tdiu Where To Go Next? Afraid To File Hardship As A Result Of Va's Neglect.

[sevensees]

Hi again,

Thanks for all the helpful info with my father's claim. Sorry if this is offensive sounding for blaming VA for what I do.

As an indirect result of the VA not following their own law regarding TDIU, my father is in a state of financial hardship and afraid to file a hardship claim because they sometimes declare those unable to pay bills as incompetent. What a nice cycle they have created. Delay claims, don't award appropriate amount, cause hardship, declare incompetent. Maybe the did or did not directly cause this hardship, or maybe we shouldn't factor in things that aren't his yet as part of a present problem, but law is law (at least I think it is) and the VA didn't follow it.

Brief summary:

Claim filed in 2005. Finally awarded in 2012 @ 50%, but they failed to infer the claim for TDIU (on SSD since 2003, and mentioned SSD with service connected symptoms in award letter). His doctor letters declare him permanently disabled from working (VA doctor). Filed NOD in 2013 stating that his claim should have been inferred automatically for TDIU and that his rating should have been higher and considered permanent due to the evidence they were aware of. Currently still waiting for that NOD to be processed (over a year later).

He's not happy with his VSO at the American Legion. He's dealing with financial hardship (eviction notices), but is afraid to file for a hardship claim because of other vets claiming that because of the hardship they were deemed incompetent and assigned a fiduciary. He's also planning on getting a house with a VA loan, but you can't get that if they declare you incompetent. His credit is good.

If they just DID THEIR JOB and inferred his claim in the first place for TDIU, he wouldn't be in this situation at all (including late rent payments that make him have to wait another 12 months without lateness on rent for VA loan approval).

The VA making him wait the initial 7 years attributed to him to losing his home of 30 years. Not inferring his claim when they should have has caused him to have to move twice for cheaper (apartments). He's 65 years old and not in the greatest of heath as it is.

His claim is going on almost 10 years. It was their job to infer this claim and they didn't. They messed up the past, their messing up the present and he can't file for hardship because they might also mess up his future.

If he had a CLEAR inferred claim for TDIU and they NEGLECTED to infer it, is there any way now to get this NOD expedited due to their mistake and neglect instead of his hardship (that they are in part responsible for)? So much is at stake.

Sorry for the aggressive tone, but this has been so frustrating... Almost 10 years is too much.

Anyone have any ideas?

[Berta]

"(on SSD since 2003, and mentioned SSD with service connected symptoms in award letter)."

SSDI awards become probative TDIU evidence only when they are solely for established service connected conditions.

"His doctor letters declare him permanently disabled from working (VA doctor)."

but did any doctor add, that his disabilities ,causing unemployability,are directly due to his service?

You have mentioned that VA failed to infer a TDIU claim (and I assume he filed the 21-8940 himself).

But it is medical evidence that warrants the VA to consider TDIU (they almost always do when the rating hits 70% and the veteran is unemployed.

This is the M21-1MR link as to when the VA is supposed to infer TDIU:

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CD8QFjAC&url=http%3A%2F%2Fwww.davnj.org%2FReference%2Fch02_secf.doc&ei=a6xeU-nfEMGeyASv14LgBA&usg=AFQjCNFoFKNpZn1gTXVLSM-o9sQn_G1J8g&bvm=bv.65397613,d.aWw

It is certainly possible for a vet with any SC% to go up to TDIU but that often occurs when the vetern is awarded SSDI solely for SC conditions,or has an IMO, if the vet does not meet the criteria in the link as to his/her SC rating.But often the medical evidence warrants the higher rating, and the vet does not need an IMO

Personal example. My husband was 30% SC PTSD since 1984,.then he worked at the VA so they tried to reduce himto 10%. They turned around on that when they got his NOD 1989. He was awarded SSDI solely for PTSD in 1992.

They granted , not TDIU , but 100% P & T because you cant award TDIU to a dead veteran.It was a posthumous award.

His EED was 1991 ( that goes to show how ridiculous it was that they tried to lower his comp 2-3 years prior to that).

I had to raise a ruckus when they kept stalling on getting his SSA records and finally they did and considered that as prime evidence.

But there was other evidence as well. PTSD hospitalizations, for example, and a gaf between 26 and 34.....

BTW the SSA award was solely due to his VA med recs, so it is imperative that when one checks off Yes on the TDIU form,Question # 18, that they follow up and make sure VA not only has a signed authorization form to get those records, but they in fact actually do request them from SSA.

What specific reason do you believe the VA failed to infer TDIU but should have... has he been hospitalized for PTSD since the 50% award...have his meds been increased since that award?....did he apply for VA VocRehab and get turned down with VA documentation saying his SC disability prevents feasible Voc Rehab?

Please read this past post and the regulations in it, to see if they should have inferred TDIU:



It is quite possible they should have but hard to say.

Can you scan and attach the last decision here (cover the personal identifying stuff first) as to their reasns and basis, and the Evidence list.

In the NOD did you raise any argument over the 50% , as to why that it should be higher because of any evidence they didnt consider? As well as saying.....they should have inferred TDIU........

It

Edited April 28, 2014 by Berta

[john999]

Find a VA lawyer and run this by him. I know the VA is supposed to infer a TDIU claim under circumstances where there is a record with the VA of the vet having a significant bar to employment. According to the VBM this can be as simple as having stinking feet due to SC skin condition. Winning such a claim is another matter. I filed for an EED on my TDIU because I was granted SSDI 6 months before the TDIU date. The VA granted the EED but said It was because I was in the VA hospital on the same date as my effective date for SSD.

[sevensees]

"SSDI awards become probative TDIU evidence only when they are solely for established service connected conditions."

The service connected conditions the VA award his for was: Major Depressive Disorder ("Claimed as PTSD") and anxiety. The only two conditions in his SSDI as well.

"but did any doctor add, that his disabilities ,causing unemployability,are directly due to his service?"

The PTSD was claimed as service connected by his doctor multiple times. The VA claims examiner diagnosed him with Depression "claimed as PTSD". Either way, the two conditions in his award are the same as the two in his SSDI.

You have mentioned that VA failed to infer a TDIU claim (and I assume he filed the 21-8940 himself).

He is still appealing his original claim at this point. Doesn't "infer" distinctly mean not filed by the vet, but assumed based on evidence presented? That the VA themselves file the form? Had he had filed the 21-8940, then it wouldn't be inferred, right? We just found out about TDIU a month ago. Call it ignorance, but he was never aware that something like that existed and he was never told by his VSO. If he files a 21-8940, wouldn't he then only get the paid from the date of his "new" claim? That's why he has this NOD attached with the original so his back pay for it goes back to this original claim when they failed to infer it for TDIU.

But it is medical evidence that warrants the VA to consider TDIU (they almost always do when the rating hits 70% and the veteran is unemployed.

He was granted VA disability for the only two conditions the SSDI granted him disability, so they define the two conditions that prevented him from working since 2002 as "service connected" based on that alone. At 70% they always consider it, but his in case, they had evidence mentioned in his award of not working with SSDI for the same conditions as the VA's award. That extra evidence provided of SSDI is supposed to make them infer a claim for "extra-schedular consideration"?

At least according this (which you supplied me in another post)

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.

What specific reason do you believe the VA failed to infer TDIU but should have... has he been hospitalized for PTSD since the 50% award...have his meds been increased since that award?....did he apply for VA VocRehab and get turned down with VA documentation saying his SC disability prevents feasible Voc Rehab?

Because was disabled and not able to work with SSDI (known by the VA) 7 years before the VA awarded him. Its not anything new, and they knew about his SSDI for his service connected conditions, because they mentioned it in his award.

In the NOD did you raise any argument over the 50% , as to why that it should be higher because of any evidence they didnt consider? As well as saying.....they should have inferred TDIU........

Yes, all of that. I can show the NOD if you would like. I do not have the award with me right now.

Berta, we did discuss this a little on a previous post in which you believed him claim should have been inferred. Here's the link to that topic:

I guess I'm trying to figure out more if there is a way to get them to react on this now if it should have been inferred and wasn't. Their mistake or negligence should not make a vet have to go through the mill AGAIN when it should have (by law) been inferred the first time based on evidence and facts.

---

John, Can they go back before the date of the original claim, like 2003 when he was awarded SSDI for his service connected conditions? He was seeing his VA doc since 2002.

Edited April 29, 2014 by sevensees

[Berta]

You have made some excellent points here.

You said:

"The service connected conditions the VA award his for was: Major Depressive Disorder ("Claimed as PTSD") and anxiety. The only two conditions in his SSDI as well."

Can you scan and attach the last decision here (cover the personal identifying stuff first) as to their Reasons and Basis, and the Evidence list too.

You might potentially be able to get them to CUE themselves.

I have info on that in our CUE forum.And a template.

You could use, as legal evidence, a print our of the M21-1MR link , as to the "inferred" part of it and cite the same regs that appear in the M21-1MR.

Something does seem wrong here but only when we see the decision, can we understand what reasons and bases they stated that must be overcome.And if the SSDI was listed as evidence (it appears they did have those records though).

But John made a good point too.... this is something that maybe a lawyer could fix sooner than later....

There are plenty of vet lawyers around and they are user friendly....you said this claim has been going on for ten years....that could possible mean Mega retro.

Doug Rosinski has his contact info in this SVR show:



Bob Walsh and other vet lawyers did shows here in our radio show archives:
http://www.svr-radio.com/archives.html

Someone here was looking for lawyers not long ago and I pur their contact info into the post.

If I find that post I will put the link here. But they can be googled.

If you contact them and you mention I suggested the GO CUE YOURSELF approach during the appeal period,to you, tell them Berta Simmons at hadit mentioned it to you and I can contact them if they want to know more about that...but I think I did discuss this maneuver with them already..

They will need to read the decision however and can do that by attaching it to email.

Chris Attig too another very good vet lawyer https://www.attiglawfirm.com/

Many vet lawyers around and a longer list here somewhere as well available under then search feature.

[Berta]

Doug is at :

D. J. Rosinski
701 Gervais Street
Suite 150-405
Columbia, SC 29201-3066
803.256.9555
888.492.3636 (fax)
djr@djrosinski.com

Bob Walsh


2 West Michigan Avenue,
Suite 301
Battle Creek, MI 49017
Phone: 269-962-9693
Fax: 269-962-9592
rpwalsh@sbcglobal.net

[sevensees]

Thank you for all that info, Berta.

I'll try to get the VA decision to you when I have access to it, but I know that it states under the evidence "list": Social Security Disability Decision, and they mention it elsewhere in the decision as well, including the matching conditions.

I was looking up your "Go CUE yourself" post and you mention having to do it during an appeal period. Would we still be in that time frame? His NOD has been filed but not processed yet. At this point, its well beyond a year since the award... its been 2 years, but his NOD was filed on time. Also, does a CUE typically make the process go quicker?