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

[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.