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VA Form 9 Filed Today


HorizontalMike

Question

I thought I would share this Form 9 info because, even though I am 100% TDIU, the VA has screwed up the effective date, thus shorting me and my lawyer out of roughly $73k.  When all is said and done, THIS is why disabled veterans should hire a lawyer. 

Do note the various "tricks" that the VA uses to deny appeals.  This is what you can expect from the VA, unfortunately.  Keep your eyes wide open, if you are at this stage of the process.

This document was scanned and OCR'ed but several mistakes in the OCR are still present. Please ignore the grammatical errors and such:

 

Quote

 

  Mr. XXXXX disagrees with all decisions and reasons and bases contained in his Statement of the Case dated April 15,2016. Specifically,Mr. XXXXX asserts that DRO relied on an inadequate C&P exam that was directly contradicted by the evidence of record and the VA's own concessions.

Additionally, the DRO failed to consider 38 C.F.R. § 3.310{d)( 1) which provides for presumptive service connection of depression if it manifests

within 3 years of a moderate TBI. The Regional Office has already conceded that XXXX suffered a moderate TBI in service in October 1972. It also conceded that XXXX began being treated for symptoms of depression in 1973 which is within 3 years of his TBI. Had the DRO recognized that the C&P exam was inadequate and that XXXX met the requirements for presumptive service connection,then service connection for his depression would have been granted.

Additionally, the DRO failed to assign an earlier effective date for XXXX's 70 percent rating for his TBI because he mistakenly considered XXXX's 21-8940 for TDIU as a claim for increased rating rather than considering his claim as an appeal. As an initial matter, XXXX submitted the 8940 on July 8,2015 at the DRO's request during a hearing held on July 6, 2015. XXXX noted that his claim for TOIU was reasonably raised by the record and the DRO agreed but stated that he was unable to render a decision on TDIU without an 8940 on file per the new VA regulations. The DRO then improperly adjudicated XXXX's appeal of his TBI rating as if it was a new claim rather than an issue on appeal and used the date of the 8940 as the effective date of his increased rating. However.XXXX specifically disagreed with the original 40 percent rating he was given in a rating decision

dated October 19, 2013 and timely filed a notice of disagreement on March 6, 2014.Therefore, the original rating for his TBI was on appeal and his effective date was preserved.The 8940 requested by the DRO should not have been considered as a claim for increased rating of TBI. Additionally, the DRO failed to consider or discuss the favorable evidence of record that shows XXXX's TBI warranted a 70 percent rating since his original date of claim on September 17,2012 . The medical and lay evidence of record is consistent with the VA examiner's findings noting that XXXX's TBI results in a level 3 severity in the neurobehavioral effects which warrants a 70 percent rating.

This same reasoning is true for XXXX's 100 percent rating under TDIU.The DRO failed to consider and discuss evidence from 2006 to the present confirming that XXXX was unemployable due to his service connected disabilities.The DRO merely construed the 8940,that he specifically requested in the hearing, as a new claim. despite specifically discussing and conceding that the issue of TDIU was reasonably raised by the record because XXXX requested the highest possible rating and provided evidence that his service connected disabilities render him unemployable. In fact,XXXX specifically submitted several documents from employers and medical providers supporting his claims that he is unemployable.yet these were ignored by the DRO.

Finally,XXXX asserts that his sleep apnea is service connected.The DRO continued to misconstrue XXXX's claim as secondary to sleep apnea despite his specific clarification in written arguments from is representative stating "XXXX cl arifies that he is not claimi ng that hi s sleep apnea i s secondarv to his TBI but rather that the events that caused his TB I also caused his sleep apnea, which first mani fested dur ing service." Due to this error, the DRO failed to consider in-service incurrent of XXXX's sleep apnea and failed to consider all the favorable evidence of record.

 

[UNQUOTE]

 

 

 

 

 

  

Edited by HorizontalMike
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I hope your lawyer agrees with it....

https://www.lawserver.com/law/country/us/cfr/38_cfr_3-310

GREAT citation Mike, but I think you mean 38 CFR 3.310 (d) iv.....and not (d) 1

 

I have no time to read it further until tomorrow but others will chime in.....

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I am not sure on this  but when a veteran finds evidence he was beat out of retro  no matter what amount   the veteran has the documents to prove his case but his NOD HAS RUN WAY OUT OF TIME   (Years)

 ok can the veteran submit to the VA and request them to view his records on a particular claim dates  back in  so& so...and look at the records they have? and see if the veteran has a legitimate  case for his lost rerto? or part of the rero he was beat out of?

or should the veteran request a reopen and submit his evidence  and let the VA fIigure it out...it was there (VA) problem in the first place  it just took this veteran years to notice it looking at his old claim PAPERS AND AWARD LETTER.

..............Buck

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I got this email from my lawyer with the above Form 9 write-up.  Notice how the lawyer is taking a double pronged approach, filing a NOD (on the TDIU rating) PLUS the Form 9 appeal to the BVA Board.  I probably would not have thought to do that, so I am very happy/pleased to have a good lawyer on my side.  Sure takes the stress out of much of this... 8-)

 

Quote

EMAIL from my lawyer:

"...As promised, here is the Form 9 submitted to the Regional Office. I found out that a different DRO made the decisions in your case. I’m not sure why they brought in a different DRO at the last minute but it was obvious that the new DRO had no idea what was discussed at the hearing. I took advantage of that. Just let me know if you have any questions but keep in mind that the language used in a Form 9 is intentionally vague in places.

Regarding the effective date for your TBI (and TDIU), that will be a twofold approach. I included it as an appeal in the Form 9 but will also be filing a NOD with the rating decision granting the TDIU. Sending the issue of effective date down both channels should open the door for a faster decision since it could be made by either the Board or a DRO.

We will keep pushing the appeal along so we can get it to the Board as quickly as possible and get a favorable decision. Have a great day!..."

[UNQUOTE]

Edited by HorizontalMike
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13 hours ago, Berta said:

I hope your lawyer agrees with it....

https://www.lawserver.com/law/country/us/cfr/38_cfr_3-310

GREAT citation Mike, but I think you mean 38 CFR 3.310 (d) iv.....and not (d) 1

 

I have no time to read it further until tomorrow but others will chime in.....

You are right Berta!  At least sorta... Using your link, it should be 38 CFR 3.310 (d) (1) (iv)

I didn't catch that until you pointed it out.  I think that just having the (1) may be enough since all of the (i),(ii),(iii),(iv), and (v) fall under 38 CFR 3.310 (d)(1).  Right?

"...(d) Traumatic brain injury. (1) In a veteran who has a service-connected traumatic brain injury, the following shall be held to be the proximate result of the service-connected traumatic brain injury (TBI), in the absence of clear evidence to the contrary: ..."

Edited by HorizontalMike
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Mike...

We can use citations like one I used many times ( my favorite reg)(38 CFR 4.6)

by stating 38 CFR 4.1 et al..... meaning to include the 4.1 and then consider the 2,3,4,5,6  parts...

but then I realized I was expecting too much from the ROs, they might not even  know what "et al" means ( or they  know but would hold me to only the 4.1 part)

so I started to use the exact citation with a brief quote of the regulation in the submissions.

Have you attached here the actual decision (Reasons and Bases) that this appeal is based on?

I do agree with your lawyer that an I-9 can be "intentionally vague" to a degree. Sometimes.....

His 2 fold approach is superb, but like Chuck I wonder if this is also a CUE issue .

 

 

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