Appeal ? for the heavyweights

[SigBnSoldier]

Dear Hadit-

EED granted at BVA, sent to RO for rating.

RO rated PTSD w/Bipolar Disorder at 70% effective 11/20/2003

I believe IU should have been awarded as my SSDI records and award reasonably raise the issue of IU which wasn't considered.

Will this need to go to CAVC or back through the NOD process at the RO?  I'm getting conflicting answers from DAV and peggy etc...

 

P.S. SSDI was awarded 5 months prior to 11/20/03 solely on my service connected bipolar.

 

Edited March 12, 2018 by SigBnSoldier

[Berta]

The top of Page 9 of the BVA decision says they awarded 100% Nov 29, 2014 for the psychiatric disability.

 "I am super grateful for the huge retro payment, but feel it's a lowball because I think they should have also granted IU as I was awarded ssdi 5 months prior to the 2003 va denial, solely on my service connected disabilities.  Anyway, here's my BVA grant, "

I don't get the TDIU-70% either.

Also I did not see in the BVA decision any mention of any SSA award.

If the VA never received notice of this award , they did not have to consider it.

Are you able to scan the recent  decision from the RO ,that explains the retro, and attach it here? (cover C file # name prior to scanning it) (maybe the $$$ hit the bank before that letter has arrived)

Something does seem odd here---an SSA award solely for service connected conditions, should usually garner 100% SC- and the BVA award does state the 100%.........

BY THE WAY:

" This was won because I overcame presumption of regularity, VA did not inform me of rating denial back in 2003."

You had quite a victory on that!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

I commend you for doing all you could to get this rectified, while dealing with so much personally.

And we sure never see many vets who succeed on Presumption of Regularity.

Your BVA case should help other vets if they have the same problems you had.

Thanks for attaching it here!

Did you ever formally file for TDIU?

I know that is an odd question, because they don't award TDIU without a claim for it- but something is wrong here---

Yet, as long as the cash is correct -something you need to check over,-maybe their recent retro award will make some sense.

Copngrats-you did an exemplary job on all of this!

 

 

 

[broncovet]

Congratulations:

This bears repeating for other Vets benefit:

Quote

This was won because I overcame presumption of regularity, VA did not inform me of rating denial back in 2003."

 

[SigBnSoldier]

2 hours ago, Berta said:

The top of Page 9 of the BVA decision says they awarded 100% Nov 29, 2014 for the psychiatric disability.

 "I am super grateful for the huge retro payment, but feel it's a lowball because I think they should have also granted IU as I was awarded ssdi 5 months prior to the 2003 va denial, solely on my service connected disabilities.  Anyway, here's my BVA grant, "

I don't get the TDIU-70% either.

Also I did not see in the BVA decision any mention of any SSA award.

If the VA never received notice of this award , they did not have to consider it.

Are you able to scan the recent  decision from the RO ,that explains the retro, and attach it here? (cover C file # name prior to scanning it) (maybe the $$$ hit the bank before that letter has arrived)

Something does seem odd here---an SSA award solely for service connected conditions, should usually garner 100% SC- and the BVA award does state the 100%.........

BY THE WAY:

" This was won because I overcame presumption of regularity, VA did not inform me of rating denial back in 2003."

You had quite a victory on that!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

I commend you for doing all you could to get this rectified, while dealing with so much personally.

And we sure never see many vets who succeed on Presumption of Regularity.

Your BVA case should help other vets if they have the same problems you had.

Thanks for attaching it here!

Did you ever formally file for TDIU?

I know that is an odd question, because they don't award TDIU without a claim for it- but something is wrong here---

Yet, as long as the cash is correct -something you need to check over,-maybe their recent retro award will make some sense.

Copngrats-you did an exemplary job on all of this!

 

 

 

VA was aware of SSDI award back in 2003, thats the reason they disallowed the pension grant, my income was too high.

[broncovet]

Last year, I won TDIU during the period of 2004-2006, even tho I was 100 percent prior to applying for TDIU.  

(It was an appeal from the CAVC, which was remanded to the board).  

The earlier VARO decision had stated that TDIU was "moot" because I was awarded 100 percent.     I disputed this, arguing that TDIU was "not moot" because an award of tdiu could result in an earlier effective date for 100 percent.  

The Board agreed with me, specifically stating that tdiu was "not moot", and remanded it back to the VARO, which the VARO denied.  

Finally, I won TDIU with a favorable voc rehab assessment (IMO for voc rehab), at the Board level.  

I was represented by an attorney in Dallas Texas, and there is no doubt I would "not" have won this without an attorney.  

The attorney fees were negligible mostly because I hired the attorney at the right time, which is after a board decision.  The attorney got a Joint Motion for Remand at the CAVC AND my attorney fees paid by EAJA.  (This often happens at the CAVC level, when the VEt wins "at least a remand" at the cavc).  

[SigBnSoldier]

Broncovet,

You are clairvoyant I think.  My resistance to attorney is that I've avoided them up through the BVA because of 30% fees I didn't want to pay.  I previously spoke (2years ago) with Katrina Eagle in San Diego and she herself told me she thought I had a good understanding of my appeal and I might want to go it alone rather than give her 30% of such a big award.

So a grant of TDIU back to 2003 vs. a grant of 70% is another large award.  But you encourage me here, maybe I'll call her again. 

[broncovet]

Some years ago, the Chief Justice of the Supreme court, Roberts was "shocked" to find out that VA's position was "substantially unjustified" in more than 50 percent of the cases.  

The "substantially unjustified" is the term used when they award the Veteran EAJA fees.  Remember, the Vet does not win every time, (your attorney fees are zero if you lose your case), but when the Vet wins, EAJA fees are almost automatic at the CAVC level.  (Even with a remand).  

The CAVC "watches over" the attorney fees for Vets.  The fees must be "reasonable".  And, the attorney is prohibited from collecting EAJA fees and then collecting it again from the VEteran.  

The court pretty much considers 20 percent as "reasonable".  If the attorney charges 30 percent and wins, he will have to explain why he deserves another 10 percent, such as the case was extremely complex, and took many hours of the attorney's time.  

As an example, my attorney collected EAJA fees of 6000.00.  Later, I got an award from VA, about 38k.  Here is how it went down.  38k times 20 percent is 7600.  However, the attorney already collected 6000 from EAJA so that has to be deducted from the 7600.  This means I paid about 1600 in attorney fees, and EAJA paid 6000.  Remember, I had virtually NO chance of getting the 38k on my own..I know as I had tried for more than 10 years.  So I would spend 1600 to get 38,000 all the time. 

The key is  to hire the attorney at the right time.  And the right time is immediately after a BVA decision.  Appeals have to be filed in 120 days to the CAVC, so you need to act quickly after a BVA decision.