Can I win?

[63Charlie]

In May, 2022, a recent BVA decision granted service connection for Meniere's Disease and awarded the minimum 30% rating with an effective date July, 2018.

This same May, 2022 BVA decision also granted service connection for tinnitus at a 10% rating effective date of April, 2016.

 

During adjudication procedures, the VARO merged/combined the above two claims into one.

VA adjudicators stated that their basis for combining was that "these two issues were inextricably intertwined".

I agree.

Based upon the VA's own admission, I will be appealing the Board decision for entitlement to an earlier effective date for Meniere's Disease to April, 2016, (same effective date as the tinnitus).

 

Ok...my second appeal at the CAVC will be about the 30% rating decision that the Board awarded.

My claims file evidence before the Board included an IME from Dr. John Ellis, M.D., indicating the occurrence of MD related vertigo two to three times monthly.

 

The Board overlooked, and failed to mention, this relevant evidence(episodic vertigo) when awarding the 30% rating for MD.

Failure to develop and maximize a veteran's entitlement to benefits is error by the Board.

 

IF I happen to be successful at the CAVC, I should receive retroactive pay based upon eligibility for an earlier effective date of entitlement to SMC-S.

 

FYI... I will NOT appear at the court without counsel.

This is a job for a professional.

 

[pacmanx1]

32 minutes ago, 63Charlie said:

This is a job for a professional.

I believe the simplest and best response to your post is to express all your disagreements with your attorney and let them accept the battle. Keep in mind that appeals are free at the CAVC for veterans under the EAJA ACT. 

Background about EAJA | Administrative Conference of the United States (acus.gov)

[broncovet]

Agree.  Of course you CAN win, whether you WILL win depends on the facts found in your cfile and the skill level of your attorney in finding those, and arguing the right ones before the judge.  Good luck to you.  

[Lemuel]

On 6/10/2022 at 10:32 PM, 63Charlie said:

In May, 2022, a recent BVA decision granted service connection for Meniere's Disease and awarded the minimum 30% rating with an effective date July, 2018.

This same May, 2022 BVA decision also granted service connection for tinnitus at a 10% rating effective date of April, 2016.

 

During adjudication procedures, the VARO merged/combined the above two claims into one.

VA adjudicators stated that their basis for combining was that "these two issues were inextricably intertwined".

I agree.

Based upon the VA's own admission, I will be appealing the Board decision for entitlement to an earlier effective date for Meniere's Disease to April, 2016, (same effective date as the tinnitus).

 

Ok...my second appeal at the CAVC will be about the 30% rating decision that the Board awarded.

My claims file evidence before the Board included an IME from Dr. John Ellis, M.D., indicating the occurrence of MD related vertigo two to three times monthly.

 

The Board overlooked, and failed to mention, this relevant evidence(episodic vertigo) when awarding the 30% rating for MD.

Failure to develop and maximize a veteran's entitlement to benefits is error by the Board.

 

IF I happen to be successful at the CAVC, I should receive retroactive pay based upon eligibility for an earlier effective date of entitlement to SMC-S.

 

FYI... I will NOT appear at the court without counsel.

This is a job for a professional.

 

The problem with "facts" is only the BVA is the finder of facts.

Tinnitus and especially with Meniere's syndrome is much more disabling job wise than is listed.  You cannot even be a dishwasher using restaurant dishwashers because of the "beeping signals" with tinnitus if it is as severe as mine and with Meniere's syndrome it is more likely than not.

My BVA judge remanded to the Director, Compensations Services for consideration of a higher rating for tinnitus.  It was not considered with the TDIU claim that was granted back to 1985 because it encompassed the first date of my claim for tinnitus though I was refused a forklift operator's permit from the Naval Base, Great Lakes, IL 9 years before my discharge because of it.

My appeal to the BVA at this point includes "statements of fact" because the only way to attack a fact finding at the BVA in appeal of a BVA decision is to prove it is "arbitrarily and capriciously in error" or based upon arbitrary and capricious entries in your record.

For example, I had a 1985 C&P examination that diagnosed PTSD but the chief of psychiatry at the examination facility made a pen and ink change noting "not PTSD--no numbing--anxiety reaction with adjustment disorder" contradicting the numbing symptoms listed by the examiner.  Problem--the examiner did not list them as "numbing".  It takes an independent examiner to state this note was arbitrary and capricious to have a chance to get the finding of fact at the BVA and then be appealable to the CAVC.  Otherwise, my years of PTSD treatment and diagnosis are negated though now pending.

Other issues I raised is the limitation of examinations by the RO.  My initial hearing examination was limited by the RO to just decibel loss contrary to 38 CFR 4.42 injury examination requirements.  I have to obtain the orders to prove that.  

I do have proof, without the orders, that the remands for complete examinations by my last BVA decision were not done via email accounts of telephone calls between me and assigned private examiners.  The DRO who ordered the examinations tried to fake it after the fact by printing an undated order and submitting it to VA General Council.

These will be items for the attorney who has agreed to represent me after the BVA decision.  He will be able to obtain records that I cannot.

BUT THE FACTS MUST BE STATED TO THE BVA JUDGE CLEARLY LABELED AS FACTS to have any chance of appealing facts.  And there must be backup evidence in the file to support your conclusion--a denial of a job because of your tinnitus and Meniere's syndrome will be a good start.  Manufacturing and distribution jobs are all denied to you.  So put in some applications for truck driver school, warehouseman floor person, manufacturing assembly line, etc.  Do not forget to list you "health problems" on the health questionnaire.

[63Charlie]

I have several pending issues on remand and when the Board adjudicates those, I'll have my attorneys advise.

 

If there are more errors, the attorneys can file an appeal for those too with the Court, along with a Meneire's Disease appeal.

 

Got an upcoming C&P Monday at QTC for a half dozen issues that were remanded.

 

Edited June 18, 2022 by 63Charlie

[63Charlie]

On 6/11/2022 at 1:10 AM, pacmanx1 said:

I believe the simplest and best response to your post is to express all your disagreements with your attorney and let them accept the battle. Keep in mind that appeals are free at the CAVC for veterans under the EAJA ACT. 

Background about EAJA | Administrative Conference of the United States (acus.gov)

ALL legal expenses should be free when a vet wins.

Veteran's litigation expenses should be paid by the VA, not taken from a vets retro pay.

[GBArmy]

@63Charlie said "veteran's litigation expenses should be paid by the VA, not taken from a vets retro pay." Man, that would be a major change in how the VA operates. They would actually reverse gears and actually grant when it should, rather than count on the Veteran giving up and not appealing. Great idea; but IMHO, never happening!