tdiu Question On Effective Date

[Gardener]

I posted the other day that I was still waiting for my favorable portion of the BVA decision. This decision was "stuck" at the AMC with other remanded issues. I just spoke with someone at the 800 number and was informed that a new entry was posted with today's date (23rd), and that it was now at authroization.

I wanted to ask a question concerning the effective date (obviously jumping the gun, but curious none-the-less).

All little background. I originally filed for service connection in 2003. I was notified in 2006 that I had been granted service connection (at the % that made me eligible to file for TDIU), and this was made retro back to 2003. Then, after receiving this favorable decision I filed for TDIU (3 weeks later). I became unemployable in 2000 (by SSDI) solely due to this condition (medical documentation from doc was a part of my file when I filed in 2003 stating that I was no longer employable), but VA only granted 70%. Anyway, I wanted to ask what my effective date would be?

Would it go back to 2003? (since I was not notified of the favorable decision making me eligible to apply for TDIU until 3 years later: remember it was retroed back to 2003). Or, could it possibly go back to the date placed on SSDI solely due to the same condition due to the documentation from doc that was part of the file at the time of the original filing?

I am concerned that they will only go by the date on the IU claim form of 2006, but I could not have filed until I received the decision giving me the necessary % (original claim was for service connection).

Sorry for the long post, but any input would be appreciated

Gardener

[Berta]

This regards TDIU for an AO condition?

[Gardener]

Berta,

No it does not. I believe that Stillhere was just uses the DMII as an example.

Gardener

[john999]

I think your claim is perfect example of an inferred claim for IU. The VA knew you were on SSD. They should have inferred IU. You are going to have to fight for the EED, of course.

[Philip Rogers]

Okay, here's what I see. You "may" be able to get them to go back to 2003 but they shouldn't, since the 2003 claim was an original claim. When you received the 2006 decision you should have filed a NOD, rather than filing for TDIU. If you were awarded a percentage that made you eligible, for TDIU, and it wasn't discussed, in your 2006 decision, you may be able to CUE that, which may allow you to go back to 2003 but not if they discussed TDIU in that decision. The fact that you didn't file in 2000, when you got SSDI, kinda bars you from getting that date. jbasser posted 3.400 which is your answer. I don't see an inferred claim back to 2000 but there may be an inferred claim to 2003, which would help the CUE issue.

This is not to say you couldn't win back to 2000 but I believe it's "highly" unlikely. You can't overturn 3.400 and the issue of the date the claim was filed. jmo

pr

Edited June 25, 2010 by Philip Rogers

[Berta]

Gardener- can you give us a link to or the Citation Number and Docket number of the BVA decision?

[Gardener]

Hi Berta,

Thank you for your help, it is greatly appreciated.

I really do not feel comfortable giving this information out. Not due to distrust of anyone on the board, but due to the fact that anything placed on a public forum can be read all over the world.

If I can answer any specific question you have, in order for you to be able to help me better, I would be more than happy to do so. Again, I value your input.

Gardener