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Claim For Tdiu Does Not Require Specific Claim

Guest allanopie


Guest allanopie


          • § “Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the ‘identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. Roberson v. Principi, 251 F.3d 1378, 1384 (2001) citing Hodge v. West, 155 F.3d 1356 (Fed.Cir.1998) (mandating the development of a claim to the optimum which requires the VA to determine all claims raised by the evidence and to apply all relevant laws and regulations “regardless of whether the claim is specifically labeled as a claim for TDIU.”)


                    • § In Servello v. Derwinski, 3 Vet.App. 196, 198 (1992), from the date the veteran had been granted service connection for a psychiatric disability he had continually sought an increased rating for that condition. However, over three years after service connection was granted for the veteran’s psychiatric condition, he filed an application for an increased rating based on individual unemployability (IU) and was granted IU but only to the date of his formal application for IU. The Court vacated the Board decision and remanded the case for a readjudication consistent with the Court opinion. Id., at 201.

In Servello the Court found that “nder 38 C.F.R. § 3.155(a) (1991), the submission of certain medical records may constitute an ‘informal claim’ for an increase in disability compensation. If a ‘formal claim’ has not been received by VA upon its receipt of an informal claim, VA must forward an application to the claimant; the claimant must return the formal claim to VA (Veterans Administration [currently Department of Veterans Affairs]) within one year to make the date of receipt of the informal claim an appropriate effective date for the claim. In addition and significantly, 38 C.F.R. § 3.157(

:unsure:(1) (1991) specifies that where, as here, a claimants formal claim for compensation already has been allowed, receipt of, inter alia, a VA report of examination will be accepted as an informal claim filed on the date of the examination.” Servello, supra, at 198 (emphasis in text.).

The Court found that the Board had erred by misinterpreting 38 C.F.R. § 3.155(a) to require that the “informal claim [must] specifically identify the benefit sought.” (emphasis in text). .... “Making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court’s precedents and public policies underlying the veterans’ benefits statutory scheme. ‘A claimant’s claim may not be ignored or rejected by the BVA merely because it does not expressly raise the provision which corresponds to the benefits sought’.” Servello, Id., at 199 citing Douglas v. Derwinski, 2 Vet.App. 103, 109(1992) (Douglas I); see Douglas v. Derwinski, 2 Vet.App. 435, 442 (1992) (en banc) (Douglas II); Akles v. Derwinski, 1 Vet.App. 118, 121 (1991). “To require that veterans enumerate which sections they found applicable to their request for benefits would change the [nonadversarial] atmosphere in which [VA] claims are adjudicated.” Servello, Ibid., citing Akles, supra.

In Servello, the Court opined “[t]he question then becomes whether any of the veteran’s ... written communications to VA (preceding the date of his application for IU), whether formal or informal, evidenced a “belief” by the veteran that he was entitled to total disability benefits by virtue of unemployability. .... The veteran is not required to mention “unemployability.” Servello, supra, citing Gleicher v. Derwinski, 2 Vet.App. 26, 27 (1991) (reversing BVA decision denying individual unemployability benefits where appellant had requested that BVA increase 70 percent disability rating to 100 percent but did not request specifically a total rating based on individual unemployability); Snow v. Derwinski, 1 Vet.App. 417 (1991) (remanding matter to BVA for consideration of individual unemployability claim where appellant had not raised it explicitly but had stated in submissions to VA that he believed he was 100 percent disabled and that last employer would not rehire him due to his service-connected PTSD).

In Servello the Court cited a number of pieces of evidence which were indicators that the veteran had declared himself unable to work and, thus, had placed the VA “on notice ... that [he] was in a continuous state of unemployability ....” including a claim for pension benefits. Servello, Id. at 200.


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  • HadIt.com Elder

If the VA did not consider evidence of unemployability would that be a CUE?

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