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?  

 

[broncovet]

Ditto for Tammy Duckworth.  She is 100 percent, worked as a "high up" for VA, and is now "Senator" Tammy Duckworth:

https://www.duckworth.senate.gov/

[Kelly Severance]

Berta, Here is the docket number: 14-28 755

At the time of the hearing, (this was in april, 2017), my husband had been put on "Notice" at work and presented that paperwork to the judge.  He just recently received another letter in from the VA hospital ordering him to return to work or call ASAP.  But no separation letter or termination.

His VSO also suggested that he have a physicians statement that he could no longer work due to his SC disabilities.  We have an appointment this week with one of his private physicians to hopefully get that.

He has filed the 21-8940 formally.

His total rating with the migraine increase is 70%, so that is the reason that the 100% schedular is not a possibility right now.

Edited June 17, 2018 by Kelly Severance

[Berta]

Is this the Remand:

https://www.va.gov/vetapp18/files3/1813381.txt

If so does he have proof of this statement:

"  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."

If so, and if that info was on the 21-8940 form -then that would change my opinion-they would consider him for TDIU.

Edited June 17, 2018 by Berta
added more

[Kelly Severance]

Broncovet, I think your suggestion to go to his employer about termination will be our next step.  Our VSO advised him to NOT resign as she thought it would hurt our chances of TDIU.

[broncovet]

I agree with your VSO BUT, a resignation letter like the following may suffice:  

Quote

 

    Dear Employer:

     I have enjoyed working for your firm for ____years.  However, after talking with my doctor and my Voc rehab specialist, I am simply unable to work here anymore due to service related conditions.   My doctor has already explained Im unable to work, so there appears no point in continuing my employment.  

     This isnt a "voluntary" resignation, but because Im "under doctors orders".  

     (You can put a short paragraph here explaining how its not fair to the other employees when you have to call off, because of still another migraine, or a PTSD anxiety attack.  For Veterans who have ever had suicidal ideations, this may be a good time to mention that.)  

 

Of course, I wont recommend you say anything like this UNLESS its factual and backed up by evidence. (documented).  

      You see, you probably took some medical tests to work there..maybe a drug test, etc., etc.  Also, if you do something like workmans comp, the doctor may impose certain restrictions, including that you cant work there.  

      The VA cant continue your employment, IMHO, if you are unable to perform your duties.  That is a determination made by your doctor, not your boss.  

     In the NFL, they call it "PUP".   (Physically unable to Perform).  You can not go back to work in the NFL until the doctor lifts the PUP status from you.  

Edited June 17, 2018 by broncovet
add more

[Kelly Severance]

Berta, YES!  That is his BVA decision letter. You are quick!  I was just talking to him about the 21-8940 form (he has a migraine right now, so he is not in a "talking" mood) but he did say that he filed that at the VARO on the day of his hearing.  He does not have a copy of it, but surely his VSO does (so I will email her tomorrow); so I do not know if they included the judges recommendations in the "remarks" part of that form.  We do have the transcripts from the hearing, though.