Awaiting decision from CAVC on TBI

[MrPain7]

In February 1975 I was discharged from service I applied for compensation for a head injury in July 1975 and was denied in 1976 then in 1984 I was awarded 100% for seizure disorder secondary to my in service traumatic head injury.  In 2009 I applied for TBI and was awarded 70% for direct service connection in 2011, I requested an earlier effective date for my TBI since my original claim was in 1975 less then 5 months after my ETS,  I feel my original claim should have been reconsidered but the RO and the BVA overlooked my original claim so I took it to the CAVC and waiting for a decision.

[broncovet]

Mr. Pain...Welcome to hadit. 

I have moved this from another person's post so that more can see it.  

Good luck with your claim.  Do you have an attorney at the CAVC?  Did you know you can get one, and EAJA will pay the fees?  (EAJA fees are regularly awarded to Vets appealing to the CAVC. )

[Lemuel]

And you can file the Extra-schedular claim as I stated earlier.  Just state what you think is just.  I already have an extra-schedular claim on this issue of EFD from a 1988 filing that like my 1987 Extra-schedular claim on TDIU which was granted to the last day of full time employment 2 years earlier than the Extra-schedular claim.  If handled the same way, since you claimed TBI, your EFD should go back to your discharge.

Attaching the redacted Decision papers on my Extra-schedular TDIU claim.

Most vets do not need an attorney to get this done.  Because I have been an activist for veterans with organic brain syndromes since 1987, I have been subjected to whistle blower retaliations.

20200406 - Admin Decision_Redacted.pdf 20200408 - TDIU Review - Admin Opinion_Redacted.pdf 20200707 - Decision_Redacted.pdf 3711 19870624 TDIU claim_Redacted.pdf

[MrPain7]

 

MEMORANDUM DECISION

III. CONCLUSION Upon consideration of the foregoing analysis, the record of proceedings before the Court, and the parties' pleadings, the April 8, 2020, Board decision denying entitlement to an effective date earlier than August 3, 2009, for the grant of service connection for TBI is VACATED and the matter REMANDED. DATED: April 27, 2021

My CAVC number is No. 20-5055 if you wish to to review it.

[broncovet]

Congrats, Mr. Pain.  The CAVC apparently hates "reversals" (awards) and remanded it.  

Mostly this is silly.  There is only "1" correct effective date under the law.  Its the later of the facts found or date of claim.  

But, make no mistake.  The remands are often a win for the VET Because:

1.  With a remand, the Vet may submit new evidence (such as an IMO) and it will be considered filed at the beginning of the appeal period.  

2.  If you were attorney represented, the attorney can apply for EAJA FEES, AND PROBABLY GET PAID.  

3.  The VA will "seperate" attorney fees for the BVA and the CAVC.  EAJA will apy for CAVC, but NOT the fees for the board.  

      However, the attorney can only charge you 20 percent (up to a max of 35 percent) ONCE.  They can not collect EAJA fees and also charge the vet the same money.  

       My (CAVC) attorney fees were paid..and when I won at the BVA, the amount of the EAJA fees paid were deducted from the amount I owed.  

 

[Lemuel]

18 hours ago, MrPain7 said:

 

MEMORANDUM DECISION

III. CONCLUSION Upon consideration of the foregoing analysis, the record of proceedings before the Court, and the parties' pleadings, the April 8, 2020, Board decision denying entitlement to an effective date earlier than August 3, 2009, for the grant of service connection for TBI is VACATED and the matter REMANDED. DATED: April 27, 2021

My CAVC number is No. 20-5055 if you wish to to review it.

Thanks for this.  I submitted a 1974 claim for residuals of a TBI.  This decision bodes well for my pending BVA claim for an earlier TBI rating date.  Also claimed TBI as "next of friend" in an unadjudicated extra schedular claim for all victims of TBI and cerebral malaria on 11/26/1994 denied to exist by VARO Denver Director on 7/20/1998.

The claim is attached for anyone with a TBI who wants to claim an earlier effective date for their TBI than the Congressional limited date of 2008 or 2009 when they received the letter from the VA to submit a claim.  My pending BVA is also attached.  I will post the BVA Docket number as soon as I get it so that those who wish can submit a petition to join.  I think you can submit a petition to join from a printed copy of my 10182 before it is docketed.

The original claim date is 12/10/1990.

The BVA 10182 was resubmitted on the finding that the 11/26/1994 Substantive Appeal had never been adjudicated similar to my 1987 extraschedular claim for TDIU which had been remanded by the BVA and resulted in TDIU from my last day of full time employment in 1985.

If anyone has an attorney that can handle this for all of us, I will sign on after the BVA Decision.  The attorneys I have had in the past only wanted the slam dunks and would not go to the CAVC as was necessary for Mr. Pain who won in a self represented appeal to the CAVC.

My appeal to the CAVC was denied with the stipulation that I could file a legacy appeal to the BVA by a magistrate.  Appeal to the CAFC was unsuccessful.  I had to do both self represented (in Pro Se). 

I suspect referencing Mr. Pain's CAVC decision will get us earlier effective dates from the BVA without having to pay an attorney the way I have in my previous two successes at the BVA level out of my award.

Because of my 1974 claim for residuals of a head injury and finally getting a confirmation of seizures following an MVA in 1990, I believe getting past the erroneous decisions that have been copied forward will finally be a thing I can get over at the BVA hearing by demonstrating what happened in the remands from my 05/11/2017 BVA Decision.  Those remands are part of the issues before the BVA now because the examinations offered were not compliant with the BVA remands and the VAGC tried to fake it before the CAVC which I have documentary proof.  They submitted undated orders after a reported call from me that the examination offered was not compliant with the examination remands to the CAVC.

The BVA is the fact finding authority.  So I have to get the BVA to find that as a fact as well as the fact that the C&P examination at the VA was also copied from the previous examinations without reference to the BVA Remands for examination.

A lot of you are experiencing this "short cut" in the adjudication process never getting the correct fully compliant 38 CFR 4.42 required examinations ordered by the RO or DRO as the case may be.

You can find my CAVC case logs by searching party; Bray, Lemuel on the CAVC website:  Cases Selection Table (cavc.gov)  I have been fighting for us all who have organic brain syndromes since 1987 as the record shows.

19941126 Lem to BVA re Sub Appeal_Redacted.pdf 19980720 Dir Den VARO letter to OIG_Redacted.pdf 3202 19901210 VSO reopen Lem claim_Redacted.pdf 20210131 Lem to BVA 10182 signed_Redacted.pdf

[Lemuel]

On 11/29/2020 at 11:32 AM, broncovet said:

Mr. Pain...Welcome to hadit. 

I have moved this from another person's post so that more can see it.  

Good luck with your claim.  Do you have an attorney at the CAVC?  Did you know you can get one, and EAJA will pay the fees?  (EAJA fees are regularly awarded to Vets appealing to the CAVC. )

Most attorneys will not take a case to the CAVC or to the CAFC.  My last attorney dropped me immediately when I referenced his name in trying to get the BVA remanded examination orders by the DRO to the contract C&P examiners.  He took the $80,000.00+ from the remanded extra-schedular slam dunk award from the Director, Compensation services and ran after literally doing very little.

Mr. Pain was self represented at the CAVC according to the Opinion.