broncovet

Rak You stated: "Once a claim is reopened within the appellate period, the claim is considered to have been continuously prosecuted. This means there will be no expiration of the prior claim for failure to respond or file an NOD, because in essence, you have and the request is governed by 3.156b, and 3.160. " While I find your posts generally knowledgeable, this statement is in conflict with some other posters. (Possibly Berta) Before I would "bet my entire Retro (sometimes enough money to buy a home) that the VA interpreted it the same way", I think I would file the NOD before the year, just in case. It has been suggested that we mark our calendar, (when filing a MFR) and send in the NOD before a year. While I do agree that is somewhat awkward or even contradictory, I also understand the stakes are very high. If you have precedential case law to support your position, then feel free to post it. I dont mean to sound like a doubting Thomas...on the other hand, I have been given bad advice before and I have paid the penalty and lost my home. This is a pretty important issue, for me, because I think the odds of the VA resolving our MFR favorably within a year are slim..as they dont seem to get much done at all in a year, when you are talking appeals. A year is like a day to the VA. If you write in to the VA and complain, "Gee why is my appeal taking so long..its been a year".....they will laugh in your face and tell you to contact them again in 2015...that is when Shinseki promised to reduce the backlog.

I agree with Pete but add that it would not appear for IU and incompetency to be compatable. In other words, the VA would be saying....well, you dont meet the schedular requirements for 100% for a mental disorder...but we are declaring you incompetent anyway and awarding TDIU. In other words, I dont see how the VA can say on one hand, "your condition is not severe enough for 100%" AND, say at the same time, "Your condition is so severe you cant even handle your money". This is all just speculation, and probably wont even matter. You simply need to wait for your decision. Go fishing and stop "mailbox watching".

Cm Burns A general consensus would seem to indicate that "e benefits" should be added to the "unreliablity" list which already includes IRIS, dialing the 800 number, and many VSO opinions. One problem is that the 58 Regional Offices vary widely in how quickly they post information to the ebenefits site. We simply dont know how "up to date" this information is. Some RO's seem to "stay on top" of E benefits...one poster on this site said he got his benefits within a month of ebenefits reporting it "closed". My ebenefits site has been showing my claim "closed" for about a year, and nothing seems to be happening, however. The inconsistency of Regional Office undertakings is legendary.

Thanks, Carlie The case you cited seems to answer the question unambiguously: The Veteran can propose multiple theories on which he is entitled to benefits, and the Board must address them all, assuming a broad interpretation that this does NOT just apply to whether the Veterans condition is direct or presumptive, but on legal theories as well, such as the pending claim doctrine, deemed denials, CUE, etc.

Jim and Delta Thank you for these most informative posts. I read the 39 page document and wished I would have read this two years ago, as it would have saved a lot of time and effort, concentrating on the issues that matter, in regard to the effective date. There is simply no point in a Veteran persuing a benefit when a similar court has already stricken it down. Instead, the Veteran needs to modify his approach for an effective date, taking into account this document. The BIG issue seems to be whether or not to file a "CUE". Of course, CUE only applies to a final claim, but, the pending claim doctrine may render the claim "non final" and instantly destroy the CUE. In my appeal, I am using both alternates: 1) The pending claim doctrine and also 2) collaterally attacking the claim based on CUE to cover both bases. I really can not decide for sure to which category mine is, and I dont want to take another 4 years making the wrong choice. I am hoping the BOARD will let me propose both alternates: Cue and the pending claim doctrine. For me, the more favorable is the pending claim doctrine, as I dont have to meet CUE standards.

I am interested in knowing "Who" told you "numerous times" your claim was in order? Was it your VSO? IRIS? The toll free number? The reason I ask is that most Vets advocates agree that these are not particularly reliable sources of information. Was it the same source that "advised you your claim was moved back to the "informational" phase? "Informational phase" is not a term that I normally hear from experienced, knowledgeable Vets advocates. I hear "Development phase" "triage", etc. etc. but that term is somewhat suspicious that who ever is advising you REALLY knows what they are doing. It frankly sounds to me like something somone made up...when they did not know. I am not telling you to "fire" your VSO, but I do know when the police talk to five different witnesses and all tell the exact same story...they know that all five have been communicated and coached to tell the same story. That is, they are probably lying. 5 independent witnesses will provide their own perspective to any event...we saw that with the witness reports on the slaying of JFK. The witnesses were credible, but did not even agree how many shots were fired. And that is normal. And it is also normal for you to call the VA five times, and get at least 3 conflicting reports as to what stage your claim is in. That being said, Berta does know what she is talking about..and I agree. I would humbly recommend you not try to "micromanage" your VA claim. Yes, you want to stay on top of it..definately. You have certain deadlines to meet and the VA is very unforgiving if you fail to meet a deadline. However, to constantly try to figure out what stage your claim is in, waiting for the proverbial pot to boil is likely going to frustrate you. Get a hobby, and when the decision arrives let us know and we will try to advise you whether to file a NOD, MFR, etc. JMHO.

A form 21-22 is an appointment of VSO as claimant. Is the Texas Veterans Commission your VSO?

Delta Good post. While I can not answer your question specifically, I would suggest that the VA seems to require proof from Veterans about everything, so my guess that if you appeal it, send a letter from a school official that the school was closed due to energy conservation. I would not leave that to chance. YOu can see the handwriting on the wall. I mean I do agree there is case law that the BVA cannot disregard the Veterans testimony solely on the bases that he is an "interested party", still, the law does not say that they have to take your word for it either. My advice, having dealt with Ch. 35 with my son is to send in the school official letter BUT dont count on that being accepted either.

Agree. When the VEteran asks for an "increase" he is assumed to be seeking the Maximum, that is 100 percent. Unless he is awarded 100 percent schedular, then he is assumed to also be seeking TDIU. Still, I dont know why the claim was deferred Unless they rated something else, either denied or awarded. Then I understand how/why TDIU can be deferred.

I agree with Basser...and recall reading that an IU claim is not a seperate claim, so it is unclear why your IU was deferred...did they decide anything, or just defer everything? Since the VA has no such thing as a deadline...I am really curious as to why they would "defer" this claim...instead of just delaying it, like they usually do. It seems like a waste of ink and paper to me.

Boomer... As you requested, I sent you an email. For future reference, you can also contact me via PM on hadit Bronco

Great Posts, Rak and Hoppy. I also agree with John. I got a bad C and P exam once. I wrote a detailed letter explaining why I disagreed with the C and P examiner, how the examiner made errors such as not reading my medical records, made erroneous assumptions, probably cut and pasted another Veterans med. records into mine etc, etc... It did absolutely no good, but something else did. Know what that was? The VA shredded their own C and P exam that would have given them the evidence they needed to deny. I'm not kidding. They shredded the good and the bad, including my letter to refute it...about 2000 pages plus of evidence...gone. Incredibly, they also shredded the form I signed releasing my medical information. So, they later asked me to sign another one. (I cant recall what excuse they gave..but they did not admit to shredding) I did not respond. Now, the VA gets only the information I choose to give them. They did this to themselves.. and still dont admit to shredding.

PR I did not mean to start an arguement...I appreciate your input. Since I am hard of hearing (HOH), half the time I have no idea what is going on. If I miss just a few letters of the conversation, I often "fill in the blanks" and guess the rest. A lot of times my guesses are wrong, so I wind up having no idea of what they are referring to. As a result of my poor ability to communicate, I sometimes say what I said before, in different words...because I am hoping they do that so I can figure out what is going on. In other words, we HOH want others not to repeat, but to rephrase, since if we did not hear it right the first time, often we wont the second time either. I find myself doing the same thing in posts..rephrasing what I had said. Its kind of like why HOH people often speak loud..too loud. We do this, hoping others will speak up, too. MOstly, this does not work. I have been told for years that I am "too loud". I apologize if I appeared argumentative, tho, sometimes I do do that, it was not my intention.

Hedgey The VA is up to the same tricks again. They did a similar thing to my son. When they asked him to specify a date, he went to the school and they faxed it in. Then he got a letter saying since he did not specify the date, they had picked the effective date for him. We went back to the school. The school counselor had a copy of the electronic submission in compliance with the letter, that specified an earlier date for retro. The VA had lost it. (yea right...lost it on purpose). The counselor sent them a letter explaining and documenting that we had sent the date, on time. Bottom LIne: He never got the Retro. I am convinced there is still shredding going on at the VA. Even worse, even when you save a copy, they ignore it. I hope you have better luck...I dont know whether or not this is appealable, but I definately know there is something fishy going on at the VA on a fairly wide scale. This is just my humble opinion. I really dont have a good answer what to do about it. Even tho the VA "got their way" (dont they always), it did not work out that bad for my son, because he is going to be able to go on for his masters, which he would not have been able to do, if they paid his retro as he would have ran out of DEA. I think you only get about 45 months of DEA...not enough for a masters.

No, they are not "moot". Because the VA chopped my claim up into parts, what should have been decided in ONE trip to the BVA takes TWO trips to the BVA. (If not more) By them not taking up the issues of percentages OR effective date..the RO "awards Service connection" for hearing loss at 0%...then I have to appeal the percentage, and now the effective date. Result: By not addressing these issues the first time, my claim is now 9 years old, and not done yet. I am pretty sure they did this same kind of thing to other VEterans. When we apply for disability compensation benefits, we are 1)seeking an award of Service Connection 2)we are seeking a disability percentage 3) we are seeking an effective date. All of these issues are appealable, and I think they are putting us on a hampster wheel on purpose by deciding only one of these.

I will add that THIS seems to be a contributing factor to the backlog. You see, if we have to appeal 8 times to get one benefit...you know the drill...we appeal service connection, then we appeal the disability percentage, then we appeal the effective date, then we appeal TDIU, then we appeal the effective date of TDIU, then we appeal SMC..and on and on. By circulating this claim 8 times through the appeal system, it definately clogs it up, when once should suffice.

We all know the VA LOVES to take a sawzall to our claim, chopping it up into several pieces, often meaning decades of delays, but the question is do they really have a legal basis to do this? While we all know they have done it, it may be time to "call them" on this and appeal it preventing it for the future. ONE example (there are many): I applied for: (quoting from my VCAA letter): "Disability compensation benefits for hearing loss". When it got to the BVA, it was already "cut" to (quoting from BVA decision) "service connection for hearing loss". Can you see how it was "chopped"? I did not apply for "service connection" to the exclusion of other things..because service connection, at 0%, means NO compensation. The BVA did not take up the whole issue. I was asking for compensation...MONEY...not free bouncy balls because I am service connected. Further, my claim for benefits established the effective date. Service connection is only ONE issue...another is disability percentage, and still another is effective date. Now I have to go back to the BVA and have them decide the effective date, which should have already been decided. If you read Roberson, below, you will note as my pastor might say....the VA is supposed to decide some of our claims....No? What percent of our claims? Oh, ALL of them..and this is what congress mandated. So if they have to decide all of them, does this mean they can chop them up and just decide part? Roberson Principii states: Roberson alleges that Norris v. West, 12 Vet. App. 413 (1999), is applicable and holds that the VA’s requirement that TDIU be specifically requested “loses sight of the Congressional mandate that the VA is to ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.’” Norris, 12 Vet. App. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). Although Norris does not bind this court as precedent, it is both on-point and informative. <br clear="all" style="page-break-before: always; ">The facts of Norris are similar to the present case. Norris was rated 70 percent disabled from a mental disorder. Id. at 415. His rating was increased to 100 percent based on 38 C.F.R. § 4.16 (i.e., the same basis for increasing Roberson’s rating to 100 percent). Id. at 416. Before the Court of Appeals for Veterans Claims, Norris alleged CUE in not giving him an earlier effective date for his 100 percent rating. Id. The government alleged that an informal claim for TDIU was not raised under the specific facts of Norris’s case because entitlement to TDIU requires a showing of at least an informal claim specifically alleging TDIU. Id. The Court of Appeals for Veterans Claims rejected the government’s argument because such a position “loses sight of VA’s congressional mandate that VA is to ‘fully and sympathetically develop the veterans’ claim to its optimum before deciding it on its merits.’” Id. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). In addition, the Court of Appeals for Veterans Claims stated that developing a claim “to its optimum” must include determining all potential claims raised by the evidence and applying all relevant law and regulation raised by that evidence regardless of how the claim is identified. Id. I would like opinions:

I agree with everything posted, and add only 2 cents: 1cent.. The VA IS going to need "medical evidence" to support an increase, and your wife does not sound like she is a medical professional, so a medical opinion will be required...make sure it is "hoppy proof"..if it passes his test it should also work for the VA judges. 2cent.. The VA can not reject your wife's lay testimony ONLY on the basis that she is an "interested party". While your wifes testimony may not be probative, there are some circumstances when lay testimony can put you in "equipose" (that is, you would get your benefits). I think there is something to be said for "drowning" them in evidence, since if you give them "little sips" half the time they dont even read it. Caveat: Make sure your wifes testimony does not conflict with the medical evidence, but supports it instead.

Congratulations cool Breeeze ...Clarity is the same kind of phone I got from the VA. It is the best phone I have ever owned. I hear from it well...its much much clearer than a regular Walmart phone. Mine "lights up" when it rings.

I would like to thank all for posting your "hidden benefit" and would add one more: Kayaking in Colorado!!! http://sportainability.ning.com/profiles/blogs/stop-18-18-soldiers-taking

Wow..PR...I did not know there was such a thing as an ILS. Whats that? Is that now called the ILP program, through Voc Rehab? Chuck...was yours Voc Rehab or was this ILP? Thats great!

The reason I brought up the "symptoms vs diagnosis" issue is because I am guessing some Vets could have easily applied for an informal claim using symptoms, while leaving it to a doctor to make a diagnosis. That is, if the Vet applied for benefits with symptoms of x, y, z, he should get that as an effective date when the doctor diagnosis confirms service connected condition A has symptoms of x, y, and z. I do think the VA often tries to make the date of the diagnosis or the C and P exam the effective date, but I think that many Vets should protest this, if their symptoms were bad earlier.

Berta I appreciate your "take" on this. You indicated that a "staged" rating would be an improvement over the one that they gave you, and I dont doubt that one bit. For me, however, while it would be better than the one they gave me, I am going to ask for the "whole loaf" and not just a few slices. It has been my experience when you ask for the whole loaf you may get a few slices, but if you ask for a slice, you will be lucky to get crumbs. I have always understood the VA paid benefits on SYMPTOMS not on a diagnosis, even tho the doctor needs to make such a diagnosis. One very good example of this is the Veteran who is diagnosed with an illness but is asymptomatic...so he isnt getting any compensation. Of course, a particular disease or injury can, and does, affect people in widely different ways. A gun shot wound, as an example, could render one Veteran crippled or even dead, while another Veteran could have a GSW and suffer no ill effects from it. My guess is that the disability rating percentages for a GSW would also vary widely from zero to 100% depending upon the symptoms. Other diagnosis, too, would vary widely in severity of symptoms. While I am not claiming to be an expert, I do read a lot, and it is hard for me to understand why you would want "staged" ratings UNLESS you could not get the higher rating earlier. In my claim, I am trying to avoid staged ratings, I would much rather have 100% effective in 2002 rather than 40% from 2002 to 2007. Of course, I would much rather have 40% rather than 0% for the period, but your case is obviously different, and comes under different regulations..I think yours comes under "accrued benefits", while mine does not. I think you mentioned yours is a "Nehmer" claim while mine is not, also. I will admit I dont know that much about either Nehmer or "accrued benefit" claims, but that would not appear to make a difference in refernce to "staged ratings" IMHO.

A hearing aid is just ONE option for the hard of hearing, and not everyone tolerates hearing aids well or benefits from them. Another example is what I call an "FM system". Now, I think they are called an "assisted listening device". A good example of when an ALD may be appropriate would be if a HOH Veteran was trying to attend some sort of classes or was in a classroom type setting. The teacher, or speaker, speaks into a microphone. The HOH Veteran puts on a set of headphones and the speakers voice is amplified so he can hear it. While I can not promise the VA audio would pay for such a device, I think most of it would depend on if your audiologist thought those would be better for you than hearing aids. (They are probably cheaper than most hearing aids).

Thank you, Berta, for help pointing out that the Veteran does NOT necessarily need to specify a diagnosis to meet the 3 part Brokowski Test, that the Veteran specifying SYMPTOMS will suffice in helping the Veteran get an EED. One example of this is that the Veteran may not "think" he specified "depression" for a claim..because he did not use the word "depression". Remember, tho, "depression" is a diagnosis that Doctors make and Veterans simply tell the doc about SYMPTOMS, and remember, the VA has to liberally interpret this. IMHO 2 of the 3 parts of the Brokowski test are easy to get: If you tell the doc you have a symptom x, and the Doc writes it down in the record, that would, theoretically, be 2 of the 3 parts. (written and "specify benefit sought, reminding you that a doc can make a diagnosis later, and it is still possible this preserves the effective date) The final "leg" of the 3 legged "Brokowski stool" test is that the Veteran must show "intent to apply for benefits". While the VEteran probably needs to "hit this one home" there are more than one way to show intent to apply for benefits. ONe example might be signing a POA to get a representative help you get benefits. I mean, what is the VA going to say.."Oh sure, you signed a POA but that does not mean you wanted to apply for benefits" You could respond by saying, "Oh, no actually I thought my VSO was cute and had intended to ask her on a date, and wanted to give her my phone number".....NOT! The act of signing a POA and filling out the paperwork for an application shows "intent" to apply for benefits...(tho this will probably have to be tested in court). Another "intent to file for benefits", might be showing up for a C and P exam. I mean, again, is the VA gonna say.."well, gee, how were we supposed to know you were filing for PTSD benefits...I thought you were lonely and wanted to have someone to talk to...so you described your symptoms of PTSD to your C and P doc, who was measuring your scars for disability on that issue only". Comer VS Peake tells us that the VA is not supposed to "trap" the unwary Veteran, tricking him out of his benefits: ..... His appeal asserted that he was entitled to "an increased evaluation for PTSD and an earlier effective date" for his PTSD disability benefits. Although Comer did not state specifically that he was entitled to an earlier effective date for his TDIU award, his claim for an increased rating and an earlier effective date for his PTSD benefits, coupled with the persuasive and pervasive evidence in the record demonstrating his unemployability, was sufficient to raise the issue of his entitlement to an earlier effective date for his TDIU award as well. While the Veterans Court correctly noted that a veteran is obligated to raise an issue in a notice of disagreement if he wishes to preserve his right to assert that issue on appeal, see 2007 Veterans Court Decision, 2007 U.S. App. Vet. Claims LEXIS 1083 at *6, the determination of whether an issue has been properly raised must be made with due regard for the VA's duty to read a veteran's submissions sympathetically. In other words, the VA's duty to read an appeal submission sympathetically to ascertain all potential claims it contains is antecedent to its duty to ensure that an issue has been properly raised on appeal. Cf. Andrews, 421 F.3d at 1283 ("[T]he VA's duty to sympathetically read a veteran's pro se CUE motion to discern all potential claims is antecedent to a determination of whether a CUE claim has been pled with specificity.").<br style="min-width: 0px; ">Indeed, 38 C.F.R. § 20.202 specifically provides that the board is required to construe an appellant's arguments "in a liberal manner for purposes of determining whether they raise issues on appeal." See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) ("[T]he Board is required to consider all issues raised either by the claimant or by the evidence of record. Indeed, by regulation, the Board is required to construe an appellant's arguments in a liberal manner . . . ." (citations and internal quotation marks omitted)). A liberal and sympathetic reading of appeal submissions is necessary because a pro se veteran may lack a complete understanding {552 F.3d 1369} of the subtle differences in various forms of VA disability benefits and of the sometimes arcane terminology used to describe those benefits. See Hughes v. Rowe, 449 U.S. 5, 15, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since "[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims."); Forshey, 284 F.3d at 1357 ("n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below.").<br style="min-width: 0px; ">"The government's interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them." Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006); see also Jaquay, 304 F.3d at 1280 ("Congress has created a paternalistic veterans' benefits system to care for those who served their country in uniform."). 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, but who may be unaware of the various forms of compensation available to him. To the contrary, the VA "has the affirmative duty to assist claimants by informing veterans of the benefits available to them and assisting them in developing claims they may have." Jaquay, 304 F.3d at 1280. The need for such assistance is particularly acute where, as here, a veteran is afflicted with a significant psychological disability at the time he files his appeal.<br style="min-width: 0px; ">