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.  

      

[broncovet]

The "Howell" criteria merely states what "congress intended" all along, AND  established a "precedential case" for interpreting congress intent.  Va had done it all wrong when they required the Veteran to not leave the home ever, and the courts spanked them for doing that.  It was "grandfathered" when congress passed the law, not when VA abused the the regulation taking advantage of Vets for years.   The law didnt change with Howell, it was that way all along, but AFTER HOWELL VA can no longer stiff Vets by denying housbound if they show up for a c and p exam.  The "effective date" for Howell is when congress passed the law.  

[Buck52]

Now, I suppose I am one of the thousands Veterans they stiffed!

if you get SMC S HB From this recent decision for IU and they back date the SMC  S  That's a pretty good hunk of change there.

Heck I might file to re-open to get the SMC S  I should have got back n 2002  when I was Awarded the TDIU P&T

I did not leave home for work.

[porgee]

If you want expert opinions then may I suggest you talk to your

high power attorney that you like so much. just a thought   

no evidence is always a denial in most cases. Evidence wins claims

 

Edited August 17, 2017 by porgee

[Gastone]

Bronc, you're Appeal is from pre-12, right? As I recall pre-12 IU Claims asked us what SC's in the Vet's opinion caused us to be IU. Like most Vets of that period, if you listed all your current SC's and the eventual IU Award listed those same SC's, they would no-longer be taken into consideration for the SMC S (1) Statutory Housebound Award.

Was this VA Lawyer assisted IU Award the result of a DRO or BVA Hearing? What's the future Appeal plan of attack?

Semper Fi

[Berta]

I think VA has made and continues to make many SMC errors.

My SMC CUE award was based on  a 1998 VA decision so I am sure the Housebound and/or the 100% plus 60 has never changed.

But the decision involved a 1997 100% PTSD posthumous award and then ratings for stroke (under 1151) that were over 60% (100% per the medical evidence.) and my husband could not drive or even handle money anymore.

It is still amazes me that when he got lost on an Inhouse PTSD trip( Buffalo VAMC) he was able to get the operator to call me ( he always seemed to remember our phone number, but he could not see the street signs well  and couldnt describe his whereabouts and like all the other vets in the inhouse group, he looked like a Vietnam vet, and he said no one passing the VAMC on the street entrance would help him when he asked them where he was. The VA Team Leader  MSW suddenly got on the phone and said Dont worry, we found him!

It is things like that which can prove housebound. Plus the VA van had to take him to VA day care at the local VA.

They mentioned both theories of SMC S in the decision but I dont know which one they used.

[air1]

If you ate getting 100% pay rate why continue to apply for more. You get health care and the continue appeals after 100%or more hurts other servicemen who have to wait years because people with 100% are still filing claims or appeals.I sorry for your health issues but when is enough enough.