Jump to content
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • Searches Community Forums, Blog and more

  • Ad Free Subscription.jpgOne Time Financial Gift.jpg

    Subscriptions and Gifts are NOT Tax Deductible. HadIt.com is NOT a Non Profit.

  • 0
Sign in to follow this  
broncovet

Important case on Extra Schedular TDIU

Question

This is from the 2015 BVA Chairman's Report:  http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2015AR.pdf

 

Wages v. McDonald, 27 Vet. App. 233 (2015):

. The Board also found that “medical and lay evidence suggests that the [Appellant] was unable to work prior to December 11, 2009[,] due to service-connected disabilities,” but the Board concluded that it lacked the authority to award TDIU for this period, because the Appellant did not meet the schedular criteria for TDIU in 38 CFR § 4.16(a) and remanded the matter to the Director of Compensation Service (Director) for extra-schedular consideration. The Director denied extra-schedular TDIU under 38 CFR § 4.16(b) and the RO implemented the Director’s denial in a supplemental statement of the case. The Board then denied extra-schedular TDIU relying, in part, on the Director’s opinion. At the CAVC, the Appellant argued that the Board erred in relying on the Director’s decision as evidence against his appeal for extra-schedular TDIU and that the Board owed no deference to the Director’s opinion and must review this decision de novo. The Secretary argued that the Director’s decision is not evidence and that the Board may only review the factual basis of the Director’s decision for accuracy and completeness, leaving the Board without authority to overturn the Director’s policy decision.

The CAVC rejected the Secretary’s argument, and held that the issue of entitlement to extra-schedular TDIU was not a policy question, but was a question of law and fact that fell within 38 U.S.C. § 511(a). The CAVC held that “the policy decision was made when the Secretary promulgated a regulation mandating that all Veterans who are unemployable due to service-connected disabilities will be rated totally disabled, regardless of the schedular ratings assigned.” The CAVC also found that the Board erred as a matter of law in assigning weight to the Director’s decision. The CAVC stated that the Director’s decision is the de facto decision of the RO and is not evidence that can be weighed. This case is significant because it establishes that the Board has jurisdiction to review de novo appeals concerning the matter of entitlement to extra-schedular TDIU after the Director has made a decision. 

Edited by broncovet
  • Like 3

Share this post


Link to post
Share on other sites

1 answer to this question

Recommended Posts

  • 0

Fabulous Case! Thanks!

Share this post


Link to post
Share on other sites

Ad

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
Sign in to follow this  

  • Our picks

    • Type 1 Diabetes recent onset!
      I was diagnosed with Type 1 diabetes in September 2017 OUT OF NOWHERE.

      i am a Navy Reservist and deployed in later 2009 to mid 2010 and again later 2014 to mid 2015; had a 2 year recall between those deployments.  

      Only healthcare received since commissioning in 2008 was from the Navy and no issues EVER.

      insulin dependent and have dietary restrictions and in a non deployable status.

      VA denied initial claim due to Type 1 not showing on active duty and now appealing.

      Anyone with successful experience getting a rating with my circumstances?  I live in Upstate New York.
      • 9 replies
    • Agent Orange Kadena Afb Okinawa
      I am looking for anyone who was on Kadena AFB, Okinawa or .Chanute AFB, IL. My dad was there from Oct. 68-April 70. He has ichemic heart disease, diabetes which has resulted in the amputation of his right leg below the knee and peripheral neuropathy. We were denied in 2002 AMVETS filed a claim on his behalf for heart condition, diabetes and back problems. I refiled in December 2011 and have just received the claim statements and medical release forms. I am familiar with filling out this paper work because my husband is a combat veteran of Iraqi Freedom. I have been reading articles from the Japan times and I am a member of the Agent Orange Okinawa facebook page. Another thing that helps make my dad's case is that he was on Chanute AFB, IL and it is on the EPA Superfund list and has PCBs/Pesticides and Dioxins/Furans listed as ground and water contaminants. I welcome any advice, tips or articles that I may have missed in my own research.
        • Like
      • 15 replies
    • CBO Options for Reducing the Deficit: 2019 to 2028 Published Dec 2018
      CBO Options for Reducing the Deficit: 2019 to 2028 - This CBO Report has been making the news. This post includes parts relevant to veterans. Nothing has been decided as of yet and some seem very unlikely but you never know. Forewarned is Forearmed.

       

      https://www.hadit.com/cbo-options-for-reducing-the-deficit-2019-to-2028-published-dec-2018/
      • 8 replies
    • 2019 Veterans Benefits
      State Benefits, Space A and More ... https://www.hadit.com/2019-changes-to-veterans-benefits-state-and-federal/
      • 2 replies
    • Appeal granted and closed.
      My appeal was granted and closed on November 9.  I got an unofficial notification from the DAV on November 15 stating "appeal granted with an evaluation of 30%" which is great!  My question is this:  How long until I get the official notification from the va? Nothing on ebennies has updated since the appeal closed. Appeal is now in historical and just says complete and at originating va office. I understand no one knows va timelines to a tee but a general timeline would be great.  Thank you all! Hope you have a Merry Christmas!

       

      Edit:  This was my first time appealing and it was a VBA grant. 
        • Like
      • 6 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×

Important Information

{terms] and Guidelines