Advice requested...

[Jamezam]

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…

 

 

 

[Berta]

The BVA remand does not mention the SSDI award,or Voc Rehab info-

but you said they had that info-so they did commit CUE if they never considered it.

You said:

"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 agree and dont forget, the put us widows through lots of BS as well.

The VA wants us to become frustrated angry and depressed because they know all that compounds the disabilities  veteran's have.

You said you filed a NOD etc but I feel you have the basis for a very valid CUE.

Many of my CUEs are searchable here and most f them involved violation of 38 CFR 4.6.

"§ 4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

And I won them all. But have 2 more pending.

Your SSDI award and your Voc Rehab denial are "elements" that strongly hold "probative value" to your claim.

As the reg states any element of probative value must be 

"thoroughly and conscientiously studied by each member of the rating board in the light of the established" etc

(0f course that depends on if the 'member of the " rating board"

can read.

You can write a brief CUE , as within the templates here in the CUE forum, stating they violated that above regulations enclse again and add to th letter as enclosed the SSDI and VOC Rehab evidence and put Attention to : then the alphanumeric that is n the upper right hand side of the decision.

This is the idiot who violated 38 CFR 4.6 ( I filed one of these types of  CUEs with IRIS years ago as well as my RO. You might get a fairly fast decision and not have to even appeal this at all.

Also Put into the letter and enclose any proof you have that you sent this info to them, such as a USPS Tracking printout if you sent it Priorty.

I had one claim at the BVA and the BVA noted ll of the evidence (i the Cfile) that VA had ignored.BVA awarded.

But I also had a wrongful death FTCA and 1151 claim and the VA ignored 12 copies of my husband's autopsy, and failed to even send it t0 the General COunsel, when OGC requested all available records at VA in the medical files, and my C file, and any other evidence.

I was not worried about the 1151 claim at that point, but made a few phone calls to VACO and the OGC and they were shocked to learn that an autopsy had even been done and by ignoring the autopsy one f many 1151 denias I got had a C & P doctor state my husband "possibly died from an overdose of cocaine.

 

He didnt even drink and was an Organ donor and the autopsy revealed only VA meds in his system.

I know all about VA BS,  and their lies, and VA's deliberate attempts to denigrate our claims.

The good people at VA have to work with these idiots but we can all overcome their erroneous denials, with evidence, and without letting them get us down. I know that is not easy to do but there are many hardcore claimants like me here, and we  have refused to allow these VA incompetents to prevent us from continuing the fight, until we succeed.

 

 

 

 

 

 

 

 

 

 

 

[Vync]

@Jamezam I believe you are on the right track. I recommend taking it in bite size pieces. I usually start with an outline detailing my primary goals. Then I work on each aspect a little bit at a time so I don't get burned out on it.

After dealing with the VA red tape since 1995, I realize that the VARO workers are under a lot of pressure to turn over as many claims as possible in the shortest amount of time. On one hand, they claim to have reviewed "all evidence of record", which is practically impossible, but on the other hand they make obvious errors and overlook evidence. If we had access to VBMS, it would be great if we could just go in and tag specific documents that are pertinent. They could then just review, verify, and approve. But that makes too much sense.

For M21-1, I just have a shortcut to it and then search for key terms as necessary. I like that it provides links to other articles, regulations, and laws. Of course, it also links to non-public internal resources that we cannot access.

[Jamezam]

Thank you everyone,

I'm working very slowly this morning. Here are the documents I mention in my post:

VARO Decision No SS 12.11.2019.pdf

 

 

 

 

Edited February 27, 2020 by Jamezam
Additional uploads

[jfrei]

I have to say my VA records similar to yours where they lowballed my sTBI at 70% but gave me IU 100% made it P and T if that makes any sense. It took me six years to get jt corrected and my 0 for my migraines took 8 years to finally get bumped up to 50% but since they had made me 100% backdate to when I filed when I fixed my TBI I didn’t worry about the EED issue that and like you I was granted SSDI for them already which is one of the factors that made my increase very quicker. I was just concerned on getting the correct rating after 8 years for my headaches, but the way the two are worked they won’t hold each other up. As far as it was concerned in my case I had an active appeal for the Permanent and total when I filed an increase. The increase went in light speed in talking about 2 months for the 0 to 50% jump. The Permanent and total appeal was apparently something they missed when they made me 100% scheduler. I walked into the RO with my IU P and T award and I asked the Head officer in charge at the RO to ask him the question and he came say my paperwork said they didn’t see my old decision from Philly and the next day new decision 100% P and T. I also live 10 minutes from my RO makes it easy not sure if it’s as easy for you. Lost in my head sorry so if you have an appeal already in the works I would file an increase and if it’s black and white get the increase that’s probation weight for the BVA to look at that’s just my advice.... get it right the BVA will Correct the EED they have never failed me shocking I am a fan of the boards decisions usually 

[Berta]

The decision is sure not what I expected.

Any "NO Show " for a C & P exam is serious.

The Evidence refers to SSA as to your SSA "profile" but I do not know if that "profile" included your actual SSDI records.

I saw no evidence that showed they considered your Voc Rehab denial at all.

The Voc Rehab letter is more supportive but dated before I assume you got the 60% SC.

The Voc Rehab letter has the email for the Voc Rehab  person who made the decision.I think you should contact them by email-to see if they would provide a better decision- with the proof of the 60% and your actual SSDI award , but then again

the  "no show" is  very concerning.

I will try to read everything again-dont have time to at this minute  but others will chime in as well.

 

 

Edited February 21, 2020 by Berta

[Berta]

I just read the NOD- it appears you have an attorney helping you.

It also appears that you sent info already to the BVA and I assume the attorney you have will be handling that.