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

[deltaj]

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.

I believe it would be an inferred claim for TDIU (total disability individual unemployability). Search google under M-21 AND inferred claim for TDIU and some interesting material will be found online. It is my understanding that the M-21 is the V.A. adjudication manual. It contains statutorily mandated requirements that V.A. must follow in adjudicating claims.

[deltaj]

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.)

Broncovet, Read CAVC's decision in Tablazon v. Brown which pertains to a situation in which a SOC (statement of case) was not issued after the veteran filed a Notice of Disagreement.

[deltaj]

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.

Reading your account, I keep wondering whether BVA and VARO, in addition to your EED (entitlement to an earlier effective date) shouln't have considered your entitlement to SMC (special monthly compensation) for a second service connected disability ratable at 60% or more. When you alleged you lost your job because of this service connected condition that you made an inferred or informal claim for TDIU.

[deltaj]

Hoppy

My private doctor said I was unable to work, and was completely incapacitated due to a psychiatric condition that was the same condition that I was service connected for by the VA. It was not me saying I could not work, but my private clinical psychologist saying it in a report. The VA has the report, but just ignored it. I never had a C&P exam. The VA just relied on my SMR's and an in-patient stay at the VA hospital back in 1972 to make their rating. I got a 10% rating from the VA. My SMR's mentioned a diagnosis of depression, anxiety, drug addiction. The VA said schizophrenia. Even ignoring my doctor's evidence the rating is a joke. I never got appeal rights. I forgot about the claim because I don't even remember making a claim, but someone must have made if for me while I was in the nuthouse. A couple of years later I got a letter saying I was connected for a "nervous condition" and got back pay to the day after I was discharged. I was never informed about any appeal rights or NOD deadlines, so it became a final decision. I had such a horrible experience with the VA that I never went back for 25 years. I do have a CUE claim waiting on a BVA Hearing based on the fact that original decision was in error because the VA excluded my doctor's report. They did not weigh it incorrectly. They just put it on the shelf. The VA never listed the evidence they considered so I never knew about it until I got my C-File, and found the letter. It was stamped and dated as received before the rating decision was made. The lawyer explains it to me this way: If I win the CUE the VA will have to reweigh the evidence in the original decision to include the evidence they excluded. I guess I could still lose since the VA may decide that just because you can't work or are incapsitated only rates 10%. You know I have no faith in the VA at all. Them owing me potential big retro will skew the decision I have no doubt. Even if they just rated me 50% instead of 10% that would mean almost 30 years of retro. I am not counting on anything regardless of evidence or law.

John999, YOU NEED TO READ DWAYNE MOORE V. ERIC SHINSEKI. I suspect VARO issued an initial denial in a rating decision that stated something like " . . . no reasonable probability of a valid claim is shown." This is what happened to my husband and we didn't know that initial rating decision was a denial. The BVA designated this document as a deferred decision but there is one sentence in the Hayre decision that refers to a denial with the same wording. You need a copy of your C file because there may be other inpatient hospital records V.A. did not obtain like what happened to Dwayne Moore. There is also another case on here entitled Gleicher which cites Willis v. Derwinski on how BVA cannot ignore a treating psychiatrist's opinion that a veteran is unemployable. Gleicher's case is on the introductory page to hadit as you enter the site.

Edited November 22, 2009 by deltaj

[carlie]

Carlie, Search on google under M-21 AND inferred claim for TDIU. The results will lead you to a bunch of interesting links including one mentioning Servello v. Derwinski which discusses inferred claim for TDIU.

deltaj,

I formed my opinion by studying 38 CFR, BVA decisions, Court decisions

and the M21-1MR regs.

You posted,

"It is my understanding that the M-21 is the V.A. adjudication manual. It contains statutorily mandated requirements that V.A. must follow in adjudicating claims."

Actually, I believe 38 CFR is the Adjudication Bible and M21-1MR is to

instruct VBA on how they are SUPPOSED to apply the rules and regs.

I think our biggest problem is in getting them to read and do what they

are supposed to do.

jmho,

carlie

[broncovet]

Delta

Wow..Thanks. I think I just may do as you suggest..appeal for SMC! However, right now, I am in the "EED" box. (Remember that book that men are like waffles, women are like spagetti? That men go into a certain "box", and those "boxes" can not touch each other. That is, if we are thinking about love, we think about love...and never anything else. If men are thinking about sports, then it would take a hurricane to get them out of that "box"....well, I am in the "EED" box now..lol)