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]

And yes, your right Carlie. The VBA manipulates it to make it come out the way they want in the first place...BUT if they try to manipulate it too much, then we can appeal, and, hopefully the CAVC will overturn the post hoc rationalizations. The judge is not supposed to make a decision until after he has heard the evidence.

John..

Its probably too late for me to get a lawyer at this point..claim has already been certified to the BVA. But, if denied at the BVA, yes, I will get a lawyer as I dont think I want to go to the CAVC without one again.

[carlie]

What is a "119"?

VA Form 119 Report of Contact.rtf