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Ihd Claim Appeal
Posted 20 July 2012 - 02:11 AM
Went with the DAV instead for the appeal of his Nehmer IHD claim.
IHD claim -
* No problem with the date
* rated 30% 1988 to 1991
*rated 100% 1991 to 1992 (By pass surgery)
*rated 30% 1992 to 2001
*rated 60% 2001 to present
Problem with rating-
* reason given for 30% assigned rating: Veteran has not demonstrated in evidence that a rating higher than 30% is warranted. A rating higher than 30% requires proof that the veteran had recurrent aginal attacks or a reduced ability to work, such as the inability to do anything other than sendentary work.
* So my husband recieved SSD when he had his heart attack and several angio and stents placed in 1988.
* VA VOC REHAB attempted to retrain him because he was unable to return to the same type of work that he was doing. He failed the retraining which was part of the SSD claim in 1988.
VA never considered the Voc Rehab records or the social security records.
DAV guy just wrote a generic "Veteran feels that he is entitled to a rating of at least 60% due to being granted Social Security Disability in 1988" letter/NOD.
It has now gone into the appeals process according to ebenefits. I understand that a DRO review is part of the appeals process but will this really help?
Should we have submitted a CUE (failing to take the voc rehab records into account/ duty to assist) or new and material evidence instead?
The DAV rep could have done much better than the NOD he did write. He did not indicate the applicable rules about using the old IHD regs if they are more favorable (which they are). Nor did he state anything about the Voc Rehab records that prove he was unable to do anything but sedetary work (old IHD regs for 100%).
What should we do? Any advice?
Posted 20 July 2012 - 05:44 AM
Posted 20 July 2012 - 06:22 AM
VA never considered the Voc Rehab records or the social security records."
That might be the key to this claim for higher rating.
If VA knew he was getting SSA and he signed an authorization form for VA to get them, there might have been an evidentiary CUE committed here,if thy were never obtained by the VA.
Are they listed as Evidence? If not they have to be obtained by the VA.
Or did VA ever get them and then opine on them in any past decision?
"DAV guy just wrote a generic "Veteran feels that he is entitled to a rating of at least 60% due to being granted Social Security Disability in 1988" letter/NOD."
A DAV NSO gave me such lousy advise over my husband's SSA award that I revoked the POA, found out VA had never even obtained them, and from that day on, I did my own claims work.
My husband was Voc Rehab too and his Voc Rehab records were considered by SSA as well as VA ,due to his accommodation requests that Corning College had granted.
Something seems wrong here. I cant tell i they committed a CUE but the most important thing to do is to make sure the VA tried to obtain his SSA records (I used my husband's VA authorization form to prove he had authorized them to get the records)
if they have never been listed as evidence, they must be acquired by the VA or by you---and sent in
and if they were listed as evidnce , what did VA say as to their SSA findings regarding his IHD rating?
Posted 20 July 2012 - 10:01 AM
Anyway, a SSA determination of SSDI due solely to IHD is a telling factor, and should be a key part of the evidence in favor of a higher rating with a 1988 EDD, assuming all the other things the VA quibbles about are satisfied. The "veteran feels" statement can be used against the veteran by an RO, although such use might be construed as not meeting the "maximum benefit" clauses in the laws.
Posted 20 July 2012 - 02:21 PM
What did they know and when did they know it? 'They' meaning the VA
If the VA knew he was on SSDI ,because he documented to them that he was,in his past claim, then the VA should have sent him a 21-4142 form for any private medical and/or SSDI records,which he needed to sign and then copy and mail back to the VA.
In 1988 those forms were not available on line and only the VA or maybe some vet reps had them.
If the VA knew he was on SSDI and had his signed 21- 4142 form but didnt, (as in my personal situation below) even attempt to get those records ,this might well be a CUE. It could be a CUE based oh 38 CFR 4.3 and 4.6.
Cue also involves the “watergate' question but breaking the DTA regs does not warrant a valid CUE claim. The regs I mentioned might do it.
"DAV guy just wrote a generic "Veteran feels that he is entitled to a rating of at least 60% due to being granted Social Security Disability in 1988" letter/NOD." What a wimp.
If the SSDI award was Solely for IHD, the rep should have whipped out a TDIU form ,had your husband fill it out and sign it, give him a copy and and refer to it in the NOD as enclosed, and ask that it be promptly considered for a proper award of TDIU and then figure out how to prepare a CUE on the older decision.
Still this depends on what he received the SSDI for.
And why the DAV rep came up with a request for 'at least 60%'