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

[john999]

Sgt

You know you can ask for a personal hearing at any step along the way. I had more than one DRO hearing on what was really the same issue. It is the EED that is sticking in their craw. They think that if they grant your EED the word will get out and other vets will start asking. I did get an EED on my TDIU based on a hospital admission back in 2001. I had applied for TDIU in April of 2002 but got an EED of August 2001 based on the hospital admission which can be treated as a request for an increase or even an informal claim for benefits. I got turned down for an EED of 1971 that was part of a CUE that was denied at the BVA. The claims are different, but I did get a rating decision based on the informal claim that was filed on my behalf back in 1971. I did not apply for TDIU back in 1971 because I did not even know what it was and the VA would not infer it because they excluded my doctor's evidence. I am in court with this now.

[Berta]

"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."

Are you able to scan and attach the reason and bases part in that decision as to why they did not consider TDIU?

I dont doubt what you posted here as to what it says- it is just that it might help us more to see their actual wording of the denial.

"Until my rating was increased to 70%, I was ineligible to formally apply for IU."

That erroneous information has been stated by vet reps as well as on vet sites for years and it is not true. Vet reps should be canned for saying that.

My husband at 30% applied for TDIU and then received SSA for PTSD.The VA has never acknowledged his TDIU form at all.

He was awarded 100% P & T for PTSD 3 years after he died.1997. They gave him the SSA date of 1991 for the retro accrued.SSA awards do help TDIU claims.

But are not mandatory for TDIU.

The DAV said he had to be 70% and would not support the TDIU claim and his rep told me hs SSA award probably wouldnt make a difference.

Of course he was wrong. I think if was still alive they would have awarded TDIU instead of 100% but I dont know if they can award TDIU to a dead person.

I certainly don't mean to attempt to discourage you.Not at all- I will check the VBM by NVLSP in a few minutes to see if their newest edition has anything that would help you.

If VA had adhered to Hodge V West, M21-1MR and numerous other examples of established VA case law my last claim would sure not have taken 7 years.

No one who handled my claim at the VARO level had the ability to read.

The BVA lawyers however -can read.

Edited March 7, 2011 by Berta

[Berta]

Here is link to the M21-1 Citation this vet gave us:

http://webcache.googleusercontent.com/search?q=cache:Hr0J-korKEEJ:www.davnj.org/Reference/ch02_secf.doc+M21-1MR,+Part+IV,+Subpart+ii,+Chapter+2,+Section+F,+Page+8,+Paragraph+h.&cd=1&hl=en&ct=clnk&gl=us&client=firefox-a&source=www.google.com

I haven't read this in years- and this to me is now a must read -as this veteran is bringing up an issue that could definitely affect others as well as bear on their own claim here.

[jbasser]

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

That is one of your problems right there: The VA did not obtain those records. Were these records posessed bu the VA or were they private records?

I think you will win this based on your legal background and your comprehension of VA law. But I predict that you will not win at the Regional Office Level since they dont emphasize the Legal Precedence issues in dealing with a VA claim.

The BVA may award the claim, However, Do you know what all these folks have in common? They work for the VBA.

I call it french kissing the alligator. Ever tried that. Most folks who have tried are decapitated.

I have a close friend who is also on here who is going through a very similar expereince from one of my favorite Regional Offices. These folks are truely pieces of work. ( Pieces of something I cannot say here)

He was awarded SSDI and filed for IU with the VA. The VA denied the claim and He issued a NOD. They treated the NOD as an increase and awarded IU costint him 2 years of Retro. He has since gotton a good attorney and is going up the ladder.

You have very good claims comprehension. Hang in there and a word of advice. Dont let your Service connected Issues like Bi Polar disorder get in the way of your goal. Keep it in control and you will win.

J

[Berta]

Sgt G -BTW -your citations are GREAT! Of course they are same citations the VBM has- except for Servello and a few others that are referenced in Norris Roberson etc.

“A "claim" is defined in the VA regulations as "a formal or

informal communication in writing requesting a determination

of entitlement, or evidencing a belief in entitlement, to a

benefit." 38 C.F.R. § 3.1(p) (2006). An informal claim is

"[a]ny communication or action indicating an intent to apply

for one or more benefits." 38 C.F.R. § 3.155(a) (2005). VA

must look to all communications from a claimant that may be

interpreted as applications or claims - formal and informal -

for benefits and is required to identify and act on informal

claims for benefits. Servello v. Derwinski, 3 Vet. App. 196,

198 (1992). If VA fails to forward an application form to

the claimant after receipt of an informal claim, then the

date of the informal claim must be accepted as the date of

claim for purposes of determining an effective date. Id. at

200.” source http://www.va.gov/vetapp07/files2/0716112.txt

Servello per the VBM also mentions if formal application (TDIU form) is received within one year of date that VA can infer unemployability by medical evidence,then the EED could correctly be one year prior to receipt by VA of TDIU app due to the inferred issue that the veteran has raised themselves as well as evidence in the clinical record.

We had recent discussion here as to the additional one year of TDIU which is possible in some cases but I know of no other situation that could generate more than one year of TDIU.

That favorable additional year of TDIU depends on claim the veteran made raising the unemployability issue and medical evidence in VA's possession ( or attainable such as SSA records they know of) that is ascertainable and which warrants TDIU -and this is where 38 CFR 4.16 (a)evidence kicks in.

Although the veteran's occupational and educational history can be considered by VA, VA may not “merely allude to” these factors without relating these factors to the veteran's disability.” Gleicher V Derwinski 2 Vet App 26,28 1991

NVLSP recommends getting an IMO from a Vocational expert in many cases where the VA

states the veteran can attain and retain gainful substantial employment,if in fact their SC renders them unable to do that.The fact that a high level of education and past long work career cannot stand alone as factors to deny TDIU.

The effect of SC meds also has to be taken into consideration in TDIU situations as many meds are so strong they, by their nature, hinder employment.

Can you possibly scan and post the results of the C & P exam you got that generated the SOC and an increase to 70%?

The DRO rested heavily in my opinion on whatever the examiner said as to employability in that exam.

Also did the VCAA letter they sent to you mention the unemployability issue at all?

I realised that this is probably why the VA awarded my husband back to his last date of employment-the TDIU app was sent in exactly one year after his SSA award date.The award EED preceded the ignored TDIU app by one year.He had a statement from his shrink that as of Nov 1991 he was totally unemployable due to his PTSD.

I got the statement from the shrink myself as the VA had failed to consider ALL of his VA med recs in trying to deny the higher rating from 30%.In the letter the shrink also said that the veteran's widow ad shown him PTSD award from SSA that VA had failed to consider.

Maybe this will help someone- my husband-after VA mismanaged his PTSD for years, finally got the real PTSD psychiatrist at the local VA for his care.This also took complaints by me to our Congressman who was instrumental in getting him the proper PTSD care.The new shrink gave him 6 tests for PTSD and his brain trauma from a CVA in order to assess the separate disabling affects of each. Both were 100% disabling.Also this doctor maintained all therapy and hypnosis records on my husband and

gave detailed write ups of extent of his PTSD.

The VA ignored ALL of those records. The VA psychiatrist was livid when I showed him the SOC. He gave me copies of everything in a few days.

For some odd reason, like many other instances I had with VA, records that were put into his med rec files had disappeared from them.

I went through that with my 1151 and FTCA stuff too.

Only the critical records were removed.When the RO got his letter and the copies I sent to them of the psychatric stuff they awarded in mere weeks 100% SC P & T PTSD.

His prior VA shrink was the employee shrink and did not document anything as he didnt trust the VA himself with employee records.He didnt document 5 years of PTSD therapy and could not medicate the veteran.The veteran left the VA to work for the electric company and was no longer a VA employee and yet it took a battle to get him the right care for his PTSD.

It amazes me how the VA will deliberately stall a claim by removing, hiding, or destroyng the most critical evidence.It happened to me multiple times for eery claim I ad so this is not a coincidence.It is deliberate.

Only by getting a copy of your entire VA med recs and C file can you find out what they dont have or are refusing to acknowledge or have lost, or destroyed.

[Stretch]

A few years ago, before my award, I had the same question about BVA hearings.....I decided to go with the Video Conference...It was fairly easy to get to and only took a few months to get...Since the first Video Conference I have been to one other Video Conference....

These Video Conferences were good and worked out favorable in my claims...Rather than wait for a traveling board or waiting on a Washington BVA hearing, I would suggest that you listen to you DAV VSO.

It is rare when you will hear me say something like the last....