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]

The effective date of when you first applied also applies to a "pending" claim. To me it would be very confusing to be other wise.

YOu apply for benefits. Then 3 months later you have a C and P exam. Then, two months later, you send in an IME. What is the effective date? Well the date you applied, not the date you sent in more evidence, of course, because its a pending claim.

Instead, had this claim been denied, but you later tried to reopen, you lose your effective date and the new effective date becomes the date you resubmitted new evidence to reopen. I think that is what the case I posted is about.

I am trying to find a chart that I saw, I think it was in the VBM, which shows all the senarios...CUE, NOD, denial, reopen, etc, effect on the effective date, to help us make a good decision on which way to go.

If I read the case right....in summary, "FIGHT, Fight, for your appeal. Keep fighting until you have exhausted everything...BVA, CAVC Federal courts, Writ, CUE, etc...and only then reopen with N and M evidence, because you will bust your effective date otherwise.

[carlie]

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.judicial...ecision/36/2517

bronco,

Slow down.

I am not yet referred to an issue regarding N&M for a re-open, that's a whole different ball game.

The remand time provides "the veteran with the right to submit additional evidence and argument

on the matters the Board has remanded."

A vet can have lots of additional evidence and argument to submit to the board that doesn't fall under

the VA's definition of N&M.

One of the main one's being, evidence that was of record at the time the prior decision was made

that the VARO and BVA both listed as evidence but then just sloughed it off and provided no weight or

consideration to it.

The vet can also concentrate on submitting additional evidence that is new - but not material or that is

material but not new and BVA HAS to consider it as additional evidence

Also as stated this remand time provides the vet with time to present the argument in an additional or what I feel,

under an alternative theory.

Example - could be an alternative avenue for part of vet's claim of for CUE for an EED.

During this remand time the vet can submit sworn (if there is a hearing) verbal testimony or written signed testimony

that easily opens up for a different theory in their argument that states something like -

I contend my claim for CUE regarding EED is inextricably intertwined with the claim evidence I

submitted 30 years ago asking my VARO to apply 38 CFR 3.156c to figure my effective date due to my submission

at that time, of newly discovered SMR/STR's. I have a date stamped copy of this and continue to be denied the EED

that this evidence completely supports per 38 CFR 3.156c.

Another thought for consideration is that, remember the first goal is to get SC granted, once that is accomplished

and if the vet submits additional evidence/argument to the board that is considered to be N&M evidence - this should

open the vet up for staged ratings that could provide for an increase from the earliest effective date the board finds

say 10 years ago the medical evidence supports a 10 % level and by the time the Board considers ALL of the evidence

the percentage could increase from 10% to 30 % to 60 % with consideration of the N&M evidence.

It would be important for the vet to also submit a Waiver of RO consideration with this.

Here's an example - My BVA Decision granted 2 issues - then it's up to the VARO to figure the ED and percentage

using all of the evidence not just N&M.

The BVA, in their decision dated May 2010 and Aug 2010, granted SC for asthma and bronchitis

(claimed as a lung condition to include asthma and emphysema) with an evaluation of 10 percent effective

Aug 1999.

An evaluation of 30 percent is assigned from Feb 2002.

An evaluation of 60 percent is assigned from Oct. 2008.

BVA granted SC for cervical and degenerative and joint disease (claimed as cervical strain) with an evaluation of

20 percent effective May 2001.

A 30 percent is assigned from Oct. 2010.

[broncovet]

I agree. The remand gives you an opportunity to submit "additional evidence" which may or may not fit the definition of "new and material evidence".

Like you, I am trying to get the VA to "read" that I applied for benefits back in 2002, that is, to recognize certain statements I made as "reasonably raised" claims by the record. In that way, our claims are at least somewhat similar. I think I am going to post some rules on what constitutes an informal claim per Brokowski, which may help.

[john999]

Bronco

I really would shop for a lawyer for this thing. When you become emotionally involved in a case it makes it harder on your nerves. Since there is potential retro as you say back to 2002 that should entice some lawyer to give it a crack. You need a cool legal head to look at all this stuff and come up with a game plan.

[carlie]

bronco,

What your going to find out about "informal" claims will almost equate to

assigning weight to the evidence -many times the VBA will manipulate it

in the light they want to support what ever their decision is going to be.

Basically for an informal claim - something regarding had better be somewhere

in writing - even if it's on a 119.

[broncovet]

What is a "119"?