tdiu Extra Schedular Consideration For Iu Retroactively

[broncovet]

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)

[broncovet]

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?

[deanbrt]

Is it at BVA now?

[broncovet]

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.

[deanbrt]

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.

[john999]

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.

[broncovet]

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.