tdiu Eed Retro Reconsideration Or Just Appeal Nod

[Guest jangrin]

What kind of new and material evidence would you need to ask for a reconsideration for an earlier effective date when they award 60% (one etiology) in FEB and then in AUG they award TDIU P&T. No change in DX and no addtional disability rating.

Shouldn't TDIU be retro back to the claim filing date, as it was awarded 60% rating disability that caused IU.

Is there a way to file reconsideration since this seems to be adminstrative rather than a medical evidence issue. Or does this have to be a NOD?

[Guest jangrin]

I guess my question is...

Is the evidence in the C-file considered used for making ALL the decisions of an award?...

Or...

Is the evidence used in making a decision only the evidence they list in the explanation part of the actual award letter?

For example... The SSDI award letter is in the c-file. And the rater listed the SS award letter in the evidence section of the award. Because the SS letter was listed if I ask for reconsideration because of the SS award, it would not be new and material..therefore I would have to file an NOD. They do not mention CFR's in the evidence section of the award. Could a veterans use the 38 CFR's and the M-21 MMR's as new and material for a reconsideration. I just think it is silly to file for an NOD appeal when they could do it as a reconsideration with a lot less fanfare and trouble.

Edited May 12, 2007 by jangrin

[Berta]

Jangrin-even if the SSA award is listed it probably was not considered-

and if solely for VA disabilities- I would use 38 CFR 4.6 ---

"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."

From:

http://www.warms.vba.va.gov/Regs/38CFR/BOOKC/PART4/S4_3.DOC

And point out that although the award was listed as evidence, it does not appear to have been considered as to the proper EED.

and add as support :

M21-1, Part VI January21, 2004

Change 109

"Unemployability. Authorization will tell the veteran the form can be used to apply for a 100 percent evaluation based on individual unemployability. If evidence is submitted establishing individual unemployability due to service-connected disabilities, prepare a disability rating granting the individual unemployability. The effective date will be the earliest date the evidence shows individual unemployability if a claim is received within 1 year from such date. Otherwise, the effective date will be the date of claim, provided that the evidence shows entitlement as of that date and the date is not prior to August 1, 1975. See 38 CFR §3.400(o). If evidence is submitted establishing individual unemployability, but because of the reduced evaluations the percentage requirements of 38 CFR §4.16 are not met, refer the claims folder to Central Office (211B) for consideration under 38 CFR §3.321(:P(1). "

from:http://64.233.167.104/custom?q=cache:MZXWz1SWPHkJ:www.warms.vba.va.gov/admin21/m21_1/part6/chg109.doc+M21-1+earliest+effective+date&hl=en&ct=clnk&cd=2&gl=us&ie=UTF-8&client=pub-2090988506854078

And state clearly that, per VA case law and regulations as above-the veteran met the TDIU criteria, per SSA prior to the date of filing the TDIU application.

(you could ask for a year more as the EED- if the SSA award came a year prior to the

VA claim-as spelled out in above regs as 'The effective date will be the earliest date the evidence shows individual unemployability if a claim is received within 1 year from such date.'

Rod made claim for higher PTSD % SC in late 1992.

The SSA gave him Nov 1991 as EED for PTSD.

VA awarded -listed the SSA records as evidence but never seemed to even acknowledge them.

However VA gave his EED as the Nov 1991 date for 100% PTSD.

Hope this helps.

Edited May 12, 2007 by Berta

[Pete53]

Jan:

Just cause it is in the file does not mean it was considered.

You have to kick them in the pants on some issues.

[Guest jangrin]

Thanks Pete and Berta,

That's it then. We will file for reconsideration of EED for TDIU based on the SS award of 100% diasability and the 60% TDIU award date NOT THE DATE THE CLAIM FOR TDIU WAS FILED.

Thanks you two. It is the only thing about the recent decision that has a direct impact financially. The other issues that we will be asking for are mainly increases in his percentage as his various ratings were really rated low. As I look over the award, they only used his medical records from before we moved 8 months ago to rate the claim. Except the C+P for PTSD, that was a farce. The other C+P they had him go to they never even mentioned in the award. The one for the gastrointestinal due to medication complications. They ordered the C+P and never even mention anything about the C+P or the claim.

There are so many of the disabilities that are going to reconsideration, NOD or appeal, I wonder if we should do them all at once or one or two at a time. What do you think? At this point it is almost a matter of principle. These people are suppose to be the professionals not us. But it is obvious they are either new or uninformed in the process. I am really anxious to see what is in the cfile.

[Berta]

Jangrin- the way I see it-

there is always the potential of an SMC award- so why not attempt to get the disabilities rated as high as the evidence says they should be-or at least make sure- if they do get worse -to claim higher rating at that point-

and there is always the potential of death -which- even if only a secondary condition with a low rating-is found as contributing-

the VA still has to SC the veteran's death.

Harris V Derwinski is a good example-the vet died due to NSC heart disease.

He only had SC for hearing loss.

The widow however proved -with medical evidence (IMO) -that the veteran's SC hearing loss caused him to be so inactive due to balance problems, that it contributed to his heart condition, and thus contributed to his death. The BVA awarded DIC.

If the condition was never claimed and it did have SC potential and then does contribute to death-the surviving spouse could have a heck of a time-first proving the disability should have been SC and then proving it contributed to death.

Your husband's claim is still fresh on someones mind at the VA and the time is right to question anything about the rating at all.

Edited May 12, 2007 by Berta