BVA Decision arrived! Expert opinions requested!

[broncovet]

My BVA decision arrived yesterday, with mixed results.    On one hand, as my attorney said, TDIU was awarded.

Summary:  

The, the decision specifically "forked" (DIVIDED) MY tdiu into 2 parts:

1.  2002 to 2004  (denied)

2.  2004 to 2006 (approved).  

While Im greatful for the award, it was about 1/3 of what I think it should have been.   Redacted version:

 

"For the time period (2002 to 2004, date redacted), the evidence does not establish the Veterans bilateral hearing loss-his only service connected disability during that time period-rendered him unable to secure or maintain SGE".  

end of redacted decision quote.  

      My analysis.  The decison went on to award TDIU from 2004 to 2006, based on hearing loss AND depression with a combined evaluation of 40 percent.  It was "extraschedular" TDIU under 38 cfr 4.16 b.  I find the boards reasons and bases to be in error, because my 2005 VARO decision established that depression was secondary to hearing loss, AND the Board "probably" did not have that decision available, as I have had much shredded evidence.  Thus the boards reasoning that my "only sc disability" at the time was hearing loss does not apply because its not my fault the VA made an error on the effective date for depression, as the evidence established I was depressed, and, later this depression was sc.  

     My opinion is the board decision is a "post hoc rationalization" to justify a weak effective date.  I had applied for TDIU in 2002 (the date of application) and the general rule for effective dates is the later of the "date of application" or facts found.  There was no doctor evidence that said I was employable from 2002 to 2004, but rather my SC disabiloities (one of which was NOT YET SC) rendered me unemployable.  I think its error for the VA to conclude that because the depression was "not yet" service connected, that meant my depression was NSC.  This means the etiology of depression had to change:  From 2002-2004 my depression was "unrelated to service" while after 2004, "poof" the depression was related to service.  This did not happen, my etiology did not change, there is no evidence of that.  

      Equally important, the board failed to adjuticate SMC S, when I had specifically asked for consideration of SMC S under the HOWELL CRITERIA.  See here:

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/    In pertinent part, since Im tdiu, Im unable to leave the home "for work" using the Howell criteria.  

      

[treysnonna]

Broncovet, congradulations for at least getting something.  I know it took along time.

[jfrei]

I'm SMC S currently IU 100% P and T one rated a 70 three at 30 one at 20 and four at 10 so if I was granted it I thought it was due to the doctors opinion about if I'm considered house bound or not? I'm didn't apply for it or even no what it was until I had it

Edited September 10, 2017 by jfrei

[Buck52]

jfrei

Your rating with the 100% P&T and with your other 70% separate rating is what  made the criteria for the SMC S H.B. 

When a veteran has rating this high it qualify him/her for the SMC S H.B.

And the rater is suppose to invite the SMC-S Rating  b/c is a mandatory rating.

SMC ratings are based from the severity of the disability and if you get bed ridden and need A&A or other levels of the SMC...Then you should move up in the SMC Criteria based on the SMC Special Ratings Table Chart

 

I have SMC S. H.B. and K

I was 100% TDIU P&T  FOR 15 Years and years later approved for PTSD  and was rated 70% , this is how I recieved the SMC S H.B. ...>having the separate PTSD 70% Rating qualified me for the SMC S H.B.

I have other smaller ratings at 0% 10% 10% 30% but they stand alone.

I have VA Diagnose Sleep Apnea,I use a  C-PAP file A.Claim? but there is no reason for me to file theres no more comp$$$ in it for me, the only other way I can get more SMC's  is I get in need of others to help me dress I am totally bedridden, although there are other SMC That could possibly arrive in my life time  things like loss of use  or Drop foot, ect,,ect,,,

all the above of course is caused from service connected disability's 

JMO

[jfrei]

May I ask if I'm made at the least 70 for the TBI and 100 % neurocognitive disorder with ptsd would that qualify for a different SMC? I might be ok maybe they give whatever I'm due to me without a fight😂 I just made myself laugh all my limbs work pain a factor but I'm compensated for those issues with shoulder hip and foot. They all work which is why I have to fight for SSA even though every doctor says I'm a libility SSA says otherwise so I'm anxious for my appeal in front of a judge where it will be obvious they were are wrong my appeal is in December I refused to wait 18 months for a hearing so I contacted a senator in my state. To all vets their is a actual application if you are P and T And SSA did not speed things up Senator Coons office in Delaware had me fill out a paper show him my award 4 weeks after my attorney filed my appeal my hearing was scheduled. It's in December not quick but not years away like horror stories all over the Internet..

Edited September 10, 2017 by jfrei