Which Location Is Faster To Get A Bva Hearing?

[Sergeant G]

Hi,

I am appealing the effective date of my award. Does anyone know, generally speaking, if it will take less time to get a BVA hearing in Washington, D.C. as opposed to the regional office? My regional office would be Boston, in case that matters.

Thanks!

Sergeant G

[johnjjr]

Sergeant G,

I Would suggest that you file a NOD with your RO requesting either a DRO review or hearing. Save the BVA in case you get an unfavorable decision from the DRO.

[carlie]

Hi,

I am appealing the effective date of my award. Does anyone know, generally speaking, if it will take less time to get a BVA hearing in Washington, D.C. as opposed to the regional office? My regional office would be Boston, in case that matters.

Thanks!

Sergeant G

It seems to me that the hearing in washington should be scheduled faster

as they don't have to jump through as many hoops to provide it there.

How old is your RO rating decision that you are appealing an effective date on ?

[Sergeant G]

johnjjr and carlie,

Thanks for the responses. I was vague in my initial post. I had a claim where I was denied TDIU, then I filed a NOD and it was later awarded by the DRO; however,she assigned a much later effective date than I feel I am entitled to. I filed my claim for an increased rating in December 2007 and met the criteria for IU back then, but she awarded an effective date of July 2009. Anyway, I received the Statement of the Case on January 6. I know that I have 60 days to file my Substantive Appeal. I am hoping that the BVA is much better about actually reading evidence I submit. : )

sergeant g

[Berta]

What rationale did she use in the decision to award the date she picked?

Do you get SSDI and if so, is it solely for SC conditions?

If so did the SSDI pre -dated the TDIU EED?

And did the VA know of the SSDI and then obtain those critical records?

[carlie]

johnjjr and carlie,

I had a claim where I was denied TDIU, then I filed a NOD and it was later awarded by the DRO; however,she assigned a much later effective date than I feel I am entitled to.

sergeant g

Serg,

What reason was given to support the effective date assigned ?

[Sergeant G]

Hi Berta and Carlie,

I apologize for the delayed response.

First, let me say that since my original posting, I enlisted the services of the DAV. My service representative said that requesting a hearing by live videoconference took only 6-8 months, rather than 24 months for a hearing at the regional office or in Washington, DC. I recently submitted my 16-page Substantive Appeal and elected the videoconference option.

I do receive SSDI solely for the same SC disability (bipolar disorder). The VA did obtain the records. I applied for SSDI the same day I quit working in July 2009, and I had to wait the normal six months before getting my first payment.

The DRO assigned an effective of July 2009, which again is when I stopped working. When I had my DRO hearing, I said that I had an informal claim for IU when I filed my claim for an increase in December 2007—this is also the effective date of my 70% rating. I was unemployed, met the criteria in 38 CFR 4.16(a), and there was evidence of unemployability in my VA medical records. In fact, I raised the issue of having an informal claim on numerous occasions, but the regional office continues to not address it. I also stated that I was entitled to an earlier effective date of January 2007, pursuant to 38 CFR 3.400(o)(2), because it was "factually ascertainable," through my medical records, that an increase in my disability occurred within the 12 months prior to when I filed my December 2007 claim.

During my hearing, I stated that I was an attorney by profession and presented average earnings for attorneys in the community where I reside. The M21-1MR defines substantially gainful employment as, "employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Furthermore, 38 CFR 4.2 states that "evaluations are based on the point of view of the veteran working or seeking work." Considering the foregoing, it was relevant for me to disclose my profession. I am licensed to practice law in Massachusetts; however, when I filed my claim, I was living in Texas. While living in Texas, I had several jobs—mostly menial—that were not law-related, and also had several periods of unemployment. My erratic work history is due to the symptoms of bipolar disorder, and this has been substantiated in my medical records.

In the DRO's decision she stated the following: "Veteran contends that she should be granted individual unemployability from [2007] because she was unable to work as an attorney since that time. However, in her hearing of June 2010, the veteran admitted that she was not living in a state where she was licensed to practice law from 2006 until June of 2008. She states that she applied for attorney jobs but was not hired. She blames her symptoms rather than her checkered resume or the economy."

It was not my contention that I be granted an effective date earlier than July 2009 merely because I could not practice law. I was incapable of gainful employment in any career field and met the criteria of 38 CFR 4.16(a) when I filed my claim in December 2007. Despite my extensive testimony regarding my informal claim for IU, after I mentioned the fact that I am an attorney, the DRO's only questions dealt with when I lived in Texas and moved back to Massachusetts, the status of my license to practice law in those states, and jobs I held that were not law-related. She would also not agree that my agreement was not gainful from 2007 through 2009 even though I presented indisputable evidence of the fact. Specifically, I submitted tax returns as proof of income and printouts from the Census Bureau's website showing the poverty threshold for each of these years.

38 CFR 3.103©(2) states, "It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony."

I believe the questions the DRO asked were not intended to be advantageous to my claim or to "explore fully the basis of [my] claimed entitlement." On the contrary, I believe the questions she asked were used to undermine my claim and refute the evidence I presented. The DRO made no attempt to clarify my position. She also failed to explain why she didn't award an effective date of at least June 2008, which was when I returned to Massachusetts where I am licensed to practice law.

I addressed all of the foregoing, among other things, in my Substantive Appeal. I also stated that I was entitled to the benefit of the doubt as outlined in 38 USC 5107(b) and 38 CFR 3.102. While there is a preponderance of evidence supporting my claim, I said that there was, at the very least, an approximate balance of positive and negative evidence supporting my claim. Accordingly, as the claimant, it is mandated that I prevail.

During the hearing, she DRO was borderline rude, and it seems to me that she was determined to set an effective date as late as possible.

I hope this answers your questions—sorry for the long-winded response. Thanks again for your help!

Sergeant G