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

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flores97

Question on possible cue for tdiu claim

Question

First off,  I hope everyone had a great New Year. I am not certain that my NOD has been denied yet,  but when I called Peggy I was told that a statement of the case was being prepared, so I'm preparing for worst case scenario. Background-I was granted service connection for systemic lupus at 60% and acquired psychiatric condition to account for memory loss at 50% in September 2015, effective date was Jan 7 2010. I submitted a NOD on Nov 4 2015, disputing the rating I received for the lupus, and requested tdiu.  My VA doctor has completed a DBQ for me and stated that the lupus does cause severe impairment of my health. I have been found unemployable by Vocational Rehab, and have regular lupus flare treatment records for the past five years,  all of which were submitted. I was also terminated from my job September 2015, due to SC disabilities. I completed every form required for tdiu,  including the employers form,  which my employer stated they could not complete,  as well I submitted a statement explaining I had completed the employers form due to the companies refusal and submitted my last pay stub that showed how many sick days I had missed for the year.  My question is,  if they still deny the tdiu claim,  in spite of the letter from Voc Rehab stating that I am permanently and totally disabled due to SC disabilities, would that be a cue?  I am currently at 90%, since I was also awarded 20% for fibromyalgia and 10% for gerd on a later claim, so I do meet the criteria, in fact I meet the scheduler criteria for 100% for systemic lupus as well,  due to flares occurring every four to six weeks, lasting 9-11 days during which I am mostly bedridden, and causing severe impairment of my health. I will of course file a form 9 as well if denied,  but should I also ask them to cue themselves.  I apologize because I did try to find the information myself, but I wasnt certain which regulation it would fall under.  Thanks in advance, and I will keep everyone updated.

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I don't think you will be denied  they may make you 100% scheduler/I'd take that over the IU...but since you ask for IU they will probably  approve you for that  with or without P&T Unless you ask for the P&T   WE HAVE TO SPOON FEED THESE VA PEOPLE...

If your rating is 90% now?

 

Increase to IU is the same as being 100% but the P&T Comes with the chapter 35 benefits   education allowance for your spouse and children  and all the other benefits that come with being P&T

 If you have a 100% S.C. Disability  and come down with another disability seperate and they rate you at least 60% then you will quailfy for SMC-S 1 H.B.  its a statutory rating.

 

Flores  if you get denied on this  they are just plum full of it....you have an outstanding claim  the medical evidence is there , your presentation is there and that's basically all you need.

The company you worked for that would not fill out your DBQ  They probably thought they could get in trouble if they let you go because of your S.C. Disability...they can't fire you because of your disability  they are suppose to make/accommodate your job as to where you can perform it to there satisfaction.

under the A.D.A.

I think you will win this  the SOC is taking them a while  to figure this all out and what to award you with.

I hope you get the P&T WITH 100%Scheduler/ or the IU  Either one is fine.

I wish you the best   keeping fingers crossed for ya

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Need to wait and see what the Reason & bases of the decision before talking CUE?

Anything is possible.

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Thank you Buck,  and your absolutely correct, I really don't see how they could Deny the tdiu, and if they do,  I will have to see what evidence they have listed on the SOC as being considered. I'm staying hopeful,  and I'll keep everyone posted.  I have gotten to the point in the past year where it's difficult for me to concentrate on anything,  and it's very frustrating because I used to be able to find the answers anytime I needed,  now I just can't seem to do that anymore,  at least not nearly as often.  Buck I appreciate the response, and I pray that I get p&t for my kids sake,  as most of them are in college. The voc rehab counselor did state in the letter he wrote that I was permanently and totally disabled, so hopefully that will help. 

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yes if your voc rehab counselor mention you was P&T that's good  also if he /she stated its not feasible to retrain this veteran at this time b/c of herSC Disability's

I don't trust Peggy  they will tell you anything to get you off the phone., if you use  e benefits go in it and check the status.  but then again no telling what you might find in that..

I had my C&P and in about 3 weeks got a letter from my Rep (DAV) ( Imagine That) letting me know they have made a decision on my claim, after I got that letter I went into e benefits and it said   ''gathering evidence''  so we can't honestly tell until we get the packet.

you should win and probably more than what you expected. stay positive.

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I agree-a VOC Rehab letter stating VOC Rehab is not feasible, solely because of SC disabilities, is dynamite evidence for TDIU.

However , if they do deny, and you an scan and attach the denial here (to include the Evidence list) we can see if it contains CUE.

"I will of course file a form 9 as well if denied,  but should I also ask them to cue themselves.  I apologize because I did try to find the information myself, but I wasnt certain which regulation it would fall under. "

There is no regulation that covers this tactic ( to ask them to CUE themselves within the appeal period). I made it up and it has worked for me..many times...and 1 or 2 vets here used it with success as well as a vet rep even recommended this tactic to one of our members recently.

I went to a military school (tactical warfare ,leadership, battle analysis etc etc etc) AMU and graduated with Honors. I was their first civilian graduate.Most of my Profs were officers in USMC.Tough as nails and it all changed my approach to the VA.....by using their regulations against them.

You can cite the actual CUE regulations ....this is how I started many of my CUEs filed within the appeal period

"This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A, on your recent decision dated ( xxxxx) and I request that VA call a CUE on themselves and prepare a proper decision."

And in this 2012 "CUE Yourself " I filed I didnt even have to raise 5109.

Department of Veterans Affairs                                                   October 28,2012

Philadelphia Regional Office

PO Box 8079

Philadelphia ,Pa. 19101                                                  Re: 310/3POST/CG

                                                                Nehmer decision dated January 17,2012

                                                                                           XC 24 884 978

 

and

Department of Veterans Affairs                               Original Agency of Jurisdiction

Regional Office

130 South Elmwood Avenue

Suite 601

Buffalo, N. Y. 14202 2478

 

 

REQUEST FOR VA TO CUE ITSELF REGARDING PART OF THEIR JANUARY 17th 2012 DECISION

 

I was advised by NVLSP to send my correspondence to both above VAROs to determine who holds jurisdiction over this request .

 

I respectfully request the VA to call a clear and unmistakable error on part of the above January 17,2012 decision from the Philadelphia VARO and to correct it.

 

This is a separate issue from my recent Section 1151,38 USC claim filed with the Buffalo VARO on September 21, 2012.

 

I state that the VA failed to apply the basic concepts and evidentary requirements of  38 USC, Chapter One, Part 4, Subpart A, under 4.6 et al, thus:

“Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “

 

http://cfr.vlex.com/vid/4-6-evaluation-evidence-19774393

 

The VA's CUE lies within this statement on page 2 of the January 17th,2012 decision :

 

“ Entitlement to accrued benefits or cerebrovascular accident  under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993.                              Exhibit A

 

That is wrong based on all evidence in VA's possession at the time of the veteran's death."

Etc I had a lot of evidence and they awarded the CUE.

The veteran cerebrovascular accident permanently and totally disabled him from Aug ,1992 to Oct 1994, when he died.

The award contained another CUE and I want that appeal to get to the BVA.

The RO refused to consider my evidence for that ( a OGC Pres Op) .

They probably cant even read it anyhow.

The separate claim pending ,mentioned in my entire letter here,  was regarding 1151 HBP filed in 2012 as well , was denied,but  I immediately asked them to CUE themselves and that too was awarded very fast.

Another violation of 38 CFR 4,.6, I raised immediately with a request that they CUE themselves and render a proper award.

This crap happens more than we know..in my opinion.....

and one of my suggestions to the new VA Sec would be to get this into a regulation or Fast letter, that all vet reps and lawyers would have to consider first, when they read decisions ( awards or denials) that they could contain CUE , because it could stave off some claimants  from getting into the major backlog....and cause the ROs to maybe be more competent in initial decisions..

 

 

 

 

 

 

 

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