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 basedon 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.
Question
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!
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