tdiu For All Whose Claim For Unemployability Was Denied On Or After 1980

[deltaj]

In 1980 the Department of Veterans Affairs (DVA) began circulating a secret circular on unemployability and began using these secret internal rules in V.A. regional offices which were not subject to public comment required in law. The case is the federal circuit case in Andrew Collaro v. Togo West and the link is below. For anybody who has had an unlawful reduction from 100% this case could be useful. Please read the case.

[carlie]

delta,

Do you have a link ?

carlie

[broncovet]

Thanks, Delta, this is an interesting Federal court case which may well prove usefull to Veterans, as I am sure Veterans attorneys have cited it in behalf of Veterans. Federal Court decisions "trump" both BVA and CAVC decisions, as you probably know. This decision is important not just to Veterans seeking TDIU, but to any Veteran who has filed a NOD and then ultimately had the VA "weasel out" of paying because of legal complications.

IMHO, this decision clearly states that the Courts have to consider the Veterans legal and constitutional rights, even if the Veteran does not raise that issue with the NOD.

That is, the VA is not free to deny a Veterans constitutional or legal rights just because he may not have had adequate resources available to challenge the Va.

http://vlex.com/vid/andrew-collaro-togo-ve...ffairs-36141091

The VA was not allowed to use its vast resources such as lawyers on staff to deny Veterans benefits on the basis that this Veteran lacked the abilities to thoroughly understand and challenge the courts to preserve his constitutional and legal rights. The Veteran can not be denied constitutional and legal rights based on his lack of ability to understand and challenge the courts for these rights.

[broncovet]

Collaro v West says it this way:

"If Collaro had a trained eye for reading rating decision forms, he may have noticed in the narrative section that a change to sections J and I indicated a new basis for his rating. If Collaro had been less than chronically schizophrenic, and if he had more sophisticated legal advice on which to rely than that of a representative from one of the forty or so invaluable national service organizations that represent veterans, we might expect more from him. Instead, like a significant number of veterans collecting benefits under the schedular ratings because of individual unemployability or total disability, Collaro lacked the knowledge, motivation, mental acuity and legal counsel necessary to inquire into the constitutionality of the circular, to detect the conversion, or specifically identify and correctly challenge the agency's action.Congress has passed statutes and the agency regulations to assist veterans in establishing facts sufficient to support well-grounded claims and to give them every benefit that can be supported in law. See 38 U.S.C. 5107 "

[deltaj]

delta,

Do you have a link ?

carlie

Carlie, Broncovet has graciously provided a link above this. Once you tap his link, you'll see two below the case name Andrew Collaro v. Togo West. Tap the one that says permanent link and you've got it. I also appreciate the fact that Broncovet took a really interesting quote from the decision and featured it above. I have a B.A. degree in Journalism and Broncovet picked the best quote in the decision to capture interest of veterans and others who might want to read the decision. The decision really is a must read.

[broncovet]

Delta

Thank you! Many hadit members know this, but, since this court case was published, the courts have "stuck down" the requirement that a Veterans claim be "well grounded" which the judge in Togo West mentions. A veteran no longer has to PROVE his claim is "well grounded" to be entitled to his rights. In the past, the VA often used the "well grounded" excuse to deny benefits. If the Veterans claim could not pass the "well grounded" test, it was denied without ever being considered. Many Veterans claims were denied, not because they did not have a valid claim, but because their claim did not pass the "well grounded" test.

I think this case says something that should be cited in nearly every PTSD or depression appeal. That is, the VA, with its massive number of lawyers on staff and nearly unlimited resources, has a very unfair advantage over a sometimes homeless, depressed, PTSD Veteran who's legal and constitutional rights are not even represented by an attorney. The Veteran, frankly, is a wounded bunny thrown into a den of hungry wolves. The court is saying it is no wonder that the Veteran did not fill in all the VA's forms properly when the Veteran was running for dear life from a vicious pack of DVA lawyers who are desperately trying to move up the ladder by "winning" their case by "eating" the defenseless Veteran.

Any Veteran appealing his case should read this case, and probably Roberson, if you dont read any others.