hearing loss Assistance with Statement of the Case (SOC)

[billycarlton]

Good afternoon everyone,

                                         I have a question about a current appeal, and the subsequent SOC I received from the RO. When retiring from the Army in 2010, I participated in the benefits delivered at discharge (BDD) offered by the Fort Sill, Oklahoma transitioning processing center.  I received an evaluation for PTSD/with Major Depression at 30% disabling, tinnitus at 10%, and hearing loss at 0%.  Once out of the Army and working in the civilian world I continued treatment for PTSD with local psychologists and psychiatrists, and struggled with transitioning.  In September of 2012 I applied for an increase for PTSD with major depression, and was denied. I recently received my SOC and was going over their (the VA's) decision and reasons and bases section of the SOC, and have a some questions that maybe someone with experience could assist me with.

The reasons and bases section address the VA examination report, my C & P exam, but only refer to my PTSD. The examiners report and the VA decision does not address the major depression aspect associated with my claim.  My plan is to obviously address this when I file my VA form 9, but was wondering what the audiences experience was regarding this situation.

Doesn't the VA normally rate depression and PTSD as two separate disabilities..?

In closing, I just want to say thanks in advance for any help, and thanks for all you do to support our veterans.

v/r Billy

[broncovet]

Well, no.   If you look at the schedule of rating disabilities, you will see that all mental health disorders are rated the same..based on symptoms.  If you get compensated for a symptom, such as "inability to get along with others", on PTSD, you wont get it "again" on depression.  

You have 60 days from the receipt of the SOC to file an I9 or your appeal will be considered "abandoned".  If you want an increase, you need to show your symptoms more closely match the next higher criteria.   You can/should go through your medical reports and show where the doctor said you had "symptom x" which was in the next higher rating criteria.  

One example of this is "suicidal ideations".  SI are ONLY on the 70% and 100%, so if you do have SI, then you can make a case for at least 70%.  

On the reverse side, if you are working full time, its hard to show you have "total occupational impairment" in the 100% category or even "occupational impairment" in the 70% category.   See the criteria, below:

General Rating Formula for Mental Disorders

	Rating
Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.	100
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.	70
Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.	50
Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).	30
Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.	10
A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.

[billycarlton]

broncovet,

                    Got it.  Thanks for explaining this, and giving me the advice to move forward. I will keep you posted.  Thanks again.  Sincerely,  Billy

                    

[Berta]

Broncovet, you always give great advice but I have a question as to what you said regarding  "abandoned" appeal.

Has this changed:

 

"If you disagree with the Statement of the Case and would like to appeal to the Board of Veterans’ Appeals, file a Substantive Appeal. At this time, you can also choose whether you want an optional hearing before a Veterans Law Judge. v WHEN DO I FILE? You have one year from the date of the letter notifying you of the original decision on your claim or 60 days from the date of the letter accompanying the Statement of the Case, whichever provides you with more time. "

http://www.bva.va.gov/docs/Pamphlets/How-Do-I-Appeal-Booklet--508Compliance.pdf

[broncovet]

Good point, Berta, and this is an excellent  question.  I guess this means you can take "up to a year" if you request a hearing after the SOC, but if you file an I9, it has to be done in 60 days.  I have read cases where the VEteran failed to "perfect" his appeal, and file the I9, and it was deemed abandoned.  

This is a possible "loophole" for Vets...in other words, lets say they did not get the I9 filed in the 60 days, so they could keep the appeal alive by requesting an appeal hearing within the year, instead.

Im not sure this would work, but it might work.  The only way to find this out for sure, would be to try it.  I can not do hearings personally (because my hearing loss is severe enough that I will miss enough of what is said that half the time I dont know what they are talking about.), but my lawyer, Julie Glover, (Glover Luck) completed a CAVC hearing for me on July 22.   

   So far, Julie has been superb, and VA has already consented AT LEAST a JMR.  She is negotiating the terms of the JMR, obviously to be favorable to me (and her).  The VA has apparently already consented that EAJA fees will be covering her legal fees, so it will be at no cost to me.  

    I did not think I could be bested by an attorney, but I have to eat those words.  She has access to legal precedents, and legal knowledge of case law that it would take me years to get up to her speed.   Importantly, she also has some important contacts, as well.  For example, she says she has a good rapport with my VARO, and my name is mud there.    I think I made em mad by filing a Writ of mandamus, a few years ago.    I also know they want me to shut up about shreddergate.  

   I wont do that.  As you know, 2008 was not the first instance of widespread VARO shredding of evidence, and there is a new one, in 2015, where VAOIG identified 6 out of 10 RO's who had evidence in the shredder bin inappropriately.   Even more recently, its still going on in Los Angeles.  Cushman vs Shinseki showed us the VA will even fraudulently alter evidence in order to get their denial.  You know if it happens in Cushman, it will happen elsewhere also.   

[Buck52]

Here is a little more information on appeals!

Once an SOC is issued, the DRO process is complete.  If the appeal continues, it is now under the Traditional appeals process.  DRO authority does not extend beyond the issuance of the SOC.

In order for a Veteran to continue the appeal, the VA must receive a Substantive (Formal) appeal, which is a VA Form 9, Appeal to Board of Veterans’ Appeals, or an equivalent statement of intent to continue the appeal.  There is no legal requirement that a specific VA Form must be received in order to continue an appeal, but VA must receive some form of communication in writing from the Veteran or his Representative indicating an intent to continue the appeal.

A Veteran has EITHER the remainder of one year from the initial decision notification letter, OR 60 days from the date the SOC was mailed, to file his Substantive appeal.  Otherwise, his appeal rights for those issues expire, and the NOD is closed.

If the Veteran has filed a timely Substantive appeal, the next step in the appeals process is to certify the appeal to the Board of Veterans’ Appeals (BVA), which is to transfer jurisdiction of the appeal to BVA.

However, the Regional Office cannot physically send the claims file to BVA until all pending NODs and all pending claims have been decided.  There can be no appeal issues pending before the Regional Office at the time the claims file is sent to BVA; otherwise, BVA will issue a Remand instructing the Regional Office to issue an SOC on any pending appeals.

Additionally, if the veteran has requested a BVA travel board hearing or BVA Video conference hearing, the claims file remains physically at the Regional Office until the BVA hearing can be scheduled.

In the past, if any additional evidence was submitted which related to the issues under appeal, then the Regional Office had to review the additional evidence, and if the appeal continued, it had to issue a Supplemental Statement of the Case (SSOC) explaining why the additional evidence did not change the prior decision and give the Veteran 30 days to reply.  If yet more evidence was received, another SSOC was issued with another 30 day reply period.  There was no limit to the number of SSOCs which could be issued.  The appeal could not be certified to BVA until all of evidence in the claims file had been considered at the Regional Office level.

If an appeal was certified to BVA and additional evidence was subsequently received, the Regional Office had to either obtain a waiver of jurisdiction from the Veteran or his Representative, or the appeal had to be removed from certified status and another SSOC issued.  Following the 30 day reply period, if no additional evidence was added to the claims file, the appeal could be re-certified to BVA.

This is the stage where many delays occurred because many Veterans have multiple appeals pending in various stages of the appeals process.  Additionally, they will also have new claims pending in various stages of initial development.  Therefore, every time additional evidence was added to the claims file, the Regional Office Appeals Team had to review all of the appeals to determine if an SSOC was necessary.  If so, then any appeals already certified to BVA had to be removed from certified status, and the process continued to repeat itself until such time that all evidence in the claims file had been considered in a decision at the Regional Office level.  It was only then that we could physically transfer the file to BVA jurisdiction.

Effective February 2, 2013, Section 501 (Automatic waiver of agency of original jurisdiction review of new evidence) of Public Law 112-154 took effect.  This change in law established an automatic waiver of Regional Office (agency of original jurisdiction) review of evidence received after receipt of the substantive appeal.  The evidence is subject to initial review by BVA unless the appellant specifically requests, in writing, initial review by the Regional Office.

However, to date, we have received no guidance from Compensation Service and Pension and Fiduciary Service on how to implement this provision.

Therefore, at least at the Milwaukee Regional Office, we are still issuing SSOCs until we receive guidance to do otherwise.  I would also note that I personally have seen two separate BVA Remands dated from April 2013, which is after the change in law, in which a BVA judge noted there was evidence in the claims file received after the substantive appeal which the Regional Office had not considered.  Both Remands ordered the Regional Office to consider this evidence as part of the reasons for the Remand.

Hopefully, however, Section 501 of Public Law 112-154 will help us certify and transfer appeals to BVA in a much more timely manner.  

[Buck52]

Broncovet has landed a great attorney...she has to be great b/c all people from Dallas Tx Is great

and this means me too  

 

.........Buck