Our Appeal Story, Timeline, and Question on Remand

[Kelly Severance]

Hello everyone and thanks for your time on this post,

I apologize for the LONG post.  This dates back to 2005

* My husband's original claim for SC on migraines and PTSD was in 2005.  He was denied. (Gulf War Vet in 90-91)

* he appealed and in 2006 he was granted SC on both for 30% each in 2011. From the BVA decision to the VA implementation, it took 14 months!!! Crazy!

*He then appealed for higher % in migraines within the year (very debilitating and misses 50% of work hours at that point in 2012)

* He had his hearing with VLJ in March 2017.  During the hearing for increase on migraines, the judge suggested filing for TDIU because he had leave statements from work.  At this point, he was able to work about one day a week.  The Judge stated that if he granted the 50% on migraines, it would bring his total rating up to 70% and this would help meet the criteria for TDIU.

*He filed a claim through VA for TDIU within a month of hearing; he was denied because he was still "employed" at the VA hospital (he is a nurse), even though he only earned $14, 000 in 2017.  Because he is a disabled veteran, the VA has not fired him due to inability to come to work most days.

* In march 2018, we received a decision packet from BVA.  The judge granted his 50% on migraines all the way back to 2005 (original claim date).  In addition, he "took over" the TDIU claim and made it a part of his appeal.  The judge remanded the TDIU.  The remand instructions ordered the VA to obtain some additional medical records that were not included in the evidentiary record and some that were from 2017-2018.  No mention of C&P.

* It has been over 100 days since the BVA decision and there has been no implementation by the VA to grant the increase in his rating on migraines, nor have we seen any retro pay.

* To date, he has not been able to work a day since Dec 2017, but he is still listed as "employed" as a nurse at the VA....so of course we are worried about that because I guess he is still considered employed.

*We have not received anything from the RO on the remand or anything that is going on with that.

*So that's our story....  Sorry it's so long, but I would be interested in anyone's take on our chances of getting IU based on my husband's situation and the judges "suggestion" to file TDIU, and the remand orders....

*Finally, what else could we do to improve chances?  

 

[vetquest]

I received UI for migraines and PTSD in 2017.  Personally in my belief, your initial appeal was denied and that probably has caused some of your issues, RO's do not like admitting mistakes. 

There is a wrinkle on remands.  The RO is not required to increase your husband's rating or pay back pay until the remand is completed by the RO.  A remanded case is supposed to receive top priority but that is not always the case.  You could look into filing a writ of mandamus in your case.  This informs the VA that the board has required them to expedite your case.  I am not sure exactly how this as done as a lawyer filed mine.  Maybe there is someone here who has filed one and can chime in.  Bertha maybe.

Is your neurologist willing to file a letter that your husband is now too disabled to work due to his migraines and PTSD?  This would also help in getting SS disability. 

I am sorta concerned about you getting a lawyer, you have done a lot of work yourselves and a lawyer would take 20% of the benefit he helps win.

I believe your chances are good, especially since the board seems sympathetic to your case.  

Edited June 17, 2018 by vetquest

[Berta]

"To date, he has not been able to work a day since Dec 2017, but he is still listed as "employed" as a nurse at the VA....so of course we are worried about that because I guess he is still considered employed."

Proof that he is no longer employed is needed by the VARO.

The HR division of where he was employed could probably state a letter to that affect for you.

I did file a Writ of Mandamus long ago and sent a copy of it to my RO. The court (COVA) denied the writ , as they do (probably 99% of the time) but it did get TOOBs (Thumbs out of butts)- at my RO and the award came fairly fast after that.

It might have been the same issue you have: *

 "The remand instructions ordered the VA to obtain some additional medical records that were not included in the evidentiary record and some that were from 2017-2018.  No mention of C&P."

Could those records possibly be SSDI records?

Does he get SSDI solely for his SC condititions?

Does he have Voc Rehab records that indicate at some point, that due to his SCs, Voc Rehab is no longer feasable?

Does the remand identify what those records are?

* what I meant there is that my husband had 30% PTSD and a SSDI award solely for PTSD yet VA said ( this was for an accrued claim- as he died before the claim was resolved) that the SSA refused to release his SSDI  records.

It was a blatant lie and only by calling the main SSA in Baltimore did I find out that VA had never requested them- yet they had his authorization form . They did obtain them and made a posthuous 100% P & T SC PTSD award.

(I probably rattled off all that in the writ-)

The BVA Ombudman's email addy and the BVA Phone # is here at hadit- under a search -maybe they could advice you as to what medical info is missing.

 

 

 

 

Edited June 17, 2018 by Berta

[Kelly Severance]

Thank you VetQuest for your response.  To answer your questions, His neurologist (origninally started seeing him though VA when they approved Botox) did complete paperwork (a DBQ, I think) that helped with his appeal by defining his as “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.”  So I think he might agree to another letter.  

I have read about a couple of cases in which the RO completed all remand instructions before settling the grant; however most cases I have read the grant was settled long before the remand....so I was hoping that would be our case.  In addition, our VSO as well someone at the VA (IRIS) said something to the effect that he was being paid back to 2005 on the migraines.  So this is why we were hoping for the retro on the grant in a more timely manner.

One of the paragraphs in the BVA decision letter under "Rating Principles" states..."In this regard, the Court has explained that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability resulting from service-connected disability rather than just a 50% rating..."

Did yours say anything similar to that?

[Kelly Severance]

Berta, thank you so much for your response!  We have not been sure how to tackle the proof of unemployment (as this was reason the VA denied his IU claim).  If the VA hospital has not fired him, what is the best course of action?  He has been under "sick consideration" since he started there and so I feel that they are very careful with him in that aspect.  Should he just officially resign?

He has never applied for SSDI.  I have talked to him about it, but he feels he will not get it, again, because he is still listed as "employed".

Here are his remand orders:

Accordingly, the case is remanded for the following action:

1.  The AOJ should ask the Veteran to identify any non-VA treatment related to his claim for a TDIU due to Service-connected disabilities since June 2005

The Veteran should be informed that the following treatment records are already associated with the evidentiary record:   (all of the treatment records that we took to hearing and submitted are listed)

The AOJ should undertake appropriate development to obtain all outstanding treatment records pertinent to the veteran's claim.

The Veteran's assistnce should be requested as needed.  All obtained records should be associated with the evidentiary record.

The AOJ must perform all necessary follow-up indicated.  If any records are not available, or a negative response is received, the AOJ should advise the veteran and his representative of the status of his records, and give the veteran the opportunity to obtain the records on his own.

2.The AOJ should obtain any outstanding VA treatment records to include from the XXXVAMC from October 2017-present and from the XXXVACM from December 2017-present.  All obtained records should be associated with the evidentiary record.

3.After the development has been completed, readjudicate the claim of entitlement to a TDIU.  If the benefit sought remains denied, provide the veteran and his representative with a supplemental statement of case, and return the case to the Board.

That is it.  It ends with the statement about expeditious treatment.

It is encouraging to know that your husband got SSDI on 30%PTSD, and I am so glad you fought for that!  On my husbands original IU claim, the VA did request SSDI records, but of course, there were not any.

[broncovet]

Ok, here is the deal:

    It "isnt enough" that he NOT BE WORKING (altho he DOES need to not be working to get TDIU).  Here is what else he needs.  If you fail to take notice of these things, below, your TDIU likely wont fly:  

1.  He needs a letter or medical notes from a doctor that explains, "The Veteran is unable to work due to SC conditions".    Many people are unemployed, for many different reasons.  The company may be in fiancial trouble, so they lay people off.  This isnt grounds for TDIU.  You must be unemployable, not just unemployed, as evidenced by your doctor(s). 

2.  He will likely need a Voc rehab assessment, if he does not already have one of these.  While this "probably" does not apply to YOU, you still need to show this anyway.  You see, lets say you are a forklift operator, and you get bad knees (service connected) and can no longer push the forklift pedals in.  Are you unemployable?  Not necessarily, its possible or even likely you can do sedentary work, such as become an accountant.    The reason (it "shouldnt") apply to you is because with PTSD and migraines, its not gonna make any difference..in other words you wouldnt do any better at being an accountant, than you would as a forklift operator because your migraines "prostrate" you enough that you cant go to work no matter if you are running a forklift or sitting and running a computer.    Still, my "Voc Rehab Assessment" was a "deal maker" and resulted in my award of TDIU, and it may also make the differnce with yours.  

     If you have favorable evidence (number one and 2), your TDIU claim should eventually suceed, as long as you are not working.  

     I suggest you go talk to your (old boss), especially after you have documented these 2 things above.  Explain your doc says you can not work anymore, and its impractical for you to transfer to a different area, because your voc rehab counseler nixed that idea, also.  Then ask him.  He will likely put in your termination papers, or ask you to resign.  He probably needs your position to "open" so that someone else can step in and do your job.  

      Check your cfile to see if the above is documented.  Dont take a chance on what you think the doc said, read what he says.  

Edited June 17, 2018 by broncovet

[Berta]

As I understand your follow up- he is still technically employed.

It is possible to work with a 100% "Schedular"'rating-

Both Max Clelland ( former VA Secretary)as well as Lewis Puller ( USMC -Chesty's son)

certainly were both 100% SC disabled but not TDIU. Clellan (sp? ) did a wonderful documentary on his SC disabilities-years ago when he was finally realizing the extent of his PTSD in addition to his triple amputee situation and other SC problems.It took him 2 or 3 hours to get showered and dressed for work at the VA.

Luckily he did not live far from Central Office.

Lewis , (Vietnam vet) worked at the VA Central office as an attorney until his tragic death.

My husband did not have a 'schedular rating' because he was 100% P & T  and unemployable per SSA-

who made their award completely based on his 11-12 years of VA records-VA had no way out on the 100% P & T.

The RO could have made the 100% SC P & T award in his lifetime.

He too worked for VA and I used some of that info ( personnel stuff) to support  his  claim.And for my wrongful death case.

It concerns me that the BVA stressed TDIU and not 100% schedular, but hopefully VA will consider 100%.

"Should he just officially resign?"  I cannot answer that question. 

"One of the paragraphs in the BVA decision letter under "Rating Principles" states..."In this regard, the Court has explained that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability resulting from service-connected disability rather than just a 50% rating..."

This is a court opinion and I think BVA thought your husband was not employed....

so did I at first-

can you give us the Docket # so we can read it here.

 

Did yours say anything similar to that? 

After the writ my only BVA decision was a claim for an additional malpractice issue that was an AO presumptive.

Everything else I won at the regional level.

What does the VSO say as to the TDIU issue- but that your husband still works for VA?

Has he formally filed the 21-8940 yet?