tdiu What Constitutes An Inferred Claim For Iu?

[Gardener]

Can anyone tell me what would constitute an inferred claim for IU (individual unemployability)?

For example,

If one files for service connection (original service connection filing) and in the c-file there is evidence from doctor's statement "saying unemployable" and on original application for benefits (which states: "what prevents you from working? which was what was being filed for) would this be an inferred claim for IU at the time of original filing?

I was granted qualifying percentage for IU (notified 3 years after the original filing) and had not worked for quite sometime before that filing or since, then should the original rater have considered this evidence as an inferred claim for IU or not?

Gardener

[LarryJ]

I give up.

[Wings]

x

x

x

Study these two cases: Norris v. West and Roberson v. Principi

Recognizing that there are circumstances that will entitle a

veteran to a total disability rating even though he is rated

less than 100 percent disabled, VA regulations provide for a

TDIU, which may be granted when a veteran presents evidence

that he is unable to secure a substantially gainful occupation

as a result of a service-connected disability or disabilities

and meets other criteria (38 C.F.R. § 4.16).

The Veterans in Norris and Roberson did not argue that there

had been a formal claim for a TDIU or even a communication

requesting a TDIU. Rather, they argued that the evidence

raised such an informal claim for a TDIU and that the RO

committed CUE in failing to adjudicate such a claim.

In Norris, The Veterans Court found that, where a claimant files

a claim for an increased rating, his schedular rating meets the

minimum requirements for a TDIU, and there is evidence of

service-connected unemployability, VA must consider the increased

rating claim to be, or to include, a TDIU claim.

The Veterans Court has long held that the “uniquely pro-claimant”

and non-adversarial nature of the VA adjudication system means that

when a veteran files a claim for benefits, VA must liberally construe

all documents filed by a claimant in order to determine or infer what

claims have been filed. EF v. Derwinski, 1 Vet. App. 324, 326 (1991).

The Veterans Court and Federal Circuit have more recently described VA’s

duty to sympathetically read a veteran’s filings and develop his or her

claim to an optimum by determining all potential claims raised by the

evidence even if not specified by the veteran. See, e.g., Szemraj v. Principi,

357 F.3d 1370, 1373 (Fed. Cir. 2004) (holding that “VA has a duty to sympathetically

read a veteran’s allegations in all benefit claims”).

Pending Claim Doctrine.pdf

[Gardener]

Wings,

Thanks for your constructive reply. Great info! I will do just that. This board has been extremely helpful. Thanks also to mobie, john, pete, larryj and berta for your responses to my question.

Gardener

[Berta]

you stated:

"(application was included with the original award letter)"

"only to the date of my application for TDIU (which was 3 years after they found me 70%)."

I am really confused here.

The date of a TDIU application is almost always the EED.In a few cases-which I posted about here many times- they can go back one year prior to the TDIU application date as they did with my husband, because of a medical determination that entitlement arose prior to the application date.His SSA award solely for PTSD was used as his VA EED.It was clear and convincing medical evidence that his entitlement has arisen one year prior to his TDIU application.VA never sent him a TDIU form. I found one somewhere and gave it to him.

But the VA did infer TDIU here in your case and since they inferred TDIU they did send you the TDIU form.

A VA Neuro -at a C & P exam on my husband (which was done in a hallway at the local VAMC) loudly stated to him and everyone else within earshot- after she asked my husband to stand up and walk 3 steps="I pronounce you as totally and permanently disabled" and wrote this down into the C & P exam like it was the biggest deal on record.

That was in 1993.A year later he died.

5 years later the VA awarded for this ( residuals of major CVA) as under 1151 and their rating was wrong.

In April 2009 the BVA awarded my claim for his death due to AO.The Neuro's statement meant nothing at the time.

It now comes into play regarding another claim I have pending.

My point is that a statement of unemployability without a full medical rationale that service connects the reason for unemployability is useless to the VA for claims purposes.In my opinion.

Pete sees something here that I don't see.I see no basis for appeal of the EED.

But you can certainly appeal the EED.Send them copies of all medical evidence that shows the date your "entitlement arose" to TDIU should be prior to the EED they gave you.It needs to be medical evidence VA had but never considered as they cannot make EED determinations on evidence they don't know of.

I did a topic here under Date entitlement arose available under the search feature.

[Gardener]

Berta,

Sorry for the confusion:

"(application was included with the original award letter)"

"only to the date of my application for TDIU (which was 3 years after they found me 70%)."

I am really confused here.

I will try to clarify this: I was not "notified" of the award until 3 years "after" filing my original claim for service connection. It took them three years to reach a decision due to the fact that I had to file an NOD, and send in additional evidence (of stressor). Once this was done, then I was notified of the award, and found the application in the package (promptly filed).

My question was pertaining to the fact that there was medical evidence, and rationale, to back it up in my c-file "prior" to being awarded the 70% (this is where I thought that they should have inferred the IU because I was unemployed due solely to that sc condition). I guess I was confused as to why they would not have gone back to the original award date (due to the fact that it took three years to decide and notify me of this award).

Say they had only took 8 months to award and notify (hypothetical case of course), then I could have filed within that time. It is like being told three years later of a birthday party, and then being asked "why didn't you show up?" "Didn't know I was invited until 3 years after the fact."

Sorry for the confusion. I will probably just get with the VSO and see what can be done. I just wanted to have the "appropriate" ammo before doing so.

I have not yet received the award letter, and the reason and basis to the EED, so once this arrives I will take a close look at it, and then go from there. May not be anything else I can do, but I wanted to get "educated" as much as possible. (Unlike when I first originally applied).

I really appreciate your help, and really glad I found this board. I know that it was a complicated case, and sorry for the questions: but I have learned that there is "no" dumb question (only those that are not asked).

Gardener

[john999]

Send in an NOD for the effective date and get a lawyer. Your VSO failed you. If you were unemployable he should have had you file out a TDIU form and send it in three years ago. If you ever win this retro TDIU I bet it will be at the BVA or beyond with a lawyer at your side.