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tk3000

Tdiu Appeal Postive With Ellusive Retropayment

Question

I got my 100% IU appeal for what have had yet another (second) C&P exam in May of 2013. The good new in this case came along with not so good news: apparently the Detroit Regional office interpreted that the claim for IU that I filed about 3 years ago, and for what I filed a substantive appeal about 2 years ago, simply did not qualify for a retropayment going back to date of the original filing of the claim (3 years ago). My understanding is that the retroactive payment ordinarily goes to the date of original filing of a claim, and not to the date that the second C&P exam (for which the examiner posed a favorable opinion towards my claim) took place (May, 2013). The following is the VA's rational (via IRIS exchange):

Thank you for your advising that you received the notification letter.

An appeal for Individual Unemployability (IU) will go back to the date the evidence shows that you are unemployable.

Your letter indicates that you had an examination on May 16, 2013. The examiners summary is provided on page 3 of the reasons for decision section of your letter.

Your letter states the following:

The criteria for entitlement to individual unemployability benefits have been met. VA grants this benefit, effective May 16, 2013, the date on which the veteran met both the schedular and unemployability criteria under 38 CFR § 4.16, as per 38 CFR § 3.400.

The examiners's opinion bumped up one of my service connected conditions to 70%, and clearly stated that my conditions would affect employability. But the claim was originally filed about 3 years ago, so I did expect to receive payments retroactive to 3 years. .

Any insights would be greatly appreciated.

-tk3000

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It goes back to that date if the evidence shows you were TDIU then. What they did makes sense. They made you TDIU the date the evidence(C&P exam) shows you were TDIU. I would appeal. You can accept their rating or appeal it. jmo

pr

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It goes back to that date if the evidence shows you were TDIU then. What they did makes sense. They made you TDIU the date the evidence(C&P exam) shows you were TDIU. I would appeal. You can accept their rating or appeal it. jmo

pr

Thanks for your input. I accept their ratings, but I simply do not accept the fact the the retropayment did not date back to the filing of the original claim. Based on that premise, all decisions for any claim should go back to the C&P exam date instead of the date of original filing.

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DO you get SSDI solely for what the TDIU was granted on?

If so does VA have that info and did they obtain the SSA records?

In some cases the VA, if a TDIU app was filed within a year of a SSA award for same TDIU disability, VA will use the SSA date determined to be the date of unemployability for the retro.

If you dont get SSDI maybe now is the time to file with this award letter from VA.

The full SSA disability criteria and I believe the main SSDI application is at the SSDI web site..

Congrats...you did well, this IS a victory.

Did VA Voc Rehab turn you down solely to your SCs during the time since you filed this claim?

"Based on that premise, all decisions for any claim should go back to the C&P exam date instead of the date of original filing."

We would all be hoopin' and hollering if that was the case.

Did you, when you filed the claim,have any solid documented medical evidence of unemployability due to SC, 3 years ago?

Unfortunately the VA seems to be correct here as PR said.

I quibbled over something like this with my Nehmer lawyer for my AO IHD death. claim.

Although the medical record clearly indicated a different EED, the VA used instead a PTSD C & P date, (but this was for an IHD claim)

and I realized it was not worth it to try to get better EED for the IHD. I did appeal the award ,but under a different basis.

The EED I thought I would get was from an ER certificate which was prime facie evidence for my FTCA/1151 cases.

Although that record clearly revealed malpractice on my husband's undiagnosed IHD, (thus establishing the EED for the IHD)

the Nehmer EED was the date of the next C & P exam he had...but it was for PTSD.....that still doesn't make sense to me....

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tk3000,

Over time us Vets, learn what battles to fight. You know that when we challenge the VA, we usually lose. I have heard of guys challenging the TDIU dates, and the VA comes back and finds a way to deny the already approved TDIU. If you want to challenge it Bud, Good luck, but most of us only wish to be 100% or get TDIU approved. I currently have FDC and SSDI claims and I personally would be grateful for either one to win. God bless and may we all get an early Christmas.

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Standard operation procedure is to bump up, grant and go as low as possible (lowball) the amount on the due line. You have just encountered the first wall of resistance. Once the grant of TDIU is complete, it is a legal finding. A holding if you will. Unless VA can find some fault or mistake in this grant (TDIU), it is a done deal assuming you proceed in several years to P&T in a future exam. Some would point to the seminal Roberts jurisprudence on the wisdom of continuing to pursue an earlier date. VA decided to make an example of him but it has backfired. The OIG had no authority to investigate him. This will have interesting repercussions when they have to remunerate him for his four-year incarceration. You have one opportunity to complain and that is when the claim is won or in the succeeding one-year period from the date of the decision. If you do not object, it is assumed you agree. If there is unmistakable proof in the record that you were unemployed at the time of your filing and/or in the immediate preceding year, you should be eligible to that date. Remember, we are not talking about evidence developed after the filing date that would substantiate it as VA is trying to do by pinning their "date" on it-but genuine, rebuttable proof that bears out your contentions that you were dead in the water, you should be entitled to the earlier date. SSI/SSD records are, indisputably, good proof but not unless the disease/illness listed as the primary is also the primary rated illness/injury you are asking VA to base it's TDIU on.

Odds are in an appeal, five minutes before you are set to depart to the BVA, VA will grant back a year earlier, find some idiotic, inconsequential date and point to it. It won't be the filing date though unless your case is airtight. Hey, get used to it. They're an insurance co. A dollar granted in 2014 is worth less than a dollar due in 2011 due to inflation. Besides, with no interest due, their philosophy is "Justice (and money) delayed is not Justice denied." I personally think they take great pleasure in it but I know in reality that the M21 computerized Ouija Board is the culprit. It manufactures standard delaying tactics until the piper has to be paid. Well, aided and abetted by a hierarchy disinclined to give VA's money away.

a

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