tdiu Sterling Rice V. Eric Shinseki

[deltaj]

Could someone put up a link to the federal circuit case in 06-1445 Sterling Rice v. Eric Shinseki, decided May 6, 2009 by the Federal Circuit? This is an interesting case which explains the different types of claims. This case seems to make the point that there is no such thing as a freestanding TDIU claim when it comes to the veteran seeking an earlier effective date.

[Berta]

http://search.uscourts.cavc.gov/isysquery/...d31403c0/1/doc/

This is a Very interesting case.

The CAVC defines the word "claim" as Delta says- and there are good points in the decisions (Vacated BVA decision and remanded by CAVC.

Rice V Shinseki in part:

“The Court holds

that a request for TDIU is best understood as part of an initial claim for

VA disability compensation

based on the individual effect of the veteran's underlying disability or

disabilities or as a particular

type of claim for increased compensation. This is not to say that a

claimant cannot submit a request

for TDIU at any time, whether on a VA Form 21-8940 or in any other manner.

Submission of a

request for TDIU does not change the essential character of an assertion

of entitlement to TDIU as

a part of either an initial claim or a claim for increase. In this case,

we hold that entitlement to TDIU

is properly considered as part of the determination of the appropriate

initial disability rating assigned

for PTSD. “

That statement is what I have said for years with even SOs and vet reps disagreeing with me-

it does not matter what % SC the vet is-they can apply for TDIU at any time they feel their SC renders them unemployable.

Certainly if a Voc Rehab counselor turns them down for voc rehab as being unfeasible due to their SC-this is one BIG reason for them to apply for TDIU ASAP.

Many vet reps dont realize that either.

This part of the decision bothers me:

<a name="term0_28"> “On remand, it is possible that, even if the Board determines that the

evidence does not establish

entitlement to an initial 100% schedular disabilityrating for PTSD, Mr.

Rice might be able to submit

evidence of unemployability prior to June 2000 that would support a

finding of entitlement to TDIU

earlier than the November 2000 effective date assigned by the Board after

its limited discussion of

the evidence in this matter. “

Wasnt Rice given every opportunity to submit this evidence years prior to getting on the CAVC docket?

Or did he if fact not receive a detailed VCAA letter or did he have a rep who failed to advise him properly on the TDIU issue?

Unfortunately ,although a CAVC remand can open the door for more evidence,Mr. Rice is still in the hamster wheel of the VA-'round and round it goes-where it stops nobody knows'.

I read cases like this and wish with all my heart that the veteran had come to hadit.

This case was discussed here before I think-and if I get the time I will track it back to the BVA decision that prompted the CAVC filings.

While we cannot determine if Rice was due a better retro date for TDIU- it gets me that he spent years in the system already.

A vacated BVA decision and Remand from the CAVC however is MUCH better than a denial.

[deltaj]

http://search.uscourts.cavc.gov/isysquery/...d31403c0/1/doc/

This is a Very interesting case.

The CAVC defines the word "claim" as Delta says- and there are good points in the decisions (Vacated BVA decision and remanded by CAVC.

Rice V Shinseki in part:

“The Court holds

that a request for TDIU is best understood as part of an initial claim for

VA disability compensation

based on the individual effect of the veteran's underlying disability or

disabilities or as a particular

type of claim for increased compensation. This is not to say that a

claimant cannot submit a request

for TDIU at any time, whether on a VA Form 21-8940 or in any other manner.

Submission of a

request for TDIU does not change the essential character of an assertion

of entitlement to TDIU as

a part of either an initial claim or a claim for increase. In this case,

we hold that entitlement to TDIU

is properly considered as part of the determination of the appropriate

initial disability rating assigned

for PTSD. “

That statement is what I have said for years with even SOs and vet reps disagreeing with me-

it does not matter what % SC the vet is-they can apply for TDIU at any time they feel their SC renders them unemployable.

Certainly if a Voc Rehab counselor turns them down for voc rehab as being unfeasible due to their SC-this is one BIG reason for them to apply for TDIU ASAP.

Many vet reps dont realize that either.

This part of the decision bothers me:

<a name="term0_28"> “On remand, it is possible that, even if the Board determines that the

evidence does not establish

entitlement to an initial 100% schedular disabilityrating for PTSD, Mr.

Rice might be able to submit

evidence of unemployability prior to June 2000 that would support a

finding of entitlement to TDIU

earlier than the November 2000 effective date assigned by the Board after

its limited discussion of

the evidence in this matter. “

Wasnt Rice given every opportunity to submit this evidence years prior to getting on the CAVC docket?

Or did he if fact not receive a detailed VCAA letter or did he have a rep who failed to advise him properly on the TDIU issue?

Unfortunately ,although a CAVC remand can open the door for more evidence,Mr. Rice is still in the hamster wheel of the VA-'round and round it goes-where it stops nobody knows'.

I read cases like this and wish with all my heart that the veteran had come to hadit.

This case was discussed here before I think-and if I get the time I will track it back to the BVA decision that prompted the CAVC filings.

While we cannot determine if Rice was due a better retro date for TDIU- it gets me that he spent years in the system already.

A vacated BVA decision and Remand from the CAVC however is MUCH better than a denial.

The above link does not pull up this case, it pulls up the website of the Court. Note that there is a search box on that page and if you put in the case number it displays 2 links to documents on this case. The second link shown for that case number is the decision mentioned above.

[navydoc2]

can this case also be applied to P&T as it relates to voc rehab saying you're infeasible. hmmm.

[allan]

Rice v. Shinseki, 22 Vet.App. 477 (2009)

http://www.vetapp.gov/documents/Rice-1445.pdf

[navydoc2]

Rice v. Shinseki, 22 Vet.App. 477 (2009)

http://www.vetapp.gov/documents/Rice-1445.pdf

I was not able to use this link can you repost thanks.

[Berta]

The CAVC web site addy moved=mayne this is why we cant post the links.

I attached Rice V Shinseki.

Rice_V_Shinseki.htm