tdiu Questions About Back Pay

[navydoc2]

I was awarded TDIU in August of 09 dating back to Feb of 09. I stopped working in June of 08. I was wondering if I could get an earlier effective date back to June of 08. I would also like to know if since the clock has run out on the NOD for this claim, if I just missed out and am sol. Thanks.

/doc

[pacmanx1]

When did you file your claim for TDIU?

Do you have any pending claims including appeals?

[navydoc2]

When did you file your claim for TDIU?

Do you have any pending claims including appeals?

I actually applied for increase for depression in Feb 09, they inferred the IU claim and granted it back to that date. I have a new sleep apnea claim, and I have both an ED and high blood pressure claim on appeal.

[pacmanx1]

I actually applied for increase for depression in Feb 09, they inferred the IU claim and granted it back to that date. I have a new sleep apnea claim, and I have both an ED and high blood pressure claim on appeal.

What are the date that you filed your claims for sleep apnea, ED and hypertension?

What was your service connection rating prior to FEB 09?

[navydoc2]

I filed my sleep apnea claim on Nov 1 10. I filed my ED and high blood pressure claim Feb of this year. I was rated 40% prior to requesting increase in Feb of 09. My rating was as follows 10% left knee patella femoral syndrome with osteoarthritis. 30% depression major depressive disorder. I was denied for ED and high blood pressure in June of 10 and sent NOD for them in Nov 10.

[pacmanx1]

Have you been awarded SSDI?

If so, was the effective date prior to FEB 09?

So far I do not see VA paying you an earlier effective date.

[navydoc2]

Have you been awarded SSDI?

If so, was the effective date prior to FEB 09?

So far I do not see VA paying you an earlier effective date.

No I am in the reconsideration stage of my SSD claim. It was a thought so I figured I'd ask. Thanks for your replies.

/doc

[pacmanx1]

Actually it is a very good question. There are a lot of times when VA awards a veteran TDIU but the veteran never question the effective date. The reason I asked you so many questions is because depending on the answer it could have affected the date of your TDIU.

[navydoc2]

Actually it is a very good question. There are a lot of times when VA awards a veteran TDIU but the veteran never question the effective date. The reason I asked you so many questions is because depending on the answer it could have affected the date of your TDIU.

So it would have been possible to appeal the EED, even thought the clock on the NOD had run out?

[carlie]

I actually applied for increase for depression in Feb 09, they inferred the IU claim and granted it back to that date. I have a new sleep apnea claim, and I have both an ED and high blood pressure claim on appeal.

navy,

So in other words, you had never filed a claim for IU and submitted a 21-8940.

You submitted a request for increase and VBA inferred and granted IU from the date you requested

your increase.

If this is the case then that date would seem correct to me.

Unless you can show IU, complete medical evidence to grant IU within 12 months

of the claim for increase (38CFR 3.156). But even at that you still did not request IU

they inferred and granted.

JMHO

[navydoc2]

navy,

So in other words, you had never filed a claim for IU and submitted a 21-8940.

You submitted a request for increase and VBA inferred and granted IU from the date you requested

your increase.

If this is the case then that date would seem correct to me.

Unless you can show IU, complete medical evidence to grant IU within 12 months

of the claim for increase (38CFR 3.156). But even at that you still did not request IU

they inferred and granted.

JMHO

I filled out the SOC and they sent me the 21-8940 asking that I fill it out since I had mentioned in the SOC that I was not working and had been struggling in VocRehab due to my depression and chronic pain from my knees. Is that not an inferred claim? I had not initially asked for IU, hell I had never heard of IU until I came here; much less know to ask for it. lol

[carlie]

navy,

I sure might be wrong on this but I believe I've read somewhere that it

is up to the VBA to "infer" a claim - not the claimant.

I could be wrong on this.

See if this could help you any.

http://www4.va.gov/vetapp09/files6/0947986.txt

The United States Court of Appeals for the Federal Circuit (Federal Circuit) further expanded on the concept of when an informal claim for TDIU has been submitted in Roberson v. Principi, 251 F.3d 1378, 1384 (2001). In Roberson, the Federal Circuit held that once a veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits "evidence of unemployability," the requirement of 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" is met and the VA must consider whether the veteran is entitled to a higher compensation rating on the basis of TDIU.

[navydoc2]

Thanks Carlie I will research this.

[LarryJ]

I filled out the SOC and they sent me the 21-8940 asking that I fill it out since I had mentioned in the SOC that I was not working and had been struggling in VocRehab due to my depression and chronic pain from my knees. Is that not an inferred claim? I had not initially asked for IU, hell I had never heard of IU until I came here; much less know to ask for it. lol

No, just because the VA sent you the proper form for claiming TDIU does not mean that the VA actually inferred that you had TDIU............just that they were providing the proper form for YOU to claim TDIU.

Although they say that they "can" inferr such things as TDIU, I have yet to meet anyone that actually has had the VA inferr the awarding of a claim for TDIU, WITHOUT the filing, by the veteran, of a properly constructed form 21-8940.

[john999]

If you were hospitalized for depression prior to the effective date of your IU you might be able to get an EED for the IU. I did it that way. The VA treats hospitalizations as informal claims for an increase sometimes. It is the same for SSDI. If you are granted SSDI for depression earlier than your current IU date you could possibly file a new claim for an EED. Letting your one year NOD date run out makes it harder. I agree that the VA never grants IU without filing out formal claim for IU. If you win SSDI what would be the effective date? That is the date you might use to claim an EED for IU. It is a long shot I think.

[navydoc2]

If you were hospitalized for depression prior to the effective date of your IU you might be able to get an EED for the IU. I did it that way. The VA treats hospitalizations as informal claims for an increase sometimes. It is the same for SSDI. If you are granted SSDI for depression earlier than your current IU date you could possibly file a new claim for an EED. Letting your one year NOD date run out makes it harder. I agree that the VA never grants IU without filing out formal claim for IU. If you win SSDI what would be the effective date? That is the date you might use to claim an EED for IU. It is a long shot I think.

John, I'm not sure what my effective date will be from SSDI. I know that I stopped working in June of 08, I tried to continue to go to school through VocRehab until Dec 08, but my symptoms were too bad to continue and I was considered infeasible by the VocRehab counselor. I knew it would be a long shot especially since the clock had run out on the NOD date. I was hoping that if I could show when my symptoms warranted an increase in my SMR that I might have a shot. Thanks for all the replies and direction.

/doc

[ocreswell]

if anyone can help my question is i applieded for an increase for service connected foot disability in 2005 and had another case pending at the BVA for 3 yrs for another condition ,it came back with a denial in 2009. The foot condition was awarded in 2009 with a 10% increase they only paid for 1 yr back pay. I just looked at that letter it said we may be able to pay you from the date we received your claim etc, the time has past the 1yr mark . I messed that up myself but can they do tha? Its funny i have to prove to them i filled a claim in 2005. Also I have a DRO review with the case will the dro award me the back pay or am im out?

[carlie]

i

ocreswell,

Welcome to Hadit.com .

Please re-post your questions as a new topic you start

in a Forum of your choice.

If you put your questions in the middle of another members questions

then their questions usually get obliterated.

[Berta]

"I was considered infeasible by the VocRehab counselor. " Was that in regards to the Dec 2008 date?

Was that statement solely referring to your SC conditions as rendering you unfeasible?

Did the VA have that statement when they decided your claim?

If VA was aware of this documented Voc Rehab statement and the statement was dated prior to the EED they gave you-

you could ask them to call a Clear and Unmistakable error on themselves, under auspices of 38 USC 5109 and state they violated established evidentiary VA case law and regulations to include M21-1MR

( I think it is 38 CFR 4.3 and 4.6) I will check and get back here on that)

in failing to consider probative evidence of unemployability from the VA that would warrant you assignment of a more favorable effective date for TDIU, in their decision dated ( put decision date here).

I pulled this a few times and they did not ignore me and did take action.

I call this scenario the Watergate question- what did they know and when did they know it?

If the VA knew of evidence that was probative to a claim (specifically evidence from the VA itself in your case)

and failed to address it ,to your detriment in some way-

they have committed a CUE during the process of generating the decision.

You could file a regular CUE claim on the final decision and not ask them to CUE themselves but you might get their attention faster if you ask the to CUE themselves here.

If anything at all can somehow overcome the lack of timely NOD filing- than you might in fact be able to get the SSDI date as to the EED---- maybe----- a big maybe but it is worth trying for.

I asked VA to re -do and/or CUE a few award letters they sent me based on my BVA award letter.I got 3 letters in response.

I consider the most recent letter from them what I could file a NOD on. I have until Feb 2010.

The IHD regs altered that however-but my point is that although a lost NOD date is serious-there can be other ways to prevail on a decision that shoud have been appealed in time.

It sure doesn't always work.But as much as the regs control us-they also control the VA and can be manipulated to our advantage sometimes.

[Berta]

This is what I meant and I have whipped this off to them many times:

"§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

“b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. “

Source: September 23, 2004 M21-1, Part VI

Change 118

______________________________________________________________________________

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.159 Department of Veterans Affairs assistance in developing

claims.

(a) Definitions. For purposes of this section, the following

definitions apply:

(1) Competent medical evidence means evidence provided by a person

who is qualified through education, training, or experience to offer

medical diagnoses, statements, or opinions. Competent medical evidence

may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in

authoritative writings such as medical and scientific articles and

research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the

proponent have specialized education, training, or experience. Lay

evidence is competent if it is provided by a person who has knowledge of

facts or circumstances and conveys matters that can be observed and

described by a lay person."

(I always highlight the Change to M21-1MR part-

they must hate me ! HA HA !!!! I love to use M21-1MR to point out their errors!

38 USC is the law, CFR is the interpretation of the law as written as a regulation, and M21-1MR tells VA exactly how to handle and apply these regulations to our claims.

Edited December 6, 2010 by Berta (see edit history)

[ocreswell]

sorry please forgive

ocreswell,

Welcome to Hadit.com .

Please re-post your questions as a new topic you start

in a Forum of your choice.

If you put your questions in the middle of another members questions

then their questions usually get obliterated.