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?

[warren]

I received tdiu because of multiple conditions arising from the same etiology. RO considered these conditions as one condition evaluated as 90% disabled for consideration of iu and therefore stated i meet the requirement for iu but i had to file and they back paid me to the last day i worked 8-1-11. Today i asked iris if the ro should have mention or considered me for smc housebound. If evidence shows possible entitlement va must consider smc. nvlsp, states smc payments for personal inconvenience, social difficulties and severe nature of disability qualifies a veteran for smc. my boots on the ground parkinson's definitely falls within all three of these since it is progressive and can not be cured nvlsp states that veteran may be entitled to housebound if veteran is receiving tdiu for single disability (which i am) and is substantially confined to home and it is reasonably certain disability causing confinement, will continue throughout veteran's life and parkinson's will continue thru out my life. my va medical records will back up that i am substantially confined to my home. i asked iris if the ro committed a cue by not awarding me housebound. I thought this was similar to what you posted, so i put my two cents in. If what i'm posting is different, please disregard. the nvlsp statements that i mentioned might be out dated. i'm not sure of the date on their material that i read on smc but i can locate it again if needed.

GOD BLESS

[Berta]

Good comments here....!

I too have seen claims, mentioned here over the years, as Meg mentioned, whereby the VA does consider the veteran may be eligible for TDIU and sends the TDIU form.

But it seems to be a fact that all ROs do not have the same methods or use the same rationales when considering TDIU claims.

Warren said “i asked iris if the ro committed a cue by not awarding me housebound “

I think you should file a CUE claim on that decision.

“the nvlsp statements that i mentioned might be out dated.”

Nope , their statements on SMC in the VBM are still as good as gold.

VA failed to properly consider my husband for SMC in 1998.

I used among other evidence, a copy of a page from the VBM by NVLSP as evidence, that stated the SMC statutory Mandate...along with a copy of M21-1MR pertaining to SMC consideration, and a little more legal stuff.

I reminded them with a copy of the decision I CUED, that the medical evidence warranting SMC had already been established by the VA.

Also their rating was wrong and I cued that too but still even with the wrong rating ,my husband was eligible,in his lifetime, for SMC.(this was an accrued claim...and I reminded VA that my accrued claim had been filed within one year of his death.)

Filed in 2004, 7 years of bull crap from the VA, set for BVA transfer 2011,by Buffalo RO, then awarded by the Nehmer AO RO in 2012.

Not all ROs are up to speed on properly adjudicating CUES, as well as determining TDIU consideration, as I mentioned above.

You definitely should have been considered for SMC HB in my opinion.

What edition of the VBM do you have? I can find the page that the SMC mandate is on so you can copy it.

Your SMC CUE can be very short and sweet. Mine was only about three brief paragraphs long.

.

[bobz]

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. 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.

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. 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.

[john999]

Get your TDIU in the bag before you even consider a CUE. To do a CUE the claim decision must have been final. Cue's can take years and years.

[Berta]

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?

“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?

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.)

“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?

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 .

[warren]

Berta,

I have the 2013 edition of Federal Benefits for Veterans, Dependents and Survivors. Is this the same as VBM?

GOD BLESS