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.

[broncovet]

Berta..

In reference to the 4 RO promises:

#1. No, a "deferred" TDIU decision never happened. TDIU was denied as "moot" in 2009 because I was awarded 100%.

#2 Yes, those claim were both denied.

#3 Yes, I finally received an increase 2 years later on the issue of increase for depression.

#4 Maybe. I received a RO decision in 2008, which I appealed, which somewhat accomplished this.

None of these 4 are pending at the BVA.

Most of the 4 promises are probably "harmless error" now that I have received 100 percent except that my effective date is still in dispute. Had I been awarded TDIU in 2002, that I had applied for, I would have gotten 5 years more of benefits than the 100% awarded effective in 2007. My beef is that I am entitled to 5 years more retro.

Edited March 18, 2011 by broncovet

[broncovet]

The Vet rep thing is in disarray, similar to the claim. Yes, I have a national DAV rep, with an office in Cincinatti and also at the RO. His phone is perpetually busy and I have tried for days to reach him, until I have given up.

Then I got a letter from a national DAV rep in Cleveland, that I have never met or heard of, who sounds like he was "representing" me. I dont even know how that happened...possibly the Cinci DAV rep knew he was not giving me justice as he had too many claims..and assigned me to some DAV rep in Cleveland.

Incredibly, the RO contacted me by IRIS, when I had inquired about something else, and stated they needed a POA.

I explained that DAV had been my POA for years..and I had multiple letters from them over the years. While I have no doubt that my POA ALSO had been shredded, the RO would not admit that either..and later said, "oh..yes you are right the DAV is your POA".

[carlie]

bronco,

Here's what BVA instructed in regards to my VARO not sending me an SOC.

REMAND

Right wrist, GERD, major depressive disorder and tinnitus

In a January 2008 rating decision, the RO denied the

Veteran's claims of service connection for a right wrist

disorder, GERD and major depressive disorder. That decision

also denied a disability rating in excess of 10 percent for

service-connected tinnitus.

In a statement stamped "received" in September 2008, the

Veteran appeared to express disagreement with these

determinations. However, a review of the file does not

indicate that she received a Statement of the Case as to

those issues.

Since there has been an initial RO adjudication of the claim,

and a notice of disagreement that was received within one

year of that decision, the issues must be remanded for

issuance of a Statement of the Case. See 38 U.S.C.A. § 7105

(West 2002); 38 C.F.R. §§ 20.200, 20.302(a) (2009); see also

Manlincon v. West, 12 Vet. App. 238 (1999).

After the RO has issued the Statement of the Case, the claim

should be returned to the Board only if the Veteran perfects

the appeal in a timely manner.

See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).

5. Finally, the RO should undertake all

actions required by 38 C.F.R. § 19.26,

including issuance of a Statement of the

Case, so that the Veteran may have the

opportunity to complete an appeal on the

issues of service connection for a right

wrist disorder, GERD, and major

depressive disorder, as well as a

disability rating in excess of 10 percent

for tinnitus (if she so desires) by

filing a timely Substantive Appeal. The

RO should take appropriate action based

on the Veteran's response.

Thereafter, if indicated, the case should be returned to the

Board for the purpose of appellate disposition.

The Veteran has the right to submit additional evidence and

argument on the matters the Board has remanded.

Kutscherousky v. West, 12 Vet. App. 369 (1999).

[broncovet]

Thank you Carlie. This is basically what I had hoped for even tho it may not have that good of an end result for you..did you win benefits with the RO remand?

While the 2004 RO decision has became "moot", it sounds like it enabled you to submit evidence. This is critical, because evidence that I submit today in this regard would be considered as if I had submitted it back in 2002. Or, at least that is the way I interpret it. I think I want my claim "pending" because the Ro failed to file the required SOC. Of course if its Pending, I can submit additional evidence.

[carlie]

Thank you Carlie. This is basically what I had hoped for even tho it may not have that good of an end result for you..did you win benefits with the RO remand?

While the 2004 RO decision has became "moot", it sounds like it enabled you to submit evidence. This is critical, because evidence that I submit today in this regard would be considered as if I had submitted it back in 2002. Or, at least that is the way I interpret it. I think I want my claim "pending" because the Ro failed to file the required SOC. Of course if its Pending, I can submit additional evidence.

bronco,

The VARO isn't finished with my remanded issues yet.

Also - several years ago I requested a DRO Hearing that they failed to provide for specific issues.

I now have a DRO Hearing scheduled for May 18th.

You don't have to have pending issues to submit additional evidence.

" The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded."

[broncovet]

Carlie

The difference is the effective date. Yes, N and M can reopen a claim, but when you go that route, you hurt your effective date. However, since your claim is remanded, you can submit new evidence and the effective date will be when you first applied. I think I have that right. This is an example of what I mean:

https://www.judicialview.com/Court-Cases/Veterans/Effective-Date-for-Disability-Cannot-be-Earlier-Than-Claim-to-Reopen/Board-Lacks-Jurisdiction-to-Consider-Error-in-RO-Decision/36/2517