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

[carlie]

Damn, am I glad I only live five blocks from Stetson.

[Hoppy]

[Hoppy]

I'm trying to clarify my thinking on what the real issue is here. I will first deal with positives that I feel support your claim. If the positives work in your favor then you will not need to deal with the less positive discussions later in this post.

You talk about congressional mandate to view the veteran's claim liberally. This is a pretty nonspecific law and I'm sure the VA has no idea how to apply it. You can include it in any argument you advance. However, I think what you're getting at can be covered by other more focused legal requirements. Specifically, I would advance an argument that they failed to apply the benefit of the doubt rule. The VA requires that there be a preponderance of evidence or that the evidence be in equipoise and apply the benefit of the doubt rule. I do not see how congressionally mandated liberal interpretation would allow a claim to be successful when the evidence is less likely than not in favor the veteran.

The difference between a claim I referenced from the BVA and yours is that in the claim I referenced there was no indication the veteran was not employed, in your case you state the records shows you told a Dr. you are not employed. As a result it can be argued that the reason you are not employed is unclear. You do not state that the reason you do not work is because you just don't want to work or that you have a non-service connected disability that prevents you from working.

In determining if a claim is in equipoise the evidence for the claim is weighed with the evidence against the claim. Due to the fact that statement that you are unemployed did not address the reason why there would be two sides to the argument. The evidence against the claim would be that you chose not to work or you did not work due to a non-service connected disability. The evidence for the claim would be that you did not work because of a disability that you obviously have been diagnosed with. If they determine that there is no evidence to resolve either side of the argument, then I would argue the benefit of the doubt would go in favor of a determination that you met the criteria for consideration of unemployability as did Roberson. As discussed later it is possible you would have an open claim.

The VA might try to argue that this argument revolves around the weight given to the evidence at the time the original decision and is not a CUE. I would respond that before they weigh the evidence they must apply the law. If they did not cite in the applicable laws section of the decision the benefit of the doubt rule, then they cannot advance an argument that they did consider the benefit of the doubt rule and the corresponding weight given to the evidence. I would argue that unlike listings of evidence and a discussion of the reasons and basis the applicable laws must be specifically cited in the decision. If the law was not cited as applicable then they erroneously failed to apply the benefit of the doubt rule.

If you win this argument and they determine like Roberson and the subsequent interpretations of Roberson that you have an open claim things could change dramatically. Something that is interesting and needs to be investigated that has arose in these posts is that there is a possibility that a claim may be considered open as the result of the failure to assess unemployability when the evidence at the time of the original decision indicated such an assessment was required. It is possible that when you file an appeal on an open claim that any new evidence submitted with the appeal will be considered as applicable to the original decision. It is unlike a CUE claim in that you are not restricted to the evidence in the file at the time of the original claim. This is my recollection I will try and find the governing laws or cases when I get time.

The less positive discussion starts here. Hopefully, this will all be mute if you win the positives as discussed above.

I have posted recent cases as to how the VA determines the way TDIU prevails in the claim showing when the duty to assist requires a medical opinion to address employability. As I will discuss later these issues are important when making comparisons to Roberson. In Roberson the court determined that he met the criteria at the time of the original denial cause a determination as to whether or not he was employable. I have posted this in red print below.

There is much discussion about and inferred claim. From what I have been reading this is a mute issue. This is because the VA considers TDIU as part of the original formal claim. It is not a separate claim. If the VA does not award TDIU they view any dispute or appeal as a request for a higher rating and apply the laws governing an appeal of a lowball rating. I have pasted this below in red type. When they give you a 30% rating and do not list evidence of employability or discuss unemployability the VA will consider that part of the decision irrespective of what is listed or discussed on the original formal claim. If they denied the formal claim why would that not be inclusive of the informal claim that might have been associated with the original claim. It could be that the VA is telling you that your original claim was inclusive of a denial for TDIU and this is what they are talking about with the phrase deemed denial.

Stating that you are unemployed was part of the original record and the VA has told you that there was a deemed denial. If you don't meet requirements as Roberson did at the time of the original denial then what I think the VA is telling you is that you are limited to the procedures governing an appeal of a lowball decision. Then the VA will award TDIU with an effective date when it becomes factually ascertainable that an increase in the previous rating is necessary.

When appealing a lowball claim that has been closed you need to submit new and material evidence or otherwise establish a CUE to obtain an EED. It appears that the courts have made a slight exception due to the Roberson decision. In that it can be determined that failure to give proper consideration to the issue of employability can result in either a CUE or the determination that the claim is still open. Consider that the court determined in Roberson that he met the criteria at that time to have caused an evaluation of employability and the VA failed to provide such an evaluation.

The question is if you have a claim that was rated and the rating became final and closed and later you appeal because you feel they should have considered unemployability and the court fails to recognize that you met the criteria for consideration of unemployability at the time of the original decision will they consider a CUE or that the claim is still open. In the case I posted several days ago the VA did not make any association to a CUE or open claim and determined that development of unemployability was not warranted at the time of the original award.

In the cases I posted below meeting the criteria for consideration of unemployability it is specifically related to a high rating of a service connected condition or the record must reflect some factor outside the norm. It appears that your argument is that a statement that you are unemployed reflects a factor outside the norm. And if you win the benefit of the doubt rule argument then you're in business.

Once again the court determined Roberson met the criteria because of a statement that he could not work because of his psychiatric symptoms. If you feel that claiming a mere reference to being unemployed will be construed as a situation outside the norm it would be a good idea to post a case to support your reasoning. Posting a claim where a mere reference to being unemployed resulted in the outcome you are seeking is a very direct way of supporting your argument. Maybe your claim would be the first one to be awarded simply because you said you were not working or if you win the benefit of the doubt argument. Circling issues and applying some type of reasoning including the advice received from Alex is a weaker argument as far as I'm concerned. I also discussed formal, informal claims and TDIU with Alex in October of 2000. I found letters I wrote on a word program and pasted into e-mails that I sent him back in 2000. It is clear to me that he told me to be specific and tell the doctors that I needed a re-diagnosis of the disease I had in the military and that I planned to seek service connection and permanent and total disability due to unemployability caused by the condition that originated when I was in the military. Additionally, to have the doctor include a statement in my medical record to this effect and then file a formal claim the next time I went to the RO.

------------------------------------------------------------

www.va.gov/vetapp09/files3/0922239.txt

Further, the United States Court of Appeals for Veterans Claims (Court)

has stated that in order for a veteran to prevail on a claim

for a TDIU, the record must reflect some factor that takes

his case outside of the norm. The sole fact that a claimant

is unemployed or has difficulty obtaining employment is not

enough. A high rating in itself is a recognition that the

impairment makes it difficult to obtain and keep employment.

------------------------------------------------------------------

Citation Nr: 0907024

Pursuant to VA's duty to assist, VA must assist a claimant in

obtaining evidence necessary to substantiate a claim.

38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159© (2008).

Because the Veteran is unemployed and his service-connected

disabilities satisfy the percentage requirements set forth in

38 C.F.R. § 4.16(a), the Board finds that VA must obtain a

medical opinion to determine whether it is at least as likely

as not that his service-connected disabilities, and

particularly, his paroxysmal tachycardia, render him unable

to secure or follow a substantially gainful occupation. Such

an opinion is necessary to adjudicate this claim. Thus, the

Board has no discretion and must remand this matter to afford

the Veteran a VA examination, the report of which must

address the above inquiry. See 38 U.S.C.A. § 5103A; see also

Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v.

Brown, 7 Vet. App. 294, 297 (1994). Any recent VA treatment

Edited November 1, 2009 by Hoppy

[broncovet]

Hoppy

Again, thank you for your informative response. I really think the claim may be ruled "open" because, I filed a NOD to the 2004 RO decision, which the RO basically blew off and never responded to the NOD. Since I have "proof" of the NOD (a copy of the NOD date stamped by the RO), the RO cant, as much as they would like to, allege they never received my NOD. This is the reason I think it is "open", and, since I filed for a nod within the one year period, I do not need to meet the strict Cue standard.

I also think there is another factor in my favor: I timely filed a "Special Handling Request" due to shredded claims.

That is, even tho I can not recall specific documents that I filed in 2002, and, since my home was repossessed while waiting on Va benefits in 2004 , I do recall asking for an "advance on the docket" that was never acknowledged and does not appear in my 2007 copies of my C file. That is, it was shredded.

I am almost certain that I can proove shredded documents, as I have documents that did not appear in my 2007 C file. Altho some of the shredded evidence may not be probative, I still think that claim spoilation will weigh in my favor, even if the documents shredded were not outcome determanitive. For one thing , how do we know if they are outcome determinative, if the evidence was shredded and there is no record of it. (When I lost my home, I also lost most of my va documents.)

[Hoppy]

Borncovet, This is the entire post. previous posts were cut short. I guess hadit servers though my connection was to slow.

I'm trying to clarify my thinking on what the real issue is here. I will first deal with positives that I feel support your claim. If the positives work in your favor then you will not need to deal with the less positive discussions later in this post.

You talk about congressional mandate to view the veteran's claim liberally. This is a pretty nonspecific law and I'm sure the VA has no idea how to apply it. You can include it in any argument you advance. However, I think what you're getting at can be covered by other more focused legal requirements. Specifically, I would advance an argument that they failed to apply the benefit of the doubt rule. The VA requires that there be a preponderance of evidence or that the evidence be in equipoise and apply the benefit of the doubt rule. I do not see how congressionally mandated liberal interpretation would allow a claim to be successful when the evidence is less likely than not in favor the veteran.

The difference between a claim I referenced from the BVA and yours is that in the claim I referenced there was no indication the veteran was not employed, in your case you state the records shows you told a Dr. you are not employed. As a result it can be argued that the reason you are not employed is unclear. You do not state that the reason you do not work is because you just don't want to work or that you have a non-service connected disability that prevents you from working.

In determining if a claim is in equipoise the evidence for the claim is weighed with the evidence against the claim. Due to the fact that statement that you are unemployed did not address the reason why there would be two sides to the argument. The evidence against the claim would be that you chose not to work or you did not work due to a non-service connected disability. The evidence for the claim would be that you did not work because of a disability that you obviously have been diagnosed with. If they determine that there is no evidence to resolve either side of the argument, then I would argue the benefit of the doubt would go in favor of a determination that you met the criteria for consideration of unemployability as did Roberson. As discussed later it is possible you would have an open claim.

The VA might try to argue that this argument revolves around the weight given to the evidence at the time the original decision and is not a CUE. I would respond that before they weigh the evidence they must apply the law. If they did not cite in the applicable laws section of the decision the benefit of the doubt rule, then they cannot advance an argument that they did consider the benefit of the doubt rule and the corresponding weight given to the evidence. I would argue that unlike listings of evidence and a discussion of the reasons and basis the applicable laws must be specifically cited in the decision. If the law was not cited as applicable then they erroneously failed to apply the benefit of the doubt rule.

If you win this argument and they determine like Roberson and the subsequent interpretations of Roberson that you have an open claim things could change dramatically. Something that is interesting and needs to be investigated that has arose in these posts is that there is a possibility that a claim may be considered open as the result of the failure to assess unemployability when the evidence at the time of the original decision indicated such an assessment was required. It is possible that when you file an appeal on an open claim that any new evidence submitted with the appeal will be considered as applicable to the original decision. It is unlike a CUE claim in that you are not restricted to the evidence in the file at the time of the original claim. This is my recollection I will try and find the governing laws or cases when I get time.

The less positive discussion starts here. Hopefully, this will all be mute if you win the positives as discussed above.

I have posted recent cases as to how the VA determines the way TDIU prevails in the claim showing when the duty to assist requires a medical opinion to address employability. As I will discuss later these issues are important when making comparisons to Roberson. In Roberson the court determined that he met the criteria at the time of the original denial cause a determination as to whether or not he was employable. I have posted this in red print below.

There is much discussion about and inferred claim. From what I have been reading this is a mute issue. This is because the VA considers TDIU as part of the original formal claim. It is not a separate claim. If the VA does not award TDIU they view any dispute or appeal as a request for a higher rating and apply the laws governing an appeal of a lowball rating. I have pasted this below in red type. When they give you a 30% rating and do not list evidence of employability or discuss unemployability the VA will consider that part of the decision irrespective of what is listed or discussed on the original formal claim. If they denied the formal claim why would that not be inclusive of the informal claim that might have been associated with the original claim. It could be that the VA is telling you that your original claim was inclusive of a denial for TDIU and this is what they are talking about with the phrase deemed denial.

Stating that you are unemployed was part of the original record and the VA has told you that there was a deemed denial. If you don't meet requirements as Roberson did at the time of the original denial then what I think the VA is telling you is that you are limited to the procedures governing an appeal of a lowball decision. Then the VA will award TDIU with an effective date when it becomes factually ascertainable that an increase in the previous rating is necessary.

When appealing a lowball claim that has been closed you need to submit new and material evidence or otherwise establish a CUE to obtain an EED. It appears that the courts have made a slight exception due to the Roberson decision. In that it can be determined that failure to give proper consideration to the issue of employability can result in either a CUE or the determination that the claim is still open. Consider that the court determined in Roberson that he met the criteria at that time to have caused an evaluation of employability and the VA failed to provide such an evaluation.

The question is if you have a claim that was rated and the rating became final and closed and later you appeal because you feel they should have considered unemployability and the court fails to recognize that you met the criteria for consideration of unemployability at the time of the original decision will they consider a CUE or that the claim is still open. In the case I posted several days ago the VA did not make any association to a CUE or open claim and determined that development of unemployability was not warranted at the time of the original award.

In the cases I posted below meeting the criteria for consideration of unemployability it is specifically related to a high rating of a service connected condition or the record must reflect some factor outside the norm. It appears that your argument is that a statement that you are unemployed reflects a factor outside the norm. And if you win the benefit of the doubt rule argument then you're in business.

Once again the court determined Roberson met the criteria because of a statement that he could not work because of his psychiatric symptoms. If you feel that claiming a mere reference to being unemployed will be construed as a situation outside the norm it would be a good idea to post a case to support your reasoning. Posting a claim where a mere reference to being unemployed resulted in the outcome you are seeking is a very direct way of supporting your argument. Maybe your claim would be the first one to be awarded simply because you said you were not working or if you win the benefit of the doubt argument. Circling issues and applying some type of reasoning including the advice received from Alex is a weaker argument as far as I'm concerned. I also discussed formal, informal claims and TDIU with Alex in October of 2000. I found letters I wrote on a word program and pasted into e-mails that I sent him back in 2000. It is clear to me that he told me to be specific and tell the doctors that I needed a re-diagnosis of the disease I had in the military and that I planned to seek service connection and permanent and total disability due to unemployability caused by the condition that originated when I was in the military. Additionally, to have the doctor include a statement in my medical record to this effect and then file a formal claim the next time I went to the RO.

------------------------------------------------------------

www.va.gov/vetapp09/files3/0922239.txt

Further, the United States Court of Appeals for Veterans Claims (Court)

has stated that in order for a veteran to prevail on a claim

for a TDIU, the record must reflect some factor that takes

his case outside of the norm. The sole fact that a claimant

is unemployed or has difficulty obtaining employment is not

enough. A high rating in itself is a recognition that the

impairment makes it difficult to obtain and keep employment.

------------------------------------------------------------------ Citation Nr: 0907024 Pursuant to VA's duty to assist, VA must assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159© (2008). Because the Veteran is unemployed and his service-connected disabilities satisfy the percentage requirements set forth in 38 C.F.R. § 4.16(a), the Board finds that VA must obtain a medical opinion to determine whether it is at least as likely as not that his service-connected disabilities, and particularly, his paroxysmal tachycardia, render him unable to secure or follow a substantially gainful occupation. Such an opinion is necessary to adjudicate this claim. Thus, the Board has no discretion and must remand this matter to afford the Veteran a VA examination, the report of which must address the above inquiry. See 38 U.S.C.A. § 5103A; see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Any recent VA treatment records should also be obtained

Citation Nr: 0916474 A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, Thus, based on all the above, the Board must determine the date of receipt of the appellant's TDIU claim, and then determine the date that it became factually ascertainable that his service-connected disabilities increased in severity, warranting a TDIU rating. The Veteran did not expressly ask for a TDIU and, at the time, there was no evidence of current service-connected unemployability in the claimant's file or under VA control.

[broncovet]

Hoppy:

I am trying to understand what you wrote..not that you didnt write it well, but it is fairly complex, with lots of loopholes to their loopholes.

I am interpreting Moody as an expanded version of Roberson, because Moody suggests that the view of Roberson was "too narrow" and applied ONLY to TDIU. Moody

suggests that this "liberal interpretation of the Veteran's filings" be extended to all claims and appeals, not just those applicable to TDIU.

I have been denied TDIU as "moot" because I was ultimately awarded 100% for depression.

However, in my appeal for an EED, the issue of TDIU would definately not be moot if it meant 5 years of retro.

My VA doc wrote in the notes that I was depressed and even wrote me a prescription for anti depressants, back in 2002, AND also noted that I was unemployed because my hearing loss makes me unsuitable for many jobs.

When I applied for benefits, I wrote a 3 page letter, that I have copies of, to my VSO, explaining that I was fired from my job because of misunderstandings from my hearing loss. This letter of explanation was included with my application, but shredded by the RO.

Essentially I contend that:

1. I applied for the maximum benefit in 2002, including TDIU and depression.

2. RO shreds most of my evidence and considers only hearing loss, and denies it.

3. I appeal to the BVA and it was reversed, granting sc for hearing loss. BVA also did not addreess depression, I beleive, because the RO shredded any evidence related to depression. BVA "noticed" tinitus, and awarded it.

4. RO "implements" BVA granting zero percent for hearing loss. I file NOD to this, which was ignored.

5. Ro awards partial disability which I did not appeal. (30%)

6. I ask for increase, it was denied, and I appeal.

7. Increase to 100% depression was granted effective in 2007.

8. I appealed the effective date, contending effective date should be 2002 as that is when I first applied for depression/hearing loss in INFORMAL claims at least, because I do not have copies of everything the VA shredded, but I feel I do have copies of enough..they cant shred medical exams, as I can just get another one. Does this make any difference, and how would you recommend appealing the effective date?

I think there is a possibility of "staged" ratings, where depression begins in 2002 and is increased in 2007. However, I am not going to even suggest this. I am appealing the 100% disability effective date, NOT the 30% effective date, and I clearly applied for depression in 2002, not 2007. I listed what happened above in chronological order. I think the VA's position is that the 30% award "resolved" my earlier NOD. However, I think case law supports otherwise, that a Veteran has a right for his case to be heard by the BVA. I do not dispute the BVA..my BVA decision was fully favorable.

One way I could go is "new and material evidence" new not because the evidence was new, but new because the VA shredded it and never considered it earlier.

Edited November 2, 2009 by broncovet