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Tdiu Appeal Postive With Ellusive Retropayment

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tk3000

Question

I got my 100% IU appeal for what have had yet another (second) C&P exam in May of 2013. The good new in this case came along with not so good news: apparently the Detroit Regional office interpreted that the claim for IU that I filed about 3 years ago, and for what I filed a substantive appeal about 2 years ago, simply did not qualify for a retropayment going back to date of the original filing of the claim (3 years ago). My understanding is that the retroactive payment ordinarily goes to the date of original filing of a claim, and not to the date that the second C&P exam (for which the examiner posed a favorable opinion towards my claim) took place (May, 2013). The following is the VA's rational (via IRIS exchange):

Thank you for your advising that you received the notification letter.

An appeal for Individual Unemployability (IU) will go back to the date the evidence shows that you are unemployable.

Your letter indicates that you had an examination on May 16, 2013. The examiners summary is provided on page 3 of the reasons for decision section of your letter.

Your letter states the following:

The criteria for entitlement to individual unemployability benefits have been met. VA grants this benefit, effective May 16, 2013, the date on which the veteran met both the schedular and unemployability criteria under 38 CFR § 4.16, as per 38 CFR § 3.400.

The examiners's opinion bumped up one of my service connected conditions to 70%, and clearly stated that my conditions would affect employability. But the claim was originally filed about 3 years ago, so I did expect to receive payments retroactive to 3 years. .

Any insights would be greatly appreciated.

-tk3000

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This is a trap the VA uses. You go into a C and P exam perfectly normal, and the C and P examiner makes you disabled and unemployable. Gee, I think I would sue that examiner!!!

Still, the Va points to the exam date and that is the date they often use, especially if the Veterans does not object and appeal.

The VA examiner should say...

"After review of the Veterans medical records, the date most likely the Veteran became unemployable was his last day of work, June 11, 2008"".

But they dont. they date it today, and say the Veteran is unemployable, so that is what the VA awards.

Its hard to overcome, because you have to overcome the medical evidence, that is, a medical error. As I said, you did not get disabled and unemployable by visiting a C and P doc..you probably already had that condition earlier, he just diagnosed it and, absent an onset date, the Va uses the date of the C and P exam.

You may need an IMO/IME to overcome this, if, indeed, that is what happened to you.

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