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]

"does a CUE typically make the process go quicker?"

Three of us here have had fast success with that maneuver, requesting them to CUE themselves during the appeal period and yes you are still within the appeal period.

But VA is farting around with my most recent GCY request. Filed last year.

I filed a NOD in time but then also asked for a NOD extension for good cause.....and that put a knot in their underwear. I think.

I did that because I like to play war games.

I however am not facing any concerning financial situation as your father is.

You sure did your homework on VAOLA:

"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."

Yeah, and your concern is VERY valid and maybe a lawyer could file for hardship in a way to ward off any potential incompetence

BS.

But I dont even know if the VA, at the regional level ,would handle a hardship claim.

And yes to the fact that VA created an almost entirely arbitrary and unfair claims process and they definitely created the whole backlog itself.

And we claimants are victimized by their incompetence.

[Berta]

I have been re thinking my advise here----

I thought back to why my other GCY claims got resolved faster then the one I have pending.now ....

I forgot....I filed those older past CUEs during the appeal period ,but prior to filing the NOD.....

And I filed them as VA complaints via IRIS.

Plus I faxed copies of them to the RO.The RO Fax numbers are here somewhere under a search.

If you talk to any of the lawyers I mentioned here, it might be good to see how they feel about filing the GCY that way. Via IRIS.

I always type and save my IRIS inquiry or complaints in Word or my OOO program, to edit it and to make sure I have clearly stated my legal gripe , so that even a ten year old could understand it.

Or a vet lawyer may have a better way to deal with all of this.

Did your father have anyone as his POA on the last decision?

You said "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."

I found that when VA gave me decisions that were illegal and unacceptable based on the evidence they had, that ,depending on how egregious their errors were, I certainly raised quite a ruckus.

A legal ruckus.... because the same regs they control us with ,are the way we can control them.

Question....are you 100% sure they received the NOD?

and have you ever IRISed them for a status?

This looks to me like a legal violation of 38 CFR 4.6.

"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

http://www.law.cornell.edu/cfr/text/38/4.6

as well as the M21-1MR link I gave you.

(However it is the decision itself that holds the keys to determining what their legal error actually was)

[carlie]

Important to also keep in mind that just because SSA states a person is

100% disabled (unemployable) for SSA purposes -

does automatically make the person unemployable under the criteria for vba purposes.

jmho

[Berta]

Since the NOD was already filed, maybe best to just see what the VA says as to the NOD.

Since a NOD is our first avenue of attack, I suggest that a NOD should not be just a mere statement of disagreement but also include why they are wrong, supported by evidence.

If they made a legal error as well as an inaccurate medical decision, the NOD is the time to raise all arguments possible, to get a proper resolve.

"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 tell us exactly what the decision said as to how they considered the SSDI award?

I feel they should have inferred TDIU based on what you posted here, but VA doesn't care about should haves.

I think they violated 38 CFR 4.1 et all. That reg is available here under a search.

But did he file a TDIU 21-8940 form as well?

My deceased husband ,at 30% SC for PTSD, was awarded SSDI solely for his PTSD. VA ignored the SSDI award for 2 years prior to his death and for 3 years more after he died.

I fought them aggressively.

I received his 100% SC PTSD P & T award , as an accrued survivor's benefit ,3 years later. It held a very favorable EED that was based on the SSDI award date.

It didnt so him any good because he was dead. The VA had ample evidence, in his lifetime, to make the 100% SC PTSD award to him.

It does not matter what SC a vet has if it causes them ,by medical evidence ,to become unemployable, they need to file for TDIU.

VA usually only infers TDIU and sends out the 21-8940 form when their rating hits 70% SC.