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Advice requested...

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Jamezam

Question

This post is about seeking the best advice for my next step(s). I'll try to be as succinct as possible, however, we are talking about the VA compensation process.  

I received a BVA decision in December 2018, most appeals were denied, however, the important one’s, back increase (40%) and SC for migraine headaches, although zero percent, were granted and the BVA judge also stated:

TDIU: VA treatment records have raised the issue of TDIU as part and parcel of the claims for increased rating; the Veteran has submitted several records indicating findings by VA that he is not employable at present due to his service-connected disabilities. This claim has not yet been adjudicated, and further, in light of grants of service connection and increased rating herein, required additional development.

I currently have a total rating of 60% and the VARO TDIU decision states:

Entitlement to individual unemployability is denied because you have not been found unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. This case has not been submitted for extra-schedular consideration because  the evidence fails to show you are unemployable due to service connected disabilities. (38 CFR 4.16).

I received a fully favorable decision for SSDI by the Social Security Administration and VA Vocational Rehabilitation and Employment Services States:

After carefully reviewing the evidence, I have determined that it is not reasonable to expect you to be able to train for or get a suitable job at this time.

I had a VA/social security attorney, whom I felt was not meeting my needs as there was very limited communication on their part, I’d filed a complaint with them letting them know, I didn’t need hand holding, however I do expect my representative to take action on the BVA decision, appeals, CUE, etc. It seemed like they weren’t interested in working on my behalf, and I kind of felt like they were just waiting for a positive VA decision so they could get paid. I am completely aware VA things take time, and I’ve been battling the VA for three decades now.

Anyway, I decided to contact CC&K and they informed me they aren’t interested in taking my case. I’ve already filed a NOD and I have no idea what’s going on with the VARO remand response to the BVA.

I’m almost sure, I can win an increase for my migraine headaches rating and entitlement to TDIU via pro se representation. However, I would love to have some assistance and not sure if I should keep contacting attorney’s, VSO, forum buddy, or go on my own. I’ve only had one attorney in all the years I’ve been pursuing my VA compensation rights, my previous VA claims were won on my own, and I’m almost positive both my SSDI and BVA claims were granted without any assistance from the attorney. They got their VA 20% and SSA $6,000, so I figure were good and it was time to terminate our agreement and move on.

Thanks in advance…

 

 

 

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  • HadIt.com Elder

broncovet 

quoted

''  If you get the exam rescheduled, then file a supplemental claim "with new evidnence" and explain you did not get notice of this c and p exam.''  

 

why would he need to get new evidence if the evidence he has was not consider? it can't be considered if he had no C&P Exam?

I Still don't think he needs to hire an attorney just to look in his VBMS?

Why can't he use the VBA? FOR THAT AT NO COST.

Now I need to look into my VBMS TOO but I'd need to look closely for what I need and they more likely won't let me do that   to look for what I need  EED ect,,ect,, exams ect,,ect,,  that could take a while  so they may not let me use or open my VBMS for that reason.

.but just to look to see if and when a C&P Exam was scheduled  they should be able to do that.

I remember a few years ago I went to the VBA office and requested my C&P EXAM REPORT ...THE VSO TOOK ME BACK TO HIS LITTLE CORNER OFFICE AND I GAVE HIM MY CLAIM# and or SS #   HE LOOKED ON HIS COMPUTER AND FOUND THAT EXAM REPORT  MADE A COPY & GAVE IT TO ME  AND OFF I WENT.

Edited by Buck52
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  • Content Curator/HadIt.com Elder

Look at this M21-1 article extract:

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000076269/M21-1,-Part-III,-Subpart-iv,-Chapter-4,-Section-N---Neurological-Conditions-and-Convulsive-Disorders#7e

  Quote
Severe economic inadaptability denotes a degree of substantial work impairment.  It does not mean the individual is incapable of any substantially gainful employment.  Evidence of work impairment includes, but is not necessarily limited to, the use of sick leave or unpaid absence.
 
Note:  In cases where migraine headaches meet the criterion of severe economic inadaptability and, additionally, the evidence shows that the claimant is incapable of substantially gainful employment due to the headaches, referral for consideration of an extraschedular award of a total evaluation based on individual unemployability is appropriate.
 
Reference:  For more information on severe economic inadaptability, see Pierce v. Principi, 18 Vet.App 440 (2004).

 

The migraine criteria does state "With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability", but the M21-1 article overrides that.

The VR&E finding and your SSDI finding (if it was attributable to SC disabilities) should warrant consideration of  extraschedular IU.

It would probably be a good idea to connect the dots clearly for them and don't hesitate to use their own adjudication manual M21-1 to fight back.

 

I included my blog article on migraines which might be helpful.

 

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Thanks Vync,

I don't know how I or other Veterans are still sane after ALL the absolute BS and hoops the VARO make us jump through!

I filed a NOD last month and I've begun to work on an additional NOD that's currently six pages. My current NOD includes CFR's and adjudication manual M21 information. It's just that when I begin working on this stuff, I become easily discouraged and burnt out. The battle just never seems to end. After 28 years I finally get a 20%,rating, then 40%, then with the BVA decision 60%. And, on top of that, my SSDI claim that is verbatim to my VA SC disabilities and the VR&E letter stating After carefully reviewing the evidence, I have determined that it is not reasonable to expect you to be able to train for or get a suitable job at this time.

And yet, I still have to fight these completely idiotic, moronic VARO personal and spend more time responding to their stupidity, when all I want is the proper migraine headache rating and TDIU.

Anyway, I guess I may need to take a break for a couple of days, to gain the strength and motivation to begin my fight back. Your post is entirely beyond helpful, as I AGAIN sent them a copy of the VR&E letter, stated my VA SC disabilities are the same as the one on my granted SSDI claim, and I sent them three years of pain and migraine headache diaries.

That MR-21 you referenced is something I hadn't seen and with this year's Ray vs. Wilkie CAVC decision, I guess it's just a matter of patiently working on my my supplemental NOD.

Thanks again my friend...

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The real key here is to never give up.  If your migraines keep you in bed and limit your activities then I say go for it.   There are times when VA will simply deny a veteran's claim and the veteran would have to fight.  I personally had to fight VA for 2 decades in trying to get them to look at evidence in my C-file.  When my claim got to CAVC, my attorney and VA attorney remanded my claim and never went before a judge.  After the joint remand my claim was granted but the local VARO low balled my rating so back to BVA I went and finally got new remand with a new effective date.  I admit that if VA gave me a correct rating 20 years ago I would be in a better place but this is the hand we are given to play so we have to play with their rules.

Edited by pete992
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As for extrascheduler consideration for migraines, this might be a bridge too far.  I lost my job due to my service connected migraines and a SSA lawyer stated I could not work any job due to my lost time from work and I still was denied extrascheduler for migraines in trying to get TDIU.  The VA just does not consider migraines a serious disability.  I do not know why but that is how they roll.  The max for migraines is 50%. 

I would like to say that if you have been to the BVA before you should be able to do it again and win with your evidence.  Another part of me says that a lawyer has access to the BVA that we do not and for complex claims that might be necessary.  I will only say as pete has said to never quit, never surrender.  These guys will B.S. us and lowball us all day long and would get away with it if it were not for the BVA and CVA.     

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You stated:

 "And, on top of that, my SSDI claim that is verbatim to my VA SC disabilities and the VR&E letter stating After carefully reviewing the evidence, I have determined that it is not reasonable to expect you to be able to train for or get a suitable job at this time."

If the SSDI award is solely for your SCs, and if the Voc Rehab denial is documented by Voc Rehab,

as solely due to your SC disabilities, and 

If the VA had evidence of your SSDI award ( they send an authorization form, ad obtain SSA records,

and also if they had evidence of your Voc Rehab denial, documented as  due to SCs,

(Lots of hypotheticals,)but if all of those above are true then you have basis for a CUE under 38 CFR 4.6.

Can you scan and attach the decisions here.Cover your C file, name address prior to scanning it.

We need to see their rationale and the evidence list.

 

 

 

 

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