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Berta

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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.

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Found it and I forgot Limekiln's wife has same name as me! That is cool !!!!

His successful CUE here altered their LIVES with that MEGA retro.

"

  • Seaman
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  • 31 posts
  • Branch of Service: USMC

Posted 02 April 2014 - 11:42 PM

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 by Limekiln Vet, 02 April 2014 - 11:54 PM."

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did va admitted to an error for not considering 4.16(B) and for not using SSDI records for

proof of unemployability because the rating wasn't the correct %. I wonder why I still in appeals for the same

stuff exact same. CAVC said error was made but no cue. Maybe I still have a chance

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I think one of the main CUEs was this one:

"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. “

( 38 CFR 4.6) This regulation covers all sorts of evidentary errors.

If VA has SSDI records that are solely for SC conditions and never mention them in the Evidence list or in the decision narrative, they have committed a CUE under 38 CFR 4.6.

One CUE can haver a snowball effect. I got a 1151 HBP denial in March 2015 and then they reversed and awarded in April 2015 because I filed 4 CUEs on the denial (via email my printer was broke)

My pending CUE on a different issue has involved about 5 more CUES since I got their bogus March decision on that.

I filed an IRIS complaint and cced it to the VAOIG,the Sec, the RO director, and to Ms. Hickey, the undersecretary, last Wednesday.

Next day VA called me and said they would do what I thought they would have done years ago...do an audit on that older award letter.

CUE is a collateral attack on a VA decision. VA wants us to buy what they are selling, even it if is legally wrong, to our detriment.

VA decisions are often geared to confound and confuse and have to be read over many times before attempting a collateral attack.

Collateral attacks involve preparing a war plan. Sometimes one must get aggressive in fighting the VA war of the words.

Our initial avenue of attack is the regulations themselves.

The war plan is simply my way of putting down on paper what regulations they broke, listing all of the evidence they ignored, figuring out with the BAsic rate charts at the VA web site, if the error was detimental to me (meaning they snookered me out of some cash) and then listing all the ways I can get the CUE resolved.

My 2003 /2004 CUES were only a few paragraphs. Keep the CUE simple.

The award was in 2012 for that but ,since it was still wrong I Cued that one too.

Hate to say this again and again but I bet many older decisions you men and women got were completely screwed up when compared to basic VA 101 regs at time of those decisions.

Edited by Berta
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the last decision I got hell it didn't have a reason an basic nor any evidence listed they use to

make the decision. SSDI records are there never listed I guess it don't matter in my case. I going

to burn them a new hole sooner or later.

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  • HadIt.com Elder

Sadly, the VA can list an SSDI determination, and then basically ignore it. They have done this so often in the past that it might be standard practice.

The remedy/ Require the VA to explain exactly why they chose to disregard the SSDI determination. It appears that they did so in this case, even though the reasoning may conflict

with law and regulation, and wrong. When in doubt, "kick it upstairs" is a time honored bureaucratic method for handling what evidently was a decision that the RO did not want to make.

You also have to remember that the bureaucrats follow "the yellow brick road". When a particular case or situation does not exactly match the road map, it get ignored until

it cannot be. Then the fun begins! After over twenty years of experience dealing with bureaucrats in military procurement related areas, the VA's behavior is nothing new to me!

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I like the Wizard of Oz reference Chuck, and we all have to turn into Toto (Dorothy's dog) and bite them in the A--!

Like the OZ wizard, they hide behind curtains of rhetoric and when the curtain falls down, they are revealed to often be highly incompetent .

It is difficult enough for most claimants to get anything at all, let alone get snookered out of their proper comp amounts, because VA committed errors in their decisions.

If it is not incompetence, I think it is deliberate.

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