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?  

 

[Kelly Severance]

Broncovet,

The letter is a good idea. Thank you for the template.  I think our plan of action will be to go to the doctor this week and work on the physician's statement supporting unemployability due to SC disabilities and then hopefully take that form to his supervisor with a letter as you suggested.  Then .....send it all in as evidence.....That seems like a good start.  Thanks so much for pointing us in the right direction!

[vetquest]

Another thing that I have thought of is buddy statements.  When I was given IU the board remand chastised the VA for not referencing buddy statements.  These statements, on from my current manager, stated that I was no longer able to perform my duties due to my migraines.  Others stated how I was unavailable to work due to migraines and how my wife needed to pick me up from work because I had become incapacitated.

[Kelly Severance]

Good idea Vetquest.  That should not be a problem.  All of his colleagues could attest to his condition many days at work and leaving work early. I have had to pick my husband up many days from work over the last 5 years, and from Urgent Care (he ended up there many days and could not drive home).  Thanks for your help!

[Kelly Severance]

This is just an update for anyone following our case. 

* Our most recent IRIS inquiry revealed that the grant is still at the RO "pending" review ; and the remand for TDIU , which is at the ARC, is being prepared to be sent back to the BVA for a final decision (which means it was denied again by the ARC). 

* My husband has  filed for Medical Retirement and SSDI since the first post.  

* We finally got a letter from his physician stating that in his opinion, my husband is unemployable due to his SC disabilities.  However, we are not sure what to do with this letter because his file is in transition between the ARC and BVA.  

* We are at the 6 month mark since the BVA decision and the grant on migraine increase has still not been implemented (and no retro).

So that's where we are.  

 

[Kelly Severance]

Update to granted appeal:

I emailed our VSO today (first time since August).  I asked her if there were any updates to the granted appeal.  Her response is below: 

Your current appeals status is listed as “Rating Decision Complete,” pending authorization.  On March 30, 2018, the VA implemented the Board’s grant decision. Once the VA has authorized your claim, you will be notified by the VA by mail. It is a process. One that I cannot supersede.

So the Judge granted the appeal on March 7......the VA implemented on March 30.........I'm confused.  I thought implementation meant the rating change but we have not seen that yet.  I guess the true implementation is when the VA authorizes it?  Any thoughts?