TDIU

[Lemuel]

Are you having trouble with a TDIU claim, TBI claim or any old claim that was never developed or decided?

I posted this earlier on Tbird's question, "Unemployability and Working in a Sheltered Environment...?"

Just received an example of this in a decision by the Executive Director, Compensation Service which I will attach after redacting.  My part time employment from September 1987 to September of 1990 consisted of working for a CPA business manager of a now deceased movie star.  (Egg and I actor as a hint).  

The job was a 20 hour per week job by the previous employee which I couldn't keep up putting in more than 40 hours a week.  I'll also attach a copy of my employer's May 7, 1990 statement.  The job paid more than poverty level.

These documents should help clarify to any who have a question about this subject.  I'll also start my own question where I can answer questions about how I got to this point.  Now I'm just waiting for a $500,000 plus check.  A lot of years in abject poverty under the bridge but I'm now in a nice home which will be fully paid for and I'm having a Japanese spa bath put in in the basement.  Feels good but was a miserable live from 1974 to 2017. Hasn't been bad since I turned 76 in 2017.  Now, at 79, it is even better.

Still the issue of temporal lobe epilepsy (TLE) to go but it is more an act of activism since additional compensation doesn't mean much to me.  I don't want those with similar organic brain syndromes to mine left behind on that paper trail. TLE is difficult to identify and identification is complicated by the victim being unconscious of the symptoms.  We are thought of as being "drifty", absent minded, procrastinators (from enervations), etc. and no one connects it to our TBI and advises us or gives us a consult to a neurologist for epilepsy evaluation. 

Look up that $100 dollar word, "enervation".  If you've had a TBI, especially if caused by near by blast concussion or repetitive outgoing heavy artillery (not me, mine was focal left temporal lobe) or p. falciparum malaria, you need to ask your family and friends if you are a little drifty or inattentive at times.  If you've had Motor Vehicle accidents that you blamed on the other guy but it could have been your inattentiveness this is hard evidence.

If you had malaria and have any of the symptoms I listed, contact me through this board.  Compensation for those victims is the last goal of my life.  At 79, I don't have too many more years to work on it.

Also, if you have a TBI award post 2008 for a TBI years before contact me.  I filed a case in 1988 in district court as a next of friend making a claim for you that has never been developed.  Same case as my TDIU.  An award to me would be moot because my new TDIU award goes back to 1985.  But we may be able to get that Executive Director, Compensation services to take our TBI awards back at least as far as my claim but possibly all the way back to when the symptoms first interfered with our employability.

I was finally treated for my TLE in August of 2015 and all symptoms are in remission.  I was confirmed to have TLE in September of 1990 but mistreated with Tegretol which should never have been used for the diagnosis of "atypical absence seizures" and because I had a recorded sensitivity to amitriptyline per the 1990 PDR and every PDR after that to date.  Subsequently, I was diagnosed as having "pseudo seizures" which too many read as being a malingerer.   At 79, I'm more employable now than I was at 35.  But I lost my most employable years to a 3.154 1151 treatment.  It is on my NOD of 01/08/2018 and the claim it is on.  I'll keep everyone posted on its development.

3526-3527 19900507 Al Marsella Stmt_Redacted.pdf 20200408 - TDIU Review - Admin Opinion_Redacted.pdf

[broncovet]

Congratulations, and thank you for helping others.  This just might be the biggest retro Im familiar with, except Alex.   This is awesome news.  

 I will ask what level of appeals did you have to go through to get a half million check?  Im guessing it was "not" a HLR, DRO, or SCL at the VARO.   Instead, my guess is you had, like me, multiple trips to the BVA AND to the CAVC.  This is why I tell people if you are expecting large retro, dont expect a HLR to give it to you.  You might just as well skip the HLR, save yourself some time, and go to the BVA, because, a half million "isnt happening" at the VARO "unless" a BVA judge, CAVC, or Federal Circuit  judge told them to do that first.  

Like yourself, I won my tdiu effective date (extra schedular under 4.16 b.   Only mine was not nearly as much retro.  More like 10 percent of that.  

I wont be buying a house with a spa, but I will be enjoying my retro, and I have helped others including TBird.  I couldnt have done it without her and hadit. 

Edited April 11, 2020 by broncovet

[Lemuel]

1 hour ago, broncovet said:

Congratulations, and thank you for helping others.  This just might be the biggest retro Im familiar with, except Alex.   This is awesome news.  

 I will ask what level of appeals did you have to go through to get a half million check?  Im guessing it was "not" a HLR, DRO, or SCL at the VARO.   Instead, my guess is you had, like me, multiple trips to the BVA AND to the CAVC.  This is why I tell people if you are expecting large retro, dont expect a HLR to give it to you.  You might just as well skip the HLR, save yourself some time, and go to the BVA, because, a half million "isnt happening" at the VARO "unless" a BVA judge, CAVC, or Federal Circuit  judge told them to do that first.  

Like yourself, I won my tdiu effective date (extra schedular under 4.16 b.   Only mine was not nearly as much retro.  More like 10 percent of that.  

I wont be buying a house with a spa, but I will be enjoying my retro, and I have helped others including TBird.  I couldnt have done it without her and hadit. 

It was a BVA remand on May 17, 2017 of an undeveloped October of 1987 TDIU extra schedular claim.  I filed a Rule 21 Petition Pro se on February 17, 2020 re the Delay.  Somehow that claim got out of Legacy and went to the DROC-DC which properly referred it developed and recommended to the Director of Compensation.  

I think my attorney misread the Decision Letter and thinks there is more to come.  38 CFR 4.16 appears to grant authority to the Director of Compensation to decide as appears to have been done.  The DROC-DC now should only have to process the award letter and payment.

My SSDI used the MVA of September 1990 residuals of spinal disc disease as the primary disabling condition.  But the MVA was confirmed to have been caused by an absence seizure, residuals of my TBI.  The DRO at the DROC-DC obviously did a good review of my record and saw my claim for 1151 under 3.154 for the mistreatment of the seizure with Tegretol and no further treatment until 2015.  2,624 pages to go through with the aid of my list of relevant pages and claims of relevancy plus claim of missing back clinic records and seizure clinic records provably existent but missing in the RBA dispute, Bray v Wilkie, Vet. App. 17-2990.

So, yes, mine was much longer and more complicated than yours primarily because of my dysfunctions which were the reason for my unemployability and not having a representative who knew what was up or how to get there at any time during those years.  At least the one got me to the BVA and on the luck of the draw, I received a good Judge that spotted my undeveloped TDIU claim or in a fog I mentioned it never being sent to the Director of Compensation like it should have been.  So without calling it a CUE it was treated like one having not gone through the 4.16(b) process.

[broncovet]

Awesome.  Im not sure any can be more complicated than mine, but your's may come close.  Like yours, VA never adjuticated my TDIU AT ALL for 7 years.  Then, in 2009, when I was awarded 100 percent, I appealed because they said tdiu was "moot" ,  Horse puckey.  TDIU was not moot because an award could (and did) get an eed and also resulted in smc S, under bradley vs Peake, since I then had tdiu plus an additional 100 percent.  

I wont THAT appeal, in 2014, so they remanded it for 4.16 b tdiu consideration.  Suprise suprise, the VARO denied and, I appealed.  That went to the board  (8 more years) and they awarded at the wrong effective date.  So THAT appeal went to the board, and was denied.  I appealed to the CAVC won a remand in 2019.  Finally in March 2020, I won the whole pie..tdiu to 2002 and smc S.  VA fought me for 18 years, pulling every trick in the book.  

I think Buck's case is similar..they hornswaggled his effective date in a similar way.  

[Lemuel]

8 minutes ago, broncovet said:

Awesome.  Im not sure any can be more complicated than mine, but your's may come close.  Like yours, VA never adjuticated my TDIU AT ALL for 7 years.  Then, in 2009, when I was awarded 100 percent, I appealed because they said tdiu was "moot" ,  Horse puckey.  TDIU was not moot because an award could (and did) get an eed and also resulted in smc S, under bradley vs Peake, since I then had tdiu plus an additional 100 percent.  

I wont THAT appeal, in 2014, so they remanded it for 4.16 b tdiu consideration.  Suprise suprise, the VARO denied and, I appealed.  That went to the board  (8 more years) and they awarded at the wrong effective date.  So THAT appeal went to the board, and was denied.  I appealed to the CAVC won a remand in 2019.  Finally in March 2020, I won the whole pie..tdiu to 2002 and smc S.  VA fought me for 18 years, pulling every trick in the book.  

I think Buck's case is similar..they hornswaggled his effective date in a similar way.  

I think my date may be a couple of years early.  She set it as the last date of my full time employment instead of the 2 year later claim date.  I won't complain and it is her decision to make not the DRO's.

Mine went to the BVA in 1990 before the 1990 MVA.  I thought it was dead then because I wasn't fully aware.  I didn't not at the 1990 BVA hearing that I had a claim for TDIU thinking they were deciding a rating level that would make it presumptive.  The MVA happened in September before the BVA decision in October.  The American Legion Rep didn't pick up the appeal to the CAVC which was new at that time.  I had requested a notice of how to appeal to the CAVC but didn't receive one and the treatment with Tegretol wiped me out.

So I fought a 1992 appeal for SC for seizures but was scheduled hearings by the Denver VARO DRO at times I notified him I would be unavailable to receive mail or make a hearing.  He would send the notification of the hearing after I was already unavailable because my wife's father had arranged my travel to Japan for a couple of months with the hearing before I could get back.  And then when I notified him I would be in California in the same way and when I notified him I was moving to DC in the same way.  Subsequently, he closed my appeal for not filing a substantive appeal and missing hearings.  The substantive appeal was filed timely.  But my complaint to the OIG for how I was treated garnered a letter from the VARO Director also stating I hadn't filed a substantive appeal.

After the TBI letter, I appealed the decision granting me a combined 70% with TBI at 40%  as of July 10, 2009, qualifying me for presumptive TDIU which was denied at the local level twice before getting to the BVA in 2016 for a hearing.  The BVA granted me the presumptive TDIU from 2009 and remanded the undeveloped 1987 claim plus some more items.  I have filed a NOA to the 17-2990 CAVC decision intending to claim denial of due process for the failure to correct the RBA and include the probative evidence for remand.  There is also a 4.42 claim for tinnitus and seizures due to the failure to complete the "body systems" portion of the injury examinations.  I think I'll ask the CAVC to remand to the Director of Compensation so that the Director can be aware of the errors and set in motion corrective actions.

I was just noting in a response to the VA GC's responses on my Rule 21 Petitions showing the arbitrary and capricious way I was treated after starting my activism on behalf of veterans with organic brain syndromes when I received the decision letter by email from my current attorney.  He isn't willing to go to the CAVC on the previously filed 17-2990 or the petitions.  So I will complete the Petitions although the award has been rendered moot by the decision except for getting the TLE award.  The spinal disc disease has been SC by the DRO decision but not rated because it was taken as a new evidence claim and he falsely states it doesn't involve more than two vertebrae.  So I will get that corrected though it will not reflect additional compensation, only an additional base rating.  I'm hoping to get published opinions from the CAFC and the CAVC ultimately that will help every one.  I'll have to state as was stated in Godsey v Wilkie that though the amount is moot now, the actions affect other veterans.

Together with the TLE, I would be rated at 100% permanent and total, not needing the TDIU.

[Buck52]

Congratulations Lemuel on a well outstanding fight

we should make this post so other veteran can read it  hopefully gain some experience with their claims and EED.

Well done Sir

 

[Lemuel]

It may be timing.  If anyone is close to TDIU now is the time to put in for it.  I got all I could possibly get from my claim but it was difficult to even get it where it was supposed to go until the last couple of weeks.  So it is a matter of getting those extra schedular claims up to the Director of Compensation's Office.