tdiu A Question On My Eed........am I Imagining Things

[LarryJ]

Timeline:

08/25/06

"This is an informal claim for bi-polar disorder or major depression steming from my left ankle service-connected arthritis, pain, unemployablity, left knee and right hip pain and arthritis."

04/10/07

Granted service-connection for depression @ 70%.

08/18/08

Granted TDIU, retro to 04/10/07, the date of grant of service connection for depression. Paid retro back to 04/10/07.

My question(s):

Shouldn't the retro pay for TDIU be back to 08/25/06, the date that I FILED for Major Depression, and not the date that I was GRANTED service-connection for MDD?

And, shouldn't my TDIU be dated the same.......meaning the Chap 35 benefits should be "back-dated" to 08/25/06?

[LarryJ]

Thanks guys/gals.......I kinda thought so.

I've FAX'ed copies of the informal claim, the award, etc., to my POA at the Texas Veterans Commission in Waco. He called me and told me that he thought that the TDIU should not go back but till the AWARD date of my 70%. I called him back after thinking about it, and told him that I kinda thought that the "effective date" of your claim was when you actually filed for it, not the date it was awarded...............he says "hmmmmmm, well, I can't get that screen to come up on my computer....I'll have to go across the hall (the TVC is in the same building (of course) as the VARO) and check with the VARO computer....."). YEAH, and have a cup of coffee with the VA and see if they can't make me go away.................sorry, but I just do not trust ANYone ANYmore..........or, as one of our esteemed hadit board members is found of sayin, "Is it really paranoia when the peeps that you THINK are "out to getcha", really are?"

We'll see. We'll see, also, if I am paranoid, or not.

[LarryJ]

Larry

I think you have a claim for an EED. The VA does this all the time often using the date of a C&P exam to establish the ED. You claimed IU and depression in 8/06 and that is what your effective date should be as I see it. Did the VA have some new evidence they based the later effective date on? You know most vets are just so happy to get IU after starving for a couple of years they take what they can get no questions asked. I think the same thing happened to me. I had a claim on appeal for about 5 years. I added some new evidence and that is the date the VA used for my 70%. I got a CUE going back to the very beginning so I am waiting on that.

Yeah, John, that's the way it was with me, also. I was SOOOO glad to be able to pay my bills and help my Son through college, that I did not EVEN want to think about the crapola that I had been through for the last 5 years, trying to get to where I could take better care of my family. Frankly, I was afraid that if I looked at all my paperwork and actually found a mistake that the VA had made, that if I brough it up to them.....that'd piss 'em off and they'd take away what took so long for me to achieve. I finally, just last week, got the stuff out and was reading through it, knowing that my 1 year time limitation was drawing near for me to file an NOD.

I just got through talking to my POA and he says that it'll take a couple of days for him to actually get the file, that they have it in a storage location, but, if he hasn't taken care of it by the 16th, that he'll run an NOD through for me. (Maybe, if he doesn't get too busy and forget about it......but what are all these doubts that I have that he'll actually "take care of it"?)

Now, I gotta sit here until two days before my year runs out, and worry about it. But, hey, I guess it's my fault that I waited so late to even look at my stuff, huh?

I guess that my paranoia runs more than skin deep, huh?

[broncovet]

Yep..beauty is only skin deep but paranoia goes clear to the bone. You need to file a NOD if you havent already, (for an EED) and, I recommend a DRO review. If it is any help to you, I also have recently filed a NOD for an EED because my BS is in MIS...(no..because their BS is aMiss.) (u were supposed to laff)

1. In Mingo vs Nicholson it states:

“VA is required to identify and act on informal claims for benefits. 38 U.

S.C. 5110(B)(3) (2006); 38 C.F.R. 3.1(p), 3.155(a). The Board commits remandable error when it fails to consider evidence that may be construed as an earlier application or claim, formal or informal, entitling the claimant to an EED See 38 U.S.C. 7104”

Edited August 11, 2009 by Pete53

[deltaj]

Timeline:

08/25/06

"This is an informal claim for bi-polar disorder or major depression steming from my left ankle service-connected arthritis, pain, unemployablity, left knee and right hip pain and arthritis."

04/10/07

Granted service-connection for depression @ 70%.

08/18/08

Granted TDIU, retro to 04/10/07, the date of grant of service connection for depression. Paid retro back to 04/10/07.

My question(s):

Shouldn't the retro pay for TDIU be back to 08/25/06, the date that I FILED for Major Depression, and not the date that I was GRANTED service-connection for MDD?

And, shouldn't my TDIU be dated the same.......meaning the Chap 35 benefits should be "back-dated" to 08/25/06?

Your timeline does not mention the date of receipt of the claim for increase. Also missing from your timeline is the dates of V.A. exams and findings in those exams. I ask these things because of 38 CFR 3.400 (q). I suggest you read V.A. General Counsel Precedent Opinion 12-98 and look there at #13 and also section a in the holdings at the end. Also keep 38 CFR 3.400 (o) (2) and 38 CFR 3.157 in mind as you review your documents.

[pacmanx1]

Deltaj, I know Larry can speak for himself but may be its too early in the morning but what are you talking about?

You stated: your timeline does not mention the date of receipt of the claim for increase.

Larry posted: 08/25/06

"This is an informal claim for bi-polar disorder or major depression stemming from my left ankle service-connected arthritis, pain, unemployability, left knee and right hip pain and arthritis." This is the date of the claim.

You stated: Also missing from your timeline is the dates of V.A. exams and findings in those exams. It really does not matter if he had C & P exams in 2006, 2007, 2008 or all three of those years. The Claim was filed in 2006; VA did not finish the claim until 2008. The claim should be awarded when the veteran claimed the issues.

Example: I filed a claim for increase in 2007; I was rated as 80%. In 2008 I received my first group of C & Ps and I was awarded a partial award of 90%. In 2009 I received my second group of C & Ps for the same conditions and I was finally awarded 100% P & T with Champva and chapter 35 back to 2007 my original claim date.

[broncovet]

Larry...

Yep..I agree you are entitled to an EED and should go for it. Leave your hat on at the hearing, and use it as evidence you are depressed. (Aw cmon..its been a while since I said anything about the 'copter) Do also consider this:

You may be another victim of shredded evidence.

Why did the VA not consider your evidence of an EED? One possible reason is that they shredded that evidence. Yes, if you are afraid of the VA cheating you, you are not paranoid..you are well-read and educated.

Dont forget to file a "Special Handling Request" (SHR) before NOV. 1. Cite that your evidence was not considered or else you would have been awarded benefits effective in 2006, so it must have been shredded or mishandled by the VA. Cite regulation. VA HATES SHR's...but has to act on them..if they dont, complain to the VAOIG. I finally got put to the top of the pile by filing a SHR..and by complaining to the VAOIG that my SHR was shredded also! They now know the VAOIG is following my claim, and they desperately want to make that problem (that is, me) go away.