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Tdiu Inferred But Not Wanted.


K9MAL
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Question

I had a DRO hearing regarding 2 EED (Earlier Effective Date) issues and 2 ratings that I wanted to have increased. I'm currently waiting on the DRO's decision. I did not request TDIU but noticed last night on eBenefits that my contention is now listed as TDIU. I only want my ratings to be judged by the evidence that they have and do not want an inferred claim of TDIU. How can I prevent being labelled IU? Will not filling out a 21-8940 suffice? It doesn't sound like it when you read the quoted below.

My reasoning is that I would like to continue to have the freedom to try to engage in substantial gainful employment, if at all possible, and to the best of my abilities in the future. I do not want to be harnessed by the VA’s rules regarding IU and wish to pursue a career where I can find a balance between my injuries and my employment.

However, a veteran is not required to file this application form before the VA is obligated to consider and adjudicate a TDIU claim. When a veteran files an original claim for evaluation of a disability or a claim for an increase in the evaluation of a disability that has already been rated by the VA, the claimant is generally presumed to be seeking the highest benefit allowable. 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).

Equally, when a claimant or the evidence of record reasonably raises a an informal claim for TDIU, the Secretary must furnish the claimant the form (VAF 21-8940) as prescribed by the Secretary. (38 C.F.R. 3.160)

***The VA Decision/Notification Letter should at least include a VA form 21-8940 as an attachment.***

If the VA has failed in compliance of any of the aforementioned on a failure to infer a claim for TDIU, then the veteran may have a basis to file a Clear and Unmistakable Error (CUE), these are very specific allegations of error, that are essentially a facial, and collateral attack on VA, and are given no deference via the VA's "duty to assist", nor is there ANY application of reasonable doubt doctrine (38 C.F.R. 3.102).

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Don't want to be labeled IU, Please. Are you currently gainfully Employed ($12,500+) earned income per year? Do your current SC conditions limit your ability to work? If yes to both your inferred as IU and probably qualify. Don't want it, don't send in claim, it's not automatic.

Even if you were awarded IU, the VA prays that you'll eventually fine a "Gainful Income Employment" at some time in the future. They even send you notification on your being eligible for the VA Vocational Rehab Program in an effort to find a job that you might be interested in and qualified for. Once you find a "GIE" job you must keep it for 12 months before your in a position to lose the IU rating and revert back to your SC Comp Rate.

Soooooooooo, as with all decisions regarding your claim, do your due diligence researching IU before you make a decision that you might regret in years to come.

Semper Fi

Gastone

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If he takes the IU he can keep getting paid the 100%rate for a year (over 3000.00 grand a year) and work too? and then they will reduce the IU back to 0%.??

But if he did that, he will probably be denied on his increase he is wanting. so I take it he wants to work & not have IU. But an increase in his current disability's?

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I agree with Gastone, don't quite get the issue?

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Don't want to be labeled IU, Please. Are you currently gainfully Employed ($12,500+) earned income per year? Do your current SC conditions limit your ability to work? If yes to both your inferred as IU and probably qualify. Don't want it, don't send in claim, it's not automatic.

Even if you were awarded IU, the VA prays that you'll eventually fine a "Gainful Income Employment" at some time in the future. They even send you notification on your being eligible for the VA Vocational Rehab Program in an effort to find a job that you might be interested in and qualified for. Once you find a "GIE" job you must keep it for 12 months before your in a position to lose the IU rating and revert back to your SC Comp Rate.

Soooooooooo, as with all decisions regarding your claim, do your due diligence researching IU before you make a decision that you might regret in years to come.

Semper Fi

Gastone

I want to be rated per the CFR and still be able to work as much as I possibly can. If it's not automatic than why would there be an inferred claim? Maybe I don't understand all of the implications but to answer your question, currently I'm in Ch. 31 going to school.

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But if he did that, he will probably be denied on his increase he is wanting. so I take it he wants to work & not have IU. But an increase in his current disability's?

That's my concern. If they rate me as "IU" will they just blow off my NOD for an increase on the percentages of my current disability?

I'm trying to increase those to the appropriate amount, not just jump to IU, in hopes that I can still continue to work. If they rate me appropriately, as per the CFR and the evidence that's been presented by my doctors, then I'll be 100% schedular and the IU will be immaterial.

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Don't want to be labeled IU, Please. Are you currently gainfully Employed ($12,500+) earned income per year? Do your current SC conditions limit your ability to work? If yes to both your inferred as IU and probably qualify. Don't want it, don't send in claim, it's not automatic.

Even if you were awarded IU, the VA prays that you'll eventually fine a "Gainful Income Employment" at some time in the future. They even send you notification on your being eligible for the VA Vocational Rehab Program in an effort to find a job that you might be interested in and qualified for. Once you find a "GIE" job you must keep it for 12 months before your in a position to lose the IU rating and revert back to your SC Comp Rate.

Soooooooooo, as with all decisions regarding your claim, do your due diligence researching IU before you make a decision that you might regret in years to come.

Semper Fi

Gastone

So, if they bump me up to the IU rating what will happen to my existing NOD in terms of increasing the percentages? Do those still get adjudicated? Can I still take them to the BVA if I don't agree with the RO's decision to leave them at the current percentage?

If I take the IU, get a job after school, and start making decent money what percentage will I revert to? The current one or the one that I'm trying to get it raised to? It's not that simple from my perspective.

I'd love to be in school, Ch. 31 and getting 100% IU for the time being. It would help tremendously! However, how will the IU rating impact my ability to get 100% schedular?

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