Appealing Retro Pay Percentage

[Jimmer]

Hi Everyone, thanks for all the get info that you have provided, it has helped me, to really begin to understand the nonsense that the VA pulls on us veterans.  I have a question, and your help would be greatly appreciated.  I had filed in 2007 for SC disability on my left eye.  The VA fought this repeatedly, saying I had poor eyesight prior to joining the military (not true) to just flat out denying with vague answers(Doesn't meet the criteria for SC disability).  In October 2013 I had a BVA hearing, in which they agreed my eye problem was service connected.    I was awarded a 10% disability, which I immediately appealed.  In February  2015 I had a eye exam at the VA, and they raised the disability to 60%.  Then later in 2015 they "CUED" themselves and raised the rating to 80%.  I had felt the VA purposely "low balled" my initial award because it went back to February 2007, of seven years.  This is the kicker"  I just found the letter that I had provided to the VA from five different board certified ophthalmologists  that stated my exact vision of both my left and right eye.  Looking at the code of ratings  (CFR 4.79) my rating fell between 50% to 60%.  In other words, the VA had this information, prior to assigning me the rating, and they deliberately ignored it to come up with their measly 10%.  I felt this was done purposely to avoid paying a higher rating covering seven years.  What would be my best way to proceed?  Hire a lawyer,  File a CUE?  As I said, they had this information, (even mentioned it in one of their denial letters)  but choose to ignore it.    Thanks.

[broncovet]

This happens a lot.  The VA's favorites, are in this order:

1.  Delay, hopefully until you die. 

2. Deny when they can, award only if they must.  

3.   Lowball whenever possible, 0 percent is their all time favorite lowball.  

4.  Hornswaggle you on effective date, after they have tried numbers 1 through 3, above, repeatedly.    

     I do think its a good idea to run this by an attorney.  You are disputing both effective dates, and disability percentages.  Its very tough to "cue" a disability percentage because the criteria usually leaves doors open to interpretation, and interpretion disputes are not CUE.  

    All this said, its a Colvin violation for the board to fail to give a reasons and bases as to why they did not consider a specific, favorable, medical exam without a reasons and bases.  

    In other words, the BOard can reject these five favorable medicl exams, but they must give a reason why they did so.  You know, for example the examiner, was not board certifed in opthamalogy, while the C and P examiner was.  They can reject your evidence, but they need to say why.  

[Jimmer]

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Thanks for the advice Broncovet, I will contact an attorney.  The VA had the letters from the five different "board certified" ophthalmologists, and each one had a vision that fell into the 50%-60% disability range.  When I had a VA eye exam in February 2015, he came up with a 60%.   I never received a letter or reason for the VA coming up with 10%.  I fell they were just "pissed off", because I took it all the way to a BVA hearing, and they ruled in my favor.  

[broncovet]

The problem with doctors stating that your disability is xx percentage is that rating specialists want that job and begrudge docs who try to take it away.  

[Guest]

Depending on when you received your rating in 2015, instead of filing a CUE claim, if it has not been a full year file a NOD ASAP. Veterans gets CUE on the brain and think that is the best way to go but IMHO a CUE claim should be a veterans last choice and beyond the one year to file a NOD. By filing a NOD it will result in the same retro payment as a CUE claim and you do not have to give up the benefit of doubt. Filing a NOD claim is a lot easier to win than a CUE claim.

[Guest]

If you have not filed your NOD and you go beyond the one year for it, it really doesn't matter what kind of evidence you have, when you file your CUE VA will deny your CUE.  VA will come up with something to the effect that your Cue claim does not rise to the level of CUE and you get no retro pay.

P.S. I thought this was familiar, so it has been 30 days or so, I hope you filed that NOD.

[Jimmer]

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Broncovet,  The eye doctors actually came up with a  vision 20/400 left eye, 20/200 right eye, I was able to determine the percentage disability from the schedule of ratings for the eye.  It was right at 60% disability.    Pete992,   I did file the NOD, within the year.