While I know this occurred after the wheels were in motion on WGM’s claim, it seems an amazing coincidence. I’m willing to bet Mr. West Virginia heard about all those hot shot Texas Veterans Commission Service Officers and moved there. Stands to reason.

The long and the short of this claim is 12 years. You will notice they had to go way back with the Fenderson method to get it right. Now, I’m not saying they got it right yet, because there’s a high probability that this isn’t over. He could appeal this if he’s not satisfied. I would because I don’t trust them.

This Vet filed in 2001 and finally got the magic paper in 05. That’s when it started to slow down. Here we are in 2012 and the VLJ is finally writing the last chapter at 810 Vermont St. NW. What appears to be simple isn’t. A Fenderson claim will look at every scrap of paper in the evidence bin and sometimes they come up with the darnedest explanations for their conclusions. Here, from what I see, it appears he got a fairly good assessment and justice was mostly fair. Readers will note what also appears to be a stinky spot from 2002 to 2008. The reason for that is simple. The Vet, whether through error or a mistake, had an opportunity to fix this while waiting for his appeal to come up, but did not submit any new, private medrecs for that period. That was a big mistake if indeed he had any. This is why his rating will be stuck on 40% during the period. If he’d had any supporting evidence to rebut it, the VA would have bumped him up to 60%. He obviously had some pretty convincing evidence to warrant the  100% rating from 2008 on, so it is self-explanatory.

This decision clearly shows the danger of pursuing two similar disease processes where only one is warranted. The BVA here is giving him the 40% based strictly on DC 7354 for hepatitis but jumps ship and goes into DC 7312 (cirrhosis) in 2008. The hepatitis now becomes the less-dominant disease process in their demented minds. Which is all well and fine for Mr. New to Houston as he gets the big banana from 2008.

What is miserly about this decision is this little fact:

As reported above, the Veteran has raised the issue of entitlement to TDIU since the inception of the appeal. The records reflects that, as of April 10, 2001, the Veteran held a combined 70 percent service-connected rating based upon hepatitis C, rated as 40 percent disabling; posttraumatic stress disorder (PTSD), rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensable. Thus, the Veteran was eligible for a TDIU rating under 38 C.F.R. § 4.16(a).  

TDIU may be awarded TDIU based upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. 

It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. 

Addressing this matter in a practical manner, including consideration of the service-connected impairments involving multiple bodily systems, the limited types of employment available to the Veteran given his disability status and limited education and vocational experience, and his credible testimony of being unable to work due to service-connected disabilities as of April 10, 2001, the Board resolves reasonable doubt in favor of the Veteran by finding that his service-connected disabilities have rendered him unable to secure or follow substantially gainful employment for the time period from April 10, 2001 to October 2, 2002. 38 U.S.C.A. § 5107. The appeal on the TDIU issue is granted. 

Mr. VLJ and his merry men thus split the TDIU melon down the middle, carve off an 1/8 and give it to Mountain Man. They promptly turn about and take it  back, returning him to 70% for six years until his liver hits bingo. Suddenly he’s 100% again. Talk about Ricochet Rabbit.

The decision perfectly incorporates the theory of not only TDIU, but the Fenderson method of staged ratings. This fellow was lucky that he had a fairly detailed medical file. But for the DM2, and the ascites, he’d probably have lost weight. This may seem like a long time to adjudicate one of these things. Frankly, it is. He depended on the RO kids to do him right which they didn’t. He ended up appealing it because the mindset on these things at the AOJ is denial. With that sure knowledge, his best path lay in beating feet to D.C. right out of the denial and taking care of business there. DRO reviews are all well and fine but all they do in the long run is put you in a holding pattern waiting to take off to D.C. Unless you have evidence that is going to rock the DRO’s world, you’re wasting your time. DROs specialize in post hoc rationalizations and fabricating the denial furniture to fit the facts as they interpret them. They do all this from the original denial, too. They usually take any new exculpatory evidence and fashion it to fit the denial better rather than the obverse.

Check it out. This one is an excellent example of so much you need to know. The judge is also being mighty liberal with the money here, too. When you look at the bottom, you see why

____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans’ Appeals (aka wet behind the ears)

Pour yourself an ice tea, download this puppy, print it and get out the yellow highlighter.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files5/1144158.txt

See. These  State SO guys in Texas even wear white hats.