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Tdiu As Moot; Bva Partial Award, Partial Remand.


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#1 broncovet

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Posted 01 September 2012 - 09:27 AM

To: Vet geniuses, such as Hoppy, Berta, PR, John and Carlie (there are more, sorry if I ommitted your name)

Received a BVA decision. Decision was remanded, denied, and partially awarded..all 3.

Highlights...
1. Appeal of RO denial of TDIU because it was moot was remanded.

"In a 2009 rating decision the RO determined that the claim for TDIU was moot because in the same rating decision, a 100 percent rating was granted, which fully resolved the issue in the Veterans favor. However the Board notes the CAVC has recently held that VA has a "well established" duty to maximize a claimants' benefits. (Buie vs Shinseki, Ab v Brown and Bradley vs Peake)

A TDIU is provided where the combined schedular evaluation for service connection is less than total, or 100%. 38 CFR 4.16(a). A TDIU is considered a lesser benefit tahan the 100% rating, and the grant of a 100% rating renders mooth the issue of entitlement to a TDIU when the 100 % rating is in effect. VAOPGCPREC 6-99; 64 FED REG. 52,375 (1999).

In a precedent opinion, VA's General Counsel concluded that a claim for tdiu for a particular SC disability may not be considered when, as here, a scheduaalr 100% rating is in effect for a SC disability. See also Green v West, 1998, Vettese v Brown (1994). In Nov 2009, however, VA's GC withdrew VAOPGCPREC 6-99 in light of the decision in Bradley vs Peake.

The Board recognizes the secretary is required to maximize benefits. See AB v BROWN 6 Vet App 35,38 (1993) (presuming that a claimant is seeking the maximum benefitts allowed by law and regulation); 38 CFR 3.103 a (2010).

38 CFR 4.16 specifically provides that a total disability rating for compensation may be assigned where the schedular rating is less than total, when, in the judgement of the agencey, the Veteran is unable to follow a substantially gainful occupation as the result of SC disabilities"



end of decision quote, for brevity and to protect Vets identity, some portions were removed.
The decision goes on, and, since I had applied for TDIU in 2002, but 100% schedular was not awarded until effective date 2007, the Board specifically said the TDIU issue was NOT moot under the circumstances. (It obviously affects the effective date retro).
The board pointed out that a SOC was never issued regarding the issue of TDIU. Specifically, the decision stated:


"Accordingly, the Board is required to remand the claim for entitlement to TDIU to the RO forr the issuance of a SOC See Manlincon v West 12 Vet App 238 (1999). "

I am pretty upset about the "remand to issue a SOC". Why is the board remanding to the RO so the RO is assuming it to be denied, again, because an SOC assumes a denial. I am angry the board automatically assumes another denial by requiring an issue of the SOC. Why does the board not give the RO an opportuntiy to render a decision where the Veteran could be awarded TDIU rather than go to more appeals?


Opinions are appreciated.

#2 jbasser

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Posted 01 September 2012 - 09:46 AM

Can you waive RO jurisdiction. That usually stops BVA from remanding to the RO, Bad part is the AMC is in line for the remand when you do this.

J

#3 broncovet

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Posted 01 September 2012 - 10:56 AM

Basser...

Thats right! Altho I did send in a waiver, that and lots of other stuff was lost. I will consider sending in a waiver of ro consideration when I do the MFR. I have not yet decided to do an appeal, or MFR.

#4 Philip Rogers

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Posted 02 September 2012 - 05:06 AM

The RO could award TDIU, depending on whatever disabilities may have been present in 2002. Not likely, but possible.

pr

#5 broncovet

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Posted 02 September 2012 - 06:27 AM

Thanks for your response PR.

The BVA decision mentions it this way:

"If in the course of adjudicating this issue the RO determines that the Veteran does not meet the rating criteria for TDIU under 38 CFR 416.a (2011), but his SC disabilities prevent him from following a substantially gainfull occupation, the provisions of 38 CFR 4.16 (b) must be followed. Thes provisions state that a claim for TDIU may be referred to the C and P Service when a Veteran does not meet the percentage standards of 4.16 A but is otherwise unemployable due to SC disabilities 38 cfr 4.16 (B) (2011).

This is rather ambigious. It says the regs "Must" be followed" but only that the TDIU clam "may" be referred for consideration of TDIU. Huh?


As PR said "fat chance" the VA will award retro for TDIU, because they dont "have to" they only have to do it may be. Clearly, the VA wants me to "jump" on the hamster wheel, and wait a decade or more through multiple appeals, to decide this issue.

I would have rather they denied it than say, "welcome to the hamster wheel".

Edited by broncovet, 02 September 2012 - 06:27 AM.


#6 Philip Rogers

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Posted 02 September 2012 - 08:41 AM

bronco - it still seems worth pursuing, as it could be a substantial amount. Generally, when the vet didn't meet the criteria for 4.16a, the RO would not consider extra-schedular and refer it to the Central office unless the claimant mentioned the phrase "extra-schedular. Peake "may" have changed that. I see that the VA is trying to improve their handling of claims and I do think they could award retro. Under the old system, I agree "fat chance" but in light of what I'm seeing these days . . . . ya never know. jmo

pr

#7 Berta

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Posted 02 September 2012 - 09:23 AM

When the RO prepares the SOC ,they might put their foot in their mouth!

What I mean is they could make a statement that could open the door for appeal on the EED when they figure out how to state how they determined the disabilties from 2002 to 2007.

Did the award involve any 'staged' ratings?

Broncovet -I think the only ' bad claims 'are those that are never formally claimed.

NOTHING is impossible.

"A TDIU is considered a lesser benefit tahan the 100% rating, and the grant of a 100% rating renders mooth the issue of entitlement to a TDIU when the 100 % rating is in effect. VAOPGCPREC 6-99; 64 FED REG. 52,375 (1999). "

That's right but one doesn't jump to 100% overnight.(The reason I asked if they awarded any staged ratings.)

#8 broncovet

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Posted 02 September 2012 - 01:39 PM

Berta, I thought the same thing, that they would propose Fenderson "staged" ratings. They did not.

Not a whisper. They also did not address a single one of my "eed theories" I proposed. Not one.
These were my EED theories:

1. Pending claim. I stated that a 2004 RO decision, where I filed a NOD (and the RO never responded with a SOC) "kept the claim pending" and I should be awarded an EED. I expected them to do something..but it was not addressed in the decision. They avoided the topic like the plague.

2. Informal claim. I submitted 2002 medical exams where I was dx with depression by VA docs. I also "hit" them with their own 2002 VCAA letter which states:
(The VA had acknowledged the "hearing loss claim" but did not acknowledge depression or tdiu in the 2002 VCAA letter) In the 2002 VCAA letter to the Veteran, the VA promised “We get any VA medical center records (of a current “physical or mental disability) or other records you tell us about and “will review this evidence to see if you have a current disability or symptoms of a disability”. I contend a VA medical exam just 3 weeks later was an "intent to apply for benefits (depression)", as the Vet was diagnosed with depression.

3. Claim Spoilation. The VA shredded about 500 pages of my evidence. I know this because I got a c file copy in 2006 and another about 3 years later and at least 500 pages were missing, just from those 3 years. Further, the VA actually sent me my orignal 21-526 back..not a copy, but the original. My VSO wrote a letter testifying he filled out the original, and the "copy" the va sent me was the original in ink.

4. Failure of the VA to file Soc keeps claim pending. I had submitted a 2004 NOD, that the Va never did respond to. I contend that their failure to file the SOC "keeps the claim pending" and entitles me to an eed.

#9 broncovet

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Posted 02 September 2012 - 01:41 PM

Maybe I should just do as you say, and wait for the SOC and let the RO step on their necktie.

I am considering an MFR. I have about 110 days, or so, to decide.

#10 carlie

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Posted 15 September 2012 - 12:16 AM

19.9 Remand or referral for further action.


© Remand for a Statement of the Case.
In cases before the Board in which a claimant has timely filed a Notice of Disagreement with a determination of the agency of original jurisdiction on a claim, but the record reflects that the agency of original jurisdiction has not subsequently granted the claim in full and has not furnished the claimant with a Statement of the Case, the Board shall remand the claim to the agency of original jurisdiction with instructions to prepare and issue a Statement of the Case in accordance with the provisions of subpart B of this part. A remand for a Statement of the Case is not required if the claimant, consistent with the withdrawal requirements of §20.204 of this chapter, withdraws the Notice of Disagreement.

(d) Exceptions.
A remand or referral to the agency of original jurisdiction is not necessary for any of the following purposes:
(1) Clarifying a procedural matter before the Board, including the appellant's choice of representative before the Board, the issues on appeal, or requests for a hearing before the Board;
(2) Considering law not already considered by the agency of original jurisdiction, including, but not limited to, statutes, regulations, and court decisions;
(3) Reviewing additional evidence received by the Board, if, pursuant to §20.1304© of this chapter, the appellant or the appellant's representative waives the right to initial consideration by the agency of original jurisdiction, or if the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal;
(4) Requesting an opinion under §20.901 of this chapter;
(5) Supplementing the record with a recognized medical treatise; or
(6) Considering a matter over which the Board has original jurisdiction.
(Authority: 38 U.S.C. 7102, 7103©, 7104(a), 7105).
[67 FR 3104, Jan. 23, 2002, as amended at 69 FR 53808, Sept. 3, 2004; 76 FR 17547, Mar. 30, 2011]


http://ecfr.gpoacces....1.35.9&idno=38

#11 carlie

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Posted 15 September 2012 - 12:46 AM

Basser...

Thats right! Altho I did send in a waiver, that and lots of other stuff was lost. I will consider sending in a waiver of ro consideration when I do the MFR. I have not yet decided to do an appeal, or MFR.


The RO waiver of consideration DOES NOT cover due process legalities.
From my understanding, one can not waive Due Process.
Issuance of an SOC/SSOC's following the submission of a timely filed NOD, is part of a claimants Due Process
and VBA's legal responsibility to fulfill.
All the waiver covers is additional evidence and records that the claimant submits
directly to the BVA.

In most cases (there are a few exceptions) a SOC must be issued.
http://www.bva.va.go...ets/010202A.pdf


§ 19.29 Statement of the Case.
The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments
before the Board of Veterans' Appeals.
It must contain:
(a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement;
(b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and
© The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.
(Authority: 38 U.S.C. 7105(d)(1))

bronco, you most likely already have this - but if not -
it's a pretty good read.
http://www.bva.va.go...nathanHager.pdf

Editing to add:
I agree with Berta - the SOC will probably be helpful.