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…

 

 

 

[broncovet]

This has happened to other VETS:  They did not get notice of a c and p exam, then VA denied because they did not show.  I will advise you as I advised them:

1.  Timely file a NOD disputing the denial.  

2.  Contact your VAMC "especially" the name of the doc where you were "supposed" to show up, but did not get notice.  Tell them the notice was apparently sent to the wrong address and you "WANT TO RESCHEDULE" the c and p exam.  TO find out who/where the exam was scheduled you "may" need to look on your VBMS file, and, to do that you need an attorney or VSO with VBMS access.  

3.  You also may be able to find out who/where/when this exam was scheduled, by checking at your VAMC c and p office.  Try it at least.  Getting a copy of your medical file "may" show a c and p exam for Dr. xxxx on mm-dd-yy, where the doc said you were a no show.  Tell that docs office you were not infomed of the c and p exam, and can you please reschedule.  

4.  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.  

5.  Check your address on ebenefits/VAMC/ or whereever else you can find.  See if addy is correct.  

     I read a case where a Vet was a no show, and VA did not send the notice to the correct address.  They have to document they sent it to (your address), and you can ask for this documentation.  

     Its my opinion that if, YOU FAILED to update your address, then your appeal will likely fail.  You will likely lose out on an effective date.  But, if you have kept VA current with your address, then you can ask to see the documentation they mailed you a letter.  You will likely win.   

     Either way, you should get beneifts, its a question about effective dates.  If this denial is "fresh" (within a year) and you file a nod, you can "probably" win and even win an effective date.  But, if you waited over a year..probably you would lose an effective date appeal, absent some extenuating circumstances.  

[Buck52]

This Veterans has been at the same address for ten (10) years.

I am fairly sure he can check at the VBA (Veterans Benefits Administration) and request a VSO There open his VBMS , He will need to sign the FOIA .Need Claim # and or SS #

Unless the VBA has change the rules?

THIS IS A FREE CHARGE

If the clerk at the VBA says no they can't do that?   then ask to be showed the regulations that says that.

Actually this is what the VBA is for.  to assist veterans.

Just remember to keep your filing timeline within the limits of 1 year from date of denials.

Edited February 23, 2020 by Buck52

[Guest]

Hey, sorry that you are going through this but as everything it is a lesson learned.  Keep in mind that you can choose to have a POA (Power Of Attorney) but make sure you control all correspondence (any claims filed, any appointments made) . I am not blaming you or saying it is your fault but when you are scheduled for a C & P exam you can't make. Make sure you are the one calling the C & P exam office/clerk and rescheduling. If you miss an exam call the C & P office/clerk as soon as you get the letter.  We all know VA will do some crazy things and some lazy/inept clerk that reads your file and send mail to the wrong address happens more often than you think.  Yes, it suck, you got screwed but as others have suggested make sure you keep all deadlines and for future problems call Peggy the C & P exam office/clerk to reschedule any missed appointments. This is a little song and dance, a game that all veterans have to play. Get mad, get upset but play the game and keep your eyes on the ball.  It's real funny how VA have no real time lines or deadlines but veterans do.   There are times you have to be real careful and make sure if you reschedule a C & P Exam that you do it where you get a new date and time. Make sure you get that new date and time before the C & P exam office/clerk hangs up the phone. Make sure the exam is in my healthy vet. I can recall one denial I got because the C & P exam office told me they would call me back but I got a denial letter instead.  It will get better

[Berta]

Broncovet, your advice here is superb.And certainly others have helped.

I have no more to add to this thread but am posting the following info as it might help someone else.

"In response to the Veteran’s December 2015 notice of disagreement and January 2016 substantive appeal in which he stated he had obstruction of the nasal passage, the Veteran was scheduled for a VA examination to assess the severity of his service-connected disability.  An April 6, 2018 Report of General Information reflects that the Veteran called to reschedule the VA rhinitis DBQ because he forgot the date of the examination but that he would make the rescheduled exam.  An April 23, 2018 exam scheduling request shows the allergic rhinitis contention was cancelled because the Veteran was a no show for the VA examination. "

Entitlement to a compensable rating for allergic rhinitis is denied."

https://www.va.gov/vetapp19/files11/19186772.txt

Th BVA in this case did award an EED for sleep apnea because the veteran did attend  that C & P exam and the exam warranted the proper EED rating.I thought maybe the BVA would remand for a new exam for the rhinitis, but they didn't.

This next 2019 decision ( ten years after the claim was filed)went to the CAVC then back to the BVA and luckily this "no show" C & P  vet got another  remand for a C & P exam,probably because of the CAVC  decision, adding more months and maybe even years,  to his claim.

https://www.va.gov/vetapp19/files8/19167297.txt

This vet did not attend three C & P exams and BVA stated :

"Furthermore, the law has long held that the duty to assist a claimant in the development of an application for benefits is not a two-way street. If the Veteran wishes help in developing this claim, he cannot passively wait in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App 190, 193 (1991). As the Veteran failed to report to the scheduled VA examinations on three occasions without providing good cause, the Board must adjudicate his claim based on the evidence of record. "

This BVA statement (' not a two way street')appears in only 4  BVA decisions since 1992, because the veteran's VCAA letter and/or 5103 waiver  , if legal ( mine were not legal but that is often not the case)

tells the veteran exactly what  they need to do to comply with the regulations that will garner an award.

This vet's claim was denied.

https://www.va.gov/vetapp17/files5/1729487.txt

I overcame the VCAA  errors  with evidence and the 5103 error I had is something the Va is presently looking into.

 

 

Edited February 23, 2020 by Berta
weather at high altitude

[Buck52]

FOR SOME REASON OR ANOTHER I HAD THOUGHT YOU ASK FOR THE 38 4.16 (B) EXTRA SCHEDULER FOR THE TDIU???

YOUR LETTER FROM VOC-REHAB VR/E THE COUNSELOR HAD WRITTEN YOU A LETTER DECLARING YOU WERE INCAPABLE OF ANY TYPE OF EMPLOYMENT? OR RETRAINABLE AT THIS TIME DUE TO YOUR  S.C. DISABILITIES ?...THIS IS GOLDEN EVIDENCE FOR THE TDIU.

IF THE RATING BOARD DID NOT CONSIDER THIS?    THIS COULD VERY WELL BE ''CUE.''

ESPECIALLY IF YOU SUBMITTED THIS VOC-REHAB LETTER?

Edited February 23, 2020 by Buck52

[Guest]

The only thing I could possible add is make sure you don't give VA any more ammunition to continue to deny your claims.  Make sure you file your NOD, Form 9 and any new forms VA sends you. Yes, some say you can just write your response on any form even a black piece of paper but just play the game.