ptsd Choice Of Dro Or Trad. Appeal, For "inferred Tdiu" Case, + Wrong Appeal Reason Listed!?.

[sevensees]

Hello,

Thanks you all for great help and advice so far in our adventure with the VA. I am helping my father with most of the grunt work for this process and he is represented by the American Legion.

The backstory:

Claim filed in 2005. Finally awarded in 2012 @ 50%, but they failed to infer the claim for TDIU, even though he has been on SSD since 2003, and the VA mentioned SSD with service connected symptoms in his VA award letter. His doctor letters also declare him permanently disabled from working (VA doctor). He filed a NOD 2013 stating that his claim should have been inferred automatically for TDIU (including back pay) and that his rating should have been higher and considered permanent due to the evidence they were already aware of.

Where we're at:

We received a letter this week from the VA notifying us that they received the NOD and that our appeal is for entitlement to service connection for anxiety, nos and depression, nos (claimed as PTSD). It states that we have a choice between" traditional appeal process" or DRO.

Here is the problem. We are not appealing entitlement to service connection! (Why would we NOT want service connection?) We are arguing that our claim should have been inferred for TDIU since he has not worked since 2003, has been on SSD since 2003 and the VA has acknowledged SSD for "anxiety and depression" in the award for disability which was in fact granted for "anxiety and depression".

By two questions are:

1. Why are they claiming we're appealing our service connection when its already been granted?

2. We want to argue that we should have been inferred for TDIU in our original award. Should we pursue the DRO or "traditional appeal process" route?

Thank you all so much.

I'm sorry I went inactive on my last post, but we are again in the process of moving as indicated in that post.

More information about this case can be found here:

[carlie]

If their are medical conditions that are factored in to support the SSA favorable decision,

and those medical conditions are NOT SC'd medical issues -

those medical conditions would count against the claim for IU.

Was his SSA decision based solely on SC'd conditions ?

[Berta]

"If he had a CLEAR inferred claim for TDIU and they NEGLECTED to infer it, is there any way now to get this NOD expedited due to their mistake and neglect instead of his hardship (that they are in part responsible for)? So much is at stake."

You mentioned a past reply I made:

You said:

"The service connected conditions the VA award his for was: Major Depressive Disorder ("Claimed as PTSD") and anxiety. The only two conditions in his SSDI as well."

I replied:
"Can you scan and attach the last decision here (cover the personal identifying stuff first) as to their Reasons and Basis, and the Evidence list too.

You might potentially be able to get them to CUE themselves.

I have info on that in our CUE forum.And a template.

You could use, as legal evidence, a print our of the M21-1MR link , as to the "inferred" part of it and cite the same regs that appear in the M21-1MR.

Something does seem wrong here but only when we see the decision, can we understand what reasons and bases they stated that must be overcome.And if the SSDI was listed as evidence (it appears they did have those records though).

But John made a good point too.... this is something that maybe a lawyer could fix sooner than later....

There are plenty of vet lawyers around and they are user friendly....you said this claim has been going on for ten years....that could possible mean Mega retro.

Doug Rosinski has his contact info in this SVR show:

http://www.hadit.com...r-for-veterans/

Bob Walsh and other vet lawyers did shows here in our radio show archives:
http://www.svr-radio.com/archives.html

Someone here was looking for lawyers not long ago and I pur their contact info into the post.

If I find that post I will put the link here. But they can be googled.



If you contact them and you mention I suggested the GO CUE YOURSELF approach during the appeal period,to you, tell them Berta Simmons at hadit mentioned it to you and I can contact them if they want to know more about that...but I think I did discuss this maneuver with them already..



They will need to read the decision however and can do that by attaching it to email.

Chris Attig too another very good vet lawyer https://www.attiglawfirm.com/



Many vet lawyers around and a longer list here somewhere as well available under then search feature."
Posted 29 April 2014 - 11:08 AM

Have you followed any of my above suggestions?


I had success with the Go CUE Yourself technique here:


The template for my pending CUE yourself request is here:



It is pending with a RO specialist.

Of course when we cannot read an actual VA decision here , as to their Reasons and Bases, it sort of makes our advise practically moot.

It is within the exact way VA words their decisions that legal errors can occur, that might be the basis for a fast correction.

Then again the fast Nehmer Cue yourself claim I linked here also took a lot of ruckus raisng on my part with VA Central.

In 2005, this tactic gave me an additional DRO review but same DRO for both reviews and she told my rep she couldnt read my IMOs.

The BVA can read. I was delighted when they got this claim and awarded it.

Have you called or emailed any of those above lawyers yet?

That all was posted this past April. What have you done since getting the NOD statement from VARO, to clarify what is being claimed?

"1. Why are they claiming we're appealing our service connection when its already been granted?"

Because since April the VA has gotten more f...ooops ,screwed up then before April and is under a lot of pressure due to the recent hearings at the H VAC and the whistleblowers.

They are doing that to me, working on a claim I already have been awarded......I sent the IG a complaint on that..

I have evidence that would generate DIC on 3 separate bases. I already get my DIC. I asked the IG who, since the award is a no brainer, who is going to receive the DIC cash?



"2. We want to argue that we should have been inferred for TDIU in our original award. Should we pursue the DRO or "traditional appeal process" route?"

Personally I would take the BVA route unless someone can get this clarified sooner than that.The BVA can read.

Have you considered faxing this RO's director with your problem ?

I filed my 2005 CUE yourself via fax and my 2011 CUE via IRIS as a complaint.

Edited July 16, 2014 by Berta

[sevensees]

If their are medical conditions that are factored in to support the SSA favorable decision,

and those medical conditions are NOT SC'd medical issues -

those medical conditions would count against the claim for IU.

Was his SSA decision based solely on SC'd conditions ?

Carlie,

The VA disability was for the same two identical reasons the SSD was awarded. "anxiety and depression" and listed as reasons on the VA award supporting the VA disability.

Of course when we cannot read an actual VA decision here , as to their Reasons and Bases, it sort of makes our advise practically moot.

It is within the exact way VA words their decisions that legal errors can occur, that might be the basis for a fast correction.

Then again the fast Nehmer Cue yourself claim I linked here also took a lot of ruckus raisng on my part with VA Central.

In 2005, this tactic gave me an additional DRO review but same DRO for both reviews and she told my rep she couldnt read my IMOs.

The BVA can read. I was delighted when they got this claim and awarded it.

Have you called or emailed any of those above lawyers yet?

That all was posted this past April. What have you done since getting the NOD statement from VARO, to clarify what is being claimed?

"1. Why are they claiming we're appealing our service connection when its already been granted?"

Because since April the VA has gotten more f...ooops ,screwed up then before April and is under a lot of pressure due to the recent hearings at the H VAC and the whistleblowers.

They are doing that to me, working on a claim I already have been awarded......I sent the IG a complaint on that..

I have evidence that would generate DIC on 3 separate bases. I already get my DIC. I asked the IG who, since the award is a no brainer, who is going to receive the DIC cash?

"2. We want to argue that we should have been inferred for TDIU in our original award. Should we pursue the DRO or "traditional appeal process" route?"

Personally I would take the BVA route unless someone can get this clarified sooner than that.The BVA can read.

Have you considered faxing this RO's director with your problem ?

I filed my 2005 CUE yourself via fax and my 2011 CUE via IRIS as a complaint.

Berta,

I have not contacted any lawyers about this case yet. I am hoping to have it resolved without the need to cost $40,00 like you have. I know there is a lot of work to be done for that, however. If I come to a dead end, I would then have no choice but to contact a lawyer. I think it would rely on the decision of the DRO.

I'm a little confused on some of the acronyms: IMO, H VAC, DIC, BVA, IRIS.

I think faxing a regional office's director sounds like a very good option. Is that a separate thing completely than filing a CUE.. or is that done before a CUE to see if progress can be made before a CUE.

So the DRO is not a quick option? They make it sound like a better option than the "traditional appeal process". At least a quicker option....

Faxing a director sounds much better... We still have to answer this letter within 60 days, should we tell them DRO or trad. appeal?

Thank you guys. Sorry if I sound lost.

Edited July 16, 2014 by sevensees

[john999]

If you are confused about acronyms you mentioned I don't think you are up for prime time to get TDIU Inferred on your own. You may not want to spend 40 grand, but you are going to spend 40 years trying to get this retro money I think. When you ask for something like "Inferred TDIU" you are making a big potential problem for the VA. There are probably thousands of vets who should have gotten an inferred tdiu rating. They will probably fight you all the way, and with your limited knowledge it will take years and they will run you all over creation. I would go get the lawyer. By the time you come to a dead end you won't even recognize your claim. The lawyer gets 20% of any retro. If he does not think there will be retro he won't take your case which may tell you something. If you get a lawyer who will take the case it will be worth it.

John