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

[Guest]

Please try to take this the right way. You posted:

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

This statement basically states that you applied for jobs. When a person applies for a job they are saying that they are capable of doing the work (employable). Granted you did not get the Job but you filed an application that you could work. Outside of being any type of temporary job or probational job this would not warrant an earlier effective date. TDIU is basically for veterans that can not work due to their service connected disabilities, it is not for veterans that can not work in a specific field, it is also not for veterans that can't get hired. If you are looking for work then you are employable.

If I am off please explain.

Edited March 6, 2011 by pete992

[Sergeant G]

Thanks Pete.

"When a person applies for a job they are saying that they are capable of doing the work (employable)."

I have to respectfully disagree.

Veterans can be considered unemployable and work at the same time if their earnings fall below the poverty threshold as determined by the Census Bureau. Any employment I had from 2007-2009 was part-time and marginal, and, per 38 CFR 4.16(a), marginal employment is not considered to be gainful. Just because I applied for jobs doesn't mean the employment would have been gainful. Plus, all positions I held were for less than a year because I was incapable of maintaining employment as a result of my S/C disability. The only reason I applied for jobs in the first place was because the VA initially lowballed my increased rating to only 30% (previously 10%) and there was no way I could survive on only $376 per month.

Nonetheless, the DRO didn't reason that I was not entitled to an EED merely because I applied for jobs--she only said that I should not be granted an EED because I was not licensed to practice law in the state where I filed my claim. Again, that was not the reason I said that I was entitled to an EED. My entitlement stems from the fact that I was incapable of gainful employment in any position--law-related or otherwise.

Thanks again for your input.

Sergeant G

[Berta]

The VA awards TDIU EED based one either date of receipt of the TDIU claim form 21-8940 if the medical evidence warrants it or they will use a one year prior date if an SSA award solely for same SC disability precedes the receipt of the TDIU form by one year.

"I recently submitted my 16-page Substantive Appeal"

When did you formally submit the 21-8940 TDIU form?

From what I see here they gave you the proper EED unless you had submitted the form sooner than the EED date they gave you.

[Sergeant G]

Thanks Berta.

"The VA awards TDIU EED based one either date of receipt of the TDIU claim form 21-8940 if the medical evidence warrants it or they will use a one year prior date if an SSA award solely for same SC disability precedes the receipt of the TDIU form by one year.

"I recently submitted my 16-page Substantive Appeal"

When did you formally submit the 21-8940 TDIU form?

From what I see here they gave you the proper EED unless you had submitted the form sooner than the EED date they gave you. "

I formally applied for IU and submitted the 21-8940 form in September 2009. In a Statement of the Case (SOC), the regional office increased my rating to 70% with an effective date of December 2007. Until my rating was increased to 70%, I was ineligible to formally apply for IU.

I understand that that the general rule for IU effective dates is based on when the 21-8490 form is filed; however, there is an exception to this rule.

Case law dictates that a claimant is not required to specifically label a claim as IU to be entitled to IU benefits because the VA has a duty to "fully and sympathetically develop a veteran's claim to its optimum." See Hodge v. West, 155 F.3d 1356, 1362-63 (1998). The Court of Appeals for Veterans Claims held that “developing a claim to its optimum requires the VA to determine all potential claims raised by the evidence, applying all relevant law and regulation raised by that evidence regardless of how the claim is identified." See Norris v. West, 12 Vet.App. 413, 420 (1999). The Federal Circuit held that “[o]nce 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 IU 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.” See Roberson v. Principi, 251 F.3d 1378, 1384 (2001).

Furthermore, "a claim for IU may consist of VA Form 21-8940, or any written communication indicating that the veteran is unable to work because of SC disability." See M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, Page 4. When a reasonably raised claim for IU arises in a veteran’s original claim for an increased rating, the VA must consider a claim for IU if: the veteran’s SC rating meets the minimum schedular criteria found in 38 CFR 4.16(a), and there is evidence of current SC unemployability in the veterans claims file or under VA control. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, Page 8, Paragraph h.

In my case, I filed a claim for an increased rating in December 2007. My rating met the minimum criteria in 38 CFR 4.16(a), and there was evidence of unemployability in my VA medical records. Therefore, I was not required to formally submit the 21-8490 for the VA to adjudicate my informal IU claim because the VA had a duty to develop my claim to its optimum.

What are your thoughts? Thanks again, Berta.

Sergeant G

[john999]

I had a traveling board hearing from the BVA at my RO and it took about a year for the hearing and ten months to get a decision. I don't know if going to D.C. would be quicker. The board hearing I got at the RO was just an information gathering expedition by the BVA. I would not waste my time on that again. I would really try and sort it all out at the RO via a personal hearing. Now if you think you are going to end up losing at the BVA and have to go to court then you might as well get started on your five year mission. You see the number of different opinions you are getting here. You might hire a lawyer for this one since it would be worth it. The BVA turned down my request for an EED on my TDIU because they said I was not on SSDI. So much for their brain power.

[Sergeant G]

Thanks, John.

I already had a personal hearing with a DRO at the Boston regional office. I believe she was unreasonable and that nothing I said was going to convince her that I'm entitled to an EED. From my understanding, the DRO decision is considered final, and the next step in the appeals process is the BVA.

If the BVA does their job and follows the law, I will prevail. However, I know that is a big "if."

It is ridiculous that the BVA turned down your request for an EED merely because you didn't have SSDI at the time. VA ratings and SSDI are not dependent on each other as they have different criteria. If you had SSDI at the time, I'll bet the BVA would have probably used that same reasoning to deny your claim for an EED as well. It seems like you get screwed either way. People at the VA act like the money they would be awarding is coming out of their own pocket.

Sergeant G