tdiu Considering Lawyer For Eed

[broncovet]

I checked one of Alex Humphries posts, the now deceased Veteran advocate lawyer who used to help Veterans by posting on this board. He recommended a law firm, so I called them.

Essentially, I have been awarded 100% P and T, but at an effective date 5 years later than when I applied.

I dont want to mess up my 100% P and T, but on the other hand, strongly feel that my effective date should be in 2002 because I applied for a benefit increase by an informal claim at the Docs office. Alex Humphrey pointed out, in his post, that if a Veteran goes to his doc complaining of unemployment issues, that constitutes an informal claim for TDIU.

Roberson vs Principi states it this way:

when the VA conducts a medical examination . . . if the results indicate an increase in severity in the disability, VA must then evaluate the circumstances as a claim for an increased rating. Further, the Court holds that when an RO is considering a rating increase claim from a claimant who’s schedular rating meets the minimum criteria of section 4.16(a) and there is evidence of current service-connected unemployability . . . evaluation of that rating increase must also include an evaluation of a reasonably raised claim for a TDIU rating. In that situation, where those two criteria are satisfied, a well-grounded TDIU claim is included in every rating-increase claim, and VA would be required to adjudicate that well-grounded TDIU claim.

Source: http://www.ll.georgetown.edu/federal/judic...ns/00-7009.html

I have already filed a NOD to the March, 09 RO decision which awarded 100% P and T, disputing the effective date.

If the VA gets away with delaying the Veterans claim for 5 years, then finally awarding benefits with an effective date 5 years later, they have succeeded in swindling the Veteran out of 5 years of benefits.

I really do not think it is fair to other Veterans for me to just sit by and watch the VA do this. My guess is that they have done this to other Veterans.

Veterans need to know that informal claims are a perfectly legitimate way of applying for benefits. Altho I dont recommend not following this up with a formal claim for benefits, informal claims should trigger the VA to assist the Veteran applying for benefits, under this important court case.

[Wings]

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IMO, if your NOD follows the same path as the Roberson case (the same issues), then you should prevail! Stay on it!! ~Wings

Edited July 10, 2009 by Wings

[cowgirl]

Bronco, do you have VA clincal notes showing your request? If so, go for it. I wonder about claims when I read about 'time limits' put on proving up (my term) a inferred claim into a formal claim.

Will keep an eye out for ya here.

Cg'up2009!

[broncovet]

Cowgirl

Yes, I have the doctors notes. Fortunately, I have listened to people on hadit that suggested I get a copy of my C file, including the medical reports, and reviewed this information. I am really glad the doctor wrote this down, in fact, multiple doctors, on multiple exams have stated similar things over a period of 7 years. I really dont see how the VA can refute this medical evidence. Even a single C and P exam does not refute medical history particulary when multiple doctors gave consistent reports over many years. The courts have ruled that a single medical examination by a C and P examiner, who has only seen a Veteran for one hour, does not trump a Veterans medical history with a doctor who has seen the Veteran for many years.

[Shark]

Cowgirl

Yes, I have the doctors notes. Fortunately, I have listened to people on hadit that suggested I get a copy of my C file, including the medical reports, and reviewed this information. I am really glad the doctor wrote this down, in fact, multiple doctors, on multiple exams have stated similar things over a period of 7 years. I really dont see how the VA can refute this medical evidence. Even a single C and P exam does not refute medical history particulary when multiple doctors gave consistent reports over many years. The courts have ruled that a single medical examination by a C and P examiner, who has only seen a Veteran for one hour, does not trump a Veterans medical history with a doctor who has seen the Veteran for many years.

Hmmm...I had an outside doc perform a C&P exam for neuropathy in 2005 and recently received my C-file and noticed that he put in an addendum that stated that "as likely as not that current hypertension was caused by my diabetes 2." I just filed for a secondary connection due to that exam and stated that it should have been inferred in 2005. I did not ask for an effective date of 2005 though...should I send in a SOC asking for that effective date?

[Berta]

Shark- I think you should send them a letter as an 'Addendum' not a SOC- telling them that you expect an EED that fully reflects this documented medical evidence of a secondary DMII condition.

[carlie]

Hmmm...I had an outside doc perform a C&P exam for neuropathy in 2005 and recently received my C-file and noticed that he put in an addendum that stated that "as likely as not that current hypertension was caused by my diabetes 2." I just filed for a secondary connection due to that exam and stated that it should have been inferred in 2005. I did not ask for an effective date of 2005 though...should I send in a SOC asking for that effective date?

Shark,

I ditto Berta's post as a SOC (Statement of the Case) is something VA sends to the claimant,

and not something the claimant sends to the VA.

I suggest sending the information on a form 21-4138 - Statement in Support.

You do not HAVE to use the form but it is a bit more professional.

You can locate this form and other's on Hadit's homepage in the "Forms" section.

http://www.hadit.com/

Hope this helps a vet.

carlie