REGULATIONS PROHIBITING REFERENCE TO UNNECESSARY DISABILITIES WHEN GRANTING TDIU????

[Otrgypsy]

Only two VA Neurologists authored C&P reports denying my CNS issues. Before the the last BVA decision one VA Neuro reversed her opinion and said my CNS issues were service connected (she never disputed unemployability for CNS reasons). The 2nd VA Neuro scumbag (LHI) issued a blanket retraction and admitted service connection (to protect his license). 4-5 others issued reports and med opinions saying I am unemployable strictly for CNS reasons (and resulting psych issues).  Are there any VA regulations that prohibit a rater from making unnecessary reference to different disabilities, when they award TDIU?

THE POINT IS I'M ENTITLED TO A FINDING OF TDIU BASED SOLEY ON THE 70% CNS RATING WHEN THE EFFECTS OF THE CNS INJURY ARE CONSIDERED.  HOW CAN THEY BE ALLOWED TO DEFEAT SMC BY JUST THROWING IN UNREQUESTED FINDINGS THAT UNNECESSARILY REFERENCE MY OTHER DISABILITIES???? THIS SEEMS SLIMY AS HELL AND INTENTIONAL.

I AM BEGINNING TO WRITE AN APPEAL. i AM WITHIN THE 1 YEAR. IF ANYONE KNOWS OF ANY VA REGS THAT ADDRESS THIS SITUATION I WOULD BE VERY GRATEFUL TO RECEIVE THEM.

Edited April 10 by Otrgypsy

[pacmanx1]

Have you read and or considered Buie v. Shinseki, 08-2705(E) (Vet. App. 2011)?

 

James E. Buie v. Eric K. Shinseki – CourtListener.com

[Lemuel]

38 minutes ago, pacmanx1 said:

Have you read and or considered Buie v. Shinseki, 08-2705(E) (Vet. App. 2011)?

 

James E. Buie v. Eric K. Shinseki – CourtListener.com

Well said.

[broncovet]

When you filled out your tdiu form, "which" disabilitie(s) did you say caused tdiu?  That is, look on your tdiu form, the one you filled out, in your VBMS records before moving forward on this.  If YOU said it (your tdiu was due to all disabilities) you will have egg on your face in this  appeal.  

BUT wait!!!!  You may consider appealing the effective date!  Check to see if you had any record of showing the VA that you were unemployed/unemployable when you first applied.  (Assuming you were not working).  Go for extra schedular, if necessary.  

What ever you do, file that NOD on time.  Grab that decision, and as much of your cfile as you can..and see if you can refute the effective date/and or SMC S.  Dig deep.  

[pacmanx1]

On 4/3/2024 at 10:56 PM, Otrgypsy said:

Before the the last BVA decision one VA Neuro reversed her opinion and said my CNS issues were service connected (she never disputed unemployability for CNS reasons).

IMHO, I think it boils down to what the medical opinion states. If you have a medical opinion that states, you have a single service-connected disability that causes you to be unemployable then that opens the door to Buie v. Shinseki. 

Buie states, The Court has held that the order in which disabilities are service connected is not relevant to VA’s determination of a claimant’s eligibility for special monthly compensation under 37 U.S.C. section 1114(s).

Whenever a veteran has a total disability rating, schedular or extra-schedular, based on multiple disability or disabilities, and the veteran is subsequently awarded service connected for any additional disability or disabilities, VA’s duty to maximize benefit requires VA to assess all of the claimant’s disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s).

If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities.  Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010), as amended (Apr. 21, 2011).

[broncovet]

I agree with Pacman.  The issue of whether or not the Veteran is unemplloyable, and/or whether or not its due to SC disabilities or not, or WHICH SC disabilities is a medical, or often a voc rehab counselor's opinion.  

Indeed, I won my EXTRA schedular TDIU claim (that is, I did not meet the percentage requirement in 4.16a) based on the opinion of a well written voc rehab counselors opinion.  Extra schedular tdiu, in this instance, I mean a 4.16 B claim of less than the percentage requirments in 4.16a.  

If I recall, I paid 5 or 6 hundred for the voc rehab opinion and the counselor was recommended by my attorney, who won a remand at the cavc level.  (This means I did not pay for the attorney, as the attorney fees were paid by EAJA).  And, the attorney further suggested WITH THIS VOC REHAB IMO, HE FELT IT WAS SUFFICIENT TO WIN AT THE BOARD.    It was. A 500 IMO saved me around 10 times that in attorney fees at the BVA.  I got a VSO for the BOARD "only because" I know its hard to remove a POA, without putting in a new one, thus, I signed up with a VSO which removed the attorney, which is what he suggested.  The attorney was spot on, and I got the best possible result at the lowest possible cost.  

[Rattler]

pacmanx1

Until you posted that case I haven't seen the court use, "Buie states, The Court has held that the order in which disabilities are service connected is not relevant to VA’s determination of a claimant’s eligibility for special monthly compensation under 37 U.S.C. section 1114(s)."

Or "If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities.  Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010), as amended (Apr. 21, 2011)."

I can think of ways to use it in other cases. "the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities." Any Idea how it was amended? (as amended (Apr. 21, 2011).