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

[vaf]

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]

Teac is right on the mark here VAF.

And asked:

“From what I can tell from your statements TDIU was never actually requested until after he received a 100% rating, and until after Bradley v Peake was decided.”

That is what I couldn't determine either .

With claims still at BVA on remand is it possible in all these years that have passed, that he applied for TDIU long ago and maybe forgot about it?

Has VA actually acnowledged receipt of his SSA records and then opined on them as to SC? These types of claims benefit from a good in depth review of every single thing, past rating decisions, past SOCs, all available med recs, and anything else that could be probative to the claim.

The VA acknowledged in my Nehmer decision a claim they said, for 17 years at Buffalo VARO, that my husband had never filed.

(although a copy came when I ordered my C file plus some of the other stuff they said didnt exist)

I fought them aggressively , (particularly since they knew the prime witness was dead) and I had just found more evidence of Rod's formal filing of the claim, when the Phila VARO, who can apparently read better then Buffalo, fully acnowledged that claim which was critical to my SMC CUE claim an AO IHD claim.

Last time I got a C file copy, (2003) it was Very enlightening.

When I ask for what else has transpired since,in it, I am sure to be surprised.

NVLSP and I both saw something very odd and unusual in my decision and I already asked for copies of those specific documents which might take sooner to get then the whole C file.

SOmetimes the VA decisions have to be read and read and read again and then- sometimes-

there are loopholes in them to pounce on.

Edited March 18, 2012 by Berta

[Capt.]

Hello VAF, Teac , and Berta,,,,,

I think Teac and Berta both have hit on something.....this timeline for you is lonnnnnng.....many years. The change in adding a disability including the TDIU and Bradley V Peake change in your midstream efforts. Berta asked if maybe there was a prior TDIU claim that maybe got filed but was not adjudicated or even lost or just forgotten about.

It seems that most of your problems and faulty decisions......which is basically all of us who have dealt initially with ROs seems always to be the main problem. Hence birthing the BVA to correct their lack of correct application to the CFRs. Its just a way of life if you are going thru the claims process and has been that way long before most of us had any claims turned in. Personally I just think it should be BVA with no one allowed to adjudicate a claim at a Regional Office. Let the courts rule and save the time , money wasted and let the LAW decide on the merits of the strength and weakness of your claim.

Like Teac pointed out , maybe using a lawyer or at least let one look at it for an opinion could work. I am not sure of a CUE being possible yet. If it is a CUE it may not be a super strong case unless you can prove the first requirement of the error making a huge error(MANIFESTLY DIFFERENT) on the decision AFFECTING THE OUTCOME OF THE CASE. (See the Purpleheart.com post from Broncovet archived here) Even with the timeline mess could cause a problem with it. You may want to look at Donovan V West 1997 which could fit this.

Also I am sorry it sounds like I am attacking the VA but actually if a Veteran does not aggressively "attack" the VA and I am more specific to the Regional Offices and all the faulty decisions and mistakes, then a Veteran is going nowhere except a long wait. I personally know what they have done to me...... I think all of us have our share of horror stories........ Hence the birth of Hadit speaks for what I am talking about.

The following may help you see what you may have open to you. It was this report I saw last week from reviewing it that reminded me of your claims and case.

TDIU

The VLG focuses on representing disabled veterans, who are unable to work due to one or more service-connected disabilities. A veteran is entitled to a 100% disability rating if he can establish that his service-connected disability[ies] preclude him from obtaining gainful employment. In VA law, such claims frequently go by the abbreviation “TDIU”, referring to a Total Disability rating based upon Individual Unemployability. It is a common misunderstanding that a veteran can only qualify for a TDIU rating if he meets certain percentage disability requirements: namely, a single service-connected disability rating of 60%, or a combined service-connected disability rating of 70%. Unfortunately, through many of its notices to veterans, the VA is largely responsible for this misunderstanding. The truth is that a veteran can qualify for a TDIU rating any time one or more of his service-connected disability[ies] prevents him from obtaining employment, regardless of the percentage of the disability rating.

Testimonial

"The Veteran's Law Group helped me with my TDIU claim and I received all of the benefits I was due. - Eric Example

TDIU FAQ

What is the difference between a claim for total disability based based upon individual unemployability (TDIU) and a claim for an extra-scheduler disability rating?

The VA generally refers to a claim as a TDIU claim when two conditions are met: 1) a veteran has one service-connected disability with a 60% or more disability rating, or has two or more service-connected disabilities with a combined rating of 70% or more, and 2) there is medical evidence of unemployability. If the veteran satisfies these two conditions, then he will be entitled to a 100% disability rating, even though he does not satisfy that 100% disability rating under the schedule. See 38 C.F.R. §4.16(a)

An extra-schedular rating, on the other hand, applies to veterans who are unemployable due to their service-connected disability(ies), but whose disability(ies) does not meet the percentage requirements under §4.16(a). See 38 C.F.R. §4.16(b.)

A veteran can be rated 100% disabled under both a TDIU or extra-schedular theory. See Bowling v. Principi, 15 Vet.App. 1, 5-9 (2001).

PLEASE READ..... Resources

Department of Veteran's Affairs Training Letter

TDIU Published Opinion

This link from Vets Law group is pretty specific and may only be complicated because of the timelines you have and maybe something in the process that the VA did not follow upon , even if you addressed it years ago. And the VA let it slip thru the cracks into hyperspace. Now that may be a chance for a CUE but thank God its not me because I cannot hardly tell you what happened 5 years ago let alone 19 years ago as with your claim. I hope your memory and records are secure ........LOL...... if they are I am envious because of it ....Sure miss those days of remembering better.

At any event I am still an advocate for using a lawyer when it seems the claim is going nohere because of shennagans and faulty decisions after SOC from ROs. And when you cannot get your claim moving again in the process due to the VA and its obstinence at the RO level. I hope all this will work in your favor and that your example of perservance which you have obviously shown, only adds to my comment............NEVER GIVE UP. God Bless, C.C.

Edited March 18, 2012 by Capt.Contaminate

[Teac]

The truth is that a veteran can qualify for a TDIU rating any time one or more of his service-connected disability[ies] prevents him from obtaining employment, regardless of the percentage of the disability rating.

The VA generally refers to a claim as a TDIU claim when two conditions are met: 1) a veteran has one service-connected disability with a 60% or more disability rating, or has two or more service-connected disabilities with a combined rating of 70% or more, and 2) there is medical evidence of unemployability. If the veteran satisfies these two conditions, then he will be entitled to a 100% disability rating, even though he does not satisfy that 100% disability rating under the schedule. See 38 C.F.R. §4.16(a)

An extra-schedular rating, on the other hand, applies to veterans who are unemployable due to their service-connected disability(ies), but whose disability(ies) does not meet the percentage requirements under §4.16(a). See 38 C.F.R. §4.16(b.)

A veteran can be rated 100% disabled under both a TDIU or extra-schedular theory. See Bowling v. Principi, 15 Vet.App. 1, 5-9 (2001).

All of the above is entirely correct. The problem with obtaining an extra-schedular award of TDIU is that it is almost impossible to get such an award. In fact, in all my years of dealing with the VA, I am only aware of one case of TDIU awarded extra schedular. I learned of it over at the VBN. But perhaps a problem just as bjg is that a regional office must refer the case for extra-schedular awards of TDIU, and I think, it most cases they just will not go out on a limb for fear of being smacked down for making such a referal.

The va seems to avoid at all cost to award TDIU via extra-schedular, in fact I think they would take the unusual step of increasing a disability to a level so that thay can award TDIU without using the extra-schedular route.

I don't think this case would ever be considered for extra-schedular consideration because of the 100% schedular rating, however maybe if one could find a very creative lawyer one could win such a case.

Edited March 18, 2012 by Teac

[Capt.]

Hello Teac, VAF, Berta,

I also agree with what you said and also agree that now that Lawyers can just recently in the last 4/12 yrs can represent a Veteran after the initial denial will open the door for more TDIU scheduler and additional disabilities to be granted. The SMC awards will ,,,, in my opinion be the key to this and the new rulings that will show the VA Regional Offices have been Prejudicial in their interpretations of the intention of TDIU and its fairness.

Now another way to correct this is thru the Senate and House Subcommittes by getting this to the table to be changed in the wording or phraseology to CLOSE this loophole that the ROs are incorrectly using.

OOkkkkkk.....here comes ......Its all about that four letter word.......FAIR. The ROs have not been fair with their heavy handed decisions. Even though as you pointed out a few have been adjudicated correctly ,,,,moreover for everyone that was awarded are thousands denied that were probably legal for a grant. More faulty decisions that need to be addressed.

It will be SMCs that will be utilized and the fact that 100 percent is still paid at any schedular or ancillarary or TDIU award. That is what is going to be on the table eventually.....FAIR and equitable. It will probably be a court opinion brewing now that will put this to bed and hopefully for the sake of all of our Vets .....forever.

As always NEVER GIVE UP. God Bless, C.C.

Edited March 18, 2012 by Capt.Contaminate

[vaf]

We're back, trying to parse through two file cabinets of VA paperwork to get some answers. We filed for unemployability in 1996, after a series of job losses within a very short period of time, due to his inability to learn new skills, lack of patience,mood swings and other reasons -- the claim was denied. We didn't pursue it because my husband thought he could perform better than he actually ended up being able to do -- he has always been a hard worker and prided himself in his vocation -- what he did for a living was pretty much who he was. He was formerly an air traffic controller watch supervisor, so trying to change his mind at that point in time was not something I was able to achieve, he viewed himself the way he used to be, not the way he actually was. He would not accept the facts. He had been through enough turmoil, having had to medically retire after over 20 years in the USAF, having his ATC ticket pulled for medical reasons, etc., I didn't want to make it worse for him. Plus, I was working, he had his military retirement coming in, we had some VA comp coming in, and we were also raising our daughter, etc. -- you know, just regular life stuff going on. So we let it go.

Eventually, it became apparent that he had been somewhat optimistic. There's a story with this that I won't bore you with, but just know that we did, in fact, file for IU after he had gone through approximately 3-5 jobs in fewer than 12 months. The list grew until 2000, when we found something he could do relatively well.

He had to retire in 2007, due to having to be on some serious pain medication for his spinal disorders (worked in a drug-free workplace environment), being required to learn new skills other than what he had been doing for awhile (through rote, the same actions over and over again, he could deal with the job, but new stuff while suffering with OMS is a challenge). By then, I suggested he apply for SSD and he got it. The SSA performed a mental functioning test that he didn't pass, it measured his ability to maintain an occupation (at some level), I have a copy of it. That and the medical evidence we provided regarding his spinal disorders were the basis for SSD.

Didn't Acosta indicate that the VA is wrong in requiring just one disorder rated at 100% if the veteran has a series of disorders that total 100%, one at least 60% (which he has), which formed the basis for his grant of SSD, in that in that case, the veteran should be considered for TDIU due to it being more financially advantageous to him when he would also possibly qualify for SMC(s)?

I would love to hand this over to an attorney, but in one of my previous posts, I discuss the challenge we've encountered with obtaining representation of a Bradley v Peake based. claim. Will come back later today when I have more ducks in a row.

I'm thinking that we're caught in a Catch 22. I want to file a writ petition pro se with the Court, but I suspect they'll deny it because I haven't been through due process with the VARO and the Board. But, the VARO is denying me access to due process, so where does that leave me? CUE the VARO? Will they deny that too, based on the VARO's obvious refusal to consider this as a bona fide claim?

Thanks again, everyone, I so appreciate you all!

[Capt.]

Hello VAF,

You have a complicated claim for sure and is going to take some careful work to get it past all the guards of denial that you have been up against. I am also understanding from your post that your Husbands past Air Controller position from the Air Force and then to Civilian is a well documented "High Stress" position which could prove very beneficial to you acquiring the high ground in the fight that is surely to come as you go forward. I would also like to ask you if you have considered a "new " IMO from all your records and help with this High Stress past job . One that could really get into the meat and potatoes and offer a new set of diagnosis and supported by the extensive records you have. It may well involve an attorney to sort it out and decide how to get it back on track. I am still convinced that there are several ways to move it ,,,,not discounting even a CUE though I may am not sure if you need it yet. You may also, with the help of a new Doctor with a "hot" IMO be able to use a "de novo" review. And I am still thinking like Hoppy brought up too that the writ of mandamus may also be needed to get it to first base.

You seem to have a good handle on your claim and I was reading Donovon v West which is a complicated case dealing with some similiarities of PTSD and Gastro Neurosis from many years ago before the terminology really had changed . A change in the way VA could rule on certain claims was also affected in 1997 opening the door for the Donovon case and his CUE and the Psyconeurosis . Gastro Neurosis disability was if I am correct in looking at it ....a key trigger to tie that together and his case was affirmed at the Federal Court.

You are right that the TDIU cannot hamper or stop a Veteran and if it means that adjudicating the claim in a way to financially help the claimant then the court must rule in his favor. Even when adding the TDIU and other percentages from other awarded claims added together. This has already been discussed.

I hope you can get a lawyer at this point and that they can look at it for the cause of applying the TDIU with extra schedulars and the SMC possibilities that could be in your favor with this new ruling.

At any event ,,,continue your persistance and NEVER GIVE UP. God Bless, C.C.

Edited March 19, 2012 by Capt.Contaminate