tdiu Tdiu Topic Needs More Opinions

[Berta]

I hiope others chime in here on this one.....from the TDIU forum.

I have read the VA FL 13-13 full of VA double talk and still cannot believe how they are handling this vet's claim. ....if they even used the Fast Letter..

because either I am going nuts or their incompetence in this decision has raised to a level far beyond most of the usual stupid VA stuff I see.

[Berta]

PS, the BVA denies many requests for Extraschedular consideration and I feel that VACO will deny it too. This vet does not need Extrascedular consideration...he has evidence of a Total SC disability!

"Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files5/1343505.txt

I believe and think PR will agree, that the RO is looking at his skin condition to see if the Extraschedular consideration is warranted on that, (we have seen similar claims of that nature)

but this vet, as I understand this,

has SSDI SOLELY for a separate SC condition.

Edited March 29, 2014 by Berta

[Berta]

This is a tenative draft..........can you agree with the last statement and can you clarify for me that this is the only status of your claim (the IRIS Response? and you have received nothing else yet from the VA?)

Just a draft...I have to add the citation info and maybe throw in a M21-1MR citation....

Draft

To Varo address etc (Date)

C file Number


REQUEST FOR VA TO CUE ITSELF REGARDING ACTIONS THIS IRIS RESPONSE INDICATES :


"Your claim is currently being forwarded to VA Central Office in order to make a determination on IU based on extra schedular. Based on current regulations set forth by congress 38 C.F.R. 3.16 (b)..."rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section."

Currently you meet the requirement of an overall combined rating of 70% but the service connected condition that prohibits you from working is currently rated at the 30% and not the required 40%, me must send it forward as an extra schedular."

"This is in response to your inquiry to the Department of Veterans Affairs (VA) dated January 30, 2014 and follow-up e-mail received February 15, 2014."

I respectfully request the (name) VA to call a clear and unmistakable error on their above comntemplated action I received via IRIS and to promptly correct it.

The regulations governing CUE are just as binding on VA during the appellate process as they are on final denied decisions.
http://www.law.cornell.edu/uscode/text/38/5109A

A claimant cannot adequately prepare a NOD on any decision that is based on violation of established basic VA case law and regulations.

Your legal errors in this IRIS response will manifest a detrimental altered outcome for me and ,if not promptly corrected, will add to the enormous backlog of claims at the VA due in part to many appeals that could have been done right in the first place.

1.I cite your legal errors thus:
I state that the VA failed to apply the basic concepts and evidentary requirements of 38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:
“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

http://cfr.vlex.com/...idence-19774393

The VA erred in not properly considering my SSDI and LTD awards for my disability of service connected Ankylosing Spondylitis , rated presently at 30%.which is prime facie evidence of total unemployability.

2. The VA failed to establish a proper rating of my SC Ankylosing Spondylitis , and it remains in this IRIS response at 30 %.

I quote NVLSP (National Veterans Legal Services Program) in their 2013 Edition of the VBM (Veterans Benefits Manual, page 371, Footnote 468,thus:

"a request for TDIU is not a separate claim for benefits,but involves an attempt to obtain the appropriate rating for a disability."

I cite in addition to NVLSP. Rice V Shinseki, , Norris V West, 12 Vet App at 413,421 (1999), Roberson V Principi,

and AB V Brown, .(Need to fill the citations in here)


3. The third clear and unmistakable error VA made rests with misapplication of the Extraschedular Consideration regulations as cited in this BVA decision:
:


"Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files5/1343505.txt

I do not have an exceptional disability picture; the evidence is clearly probative and prime facie , that I am totally disabled by my currently rated 30% Ankylosing Spondylitis


In your (date) IRIS, it appears the VA provided no rationale or articulate probative medical evidence whatsoever, that would support a continued 30% rating for my service connected or a denial of the TDIU issue or even support a logical and legal VACO referral for the Extraschedular Consideration of the TDIU issue. .

Edited March 29, 2014 by Berta

[stillhere]

go get them Berta! yea!

[Limekiln Vet]

Very nice Berta! I have received two correspondences in the mail from VA, neither of particular importance to me at the time.

One dated November 25, 2013 having to do with a claim for Osteitis Pubis which I included with the IU claim, as a secondary condition to AS. They said the claim for that condition was denied on June 12, 2009, and I needed to submit evidence new and related. I wrote them back and told them I had nothing new. I didn't really care to pursue it.

I also received correspondence January 10, 2014, regarding my request that this claim be considered FDC, and they said the claim was not eligible because they received evidence requiring further development.

[Limekiln Vet]

"can you agree with the last statement and can you clarify for me that this is the only status of your claim (the IRIS Response? and you have received nothing else yet from the VA?)"

Does the VA need to present an argument to continue the 30% rating of AS?

[Limekiln Vet]

I think I would somehow add in another "argument" like:

In a post determination letter date-stamped December 17, 2012, assigning a 30% disability rating for my Ankylosing Spondylitis it was stated:

"A higher evaluation can be granted under the provisions of 38 CFR 3.321(b)(1); however, a review of all the evidence received did not disclose any unusual or exceptional circumstances, such as those involving marked interference with employment or frequent periods of hospitalization, so as to render the application of the regular schedular standards impractical and warrant consideration of an extra-schedular evaluation by the Director, Compensation and Pension Service."

At that time the VA had in its possession the Social Security and Long Term Disability evidence of unemployability, yet chose not to consider it as evidence received. However, now they are refering the claim for extra schedular consideration, an act that suggests acknowledgment of previous error.