tdiu Do I File Nod For Dro Decision Or Bva?

[Adrianaj]

A little background before I get started. I filed for compensation for my lower back condition back in 2009 and was subsequently denied. Then I applied again with new evidence and was denied again because the VA stated that my condition was not service connected and no evidence was in my SMR. I was awarded other service connected disabilities and others denied. Anyway, I appealed the denial of service connection for my back and requested a DRO to review my case. I went to my hearing in April of this year and was approved for service connection at 10%. She stated that she is not sure why they denied my claim because all of the evidence showed that I was clearly service connected. Keep in mind that I brought my own SMR to prove this during my hearing. This just tells me that they did not request it back in 2009 or review what I sent to them. So I disagree with the percentage I was rated by the DRO and I think it should be much higher. I am filing for TDIU for my migraines rated at 50% and my lower back. Should I file the NOD and the TDIU at the same time? Also do I file the NOD and request a DRO to review it again or file the NOD and ask for BVA review? Please help. Also I think that there could be a CUE for the effective date for my initial denial for my back. Not sure what to do next.

[jbasser]

Write a NOD to the VA and ask them to CUE themselves.

Title 38 CFR 3.156C

Missing service dept records. If your claim was denied because of missing service dept records and you produced them then they must pay you from the date your filed originally.

File for the IU. It is also a claim for increase.

J

[FormerMember]

Yeppers. This has a Fenderson v. West staged rating all over it, too. File the NOD and make darn certain sure you ask for the higher rating percentage but more importantly, the earlier filing date that was denied initially. Mr. Basser's advice is spot on. While VA is required to consider TDIU, there is never any guarantee the local yokels will do so. Thus throwing in a 21-8940 is a good side bet to cover your bases. If you are using a VSO, be careful you do not discover the son of a gun is bargaining away your ratings behind your back-something a POA permits him/her to do with your explicit permission.

Edited December 21, 2014 by asknod

[Berta]

INDEED!

It is certainly a CUE and/or 38 CFR 3.156 error.

"I filed for compensation for my lower back condition back in 2009"

Was the NSC rating at 10% then?

"I went to my hearing in April of this year and was approved for service connection at 10%."

Was this based on a recent C & P or on the older denial that might have had the 10% NSC rating?

I agree that this might be a Fenderson matter ( staged ratings) because most disabilities sure don't get better in time , they get worse.

[Adrianaj]

No it was denied service connection(no rating, completely denied) stating no evidence it occurred or was treated in service. I did have a recent c&p exam, however my records at the time of denial showed the same thing. I presented the same records available in 2009 to the dro in april. So i state cue on my doe with request for increase? Or do I just use Nod for cue and request increase on tdiu claim or both?

[Gastone]

Adrian: At the very least, give consideration to getting (3+) Free Legal Consults from VA Accredited Appeals Attorneys. I know, most Vets balk at the 20% of Retro that the Attorney would charge. I'm not saying you need to sign up, just get the "Free Consults"? You should be able to determine a possible plan of attack and get an actual legal opinion regarding any unanswered legal questions. You've been waiting since 09 and just got your DRO Hearing, whats BVA, another 2+ years plus possible Remand? Decisions, Decisions, what would you rather have, a possible $100K+ Retro somewhere possibly way down the road or a better than good chance of getting your claim awarded in the near future for the 20% Attorney fee? I guess it depends on your age and current financial resources. Your Claim, Your Time, Your $$$$$ and your Decision!

Semper Fi

Gastone

[Gastone]

Asknod: I saw a post of yours 12/21 regarding IU. I have what I think will be my 2nd and last personal interview with the Va Vocational Rehab Councilor today. I had been through Voc Rehab twice back in 2012 & 13. Went back in early 13 just to get the Denial due to SC conditions letter that I thought would be N&M Evidence for my 2012 IU NOD DRO Hearing. My current Councilor is somewhat less than helpful. Very difficult to establish what ILP benefits are available, very reluctant to say what's available. More, "what are you looking for?" Quite often during my 1st and only meeting, her response was "That's not offered or the VA doesn't provide that anymore." Never heard from her again until I got a notification from a Non VA Employment councilor that I was scheduled to take a 5 hr employment interests/aptitude test similar to the Test that was administered at the VA back in 09/2012. When I called and discussed it with him, he agreed that it seemed to be a duplication and probably wasn't necessary.

At both 12 & 13 meeting with 2 different councilors, they advised me that I was eligible for the IU program but no real discussion as to what benny's were available. After pushing 2 Nam Vets I meet with into IU in late 13, I filed for IU 06/27/14. Both Vet's I advised to apply for the ILP, have received substantial Benny's that they had no idea were available to them. 1 Vet has been TDIU over 20 yrs. The other Vet applied primarily for the Voc Reh Denial letter for his IU DRO Hearing. He just used the letter to get his 13 & 14 Mi property tax exemption. He got into the ILP 06/13 and just had a bathroom upgrade of about $3K early Nov 2014. I think the total grant was about $6500.00.

Will know more after today's meeting.

Semper Fi

Gastone