ptsd Inferred Tdiu

[Berta]

I just found in the VBM (2007) NVLSP some unusual information-

Page 1480-

Their point is that some vets who 'inferred' TDIU in some way and if VA ignored the TDIU inference, might be eligible for better EEDs.

"Essentially,when evidence is received that indicates the veteran may be entitled to TDIU,the VA is obligated to develop that claim.If the TDIU claim is pending the VA must adjudicate it like any other claim.If,hwever,it is determined that the TDIU claim was finally adjudicated as part of a claim for increase,even though the issue of TDIU was not specifically discussed,then the only recourse is to attack the decision on the basis of clear and unmistakable error."

I think they are saying- say a vet files for PTSD and DMII in 2002.

Then- only until 2005 does the VA rate him at 70% SC and send him the TDIU form and then they grant TDIU back to the date they get the form back.

But say this vet "inferred" in his original 2002 claim that he had lots of on the job problems and believed he is unable to work due to his PTSD as it made him unable to deal with superiors and he was presently unemployed.

This would be an inferred claim of TDIU that the VA should have adjudicated-as I understand NVLSP- or -if the decision on his claim is final-even if he was granted TDIU but with the 21-8940 form date as the EED- a CUE claim could be prepared to get back the 3 years of retro that-if the CUE is successful-the VA still owes him.

Edited May 24, 2008 by Berta

[free_spirit_etc]

Yep. That is why I have been telling Betty to not let them get by with only granting her TDIU from the date they recieve her form. He claim SCREAMED unemployable! For gosh sakes the VA SAID she was unemployable in 1983!!!

Now they will play the game of how much her SC condition contributed to her unemployability. But they should not get by with saying that there was NO "infered" TDIU claim.

I have posted the Roberson Decision a couple of times in Betty's threads.

http://www.ll.georgetown.edu/federal/judic...ns/00-7009.html

"Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the “identify the benefit sought” requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. The VA must consider TDIU because, in order to develop a claim “to its optimum” as mandated by Hodge, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU. Thus, we reverse the court’s holding that Roberson failed to make a claim for TDIU before the RO at the time of its 1984 decision."

It also says:

"Requiring a veteran to prove that he is 100 percent unemployable is different than requiring the veteran to prove that he cannot maintain substantially gainful employment. The use of the word “substantially” suggests an intent to impart flexibility into a determination of the veterans overall employability, whereas a requirement that the veteran prove 100 percent unemployability leaves no flexibility. While the term “substantially gainful occupation” may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.

Having concluded that proving inability to maintain “substantially gainful occupation” does not require proving 100 percent unemployability, we remand to the Court of Appeals for Veterans Claims for a determination of Roberson’s eligibility for TDIU in accordance with this opinion.

CONCLUSION

We conclude that the Court of Appeals for Veterans claims erred in holding that Roberson failed to make a claim for TDIU, and erred in applying an incorrect standard for TDIU."

Of course, I am sure proactively, it would be best to actually file the form - if you didn't file the form - you can still go back and argue that as your record showed evidence of unemployability, you met the standard for filing a claim for TDIU.

And I would still think that if the RO wants to maintain you did not submit a "form" - the time frame for submitting the form should be tolled - as the TDIU claim would still be PENDING - in that they had the "infered" claim, are maintaining you need to file a form - and THEY hadn't provided it to you yet.

As in Betty's case - the evidence was in the file of unemployability. If the RO just now sent her a form - she is submitting it within one year of the VA providing it to her - and thus, her award should date back to the earliest date she can establish she was unemployable due to her SC condition after filing her INITIAL claim.

Free

I just found in the VBM (2007) NVLSP some unusual information-

Page 1480-

Their point is that some vets who 'inferred' TDIU in some way and if VA ignored the TDIU inference, might be eligible for better EEDs.

"Essentially,when evidence is received that indicates the veteran may be entitled to TDIU,the VA is obligated to develop that claim.If the TDIU claim is pending the VA must adjudicate it like any other claim.If,hwever,it is determined that the TDIU claim was finally adjudicated as part of a claim for increase,even though the issue of TDIU was not specifically discussed,then the only recourse is to attack the decision on the basis of clear and unmistakable error."

I think they are saying- say a vet files for PTSD and DMII in 2002.

Then- only until 2005 does the VA rate him at 70% SC and send him the TDIU form and then they grant TDIU back to the date they get the form back.

But say this vet "inferred" in his original 2002 claim that he had lots of on the job problems and believed he is unable to work due to his PTSD as it made him unable to deal with superiors and he was presently unemployed.

This would be an inferred claim of TDIU that the VA should have adjudicated-as I understand NVLSP- or -if the decision on his claim is final-even if he was granted TDIU but with the 21-8940 form date as the EED- a CUE claim could be prepared to get back the 3 years of retro that-if the CUE is successful-the VA still owes him.

[john999]

In my original 1973 decision my doctor said I was "unable to work", and was "frequently incapacitated due to the psychotic symptoms of his disorder". The VA ignored this and granted 10% for this disorder which they said was residual schizophrenia. I and my lawyer believe this is a CUE since the VA had clear evidence that I was unemployable. I have SSA records to back it up. The VA never addressed this inferred claim for TDIU. I never had a C&P exam and the decision was final. I am reading from the VBM and it says that statements in the record that indicate a vet is unable to work are inferred claims for IU. I don't believe they even read my docto'r report although it is in the record.

[LarryJ]

And in my original claim in 2002 I sent in a copy of my SSA award, which was for the same thing that I wound up getting SC'd for.

Wouldn't that be an "inferred" claim for TDIU?

But, then, we are assuming that they actually READ the stuff that we send them.........

[william n]

Question folks,? I was granted NSC in December 07 with a EED of June 07..In Dec. 07,, 3 days after my win for NSC, I filed immediaetly for SC(claims) has I had been perfecting them the whole time waiting for my NSC Pension,to be awarded..Can I /Should I, ask for an EED of June 07 as "some" of my NSC Pension award is SC..If infact I'm granted TDIU, which i requested when i filed my SC Claim(s)..Did that make sense???

[carlie]

Larry,

I agree -- I feel pretty sure many VA errors happen because no one at VA actually read

what the vet or VSO sent in. Even if someone at VA does read it then the next problem I see

is they don't connect the dots, meaning the evidence that is of record.

carlie

[john999]

William

For you to get SC TDIU your TDIU has to be solely due to SC conditions. The VA will say that you got the NSC pension because of NSC conditions and that until you became totally disabled from SC condition the ED of pension won't count. That is what I think they will do.