ptsd Tdiu

[Berta]

There are often questions here about the EED for TDIU. I always thought Rod applied for TDIU in 1992-but I could not find his copy of the 21-8940.

I was wrong-

I also thought that an EED for TDIU usually could only go back one year prior to the date of the TDIU filing-for some reason-I was wrong there too-and want to clarify that-

About a year ago I asked my vet rep for a copy of the file he had on my old claims.

I looked through it today to see what CUE I had filed at the BVA that the VA is trying to re-open.

There was Rod's TDIU form dated and signed on May 14, 1994.

He was awarded 100% P & T in 1997 posthumously with an EED date of Nov. 1, 1991 -the last day he worked.

They had awarded a retro EED of 2 years and 11 months.

I think I have been wrong here- if I ever suggested that one year retro was all one could get on TDIU-

I know others stated that too-and somewhere we got that idea-and I heard this from an SO too.but even the BVA reveals that a EED can go back further with medical evidence.

Basically- he applied in 1994 for TDIU yet his EED was 1991.

His evidence was SSA for PTSD (with the same date Nov, 1, 1991 ) and a battery of 6 shrink test results -GAF 26 or 34-I forget -and maybe he even got both GAfs - a detailed psychiatric assessment that stated some of his stressors (confirmed stressors in USMC history and the Wall etc )and then ended with a statement that his PTSD was catastrophic, and also another letter from his Psychiatrist stating the veteran was unemployable due to PTSD.

My point is that- if you have medical evidence beyond the TDIU filing date that shows TDIU prior-the EED can be much more than a year.

Then again- this confuses me. The VA never mentions TDIU in the award letter and they never listed receipt of it.

They just mention the above evidence and state the veteran was 100% disabled by PTSD, total and permanent, due to his service in Vietnam, as of Nov 1, 1991.

Maybe I still am looking at this wrong-

would a 100% award be what generated the EED because it isnt called a TDIU award at all?

It was not schedular or extraschedular- just 100% SC P & T.

Any thoughts?

Edited September 27, 2006 by Berta

[Berta]

I think this is where I got that one year idea:

they are saying if the TDIU app is received within one year of TDIU date of evidence-then the EED can be the earliest date that TDIU was established.

Then again -the VA is supposed to determine TDIU as an inferred issue and send the veteran the 8940 if the evidence warrants it-

Now I believe , since VA never sent Rod the form , his claim for a higher PTSD rating was filed in 1992,and seemed to be in a rating board for a year or more-(they never got his SSA records for almost 2 years) but a county service officer came up to him at the Wall and said he would mail the 8940 to him-

it seems that the VA may have realised that his TDIU should have been an "inferred" issue.????

But they failed to get the SSA records for years-

you have to keep on them about this-call SSA in BAltimore if you have to-to make sure they get them.

A vet with SSA for the same condition they want SC for MUST make sure the VA really gets the records after the vet signs an authorization form for SSA. The last part of this statement from NVLSP supports that.

It is to the VA's advantage in most cases NOT to even attempt to get SSA records.

This does support something I always stress- file the TDIU form yourself and dont wait for the VA to send it.

The 60% or 70% rating criteria from vet reps is just plain bull.

This info is from:

http://72.14.207.104/search?q=cache:J3C6XB...=3&ie=UTF-8

Cant find the year however-

"Advocates should not wait to file claims for TDIU until the VA sends them the applicationform. The advocate can file an informal claim by simply sending the VA a letter stating that hisor her client wishes to be considered for TDIU benefits and asking the VA to send all appropriateforms so that the client’s claim can be perfected. **Advocacy Tip** Some veterans who have inferred claims for TDIU may be entitled toan earlier effective date for their TDIU benefits.64In Servello v. Derwinski,65the court heldthat the existence of an inferred claim for TDIU might have entitled the veteran to an earliereffective date because under 38 U.S.C.S. § 5110(:D(2), the effective date of an award ofincreased compensation shall be the earliest date as of which it is ascertainable that anincrease in disability occurred if the application is received within one year from such date.The court reasoned that because under 38 C.F.R. § 3.155(a), the VA was required to, butdid not, forward to the veteran a TDIU application form, the one-year filing period for such60. Id. 61. A copy of this form may be found in the Forms Appendix.62. See AB v. Brown, 6 Vet. App. 35, 38 (1983); see also Roberson v. Principi, 251 F.3d 1378, 1383 (Fed. Cir.2001); Norris v. West, 12 Vet. App. 413, 421 (1999). 63. See Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) (VA was obliged to consider issue of entitlement to TDIUbenefits despite the veteran’s not having filed the specific TDIU application form because “he has continually stated that he is unable to work due to his schizophrenia”); Roberson, 251 F.3d at 1384; Norris, 12 Vet. App. at 421.64. See Section 5.7.2 for a discussion of inferred claims. 65. 3 Vet. App. 196 (1992); see also Norris v. West, 12 Vet. App. 413, 420-21 (holding veteran filed an informal claimfor TDIU where evidence indicated veteran satisfied criteria under 4.16(a) and there was evidence of currentunemployability).

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5.4.10VETERANS BENEFITS MANUAL 12 Ch. 5. Settinga Veteran’s Service-ConnectedDisabilityRatingapplication did not begin to run.66Thus, as a matter of law, the inferred claim submittedprior to the date of a formal TDIU application must be accepted as the date of claim for effective date purposes. 5.4.10 Special Factors That Are Relevant to TDIU Determinations The following rules and other factors that are especially relevant to TDIU determinations: • When the VA has been put on notice that the veteran is in receipt of Social SecurityAdministration (SSA) disability benefits, it is obligated to obtain any relevant SSArecords, because SSA benefits, which are also based on a determination by SSA that theveteran is unemployable, are relevant to the determination of [the] appellant’s ability tosecure a substantially gainful occupation under 38 C.F.R. § 4.16;67• The simple fact that a veteran may be young, or may be highly educated, or may have beenrecently employed, or may have had a long work career are not decisive, and standingalone are insufficient justifications to deny a TDIU claim;68• If the veteran is taking medication to treat the service-connected disability, the VA shouldmake an assessment of the effects, or side effects, of the medication on the veteran’semployability;69and • Because the assessment of the cause of the veteran’s unemployability can be difficult incases in which non-service-connected disabilities and service-connected disabilities arepresent, the benefit of the doubt doctrine may be especially applicable to TDIU cases.705.5 SPECIAL MONTHLY COMPENSATION: STATUTORY AWARDS OFCOMPENSATIONSpecial Monthly Compensation (SMC) is a benefit established through statute that is paid inaddition to the basic rates of compensation payable under the Schedule for Rating Disabilities.71SMC is paid to compensate veterans for service-connected disabilities that involve anatomicalloss or loss of use, such as loss of use of a hand or a foot, or impairment of the senses, such asloss of vision or hearing. While the basic rates of compensation are predicated on the average reduction in earning capacity, special monthly compensation benefits are based on noneconomicfactors such as personal inconvenience, social inadaptability, or the profound nature of the 66. Servello, 3 Vet. App. at 196; see also Hamilton v. Brown, 4 Vet. App. 528, 544-45 (1993) (en banc); Quarles v.Derwinski, 3 Vet. App. 129, 137 (1992); but see Moody v. Principi, 360 F.3d 1306, 1307 (the effective date of a TDIUaward cannot be prior to the date that the first such formal or informal claim was made.)67. See Baker v. West, 11 Vet. App. 163, 169 (1998); Cohen v. Brown, 10 Vet. App. 128, 151 (1997); Hayes v.Brown, 9 Vet. App. 67, 73-74 (1996); Lind v. Brown, 3 Vet. App. 493, 494 (1992); Murincsak, 2 Vet. App. at 370-72;Masors, 2 Vet. App. at 187-88; Quartuccio v. Principi, 16 Vet. App. 183 (2002) (VA violated the duty to assist byfailing to obtain Social Security records when it had actual notice that vet was receiving Social Security benefits.) 68. See Gleicher v. Derwinski, 2 Vet. App. 26 (1992). 69. See Moyer v. Derwinski, 2 Vet. App. 289, 294 (1992); Mingo, 2 Vet. App. at 53. 70. Fluharty, 2 Vet. App. at 413.71. 38 U.S.C.S. § 1114. "

[10thFO]

Berta that's what I found the other night when reading the TDIU regs. They gave me TDIU for one year of filing. But in the next sentence admitted that they had recieved my employer report showing that the actual last date of employment was in fact another year and 5 months further back. So that is one of the things I'm going to appeal.

Seems like a lot of SO's stick with what they have heard or have dealt with. Then again, processing so many claims, I can understand the overwhelmingness. That seems more like a problem with the Organizations than the VA on that point though. If we had enough properly trained SO's then they could seek the proper claims and benefits the first time, instead of making vets have to wait for extra years for a proper decision

Matter of fact, I know the VA is backlogged, but I'm becoming to shift some of the blame off the VA to share with the Service Organizations, that are overwhelmed with claims. Maybe if they moved some of the money they spend for advertising and stuff to the Vets claims, then the bottleneck in their office and at the VA would reduce some.

I'm not letting the VA off, but there are serious issues all around with this process. Gives me another agenda to look into.

[john999]

Berta

You are right. I sent in my TDIU form, regardless of what my SO told me, as soon as I became unemployed even though I was just 30% at the time. I got paid 100% retro to the day I stopped working. The VA never would have sent me the form because even when I got 70% the said I was not IU. I had to fight another year for that rating, and another year for P&T and the earlier effective date. Neither my DAV So or the VA has ever lifted a finger to do a thing pro-active over the years. If you don't take it to them they do nothing.

[Berta]

Cripes I called the DAV in 1992 when Rod got the SSA award for PTSD and told him we would send it in with a copy of Washington V. Derwinski- a recent claim that showed that VA must acquire and consider SSA findings.

Actually SSA findings are usually a IMO from an SSA doc in most cases and a better assessment of ones disabilties then a 10 minute VA C & P.

I said to the DAV guy-this should help his claim right?

and he said "maybe, hard to say". I replied we had some COVA decisions too and were sending in the most recent one so they accept this as probative evidence.He asked me what COVA was and I thought I would die!

He sure never mentioned the TDIU form either and seemed surprised when we sent that in too and seemed mad that the County VSR gave it to Rod.

And of course he said that would not be considered at all- the TDIU form--"because the vet has to be 70% to get TDIU". What a dope.

Edited September 27, 2006 by Berta

[Vike17]

Berta,

If your husband was awarded 100% schedular that's probaly why the effective date was as such. Even though you sent the VA the IU application, it became a moot point with his 100% schedular rating for, I assume, his PTSD.

Does this make sense?

I'm willing to bet that, even though your RO seems really bad, the VA did this because it was more beneficial to your husband as far as the effective date and the retro. Could this be right?

Also this thing with the percentages with IU. Most of the time when a veteran applies for IU, they will see if the veteran can be increased in evaluation to the percentage requirements of IU. I'm willing to bet that if most veterans look at there rating decisions, this is what happended. If a veteran does not meet the schedular requirements of IU, it is very, very rarely sent tp the Director of Compensation in Washington, D.C. for approval. Having said that, I have seen this done a couple of times. One time for a skin condition, which the rating schedule had a maximum of I think 20%. The veteran looked really bad from his condition to where it was impossible that someone would hire him, and I think the other one was for migraines.

The main thing is if a veteran cannot work because of his/her sevice-connected disability, regardless of their percentage, they should file the IU application. This will protect the effective date. Why apply for an increase in evaluation, wait a year and be increased and then file for IU due to that percentage increase? A veteran just lost a possible year of compensation at the 100% rate!

Vike 17

Edited September 27, 2006 by Vike17

[Berta]

I think that makes sense Vike-the EED was 1991 but the award came in 1997-he had been dead for three years already-

Maybe that is why it was 100% P & T- because he died befotre they actually rated it.

I was eligible for- at time of his death -for a year accrued-then those regs changed and I got 2 years accrued.

When Bonny V Principi came out (now accrued benefits are ALL benefits due the deceased veteran)

there was a delimiting date of Dec 16,2003.

All spouses get all accrued if their spouse dies after that date.

I filed claim in Jan 2003 that-since the VA caused the veteran's death (Sec 1151/FCA) he could not last until Dec 16,2003, solely due to VA care thus they owe me all accrued.

They promised me a decision twice-in the past 3 1/2 years.

It will take a general counsel opinion I think.

They are working on all of my claims-except this one- I guess my 51 day remand got me some expeditious treatment -and when the other claims are done,if no decision on this one I will file a Writ of Mandamus.

3 yrs and 8 months with no decision so far is unusual for any claim.