Retro Pay Denied

[GlennieHB]

In March of 2020 I filed a claim for increased disability compensation awarded in 2016 of 10% tinnitus, 30% bilateral hearing loss, total 40% rating.  My 2020 claim was based on a continually worsening condition with my hearing over the past four years since my original claim.  I also included a claim for Meniere’s disease, asking for 100% P&T.  This was based on my deteriorating health going back over three years for which I received regular care from the VA, and was originally diagnosed through the VA in 2011.  In July of 2020 I was awarded an increase to 50% bilateral hearing loss, 10% tinnitus and 10% for Meniere’s.  This totaled to 70% but through the magic of government math I was awarded a 60% rating.  I felt this was an incorrect rating based on the evidence in my file and decided to file an appeal.  I began to collect evidence in August 2020, asking for a copy of my C&P exam, while continuing to seek treatment at the VA.  It wasn’t until early July of 2021 that I submitted a “Decision Review Request: Supplemental Claim” based on the previous award.  I waited nearly a year seeking the C&P evidence, sending three letters and placing several phone calls, but never received it, so was forced to submit my claim without knowledge of what was in the first C&P in order to preserve my original filing date.  By August 2021 I was called for a second C&P exam and in September 2021 I was awarded 100% P&T, now changing my rating to Meniere’s as the primary, hearing loss and tinnitus as secondary but was denied retro pay. I believe that there is evidence within my claim that proves I am deserving of the retro pay, which totals to over $30K.  My question is, how should I pursue this situation?  Should I use another VA 20-0995 Decision Review Request?  Ask for a “Higher-Level Review on 20-0996 or an “Appeal to the Board of Veterans Appeals” on VA10182?  

 

 I don’t want to poke the Bear, but $30K is a lot to leave on the table.  Any advice would be appreciated. 

[pacmanx1]

Unfortunately, you are going to have to appeal and filing a supplemental/HLR could end up with a rubber stamp denial. We have heard that some get their claims granted but most don't, and you have a better chance at winning your claim at the BVA, but it will have to be your call. In my case after the VA denied my supplemental, I decided to try the BVA and hopefully they can read. 

[Berta]

From 10 % to 100% P & T for Menieres is a big jump.

Do you received SSDI solely for the Menieres-or for the exact same conditions they comped you for?

and if so when was the SSDI decision and also did VA have that information,from you,  and when did they have it?

This could also involve a CUE-possibly, not enough info to know yet-can you scan and attach here the July2020 decision and also the 100% P & T decision,including the Evidence list? Cover your C file #, name and address prior to scanning it.

I suggest that you call the White House Veterans Hot line and tell them what you told us aout the C & P exam that they have not sent you a copy of yet.

Although CUE rests on legal errors and not medical errors/issues,  a medical error, such as a lousy C % P exam, that does not consider the established medical evidence, could warrant an inappropriate ratingthat would have had a manifested outcome to your detriment.....whih seems to be the case here in your regard.

10% to 100% for Menieres is quite a victory but it also suggests something was drastically wrong with the C & P exam copy you never got.

 

 

 

[broncovet]

Absent a CUE, like Berta suggested, you should appeal to the BVA.  Dont even consider another HLR/DRO etc, at the VARO.  

Res judicata prevents you from "keep going back again" to the VARO.  

I suggest you file the NOD, to the BVA.  Then, you can still file a CUE "if it turns out" there is, indeed, clear error.  

Remember, a Veteran keeps the benefit of the doubt (BOD) with an appeal, but, with CUE there is no BOD.  Sometimes that difference can be huge and a deal maker/deal breaker.  

 

[pwrslm]

Have you got a copy of your C-File? That would contain the C&P you do not have.

Might be able to get a VSO rep to check for the C&P also, they have access to those records. If there is a problem, the VSO rep may be able to get it CUE by the VARO. Easier route, but you must rely on 3rd party.

Edited December 11, 2021 by pwrslm

[Berta]

Sorry=- I forgot to post the WH Hot line # 1- 855-948-2311.

The HRL can often determine if a CUE has occurred. Some here have had that experience.

(Yesterday I got email from a friend who just got a big award from the BVA- he also thanked me for this WH Hot line #, because it

immediately got him a good result on his claim-

"On November 30, 2021, I contacted the White House Hotline to ask them to inquire why it is taking the BVA so long to decide on a remanded appeal from November 2018?

 

The gentleman I spoke with wasn't familiar with the procedure but did take the time to find out. He found a template and instructions in their SOP, typed the letter while I was on the

 

 phone, and informed me that I would have an answer in (3) days.  The following BVA decision was dated November 30, 2021:"

 

Sometimes the WH Hot Line can do wonders in getting right through the red tape-

 

However he wants me to tell you all of how Dr. Bash helped him. Will do in a different post on that -his claims have taken over 10 years and he was on the older hadit board I believe and also deals with the same VARO I deal with- Buffalo VARO. )

 

 

[broncovet]

I certainly agree with Berta.  "If" your claim has CUE, then it may proceed faster than the BVA.  

However, you can file an appeal at the BVA, then file a CUE "if" you determine there is clear error...while you are waiting at the BVA and have your place in line.  

You can, also, file the CUE first,  and also file an appeal to the BVA.  If your CUE filing results in all the benefits you feel you deserve, then you can always cancel the BVA appeal.  

It takes a "thorough understanding" of CUE for it to succeed.  You really need to cite the regulations VA violated which resulted in CUE.  Berta is our CUE expert, and has devoted hundreds of hours helping other Veterans to file and understand CUE in their claim.  While I also, have spent hundreds of hours helping Vets, my comfort level filing CUE is far less than Berta's.  I, personally, have never won a CUE.  But, I have persisted and won multiple appeals.  Many Vets advocates, or even attorney's, rarely accept or fully understand CUE, to the degree Berta has.  

Sometimes, the VA "cues" themself.  At the Board, they sometimes notice CUE and then award it. 

It seems to me that CUE is "mostly about the effective date".  

For example, the disability percentage is rarely CUE.  Its a judgement call by the rater.  The regulations are designed that way.  "Well I think I deserve 70 percent not 30 percent".  You likely have criteria found in BOTH the 70 percent and 30 percent criteria.   

One Veteran appealed his 30 percent rating, and took a highlighter, and highlighted, each time a doc said something found in the 70 percent criteria.  He reported he won 70 percent.  The problem is you dont have to meet "all" the examples found in 70 percent criteria.  So, how many of those do you have to meet?  Half?  51 percent?  Which of those criteria are more important than the others?  Well, the rater makes a judgement call and indicates his percent "more closely approximates" the criteria for 30 percent.  This, of course, is debatable, but CUE criteria means that its "undebatable" and that "all reasonable minds" would agree.  There is no benefit of the doubt with CUE, the legal standard is higher..