tdiu Nod For Award Date

[DVET]

I recently was awarded 50% for Dysthymia but denied the deferred unemployability portion of the claim. I noticed that my VA doctor and the mental health clinic diagnosed me with Dysthymia, Biplolar, Depression, back in 2007. I was denied service connection for Bipolar in 2009, so I filed for depression in Feb. 2011. That's what I was awarded Dysthymia for effective April 2011.

My question is does anyone think I can win at the DRO level an award date of January 2007 instead of April 2011 due to my VA mental health clinic records showing the diagnosis since then. I don't know why they used the date that I filed the latest claim. I thought they would see the Dysthymia in my medical records. Thank you.

[Philip Rogers]

Yes, it could be possible. I would pursue it as an unaddressed or open informal claim, dating back to 2007. jmo

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[broncovet]

Its the famous VARO "1-2-3-4" punch.

First, they delay you. Then, they Deny you. Then they lowball you. Then, they trash you on the effective date.

I call it DDLT.

If you dont fight DDLT every step of the way, then you lose.

[DVET]

Thank you for your reply's. I received my award letter for the Dysthymia in August. So I did send in an NOD with copies of the diagnosis from my VA records. I read that the benefits should be effective from the date of diagnosis and treatment records or when you file the claim. I hope they accept it. Thanks again, you give me hope.

[broncovet]

Yes. The effective date is supposed to be the later of the "facts found" or the date you filed the claim.

You mentioned unemployability.

The VA used to give the date they received your 21-8940 as the effective date, but they are not supposed to do that anymore, and that form is no longer requred for TDIU.

I am curious..you said "denied deferred". That does not make sense to me. If your claim is deferred, it has not been decided yet. If it is denied, then it has been decided.

Maybe you meant they deferred it, then later denied it.

This would indicate that they got some negative evidence from somewhere.

When the VA shreds evidence, they often hoodwink you on the effective date, too.

[DVET]

Sorry, I did mean deferred for unemployabiliy and later denied. I was only awarded Dysthmia in August and deferred on unemployability, which was denied in September 2012. Since it was on the same claim I filed the NOD for an earlier effective date for the Dysthmia. I went back to work in October 2008. I was on disability retirement from Feb 2006-Oct. 2008. I have been submitting claims since Feb 2006 most denied. My claim for unemployability is only for the time frame I was out of work due to a fourth back surgery.

I received ssa disability, but the VA says I am denied because I didn't have one disability that was 60% or the 40% and others totaling 70%. Plus SS mentioned degenerative knee and depression which were not service connected during that time. Plus the fact some appeal for temporary 100% time frame has elapsed.

I am countering that at the time I was 40% and if they award me the Dysthmia earlier as is in their records where SS got the depression from, it's right there, then I would meet the unemployability requirement because that alone would give me 70% at that time. Plus the fact I applied for depression and bipolar and they denied me. Now they want to finally recognize it and awarded it but as Dysthmia. I wax on100% convalescence from March 2006 thru August 2006 and on disability retirement. I knew nothing about unemployability, yet I was being treated in the mental health clinic at this same time and continue to this day.

Sorry it was so long. I feel I got that off my chest though. If you read all I wrote thanks for your time and listening. You people on here are awesome.

Thank you

[Philip Rogers]

Sorry, I did mean deferred for unemployabiliy and later denied. I was only awarded Dysthmia in August and deferred on unemployability, which was denied in September 2012. Since it was on the same claim I filed the NOD for an earlier effective date for the Dysthmia. I went back to work in October 2008. I was on disability retirement from Feb 2006-Oct. 2008. I have been submitting claims since Feb 2006 most denied. My claim for unemployability is only for the time frame I was out of work due to a fourth back surgery.

I received ssa disability, but the VA says I am denied because I didn't have one disability that was 60% or the 40% and others totaling 70%. Plus SS mentioned degenerative knee and depression which were not service connected during that time. Plus the fact some appeal for temporary 100% time frame has elapsed.

I am countering that at the time I was 40% and if they award me the Dysthmia earlier as is in their records where SS got the depression from, it's right there, then I would meet the unemployability requirement because that alone would give me 70% at that time. Plus the fact I applied for depression and bipolar and they denied me. Now they want to finally recognize it and awarded it but as Dysthmia. I wax on100% convalescence from March 2006 thru August 2006 and on disability retirement. I knew nothing about unemployability, yet I was being treated in the mental health clinic at this same time and continue to this day.

Sorry it was so long. I feel I got that off my chest though. If you read all I wrote thanks for your time and listening. You people on here are awesome.

Thank you

The VA routinely denies TDIU by quoting 38 CFR 4.16(a), which they quoted to you. They did the same thing to me over 20 yrs ago. Their goal is to mislead you and get you to give up your claim. I truly believe they do it intentially!!! If you are unable to work due to your SC disabilities then I would mention 38 CFR 4.16(b) and request an extra-schedular rating. jmo

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Edited October 13, 2012 by Philip Rogers