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?

[meghp0405]

no it is not. What you have is a book that briefly describes benefits available to you as a veteran. The book which Berta is referring to is the federal veterans laws rules and regulations, also know as the 38 CFR (code of federal regulations).

You can google 38 CFR and you will have several links within the regulation for your review.

[warren]

Thank you friend!

GOD BLESS

[Berta]

Actually the book I am referring to as the VBM ,is the Veterans Benefits Manual published by National Veterans Legal Services Program, annually and dedicated to all of us advocates, written by this fabulous non profit veteran's pro bono law firm and sold via Lexis Nexis.

Any proceeds NVLSP gets from these sales goes directly toward helping vets in a pro bono way.

We AOers have NVLSP to thank because they won the original Beverly Nehmer class action case for us and represented us at no charge.

I have every VBM back to 1991 and they all helped me with my claims and the knowledge I have gained from NVLSP ( from the VBM as well as many emails and phone calls to their lawyers over the years) is one reason why I am here helping others.

Their AO lawyer Rick Spataro helped me many times when the new AO regs came out to interpret the nuances of the new Nehmer AO regs

for all os us here at hadit, and I even pasted here in the AO forum ,some of his email replies so we could all understand the essense particularly of the importance of Footnote one...of the 2010 Nehmer regs....,most of us are Footnote One Nehmer vets and survivors.

Meg is right....it is easy to google the regs as well as M21-1MR,instead of purchasing 38 USC.

I will try to find the statuatory mandate for SMC on line and attach it here.

I asked NVLSP how much I am able to copy and paste here but they are copywrite protected so I cannot attach the page you need that I used to win my CUE. I can only put here brief excerpts but they gave me full permission for posting here at hadit ,

the I-9 statement they always recommend putting on the I-9 form:.

“I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR.”

If you type it in a word program and then cut it and tape it into where the I-9 hearing stuff is, it will fit there, or put it into your opening I-9 statement.

I donated VBMs to my former vet reps only to find them hidden in an upstairs office where Dom and hospital pts (their office is on the grounds of the local VAMC) and other veterans had no access to them and none of the reps were even interested in reading them.

If the Vet orgs were required to purchase or solicit donations of the VBM, most of these vet reps would be FAR more efficient than they are now.

If anyone here has taken the NVLSP Basic Training Course on Veterans Benefits , call NVLSP to see if you can get the Advocates discount on the VBM.

[warren]

Berta

I have the nehmer training guide dated February 10, 2011. I wish you a healthy and happy Thanks Giving and I hope you are spending it with your loved ones. As for me and my wife we are alone for the first time for Thanks Giving day. Our two children are on their own and it seems that they have abandoned us but we have the Lord in our hearts and I have my friends on Hadit.

GOD BLESS

[bobz]

I sure agree with John.

“Ok this got me thinking, when according to the VA math I was awarded 70%, I had allready been on SSDI for 1.5 years due to same conditions.”

Does the VA know that and have you sent them a signed authorization form in order for them to obtain the SSA records?

Yes they do know and have the authorization to get the records.

“Now when I got my award letter it said TDIU was pending but knowing the VA's track record I put in for it myself. Should I let it go with the date I submitted and then file a CUE for the date of the original award or cancel and just file the CUE? The claim is now in the gathering evidence stage waiting on former employers statements.”

I would wait and see what they decide on as to the EED first..

“Also their independant doctor agreed with the VA neuro doctor that the provlems of the left arm becoming useless was due to a cva in 2009 that was missed by their doctors in Texas. It was caught by their neuro doctor here in Nevada and is service connected. I doupt that I can do much about that even though it was a rough 3 years before I finally started getting the proper treatment, and luckly to be here giving them a hard time.”

Was that a 1151 award or direct SC for the CVA?

Direct SC

Once they determine TDIU (hopefully that will be an award, and they should also determine SMC for the loss of use of the arm and also I assume loss of use of the hand.We have the full gamit of SMC here.)

Yes the hand is in permanent curled position numb all the time, and basically useless.

“Luckly now I have good doctors at the VA that I like and trust, even to the point where if I ask a question over secure messaging on MHV she will answer or actually call.”

That is good to hear.

If a veteran gets SSDI solely for a SC condition, and the VA knows that and obtains the SSA records and then awards TDIU...they will use the EED of the SSA award (not SSA date of award) IF the SSA award letter is within one year of filing the claim for TDIU.

I explained that a little better here somewhere.....

personal example:

Husband was 30% SC for PTSD and filed for higher rating and TDIU in 1992.

He also filed an 1151 claim to include the 1151 CVA.

He had 2 SSA awards ….one rendered the other one moot.....SSA for 1151 CVA first and then upon reconsideration, SSA awarded solely for PTSD with an EED of Nov 1991, the day SSA had determined he was unemployable due to his SC PTSD.

The award however was a posthumous accrued award to me 2 years after he died.. !00% SC for PTSD (less the 30% he received in his lifetime) back to 1991. (but the survivor regs in those days only awarded 2 years retro, now they usually award all accrued retro.)

He had filed for TDIU and received the SSA PTSD award within one year of his TDIU filing date.Therefore VA had ample evidence of his TDIU, with a favorable EED,due to his SSA records.

“Ok this got me thinking, when according to the VA math I was awarded 70%, I had allready been on SSDI for 1.5 years due to same conditions.”

In other words do you mean they considered TDIU and have deferred the TDIU?

Yes they said they deferred the TDIU

Those SSA records could be critical to the claim,if solely for the SCs.

SSA records are problematic when there are NSC issues considered with SC issues as part of a SSA award, and VA in that case, does not give them any real weight at all for TDIU claims .

Everything that SSA awarded me on is SC. They awarded me for the arm and on mental health.