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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.
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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 part
broncovet
Thank you for your answer, BUCK!. I agree that I should "accept IU" and appeal effective date. I also agree that I did not meet the requirments for STATUATORY SMC (100 plus 60) AT THAT TIME.
broncovet
Carefully read Alex's post again. Remember, the VA denied Howell NOT on his failure to meet statuatory requirments (100 plus 60), but because the Veteran showed up for a c and p exam, so the VA conc
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