tdiu AB8 claim increse

[add55p]

Hello,

This was originally sent to wrong Forum Topic.. Sorry about that!!

Please give me your thoughts on the following situations. I am one of a few veterans that meet every once and a while to discuss our particulars pending claims.

One veteran in the group has a VSO assigned and submitted, what he thought was a well-supported request for increase and Individual unemployability. As evidence, he submitted prescriptions showing that his back pain required more than 6 weeks of time off from work due to his pain episodes, as well as a 21-4192 form from his employer reducing his employment to on call (from $2500 to $600 a month) specifically due his associated back conditions and his frequent absence from work.

He stated that his VSO informed him that at a minimum, his currently 40% back condition should be increased to 60% due to the doctor´s prescription that supports his 6 weeks of incapacitating episodes and that that may provide enough for him to get IU, but was not sure how the VA would consider his last 12 months of income which was above the earning level. The veteran is currently 70% combined.

The veteran meets the minimum rating requirement for IU and wanted to file because he cannot be seated for more than a few minutes before excruciating muscle spasms or lower back and extremities pain kicks in. During our group meeting, he appears to always be in wincing due to some kind of pain.

He informed me that his claim was closed and thought that it was denied because his AB8 letter in Ebenefits did not show a change. He stated that his VSO has not yet returned his call to explain what his decision letter stated.

I informed him to wait on the decision letter to see what it says, because one of my past claims were closed with no change in the ab8 letter updated because of a deferred rating (The rater required me getting an explanation from one of my treating doctor before he rated the claim).

Can someone from this Forum think of any past experience that you may have had with this type of situation that may have cause that VA to deny an increase out right?

Despite me reading several post on this Forum that states "the ab8 letter should show new rating once the claim shows completed", I personally believe that he should not dwell on the AB8 letter not being changed simply because the claim is closed.

any of your thoughts would be appreciated..

Add

[broncovet]

Yes.   US Supreme Court Justice, Roberts, was "startled" to discover that 70% of the time the VA takes a "substantially unjustified" position against the Veteran.  (Most EAJA payments requested are authorized as the VA took a substantially unjustified position against the VET).  Once you understand this, you need only isolate the "bogus reason" VA denied, and appeal it.  Remember, the appeal odds are in the Vets favor:

According to the BVA chairmans report, 2014, 29% of Veterans appeals are awarded, and another 46% are remanded.  Only about 25 percent are denied, and, even then, those denied claims are often awarded at CAVC, Federal circuit, or sometimes reopened with new and material evidence.  

In short, wait for the decision and appeal.  

[broncovet]

To add, you should have the Veteran go ahead and get a copy of the cfile.  You need to see what the doc said, not just speculate about it, as the doc does not always tell the veteran what he will write in the reports.  

You need a doctor to opine something very close to "the veteran is unable to maintain substantial gainful employment due to sc conditions of x, y, or z".  You need evidence and you need to see if its there, and VA did not read it, or if some evidence is missing.  If the evidence is missing resubmit it under 3.156.  

[Andyman73]

Add,

One thing I can think of is that if the increase award is not enough to bump your friend to the next higher payout level, it would show no change on the letter.

Does the status on ebenefits show pending decision or pending approval?  Or some other status?  Sometimes they will combine claims with historical claims, and close one.  I have one or two current claims that this happened to.  I think it gives an explanation to that fact, as well.  Have your friend call the benefits counselor at your VAMC and ask them. 

Keep in mind, that the ROM(range of motion) is a huge factor in deciding what percentage to award.  I am currently 40% for my back due to decreased ROM.  I was 10% for 17 years, until last year, because I mistakenly would bend beyond the point of pain, which is a big no-no!

If your friend also has sciatica symptoms, that would be a secondary to the back claim, as they don't rate it together with the back.

As a side note, VSOs can be misleading.  I just got a letter from mine(DAV) stating all my current claims were denied back before Thanksgiving, but I only found out last week!  Several of the claims were not granted exams, even though they are not FDC claims.  One of the denied was deemed more likely than not by the examiner.  And another claim has 7 STR entries to support it.  I called my local benefits counselor and he was rather surprised since his system access shows that none of my active claims are denied, and in fact didn't even get to the VARO until December 15th!  3 weeks after they were supposedly denied by same!

Anyway, hope something I said helps.

Semper Fi.

Andyman

[add55p]

Broncovet,

I have informed my friend to wait for the mailed decision letter.  as for requesting the C-file, should he have his VSO do this for him?

also, he stated that he had his long time treating physician prepare examine him and         completed a VA back DBQ. He stated that the stated detailed rationale in the remarks section of the DBQ explaining the back disorders that were keeping him from being employed and also stated in the DBQ that "the veteran has had more than 6 weeks of incapacitating episodes in the last hear". In support of the incapacitating episodes, the doctor provided the dates of the prescribed episodes and my friend stated that he personally had copies of all his past prescriptions and doctor´s prescribe incapacitating episodes on hand and sent them along to support the claim.

If the decison come back and he is denied, I will ensure to let him know to have his VSO      appeal in accordance with 3.156..

Thank you..

Add

 

[add55p]

Andyman73

 

My friend stated that all of his claims are closed and have been moved to the "historical claim" file.

As for his range of motion, he stated that he is at 40% now and is trying to get an increase to 60% based on incapacitating episodes. He states that he is constantly being written off from work to rest his back to constant, unpredictable pain and stiffness. He stated that at time he does not know whether to stand or sit.. 

Yes. he was rated for sciatica Right and Left Extremities in an earlier decision. However, he stated that he has a NOD in for those conditions because they low balled him. The examiner that conducted the his radiculopathy examination in the past, checked "moderate-severe" for lower right extremity and  checked "severe" for lower left extremity. VA rated him 10% for each instead of 20% for the right extremity and 40% for the left extremity.

He just got off of the BVA wagon when allowed the 40% and 10 + 10 for radiculopathy..  Looks like he is scheduled to take that long BVA bus ride again!!

Thanks

Add

 

[Andyman73]

Add,

Sometimes those long bus rides are the worst part.  Better than hotel california, I suppose.

He probably should file the c-file request himself, instead of his VSO.  Things have a nasty habit of getting stuck on their desks for many moons.

Hopefully his decision letter comes soon with favorable news.

Semper Fi.

Andyman