tdiu I've Been Away From This Board For Awhile, And Got A Little Rusty

vaf · March 17, 2012

Hi everyone,

I've been tied up trying to deal with four simultaneous Board remands on different claims for my husband, and am now turning my attention back to a claim that I don't know what to do with as to my next step. I need some guidance, and I looked over the Bradley v. Peake information here and can't find (or overlooked) what I need. Plus, I've lost some of the knowledge I gained from this board since my last visit. Can I come to you for advice, please? I apologize for the length of this.

The basic question is what does one do when the VARO refuses to accept a claim as a claim, tells the veteran they won't consider it via a perfunctory statement without any evidence list, or Reasons and Basis provided?

My husband has been rated 100% schedular P & T since August 2003 (prior to that, 90% since August 1993). His highest rating is 60%, so he is not TDIU. Above that 100% schedular rating, he was subsequently given, in November 2007, an additional 50% rating for sleep apnea, and 30% rating for bilateral cataracts, unrelated to any previously rated conditions.

My husband went on Social Security disability in September 2007 due solely to three disabling conditions that are service-connected at 60%,40%, and at the time we filed for his SSD, 30%. Recently, that 30% disability rating for Organic Mental Syndrome he's held since August 1993 was raised to 50% disabling effective November 2011. We are appealing the effective date since this has been an open claim since 1993 (bounced around between the VARO, the Board, and the Court several times since 1993).

In August 2010, we filed for SMC based on statutory eligibility when we heard about the Bradley v. Peake decision. We had asked if it would be more beneficial to the veteran to be considered for TDIU status in order to be considered for SMC under Bradley v. Peake. The VARO subsequently sent a VCAA notice dated September 2010, that addressed a different claim, but in that same VCAA notice, the VARO stated the following:

"We received your claim for a toptal disability rating based on unemployability; however, our records indicate that you are already receiving a 100% combined disability rating. Therefore, the issue of individual unemployability will not be considered"

In response, we wrote the VARO in September 2010, telling them that although their correspondence to us was not presented to us as a formal Rating Decision, it clearly carried the same force and indicated it was final. The VARO did not provide any legal citations, any evidence, any reasons or bases for its decision. We added that we were treating their statement the same as if it were a Rating Decision, and that our response was to be interpreted as our formal Notice of Disagreement.

We have not heard a word since, there has been no Statement of the Case provided to us, and I believe this claim is not being viewed as a claim.

To support our position, I brought up the fact that in Acosta v. Principi, 18 Vet. App. 53 (2004), the Court of Appeals for Veterans Claims pointed out that the considerations for TDIU and schedular ratings are different, and, if a schedular rating should be reduced for some reason, the TDIU could conceivably remain in place, so the benefits are not strictly congruent. Also in Acosta, the Court stated:

"Furthermore, the Court has previously concluded that schedular and extraschedular rating increase claims are not necessarily "inextricably intertwined" with TDIU rating claims predicated on the same condition. Colayong v. West, 12 Vet. App. 524, 537 (1999). Taking this into consideration along with the benefits that come with a 100% schedular rating that are not available under a TDIU rating, it is evident that the award of TDIU rating does not moot a claim for a 100% schedular rating."

We expected a challenge over our argument that the decision also applied in reverse, that the award of a 100% schedular rating does not moot a TDIU rating, either.

In Bradley v. Peake, the Court made it clear that the VA could not require one condition rated as 100% disabling to be a precursor for SMC(s) benefits. The Court held that Section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100% - it includes a disability that would support the grant of IU. In addition, the Court held that when a veteran has several service-connected conditions that combine to a 100% evaluation, if the veteran would be monetarily advantaged by having just one service-connected condition support a total IU rating and the veteran has other service-connected conditions, which combined are at least 60% disabling, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran.

Additionally, SMC benefits must be granted when a veteran becomes eligible without need for a separate claim (Akles v. Derwinski, 1 Vet. App. 118,121 (1991).

It appears the VARO is ignoring us. How does one CUE an agency that won't even acknowldge that the claim exists? I know they received everything because I have the certified mail receipts that prove it.

Or, am I totally wrong in my interpretation of my husband's eligibility for consideration under Acosta?

.

Berta · March 18, 2012

As Teac said:

“The problem is that you need to prove that he could justify a TDIU rating. If you can justify a TDIU rating based on medical evidence, and a work history that shows the veteran is unable to work because of a specific disability then you might then have a case for the TDIU and SMC, if he has a seperate rating of 60%.”

I am a little familiar with pituitary brain tumors.One of my husband's (an army vet) had one and the SSDI granted solely on the disabling affects of it after surgery. I assume your husband's organic mental syndrome is solely due to the tumor situation.But I could be wrong.

What is the SSA award actually for, when did he get this award, and when did he formally apply for TDIU on the 21-8940 form?

The reason I ask is ,if the SSA award is solely for the tumor and residuals and TDIU had been requested prior to the VA 100%award, I agree with others here that a lawyer could potentially consider

filing a CUE if at some point there was any unappealed denied decision on TDIU ,that preceded the 100% award.

“60% residuals from pituitary brain tumor surgery as of August 1993 (under Board remand)

50% organic mental syndrome (30% as of August 1993, 50% as of November 2011 - open claim “

Can you tell us the diagnostic codes they used for these two ratings?

Can you tell us what the third condition was for, that SSDI awarded on? They award diferently than VA so I am trying to see if it is also due to the primary tumor condition.

Mandamus-the problem with Writs of Mandamus require every avenue of ap[peal being echausted first,except in unusual situations.

A lawyer could also assess the potential for that.

Bradley V Peake:

We just did a show last week ,discussing Bradley V Peake about 18 minutes into the show, with Carrie Weletz , lawyer fro Bergmann and Moore law firm:

http://www.svr-radio.com/archives.html

I think I commented on the Bradley decision that it is basically 'cut and dried.'

You stated:

“In addition, the Court held that when a veteran has several service-connected conditions that combine to a 100% evaluation, if the veteran would be monetarily advantaged by having just one service-connected condition support a total IU rating and the veteran has other service-connected conditions, which combined are at least 60% disabling, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran.”

That is the key to TDIU- one sole SC condition .

This is the problem here:

“100% combined disability rating.”

It might well take an independent medical opinion that considers the SSA records and the primary disability to see if this should not be a combined 100% rating, but in fact TDIU, solely based on one prime SC rating, to hopefully set the stage for SMC.

Then a lawyer could CUE this statement if there is no past unappealed denial of TDIU.:

“In response, we wrote the VARO in September 2010, telling them that although their correspondence to us was not presented to us as a formal Rating Decision, it clearly carried the same force and indicated it was final. “

To add you stated :

“Additionally, SMC benefits must be granted when a veteran becomes eligible without need for a separate claim (Akles v. Derwinski, 1 Vet. App. 118,121 (1991). “

Right- and I had to file a CUE claim on this in 2004, finally awarded this January.

The VA in their numerous multiple and futile attempts to deny the CUE claim, for 7 years, stated that since my husband never asked for SMC in his lifetime, this was one reason for denial.

When I asked for them to produce any established VA reg or case law on that one,-they didn't respond as there is no reg or case law that says that.

The very date the veterans becomes eligible for SMC, by ratings and medical evidence,the VA is mandated by statute to consider SMC.

My husband was 100% SC PTSD P & T and the accrued award in part was for SMC CUE under 1151 regarding a CVA.

It was rated 100% and paid for 6 months,then they paid “S for 2 years on that. but the reality is it was P & T at 100% until my husbands died.

Maybe the fact this was an 1151 award for the CUE is why TDIU was not an issue -I need to read their long decision again.

But SSA had awarded solely for CVA at first ,then upon reconsideration SSDI solely for the PTSD.

The VA has never even acknowledged my husband's formal TDIU claim.

This is why it would be beneficial to you to see if in fact, the SSDI award was solely for residuals of the prime pituitary condition, and to no other separate medical cause.

As Capt Contaminate always says NEVER GIVE UP!

I liked the Voodoo doll reference! My husband said his claim problems before he died was due to the 'billboard'-

I asked What billboard, and he replied,. The one across the street from the Buffalo VARO that says "F--- this veteran-Rod Simmons!"