tdiu Any Legal Beagles Opinions ?

[Berta]

I think we are all, in essense, legal beagles......or sure will be by the time our issues are resolved.

The VA can commit a CUE (clear and mistakable error) when the VA uses M21-1MR improperly.

I have use excepts from M21-1MR for all of my CUE claims, because M21-1mr contains the exact legal citations and cites VA case law decisions in their manual at every step. This manual tells the VA how to do this and that and the VA must follow the regulations cited.

Any thoughts on this...........

When I see a veteran has been granted 70% SC here I always wonder if the VA should have considered them for TDIU.

Actually the 60% rating in some cases should also warrant TDIU consideration as well,if the rest of the criteria here is fulfilled:

Ҥ4.16 Total disability ratings for compensation based on unemployability of the individual.

“(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:” etc....it pays to read the entire regulation and the extraschedular consideration part too ,in this link :

www.warms.vba.va.gov/regs/38CFR/BOOKC/PART4/S4_16.DOC

“M21-1MR contains this statement too:

“Reasonably raised claims for IU may arise in a Veteran’s original claim or in a claim for an increased rating. The Department of Veterans Affairs (VA) must consider a claim for IU if

• the Veteran’s SC rating meets the minimum schedular criteria found in 38 CFR 4.16(a), and

• there is evidence of current SC unemployability in the Veteran’s claims folder or under VA control. “

source :M21-1MR, Part IV, Subpart ii, Chapter 2, Section F,under 25.

My concern is that a veteran might have been employed at the time they filed the claim, then became unemployed ,yet VA never knew that when they adjudicated the claim.

The veteran could have even filed for and been awarded SSDI solely for the eventual SC rating by VA, yet VA was not aware of that fact when they made the SC determination that falls under the 4.16 criteria.

Under Notes in 25 I of above M21 link it says:

Notes:

• “Do not send a Veteran VA Form 21-8940 to complete if

• the schedular requirements of 38 CFR 4.16 are met, but

• there is no evidence of SC unemployability.

A subsequent formal rating decision will be required to dispose of the issue of entitlement to a total evaluation based on IU, even when the Veteran fails to return VA Form 21-8940.”

Any opinions on this? Even if the vet fails to return the form that they (VA) are told 'do not send'to the vet .....

What subsequent formal rating decision do they mean?

Do they mean, if the vet NODs the rating due to the criteria in 38 CFR 4.16, because they have become unemployed,then a subsequent formal rating will occur?

I guess this is why we MUST be proactive at every single point of the claims process and make sure VA knows if our employment situation and/or receipt of SSDI has occurred since filing the claim.

Also those Voc Rehab records can be critical too to a TDIU consideration if Voc Rehab has found and documented that the SCs prevent rehabilitation vocationally.

I never saw any Voc Rehab records for my husband in the C file or med recs files.

All he had was a handwritten statement on a letter he received on VA V&R letterhead , from his Voc Rehab counselor,that his stroke made continuance of his VA Voc Rehab unfeasible..

I just remembered something.......VA owes me some cash and I might not have sent them that statement.....

They awarded and paid 100% P & T for a Section 1151 stroke for 6 months only.They forgot 16 more months of 100% P & T.

I sent them very probative evidence ,all previously in VA's possession, that he was 100% P & T due to the CVA until he died.and need to check if I included the Voc Rehab letter.

This was a CUE filed on their 2012 award letter that they said was with a specialist.

I don't really know where they file the Voc Rehab records....anyone know how to get them?

[john999]

I think there is a claim that is going to a panel hearing on the point that VA has or has not a duty to consider a vet for TDIU if he meets the criteria or if he is reduced from 100% to 70% for a single claim. You can go to the CAVC site and read it . My CUE will be heard on December 12th at 10am at CAVC. You can hear the audio at some point.

John

[Berta]

Thanks for that CAVC tip John and Good Luck on your Case.

It would be a GREAT Victory to win it!

You sure have put a lot of time into this CUE claim.

[Philip Rogers]

jmo - lately the VA has been making it harder to apply/receive TDIU. They generally won't consider TDIU unless the claimant requests it. By not sending the form they delay the new TDIU claim and hope the vet doesn't file. Many vets won't appeal claims in fear of losing what they have. The VA and their VSO's help spread this rumor/fear.

Although the VA is supposed to be vet friendly we know they aren't. They often give instructions to C&P examiners as to what to look for and how to deny the condition.

The latest ruse is not sending the TDIU form.

jmo

pr

[free_spirit_etc]

"I guess this is why we MUST be proactive at every single point of the claims process and make sure VA knows if our employment situation and/or receipt of SSDI has occurred since filing the claim."

I agree with this. I think making sure there is at least some evidence in the file showing the possibility of not being able to work is what helps people succeed if they have to fight for an earlier effective date. Some of the CAVAC cases I read even considered a letter where a person mentioned they were having trouble working to be evidence enough.

Edited November 25, 2013 by free_spirit_etc

[broncovet]

I saw that also, and had (and have) some of the same questions you do, Berta.

VA law is in constant flux, being tweaked with each new precedential case, especially on the issue of IU.

I do agree that the VA wont adjuticate IU unless the Vet asks for it. Oh sure, there are informal and inferred claims for IU, but, unless the Vet meets the criteria, they "dont" adjuticate extra schedular IU.

My case has a lot to do with this. Way back in 02, I informed the VA I was unemployed when I applied for benefits. No adjutication for IU, just a denial for hearing loss. Appeal, and then I get 40 percent. I said, "hey, wait..what about IU". Because I did not meet the 4.16 a criteria, they wont adjuticate IU. Enter an increase in 2009 to 100 percent. I appealed the effective date, to include IU. The Board remanded EXTRA schedular IU, in pertinent part, because an award of IU could affect the effective date and, eligibility for SMC S. (The RO had decided that eligibility for IU was "moot") However, the BVA specifically required a readjutication of IU because they made the factual determination that IU was "not moot". So, what happens next?

You guessed it...the Ro fails to implement the Board remand, and never bothers adjuticating IU even tho it was required by the Board remand. So, I am in a position where I am expected, I guess, to file a NOD on a RO decision where the Board has already ruled on precisely that issue, which makes no sense. The Ro has essentially "overturned" the BVA remand, and just let it drop. I am considering a writ.

[meghp0405]

I can tell you that the VARO in Louisville, KY will (and has) reviewed a claim for TDIU without the veteran requesting it. I have had vets come back in the office with a letter from VA stating in part, "During the reviewing of your claim, we believe that you may be entitled to TDIU. Please complete VA FM 21-8940 and return as soon as possible. I assist the veteran in completing the form and off it goes. They have come back and showed me their rating decisions where they were awarded VARO.

I can't answer for all VARO's if they do this or not, but why shouldn't they if they believe that the vet is entitled.