tdiu Tdiu Retro Pay How Far Back?

[walt]

Good Morning Everyone,

I was denied claim for four conditions in 2001.that was opened in 2000. They were copd,high blood pressure, premature ventricular conractions, and anxiety.The reason for denial was given that the conditions neither ocurred in or was a cause of being in service.They stated that,"we requested records from St louis.St louis notified us they were sent but we have not received them. If these records are subsequently received claim will be reconsidered with date of claim protection. " Also there were two periods of service that they did not have my dd 214's. They have all this now. In the denial they said in the facts:" the vetran has submitted evidence he was diagnosed wtih" (the four conditions).They also used the phrase,"treatment records show" These were smr's I sent.Yet they denied saying " condition neither occurred in or was caused by service" Only thing I can think of is because they did not have two of the 214's.

I have tried to be as clear as I can. The above is backgound to help with what I would like to know.They auto matically opened my claim for the "Neimer review".Why I do not know except because of ischemic heart disease and prostate cancer.Still it should have been clear I was not in Viet Nam but Korea and missed presumptive date for prostate cancer due to AO in Korea by Five Months.

My present claim is in review and decision phase for second time.This time after C and P exam.It went back to RO 15 Feb. Report by VA Dr.As to anxiety claim......Diagnosis..Panic disorder.Symptoms that apply-depressedmood,anxiety,suspiciousness,panic attacks that occur weekly or less often,panic attacks more than once a week,mild memory loss,such as forgetting names,directions,or recent events.Flattened affect,circumstantial,circumlocutory,or steerotyped speech..... Axis lV -psychosocial and environmental problems socially isolated,lives alone.very litle social contact. .axis V Gaf 60

IMO by civilian Psychiarist.....Panic disorder with agoraphobia.secondary generalized anxiety disorder.AxisIII copd,cad,ddd,history of prostate cancer,osteoarthritis.Axis IV..Moderate Axis V 50 with highest being 60. This is a four page report ending with..Specifically then in regards to the patient's illness and his military service I can clearly say that this illness began during his military service however I can not say with certainty wherther his military service caused this illness.

IMO from PHY Assistant at local clinic...Two pages ending with....Veteran has been a patient at our clinic since 2010.After reviewing Veterans medical recorde it is my opinion that Veteran is totally and permanently disabled by chronic anxiety disorder,aggravated greatly by low back pain.. He cannot hold gainful employment because of these service relaed issues.

It is my opinion that Veterans chronic Anxietydisorder is more likely than not due to his active service duty.It is also my opinion that his low back pain is at least as likely as not related to his active service duty.

I have a letter from a former soldier I served with in Korea. He was the company clerk and tell about me being sent to the DMZ twice TDY.Just this in case by some chance they service connect the prostate cancer.As In said before I missed he Presumptive date by five months, I left there in Nov. 67

I have another letter from a fellow soldier I worked with on a dayly basis telling about the anxiety and low back pain.

I have several more ,about six or seven" Buddy" letters.telling about the anxiety and low back pain.

The c and p for arthritis and low back pain was done by a fee basis VA dr.and did me no good. He is same one that they asked an opinion for other conditions and I do not expect him to help any more there. Maybe wrong. I will know tommorrow when I go to release of info.

Long post I know.But wanted to give back ground.I reopened this claim 2 Feb.2010 and in June I filed for TDIU. I am hopeful to get at least a high enough rating for the TDIU at least,depending on what the opions are from this fee basis Dr. is on the other conditions and if I am able to get another IMO.IF I GET A HIGH ENOUGH RATING for TDIU,will the retro be to June when I asked for TDIU or will it go back to original denied claim of 2000?

Thank you all for your help,......also forgot to add I am receiving 100% PENSION since 2004.

Anymore advice and help I will appreciate.

[john999]

Your IMO is no good. You should get your money back on that one. The doctor says he cannot say your conditions were caused by military????? That is what you are paying the guy to say. Let's be honest. If you have a copy of your SMR's and the VA does not then make a copy of your SMR's and give it to the VA along with a letter show nexus between your conditions and SMR reference and/or treatment and DX of these conditions in the military.

John

[walt]

Hello everyone and thank you for reply John.Too late to do anything now though.CLAIM WAS AT RATING AND REVIEW FOR SECOND TIME now back to gathering of evidence saying,"requested herbicide exposure documents".I was not in viet nam and left Korea November 67.Presumptive date for prostate cancer is 1 April 68 I think.

I would like your thoughts on where claim now stands.I have had two c and p exams and va asked for opinion on two other conditions without exam. Same fee basis va Dr.that gave a negative from c and p for arthritis of thumbs and low back pain gave opinion for copd and hypertension. I am confused as to what it may mean. He said....The condition /disability Hypertension IS AS LIKELY AS NOT(GREATER THAN 50/50 probability)caused by or a result of Military service. But then he seems to try to shoot that down. he furher states...rationale for opinion given. Hypertension was followed in service and values are mostly within normal limits.When presenting for anxiety his BP is sometimes elevated and resolves with valium.Lopressor prescribed 12/15/80 but it is unclear as to whether it was continued.I have not taken Valium since late 70's) Other comment:There are also episodes of palpatations but do not appear to be associated with Hypertension. .(Records clearly show I am taking FIVE BP meds. a day at present and did take at least that many different ones at different times while in service.These are also shown in my SMR's.He also says ,there is confusion in the service Record as to the period of service.(I had four periods)

As to COPD he says .....The condition/dissability COPD IS AS LIKELY AS NOT (Greater than 50/50 probability caused by or a result of military service. Rationale for opinion given:Veteran has been treated for episodes of Bronchitis and x rays showed slight emphysematous changes .The pft's wee within normal limits and a definitive diagnosis of copd does not appear to have been made with substantial evidence.Nonetheless the x ray evidence seems to show thwtt there were someemphysematous changes as early as 1/26/79.

I really think whoever He,She,The rater is are really trying to help me. These three conditions are three of the four I was denied for in 2001,Filed original claim in 2000. The fourth one was Pre ventricular contractions.

I filed my present claim in Feb.Last year.Then in June I was approved for emergency expedition for health and financial reasons and at same time applied for TDIU. There is a lot I want to show wrong and omitted by the Dr. that gave neg for LBP and Arthritis And the two conditions he says are service connected. but I am thinking the thing to do now is wait on the decision and go from there. Am I right on that? Also, do I stand a chance of retro back to 2000 as they said in the denial that if records were subsquently received the claim would be reconsidered with date of claim protection.? Or will me filing for TDIU stop that? Any more advice and opinion you Folks can and will give me is appreciated. Walt

[Berta]

The VA expanded its definition of AO Korean veterans about a year ago:

“Veterans who served in a unit in or near the Korean demilitarized zone (DMZ) anytime between April 1, 1968 and August 31, 1971 and who have a disease VA recognizes as associated with Agent Orange exposure are presumed to have been exposed to herbicides. These Veterans do not have to show they were exposed to Agent Orange to be eligible for disability compensation for these diseases.

VA and the Department of Defense must determine the Veteran’s unit operated in the DMZ area and the Veteran was physically there.

VA's final regulation presuming herbicide exposure for these Veterans took effect on February 24, 2011.”

http://www.publichealth.va.gov/exposures/agentorange/korea.asp

Are you able to scan and attach copies of those C &P results here?

Cover names, C file number etc if you can scan it.

[Berta]

I had to leave my PC quickly ( I posted at 5.56 AM but farm business happens early in the boonies and didnt really finish the reply-sorry)

You appear to be out of the Korean AO reg criteria as you said you left Korea in Nov 1967.

'As to COPD he says .....The condition/dissability COPD IS AS LIKELY AS NOT (Greater than 50/50 probability caused by or a result of military service. Rationale for opinion given:Veteran has been treated for episodes of Bronchitis and x rays showed slight emphysematous changes .The pft's wee within normal limits and a definitive diagnosis of copd does not appear to have been made with substantial evidence.Nonetheless the x ray evidence seems to show thwtt there were someemphysematous changes as early as 1/26/79."

That is a strong statement in your favor.

"When presenting for anxiety his BP is sometimes elevated and resolves with valium.Lopressor prescribed 12/15/80 but it is unclear as to whether it was continued.I have not taken Valium since late 70's) Other comment:There are also episodes of palpatations but do not appear to be associated with Hypertension. .(Records clearly show I am taking FIVE BP meds. a day at present and did take at least that many different ones at different times while in service.These are also shown in my SMR's.He also says ,there is confusion in the service Record as to the period of service.(I had four periods)"

Are you currently diagniosed with and treated for anxiety?

Yes, the VA can become confused when ther are multiple service periods.

"Also, do I stand a chance of retro back to 2000 as they said in the denial that if records were subsquently received the claim would be reconsidered with date of claim protection.? "

I agree on that as to the HBP and COPD if those claims succeed.

"Or will me filing for TDIU stop that? Any more advice and opinion you Folks can and will give me is appreciated. Walt "

If the VA awards TDIU they will use the date of the TDIU form you signed and sent for that

(unless you get SSDI solely for SCs and the SSA award preceded the TDIU form date.)

And if they know you get SSDI

VA can make an initial rating on SC disabilities and then award TDIU as well in process of a claim.

What I mean is say a vet files in 2000 for 3 disabilties, VA denies 2 but the evidence clearly warrants a 50% SC award on one of them.

SInce filing her claim she applied for and received a SSA disability award solely for what VA gave her the 100% for.

She files for TDIU with the SSA award info during the claims process.

The VA could give her a rating of the 50% up to the TDIU EED they determine, and then TDIU from that point on.

Edited March 9, 2012 by Berta

[broncovet]

I agree, Berta, that the VA will often use the date the Veteran sends back the TDIU form as the effective date, but in many cases this means the Veteran can successfully appeal the effective date. This NSO explains it rather well:

Many VA Rating Specialists miss the legal obligation to infer claims for TDIU once the claimant becomes schedularly entitled (see 38 C.F.R. 4.16a) and there is evidence within the claims file of unemployability due to service connected disabilities.

It is the VA's burden once a veteran is schedularly entitled to TDIU, and there is evidence in the claims file of service-connected unemployability, i.e. evidence of a statement, assertions, or assessment from the veteran or his/her doctor that they are unemployable due to SC'd conditions, to comply with the Court's precedent as follows:

In Comer v. Peake (2009) the Court held, “[R]egardless of whether [a] claim is specifically labeled as a claim for TDIU,” the VA is obligated to “determine all potential claims raised by the evidence.” Accordingly, the VA must consider whether a TDIU award is warranted whenever “a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability.”

In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but

without regard to age

, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VA OPGC PREC 75-91 (O.G.C. Prec. 75-91).

With regard to TDIU, the Court of Appeals for Veterans Claims (Court) has determined that a TDIU claim is "merely an alternate way to obtain a total disability rating without

being rated 100 percent disabled under the rating schedule." Norris v. West, 12 Vet. App. 413, 421 (1999). Any evidence in the claims file or under VA control (see Bell v. Derwinski, 2 Vet. App. 611 (1992)(pertaining to constructive custody) submitted subsequent to an original increased rating claim that indicates that there is "current service-connected unemployability" requires adjudication of the "reasonably raised" claim for a TDIU. Norris v. West, 12 Vet. App. 413, 421 (1999).

***The Court's precedent to infer claims for TDIU begins with Norris v. West (1999) and has continued through Rice v. Shinseki (2009).***

The VA Form 21-8940, Application for Increased Compensation Based on Unemployability, is the

prescribed form for claiming individual unemployability (TDIU). Generally, the VA will require that a veteran complete and submit a VA Form 21-8940 before it will formally pay a claim for TDIU benefits.

***In some instances based on other Court decisions, namely Nehmer v. Secy' Department of Veterans' Affairs the internal directive has changed slightly.***

However, a veteran is not required to file this application form before the VA is obligated to consider and adjudicate a TDIU claim. When a veteran files an original claim for evaluation of a disability or a claim for an increase in the evaluation of a disability that has already been rated by the VA, the claimant is generally presumed to be seeking the highest benefit allowable. See AB v. Brown, 6 Vet. App. 35, 38 (1983); see also Roberson v. Principi, 251 F.3d 1378, 1383 (Fed. Cir. 2001); Norris v. West, 12 Vet. App. 413, 421 (1999).

Equally, when a claimant or the evidence of record reasonably raises a an informal claim for TDIU, the Secretary must furnish the claimant the form (VAF 21-8940) as prescribed by the Secretary. (38 C.F.R. 3.160)

***The VA Decision/Notification Letter should at least include a VA form 21-8940 as an attachment.***

If the VA has failed in compliance of any of the aforementioned on a failure to infer a claim for TDIU, then the veteran may have a basis to file a Clear and Unmistakable Error (CUE), these are very specific allegations of error, that are essentially a facial, and collateral attack on VA, and are given no deference via the VA's "duty to assist", nor is there ANY application of reasonable doubt doctrine (38 C.F.R. 3.102).

Clear an Unmistakable Errors are errors which are undebatable, in this context if the law at the time of the decision was incorrectly applied, and that the decision would have been “manifestly different but for the alleged error".

If you feel the VA may have failed to consider your claim for service connection/increased evaluation as an additional claim Individual Unemployability then you may want to confer with a National Service Officer or attorney-in-fact with a recognized and Congressionally Chartered Service Organization, who is accredited to represent VA claims.

These are errors we find sometimes weeks sometimes years after a claimant was awarded benefits which made him or her entitled to a TDIU award. This posting is made as a point of discussion and for members of military.com to discuss and explore.

[walt]

Hello and thank you all.

Berta, I a lot of times do not make things as clear as I should and I am sorry. I did not add that a VA Dr.( Phy).gave me a c and p for chronic anxiety. I left part of what he said out of the previous post...."The condition/dissability Panic disorder IS MOST LIKELY CAUSED BY OR A RESULT OF SERVICE IN THE US ARMY.

I also have an IMO from a civilian PHY.That says in diagnostic assessment: AXIS I:Panic disorder with Agoraphobia.,Secondary Generalized Anxiety disorder AXIS II no diagnosis AXIS III Chronic COPD,CAD,DDD,History of prostate Cancer,Osteoarthritis,AXIS IV Moderate,AXIS V 50 with the highest level being 60. It is a four page report and goes into quite some depth.But as John pointed out in his ending paragraph he stated he could not say with certainty whether his military service caused this illness. In the sentence preceeding he said....Specifically then in regards to the patient's illness and his military serviceI I can clearly say that this illness began during his military service. I just did not study it well enough before submiting it. The c and p DR. wrote his after this one. Will his opinion overide this one since he is a VA Dr.? Will this one have any effect on the claim for panic disorder?

Berta I will scan everything later tonight or early AM and post when my head is clear.Hopefully clear.

Thank you all for your help. I hesitate to name everyone because I would surely forget some.

I forgot to mention....I do not receive SS retirement yet and cannot get SS dissability because of not enough credits.I will be 66 in October and am thinking of waiting until then to began drawing it.I have been receiving VA pension at 100% since age 58.This claim was opened/reopened in Feb, 2011.I applied for TDIU in June of 2011...Submitted the form 8940? I think and also the one from previous employment history.Since these three conditions ,chronic anxiety,COPD,and Hypertension were three of the four I was denied for in 2001,I was hoping for a bucket full of retro.They stated in denial if records were subsquently received ,claim would be reconsidered with date of claim protection. At this point That would be great,TDIU would work also and just the check at !00% would be acceptable I guess. Berta I think you asked if I was currently being treated for Anxiety...Two pills a day out of the 9-10 I take dayly. Clonazepam and citalopram hydrobromide.plus about five for blood pressure,bipap machine,nebulizer,O2 which I have to pay for because they say I do not Qualify for because when they give the test of walking up and the hall and a few stairsteps my o2 sat. does not drop low enough,yet one night I barely got ens in time and Wgen they arrived I passed out and sat was 45% and they told me if I had not got them when I did I would probably would not have survived.I live alone so that adds to the panic ..Must have at least two dozen trios to er in last eighteen months.Most of time Diagnosis is chronic anxiety,panic and /or bronchitis Getting a little off base.

Thank you everyone,for your help and God Bless You All.

Walt