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)

[john999]

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.

[broncovet]

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.

[Berta]

Broncovet-I forgot to post this info I think last week and it will help you if you file a MFR with the BVA.

I filed a MFR many many years ago and it was denied but I had succeeded at the VARO level instead on another issue.

It was due to 3 separate scenarios regarding my husband's death. I succeeded on 2 of them so the MFR really didnt matter then. These MFRs are hard to win but Nothing is impossible.

It pays for any claimant to raise more then one possible potential to warrant SC. The old BVA denial I had was regarding a claim on one potential for my husband's death, and it was the weakest claim.

Then again,if it had been the only claim I had, I could have been aggressive with it.

I used as evidence a book I had admitted to VA that I swiped from the local VA library and would pay late charges on. My VA library card only gave me 2 weeks for each book.This book had been written by a VA Cardiologist who was convinced that PTSD and the stress of combat was causing IHD in Vietnam veterans.He had autopsied hundreds of combat vets, dead due to war injuries and found the extent of atherosclerosis they alreeady had was staggering compared to the non combatant population.

VA didnt care what his book revealed. I never gave it a thought to try to contact the crdio doctor myself for an IMO. Funny how in those days we claimants never talked about IMOs and reps never seemed to mention them either.

20.102 of 38 USC is a lot of legal mumbo jumbo and I think it says the MFR must be solely regarding evidence the BVA had in their possession when they made the decision.

I know you will be quite specific in what part of the decision the MFR is for, so that it doesn't impede the rest of the remanded stuff.

My MFR was for a single claim decision and i had nothing on remand so it didn't screw up my other pending claims at the RO level.

This law group has explained Motions For Consideration, as to any potential CAVC filings too:

“Reconsideration of the Board of Veterans’ Appeals Decision

VA regulations provide that a veteran at anytime may ask or seek Reconsideration by the Board of Veterans’ Appeals of any prior adverse decision. In the context of a current decision, if the veteran files a Motion for Reconsideration within 120 days of the adverse decision, then the time for filing a Notice of Appeal to Court has been tolled. Tolled means it is stopped or suspended. The time for filing a Notice of Appeal when a Motion for Reconsideration has been filed within 120 days of an adverse Board decision suspends the time for filing a Notice of Appeal in Court until the Board has acted on the Motion for Reconsideration. Upon receipt of the decision on the Motion for Reconsideration, the date file-stamped on the Board’s letter denying the Motion restarts the 120 day time period. This means a veteran has 120 days after a decision denying a Motion for Reconsideration to file an appeal with the Court.

Although there is no time limit for filing a Motion for Reconsideration, any Motion for Reconsideration filed after 120 days, while it will be accepted and decided by the Board, DOES NOT toll the time for filing a Notice of Appeal. This is a common mistake and misunderstanding which many pro se veterans make. The BVA’s Notice of Appellate Rights is somewhat confusing and misleading in this regard. A veteran should consult with a competent veterans law practitioner after receiving any decision from the Board of Veterans’ Appeals.”

http://www.rafalaw.com/how-to-apply-for-disability-benefits/va-disability-process-overview/

Under Subpart K of 20.102 Rule 102. Delegation of authority—Rules of Practice.

Is info as to this type of Motion before the BVA:

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=38:2.0.1.1.5&idno=38#38:2.0.1.1.5.11.35.1

[deanbrt]

" 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."

In my case it was the C&P examiner himself that wrote "at least likely as not" and VACO still did not award.

But I think it helped pave the way for things down the road as it became part of my records.

Edited September 15, 2012 by deanbrt