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

[broncovet]

Delta..

Yes, I forgot..the "Women are like Spagetti" part. To women, according to this book, everthing is all mixed up like a bowl of spagetti and everthing is touching each other..you know..love, sex, sports, EED, SMC, kids, money, etc..all related...I hope you get a laff out of this one, and hope it offends no one. One woman, who was pulled over by a police officer for DUI told the officer ON VIDEOTAPE, "Can this be settled with sex?"

[john999]

Delta

You should see my original rating decision. It is about 1.5 pages long. It is a joke. There is no reasons or basis section. The VA just included my SMR's and hospital records and on that basis awarded me 10% rating. The old ratings are like that with just bare bones outline. My quest for a higher rating and EED for IU is based on excluded evidence that if it had been considered would have shown me to be way beyong a 10% disability.

[Jayg]

Delta

You should see my original rating decision. It is about 1.5 pages long. It is a joke. There is no reasons or basis section. The VA just included my SMR's and hospital records and on that basis awarded me 10% rating. The old ratings are like that with just bare bones outline. My quest for a higher rating and EED for IU is based on excluded evidence that if it had been considered would have shown me to be way beyong a 10% disability.

In my case, it was simple. VA reworded my claim for a secondary condition to a primary claim for a service related injury that never happened. No sweat. In essence- 'No record of injury in service- denied.' And of course every secondary following the knees went with it...

(Paraphrasing Mel Brooks "Blazing Saddles"...) "Regulations?! We don't need no stinking regulations! "

[Vync]

Delta

You should see my original rating decision. It is about 1.5 pages long. It is a joke. There is no reasons or basis section. The VA just included my SMR's and hospital records and on that basis awarded me 10% rating. The old ratings are like that with just bare bones outline. My quest for a higher rating and EED for IU is based on excluded evidence that if it had been considered would have shown me to be way beyong a 10% disability.

Mine was like that too. Condition. Not SC. That simple. When I looked at my original SC letter from 2000, they went into painstaking detail about my SC items, but the non-SC items were nonexistent. I don't know which one would be better.

[Hoppy]

Broncovet,

What is confusing is the courts and the BVA keep reinterpreting previous decisions. I posted some citations that I recently found. These citations are from cases that are rather recent. I had noticed that Roberson and Norris were from over eight years ago. So I decided to try to find the more recent interpretations of Roberson. I'm not sure what to tell you. I don't think we've talked about the type of attack the VA is currently using on EED’s on TDIU claims. In the past I have not focused on this issue here and hadit. However, I first read a case about a week ago that was distressing. I've had a real slow WiFi connection and could not really search much. I fixed the WiFi problem today and found more cases where they appear to be rewriting Roberson. I think any previous confusion I was dealing with takes a backseat to some of the problems the courts are creating with more current decisions.

It appears that unless they have changed their mind again the door as been closed on winning an EED based on an unadjudicated TDIU claim. However, if there is a CUE you can battle that. I'm going to continue researching clear and unmistakable error claims. I thought you said something about eventually being awarded 100% scheduler. Is there an issue involving the failure to properly rate the evidence at the time of an earlier decision?

Citation Nr: 0907999

The Court of Appeals for the Federal Circuit held that once a

veteran: (1) submits evidence of a medical disability; (2)

makes a claim for the highest rating possible; and (3)

submits evidence of unemployability, the requirement in 38

C.F.R.

§ 3.155(a) that an informal claim "identify the benefit

sought" has been satisfied and VA must consider whether the

veteran is entitled to a TDIU rating. Roberson v. Principi,

251 F.3d 1378 (Fed. Cir. 2001).

However, the Court of Appeals for the Federal Circuit has

clarified Roberson, stating that if the record shows the

existence of an unadjudicated claim raised along with an

adjudicated claim and the RO's decision acts (favorably or

unfavorably) on one of the claims but fails to specifically

address the other claim, the second claim is deemed denied,

and the appeal period begins to run. Deshotel v. Nicholson,

457 F.3d 1258 (Fed. Cir. 2006). Thus, if a timely appeal is

not filed, the only recourse is to file a CUE claim.

Citation Nr: 0914005

The Federal Circuit addressed the issue of how to handle unadjudicated TDIU claims in Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). The Federal Circuit held that when VA violates Roberson by failing to construe the Veteran's pleadings to raise a claim, such claim is not considered to have been unadjudicated but rather that the claim had been finally decided. See also Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006) ["Where a veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run."] As noted by the Federal Circuit in Andrews, such RO error in failure to adjudicate a claim is properly corrected through a CUE motion (assuming that a NOD is not timely filed). The Federal Circuit issued another decision on the same day as Andrews. In Johnston v. Nicholson, 421 F.3d 1285 (Fed. Cir.) the Federal Circuit rejected the government's argument that an alleged and unadjudicated TDIU claim remained pending before the RO. The Federal Circuit noted that it had rejected that argument in Andrews. The decisions of the Federal Circuit in Andrews and Deshotel are dispositive as to whether an unadjudicated claim for TDIU could be an avenue for assigning an earlier effective date. Even assuming for the sake of argument that a TDIU claim was raised in the Veteran's August 1989 claim for increased rating, the failure of the RO to act upon that claim implicitly denied it. As noted in Deshotel, the Veteran could have indicated disagreement with the implied denial of his TDIU claim or he could have raised a CUE challenge. He has done neither.

In law, a dispositive motion is a motion seeking a trial court order entirely disposing of one or more claims in favor of the moving party without need for further trial court proceedings.

Edited November 14, 2009 by Hoppy

[Hoppy]

Broncovet,

I want to make a comparison to how it was determined under California labor law that a person was eligible for vocational rehabilitation to the VA's determination that a person should receive compensation for unemployability. Under labor law a person was eligible for vocational rehabilitation if the court determined that a reasonable person when reading the medical reports could deduce that the injured worker could not return to their usual occupation. Additionally, when the courts made such a determination that the individual was eligible for vocational rehabilitation and the insurance carrier failed to provide vocational rehabilitation then there was no error that the injured worker could make that would cause him to lose his eligibility. I've seen cases that were closed under labor law reopened and vocational rehabilitation awarded after the five-year statute had run out on the case. One thing to consider is that the last time I checked vocational rehabilitation had been eliminated as a benefit under California labor law. The lawyers who work for the state and enforced the rights of injured workers to rehabilitation are no longer easily accessible. I would have no idea how to find them at this time. Last time I checked was over 10 years ago.

If the VA had failed to assess employability in my claim and I felt the medical reports could have been interpreted by a reasonable person to deduce that such assessment of employability was necessary then I would argue that the rater failed to give proper consideration to the rating schedule. Failure to give proper consideration to the rating schedule is a CUE. The fact that a veteran fails to appeal a decision does not excuse a rater from failing to properly applied the rating schedule. Irrespective of the existing case law I would get a lawyer and appeal it back to the federal court. I did find that failure to properly apply the rating schedule can be a CUE (see Citation Nr: 0907023). I certainly hope they have not changed their mind on this issue. I also remember finding a case where the VA had lost an issue in the federal courts because the court determined that the failure of the veteran to appeal the decision did not excuse the VA from properly applying the law. I'll continue to try to find this case.

The fact that the VA tries to hide behind the idea that a veteran could deduce that the VA made a mistake and thus this somehow lets the VA of the hook for their failure to deduce the issues and properly rate a claim really bothers me. I actually woke up at two o'clock in the morning with this on my mind and decided to type it up and post it so I could get back to sleep.