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

[john999]

According to the VBM just the fact that you have any SC condition that could make you unemployable is an inferred claim. They used an example of a vet with a smelly foot problem. How much more of a good claim is it to be on SSD? If the VA knows the vet is on SSD for an SC condition that should be an inferred claim for TDIU with an effective date of the time they found out about the SSD.

[Pete53]

OK the last question I have on this matter. Say the VA did not know a Vet was on SSD although I find it hard to believe that. Can a Vet ask the VA to pay back to SSD award anyway?

Edited May 26, 2008 by Pete53

[carlie]

OK the last question I have on this matter. Say the VA did not know a Vet was on SSD although I find it hard to believe that. Can a Vet ask the VA to pay back to SSD award anyway?

Pete,

Isn't there a rule or reg concerning VA and SSA sharing information without the claimant even having to sign and submit a release?

Anyone out there know where it is?

carlie

[free_spirit_etc]

Here is the one from Social Security:

http://www.socialsecurity.gov/OP_Home/cfr20/401/401-0120.htm

§401.120 Disclosures required by law.

We disclose information when a law specifically requires it. The Social Security Act requires us to disclose information for certain program purposes. These include disclosures to the SSA Office of Inspector General, the Federal Parent Locator Service, and to States pursuant to an arrangement regarding use of the Blood Donor Locator Service. Also, there are other laws which require that we furnish other agencies information which they need for their programs. These agencies include the Department of Veterans Affairs for its benefit programs, the Immigration and Naturalization Service to carry out its duties regarding aliens, the Railroad Retirement Board for its benefit programs, and to Federal, State, and local agencies administering Aid to Families with Dependent Children, Medicaid, unemployment compensation, food stamps, and other programs.

It is kind of odd - my husband was the disabled person - but I don't see any Social Security records about him in his C-file. However, there is a one page transmittal on ME - checking to see if I had applied for and / or been approved for Social Security benefits. It was just a one page trasmittal sheet. I did not sign any consent - and I did not use the joint application for VA / Social Security that they use for Survivors ( we CAN file a joint application for both benefits) I informed them that I was filing separately, but they still pulled up a sheet on me.

If they can pull up info from Social Security to see if you are NOT eligible - they SHOULD be able to pull it up to see if you ARE eligible.

I read a case for a child survivor - and the BVA remanded it because the VA had not requested the child's Social Security records to see if the child was disabled.

Free

Pete,

Isn't there a rule or reg concerning VA and SSA sharing information without the claimant even having to sign and submit a release?

Anyone out there know where it is?

carlie

[Berta]

"OK the last question I have on this matter. Say the VA did not know a Vet was on SSD although I find it hard to believe that. Can a Vet ask the VA to pay back to SSD award anyway? "

I dont see how-

What bothers me is that I have met a few vet reps (even the one I had from the DAV) who did not see the significance of having an SSA award solely for service connected conditions and sending it to the VA as evidence of TDIU or 100%.

SSA disabilities awards are, in essense, independent medical opinions.

The VA can only address the evidence they have.

If the veteran states they are on SSA the VA is obligated to send them an authorization and to obtain the SSA records.

Washington V Derwinski

I went round and round with VA on this years ago when they refused to obtain my husband's SSA records.They told my COngressman and my 2 state Senators that SSA refused to reales the records.

It simply wasnt true.

I called SSA in Baltimore, determined to find out what was what-only to find that-although the VA had the authorization forms signed-they had never even attempted to get these records.

This is one reason my husband never saw his 100% award in his lifetime.

But my point is a veteran cannot say the VA failed to address any SSA evidence-if the VA had no knowledge the vet was on SSA for disability.

[Berta]

I need to add Bell V Derwinksi-

this case defined what the VA ,after July 1992, needs to have for CUE claims.

Basically the VA must have "construction possession" as of July 1992 of any evidence that is involved in a CUE Motion.

If a veteran attempted to file CUE claim on SSA records that VA did not consider as to their disability- the VA must have had "constructive possession" of those records after July 1992.

I have discussed Bell here before.

I raised Bell in my CUE claims presently at the VA-

since the situation involved claims that dated back to 1997-1998-decision-and evidence up to and after 1992 was a factor in those awards-

I raised Bell in my CUES and reminded VA that all of the evidence had been in the veteran's C File and medical records after July 1992 and thus VA had "constructive possession" of it all.