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]

Hoppy..

Wow, thanks for your thorough and informed answer. Do you know much about a "deemed denial"? That is, the VA adjudicates one issue of the Veterans claim, then fails to address other issues. I understand the courts has called that a "deemed denial" and the one year appeal period starts ticking which hardly seems "non adversarial" to me. In other words the VA blows off some of the Vets issues, then calls their not addressing the issue a denial, and hoodwinks the Veteran into beleiving he will get an answer soon on that issue also, and when he does not, the Veteran victim can not even meet the CUE standard? It is shredded claims at their worst. It basically means that the Va can shred evidence with impunity, and it is the Veteran who has to ultimately pay, even when it is determined with the medical records that the evidence was shredded, because the VA cant go the the VAMC and shred the medical evidence. Sometimes, that is the only evidence of a claim, because it is pretty easy and pretty widespread where the VA just simply shreds the Veterans 21-4138 as I am certain they did mine. When I visited the doctor and told him I was depressed and unemployed, that is the only evidence of my depression, TDIU claims left that has not been shredded. I thought it would be enough, under Bell's constructive notice rule, for me to get CUE since the court is saying that I had a deemed denial, and since I did not appeal THAT ISSUE, the one year appeal period has expired, and I can not get CUE.

[Hoppy]

Broncovet

My question is, are they required to adjudicated TDIU if it is not requested? I don't follow this issue very closely. It is my recollection that you need to file for TDIU in order for them to adjudicated it. If this is the case it doesn't make sense that they could claim the TDIU was adjudicated without a specific claim being filed for TDIU.

A little more on Bell from 1996

"will be deemed to have been in the record before the AOJ"

Bell specifically says that if it is in the possession of the VA, then it is deemed to be iin the record before the adjudicator. Below is a 1996 claim where they say that for a CUE the evidence must not be "before the adjudicator". To connect the dots. If it is in the possession of the VA = it is before the adjudicator and thus if it is before the adjudicator it is not a CUE.

Citation NR: 9629707

A determination that there was clear and unmistakable error

must be based on the record and the law that existed at the

time of the prior decision. Russell at 314. Either the

correct facts, as they were known at the time, were not

before the adjudicator, or the statutory or regulatory

provisions extant at the time were incorrectly applied.

[john999]

Hoppy

If the VA has evidence that a vet is unemployable due to a SC condition then there exists an inferred claim for IU. I don't know if they have a duty to inform the vet to send in a TDIU form. The VBM discusses this. If you file a claim and your doctor says that because of the claimed condition you are unemployable the vet is seeking the highest possible rating given the evidence. Would not this include IU? We are always quoting the rule that says when a vet make a claim he is seeking the highest benefit available. If you asked for 10% and the evidence shows a 50% disability then that is what you are seeking. I am not quoting the exact regs here but I believe that is the general picture.

[Hoppy]

John and others

Below is a link to a case advanced by a lawyer that goes into great detail on this issue.

It looks like it is a discretionary determination as to what they consider reasonable evidence of unemployability. To stop it from being a discretionary issue it would be best to file a claim for TDIU as soon as possible.

“If and when an RO is considering a rating increase claim from

a claimant and there is evidence of current service-connected

unemployability in the claimant's file or under VA control,

then evaluation of that rating increase must also include an

evaluation of a reasonably raised claim for a TDIU, and VA

must adjudicate that claim. Norris v. West,”

http://www4.va.gov/vetapp09/files3/0916474.txt

Edited October 29, 2009 by Hoppy

[Hoppy]

Broncovet

After reading the case I posted I find your comment relating the issues to a non-adversarial system very interesting.

From what I've been reading the VA would claim that they look for ”reasonable” evidence of employability. If they find reasonable evidence, then they adjudicate the issue of TDIU. If not, they don't even discuss the issue. When you later claim that they did not address the issue of employability they will argue that the law does not require that they address the issue in all cases, as they did in the case I posted.

When comparing a nonadversarial system to an adversarial system you would think that the interpretation of reasonable would be very liberal in favor of the veteran. I would even argue the evidence would need to clearly rule out unemployability in order for the VA in their nonadversarial system to ignore the issue of TDIU. I don't think this argument would get me anywhere. However, maybe the law needs to be changed.

The problem is that the VA is not as nonadversarial as a person might think. I've never seen a VCAA letter telling a veteran that if you think your unemployable to let us know. I guess the VA does not equate nonadversarial as being proactive for the veteran. The reason the VA does not state in their denials that TDIU was automatically consider and there was no evidence that you are unemployable is because they do not want to tip you off that unemployability is even an option. When I was going to my training to work for labor law attorneys we were taught not to phrase any question or history as to the development of the evidence that when read by the plaintiff would tip them off as to how to advance their claim. I was told that this practice was used throughout entire insurance industry.

From what I recall of Mr. Thompson's testimony to congressional committees prior to the VCA A, he was pretty much of the opinion that the veteran needed to advance a claim more than the VA was required to develop the claim. At the time he was arguing to the Congress that they should continue to require a veteran to prove an in-service diagnosis, a post service diagnosis and a nexus prior to implementation of the VA's duty to assist.

When I read the notices on the wall of the RO telling veterans that if they feel they have a disability related to the service all they need to do is file a claim in the VA will do the rest, I want to puke. I still have never seen a VCAA letter or decision that I feel is sufficiently proactive or the VA to call themselves the nonadversarial.

Edited October 29, 2009 by Hoppy

[carlie]

Hoppy,

I've been running through M21-1MR a bit and the closest thing I've been able to find on it is to handle IU as an inferred issue.

carlie

http://www.warms.vba.va.gov/M21_1MR.html

SubptIV - General Rating Process

Chapter 6 - The Rating Decision

Section B - Determining the Issues, Updated 8/3/09

2. Types of Issues

Introduction

This topic contains information about the various types of issues, including

• recognizing issues when preparing a decision

• clarifying partial or ambiguous claims, and

• examples of issues addressed in decisions.

Change Date December 13, 2005

a. Recognizing Issues When Preparing a Decision

When preparing a decision, the Rating Veterans Service Representative (RVSR) must recognize, develop, and/or decide all issues, whether

• expressly claimed

• implied

• informal

• potential

• mandated, or

• ambiguous.

b. Clarifying Partial or Ambiguous Claims

Partial or ambiguous claims should be clarified to ensure that the decision is complete and appropriate.

When a claim is ambiguous, indicate in the decision that the appropriate clarification or evidence will be separately requested.

Continued on next page

2. Types of Issues,

c. Examples of Issues Addressed in Decisions

The table below contains examples of different types of issues that are addressed in rating decisions.

Types of Issues Examples

Expressed

Elevated cholesterol is listed as a disability being claimed on VA Form 21-526.

Implied A congressional inquiry indicates the veteran’s job is in jeopardy due to service-connected (SC) disability.

Informal

A veteran says he cannot work due to one or more SC conditions.

Irrelevant

The history reads, “General Medical Examination (GME) 11 months after service indicates treatment for post-service fracture.”

Potential •

Department of Veterans Affairs (VA) examination report indicates the veteran believes a new condition should be SC

• VA examination report indicates an undiagnosed illness that was not previously claimed in a Gulf War case

• medical evidence shows lumbosacral strain may be due to SC knee instability

• former prisoner of war (POW) examination report notes additional disabilities that may be related to service, or

• service treatment records (STRs) show epididymectomy due to epididymitis that could qualify for Special Monthly Compensation (SMC) at the (k) rate.

Mandated

Aid and Attendance (A&A) or Housebound benefits when a 100 percent SC or nonservice-connected (NSC) rating is assigned.

Ambiguous

• VA examination indicates veteran or examiner mistakenly assumes a disability already is SC

• veteran mentions a new disability in his individual unemployability (IU) claim without elaboration, or

• hypertension without a date of onset is noted during a general medical examination 16 months after service.

3. Inferred Issues and Ancillary Benefits

Introduction

This topic contains information about inferred issues and ancillary benefits, including

• the definition of the term inferred issue

• the definition of the term ancillary benefits

• types of ancillary benefits, and

• examples of inferred issues.

Change Date August 3, 2009

a. Definition:

Inferred Issue

An inferred issue is derived from the consideration or outcome of related issues. Often the primary and inferred issues share the same fact pattern.

b. Definition:

Ancillary Benefits

Ancillary benefits are secondary benefits that are considered when evaluating claims for

• compensation

• pension, or

• Dependency and Indemnity Compensation (DIC) entitlement.

Eligibility for ancillary benefits is contingent on the type of disability entitlement the veteran has or the circumstances of the veteran’s death.

c. Types of Ancillary Benefits

Some types of ancillary benefits are

• Dependents’ Educational Assistance under 38 U.S.C. Chapter 35

• specially adapted housing under 38 CFR 3.809

• special housing adaptation grants under 38 CFR 3.809a

• automotive and adaptive equipment under 38 CFR 3.808

• vocational rehabilitation and employment (VR&E), and

• loan guaranty for surviving spouses under 38 CFR 3.805.

Reference: For more information on ancillary benefits, see M21-1MR, Part IX, Subpart i.

Continued on next page

3. Inferred Issues and Ancillary Benefits, Continued

d. Examples of Inferred Issues The table below shows examples of inferred issues.

Note: In general, infer an issue only when entitlement can be granted. Do not put a benefit at issue merely to deny it.

Exceptions:

Consider the following inferred issues in all applicable ratings, regardless of whether benefits are granted or denied:

• a ten percent evaluation under 38 CFR 3.324, and

• service connection for hypertension as secondary to diabetes mellitus with diabetic nephropathy.

If …

Then infer entitlement to …

a total and permanent service-connected evaluation is established

• on a schedular basis, or

• based on entitlement to individual unemployability

Dependents’ Educational Assistance.

Note: Also infer entitlement to Dependents’ Educational Assistance whenever permanency of a total evaluation is subsequently established. Do not put entitlement at issue merely to deny it.

Reference: For more information on determining entitlement to Dependents’ Educational Assistance, see M21-1MR, Part IX, Subpart ii, 2.1.

there is a severe degree of disability involving

• the loss or loss of use of an extremity or sensory organ, or

• any other functional loss providing entitlement to SMC. SMC.

a single 100 percent evaluation is assigned in a compensation or pension case A&A.

Note:

Do not put A&A benefits at issue if the evidence does not show entitlement.

• a single 100 percent evaluation is assigned in a compensation or pension case, and

• A&A is not payable Housebound.

Note: Do not put Housebound benefits at issue if the evidence does not show entitlement.

Continued on next page

3. Inferred Issues and Ancillary Benefits, Continued

d. Examples of Inferred Issues (continued)

If … Then infer entitlement to …

retroactive disability pension is not claimed, but a qualifying disability may exist retroactive benefits.

Note: Advise the claimant that retroactive benefits may be payable.

Reference: For more information on retroactive pensions, see 38 CFR 3.400(b)(1)(ii)(B).

a pension claimant fails to meet the schedular requirements for permanent and total disability extra-schedular consideration under 38 CFR 3.321(b)(2).

a veteran has

• no compensable evaluation(s), and

• more than one non-compensable evaluation(s) a ten percent rating under 38 CFR 3.324.

Important:

This benefit must be considered in all applicable ratings, including confirmed ratings, even when entitlement is denied.

a claim for service connection is denied for

• a psychosis based on wartime service, or

• any mental disorder based on Gulf War service.

Reference: For information on periods of war, see 38 CFR 3.2.

treatment under 38 U.S.C. 1702.

• there is a reasonable probability that the veteran’s death may be SC whether from

 disease

 injury, or

 self-infliction, and

• a claim for death benefits is received DIC.

Continued on next page

3. Inferred Issues and Ancillary Benefits, Continued

d. Examples of Inferred Issues (continued)

If … Then infer entitlement to …

• at the time of death the veteran was rated 100 percent disabled due to SC disabilities or entitled to individual unemployability, and

• a claim for death benefits is received

• DIC under 38 U.S.C. 1318 , if service connection for cause of death cannot be granted, and

• Dependents’ Educational Assistance under 38 U.S.C. Chapter 35.

a rating initially establishes service connection for permanent and total disability due to the loss or loss of use (L/LOU) of

• one lower extremity, requiring the use of braces, crutches, canes, or a wheelchair for mobility due to

 the L/LOU of the other lower extremity

 the L/LOU of an upper extremity, or

 another organic condition which affects balance or propulsion

• one lower extremity plus bilateral vision loss, with only light perception, or

• both upper extremities at or above the elbows Specially Adapted Housing

Reference: For more information on entitlement to Specially Adapted Housing, see

• 38 U.S.C. 2101(a)

• 38 CFR 3.809, and

• M21-1MR, Part IX, Subpart i, 3.

a rating initially establishes service connection for

• bilateral vision loss, with visual acuity of 5/200 or less, or

• L/LOU of both hands Special Housing Adaptation grant.

Reference: For more information on entitlement to the Special Housing Adaptation grant, see

• 38 U.S.C. 2101(b)

• 38 CFR 3.809a, and

• M21-1MR, Part IX, Subpart i, 3.

Continued on next page

3. Inferred Issues and Ancillary Benefits, Continued

d. Examples of Inferred Issues (continued)

If … Then infer entitlement to …

a rating initially establishes service connection for permanent and total disability due to

• L/LOU of a hand or foot

• bilateral vision loss with corrected acuity 20/200 or worse in the better eye, or

• bilateral vision loss with field constricted to 20 degrees in the better eye • automobile, and

• automobile adaptive equipment.

Reference: For more information on entitlement to an automobile or automobile adaptive equipment, see

• 38 CFR 3.808, and

• 38 U.S.C. 3902.

service connection is established for ankylosis of the hip or knee automobile adaptive equipment.

• service connection is established for

 diabetes mellitus, and

 diabetic nephropathy, and

• there is a diagnosis of hypertension service connection for hypertension as secondary to diabetes mellitus.

Important: This benefit must be considered in all applicable ratings, even when entitlement is denied.

Reference: For information on evaluating an inferred claim for hypertension, see M21-1MR, Part III, Subpart iv, 4.F.22.e.

• the schedular disability requirements for IU under 38 CFR 4.16(a) are met, and

• there is evidence in the veteran’s file or under VA control that indicates he/she may be unemployable due to SC disability. IU.

Reference: For more information on inferring a claim for IU, see

• Norris v. West, 12 Vet App. 304 (1999), and

• M21-1MR, Part IV, Subpart ii, 2.F.25.h.