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]

"In a way I understand what the VA has done, and now it appears there is more than one way for them to make a decision, neither of them necessarily resulting in errors of process."

The VA makes Countless errors in processing claims. The backlog is due in part to their errors and remands.


I feel they have made a clear and unmistakeable error, regharding the way they want to handle the claim,. and that is proven within the IRIS response........... in time maybe they will fix it.

Then again what do I know about CUE. But please check out our CUE forum here.

If you are satisfied with the way VA is handling your claim, I must have misinterpreted your initial concerns and you can completely disregard my advise.

[Limekiln Vet]

Berta, did I mention that my wife of 34 years is named Berta?:) Here is what I have sent to them:

Re: Claim for Individual Unemployability

To: U.S. Department of Veterans Affairs
Louisville VA Regional Office
321 W. Main St., Ste. 390
Louisville, KY 40202

REQUEST FOR EXPEDITED DECISION DUE TO ERROR IN CLAIM HANDLING :

In Early 2014 this claim was in the Preparation for Decision Phase. Then it moved back to Gathering of Evidence. When I inquired as to what happened, I was told the following:

“Dear .....:

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.

Thank you for your service to our country.

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.

We apologize for the length of time it is taking to make a decision on your claim; however, we are currently experiencing a backlog of claims. The Decision Phase can sometimes be a lengthy process because we want to make sure every claim has a thorough review, as well as a fair and accurate decision. Once your claim is completed you will be contacted by letter.

Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below.


Sincerely yours,
Laura Kuerzi-Rodgers
VSC Manager
TLN”

And on ebenefits, it says the following:

“Change of Status: We determined that your claim needed additional review. If additional evidence is needed from you, you will receive a letter from us explaining what is needed.”

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

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 prima 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."

3. The third clear and unmistakable error the 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

4. In my December 17, 2012 post-determination letter, which assigned the 30% rating for AS, it states "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 the time of the receipt of that award letter, the VA had all the information of my SSDI award from 2002, and the information about my LTD claim, both of which were successful approved applications for disability benefits based solely on AS, and as probative should have been considered as evidence. I did not get to the 70% level until many months later when they settled the skin condition issues subsequent to the remand by the VBA, but that 70% level was retroactive to December 2008.

I believe the SSDI benefits evidence alone should have triggered a more thorough process into whether I might qualify for IU. For the VA to have stated back in December of 2012 in the award letter that there was no "marked interference with employment..." is preposterous. A case for that conclusion is well founded based on their now "forwarding" the claim for extra schedular consideration with no additional evidence having been submitted since the Dec. 2012 decision, other than an application having been made for IU.

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

In your 2/13/2014 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 disability or a denial of the TDIU issue or even support a logical and legal VACO referral for the Extraschedular Consideration of the TDIU issue.

In summary, first the VA erred in the determination of my disability rating going all the way back to the December 2008 date of first application, where they declined to assign a service connected disability rating to my condition of Ankylosing Spondylitis. That decision was overturned in appeal.

Secondly the VA erred when they declined to consider Social Security Disability and Long term Disability records they had as early as December of 2008 as evidence of unemployability. It was their duty to assist me in my claim, as well as to make me aware of other benefits I might be entitled to.

Finally, the VA has erred in how they are handling my claim for Individual Unemployability, by forwarding it to VACO, when it could have been decided at the VARO level. I submitted all records that were required, if not with the application, soon afterwards, and there has never been a contention by the VA that they are awaiting additional evidence.

In as much as all of these errors can be easily remedied by expeditious treatment of my claim, I request that it be done as soon as possible. I do not expect I should be put in line in front of any other veteran, at least no others that started their claim before I did in December 2008, because "a request for TDIU is not a separate claim for benefits, but involves an attempt to obtain the appropriate rating for a disability."

Sincerely,

(etc.)

Edited April 3, 2014 by Limekiln Vet

[Berta]

I think it is good and hopefully will trigger the VA to either consider the TDIU claim properly,or come up with some legitimate reason and/or regulation that says they will continue with their idea for Extraschedular Consideration.

( My name was unusual, I thought, until I googled it.Thanks for telling me that.)

What I noticed in this letter you posted is some information that I either didnt pick up on before or you didnt tell us about before...

This part here:
"At the time of the receipt of that award letter, the VA had all the information of my SSDI award from 2002, and the information about my LTD claim, both of which were successful approved applications for disability benefits based solely on AS, and as probative should have been considered as evidence. I did not get to the 70% level until many months later when they settled the skin condition issues subsequent to the remand by the VBA, but that 70% level was retroactive to December 2008."


With a favorable potential TDIU award for the AS you could possibly have a basis for a CUE claim on their past denial....if that decision is still unappealed....

I suddenly find I have my own IRIS problem.It is in the IRIS error topic here..

I have replied to their original response I received a few days ago and so far have had 2 separate VSCM manager responses who still don't have it right.

My last reply indicated I would file this as a VACO complaint if I don't receive a more accurate reply on the first claim and also some sort of status on the second claim, which they keep ignoring.

My point here is that I assume you received the IRIS response via email and did respond to it initially but have sent this instead directly to the VARO.

I dont know how long they leave these IRIS's open via email for response but I wonder if you could even copy and paste this into a IRIS reply to their last response.

I wish more members here would take the time to go over this situation and offer opinions.


This next statement is based on my having been victimized of erroneous decisions many, many times ( which I aggressively fought back on and succeeded)

I feel, in many of my claims situations and even in others I have seen here, that if VA can see a 5 figure award potential, the VARO rater/decision maker, can become downright unwilling or too afraid to award the claim, at the VARO level, so they stave it off so that, if it does go to the BVA, then is remanded back, because by then ( which could take years) it will get onto someone else's desk.

Awards dont get 3 signature verifications ( 3 people reading and then signing off on the award) until the retro hits 25,000,so in that respect too, the lack of accountability is
further enhanced at ROs because no one seems to really be checking many of the possible lower award retro decisions at all.

If I smelled a potential CUE here....so did the VA...maybe...and I could be wrong in what I noticed...but a successful CUE claim award could mean megabucks down the road .....I think that is why they deliberately refused to award my 2004 CUE claim for almost 8 years at the VARO .

It took a different VARO to award it, however, in a mere 3 weeks.

(but the award retro on the CUE claim ( 3 CUES in one) , (a substantial five figure award) was wrong , they forgot 18 more months of 100% ,based on significant medical evidence they had, and that is the status I am seeking via IRIS on that specific claim matter.They did do the AO Nehmer IHD retro correctly.

Edited April 3, 2014 by Berta

[Limekiln Vet]

I got a reply via IRIS merely asking the status on my claim, shown below. I wonder what they mean about a medical opinion from Washington D.C.? How do they get involved?

"This is in response to your inquiry to the Department of Veterans Affairs (VA) dated March 31, 2014.

Thank you for your service to our country.

We apologize for the delay in responding to your inquiry. We are currently experiencing a large volume of inquiries and are working as quickly as possible to respond to each in a timely manner.

Your claim is currently in the Development Phase of processing. This phase is where we gather all the evidence we need in order to make a decision on your claim. Our systems show that we are currently waiting for medical opinion from Washington, DC. If we determine we need additional information, we will contact you.

Currently, claims at the regional office (RO) in Louisville are taking about 12 months to complete. Please understand that these time frames are only averages, and that your claim may take longer based upon the specifics of your claim and VA’s pending workload.

We apologize for the length of time it is taking to process your claim, however, we must obtain all the necessary evidence in order to provide a fair and accurate decision on your claim."

[Berta]

It means ,I believe, they are giving your claim Extraschedular Consideration at VA Central Office with a new medical opinion.

I hope it doesn't take too long but it possibly will.

I wish you had a vet rep who had an office in or near this VARO ,because maybe this could have been clarified right from the git go, by a rep hopefully intervening with the rater ,to have the claim clarified.

All you need to do now is wait for a VA Central decision.

I got a VACO medical review within 3 weeks after I raised Hell right away over an erroneous decision I got 2 years ago.

But it wasnt Extraschedular , and regarded an entirely different matter ,so I don't know how long this review would take.for your type of claim.

Edited April 8, 2014 by Berta

[Limekiln Vet]

I just ran across this at http://www.vaclaims-help.com/9.html

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]”

One thing to keep in mind is that if a veteran doesn’t meet the scheduler requirements stated in sub paragraph (a), there is still the possibility of obtaining IU under sub paragraph (b). However, considerations under sub paragraph (b) rarely happen because, first, the RVSR must think you are unable to obtain and maintain a substantial gainful occupation due to your service-connected disabilities, which becomes a judgmental call on their part and, second, if the RVSR thinks you can’t work because of your service-connected disabilities, he/she must submit the claim to the Director of Compensation and Pension in Washington, D.C. for extra scheduler approval.

Having said all of this, a veteran still should file the application for IU (VAF 21-8940) if they are unable to work because of their service-connected disability, regardless of their rating percentages. I say this because when a veteran submits VAF 21-8940, it also acts as a claim for an increase in evaluation. If the veteran does not meet the scheduler requirements stated in sub paragraph (a) and submits the IU application, the VA will first see if the disability(ies) warrants an increase in evaluation. If so, they will determine whether the increase then meets the scheduler requirement, and if they do, then VA will address the issue of Individual Unemployability. By submitting VA Form 21-8940 when one is unable to secure and maintain a substantial gainful occupation die to their service-connected disability(ies), regardless of their rating percentages, they protect the earliest effective date possible.

Two things I find interesting, both in bold. First, it appears for me to get to Wash DC is maybe a good thing? Since (as it says above), it rarely happens. I interpret that to mean that being successful in the extra schedular is not as rare as having the RSVR actually thinking one is unable to have a gainful occupation, and making the determination that it should go to DC.

In the 2nd bold, I am left to wonder what it means. I first made my claim in December 2008, and until now I felt it was a stretch to get any retro activity back to that date, since I just did the IU claim last July of 2013. But all of my SSDI and LTD applications go back to 2002, when i was approved and started receiving benefits. And my form 21-8940 indicates a date of last employment going back to 2002. Might that be the "earliest effective date possible?" If so it would amount to over $230,000 at a minimum.

Thing is, given the fact that my claim is in a black hole, speculation is just more torture.:(

Oh! And just got another reply from IRIS:

This is in response to additional information provided to your inquiry to the Department of Veterans Affairs (VA) dated March 31, 2014.

Thank you for your service to our country.

After a careful review of our electronic computer file, our records indicate the regional office (RO) has requested a medical opinion from Washington, DC. We assure you that this is in your best interest, as we want to make a fair and accurate claim decision based on sufficient evidence.

Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below.

Sincerely yours,

C. Boyd

I love the "best interest" part! There are so many things that would be on my best interest list, none of which the VA has on their list I am sure.

Edited April 10, 2014 by Limekiln Vet