tdiu Should I Add Citation Notes To A "reconsideration" Before Its Denied?

[sevensees]

Hello veterans.

I stated the whole situation in a different topic, but I figured that this should be a new topic as it pertains to an inferred claim for TDIU. In short, my father was approved at 50% in 2012 for a claim filed in 2006, but has been on SSD since 2003 (I'm helping him with this now). In his NOD for the award, he only stated that he disagrees with the "amounts". So now a year later I'm clarifying that NOD (since they haven't processed it yet) and I'm requesting "reconsideration" for TDIU going back to the original claim, since he's been unable to work due to his SC disability.

I have a strong feeling that they are going to say that since we never mentioned TDIU in the original NOD, and since its even ANOTHER year after that (but still hasn't been processed), he will only be eligible dating back to last week when we first mentioned TDIU.

1. Do you guys feel that since they knew about his SSD (and the VA mentioned it as evidence in his award letter) that it constitutes an inferred claim?

2. I'd hate to throw something in their face before they say no, but we can't wait another 3 years for this stuff. I'd like to get all the BS out of the way, since I know its coming. Should I cite the "Comer vs. Peake" and "Rice vs. Shinseki" cases on this clarification letter (and first actual request for TDIU) BEFORE they deny the reconsideration?

Thank you so much guys, I'm faxing this today.

[sevensees]

Should we also file TDIU separate from the request for it in the appeal? Would that screw up the retro-active benefits since they could consider it a NEW claim not attached to the original?

[Berta]

I think you should use this part of 38 CFR 4.16:

38 CFR § 4.16

(b) Total disability ratings for compensation based on unemployability of the individual.b)

It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.


http://forums.military.com/eve/forums/a/tpc/f/163198221/m/6400001561001

And highlight the very first sentence in it.:

"It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled."

I used that statement with these clowns as evidence for an accrued benefit claim I had that derived from a claim my husband had, and also he received SSDI solely for PTSD

They made a posthumous accrued award, to me, but ,if they had properly applied this reg right from the git go, my husband would have lived long enough to see his 100% SC P & T for PTSD.

It is not only a regulation, it is a VA policy.

In my opinion ,when they knew of the award and the SC disability was granted for the same condition, they should have

'inferred"TDIU.

Edited April 19, 2014 by Berta

[sevensees]

That is great news and thank you all so much. Of course they will fight this, but so will we.

Does anyone have any magic to make this process go quicker? They have had his NOD over a year and haven't even processed it yet. No letter stating they received it until last week. Does the the VA have any rules for this that requires them to expedite a case that pertain to TDIU?