right? The expiration of the Board decision appeal period would not apply because you have continiously prosecuted the claim..

This would indicate I could wait for the results of the remand, then appeal the RO decision if I did not like it, and its back to the board again, and onto the CAVC if necessary, or so I am guessing.

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"I am afraid by not appealing the 2012 Board decision, allowing it to become final, would essentially "terminate" my eed claim for 100% schedular, as I would then be forced to try to prove CUE, and, if I place all my bets on TDIU retro, that is what would happen)

I agree with this. Until you get TDIU I would keep the appeal going and I did. But if you get it I would bail out on the rest and let sleeping dogs lie.

"To meet extra schedular consideration for TDIU, I have to have "unusual circumstances". "

Mine was that the C&P examiner specifically wrote that it was "at least likely as not" that I could not longer work because of my service related injury and they still shot it down...

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"I will ask a related, question Berta.

I understand that you can not appeal a "remand". ...you have to let it run its course, and then appeal if you dont like the RO's implementation of the Remand, I guess back to the Board. "

Right.

" So, if the Board remands, the RO denies based on the remand, and the Vet appeals the RO decision, I guess that would keep the claim pending right? " You bet.

"The expiration of the Board decision appeal period would not apply because you have continiously prosecuted the claim.."

Right but I need to find a good link in M21-1MR to explain this as I forget .....or hopefully others will chime in....

does the vet,at this point appeal anther VARO denial or does the BVA still hold jurisdiction , and will get the case back because it is a remand, and if the BVA denies due to te VARO denial ,would a vet appeal again to the BVA????

I will dig out my remand Broncovet... I am pretty sure the VARO formally denied again, but I had prepared a rebuttal to the BVA , as soon as I got a copy- the C & P that triggered the denial.

The BVA awarded my claim at that point when they got the remanded claim back.I cant recall how it went but will look for the documents and add that info here.

That specific claim was filed in 2003 and awarded in 2009 then it took almost a year for me to get the cash and it was all such a battle that I am a complete blank as to how it went and whether I appealed to the RO .......as you mentioned here.

"+This would indicate I could wait for the results of the remand, then appeal the RO decision if I did not like it, and its back to the board again, and onto the CAVC if necessary, or so I am guessing"

will dig out my stuff and have a better reply........

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"The BVA awarded my claim at that point when they got the remanded claim back.I cant recall how it went but will look for the documents and add that info here."

This part confuses me. If the BVA awarded they may send it to the RO for rating it is my belief that the RO cannot deny, except for fraud. They can give you a terrible rating, forcing you to appeal again.

If the BVA remanded, the RO denied, then the BVA denied, the next step is CAVC. As Berta noted, no new evidence can be introduced at that point.

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Broncovet, I forgot how many files I accumulated on the specific DMII AO BVA remanded claim I had, that I thought would clarify a few things.It would take me days to go through them all.

However It appears to me that I rebutted everything negative , sending those rebuttals to the BVA as well as to the VAROs everytime the claim was denied,after the BVA docketed the claim.

I found my time line for that claim and it seems funny now looking at all the denials, but maybe it will show all here that , as miserable as this process is , we must NEVER give up.

Filed claim at Buffalo VARO Feb 2003. (vet rep said it would not succeed)

Denied 2004.

Double DRO reviews 2005 ,denied again after each review.

Docketed at BVA (2006 I think)

BVA remand Sept 15,2008,

shipped to AMC,, denied there, and I rebutted, with copies of rebuttal and evidence to BVA

shipped to Seattle VARO,denied there, I rebutted, with copies and evidence to BVA.

C & P done at local Bath VAMC late 2008,I rebutted that too and sent copy to BVA and copy to the C & P doctor tongue.png too.

BVA award April 2009.

Received retro money in early 2010.

AO IHD claim filed on August 4th 2010.

Claim filed on BVA award and denied, Nod filed on 2-1-2011 as RO did not consider Nehmer for the DMII claim.

VARO denied again on same date they received NOD. Then formal I-9 appeal filed,

Feb 1, 2011

Early 2012 I requested to withdraw that specific appeal and BVA acknowledged the request ... because

August 4 2010 Agent Orange Nehmer claim awarded January 2012.

This was only part of my 12 year ordeal as a VA claimant. I had numerous other issues.Almost all are resolved.

I need to add that the extensive medical evidence I had for the claim that took the longest (the DMII AO Death claim above )

was not read at all by the 2 VAROs-Seattle and Buffalo, or by the AMC, and the BVA was the first entity to ever read it.

Something is wrong with that picture. Part of the backlog is because evidence is deliberately ignored at the regional level,in my opinion, and then only considered if the claimant appeals to the BVA in some cases like mine.

Edited by Berta (see edit history)
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"However It appears to me that I rebutted everything negative , sending those rebuttals to the BVA as well as to the VAROs everytime the claim was denied,after the BVA docketed the claim.

I remember Hoppy writing me that this is crucial.....

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I agree if they put something negative in the Reasons and bases for denial, you certainly need to rebut it if you can.

At least you should be able to make the VA come up with "new excuses to deny".

However, I am not sure whether to rebut this in the MFR, or the appeal, or, by appealing the RO decision implementing the remand, that is, assuming the RO will deny again.

If I send in a waiver of RO consideration, along with the MFR, is it possible the claim would NOT be remanded to the RO, but adjuticated by the board instead?

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The BVA decision is complete and I am trying to decide whether to file a MFR, an appeal to the CAVC, or to do nothing and let the RO process the remand part of the BVA decision, and then appeal the RO implementation of the remand, if necessary.

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I had to re-read this. If I understand, BVA remanded back to the RO for IU consideration back to an earlier date than the one you received 100% scheduler for but it would have to be extra scheduler. I will bow to someone else on this. A lawyer may be in order for this.one.

I don't think you have much of a chance for extra scheduler. I would be gunshy about the IU appeal opening up your scheduler for review by the RO and possible re-rating. But that is me.

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It is almost impossible to lose TDIU unless you go back to work. If you can get a retroactive TDIU that later becomes 100% schedular I don't think you need to worry about the TDIU.

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I agree that extra schedular is a longshot BUT..and this is a big but...since the BVA decision specifically required the VA submit this to VACO for extra schedular consideration, that hurdle is past, since most of the time the rater wont refer it for extra schedular consideration by VACO.

Still, there is a big hurdle at VACO. Given that extra schedular consideration is required by the Board, the RO knows they have to have a good reasons and bases for denial at a minimum.

I tend to favor filing a MFR, and that keeps the options open.

Thanks..for the help.

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Bronco

My experience is even if your doctor says you can't work, but you only have a rating of 50% the VARO will not advance on extra-schedular. If the &^%$#$% decide to grant IU they often bump you up to 70%. I think there are many legitimate cases out there where the VA should have granted IU to vets with less than 70%. There are probably thousands of such claims.

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Good observation, John. I think you are right. The VA isnt awarding extra schedular, period. They just go the back door, bump to 70 and then its schedular IU. They probably dont want to open that door to extra schedular as too many flies will come in that open door.

However I get there, I am ok with bumping to 70, then IU.

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