Latest decision, TDIU granted, not very happy because a lot of fight still lies ahead

[kanewnut]

I got a pretty good deposit in my account the day after the election. It didn't sit well with me. I figured they just screwed me again and the fight would have to continue. When I got the envelope the next week I read the decision and knew I was correct. I try not to let this stuff piss me off but it still does. Sometimes really bad. I have attached a copy of the rating decision. I have also attached a copy of a letter that I wrote to my congressman where I point out errors that I see. 

I have looked at the ebenefits letters. The commissary letter states "

compensation at the 100 percent rate due to service-connected disability(ies).

This total disability is considered permanent. You are not scheduled for future examinations."  

The benefit verification letter shows the payment at the 100 percent rate, but shows my disability at 90 percent. The tax office said to bring the letter that shows I am 100 percent to get home tax relief. I am not sure of what letter they want.

2020-10-28 VA Decision Redacted for Hadit.pdf 2020-11-16 VA Letter to Congressman Redacted for hadit.pdf

[kanewnut]

6 hours ago, Berta said:

Can you give us the Docket # of the Remand?

This was not a Remand. This was a HLR. I had written many letters to Secretary Wilkie. I had written to my congressman and got the usual crap reply from the VA. I sent the congressman over 60 pages showing where all the VA was wrong, not following the law, etc. He then wrote to Secretary Wilkie. I have no idea if any of that helped or not. The lady that did the HLR called me on a Saturday around lunch time. If it hadn't displayed the VA number I wouldn't have answered it. I went through and told her about how everything had been screwed up, even since 1985. She said she would take care of me. I guess she partially did. 

 

6 hours ago, Berta said:

It seems the TDIU EED was based on the September 5, 2017 C & P exam.

Do you think that EED is incorrect?

 

Absolutely. When I got the decision in 2003 that granted me 70% I applied for TDIU then. I was denied. The DAV told me I needed new and material evidence to appeal ( I know  better now ). I was granted SSDI in January 2007 with a beginning date of December 2005. The SSDI is solely for service connected disabilities. At a minimum the EED should be December 2005. The denial of TDIU by VA in 2003 lists the fact that I quit without notice. Every TDIU denial has listed that. I explained to the lady doing the HLR that the M21-1 says that is to have no effect on the decision. I will fight the VA tooth and nail to get an EED of January 2001. That is the effective date of the 2003 decision granting me 70 percent. 

 

6 hours ago, Berta said:

I am concerned about the migraine claim-was that part of the remand? Is it still open claim?

Is it claimed as direct or as secondary to the spine,disc problems.?

That seems powerful  meds for something the VA rated at "0"

I don't have headaches. When I was at the BVA in July 2016 the Judge asked me about the headaches. I didn't understand at the time why she was concerned about them. Now I know. The woman, Linda lea, that did the C&P evaluation in July 2013 screwed it completely up. According to her there is almost nothing wrong with me but the headaches. I don't know how she managed to screw this up so completely but she did. I don't remember her using a goniometer  to measure movements. I do remember her saying something about not being able to do something and losing her job, then she cocked her head like she was waiting for an answer. Since she didn't ask a question, I didn't answer. Maybe she was waiting for me to agree so she would say I couldn't work. 

I didn't get a copy of my C-file until after the BVA hearing. The DAV told me I would lose my place in line if I got a copy. So many VA errors it is unbelievable.  

[Berta]

My entire reply was gone when I pasted this-to add to it----

It has happened to me many times lately----it will take about 20 minutes to try to reconstruct it-

Not a weather issue-I will do it all over again 

You stated:

"The SSDI is solely for service connected disabilities."

Thanks for clarifying that. They said they received that SSDI info :

"Social Security Administration Disa'bility Findings of Fact and Conclusions of Law received
July 1. 2009."

and

"VA Form 21-8940. Veteran's Application For Increased Compensation Based On
Unemployability. received December 26. 2007. July 16. 2009. and January 16. 2020"

"Entitlement to mdr"v3dua'l unemployability is granted effective September 5. 20l7. the date of the
VA contract examinations that report your service connected disabilities impact your ability to
work. Although you have continuously prosecuted your claim since December 26. 2007, a
review of the evidence prior to the VA examination dated September 5. 2017. does not tndr'catc
your service connected chronic adjustment disorder with depression; your degenerative disc
disease oflumbar spme’ and cervical spine‘ with radiculopathy of bilateral upper extremities and" etc 

Entitlement to mdr"v3dua'l unemployability is granted effective September 5. 20l7. the date of the
VA contract examinations that report your service connected disabilities impact your ability to
work. Although you have continuously prosecuted your claim since December 26. 2007, a
review of the evidence prior to the VA examination dated September 5. 2017. does not tndr'catc
your service connected chronic adjustment disorder with depression; your degenerative disc
disease oflumbar spme’ and cervical spine‘ with radiculopathy of bilateral upper extremities and

Those odd typos came out twice when I copied and pasted this ??? dont know why-

They seem to be saying that they used the dates of the contract exams as the EED, because they did not have evidence thst would change that EED-----

 

 

"Rating Decision dated July 12. 2019. with notification letter dated July 16. 2019. denied
entitlement to individual unemployability." 

But It appears to me, that they had proof of the SSDI award for SC disabilities at least  by time of the July 2019 denial...?????

The 21-8940(which I think might have changed in last few years,) had a specific area where the veteran could tell them if he/she received disability payments from a different source-it was a check box,  I would have to pull out my husband;s TDIU app copy to state that right- it had a check box for Yes and under remarks he had checked this as Yes and told them thr Yes was because it was his SSA award letter (s) 

I am looking at that part of the decisions carefully because the VA pulled a lot of BS on me about my husband's SSDI=BS for years which they finally 

considered. ( he had 2 separate awards- it should not have been a problem, although it was unusual.

By the time he died they (VA)still said they had no records from SSA on his SSDI. Then they told my 2 Senators and Congressmen that the SSA had refused to release those records to the VA . It was a bold faced lie. His authorization form for those records was sent to VA in his lifetime and was in the C file when I got it-

I called Ssa in Baltimore and said I would not hand up until I got some answers- and abput 430-40 minutesd later a supervisor said they had Never received anything from the VA and would certainly send them the records- I told them his authorization form was in the C file-maybe I had to send them a copy of it- but I dont think so......because the SSA the man said he would send them right out to my VARO-after I told him of the letter VA sent to my COngressman and Senator that SSA refused to release- not true at all.

My point is-if the VA can mess around with a SSDI finding, that supports a claim, they Will !

SSDI is prime facie evidence, therefore that is why they will bugger it up ,if they can......not for everyone, just those of us who seem to be targeted by VA- They made critical errors on every claim I ever filed ( 53 issues per VA during shreddergate , and that issue number has sure grown-not because of many claims but because of the many CUEs I had to file)
 

I asked about the remand because they listed the BVA remand dated  8/8/17 and 7/8/16 As BVA transcript hearing date .

If they didn't follow the remand to the letter ( I had personal experience on the sole BVA remand I had) it could have been a significant factor since then ( Remand date 2017) I rebutted  the resulting C & P a BVA remand with my lay medical statement supported by VA medical evidence , and the BVA gave that C & P exam no weight at all when they awarded the case.

TDIU

The decision states:”Although you were granted
entitlement to Social Secun'ty Adrm'nistration disability benefits effective June 19. 2005. the
preponderance of evidence reviewed does not support entitlement to individual unemployability.”
But you said the SSDI was solely for SC-so it seems to me that your proper TDIU award should go back to 2005-
BUT the VA said they only received the SSDI records in 2020
“Social Security Administration Records. received February 25. 2020.
When did the VA formally know of the SSDI award?
I don’t get this- and hope others will carefully review that download----
My husband’s first SSDI award was for his 1151 stroke in 1993.We filed reconsideration and then they awarded solely for his SC PTSD, but that award did not change the fact that the 1151 stroke totally disabled him- which VA agreed , after a battle .
But my point is this- they finally received his SSDI records years AFTER he died, and used the exact same SSDI EED for his 100% P & T SC PTSD award-a posthumous award.They never considered his TDIU claim he himself filled because I guess they cannot award TDIU to a death veteran.
Does anyone here see what I mean?
This vet’s SSDI was solely for his SCs.The VA could have stated, ‘we did not have knowledge of his SSDI ‘prior to the date they said they received them, and would not grant TDIU because of that- BUT they didn’t say that , as far as I can tell in the decision….

they said in the decision:

" Although you were granted
entitlement to Social Security Adrm'nistration disability benefits effective June 19. 2005. the
preponderance of evidence reviewed does not support entitlement to individual unemployability."

Typos in copy, not in pdf.???
 

We need others here to opine on this-

 

Edited November 21, 2020 by Berta
lost original reply

[Berta]

PS. I will try to find any BVA decision that regards this type of TDIU EED , and see what the new VBM says- it will take me some time----next week will be a very busy one for me----I might not be here-

please chime in because if the VA can try to screw anyone out of a proper EED, believe me they will,and MANY of us, to include me, know all about that and we must fight back.

Do I understand a claimant cannot file CUE on a HLR decision?

If so, that means they can file CUE on any non HLR deision prior to the HLR......any opinion on that?

[broncovet]

I recently won an EED for TDIU.  (Earlier this year).   You posted:

 

Quote

I will fight the VA tooth and nail to get an EED of January 2001. That is the effective date of the 2003 decision granting me 70 percent. 

The effective date for tdiu, is similar to other effective dates.  The general rule is that your effective date is the later of the facts found, or claim date.  Regarding the effective date, the decision states:

      

Quote

"the date your (exams) stated they impacted your ability to work".  

To win this, you need to refute that statement WITH EVIDENCE.  This evidence "may" already be in your file OR, if not, you need to obtain this evidence, probably with an IMO from a Voc rehab specialist.  (Which is what I did).  My advice is to review your medical exams from 2001-2017.  Specifically look for a doctor, medical professional or voc rehab counselor who indicates your disabilitie(s) "impact your ability to work", and the date of said exams during that period. 

      After you make this medical exam review, you should be able to decide if you need an IMO to win it.  OR, if you dont want to go through that process of reading your medical exams for 16 years, then skip it and get an IMO.  

       My opinion is you should file a NOD to go to the BVA (since this is a VARO decision).  There are 3 choices at the BVA, weigh your options carefully.  Consider the consequences of your medical exam review (you can do this yourself or a representative can do it, or an IMO can do it)   Chris Attig explains the options and the forms:

https://www.veteranslawblog.org/ama-notice-of-disagreement/

      Now, its still possible there is CUE error, but I wont opine on that.  That is Berta's area of expertise.  I can say that, "even if there is CUE", you could still win with a regular appeal, but it could take longer.  

       Since there is a lot of retro at stake here, you also need to weigh your options as far as a representative.  You can represent yourself, you can continue with DAV, or you could hire an attorney who only gets paid when you win, so he has a "dog in the fight".  

      For me, I hired an attorney, BUT NOT UNTIL AFTER the board decision (denial).  I did it that way because I felt confident I can win at the BVA, but not at the CAVC.  At the CAVC level, EAJA mostly pays your attorney fees anyway, so you have little to lose by hiring an attorney quickly after a BVA denial, if that happens.  

       You may be able to simply avoid the BVA denial with new evidence now, in the form of an IMO from a voc rehab specialist.  I got one for under 1000 dollars and can give you the name, upon request.  

      

Edited November 21, 2020 by broncovet

[kanewnut]

9 hours ago, Berta said:

Thanks for clarifying that. They said they received that SSDI info :

"Social Security Administration Disa'bility Findings of Fact and Conclusions of Law received
July 1. 2009."

The VA FORM 21-8940 that I filled out in December 2007 in the section 24. REMARKS "I am now on Social Security Disability because of all the problems I developed from service. I cannot work and should be upgraded to 100%.". The VA definitely knew about my SSDI because of SCD's. The problem as I see it now that I have my C-file and have been able to go through it is that some idiot at the VA dropped my folder and someone else's. When they picked up the pages no attempt was made to put the correct records in the correct file. In the middle of my SSA records are 16 pages of someone else's records. His records are not even in order. This is what makes me pretty certain that who ever dropped the files just stuffed them back together with no concern what so ever about which records went where. That is what leads me to believe that the pages showing my SSDI grant are in the other man's records. 

 

10 hours ago, Berta said:

"Rating Decision dated July 12. 2019. with notification letter dated July 16. 2019. denied
entitlement to individual unemployability." 

But It appears to me, that they had proof of the SSDI award for SC disabilities at least  by time of the July 2019 denial...?????

The TDIU denials from 2019 03, 05 and 07 are comical to me. 03 says my conditions may prevent physical labor but not sedentary, In addition evidence of record does not show that you terminated employment due to SCD's. 05 is the same thing. 07 says "Letter from your primary physician stated you are unable to work and your service connected conditions. We took this evidence into consideration, but other evidence shows your disabilities do not prevent all employment. Additionally, evidence of record does not show that you terminated employment due to SCD's." 

They had the SSDI records by the July 2019 denial, but now they are looking at 14 years of retro. It is comical that my PCP says I can't work and it is permanent but VA says other evidence show my SCD's don't prevent all employment.

11 hours ago, Berta said:

When did the VA formally know of the SSDI award?

It is my belief that the screwed up SSA records have caused a great deal of this problem. But I don't understand why. I have researched

M21-1 and it explains to raters how to correct record errors. It is beyond me how raters for years have over looked these record issues and how this has gone before the BVA and it still has not been fixed. I am pretty sure it is even illegal to be giving me this other man's full name and ssa number. I am pretty sure if he has a copy of his C-file he has all of my information. It is like this is a big game or a silly joke on me, but I am not finding it funny. 

[kanewnut]

On 11/21/2020 at 9:43 AM, broncovet said:

Specifically look for a doctor, medical professional or voc rehab counselor who indicates your disabilitie(s) "impact your ability to work", and the date of said exams during that period.

This is from the SSDI grant in December 2005 "The claimant has the following severe impairments: arthritis with significant pain and depression. (20 CFR 404.1520(c)). The above impairments cause significant limitation in the claimants ability to perform basic work activities.

 

On 11/21/2020 at 9:43 AM, broncovet said:

if you dont want to go through that process of reading your medical exams for 16 years, then skip it and get an IMO.  

I have 2,164 pages of C-file on disk. I have gone through them multiple times. I have an index of every page. I can pretty quickly find most anything in there. I think Miss T-Bird suggested something similar with hard copy, using different color paper, etc. but mine is electronic. 

Most VA exams make either no statement about what work I can or can not do or they opine I can do anything. I detailed the 2010 and 2013 VA C&P exams in the letter I included for my congressman. The SSA examinations are the first to note severe impairments with significant limitations to perform basic work activities.

On 11/21/2020 at 9:43 AM, broncovet said:

You may be able to simply avoid the BVA denial with new evidence now, in the form of an IMO from a voc rehab specialist.  I got one for under 1000 dollars and can give you the name, upon request.

I have looked at Clifford Vocational Services. If you know of someone else please let me know. I have read Cliffords book "What the heck is sedentary work?" In his book he states "Many times the examiner will address each disability with their symptoms and limitations individually without considering the effect of the disabilities combined and how this affects the ability to work." This is exactly what I covered in my letter to my congressman.