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.

[Limekiln Vet]

It has taken me many months to get back into hadit.com to post again, they repeatedly denied my login, and I could never receive a verification of any kind to change my login, or even register with another name. Hadit.com makes it impossible to contact them, guess they are too big for us little folks anymore. I finally got in by creating a new account using a new email address...

But I wanted to update you on my benefits. If you will recall Berta, in my CUE (which you helped me with) I suggested they made an error by not considering IU benefits in their original decision. In the decision referenced above, I had the 100% benefit. Then a few months ago I requested benefits for adaptive housing, and in their review for that benefit, they apparently ran across the CUE document, and they made a new decision based upon their failure to consider the IU benefits.

This is pretty complicated, but I will try and explain it. They removed the 100% benefit for Ankylosing Spondylitis, and changed it 40%. Then they ruled that with one or more combined service-connected disabilities I was now at 80%, then they ruled that I should be paid at the 100% rate because I was unemployable due to those disabilities, and that it was permanent and total. At first that sounds bad, or even neutral, but the key was that they made the new 100% benefit retroactive to December of 2008, and I got a new payment of $101,106! Unbelievable! And all because I made a new request for the adaptive housing.

It really is true that you have to be careful asking for more benefits because they might open your file and make some new ruling, but in this case it was in my favor by a landslide! I since asked them to withdraw my request for adaptive housing, I don't want them ever looking at my file again!

[Tbird]

I just received your email this am and made the changes for you.

[k5one]

I'm glad to here it worked out for you. Nice retro check. I'm looking forward to getting my claim finished, its always nice to here about people getting what they deserve. If you haven't

already done it, create a post in the success forum.

[Berta]

Limekiln, you had a great Success on that retro. It would be a good idea to post this in Success Stories as K5one said because this encourages so many others who are waiting and waiting......

And I am always glad to see my advice here paid off on that CUE.

They ignored a CUE I filed in late 2012, until I contacted Ms. Hickey. And are doing an audit on the decision I Cued now.

I am sorry you had problems getting back on hadit.

"Hadit.com makes it impossible to contact them, guess they are too big for us little folks anymore"

Not so... we all are the little folks here and if it wasn't for Tbird and hadit the VA would be crapping on more of us, by the day.

But like you, we are TOO BIG and too smart for them to get away with it.

The intellect here is so good that hadit should be a training program for the VAROs.

I have had many problems here lately too but they were on my end, trying to learn a completely new PC system...

I thought I would have to reregister myself until I used Mozilla, and not IE.

[RUREADY]

what cue was committed I cant find it in the post ,but would like to know

4.16(b) they never consider this at VA

Edited August 9, 2015 by RUREADY

[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.corne...e/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....es5/1343505.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. "

This was a tentative draft I posted here for Limekiln in MArch 2014 but he tweeked it and filed an excellent CUE which he posted here as well....I cant find it but will keep looking because it is in this thread above .....maybe in April 2014 .