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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Kelly Severance

No question, Just an update on Appeal/Remand

Question

Just an update and some background to help anyone understand the attached correspondence from the AMO.  My husband's appeal for IU was remanded by the Judge in March 2018 decision (migraine increased to 50%, IU remanded).  He had previously applied for IU in May 2017 after his hearing for increased migraine rating.  He was denied  IU in December 2017.  We began to receive correspondence from the VA in April of this year (2019) requesting the documents that the judge ordered in the remand.  We faxed those in immediately.  Then no other correspondence for awhile.  Then in October, we received more requests (including medical records, 21-8940, 21-4142).  We uploaded all of that in ebenefits, including a letter from his primary care provider (private doctor) explaining that in his opinion, my husband is unable to maintain employment due to his SC disabilities.  

I emailed the AMO  a few days ago and received this reply:

Thank you for your inquiry. On October 29, 2019, Atlanta Regional Office (RO) determined that you recently submitted a letter from your provider opining that migraines, PTSD, and Tinnitus makes you IU. Previous development was conducted in October 2017, but the evidence indicates your status may have changed. So, Atlanta RO needed additional development. Thank you for responding to their development letter. On December 12, 2019, your case was assigned to an administration team within Atlanta RO for appropriate action. Please contact our office if you need additional assistance.

 
This reply seems hopeful.  I just wanted to update!

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When the board remands a case it means that more development is needed.  In the case where a remand is made it is sometimes years and the VA needs to send you to a new C&P to determine your current disability.  Make sure that they keep your original date of IU.  Sometimes they will try to make the date of IU to the date they did a new C&P.  After a decision is made on the remand you have the right to send your case back to the BVA.  Please do this as sometimes if they have changed your disability date to the date of the most recent C&P the BVA will change it back to the original date, you can request this when sending your case back to the BVA.

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16 minutes ago, vetquest said:

Make sure that they keep your original date of IU.  Sometimes they will try to make the date of IU to the date they did a new C&P. 

In my case after a BVA win the RO tried to make the effective date the date the BVA granted my appeal instead of the original date (BVA win 7/2/2019 - original date 7/2015). I had to file a HLR which they quickly corrected the effective date.

As Vetquest stated make sure the correct date is given.

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Posted (edited)

Well, yes.  Did you fill in a TDIU form and send it to VA?  They may or should have sent you one.  Dont count on the VA to do that, tho.  The VA doesnt care about your money...they would prefer you die and never apply.  So you should send in the 21-8940 (tdiu form) "even if" VA did not send you one.  You can get them online. 

 Make sure you get the most recent form, VA has "on the spot seizures" if you use an older outdated form.   If the VA has "on the spot seizures" of your claim, you can guarantee it will be delayed AT least 6 months, (while they write you a letter and ask you to send in the correct form), or worse.  You dont even want to know what the "or worse" is.  (The VA has an excuse to "close" your claim, and then hornswaggle your effective date even if you eventually win it). The results of using an outdated form can be "so bad" that I can not even talk about it in mixed company, but, trust me, you dont want to find out how bad it can be.   

Edited by broncovet

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4 hours ago, vetquest said:

When the board remands a case it means that more development is needed.  In the case where a remand is made it is sometimes years and the VA needs to send you to a new C&P to determine your current disability.  Make sure that they keep your original date of IU.  Sometimes they will try to make the date of IU to the date they did a new C&P.  After a decision is made on the remand you have the right to send your case back to the BVA.  Please do this as sometimes if they have changed your disability date to the date of the most recent C&P the BVA will change it back to the original date, you can request this when sending your case back to the BVA.

Vetquest, thank you for your reply.  Yes, we were concerned about filling out a new 21-8940 form for the very reason you listed above.  He filled out one in May 2017, and it was denied.  When the BVA made the decision to increase the migraines (on appeal) the judge took jurisdiction over the denied IU (as he stated he would at the hearing in April 2017), but then remanded it for further development.  So in October of this year, when we received correspondence (the letter said they were working on our appeal) from the VA requesting another 21-8940, we were confused and of course worried that, if granted, the EED would be from the newest form (Oct. 2019) instead of May 2017.......but for fear of being denied, we complied with all of their requests, including private medical records that we had already faxed in.  

We will, of course, have it sent back for an EED if they grant based on Oct form.

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4 hours ago, broncovet said:

Well, yes.  Did you fill in a TDIU form and send it to VA?  They may or should have sent you one.  Dont count on the VA to do that, tho.  The VA doesnt care about your money...they would prefer you die and never apply.  So you should send in the 21-8940 (tdiu form) "even if" VA did not send you one.  You can get them online. 

 Make sure you get the most recent form, VA has "on the spot seizures" if you use an older outdated form.   If the VA has "on the spot seizures" of your claim, you can guarantee it will be delayed AT least 6 months, (while they write you a letter and ask you to send in the correct form), or worse.  You dont even want to know what the "or worse" is.  (The VA has an excuse to "close" your claim, and then hornswaggle your effective date even if you eventually win it). The results of using an outdated form can be "so bad" that I can not even talk about it in mixed company, but, trust me, you dont want to find out how bad it can be.   

Thank you Broncovet for your reply.  To answer your question, Yes, we did file in May 2017, it was denied and then added to the appeal for the migraine increase at his hearing.  In October, they did send us a new form and we did complete the form they sent and upload it into ebenefits.  Hopefully the form they sent was the most recent!  I would HATE to have more delay because of a dated form......  😞

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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
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    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
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