tdiu Inferred Tdiu Question-Should Vet Be Given Notice?

[bigred1]

Is the VA supposed to tell you that you are being evaluated for a TDIU claim if you did not apply for it but they are inferring it? A family member was denied TDIU but he did not know he was being evaluated for it. He was rated at 30% went for an increase, got 70% and in that decision they denied him TDIU. Does anyone know if they should have given him notice, sent him the Form 21-8940 or anything like that?

On the topic, I found this:

1) 38 CFR 3.155 – Informal claims provides:

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.

And I also found this:

The Department of Veterans Affairs Reference Material, M21-1MR, Part IV, Section F states the following:

A decision concerning entitlement to an IU evaluation is based on a review of all available evidence, which should be sufficient to evaluate both the Veteran’s

•current degree of disability, and

• employment status.

Forward a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, to the Veteran if a request for IU is

• expressly raised by the Veteran, or

• reasonably raised by the evidence of record.

There is a note that states the following:

Note: Although a VA Form 21-8940 can be an important development tool, it is not required to render a decision in an IU claim.

However, I would argue this:

the intent of that note was for the situation that refers to the specific instance in which a claimant was sent the form, but failed to return it. In the instant matter, claimant was never sent the form to make him aware that there was a viable unemployability claim and that a decision was being rendered for that claim.

Any thoughts?

Much thanks!

Edited June 13, 2013 by bigred1

[Berta]

I think this is the same vet I replied to you on a few minutes ago Big Red.....

Why did they deny TDIU?

" Note: Although a VA Form 21-8940 can be an important development tool, it is not required to render a decision in an IU claim."

Is that now a standard SOP statement from VA?

Did they say the TDIU form was enclosed and then fail to enclose it?????????

You make a good point.....the TDIU form asks (# 18) if the veteran is receiving disability from any other source.

This ,when checked Yes, and then expanded on , if the vet gets SSDI solely for the same SC conditions, is critical evidence for TDIU which should trigger VA to obtain the SSA records.

[john999]

While reading parts of the VBM on inferred claims for TDIU the VBM says that if the VA has any evidence that shows a vet has a disbility that makes employment difficult or impossible the VA should infer a claim for TDIU. They use the example of a vet with a skin condition of his feet that gives off an offensive oder. A VA social worker notes this condition and this is enough for inferred claim for TDIU.