tdiu Challenge Problem For Va Research "top Guns"

[broncovet]

This is a "challenge" problem for the most talented and skilled VA law researchers. If there are any "TOP DOG" VSO's/ hadit members, then read on. The rest of us, including me, will probably get lost in VA speak.

I filed a NOD in 2004. The VARO failed to supply the Required SOC, or even acknowledge the NOD. I know they received the NOD because it was "date stamped" and marked by the RO as an "appeal" and a copy was sent back to me when I requested copies of my C file.

I filed a "Writ of Mandamus" and complained, among other things, that the RO failed to file the required SOC. The RO manager responded in testimony to the CAVC that the RO "interpreted (the NOD) as a claim for benefits".

This was not true...I have never been awarded or denied any benefits consistent with the effective date of the 2004 NOD. Of course, the Writ was denied, but not before the RO manager made some promises to the CAVC. One of the promises made was that the RO would "defer" my TDIU issue, which never happened.

Later, the RO made other decisions and I now have an appeal before the Board, where I am mostly appealing the effective date of a 2009 RO decision.

I am trying to figure out how the failure to file the SOC will apply. While I will admit my 2004 NOD was "iffy", the RO made it clear by writing "appeals" on it that it was an NOD.

I think that keeps things pending back to 2004...enabling me to resubmit evidence now relevant to 2004, or more precisely, 2002 because the 2004 RO decision was the implementation of a Board decision of a 2002 RO claim.

I know this is a can of worms..it is even worse when I supply all the details..I am trying to keep it as simple as possible.

1. Do you think the RO failure to file the required SOC will render my claim "pending" back to 2002, enabling me to submit evidence which would apply all the way back to then?

2. Is a subsequent RO decision, awarding partial benefits, that I did not appeal, going to muddy this up?

I think that I am entitled to appealate review..and that a RO decsion awarding less than the max does not make up for RO failure to file SOC.

Yes, I have alleged shredding in 2008...thousands of pages of my C file have disappeared. I want them to consider certain evidence, which corroborates my position that I applied for ALL my benefits back in 2002, and not just hearing loss, rendering 2002 as my effective date. Whew..Hope I didnt lose you.

[Philip Rogers]

If you can prove it harmed you, I would say yes. Would you please post the CAVC case link?

pr

[Berta]

"Of course, the Writ was denied, but not before the RO manager made some promises to the CAVC. One of the promises made was that the RO would "defer" my TDIU issue, which never happened."

I am surprised you managed to get a "promise to the CAVC" out of the VARO.

I too would love to see the CAVC case.

I filed MAndamus years ago and the only response I got from the court was that I had failed to exhaust every administrative remedy at the Regional level and therefore the mandamus writ was denied.

The court was right. I had failed to be able to teach them how to read.

If this promise was part of the Court's decision-and the VARO has failed to act on it-

you might need to obtain a lawyer and file another writ.

[broncovet]

Thanks for the responses. The CAVC is number 07-3214-Writ . I was able to pull up the judges decision with this link.

http://search.vetapp.gov/isysquery/c3079769-a11c-4cca-af82-a421c209bb18/1/details/

The VA manager stated there that "several significant VA actions are required", then listed the things that would "take place in a timely manner".

I think a lawyer is a good idea..but making that happen is not so easy. First, there is only one VA lawyer in my city, who has quit representing Veterans. When I spoke to the lawyer, McDonald and McDonald, they said that it took the VA too long, and they could not afford to hold out that many years to get paid, and focus on Social Security instead. I sent my file to Doug Rosinski, who opted to decline representation, probably because his win with some big cases enabled him to be extremely selective which cases he takes, and my case was far to complicated for him to waste his time even reading over 5000 pages. (I think he won the "laptop" case of about 29 million dollars) There are only about 400 VA experienced lawyers, thats only about an average of 8 per state, while there are thousands and thousands of Veterans needed representation. My cfile is probably 5000 pages (an "apple box" full of papers), but, the RO only has about 600 pages, probably due to shredding. (My most recent request of my C file yielded about 3 inches of papers), when my actual file has 8 times that much.

[Berta]

Has the RO done anything at all regarding 1,2,3, and 4?

Are any of the issues in 1,2,3, and 4 part of a pending BVA case now?

[Berta]

Do you have a vet rep with office in or near this RO building?

[broncovet]

I agree with Berta's assesment that "Reading 101" needs to be taught to the VARO. In my initial application for

benefits, I stated, ........."I have been unable to get a job".

I contend this document was shredded. The RO has not admitted to shredding, BUT if it was not shredded, then at least 4 decision makers were unable to read that and interpret it to mean a TDIU claim.