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.

 

[Richard1954]

On 6/15/2022 at 6:09 PM, Lemuel said:

My BVA judge remanded to the Director, Compensations Services for consideration of a higher rating for tinnitus.

I fail to understand what the judge was thinking the VA does not award more than 10% for Tinnitis,  If they do it would have to be extraschedular and that doesn't happen at the local level.

[Richard1954]

On 6/10/2022 at 11:32 PM, 63Charlie said:

I will NOT appear at the court without counsel.

This is a job for a professional.

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.

 

The va awards claims based on the date you applied for the disability.  So while I cannot say if they will give you an earlier effective date of not, I would be surprised however if they do. Since the combined the ratings into one it would make sense that  you would receiver the eairler date, but the va doesn't think that way. 

Also this doesn't have to go to the court ,  this decision can be made at the local level. I certainly would try that first, because paying for a lawyer at the court if you win you wil be paing that lawyer a good part of your backpay. 

Do you already receive SMC S? Either way  I don't understand how an earlier date would qualify you for back pay for Housebound. What was housebound awarded on?  The actual  need or 100% pluse an extra 60%.  rFrom what your saying Neither Menirers and tinnitis have anything to do with an increase in housebound. 

 

Edited June 20, 2022 by Richard1954

[Lemuel]

11 hours ago, Richard1954 said:

I fail to understand what the judge was thinking the VA does not award more than 10% for Tinnitis,  If they do it would have to be extraschedular and that doesn't happen at the local level.

That was what she was thinking--extra-schedular.  She sent two items for extra-schedular review.  One I requested--TDIU and the other tinnitus.

[Lemuel]

11 hours ago, Richard1954 said:

The va awards claims based on the date you applied for the disability.  So while I cannot say if they will give you an earlier effective date of not, I would be surprised however if they do. Since the combined the ratings into one it would make sense that  you would receiver the eairler date, but the va doesn't think that way. 

Also this doesn't have to go to the court ,  this decision can be made at the local level. I certainly would try that first, because paying for a lawyer at the court if you win you wil be paing that lawyer a good part of your backpay. 

Do you already receive SMC S? Either way  I don't understand how an earlier date would qualify you for back pay for Housebound. What was housebound awarded on?  The actual  need or 100% pluse an extra 60%.  rFrom what your saying Neither Menirers and tinnitis have anything to do with an increase in housebound. 

 

At BVA level you pay the lawyer from your back pay.  At the Courts, if you win, the lawyer is paid by the VA.

Meniere's syndrome is house binding.  You cannot get out of bed for the room spinning much of the time.  Afraid to go anywhere.  My wife had it but found a physician that cured it in Japan 7 years ago.  The VA has not gotten there yet as far as I know.

His problem is the FACTS.  They are decided by the BVA and the disability level by law is one of those facts.  That is why CAVC Appeals are so difficult.  Unless you can prove a "fact statement" in your BVA Decision is "arbitrary and capricious" without grounds you lose.

And that is why few attorneys will go to the CAVC for you.  We all believe we should be rated higher up the scale.  But you have to have an obvious statement in your record, like a C&P physician saying, "he obviously cannot be employed in this kind of work" to get any relief from the CAVC and then it will only be a remand for further consideration.

If the BVA said he does not have Meniere's syndrome but he is diagnosed with it then the CAVC will send it back. 6205 30-60 or 100% depending upon the severity.

[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.

 

You have the same problem I have.  Tinnitus and hearing loss are also interconnected but claimed separately because they are rated separately in the schedule.  Problem is we, as non-professionals, see them as one when asking for compensation because they go together.  Depends on whether the doctor tells us which is the problem.  The Navy told me I had a hearing problem.  They wrote in the consult that I had tinnitus to the degree I could not operate a forklift.

I claimed a hearing problem.  I complained to the audiologist that I could not hear all of the beeps because of ringing in my ears.  But the RO had excluded tinnitus from the examination because I only claimed hearing problem.

There is a CAVC Decision that goes against the RO limitation of examinations. 

When the VA does an examination it must do a complete examination whether it is required to do so by law or not. 

The decision is cited in my 2017 BVA Decision and the examinations were remanded because they were not complete.  They still have not been done as remanded and I am back at the BVA because the DRO did not read the remands citation in the Facts laid out by the BVA Judge.

[63Charlie]

I believe I will be successful with at the Court to overturn the lowball 30% rating.

 

BVA should have awarded a 60% rating base upon an IME performed by Dr. Ellis.

That IME clearly stated multiple episodes of vertigo occurring monthly.

Ignoring relevant evidence is frowned upon by the Court.

 

I also intend to appeal for an earlier effective date dating back to April 1981 for Meniere's Disease when I ETS.  see Arellano v. McDonough, SCOTUS

* SCOTUS will have to overturn the precedent of "Irwin" for this issue to have success.

 

Got to get ready for another C&P exam at QTC today.

 

Almost forgot to mention, I recently had a C&P exam for hearing loss on remand performed and the examiner attempted to gaslight me that I had no hearing loss at my exit exam when I ETS.

I informed the examiner that a threshold shift at 25 dB IS a hearing loss as established by court precedent.

I informed her I will definitely appeal this matter to the CAVC based on the fact that she disclosed her intent to submit a DBQ which is not factual and is therefore inadequate for rating purposes.

BTW...this examiner has past decades of experience as an audiologist for the VHA.

The apple doesn't fall far from the tree. 

 

The battle continues.

Edited June 20, 2022 by 63Charlie