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

You asked, "My question is, are they required to adjudicated TDIU if it is not requested?"

Roberson vs Principii seems to answer that question in the affirmative because when the Veteran tells his (VA) doctor he is unemployed, that constitutes an Informal claim for TDIU, as Roberson points out below:

Roberson alleges that the Court of Appeals for Veterans Claims misinterpreted 38 C.F.R. § 3.155(a), governing informal claims, which states in pertinent part: Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought.

38 C.F.R. § 3.155(a) (1994) (emphasis added).

The Court of Appeals for Veterans Claims held that even if the VA had a duty to develop all possible claims that are reasonably raised from a liberal reading of the record, Roberson was required under section 3.155(a) to specifically request entitlement to the benefit sought – in this case TDIU. The Court of Appeals for Veterans Claims determined that because Roberson did not make a specific request for TDIU, the VA was not obligated to adjudicate such a claim.

Roberson alleges that Norris v. West, 12 Vet. App. 413 (1999), is applicable and holds that the VA’s requirement that TDIU be specifically requested “loses sight of the Congressional mandate that the VA is to ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.’” Norris, 12 Vet. App. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)).

End Quote.

The gist I get from this case is that the Federal court indicated that when the Veteran tells his VA doc that he is unemployed, it meets the requirement that "the benefit requested (TDIU) is met". This "congressional mandate" requires a liberal interpretation of the Veterans filings, that is, frankly not all Veterans even knows what "TDIU" even means..he just knows he is out of work, and is asking for help from the VA. I really think the VA wants to require that the Veteran have intimate knowledge of the VA system to get his benefits, but it is clear that knowledge is not a requirement for the Veteran to get his just benefits. Many Vetrans are depressed, some have PTSD, not all are educated, especially in VA knowledge, and the courts just are not requiring that the Veteran "apply for TDIU", but rather merely tell his doc he is unemployed or out of work. It is the Va's responsibility to identify and assist the Veteran with his claim, with the VCAA, and to award the Veteran the maximum benefit allowable by law. Can you imagine a depressed, unemployed, homeless Veteran seeking benefits, and the VA turns him down because he did not specifically tell them he wanted "TDIU", when he had no idea what TDIU meant?

[Pete53]

My theory about Service officers and the VARO, Service Officers except a precious few are to serve as a buffer between the VARO and the Veterans who file claims. Everyone knows that Veterans are cranky, hard to deal with and sometimes intimidating

So these service officers take courses at the VA to learn how to do the detail work that most Veterans don't have a clue about and soon most Veterans feel that the Service Officer is working for them. Now the strange thing is the VA provides the offices and phones and equipment for the service officers to operate they even put them at VA Hospitals so the Vets can meet them.

The Veterans having no contact or VA education rely on the service officers who began to feel very important.

The VARO is hoping that the Service Officers at the Hospital and the local bars where Veteran Service Officers also meet or clubs will act as a buffer and that they will never even have to talk to a Veteran and explain why it takes the VARO years to finish claims and that they make a lot of mistakes on a regular basis and that they can't keep up.

What is funny is that most Veterans being Honorable and Patriots still think that the VA will be fair.

[carlie]

The gist I get from this case is that the Federal court indicated that when the Veteran tells his VA doc that he is unemployed, it meets the requirement that "the benefit requested (TDIU) is met".

I do not feel this is good advice to pass onto veterans.

Veterans, if you feel you are unemployable due to service connected conditions,please file for it on the appropriate form, then there is no question.

http://www.vba.va.gov/pubs/forms/VBA-21-8940-ARE.pdf

If you have mentioned this to a doctor prior to filing for it, that may

help substantiate an earlier effective date - but please do not base your claim to be considered due to telling a doctor.

Also, Keep in mind - patient's have NO CONTROL of exactly what a doctor

does or does not make notes of.

The argument that stating to a doctor that "he is unemployed"

does not in anyway even attempt to qualify as a request of benefits even when read sympathetically, or for that fact even as an informal claim for benefits -- thousands of people are unemployed.

Being unemployed and unable to sustain gainful employment due to service connected disabilities,have a whole lot of room inbetween them.

jmho,

carlie

[Hoppy]

carlie and Broncovet

Robertson is a very interesting case. The first line of the excerpt I posted probably explains the difference between Robertson and the case I cited. In Robertson they say that once the veteran submits evidence of a medical disability and makes a claim for the highest possible rating and additionally submits evidence of unemployability then the VA must consider TDIU. In the case I cited the attorney did not include in his argument that the veteran had submitted additional evidence of unemployability. The attorney directly advanced the argument that the mere submission of a claim for medical disability and the requirement that the highest rating possible is being sought requires a investigation of TDIU. He omits the last requirement of Robertson that there be additional evidence of unemployability. Instead the attorney states the record indicates unemployability. The major difference between Robertson and the case I posted is that in Robertson he was 70% disabled and that the case I posted they considered the guy 20% disabled. It appears to me that in the case I cited they either failed or decided not to apply Robertson because Robertson specifically equated his inability to work primarily due to to symptoms of a mental condition that was service connected during the decision that failed to address TDIU. I did not see in the case I cited where the veteran had originally equated his inability to work to the condition that he was service connected for.

ROBERTSON…………

“Once a veteran submits evidence of a medical disability and makes a claim for

the highest rating possible, and additionally submits evidence of unemployability, the “identify the benefit sought” requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. The VA must consider TDIU because, in order to develop a claim “to its optimum” as mandated by Hodge, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU. Thus, we reverse the court’s holding that Roberson failed to make a claim for TDIU before the RO at the time of its 1984 decision.”

I think what Robertson and the case I posted illuminates is the importance of how the requirement that there is “additional evidence of unemployability” is interpreted by the adjudicators. It appears to me that Robertson covered all the bases. He had a psychiatric disability whereby his contention that he did not work was due to the symptoms of the psychiatric disability and it was clearly stated in the file at the time of the original decision.

I really do not see any significant correlation between Robertson and the case I posted because of the statement by the BVA in the case I cited that “There was no indication in the reports that either the Veteran or provider suggested the frost-bite disabilities resulted in the Veteran being unable to secure or follow a substantially gainful occupation as a result of these conditions.”

When reading the post discussing the M. 21 it sounded good at first. As I kept reading the examples were very narrow and I could not find any example specifically suggesting when or how TDIU should be developed as an inferred claim or any other of the considerations listed. However, I think in a case where the veteran has stated as was done in Robertson that the symptoms of the disability that are service connected prevented them from working that an inferred claim would also be obviously applicable as discussed in the M. 21.

Personally, the best way I feel they should deal with this is to require that the veteran sign a statement that he does not believe his service connected disability makes him unemployable. In the absence of this statement the VA would be required to assess employability. There was a time when this type of statement rejecting a possible benefit was required under labor law for some types of benefits. If the insurance carrier did not have a signed statement rejecting the benefit than the injured worker could later claim that he was not informed of the availability of the benefit and would have sought the benefit had he known it was available. In this case the normal statutes that allowed a claim from an injured worker to be closed were waved indefinitely an injured worker could seek the benefit because the carrier violated the law by not providing proper notification. If the VA did this with TDIU then all veterans who function marginally and depend on service officers would have an additional protection in the event that eventually figured out that they got screwed.

Edited October 30, 2009 by Hoppy

[john999]

I submitted medical evidence of unemployability back in 1972. The VA compeltely ignored it. I did not know what TDIU was then. Not once in 30 years did the VA or any VSO ever even mention the topic of TDIU. I never heard the phrase until I clocked into Hadit in 2002. What the VA was requiring was that you meet the rating percentage before they would even mention TDIU. So the guy with a 50% rating who was unemployed would never even have his IU discussed because he did not meet the percentage requirement. What the VBM states is that if the VA has good reason to believe you may be unemplloyable due to a SC condition that is an inferred claim for IU. They mention a guy with SC foot oder as potential IU because his VA social worker is aware of the foot oder and its impact on potential employers. I agree that a wise vet should file for IU and not wait for an inferred or informal claim for IU by the VA. That vet will be in his grave before that happens.

[Hoppy]

John

When you say you submitted evidence of unemployability in 1972 do you think there was any record that you stated that you did not work due to a psychiatric disability. The Roberson case is very interesting I hope you read it. Basically, they hung their hat on the fact that he told the doctor that he had not been working for 10 years because of concentration problems caused by a metal condition. The court decided that the statement that he did not work because of concentration problems was sufficient for the VA to have considered unemployability. The court decided that was not a failure in the duty to assist rather it was the failure to properly apply the law.

The only thing about Roberson that wasn't clear to me was whether or not he submitted additional evidence between the first time he was rated at 70% and a later date when they tacked on the TDIU. If there was no additional evidence then Roberson would have met the second criteria of CUE. Basically, I think the federal court just determined that the VA should have processed a TDIU claim and remanded the rest back to the VA. In any event, read this case it's very interesting it is Roberson versus Príncipi.

From Roberson

"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’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."

I would give you odds that if you have a claim identical to Robersons with one exception and that exception is that the period of time you are unemployed is less than 10 1/2 years VA would again try to confuse the issues and say your claim is not the same as Roberson. However, the VA would also be required to have assessed TDIU on a temporary basis. I am pretty sure this issue came up somewhere in the Roberson case.

I just noticed that I have been putting an extra “T” in the name Roberson on previous posts.