tdiu Please Help If You Have Any Knowledge

[infantry10]

In 2008 I was awarded my unemployability and have been receiving payvat 100% rate (with benefits) ever since. I was sent a questionare form in Sept 2012 (so they say) but never received it. In early Jan 2013 I got a letter in the mail saying I never returned the qyestionare form and my pay would go hack to 60%. I immediately called the 800 number and the form was faxed to me. I faxed it back the same day (which it shows in VA system) but was given a fax number to the PA office which I later found out was a huge problem. It was supposed to be faxed to my regional office in WV not to PA. I have filled out all the correct forms, even had to do a new C&P exam. My local state office says, they've never seen this happen before. When I log onto the ebenefits site it shows I have a new claim as of Jan 22. My pay is currently less than 1/3 of what I've been receiving and it's put a huge problem on me financially. The ebenefits site shows I'm at preparation for decision phase which ive been at for 2 months. If anyone has any advice to give, it would be grately appreciated.

[infantry10]

I apologize, I typed the wrong number. I am 70% service connected but was awarded 100% pay from unemployability.

[rdawg]

did you get a job or do any volunteer work that would contradict your unemployability?

It sounds like they proposed to reduce your % with the letter in Sep 2012 and then reduced you in Jan 2013 due to not returning letter. Then they opened a new claim after you returned the letter.

Do you have any other medical evidence of the severity of your condition or how it affects your ability to get a job? If so I would submit that evidence soon.

[infantry10]

I haven't worked since I got out in 2002. My conditions have worsened.

[carlie]

Since they say they did not get the form back - all I can think

of at this point is just keep waiting OR

if you don't have a VSO, you could go get one and see if

they can find something out.

[FormerMember]

I have read numerous CAVC decisions documenting this phenomenon. Being TDIU, one is always susceptible to being called back in to be reexamined within the first 5 to 10 years. After a certain period, they award P&T but until they do, one false step like this will provoke exactly what you are describing. Assuming you have not changed your mailing address since this began in 2002, VA will use the Presumption of Regularity to say they mailed it and you got it (regardless of what happened). The Veteran's Presumption of Normal Intelligence states you wouldn't blow off something this important and probably didn't get the letter.

In order to combat it, you have to refile the form they wanted and get on ebenefits and upload some serious documentation medically to preserve that original TDIU. Any way you look at it, you're in for a slugging match.

I have no doubt you will get it back but you're entitled to an unbroken chain of compensation. VA will eventually regrant it but will reinstate it effective when you eventually heard about it and complied. You can fight it to the CAVC and you'll win in 8 years. VA is willing to spend a million denying you $20 K in back pay and will. They do it every day. You might try a VSO but I'd consider that a last resort. The IRIS or ebennies avenue may get a much quicker response. Fix it now. Don't let it fester. Never forget the Congressional Inquiry hand grenade either.

38 CFR §4.13 states:

Effect of change of diagnosis

The repercussion upon a current rating of service connection when change is made of a previously assigned diagnosis or etiology must be kept in mind. The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted.

Applicability of 38 CFR § 3.103 (a)(b)(2).

38 CFR § 3.103 (a) deals with procedural due process and appellate rights. Section (a) states:

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government

Section (b) (2) describes the reduction of ratings:

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

38 CFR §3.105 states:

(e) Reduction in evaluation—compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

One thing necessary is a medical examination for something like this, not just a Form 21- "fill this out and send it in". But then we're talking the VA here, not Social Security, huh?

[john999]

Just download the form and send it to them each year without waiting for them to send you a form. This is what I have done for the last 5 years. This does not fix your situation now but it will for the future. Send it certified mail/return receipt. If you are not P&T you should ask for that when you get your TDIU back.