tdiu Can The Va Take A "chain Saw" To Our Claim?

[broncovet]

We all know the VA LOVES to take a sawzall to our claim, chopping it up into several pieces, often meaning decades of delays, but the question is do they really have a legal basis to do this? While we all know they have done it, it may be time to "call them" on this and appeal it preventing it for the future.

ONE example (there are many):

I applied for: (quoting from my VCAA letter): "Disability compensation benefits for hearing loss".

When it got to the BVA, it was already "cut" to (quoting from BVA decision) "service connection for hearing loss".

Can you see how it was "chopped"? I did not apply for "service connection" to the exclusion of other things..because service connection, at 0%, means NO compensation. The BVA did not take up the whole issue. I was asking for compensation...MONEY...not

free bouncy balls because I am service connected. Further, my claim for benefits established the effective date.

Service connection is only ONE issue...another is disability percentage, and still another is effective date. Now I have to go back to the BVA and have them decide the effective date, which should have already been decided.

If you read Roberson, below, you will note as my pastor might say....the VA is supposed to decide some of our claims....No? What percent of our claims? Oh, ALL of them..and this is what congress mandated. So if they have to decide all of them, does this mean they can chop them up and just decide part?

Roberson Principii states:

Roberson alleges that Norris v. West, 12 Vet. App. 413 (1999), is applicable and holds that the VA’s requirement that TDIU be specifically requested “loses sight of the Congressional mandate that the VA is to ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.’” Norris, 12 Vet. App. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). Although Norris does not bind this court as precedent, it is both on-point and informative.

<br clear="all" style="page-break-before: always; ">The facts of Norris are similar to the present case. Norris was rated 70 percent disabled from a mental disorder. Id. at 415. His rating was increased to 100 percent based on 38 C.F.R. § 4.16 (i.e., the same basis for increasing Roberson’s rating to 100 percent). Id. at 416. Before the Court of Appeals for Veterans Claims, Norris alleged CUE in not giving him an earlier effective date for his 100 percent rating. Id. The government alleged that an informal claim for TDIU was not raised under the specific facts of Norris’s case because entitlement to TDIU requires a showing of at least an informal claim specifically alleging TDIU. Id. The Court of Appeals for Veterans Claims rejected the government’s argument because such a position “loses sight of VA’s congressional mandate that VA is to ‘fully and sympathetically develop the veterans’ claim to its optimum before deciding it on its merits.’” Id. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). In addition, the Court of Appeals for Veterans Claims stated that developing a claim “to its optimum” must include determining all potential claims raised by the evidence and applying all relevant law and regulation raised by that evidence regardless of how the claim is identified. Id.

I would like opinions:

[broncovet]

I will add that THIS seems to be a contributing factor to the backlog. You see, if we have to appeal 8 times to get one benefit...you know the drill...we appeal service connection, then we appeal the disability percentage, then we appeal the effective date, then we appeal TDIU, then we appeal the effective date of TDIU, then we appeal SMC..and on and on. By circulating this claim 8 times through the appeal system, it definately clogs it up, when once should suffice.

[Philip Rogers]

broncovet -in the case you quoted, don't the other two issues become a moot subject, once service connection is denied. With no service connection, there can be no effective date or compensation. Now if they awarded service connection, then they could proceed on the other issues. I understand your point, tho. Also, if they changed what you were appealing, provided you caught the error, it would be a CUE. jmo

pr

[broncovet]

No, they are not "moot". Because the VA chopped my claim up into parts, what should have been decided in ONE trip to the BVA takes TWO trips to the BVA. (If not more) By them not taking up the issues of percentages OR effective date..the RO "awards Service connection" for hearing loss at 0%...then I have to appeal the percentage, and now the effective date. Result: By not addressing these issues the first time, my claim is now 9 years old, and not done yet.

I am pretty sure they did this same kind of thing to other VEterans. When we apply for disability compensation benefits, we are 1)seeking an award of Service Connection 2)we are seeking a disability percentage 3) we are seeking an effective date. All of these issues are appealable, and I think they are putting us on a hampster wheel on purpose by deciding only one of these.

[john999]

Bronco

Are you adding new evidence to the 0% rating decision? I got 0% for heart condition. I got more evidence and appealed it. I then got 60%. I understand about the chopping up your claim. You have to fight for higher rating and EED. If you provide new evidence the VA will probably award ED based on the date they got the new evidence. I guestion if this is legal or not. I have been told it is and that it isn't. When you got 0% for hearing you must have gotten an effective date for the 0% rating which grants SC and a rating %.

[Philip Rogers]

bronco - alright, argue w/me, if you like. I stated that if there was no SC, then there's no percentage or ED. In your case you got SC + 0% and they gave you an ED, as John said. You won the hardest part, getting SC. If you get no SC, then there's no percentage and no ED. Yes, they do jerk us around. I'm fairly sure many, if not most, of the backed up claims are due to the way the VA handles the claims. They guarantee themselves much work and job security. And your point is . . .??? To qualify for a hearing disability, w/compensation, the hearing loss must be very substantial. I thought mine was, but not enough for VA. Anyway, good luck!!! jmo

pr

Edited March 26, 2011 by Philip Rogers

[broncovet]

PR

I did not mean to start an arguement...I appreciate your input. Since I am hard of hearing (HOH), half the time I have no idea what is going on. If I miss just a few letters of the conversation, I often "fill in the blanks" and guess the rest.

A lot of times my guesses are wrong, so I wind up having no idea of what they are referring to. As a result of my poor ability to communicate, I sometimes say what I said before, in different words...because I am hoping they do that so I can figure out what is going on.

In other words, we HOH want others not to repeat, but to rephrase, since if we did not hear it right the first time, often we wont the second time either.

I find myself doing the same thing in posts..rephrasing what I had said. Its kind of like why HOH people often speak loud..too loud. We do this, hoping others will speak up, too. MOstly, this does not work. I have been told for years that I am "too loud".

I apologize if I appeared argumentative, tho, sometimes I do do that, it was not my intention.