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.

 

[Lemuel]

1 hour ago, 63Charlie said:

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.

Did you have to put in for State Disability Insurance because of inability to work?  If not no chance probably.  The BVA is finder of FACTS.  You need facts to disprove the rating judgement of 30%.  If you only have some sick days that will probably not cut the mustard.

[Richard1954]

5 hours ago, Lemuel said:

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

Again it has to go to the Washington DC office for any extraschedular rating, I  am not saying you woun't get what you looking for, what I am saying is you have an uphill battle. Good luck....

[Richard1954]

4 hours ago, Lemuel said:

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

you are correct, but I honestly think you have a hard battle. 

I've been to both the BVA and the COVA. Did it myself and won my cases based on the original evidence.

I don't think it is hard, and I certainally don't think a lawyer is necessary, but i've been dealing with va claims since 1986, and I realize some veterans may not feel comfortable going to the court withour a lawyer.  But that is what we all did did for years.

I have also had a case where medical opinions from Dr. Anise were ignored  after the initial claim and upon review. The third time the claim was granted, and I did not even need the IMO according to the BVA.

[Lemuel]

6 hours ago, Richard1954 said:

Again it has to go to the Washington DC office for any extraschedular rating, I  am not saying you woun't get what you looking for, what I am saying is you have an uphill battle. Good luck....

The TDIU with an EED back to September of 1985 made the tinnitus raise mute.  That does not mean someone else might get the increase in tinnitus or that my new hearing on the remands will not send it back to the Director, Compensation Services for another go since it was ignored in the TDIU rating both by the DRO who did the work up for the Director and the Director.  I think they just missed it in reading but without also getting an EED for it--the BVA Judge only mentioned rating % and not EED which was denied.  I have submitted new evidence for the EED and a different argument.

The Director does grant extra-schedular, especially when errors are made that do not rise to "clear and unmistakable".