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)

[deanbrt]

"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...

[Berta]

"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........

[deanbrt]

"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.

[deanbrt]

RO cannot deny, except for fraud

I should have included "at that point"

[Berta]

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 too.

BVA award April 2009.

Received retro money in early 2010.

AO IHD claim filed on August 4^th 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 September 13, 2012 by Berta

[deanbrt]

"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.....