tdiu Extra Schedular Consideration For Iu Retroactively

[broncovet]

As many of you know, I recently got a BVA remand/denial/award. The remand portion is to remand consideration back to the RO for TDIU retroactively. In other words, I applied for TDIU back in 2002, and it was not adjuticated until 2008, where it was denied as it was "moot" as I was awarded 100% schedular. However, my schedular rating only went back to 2006, so the Board is remanding my tdiu claim back to the RO meaning I have a potential to be awarded TDIU from 2002-2007.

I am in a pickle as to what to do. My choices are:

1. Do nothing and wait to see if Tdiu is awarded by the RO, per the BVA remand, which specifically states I should be referred to VACO for extra schedular consideration for TDIU as I did not meet the "regular" TDIU criteria with only a 40% rating. If I did this, I would be "committed" to going for TDIU and basically "giving up" any chance of getting 100% schedualr retro to 2002, because of no appeal to the board makes it die.

2. File a MFR at the Board level, because the BOard did not address all my issues, and especially did not address my allegations of shredding. I contend entitltement to an EED based on the shredding of evidence which would have rendered a 2002 effective date.

3. Go ahead and appeal to the CAVC and skip the MFR. The problem with this is I can not introduce "new" evidence to the CAVC, and I dont know what evidence the Board had when they made their decision, as I dont know the extent of the shredding.

Of course, I am considering a lawyer at this point, but there are even delays obtaining a lawyer, and I am trying to keep what little sanity I have left, as it is very frustrating as I know this decision could be critical in determining the retro. I lost my home to foreclosure due to the VA shredding my evidence and now I have vowed to get my home back with the retro. (Or one like it if that one is not available)

[Berta]

“ per the BVA remand, which specifically states I should be referred to VACO for extra schedular consideration for TDIU as I did not meet the "regular" TDIU criteria with only a 40% rating “

" If I did this, I would be "committed" to going for TDIU and basically "giving up" any chance of getting 100% schedualr retro to 2002, because of no appeal to the board makes it die.

Would that be a bad thing as to the TDIU ? The comp would be the same.

Maybe I am missing something there.

Since receiving the remand has the RO provided you with any correspondence such as referenced in this BVA decision>:

http://www.va.gov/ve...es2/1015063.txt

In part:

“1. Provide the Veteran written notification specific to the claim for an extras-chedular rating for his back disability under 38 C.F.R. § 3.321(b)(1), to include informing him of the relevancy of any evidence from an employer or former employer relating to his claim of significant work impairment caused by his back disability. See Thun discussion, above.”

that is worded specifically regarding your claim. The Thun discussion in this decision is critical to these types of claims.(Thun V Peake)

in part: “Subsequent to the prior remand, however, the United States Court of Appeals for Veterans Claims has set forth a three- step analysis which provides additional guidance in determining whether referral for extras-chedular consideration is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008).” The decision goes on to explain Thun further. One question I have is whether Thun only ap[lies to those claims remanded for extraschedular consideration,after the CAVC Thun decision or can cover claims filed prior to Thun as well.....??????

Edited September 12, 2012 by Berta

[deanbrt]

the extra scheduler is a long shot, at best. I am one of the very few that was ever referred to VACO for it so you would have cleared a major hurdle just getting there. But even in my case I was turned down after an initial remand.

If IU gets you the retro, what is the downside? You cannot work, that is true

[broncovet]

Thanks Berta, and Deanbrt

The retroactive TDIU would be great! The money would spend the same, as no one will ask me if this was tdiu retro I was paying for this item or was it 100% schedular..the money is the same. It would almost be as good as an eed for 100% schedular, except for I get more "protections" as far as ratings go so it would be harder for the VA to reduce me if I had 10 years of schedular. rather than 5 years schedular and 5 years tdiu. Mind you, I am not complaining about TDIU retro for 5 years..I love the idea..BUT..will it happen, and if it does not, did I just "burn down the bridge" for a 2002 retro for 100% schedular?

(I am afraid by not appealing the 2012 Board decision, allowing it to become final, would essentially "terminate" my eed claim for 100% schedular, as I would then be forced to try to prove CUE, and, if I place all my bets on TDIU retro, that is what would happen)

This "forces my hand" and would appear I have to choose whether to persue TDIU (non schedular) or eed on depression, but not both. I really dont want to "drop" either claim, but want to persue the most likely to bear fruit.

Deanbrt..there really is no downside to tdiu, and I have passed the "rater" as the Board has already direceted that tdiu be sent to vaco for extra schedular consideration. To meet extra schedular consideration for TDIU, I have to have "unusual circumstances".

About the only "unusual circumstance" I can cite is that I had shredded evidence. I wonder if that will work?

yes, I was unemployed and likely unemployable in 2002.

Edited September 12, 2012 by broncovet

[broncovet]

Good point, Berta, and I dont know if Thun would apply either, as it was apparently in 2008.

The decision Rice vs Shinseki (CAVC), which cited Thun suggests that, since their is no "freestanding" claim for IU, then they would have to also consider depression, since that is the condition to which they are attaching IU on. It says it this way:

Mr. Rice argues that his request for TDIU should be considered part of the determination of

the appropriate disability rating in the adjudication of his claim for disability compensation for

PTSD, rather than as a freestanding claim for a separate benefit. In this case, he is correct; there is

no freestanding claim for TDIU

...end of Rice quote...

So, maybe since the BOard is trying to "create" a freestanding claim for IU, at least so it would appear, then I could appeal this at the CAVC.

[broncovet]

I will ask a related, question Berta.

I understand that you can not appeal a "remand". ...you have to let it run its course, and then appeal if you dont like the RO's implementation of the Remand, I guess back to the Board. So, if the Board remands, the RO denies based on the remand, and the Vet appeals the RO decision, I guess that would keep the claim pending right? The expiration of the Board decision appeal period would not apply because you have continiously prosecuted the claim..

This would indicate I could wait for the results of the remand, then appeal the RO decision if I did not like it, and its back to the board again, and onto the CAVC if necessary, or so I am guessing.

[deanbrt]

The thing that would concern me (and it is true for myself) is that if you get IU and push for something new, everything gets opened back up for review, including your IU.....