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]

Berta

If the VA has in their possession evidence that the vet is unemployable due to a SC condition and does not adjudicate this inferred claim for IU is that a CUE?

The VBM seems to be saying "yes" that is a possible CUE. This is regardless of the percentage.

[Berta]

Yes- in my opinion I fully believe that is a CUE and I believe posted a PTSD vets CUE that was awarded on the same basis-

John my SMC CUES are the same basis also- only a little different-

if the VA doesnt abide by their own regulations , they can commit CUES.

(this doesnt cover any Duty To Assist reg-they can break that reg all they want and get away with it)

The VA is supposed to consider a veteran for any benefit they are eligible for.

I used M21-1 as well as 38 CFR regs to support that in my CUEs.

The VA stated in 1997-1998- and in 2004 that my husband not "was eligible for consideration for SMC under any circumstance."

Unlike millions of other veterans he alone was not eligible for SMC consideration.

The VA clearly has awarded SMC for Sec 1151 disabilities- I had 4 BVA decisions and one or two OGC Pres Ops to support that.

He was 100% direct SC, then 100% major CVA SC under 1151 and 100% heart under Section 1151.VA had the evidence of all that since 1992.

You are in the same position-

if the VA clearly had evidence to consider and award you TDIU long ago-they should have and if they didnt -in my opinion that is a CUE.

I am concerned that I thought we had the same lawyer but Karl gave my CUEs to his wife because she is good at "research" -but my claims dont need any research-I have not heard from her since I signed the fee agreement.

[john999]

Berta

Hmmmm...I have heard from Karl numerous times. I think the VA is trying to play around him. I got very short notice of the DRO Hearing and he was not even notified until I called him. He does not even have the C-file. I will have to make a copy myself and give it to him. My claim is just based on the documents that were in the hands of the VA in 1973 and they are few. You should email him and find out what is happening. He responds to email.

John