tdiu Va Didn't Read Evidence. What Now?

[Sergeant G]

I filed an appeal regarding my entitlement to an earlier effective date for my award of individual unemployability (IU) on March 1, 2011. Last Wednesday, I received a Statement of the Case (SOC), which confirmed the current effective date.

I’m mad as hell because the morons at the regional office ignored the document I submitted as my appeal. Even though they obviously received my appeal (since they responded with an SOC), they did not list the document under the evidence considered on the first page of the SOC. Also, when I visited the (Boston) regional office (RO) in July, I saw my appeal at the very top of my claim file, so there is no excuse for the author of the SOC to miss it. Like I said, morons.

Also, the SOC is essentially a restatement of the rating decision I appealed. The appeal I submitted was 16 pages and thoroughly detailed the reasons why the rating decision was incorrect; however, the SOC did not address a single one of the issues I raised.

Is there a way for me to compel the RO to read the evidence they ignored and have them issue a Supplemental Statement of the Case (SSOC)? I plan to file a Substantive Appeal within the next 60 days to perfect my appellate rights; however, I don’t think I should have to wait 2+ years for a BVA hearing merely because of someone’s laziness and incompetence at the RO level. Furthermore, according to the M21-1MR, an appeal cannot be certified for the BVA docket if it requires corrective action.

Any thoughts? Thanks!

Sergeant G

[halos2]

I believe you. know that been there am on your side with these careless employees.

If the VA had gone through my evidence I would not have had to wait all these years and force them to a DRO hearing... I produced hundreds of pounds of evdience they totally ignored, and had it put into evidence... It was not hidden, it was all in their records at the VA, they just refused to look at it... now they cannot ignore it, it's on transcripts, in records, on paper, in computer, on audio tape,,,, and it's all in my favor... it was outragous and disgusting vets have to go through this charade... they think by not reading it, it will stay hidden...

now they are dragging their feet before they actually give me my long overdue benefits,, but, at least the hearing shined a bright light on the truth...

a year has almost passed since the DRO hearing,,, just letting my life slip away while I await for them to get to the damned decisions...

[Sergeant G]

Carlie,

Thanks for writing. I was trying to be as brief as possible in my original post, but I guess some background information is in order. Please note the following is a LONG post, but it includes the language from the rating decision, SOC, and my arguments in support of my claim. I appreciate you reading it.

In 1999, I was awarded a 10% rating for depression. Eventually my condition got much worse and my diagnosis was changed to bipolar disorder. In December 2007, I filed a claim for an increased rating. I was unemployed at the time and met the criteria for individual unemployability as outlined in 38 C.F.R. § 4.16. VA treatment notes support this. In June 2008, my rating was increased to only 30%. I appealed and eventually was awarded 70% in September 2009, with an effective date of December 2007. I filed a notice of disagreement (NOD) and asserted that I had an informal claim for IU when I filed for my increased rating. At the same time, I filed a formal application for IU. My application was denied in April 2010 because VA failed to consider all evidence of record. Go figure. I promptly filed a NOD and requested a de novo review and personal hearing. In June 2010, I had the hearing and presented a mountain of evidence in support of my claim for IU with an effective date of January 2007. The DRO granted IU in January 2011 with an effective date of July 2009, which was when I stopped working pursuant to medical advice from my VA treatment providers. The last time I sustained gainful employment was June 2006. I had a few different jobs from then until July 2009, but they all were considered marginal employment according to the definition in 38 C.F.R. § 4.16, and, therefore, not gainful. During the hearing, the only questions the DRO asked focused on when I practiced law, where I was licensed, and non-legal jobs I held. I am licensed in Massachusetts and was living in Texas when I filed my claim in 2007. I returned to Massachusetts in June 2008.

Here is the text from the original rating decision, which granted IU in January 2011 with an effective date of July 2009:

"Veteran contends that she should be granted individual unemployability from 2006 because she was unable to work as an attorney since that time. However, in her hearing of June 2010, the veteran admitted that she was not living in a state where she was licensed to practice law from 2006 until June of 2008. She states that she applied for attorney jobs but was not hired. She blames her symptoms rather than her checkered resume or the economy."

The following is a long excerpt from the 16-page document I referenced in my original post, which was submitted as part of my NOD on March 1, 2011:

"In my opinion, the DRO misinterpreted and manipulated my evidence and testimony during my June 2010 hearing with the intention of assigning a later effective date.

Contrary to the DRO's decision, I did not contend that I should be granted IU merely because I could not work as an attorney since 2006. I am entitled to an earlier effective date because I was unemployed and had an informal claim for IU on December 11, 2007 by having met the criteria of 38 C.F.R. § 4.16(a), and there was evidence of unemployability in my VA medical records within the 12 months prior to filing my claim and afterward. I was unable to secure or maintain any gainful employment—law-related or otherwise, and in evidence I submitted during my June 2010 hearing, I stated that I was unable to function in any work setting.

The VA Adjudication Procedures Manual M21-1MR (M21-1MR) defines substantially gainful employment as: "employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." 38 C.F.R. § 4.2 provides that evaluations are based on the point of view of the veteran working or seeking work. Considering the foregoing, it was relevant for me to state that I am attorney and to present average earnings for attorneys in the community where I reside. However, that was not my sole reason for being entitled to an earlier effective date. The fact that I did practice law on a full-time basis at one point shows my pre-morbid level of functioning and how, after my disability increased, I was not even capable of handling much less demanding part-time jobs such as graphic designer, life insurance sales representative, cashier, or administrative assistant. Mentioning my occupation as an attorney should have strengthened my claim instead of detracting from it. I could have referenced any one of my several other "occupations" from 2007 through 2009 and I was still not substantially and gainfully employed according to the definitions in 38 C.F.R. § 4.16(a) and in the M21-1MR.

The DRO had a duty to assist me in developing my claim and to grant every benefit that can be supported in law. Most of the DRO's questions during the June 2010 hearing appeared innocuous; however, after reading the rating decision, I believe the questions she asked undermined my claim and were intended to assign a later effective date. First, she suggested that the "economy" or my "checkered resume" could have been responsible for my unemployment and unemployability instead of my symptoms. Indeed, my symptoms—both manic and depressive—are responsible for the "checkered resume" and this has been substantiated in my medical records. Next, despite my extensive testimony regarding an informal claim for IU, the only other questions the DRO asked focused on when I lived in Texas and moved back to Massachusetts, the status of my license to practice law in those states, and jobs I held that were not law-related. Contrary to 38 C.F.R. § 3.103©(2), those questions were not intended to "explore fully the basis of [my] claimed entitlement" or to be advantageous to my position. In fact, ultimately, the answers to those questions were used to refute my evidence and to support the DRO's rationale for assigning a later effective date. "The VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim…." See Comer v. Peake, 552 F.3d 1362, 1369 (2009). Accordingly, the DRO was not entitled to manipulate my evidence to assign a later effective date. Even according to the reasoning in the DRO's own decision, she failed to explain why she did not grant an effective date of at least June 2008, which was when I moved back to Massachusetts where I am licensed to practice law. Moreover, I would also like to note that even though I presented indisputable evidence of marginal employment (e.g., tax returns and printouts from the Census Bureau's website), the DRO would not agree that my employment from 2007 through 2009 was marginal.

The preponderance of evidence supports my claim. The DRO did not attempt to clarify my position during the June 2010 hearing. If any question remains as to what my contention really was, then the benefit of the doubt doctrine is invoked. At the very least, there is an approximate balance of positive and negative evidence supporting my position. Accordingly, it is mandated in 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 that I receive the benefit of the doubt and prevail.

Additionally, I did not say anything about my occupation(s) when I originally filed my claim for an increased rating in December 2007. My status as an attorney and where I was licensed to practice law would be irrelevant if the Columbia and Boston regional offices adjudicated my informal claim in the first place.

As previously stated, pursuant to 38 C.F.R. § 3.400, I am entitled to an effective date of at least December 11, 2007. In order to qualify for IU pursuant to 38 C.F.R. § 4.16(a), the claimant's disability must be severe enough to warrant at least a 60% rating. The Boston RO acknowledged my severe occupational impairment by assigning a 70% rating, which was effective on December 11, 2007. Under the criteria for a 70% rating, a claimant should demonstrate "occupational and social impairment, with deficiencies in most areas such as work, …judgment, thinking, or mood…" The criteria for a 70% rating overlaps with the criteria for IU because the claimant must show that she has difficulties performing in a work setting, and not being able to perform in a work setting is likely to prevent a claimant from being substantially and gainfully employed. Considering the foregoing, the Boston RO essentially acknowledged that my condition was severe enough to qualify for IU on December 11, 2007."

I said that I am entitled to an effective date of at least December 11, 2007, which was when I filed my increased rating claim, but, pursuant to 38 C.F.R. § 3.400(o)(2), I am also entitled to an effective date of January 2007 because there was evidence in my medical records that my condition increased in severity prior to the date I filed my claim. I addressed this issue separately in the document.

Like I said, the March 2011 document was ignored and the SOC was a restatement of the January 2011 rating decision. Here is the text from the SOC:

"The decision cited VA Form 21-4192's received in conjunction with the claim. They showed that you last worked on July 15, 2009, with a sporadic work history since 2006 working in graphic design, real estate and several menial jobs. The decision noted your contention that you should be granted individual unemployability from 2006 because of being unable to work as an attorney since that time. The decision noted your admission that you were not living in a state where you were licensed to practice law from 2006 until June of 2008. You have also contended that you made bad decisions with regard to career pursuit.

The decision notes your contention that you were told by treatment providers that you should not work. VA treatment records show a letter dated July 2, 2009 in which providers do recommend not working. VA Form 21-4192 from [my last place of employment] show that you last worked on July 15, 2009.

The decision granted entitlement to individual unemployability from July 16, 2009, the day following the date last worked."

Everything I said in my March 2011 NOD applies to the SOC. When I submit my Substantive Appeal, I will also address the comment about me making "bad decisions with regard to career pursuit." I'm not sure what the author of the SOC's point was in stating this. If anything, it supports my claim for an earlier effective date because the "bad decisions" were the result of my service-connected bipolar disorder. I will also note that it was improper to use the last day I worked as the basis of assigning the effective date since my employment was not gainful.

So there you have it. Again, I appreciate you taking the time to read this and everyone's input.

Serg,

On the rating decision that granted IU -

exactly what was stated in the Reasons and Bases Section

in relation to the effective date adjudicated for IU ?

What supports your contention to warrant an earlier effective date for IU ?

What exactly does the SOC state to support the denial of an earlier effective date ?

[Sergeant G]

Halos2,

Thanks for writing. Yes, I did use a VSO (DAV). They don’t really do much other than file documents. As for the VARO person “getting lost” in so many pages, I understand that it is a long document, but it is much shorter than having to wade through the rest of my claim file. I was trying to make it easier for the reviewer. The document was intended to be a “road map.” I included the history of my claim, a summary of the laws I relied upon, a discussion of why I am entitled to an earlier effective date, the specific response to the rating decision, and a summary of relevant treatment notes with corresponding dates. I didn’t want to leave anything out and rely on the rating specialist/DRO to dig out the information. Nonetheless, laziness is no excuse for failing to consider the evidence I submitted. Since I filed my increased rating claim in December 2007, I’ve learned that VA doesn’t put much effort into properly adjudicating claims. I have filed several notices of disagreement over the course of my current claim.

Original date of award? You filed in Mar1, 2011 for earlier date...16 page rebuttal / VARO person got lost in so many pages. Did you use a VSO? Watch your dates. Make sure you stay timely. You are lucky to get responses as soon as you do. Waiting since 03-09 and get what was originally requested and only granted from 09 to take it NOW or fight many more years, leaves a bad taste in one's mouth. Don't ever give up and remember valid info IMO/IME trumps all. Hang in there.

[Sergeant G]

Thanks, John999

Ask for a personal hearing with a DRO on your claim.

[Sergeant G]

Allan,

Sorry to see that you are going through this. It's pathetic that there is no accountability for the idiots who rate/review claims. It's also bad when a court has to tell the BVA and regional office to "read" the evidence. I hope you get your SOC before 2014 and that it's favorable. Good luck!

Twelve years later, the CAVC finally read evidence I submitted the VARO has completely ignored. Case was remanded back to the BVA in 2010, with instructions to actually read it this time or explain why they can't. My guess is I may recieve yet another SOC by the BVA in 2014.

Expect it to go back to the CAVC after that. Not convinced raters can read unless its to stall a claim.

[Sergeant G]

Thanks for writing retiredat44. I wish you the best of luck with your claim.

If the VA had gone through my evidence I would not have had to wait all these years and force them to a DRO hearing... I produced hundreds of pounds of evdience they totally ignored, and had it put into evidence... It was not hidden, it was all in their records at the VA, they just refused to look at it... now they cannot ignore it, it's on transcripts, in records, on paper, in computer, on audio tape,,,, and it's all in my favor... it was outragous and disgusting vets have to go through this charade... they think by not reading it, it will stay hidden...

now they are dragging their feet before they actually give me my long overdue benefits,, but, at least the hearing shined a bright light on the truth...

a year has almost passed since the DRO hearing,,, just letting my life slip away while I await for them to get to the damned decisions...