tdiu Tdiu Extra Schedule

[RUREADY]

Do anyone know whether there is a va regulation that say " the RO cannot

ask for your claim to be consider or ask for extra-scheduler. I know I read this

somewhere but cant find where. A BVA judge has to do this be consider as such

.extra-scheduler

Edited December 25, 2014 by RUREADY

[Philip Rogers]

Gastone - sorry, I don't remember where I saw it. It basically relieved the RO from having to refer it to the VACO and placed the burden on the claimant. The RO can continue to deny, the TDIU claim, using the 38 CFR 4.16(a) criteria, thereby making the claimant think s/he's not eligible, while not quoting 38 CFR 4.16(b), which states the claimant may/could be eligible.

The VA's whole thing is to avoid awarding TDIU and keep the claimant confused, by not playing fair. And, sorry, but you cannot tell me it is not intentional, on the VA's part!! Most of the rules/decisions made by the OGC are used to allow the VA to deny the claim.

I did a claim for a vet about 12-14 yrs ago, where we requested ES-TDIU. It went to the VACO, was awarded and never had to go thru the BVA. His claim involved a skin condition, w/a max rating of 50% and had been thru his Congressperson, twice, w/o winning. They upped his 50% to 60%, by awarding 10% for scarring, and gave him 3.5 yrs retro of the 15+yrs retro they owed him. He chose not to appeal it, feeling it was best not to rock the boat. His choice, not mine. The claim took about 18 months to process, at that time. They had been paying him the pension rate for the 15+yrs.

It is imperative that any claim for TDIU should include the phrase that "the claimant is seeking the maximum award, allowed by law, and that an extra-scheduler rating should be considered and is requested."

jmo

pr

PR: If you recall where you saw the info regarding the Vet having to request E-S IU, please advise. The Vets I 'm in contact with have heard of IU but have for the most part, no idea what E-S IU is or anything about the rating. Any help you could provide would be appreciated, thanks.

Semper Fi

Gastone

[Philip Rogers]

Gastone - thinking about it, it's probably in M-21, the rules that tell the VA how to process the claim.

I do know that the VA denies TDIU claims quoting 4.16(a) but never mentioning 4.16(b). They did to me back in 1991, and continue to do it, thru today.

pr

[RUREADY]

I just seen this about two days from someone's post I believe but it says

the RO don't have the power to request ES this it has to come from BVA .and maybe

why I was never forward for ES because I sure did ask for it on all decisions at 40% but

I was unemployable at that time with doctors records. My attorney even ask the RO to send

it to the Director to be consider for ES but they never did and I'm thinking this maybe why.

I will keep looking for it. It is a lot of ES at BVA website most remand or denied but good studying

.

[RUREADY]

while § 3.321(b)(1) requires only "marked interference with employment," which is a somewhat less severe standard. See Thun v. Peake, 22 Vet. App. 111, 117 (2008); see also Stanton v. Brown, 5 Vet. App. 563, 564-70 (issue of extra schedular rating is separate from issue of TDIU rating). In other words, a claimant need not demonstrate total unemployability to obtain a section 3.321(b) extra schedular disability rating.

http://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1947

even on this it says it come from the (Board) I'm thinking BVA

Stanton v. Brown, 5 Vet. App. 563, 564-70 (1993

http://www.va.gov/vetapp11/files1/1101494.txt

the Board cannot assign an extra-schedular evaluation
under the provisions of 38 C.F.R. § 4.16(b) in the first
instance. Instead, the Board must refer the Veteran's claim to
the Under Secretary for Benefits or Director for consideration of
the Veteran's claim under the provisions of 38 C.F.R.
§ 4.16(b). If the Director determines that an extra-schedular
evaluation is not warranted, the Board then has jurisdiction to
decide the claim.

Edited December 26, 2014 by RUREADY

[Gastone]

PR: Thanks for the quick get back. This is a very interesting issue, more time researching & discussing is warranted. The Vet I'm talking to is 50% SC PTSD. He's fighting for 70. This guy is a 70+ in my lay opinion. I've been trying to get him to do an E-S IU claim, can't hurt and might get him 100% pay a hell of a lot quicker than his 1 yr pending BVA claim for the boost to 70. Tuff getting him to concentrate on the BIG picture.

Thanks

Semper Fi

Gastone

[Gastone]

RU: Just went back and read ur post. My reading would indicate that "IF" the BVA is deciding the case and determines that a E-S IU is warranted, unlike all other issues that they can award, they must refer (I Think samy same Remand) to the Director of C&P Dept. I don't think anything in the referenced reg would change or eliminate a possible referal for E-S IU to the Director by a SR VARO Rater or DRO. I believe that at the very least a VA Reg Required Review of claim due to N&M Post Decision Evidence would allow the VA Rater or DRO to advance the claim to the Director. That's just my lay interpretation based on very little time spent on the issue. For the Vet's sake, I sure hope I'm right and the claim doesn't need to wait yrs for a BVA hearing before E-S IU can be addressed. If you come accross any Vet postings that have personal experience with this issue, please advise, thanks.

Semper Fi

Gastone