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Tdiu Retro Rules

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blackbird

Question

Can anyone tell me if the effective date of a TDIU award is ever backdated before the actual claim date? Also, under what situations retro would be granted?

Thanks for your comments!

Blackbird

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Ok, Jerr, let me ask, can you reference your information with a regulation or VA directive? I have on occasion misinterpeted or misrepresented some concepts until I see its background. Was it CFR 38 or M21-1? or?

Thank you ~ !

Cowgirl

(Thanks Wings for posting that case - very helpful.)

Some good examples for an inferred claim for IU:

SSD award

terminated or leave job due to service connected conditions

Doctors note stating that you're unemployable

Example scenareo: Let's say you apply for IU and are granted back to the date of app. If any of these above occurred earlier than the IU application date (less than one year prior) you have good grounds for an earlier effective date (APPEAL) *per your update.

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x

x

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Search CAVC for "TDIU inferred". http://search.uscourts.cavc.gov/

EXAMPLE

1. In Roberson, supra, the Federal Circuit held that once a

veteran submits evidence of a medical disability and makes

a claim for the highest rating possible, also submitting

evidence of unemployability, VA must consider TDIU. 251 F.3d at

1384. See Roberson (2001) http://www.ll.georgetown.edu/federal/judic...ns/00-7009.html

2. Significantly, in Ingram v. Nicholson, 21 Vet. App. 232

(2007), the Court, in applying the holding in Deshotel, held

that a reasonably raised claim remains pending until there is

either a recognition of the substance of the claim in a RO

decision from which a claimant could deduce that a claim was

adjudicated or an explicit adjudication of a subsequent claim

for the same disability. While the Court applied such

holding to an RO decision, it would be equally applicable to

a Board decision, as it is a decision by VA.

Thanks Vets, You gave me some good things to think about!

For those who may not know my case;

I filed for SC for injury to back (that occurred in 1995), in May of 2004.

In December of 2009 after BVA remand, I was granted 20% retro from May 2004 to June 2009.

Was given 100% one month to recover from back surgery,

Was given 60% from August 1st to present due to IVDD, continuing,

Haven't worked since June 2000 due to surgeon's orders, in writing,

Drawed long term disability until December of 2002, when I was awarded SSDI, continuing,

Back flare-up occur as a result of activity related leg pain to include walking, sitting or standing for any length of time, due to a damaged nerve in my back,

Surgeon has stated in writing that condition will not improve,

Filed for TDIU in December of 2009.

Va has had all this the info since 2004.

If I understand your comments correctly, I may be due 100% earlier than the August of 2009 date?

Blackbird

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I will look in my VBM in a bit....munching on a scoobie snack right now. :angry:

Ok, Jerr, let me ask, can you reference your information with a regulation or VA directive? I have on occasion misinterpeted or misrepresented some concepts until I see its background. Was it CFR 38 or M21-1? or?

Thank you ~ !

Cowgirl

(Thanks Wings for posting that case - very helpful.)

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5.5.7 in VBM

If a veteran files a claim for a rating increase, and included in the evidence in the veteran's claim file is a statement from a psychiatrist that the veteran is unemployable = inferred IU

5.5.8

Some veterans who have inferred claims for TDIU may be entitled to an earlier effective date for TDIU. In Servello v. Derwinski, the court held that the existence of an inferred claim for TDIU might have entitled the veteran to an earlier effective date. Under 38 U.S.C.S & 5110(:angry:(2), the effective date of an award of increased compensation shall be the earliest date that an increase in disability occurred if the application is received within one year from such date. :)

17.11.2

Essentially, when there is evidence submitting that indicates that the veteran may be entitled to TDIU the VA is obligated to develop that claim.

In roberson v. principi requires the va to give a sympathetic reading to the veteran's filings by determining the potential claims raised by the evidence and applying all laws and regulations.

END....

Let's say your psych doc puts in his notes that you're unemployable. This would be an inferred start date as long as it's within one year prior to TDIU application date.

I hope this makes it more clear

Edited by jerrbilly
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5.5.7 in VBM

If a veteran files a claim for a rating increase, and included in the evidence in the veteran's claim file is a statement from a psychiatrist that the veteran is unemployable = inferred IU

5.5.8

Some veterans who have inferred claims for TDIU may be entitled to an earlier effective date for TDIU. In Servello v. Derwinski, the court held that the existence of an inferred claim for TDIU might have entitled the veteran to an earlier effective date. Under 38 U.S.C.S & 5110( :angry: (2), the effective date of an award of increased compensation shall be the earliest date that an increase in disability occurred if the application is received within one year from such date. :)

17.11.2

Essentially, when there is evidence submitting that indicates that the veteran may be entitled to TDIU the VA is obligated to develop that claim.

In roberson v. principi requires the va to give a sympathetic reading to the veteran's filings by determining the potential claims raised by the evidence and applying all laws and regulations.

END....

Let's say your psych doc puts in his notes that you're unemployable. This would be an inferred start date as long as it's within one year prior to TDIU application date.

I hope this makes it more clear

I understand now. Thanks again!

Blackbird

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