tdiu Question On 21-4140 Tdiu Form

[Berta]

As you all know,I have left claims advocacy to have input into the reasons for the backlog,with some suggestions I have developed.

There are countless ways in which time is wasted during the claims process after a claim is filed and I have identified some critical areas which I intend to bring to the TVC first and then determine the next step. The 4140 is only one brief area of my concern:

My question is (because I could not find the answer within M21-1MR Part IV, Subpart ii,Chapter 2, Section F under # 28 et all), is this:

What date generates the VA to send a TDIU veteran the important 21-4140 form?

The actual task of having that form generated comes from a “diary control” entry via the BDN and then Hines ITC

(Information Technology Center) actually generates the form.

The reason many vets don't get these forms (and thus VA tries to stop their TDIU comp) is due to a SNAFU either via the BDN or Hines ITC.

If this form could be included with the initial grant of TDIU , with the annual date it must be filled out,signed and sent and if the veteran was advised ,highlighted in the TDIU award letter, to make copies of it and mark their calendars every year or return of it (with proof of mailing from the PO) with a hyperlink ,in the award letter, as well for the 21-4140 on line,

the problems that could occur via the BDN or the Hines ITC could be eliminated and obviously the time it takes VA to deny future TDIU then wait for a new 21-4140 form to filed.

John 999 made this point here many years ago and it still is a solid piece of advice.

The 21-4140 is critical so it makes sense to me that TDIU should vets copy a blank form and mark their calendars when it is due annually. Of course that puts the 21-4140 onus on the veteran themselves but,in my opinion, that is better then taking a chance with the BDN-Hines rigamorale.

My question is

Is the generated date of these forms comparable with the date of your TDIU award letters or with the EED? I cannot determine from M21-1MR what date determines the generation of the form to the veteran and more then that ,I cannot understand why 2 entities (BDN) and Hines ITC have control over mailing to a vet ,this critical form, and obviously screws up occur when vets don't get the form and then get the letter saying their TDIU is dropped because they didn't sign and send back what they didn't even get.

There are countless ways the VA itself can improve the claims process.So can claimants.

The new VBM by NVLSP makes this staggering point.

“The average claimant waits 883 days from the filing of a VA form 9 until BVA deposition.”

Veterans Benefits Manual, by NVLSP, 2011 Edition, 13.2.2, page 1015.

I read this in the new VBM the other day and noticed the same citations NVLSP used are all scattered over my desk-they are the annual BVA Chairman's Reports to Congress. Every advocate should be familiar with them and what they reveal.

Some of the reasons for that horrendous timeframe, of 883 days, are,in my opinion, that certainly many claims Could be awarded at the RO level but aren't. The fact that MANY claims need IMOs ,as recommended here many times, is certainly one way those 883 days can be reduced.Other reasons are that claimants themselves need to do more leg work on getting their evidence ,whether it comes from buddy statements or from the 'clues' that SOCs and SSOCs often contain (as well as the initial VCAA letter.) yet often claimants don't go the whole 9 yards on gathering evidence. And the VA sure won't do that for them. We claimants all have some real responsibility in reducing the backlog as well as VA.

Thanks for any input on the date question for the 21-4140 forms..

[broncovet]

Berta

Of course, the best way to stay out of this mess the Veteran can, and should send in the completed form regardless of whether one is mailed to him.

That being said, The VBM definately has stuff on when Vets get their decision but are not notified of their appeal rights. This "tolls" the one year period. In other words, if the Vet does not get notice of his appeal rights, his one year appeal period does not start to run until he does get notice.

The difference on the "notice" violations mentioned in the VBM that those notice violations involve appeal rights, where a Veteran who did not send in proof of not working, the VET already has the benefit. One is a claimant without benefits, and the other is a Veteran awarded benefits.

One way the VA gets around this, is that the secretary is given the presumption of regularity. In other words, if the VA says "I mailed you the form"...then the court assumes you got it, whether or not you actually did receive it.

In a dispute, Vets have to show "proof" of mailing, the VA does not. This does not sound "non adversarial" to me.

I recall reading case law where the VA is required to assume the Vet is telling the truth, unless there is evidence to the contrary. I think they say it something like, "The Board can not render the Veterans testimony not credible solely based because the Veteran is an "interested party". (my paraphrase)

Consider this case: http://www.va.gov/vetapp12/files2/1212790.txt

Possibly the most important part of this case is the judges statement:

The EXAMINER is also reminded that an examination is inadequate where the EXAMINER does not comment on the Veteran’s report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion.

By combining the two quotes above I think this means that the VA should not be able to deny solely on the lack of evidence in the C file, when the credible Vet says that it happened in service. In other words, I think the VA should not be able to deny when the Vet makes a statement,solely because that statement is not corroborated with medical records. In other words the VA losing the medical records does not provide proof the Vet is a liar.

[Capt.]

Some of the reasons for that horrendous timeframe, of 883 days, are,in my opinion, that certainly many claims Could be awarded at the RO level but aren't. The fact that MANY claims need IMOs ,as recommended here many times, is certainly one way those 883 days can be reduced.Other reasons are that claimants themselves need to do more leg work on getting their evidence ,whether it comes from buddy statements or from the 'clues' that SOCs and SSOCs often contain (as well as the initial VCAA letter.) yet often claimants don't go the whole 9 yards on gathering evidence. And the VA sure won't do that for them. We claimants all have some real responsibility in reducing the backlog as well as VA.

Hello Berta and Bronco,

I am glad to see you back Berta, even if just a little. I posted a topic on the 38 CFR 3.103 Procedural Process and Appellant review, discussing this problem in some depth.

The EXAMINER is also reminded that an examination is inadequate where the EXAMINER does not comment on the Veteran’s report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion.

By combining the two quotes above I think this means that the VA should not be able to deny solely on the lack of evidence in the C file, when the credible Vet says that it happened in service. In other words, I think the VA should not be able to deny when the Vet makes a statement,solely because that statement is not corroborated with medical records. In other words the VA losing the medical records does not provide proof the Vet is a liar

You have brought this up also and because I was awarded the lung issues as service connected. The evidence VARO gave the C and P examiner was "piecemeal". It did not contain the Pulmonary Hypertension Diagnosis thru Heart Cath. I showed him this report and he said he did not have that. I do not know what he commented on because I still have no C and P reports after a year of taking it. BACK TO DUE PROCESS PROBLEMS. I am still waiting on the NOD and what they are going to do about an increase for the PH diagnosis which must be awarded 100 percent under diagnostic code 6604 and 6845.

Berta I hope you read that post I listed above and glean some evidence you can use as you fight for all Veterans rights. Thank you again Berta, NEVER GIVE UP. God Bless, C.C.

Edited November 8, 2012 by Capt.Contaminate (see edit history)