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.  

      

[Berta]

Any veteran has a right to apply for more comp.

And specifically any 100% veteran.

Can you spell SMC?

They also can appeal or file CUE on any decision that has the wrong EED.

Your logic is  all wrong.

[Buck52]

air 1

All Veterans should file a claim if he is eligible from his/her military service  or has a secondary condition from one of his S.C. Conditions!

There are 2 good reasons to do so

The main reason to file a claim when your already 100%service connected...is to help build up your % and of course some ratings meet the criteria for the SMC Compensation.

And the second reason  some times a Veteran gets a Proposal to reduce his rating... from what ever reason, usually from a VA Dr that says your S.C. Disability has improved or the Veteran stops getting treatment, the over 100% ratings will help the Veteran from being reduced passed his 100% rating.

if that happens it would be devastating to say the least  so All Veterans need to watch this.

I don't think it makes a bit of difference rather or not a Veteran files a claim if he is 100% or just 10% and slows another veteran claim down...  they look at our evidence and rate accordingly,   its when they get to your claim that matters and each veteran claim is different.

[Carl the Engineer]

And,

A young 25 year old veteran rated at 100% for PTSD, dies of a heart attack, no DIC

Same young 25 year old veteran rated at 100% for PTSD and an addition 0% or heart disease, dies of heart attack, wife gets DIC.  A little over $1200 bucks for the rest of her life.

Nuff said,

Hamslice

 

[paulcolrain]

bronco you have been there for me in all the questions i have needed so,,, i by no means am an expert but ive spent last 7 years looking at past bva decisions regarding eed. and i think ours are similar.

look at this post i got

when are you NOT in appeal status?

 

the reason i say look at is because,,, in 2004 they couldnt find any at all STRs... then all of a sudden they found them in 2009.... my latest bva award gave me back till 2004 but the ro still insitsts 2009 cus in there records it shows i claimed reopen/ increase.... i never did.... they just found records then awarded and any correspondence i gave to them after was recorded as wanting increase not recorded as argument for initial grant of service. dont forget the concept of KISS.....( KEEP IT SIMPLE STUPID) LOOK INTO YOUR RECORDS AND FIND THE ANSWER...

Edited August 24, 2017 by paulcolrain

[broncovet]

Thanks, Paul.  This is good advice.  

[treysnonna]

Broncovet, may I ask what your hearing disability percentage is? And anyone else willing to share.  My husband was in Vietnam  and he is very hard of hearing.  He finally got hearing aids now.  But honestly they do not help unless your setting right in the room with him.  I know he had some kind of fungus in his ears in Vietnam.  He has had two surgerys on his hears.  And this is the biggie.  In 2002 he put in for a job  with tsa and failed the hearing test.  He had to get a waiver from the va to get hired.  He just put in for an increase for hearing and at the same time an increase for neuropathy in his legs.  They approved 10 for the right leg and nothing for the left?  That was on ebenefits under disabilties.  And he did not get increase for hearing at all.  He gets 10%. He would have been better off if he had filed iu back in 02.