Appeal Or File New Claim

[JoeUsmc]

Hey Everybody,

I'm new to this forum and I see that this site is better then any lawyer or VSO. So I will lay my case out and see if anyone can answer these questions. I have looked high and low and haven't found answers to these questions.

I am service connected with Tension Headache at 30% from an accident I was in while I was on active duty. I am 50% combined as of now and wanted to increase my combined to 70% by getting an increase of my headaches to 50%. I am positive that raising the headaches to 50% would make the 70% margin using the combined rating calculator. After achieving the 70% I would then apply for TDIU as I know the 70% number is required.

I filed for an increase of my tension type headaches back in November 2014 which were currently 30%.I am looking to get them raised to 50% which is plausable as I have medical documentation and all the "requirements" that would give me the 50%. I did not use any outside representation and laid out all the evidence that would help me using E benefits. I received my answer 7 months later this June 2015.

The rating letter came back and surprisingly said in so many words "We granted an increase of your headaches to 50% from the time of the Compensation and Pension claim in November 2014 to the time of the Compensation and Pension exam in June. After the compensation exam you will pushed back down to 30%. We will give you back pay as a 50% recipient from the time the claim started but we are moving you back to 30% after the exam took place.

Now I know that I didn't say anything wrong or stupid in that exam. The examiner must of put wrong information in the claim or something because up until that point and today my headaches are still just as bad as they were when I put the claim in 7 months ago.

With that being said....Do I appeal it? or would that make them reopen up the files and maybe try to take away other ratings. They must see all the evidence I turned in as being 50% headaches and they even agreed with it but then changed it back on the date of the exam.

I am very confident If I appeal it I will win back that 50% headache percentage.

If I appeal it I will then get that 70% combined number which can than in turn make me eligible for TDIU.

Should I appeal the headaches, get the 70% and then apply for TDIU by appealing the new 70% number?

Or should I appeal the headaches 30% decision then start a whole new claim for TDIU after they grant me the 70% combined

Or should I appeal this decision and try to get TDIU now? Can I do that? Or would the TDIU claim be started from the time I put in for that rather then back to that november day I originally put in for the increase.

Should I try to get the highest schedular rating I can before jumping into the TDIU boat in case I am able to work in the future and then they would drop me back to the 70% instead of this 50%.

Can I go to school using my Post 911 GI bill if I recieve TDIU?

If I am going to school will the VA ask about that on the application for TDIU and do they look down on that? If they do I will hold off on going to school until the application has been turned in.

Should I get a lawyer who generally takes 30% of the back pay as they have a 95% success rate or do I also do this myself again? The lawyer said he is confident he can get me P&T.

If I get 100% TDIU and stay unemployed is it hard to keep?

If I take the do it yourself approach how can I know which IME is best for me to use? and the proper steps to take in order?

As I said I looked at a 7 month turn around time for my increase. Are you seeing appeals going faster now after the scandals or still 2-5 years.Would my 7 month turn around time be an indication that my appeal would go pretty quickly? It seems like appeals are harder to get then new claims.

I am married and have 5 children. per TDIU On the "below the poverty line" does that mean for me personally or me with a household of 7. Because the numbers are significantly different. Myself is rooughly below $12,000 and 7 in the family is below $36,000 per the poverty line government website.

Thanks So Much

Joe USMC

[Berta]

I have never seen VA put something that way.

Can you scan and attach here their reasons and bases and the evidence list CCover C file number, name, address prior to scanning it?

[Buck52]

Joe

you don't need to be 70%rated for TDIU.

TDIU is for veterans that can no longer work due to there SC Disabilities , the CFR's read that you need to have a combined rating of at lest 60% then that qualifies you, so in some cases if your disability keeps you from working at 50% they use the extra scheduler rating for veterans that don't meet the rating % for TDIU and if you have evidence you can't work or do any kind of gainful employment due to your SC disability then you qualify for TDIU

you need to prove your disability keeps you from working from a Dr.& SMR's'S AND MEDICAL RECORDS of your past history.

.......................Buck

Edited July 5, 2015 by Buck52

[Buck52]

Maybe this will help!

§4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation 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. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

[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; 79 FR 2100, Jan. 13, 2014]

....................Buck