Thinking outloud

[jfrei]

So I was made P and T 100% In 2016 after my Cue Appeal went through yet they said no wait it wasn’t when I filed my claim in 2010 but 2016. Is there a lawyer that specializes in EED cuz this is BS? 

[Berta]

Vet Lawyers Live for a strong EED case!

There are plenty mentioned here ----some are members of this site or have done radio shows with us

https://community.hadit.com/search/?q=vet lawyers&quick=1

or search for the NOVA list.

Since the 100% resulted from a CUE, have you considered filing CUE on the 100% award letter?

If the VA had probative medical evidence ( or should have had)****prior to the EED they gave you, that you were,in fact, 100% P & T prior to that date, then your EED should have been the date of that probative evidence.

should have had- I assumed my husband's 2 pending claims when he died.One was for a higher rating of his 30%  PTSD.

They denied my accrued claim for the high rating.

Prior to his death I had a battle with the local VAMC to switch him over from the employee psychologist to the PTSD psychologist.The employee psychologist was a wonderful man, but he didnt have a clue on PTSD and my husband was no longer employed by the VA.

The denial evidence list was missing two critical pieces of evidence:

His SSDI award for PTSD ,dated 3 years prior to his death ( based solely on VA medical records #) and

the extensive tests and hypnosis sessions he had with the PTSD psyche.

I went over to the VAMC and luckily his PTSD psychologist got on the elevator with me, and I asked if I could speak to him when he got to his office. His said sure---I showed him the denial, the SSDI award, and asked him whyy the RO did not have his records on my huband's therapy with him.

He said he would immediately re send them those records which they should have  had already* SSA had them and  he would send me a copy of the letter he would prepare , telling them he had seen the veteran's SSDI PTSD award letter, and the widow said the VA had his authorization form,for SSA because the copy of the form was in his C file, which I had just obtained.

Within a very short period of time- maybe a month- the 100% P & T posthumous PTSD award came, with two DEA apps, one for me and one for my daughter. She had just joined the USAF .

It is medical evidence ,in VA's possession, that can support a better EED, but a CUE would be in order for that, on the older decision.

Did you appeal the 100% decision at all?

If so a strong IME could have changed that, in my opinion, but that too would have to rely on medical evidence that VA had, or should have had, to garner a better EED for the P & T status.

I expect a proper award for my pending AO HBP claim.

Since the AO HBP was a contributing factor to my husband's death I will also expect a new limiting date for my DEA. 

I got that when I proved death due to DMII ( malpracticed on but claimed as direct SC death)and when I won the AO IHD death claim ( Nehmer). Actually the VA asked me to pick one of two limiting dates, the one most advantageous to me.

A DEA award date is not etched in stone. It can be changed with evidence, and also with subsequent awards from the VA.

 

 

 

 

 

 

 

 

 

[broncovet]

My opinion is that you can self represent when appealing at the Regional Office (SCL or HLR), or at the BVA. 

However, dont even think of representing yourself at the CAVC or Federal Circuit.  

With a Board decision, they fully expect and deal with "less than professional" representation, including self representation or VSO representation.  Often the Board simply checks to see if Caluza elements are present and awards if they are.   Disputes about disability percentages or effective dates, however, are more complex and sometimes require a lawyer to parse through the regulations and the cfile and see if they can find the winner winner chicken dinner.  

With a Board decision the VSO (national) will sometimes "prepare a brief" detailing the VSO's reasons why the claim should be awarded.  

This works, with better than 2/3 of BVA appeals either granted or remanded.  (The odds are better with an attorney, however).

But, there is no reason to go to the CAVC without an attorney, since eaja normally pays the attorney fees anyway.  

I will be going "against my own advice" soon, however, and submitting a Writ of Mandamus to compel the VARO to comply with a 2013 remand, which the VA never did.  Laywers dont like writs, and rarely do them.  

 

Edited June 17, 2020 by broncovet

[pacmanx1]

Bronco, in my last BVA grant, I simply reminded the BVA of my CAVC remand that the local VARO ignored and the BVA granted my EED and stated that my original claim was still pending.  That took my EED back to 1998 but I am still waiting on my award letter. That was last year but some kind of way I recently received a new remand  few weeks ago from BVA requesting the local VARO to implement their decision. Don't ask how but my claim was split in two for the exact same condition for the same time period.

[pacmanx1]

jfrei, we still need more information about your 2016 rating and why VA did not award you 100% P & T in 2010.

[jfrei]

Well for one they kicked the can about service connection until then and used the C and P from 2010 in 2016 when service connected to give the rating then they ordered new tbi reviews and Raise it when they granted the service connection in 2016 and not when I filed in 2010 and the P and T until my attorney sent an appeal, which never made it there bc a month later the RO said the evidence says it is P and T so we can just award it instead of sending it to the BVA I was happy for years that I got it right finally but now I’m looking at it with my wife who was in school starting in 2014 and graduated in  2017 with her masters that’s a big chunk of loan sitting there. And It can’t be forgiven but with two kids it’s always there on the back of our minds, like if we really needed something we can’t get another loan somewhere with our home and the school. Refinancing all our equity into another Mortgage would be like started over from. 

[Berta]

There was a TBI 'scandal' years ago as unqualified doctors were improperly handling TBI C & P exams.

As this article states, the regulations were changed in October 2008 and any vet who felt they had received an improper rating was invited to file a claim for an updated rating.

It is possible that the 2010 claim was based on the older erroneous TBI older ratings.

The regulation change was posted here as soon as I got it: I believe it is in this article as well.

http://www.militarydisabilitymadeeasy.com/tbi.html

 

Specifically it states:

 "The TBI ratings were updated on October 23, 2008. If your TBI was rated before that date, you can request for the VA to review your condition and update your rating based on the new rating requirements. The VA will then conduct new examinations and rate the condition under the new ratings. The VA will not lower the rating UNLESS the condition has obviously improved. If the condition is the same or worse, then the rating will either remain the same or be raised under the new rating criteria. If the VA does raise your rating, the benefits from the higher rating will be post-dated to October 23, 2008."

http://www.militarydisabilitymadeeasy.com/tbi.html