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42 minutes ago, pwrslm said:

But that was an error, because the reduction never occured. This is CUE I believe. This is also why you need a lawyer on this, because the VBA will more likely run this into the ground than admit its error after 10 years back pay due. If the initial appeal to the BVA was rejected, it needs to go to the CVA. That requires legal council. To put together a CUE that will get there, you need a proper legal pleading.

what my plan is to try to reopen it, request a dro, then contact a lawyer, and have CUE as my last alternative.  its never been as far as the RO

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I did appeal, but since they said I was not eligible to make a claim for TDIU there was nothing to appeal.   I appealed the proposed reduction for PTSD the VA proposed to reduce from 70%-50%, and made me ineligible for the TDIU claim, then I sent an appeal letter, the VA said that they made an error and that my PTSD would stay the same.  My claim for TDIU was never adjicuated, they never sent another 21-8940, even though they had evidence of unempolyability from the PTSD C&P exam

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4 hours ago, broncovet said:

I pretty much agree what has been posted.  38 CFR 3.103 gives Vets certain rights, that is, the right to a written decision.  You also have a right to appeal, and, VA has a responsibility to give you notice of your appeal rights.  I think them not giving notice, tolls the time period to appeal.

However, you still have to deal with this bit about "you could perform sedentary work".  Did your doctor say you could do this??  If your doctor said you could perform sedentary work, then you are "not" unable to maintain substantial gainful employment due to sc conditions BECAUSE your doc suggests you can work if you change your career to do some type of sedentary work.  

However, social security has special laws  for disability applicants over 55.  Its not practical for a over 55 construction worker to go back to school and learn to be a computer nerd.  If you are under 55, then you have to do that, but over 55 you are given a presumptive that this is not practical.  

Did you get social security disability 1, and what were social securities reason for this?  That is, did social security give you disability for conditions that are service connected?  If so, you should get TDIU.  

Now, back to effective dates.  

Read this:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

Read number 3, beginning on page 24.  

 

The Dr did not specify wether it was sedentary or not at that time.  My current doctor and vocational evaluation say both.  The problem is that it doesn't matter, once the VA had knowledge of unemployability due to SC AND that SC is under TDIU criteria (ie 70%PTSD) then they have to send out the 21-8940 form and evaluate you.   This evidence of unemployability was from a C&P examiner for PTSD 2006.  

 

I dont get any SS disability. 

im not over 55

I read that entire pdf, thank you it cites Cases as well, I have a bunch of cases similar to mine that have gone to VC

 

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6 hours ago, paulcolrain said:

SO DOES YOUR ARGUMENT REST ON THE VA NEVER SENT THE FORM? AND YOUR REAL QUESTION IS HOW TO PROVE IT WHEN THE VA SAID THEY SENT A FORM BUT DIDNT???

ID LIKE TO KNOW HOW TO PROVE THAT AS WELL. SO I WILL KEEP LOOKING BACK AT THIS TO SEE OTHERS POINTS. 

ALL VA correspondence is logged and recorded you can access in your c-file, sometimes if the VA mails to the wrong address the date for appeal is still open.  

 

my argument rests on 1) the VA never properly evaluated me for TDIU, they also never sent me a form 21-8940.   2) they never denied me TDIU, they just said that I was not eligible because I did not have a SC that was 60%, all because they proposed to reduce.  I was 70% PTSD, they never reduced me, My PTSD effective date is 3/2005.  The VA had to evaluate my claim for TDIU because I was eligible, and they had knowledge of my unemployability 

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On 5/11/2018 at 4:01 PM, paulcolrain said:

IM NOT sure but i believe a fast letter and some law from a case Changed the inferred claim procedure for tdiu and made that  [AB v. Brown, 6 Vet. App. 35, 38 (1983)] If either claim includes facts that indicate that the veteran is unemployable, the VA is obligated to consider and adjudicate a TDIU claim. [Collier v. Derwinski, 2 Vet App. 27=47, 251 (1992)] ending being moot... not sure but i thought i read that somewhere

again im not sure if this matters or not but i found what i was looking for and the following is what my point was about.....

Director (00/21)In Reply Refer To: 211BAll VA Regional Offices Fast Letter 13-13ATTN: All Veterans Service Center PersonnelSUBJ: Claims for Total Disability Based on Individual Unemployability (TDIU)

Purpose

The purpose of this Fast Letter is to revise and clarify VA procedures relating to claims for total disability ratings based on individual unemployability (TDIU).

Overview of Changes

•

VA will no longer presume a claim for TDIU is a claim for increase in all service-connected disabilities. As part of a substantially complete application for TDIU, VAwill require that the claimant with multiple service-connected disabilities specify atleast one disability that he or she believes causes the unemployability.

•

VA will consider the Veteran’s specification of the disabilities that he or she believescause unemployability to be claims for increased evaluation for those conditions.

•

VA will require the claimant complete and submit VA Form 21-8940,

Veteran's Application for Increased Compensation Based on Unemployability

, to substantiate theclaim of TDIU.

•

VA will administratively deny TDIU claims if VA requests, but the Veteran does notsubmit, required forms or evidence.

•

VA has the flexibility to request either condition-specific Disability BenefitsQuestionnaires (DBQs) or a general medical DBQ when VA determines thatexaminations are needed to decide the claim.

•

VA will interpret the schedular requirements in 38 C.F.R. 4.16(a) to mean that acombined 70 percent rating is only required if no single disability is rated at 60 percentdisabling

 

also , VA will no longer presume a claim for TDIU is a claim for increase in all service-connected disabilities. this was the ruling to force veterans to select a specific service connected disability for a tdiu claim.  before this you were able to claim tdiu for several service connection.  once the VA has evidence that a veteran is unemployable due to a service connected disability, the VA MUST send a form 8940, even if they deny it 99% of the Time

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On 5/12/2018 at 10:43 AM, broncovet said:

Yes, Paul is correct.  This is when VA decided to require Veterans complete the TDIU form.  Prior to that, the Veteran needed only submit an informal claim for TDIU, such as on a 21-4138.  

You are correct that, when VA neglects to send the Veteran the 8940, this can "toll" the 1 year appeal period.  

Reading this again, you may consider hiring a Veterans attorney, you are right this is complicated and needs a professional to sort it out.  

I agree sir

On 5/13/2018 at 7:14 AM, Gastone said:

M, you Filed a New IU Claim 03/2018, did you use the FDC? What makes you believe you're about to receive the Decision?

You haven't posted the redacted copies of the original 08 Denial so how about fast forwarding to now, could you post a redacted copy of your recent PTSD IU C & P?

 

I did use FDC, so I was going by that time line but its looking like a 7 month total for decision

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3 hours ago, Richard1954 said:

I can't help but wonder how any one gets 0% for a TBI. I went in for a C/P exam on my TBI and answered a few questions  and was awarded 40%.  It was the easiest c/p I had ever attended, in fact thinking back if I had worded a few of my answers differently  I am confident I would have been rated even higher. Anyway....

 

I don't think there is any CUE, the va proposed to reduce your disability for PTSD,  and denied your claim for TDIU on 8 Nov 2007.   Then it appears a new claim was opened in May 2008, .  and  they decided not to reduce the rating of PTSD 70%.   Previously they said that you could perform sedentary work,  they apparently decided that you did not meet the requirements of TDIU, and therefore they are not obligated to send you any forms.   Did they reduce any ratings at all? 

 

Now at one point you said that the PTSD examiner said you could not work, but they also said you could perform sedentary work.. Very confusing. 

Seems like some information is missing?

How may rating decisions did this entail ?

  

The TBI is something entirely different. Sorry I wish my wording was as good as yours, I have even had poly trauma treatment from the VA for tbi and documentation of explosions/injuries from.   I am gonna leave that be for now.

this was all one original claim in 11/2007 I applied for an increase in PTSD(70%) and TDIU

the VA proposed to reduce my 70% PTSD rating to 50%, they said this would make me NOT eligible for entitlement to TDIU(you need to have 70%).

The VA then said that they will not reduce my PTSD.  They never adjicuated my claim for TDIU, to the End product.  they never sent me a 21-8194 even though I have been eligible for TDIU since 2007

 

this is all 1 rating decision

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2 hours ago, pwrslm said:

It might fly as a clear and indisputable error (CUE) because they denied the TDIU based on a reduction that never occured. I do not think they could give a valid response to a request for TDIU until your rating was determined. The basis for denial was clearly erroneous.

 

(see a lawyer, backpay on this should be enough to get them to carry this for you no charge)

Thank you I agree I dont want to use the CUE until last option, I would like to reopen, or like the gentleman mention earlier, file for a NOD once approved for TDIU on the effective date, and let them have it!

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41 minutes ago, broncovet said:

I agree with Berta.  Another BIG issue is did the VA follow protocol on your reduction.  First they have to give you 60 days notice of a proposed reduction (PR)  AND give you an opportuntiy for a hearing on the PR.  If the VA reduced you without following protocol, the reduction should be reversed by the courts.  

The Va gave 60 days, only proposed the reduction, I provided a Notice of Disagreement, they used this letter, along with another examination of my medical records to determine to leave me at the 70%, no REDUCTION, they never gave me a hearing, 

Due to the amount of retro potential (TDIU since 2005) which is over 200,000 minus what you have received, you probably should consider hiring a lawyer.  At least send him your cfile to determine if you have a CUE.  

I know I have the CUE but I dont want to use until last option, I would like to file to re open the claim once I am receiving TDIU.

However, you may well be on the right track, here!  Filing for TDIU AGAIN is likely a great idea. 

1.  If awarded TDIU you can file a nod and dispute the effective date arguing for a 4.16 a and a 4.16 b TDIU.  THIS!!

2.  If TDIU is denied, you can file a nod and, your claim is still pending so you have a shot at an earlier date if or when TDIU is finally awarded.  Remember, you can submit new and material evidence 38 cfr 3.156 B, on a pending claim and that goes back to the beginning of the appeal period.  

    Yes, yours is complicated, it sounds like you have had multiple decisions, a reduction that may not have been proper and, possibly CUE.  

THANK YOU!! 

 

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Hi Berta

Do you get SSDI and if so is that solely for the PTSD? No I still dont have any SSDI

If so, when did the VA know you received the SSDI? None

Did Voc Rehab ever turn you down, based solely on the PTSD? No, Voc Rehab paid for me to goto school, but could never help me find a job.  

You have " a professional vocational evaluation" so that sounds like great evidence.

There might be CUE in the older decision.

This stuns me:

 
"I am about to receive a decision for a TDIU claim that I filed 3/2018"

How do you know that decision is coming so soon?.

I filed a Fully developed claim in March, and its now starting to move to decision phase, so Im only guessing that it will be with a couple months. the estimated completion date is July 2, 2018.  

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This is a tricky brain buster.  I need all the help I can get, any recommendations are welcome!  

 

So this is a complex case.  I am about to receive a decision for a TDIU claim that I filed 3/2018.   I have alot of evidence, a good C&P exam for once, and a professional vocational evaluation, so I am thinking things are looking ok, but I know with the VA anything can happen, and ive seen it.  I am currently 80% combined (70% PTSD, 10%back, 10% knee, 10%tinnitus, 0%tbi) effective date 3/2005.  In 2008 I filled out a va form 21-8940, and filed for TDIU, (I was still 80%) combined.  This is what happened:

On November 8, 2007 my disability rating was a combined 80%(70%PTSD), I submitted a claim for increased evaluation based on individual unemployabilty.  “At the general rating exam the examiner said, you are prevented from working a position which would require long peroids of sitting or any lifting of any significant weight estimated at more than 10 lbs; however you could be employed in a sedentary position.  At the raiting for PTSD, the examiner said that you are unemployable due to your PTSD symptoms.  “(C-FILE).  My claim for increased evaluation based on induvial unemployabilty was denied. The VA proposed to reduce my PTSD disability from 70%-50% at the same time my claim for increased evaluation based on individual unemployabilty was made, this “proposal” was then used to make me “ineligible for making a TDIU claim”.  

“Based on your claim, we requested examination of your service connected disabilities for possible increased evaluation.  Based on the results of the examinations, we have proposed to reduce three of your evaluations for a combined evaluation of 60 percent.  Based on the results of the proposed reduction, you will not meet the criteria for entitlement to increased compensation based on unemployabilty in the absence of single disability evaluated 60 percent disabling, or a combined 70 percent disabling, with at least one disability evaluated 40 percent disabling. (C-FILE)”

On May 9, 2008, after closer review the VA proposed to continue my PTSD rating of 70%, with the original effective date June 5, 2005. Since the VA was required to, but did not forward to the veteran a TDIU application form 21-8940, the one year filing period for such an application did not begin to run. Thus, as a matter of law, the inferred claim submitted prior to the date of the formal TDIU application must be accepted as the date of claim for effective purposes. [38 C.F.R §3.155 (a)]

The VA will require that a veteran complete and submit a VA Form 21-8940 before it will formally pay a claim for TDIU benefits.  However, a veteran is not required to file this application form before the VA is obligated to consider and adjudicate a TDIU claim. When a veteran files an original claim for evaluation of a disability or a claim for an increase in the evaluation of a disability that has already been rated by the VA, the claimant is generally presumed to be seeking the highest benefit allowable.  [AB v. Brown, 6 Vet. App. 35, 38 (1983)] If either claim includes facts that indicate that the veteran is unemployable, the VA is obligated to consider and adjudicate a TDIU claim. [Collier v. Derwinski, 2 Vet App. 27=47, 251 (1992)]

 

After looking over my old claims files I found that the VA screwed me in 2008.  

Since the VA never sent me a form 21-8940 after they proposed to leave my PTSD at 70%,  and had knowledge from the C&P exam that I was unemployable,  my claim for TDIU was never properly adjudicated.  I believe this means that my effective date for PTSD/TDIU should go back to where the VA first learned I was unemployable due to PTSD.  They never sent me a form 21-8940. EVER

 

 

any suggestions/recommendations are WELCOME

 

Thank you for your service!