List Of Evidence

[Jayg]

Ok, one more thing...

It has been suggested I check the "list of evidence." How do I do that? Do I request a copy from the VARO? Show up and ask to see it, make an appointment to see it???

Thanks

[john999]

I think if the doctor wrote in the record that the vet was unemployed due to his SC condition that would be an inferred claim for IU. Of course, the VA is not going to infer this. They will ignore this statement until the vet makes a claim for IU and also cites this statement for an EED for IU.

[carlie]

I think if the doctor wrote in the record that the vet was unemployed due to his SC condition that would be an inferred claim for IU. Of course, the VA is not going to infer this. They will ignore this statement until the vet makes a claim for IU and also cites this statement for an EED for IU.

john999,

I completely agree with your statement above.

I also feel that even if the doc were just to write,

veteran states they feel they are unemployable,

due to their SC'd disabilities would work for an EED for IU.

Where my disagreement lays, is in a vet simply stating they are unemployed,

I don't think that one alone would fly for an EED.

carlie

[carlie]

Carlie

I will quote Alex Humphry on June 25, 2007

You can get an earlier effective date on TDIU if the vet tells VA at the time that he is unemployed. Under Roberson, this constitutes an informal claim for TDIU, which will act as the effective date if this benefit is ultimately awarded.

Reconsideration is generally a waste of a veteran's time.

Alex

bronco,

First off - I hope you are in agreement with me, that we are

having good, healthy discussion and debate on a VA claims issue.

In studying the quote you posted from Alex, it should be remembered that this quote is from a thread of information.

Several effective date are discussed within the thread.

Alex's post in the thread was to a member whose husband had already been granted IU

and had provided the RO with proof of IU by supplying his SSA decision.

You negate to point out, that in the C&UE awarded to Roberson for EED of IU, the VA also had many factors of information in the record

during the dates the C&UE was awarded for:

"

In his application, Roberson noted that he had not worked in almost a year. He also included a statement from his wife describing his behavior and his inability to remain employed. One year later, in 1983, Roberson was admitted to a Veteran’s Administration (“VA”) hospital to receive treatment to “get his life together again.” Roberson was diagnosed with alcohol dependence and post-traumatic stress disorder (“PTSD”). Subsequently, a VA examination indicated that Roberson had been unemployed for two years. The examiner diagnosed Roberson with chronic PTSD, substance abuse in remission, and recurrent-type major depression. "

Roberson's Case

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

In 1982, Roberson submitted an application for benefits for psychiatric problems, which he attributed to his service in Vietnam. In his application, Roberson noted that he had not worked in almost a year. He also included a statement from his wife describing his behavior and his inability to remain employed. One year later, in 1983, Roberson was admitted to a Veteran’s Administration (“VA”) hospital to receive treatment to “get his life together again.” Roberson was diagnosed with alcohol dependence and post-traumatic stress disorder (“PTSD”). Subsequently, a VA examination indicated that Roberson had been unemployed for two years. The examiner diagnosed Roberson with chronic PTSD, substance abuse in remission, and recurrent-type major depression. Included in the same VA examination, a social work services examiner reported that Roberson had held several construction jobs between 1972 and 1978, lasting for periods ranging from two weeks to seven months.

In a 1984 rating decision, the RO awarded service connection for PTSD and assigned a seventy percent disability rating, effective September 20, 1982, the date on which Roberson submitted his application for VA benefits for psychiatric problems. The RO’s rating decision noted that Roberson had a history of substance abuse, and had “been unemployed for 101/2 years primarily because of what was described as poor concentration.” Roberson was also awarded service connection for Tinnitus, evaluated at ten percent disabling, effective November 30, 1982, and his ten percent disability rating for scars was reduced to zero.

Independent of the VA’s actions, in 1987 the Social Security Administration (“SSA”) concluded that Roberson met the disability insured status requirements of the Social Security Act, because he had “not engaged in substantially gainful activity” between October 1981 and June 1984.

In March of 1989, 38 C.F.R. § 4.16 was amended to add subsection ©, stating: “in cases in which the only compensable service-connected disability is a mental disorder assigned a seventy percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation . . . the mental disorder shall be assigned a 100 percent evaluation under the appropriate diagnostic code.” This amendment was brought to the RO’s attention by Roberson’s counsel, who requested consideration of a 100 percent disability rating to be effective as of September 1982.

In response, on October 2, 1990, the Board increased Roberson’s disability rating for PTSD to 100 percent. However, this rating decision was effective March 1987 rather than September 1982. The Board based its decision on the following: (1) a September 1987 vocational rehabilitation Board finding that Roberson “was not feasible for training;” (2) VA medical records; (3) a September 1988 social work survey; (4) private medical records; (5) testimony from Roberson and his wife in a 1989 RO hearing; (6) testimony from Roberson and his wife at a 1990 traveling Board hearing; and (7) evidence presented during the traveling Board hearing including evidence of receipt of Social Security benefits.

Five years after Roberson’s disability was increased to 100 percent, in a letter dated September 29, 1995, Roberson’s counsel alleged CUE in the 1984 rating decision, based on the RO’s failure to apply 38 C.F.R. § 3.340(a)(1). This regulation states:

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

Roberson’s counsel asserted that, based on Roberson’s unemployability and inability to concentrate, Roberson was entitled to a 100 percent disability rating under section 3.340 in the 1984 rating decision. In a February 28, 1996 response, the RO informed Roberson that he had not submitted a valid CUE claim. Roberson submitted a notice of disagreement and subsequently perfected his appeal.

In a letter to the Board dated March 1997, Roberson additionally alleged that, based upon the record before the RO in its 1984 decision, the RO “clearly and erroneously failed to follow the controlling regulations regarding total disability based upon individual unemployability [TDIU].” He stated that, because the record disclosed that Roberson had been unemployed for ten and a half years, he was entitled to TDIU.

Link to FULL thread of Alex's post.

http://www.hadit.com/forums/index.php?show...amp;#entry55565

[broncovet]

Carlie

I agree completely with Alex Humphry's interpretation of Roberson, and I do not think his quote was taken out of context. Further, altho the other evidence confirmining Roberson's unemployability is important, I do believe the "money" was the date of the Veterans informal claim made at his docs office when the doc noted he was unemployed.

I am sure you already know this, but for others, Alex Humphrey is an attorney, who is highly experienced in VA law. The quote I made from him was only a small but important part of a Veterans claim, as you pointed out there was also other evidence in support of this Veterans unemployability at an EED. However, Alex Humphrey's quote was NOT taken out of context, and I think Alex's post was highly valuable, from a highly informed and qualified individual.

Of course, A Veteran should not rely on ONLY a statement made to his doctor to try to get TDIU. However, as Alex pointed out, after TDIU is awarded, this doctors statement constitutes an informal claim for TDIU because of Roberson's precedence.

I am merely pointing out that there may be one or more Veterans out there getting TDIU that could appeal the effecitve date based upon Alex Humphry's post, and be awarded much retro.

I think the important thing that the VA would love for us to forget is that the VA must assume the Veteran is seeking the maximum benefit allowed by law. They cant just say...well the Vetran is unemployed, and seeking benefits, but why would he want TDIU?..I think he is just trying to get hearing aids and no money. So, we'll just skip over the TDIU informal claim and shred anything related to it, and just assume he wants just hearing loss. This attitude will work at the RO level, but when the Veteran appeals, the BVA CAVC are required to follow the precedence of Roberson and assume the Veteran is seeking the optimum benefit..TDIU.

Unless a newer court case contradicts this position, I think a Veteran would be a fool not to seek an EED if he was awarded TDIU at any later date than the first time the Vets VA doc wrote it in his chart that he was unemployed.

The law requires a "liberal interpretation" of the Veterans filings, and the burden of proof would shift to the VA trying to get Roberson overturned, if the Veteran were not awarded benefits the first time the Vets doc put it in his record that he was unemployed.

,

Edited October 31, 2009 by broncovet

[carlie]

Unless a newer court case contradicts this position, I think a Veteran would be a fool not to seek an EED if he was awarded TDIU at any later date than the first time the Vets VA doc wrote it in his chart that he was unemployed.

The law requires a "liberal interpretation" of the Veterans filings, and the burden of proof would shift to the VA trying to get Roberson overturned, if the Veteran were not awarded benefits the first time the Vets doc put it in his record that he was unemployed.

,

bronco,

A newer court case did come along in 04.

The Roberson case was superseded by the reconciliation of Moody v Principi in 04.

PREC 4-2004 Reconciliation of Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), and Case Law on Cue Claims

Law on CUE

Although the Federal Circuit’s Roberson opinion states, “we hold that [VA] is thus required to consider a CUE claim using the standard of Hodge,” the “holding” is actually obiter dictum because the Court did not apply that standard to the CUE claim in that case. Instead, by sympathetically reading Mr. Roberson’s filings, the Court found a pending, unadjudicated claim, rather than CUE in a decision that had become final.

Former View of Roberson

5. Prior to the Szemraj and Moody decisions, VA's position was that Roberson should be construed narrowly and confined to the situation in which a claimant alleged the existence of a prior, unadjudicated TDIU claim. See VAOPGCPREC 12-2001. However, in Szemraj, the Federal Circuit rejected that narrow construction of Roberson and held that VA's obligation to fully and sympathetically develop a veteran's claim to its optimum applies “to all pro se pleadings” by a veteran. 357 F.3d at 1373. The Federal Circuit stated that, “when determining if CUE exists in an earlier decision, the VA must give a sympathetic reading to the veteran’s filings in that earlier proceeding to determine the scope of the claims.” Id.

6. However, the Federal Circuit also made clear in Szemraj that, apart from requiring that pro se pleadings be read sympathetically, Roberson “did not change the well-established legal standard for determining the existence of CUE in RO and [board] decisions.” 357 F.3d at 1375. The court noted that (1) in Cook, it had held that, to constitute CUE, the alleged error must be both outcome determinative and based upon the evidence of record at the time of the original decision and (2) it had therefore rejected the contention that VA’s violation of its duty to assist in developing a veteran’s evidence could constitute CUE. Szemraj, 357 F.3d at 1376. The court stressed that Roberson, consistent with Cook, does not require VA to develop the veteran’s evidence or to reconcile conflicting evidence; nor does Roberson change the legal standard for determining whether the VA correctly applied its regulations to a veteran’s claims. Id. Because the CUE claim in Szemraj did not involve any question about the proper interpretation of the veteran’s pleadings, the Federal Circuit held that the CAVC’s improper construction of Roberson was harmless, and it affirmed the CAVC’s decision finding of no CUE in a prior final decision.

Reconciliation

In other words, Roberson, Szemraj, and Moody can be understood to require only that a determination as to whether there was CUE in a final VA decision be made in light of the standards that governed the final decision, including the principle that a veteran’s pro se pleadings are liberally construed. VAOPGCPREC 12-2001 is hereby superseded by this opinion.

[broncovet]

Carlie...

Reading what you quoted from Moody, this new 2004 case does in no way invalidate Roberson, but rather even expands the "narrow view" of Roberson making it applicable in even more cases, not just TDIU. Thanks for pointing that out to me: (Emphasis added)

. Prior to the Szemraj and Moody decisions, VA's position was that Roberson should be construed narrowly and confined to the situation in which a claimant alleged the existence of a prior, unadjudicated TDIU claim. See VAOPGCPREC 12-2001. However, in Szemraj, the Federal Circuit rejected that narrow construction of Roberson and held that VA's obligation to fully and sympathetically develop a veteran's claim to its optimum applies “to all pro se pleadings” by a veteran. 357 F.3d at 1373. The Federal Circuit stated that, “when determining if CUE exists in an earlier decision, the VA must give a sympathetic reading to the veteran’s filings in that earlier proceeding to determine the scope of the claims.” Id.

The portion you stressed suggests that the VA had to give a sympathetic reading even before Roberson, probably because, as Roberson suggested, it is a congressional mandate and not "just" case law.

I do think that Moody may actually make it less productive for Veterans to hire an attorney, because Moody seems to limit this liberal interpretation to Pro Se proceedings, and once a Vet hires a lawyer, he is just not going to get that liberal of an interpretion. In other words, if the Veteran hires a lawyer, he is going to have to specify "TDIU" because the lawyer should be familiar with VA law, but the pro se Vet can still tell his doc he is unemployed and still have it count as an informal claim for TDIU.

There is still another case, after this one, that decided that a Veteran represented by a VSO is not the same as a Veteran represented by a lawyer, and a VSO represented Vet is still entilted to this liberal reading of Vets filings, as in Roberson expanded by Moody.

Moody is good news for VEts, as this means this liberal interpretation of the VEterans filings does not just apply to TDIU, but could apply to depression, PTSD, or any/all of the Veterans conditions claimed. I seem to remember reading that some of the good lawyers, like Ken Carpenter, cite Moody in behalf of his Veteran clients.