tdiu VA Form 9 Filed Today

[HorizontalMike]

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 May 10, 2016 by HorizontalMike

[Berta]

"The DRO failed to consider and discuss evidence from 2006 to the present confirming that XXXX was unemployable due to his service connected disabilities."

That right there might well be a CUE.

"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.'

If the rater and the DRO ignored this stuff , that is Definitely a CUE.

Isn't it odd how they never ignore the trivial stuff, just the good stuff.....

I am sure your lawyer has consider potential CUEs and they would be violations of my favorite regulation 38 CFR 4.1 et al but specifically 4.6. I have won multiple CUEs with this reg.

It is delicious!

 

https://www.law.cornell.edu/cfr/text/38/4.6

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

Edited May 11, 2016 by Berta

[HorizontalMike]

UPDATE:

Even though the FORM 9 was filed with the VARO on May 10, 2016 it has taken UNTIL Oct. 6, 2016 (five months) to even acknowledge that the FORM 9 has been received.  I even had to send the VARO and additional copy of it when I filed my annual "unemployment" form.  Sent everything as Cert.&Signature as well.

In the mean time, my sleep apnea appeal was inadvertently denied (without a DRO hearing) and that needed correcting.  It was on that FORM 9, BTW.

Since this was just posted on eBenefits yesterday, I have NOT received a BVA docket number yet.  I also understand that this could take an additional couple of years or more to come to fruition (+4yr and counting).

 

 

 

03/20/2014	Appeal Pending - Notice of Disagreement	VA has received your Notice of Disagreement. You will be receiving a communication from VA in the near future describing the next steps of your appeal.	Date not available
05/18/2016	Appeal Pending - Notice of Disagreement	VA has received your Notice of Disagreement. You will be receiving a communication from VA in the near future describing the next steps of your appeal.	Date not available
10/06/2016	Appeal Pending - Notice of Disagreement	VA has received your Notice of Disagreement. You will be receiving a communication from VA in the near future describing the next steps of your appeal.	Date not available