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:

[Philip Rogers]

bronco - what????? Sorry, I could resist! No offense taken. You've got nothing to appologize for. I hope you've at least gotten hearing aids from the VA. They said mine probably wouldn't help me but I think they do. I'm hearing sounds I haven't heard in yrs. Even the voices in my head are louder! lol

pr

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.

[boomer2]

Broncovet, Can you contact me offline at rickjr@bellsouth.net about your HOH?

Thanks

[broncovet]

Boomer...

As you requested, I sent you an email.

For future reference, you can also contact me via PM on hadit

Bronco

[Vync]

The VA chainsaw chopped my claims up too, but I am still appealing.

Bronchovet,

I find Roberson v. Principi very interesting, especially the bold part. I'm not sure if the case was for the initial or increase to 70% rating or for the increase to 100%. As I understand, the VA regulations require Veterans to initiate claims, but this ruling seems to change that. I am not an expert on this, but I am curious if this would apply to C&P findings where additional conditions are identified, which applies 'must include all potential claims raised by the evidence... regardless of how the claim is identified.

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

[Chuck75]

Even worse, they (VA) can say that the unaddressed parts of a claim are "Deemed Denied". So, this forces a veteran to file an NOD.

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.