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]

It also looks like you were also  a "no Show" for a TDIU exam.....maybe I am not interpreting that part of the decision correctly.

Others will opine on the downloads.

[Jamezam]

Why should veterans be forced to attend more exams, when said exams were already previously conducted within months of the newly requested exams? Especially when there are VA contracted examiners much closer! And, they informed me there wasn’t even appointments available besides the hearing test.

Why should veterans be forced to contribute to their already prostrating migraine headache and chronic pain? Can veterans be expected and forced to increase the pain they have 24/7, when exams are unreasonably far away?

I’m sure others will opine about if your exam is thousands of miles away you should still attend exams. Again, no exams other than a hearing exam was scheduled. How does one miss non-scheduled exams?

I terminated my POA because they were not working on my behalf! 

[Jamezam]

On 2/21/2020 at 9:18 AM, Berta said:

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.

I mailed NOD to VARO and BVA. The attorney never bothered to guide/assist me with any VA claims, appeals or BVA.

Edited February 23, 2020 by Jamezam

[broncovet]

Berta is correct.  "No show" to a c and p exam is almost akin to sending VA a letter to request withdrawal of your claim.  We dont know what reason(s) VA had to request an exam, but when they do, we have to show up or expect a denial.  

A C and P exam, in the decision maker's opinion, is required because there is medical evidence not documented.  There may have been a mistake in one or more of the previous exams, or, the decision maker simply was lacking evidence he thought that a C and P exam could fix in your favor.  

Like it or not, if the VA calls for an exam, you need to go or expect to be denied.  

Its not difficult to understand the attorney not being interested in persuing a claim where you refused to attend a c and p exam.  If the exam was at an incovienient time, then you can reschedule, but we NEVER suggest skipping a c and p exam.  Rememeber, VA is looking for a way to deny, and you just gave them a big reason to deny: No show for an exam.  

You will need to fix this, in my opinion, to get benefits.  To do that, you will need an IMO/IME to supply the evidence which was missing.  To find out what was missing, you need to go through your cfile and first check Caluza elements for each issue claimed.  

As Berta explained, SSDI is great evidence "but only if" your SSDI letter awarded benefits due to conditions for which you were SC for.   

To get tdiu you have to document "that you are unable to maintain SGE due to Service connected conditions".  If the reasons in the SSDI letter for your award are NOT service connected by VA, then the SSDI letter wont help you.    You may "also" have to provide evidence that retraining you into a new job is not feasable for you.  Example:  You have bad knees and you work in a warehouse.  Your kness prevent you from doing this job.  But, could you be retrained into a "sedentary" work position, such as a computer programmer?  This may take a voc rehab opinion.

Bottom line: You are probably going to need an IMO to win this, based on what you posted.  

Its possible the BVA could remand and order another exam, but there is something in the regulations that states you have to cooperate fully in providing the VA the requisite evidence.  YOU dont have to attend C and P exams, and you dont have to sign a release of information..BUT, if you dont do these things, the VA consistently denies.  

Like yourself, I dont like telling the VA "every single detail" about me.  There are things I would like to keep private.  But..make no mistake..VA wont award benefits if you dont cooperate and provide evidence.  VA benefits come with a cost.  We have to give up our privacty to VA.  Thousands and thousands of VA employees can/do read our private medical evidence to decide whether or not to grant our claims.  We dont have to like it, but we do have to comply.  

Edited February 22, 2020 by broncovet

[broncovet]

The SSDI determination is good...that its unreasonable to expect you to retrain.  But the unanswered question is "why" you are unable to work.  Are you unable to work due to SC conditions, or some other reason?  

[Berta]

The recent VA decision you attached above clearly states:

"We have been informed that you have missed the VA examination scheduled in support of your
claim. There is no infonnation presently indicating good cause for absence on the scheduled
appointment date. As a result, medical evidence that could have been used to support your claim
was not available to us. (38 CFR 3.655)
Please notify us when you are ready to report for an examination, or you may submit a disability
benefits questionnaire (DBQ) which must be completed and signed by a health care provider."

The infonnation" typo is theirs not mine.

 

The closest VAMC to you might well have a DAV Van, that could possibly transport you to and from the C & P exams.

Or you could take their advice as to the DBQ or get a private IMO/IME.

The lawyer you has is an expert in SSDI and also handles VA claims issues.

But when he got the copy of the decision I read here ,  I know he was concerned about the "No Shows".

There are a few VA Accredited agents here at hadit- forget who- but someone will know and post their contact info.

Perhaps you should contact an accredited agent to help you.

 

 

 

 

Edited February 22, 2020 by Berta