ptsd Dro/denovo Or Bva

[Shark]

Just read a post that makes me question where I am at. I applied for TDIU and am SC 80% total with PTSD at 50% and the rest Agent Orange stuff. I was denied last October and filed a NOD. My first DAV VSO had me go DRO, then I got more evidence (a letter from my VA Psychologist) and another DAV VSO changed it to a traditional appeal. I still haven't received a SOC, and the Reno VARO told me that it can take up to a year to receive.

Should I leave it the way it is, or send in a form 9 and request DRO?

[Ricky]

Just read a post that makes me question where I am at. I applied for TDIU and am SC 80% total with PTSD at 50% and the rest Agent Orange stuff. I was denied last October and filed a NOD. My first DAV VSO had me go DRO, then I got more evidence (a letter from my VA Psychologist) and another DAV VSO changed it to a traditional appeal. I still haven't received a SOC, and the Reno VARO told me that it can take up to a year to receive.

Should I leave it the way it is, or send in a form 9 and request DRO?

My first question would be:

Have you received an election letter from the VA as of this date? This is a letter that explains the DRO process and the traditional process. A vet will get this even if he/she asks for a DRO review in his/her NOD.

What procedure did the second VSO use to "change" to the traditional process? And why did this idiot do such a thing. Run from him/her quickly...

You only submit a form 9 AFTER receiving a SOC. This is why I question the action you described in dealing with the 2nd VSO. What you need to do at this point is prepare and send a statement in support claim explaining that although the 2nd VSO somehow ? requested a traditional appeal it is your desire to resolve the issue at the RO, therefore, you request a DRO review with a DRO hearing at the local RO. Wait about 30 days and then call/use IRIS to verify that you have a DRO review pending.

Ricky

[Philip Rogers]

Shark - if you submit any new evidence to the BVA be sure to waive review of that evidence by the Agency of Original Jurisdiction (AOJ), otherwise the BVA will remand it back, to the RO, for another decision. This would probably add a few yrs to your claims process. I know, I made that mistake many yrs ago.

pr

[Berta]

"No, my claim is still at the VARO awaiting a SOC to be developed, that is why I am questioning whether I should change it to a DRO or let it be."

??? You filed a NOD but you expect a SOC?

Have you already received a I-9 form? I am confused here-

but to get back to your claim-

is the disability you are claiming due to AO listed on the Agent orange presumptive list?

I believe someone else asked and I am curious too- did you receive a VCAA letter with a highlighted statement -telling you exactly what VA still needed?

It is not unusual for it to take a year to get a SOC.

I was told that here in NY they color tab NODs by date and when a year passes they read the NOD- and then take their time with the SOC.

But a proper VCAA election and return of the VCAA election response form -with whatever evidence they asked for can make that go a little faster.Even a lot faster.

[Shark]

"No, my claim is still at the VARO awaiting a SOC to be developed, that is why I am questioning whether I should change it to a DRO or let it be."

??? You filed a NOD but you expect a SOC?

Have you already received a I-9 form? I am confused here-

but to get back to your claim-

is the disability you are claiming due to AO listed on the Agent orange presumptive list?

I believe someone else asked and I am curious too- did you receive a VCAA letter with a highlighted statement -telling you exactly what VA still needed?

It is not unusual for it to take a year to get a SOC.

I was told that here in NY they color tab NODs by date and when a year passes they read the NOD- and then take their time with the SOC.

But a proper VCAA election and return of the VCAA election response form -with whatever evidence they asked for can make that go a little faster.Even a lot faster.

Hi Berta,

Thanks again for all of your assistance! Here is the story, I received a 50% PTSD rating in July of 2008 for a claim that I filed in July of 2007. I am 80% SC in total, the balance being AO related. I applied for TDIU in July, 2008 and was denied in October of 2008. My DAV VSO filed a NOD asking for DRO in October of 2008. I took in more evidence in December of 2008 and another DAV VSO said it would be quicker if I went traditional, so he sent in a change. To date I have received nothing from my VARO except for a copy of my C-file which I requested. I called the 800 number and they confirmed it was on track for a traditional appeal but still at the VARO awaiting the SOC.

I am just not sure if I should, or can revert it back to the DRO process.

Thanks,

Ric

[Berta]

When your award hit 80% what rationale did the VA state in that decision to deny you TDIU consideration and award?

Unless you are employed at over the poverty level- I assume that maybe the VA held your degree in law against you???

Are you able to obtain a private medical opinion that emphatically states your SC disabilities have rendered you unable to work?

Being familiar with the law yourself you know that the wording of their denial is exactly what your medical evidence of TDIU has to overcome.

I also wonder if the degree was through the Voc Rehab program- a 2 edged sword.

VA tried to lower my husband's comp after he attended one semester of college under Voc Rehab.

He also had gotten at the same time -part time employment at VA in a job he was not well qualified for only as a temp position because they had denied him interview for another position he was well qualified for per OPM and VA hired a relative instead.We made a stink and to avoid a EEOC complaint they gave him this job until something else opened up in engineering.and they canned the personnel director.

After about 2 weeks on the VA crap job (he was former Nuke) and one semester in college VA tried to suggest he had turned into a rocket scientist and had pobtained substantial employment.They proposed to lower his comp.

From 30 at that time to 10 %.

I wrote his NOD, he signed it and they dropped that idea pretty fast.

VA gave you a reason for no TDIU and this is the reason you need to combat with evidence.

[Shark]

When your award hit 80% what rationale did the VA state in that decision to deny you TDIU consideration and award?

Unless you are employed at over the poverty level- I assume that maybe the VA held your degree in law against you???

Are you able to obtain a private medical opinion that emphatically states your SC disabilities have rendered you unable to work?

Being familiar with the law yourself you know that the wording of their denial is exactly what your medical evidence of TDIU has to overcome.

I also wonder if the degree was through the Voc Rehab program- a 2 edged sword.

VA tried to lower my husband's comp after he attended one semester of college under Voc Rehab.

He also had gotten at the same time -part time employment at VA in a job he was not well qualified for only as a temp position because they had denied him interview for another position he was well qualified for per OPM and VA hired a relative instead.We made a stink and to avoid a EEOC complaint they gave him this job until something else opened up in engineering.and they canned the personnel director.

After about 2 weeks on the VA crap job (he was former Nuke) and one semester in college VA tried to suggest he had turned into a rocket scientist and had pobtained substantial employment.They proposed to lower his comp.

From 30 at that time to 10 %.

I wrote his NOD, he signed it and they dropped that idea pretty fast.

VA gave you a reason for no TDIU and this is the reason you need to combat with evidence.

Their denial was very vague:

"Along with the type and extent of your disabilities, we consider your employment history and work/educational experience when considering possible entitlement to the individual unemployability benefit. The law, 38 CFR 4.19 states that "age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating".

The record shows you are 61 years old. You have reported education level of four years of college with a Masters Degree in Business Administration and last worked full time in June 2006.

There is no indication that you would be precluded from all types of employment due to your service connected disabilities.

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to grant entitlement to individual unemployability. The question is whether the veteran is "capable" of performing the physical and mental acts required by employment, not whether the veteran can find employment.

You have not been found unable to secure or follow a substantially gainful occupation as a result of your service connected disabilities.

Based on the objective evidence above you are not shown to be unable to secure or follow a substantially gainful occupation as a result of service connected disabilities and are considered capable of gainful employment. Therefore, entitlement to individual unemployability is denied.

The rule regarding benefit of reasonable doubt does not apply because the preponderance of evidence is unfavorable."

I think that education is part of the problem as I am currently in a Ph.D. program that I asked Vocrehab to pay for and they declined saying that I was employable with an MBA. My VA psychologist stated in my rebuttal evidence that he suggested that I go back to school to keep my mind busy and thus avoid deep depressions. He also stated, along with my VA Psychiatrist that I am currently unemployable. My attorney feels that I have a good case.

But, I am still in a quandry as to whether I should revert back to the DRO process or keep on the traditional path.

Thanks again!

Ric