tdiu Tdiu Inferred But Not Wanted.

[K9MAL]

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).

[Buck52]

iceturkee

The rating board looked at your employment history and determined you could be not retrained and Inferred your clain to IU even though you were rated at 60%

They awarded you IU because you could not do the job you was trained for & because of your disability at 60% & if you filed for increase and with your new medical evidence must have shown your disability as got worse so since you can't do the job you was trained to do they award the 100% if they did not use the extra scheduler.

Normally if the veteran is rated 60% and they usually up the rating 90 % useing the extra scheduler, they rated you at the 100%rate.& IU because you met the VA criteria as being TDIU.

[broncovet]

Your issue is largely moot. Here is why:

If you are working, then you wont be awarded IU.

Also, since you are 80 percent and have sought an increase, there are two possibities

1. You get your increase to 100 percent schedular, and then IU will be moot.

2. You DONT get your increase to 100 percent schedular so, now:

A. If you do get awarded IU, then you can revoke it if you find work.

B. If you do not get awarded IU, then its moot.

[K9MAL]

Your issue is largely moot. Here is why:

If you are working, then you wont be awarded IU.

Also, since you are 80 percent and have sought an increase, there are two possibities

1. You get your increase to 100 percent schedular, and then IU will be moot.

2. You DONT get your increase to 100 percent schedular so, now:

A. If you do get awarded IU, then you can revoke it if you find work.

B. If you do not get awarded IU, then its moot.

I'm not working presently, only attending classes. One of the biggest things I'm confused about is do they look at the increase in percentages first (NOD), the inferred IU claim first, or is it in tandem? If they can award the IU claim do they just blow off looking at increasing the percentages to make it schedular?

I'm trying not to beat a dead horse but from Gastone's post it would appear that they can award IU and then the person can continue to fight for the increased percentages at the BVA level and beyond.

[Gastone]

To Whom it may concern: Earned Income and IU? Earned Income and 100% SC Schedular Limits? Vocational Rehab and IU Claim? 70-80 & 90% SC and relationship to unemployability?

A Vet rated as IU can have up to the current VA "Gainful Employment Income" level of $12,???.00 per year and still maintain his/her's IU Rating. This figure is after allowable deductions. If the Vet is self-employed or working in another type of shelter employment, his income above the $12K VA figure may be classified as "Marginal Income" and still not result in losing the IU Rating. Up until the Vet is 70 yrs old, he must report his yearly income. The VA is supposed to send out an income verification letter near the aniversary date of the IU Award and/or cross check IRS records.

A Vet rated at 100% SC Scheduler can earn the Sky's the Limit $$$. A Vet can be rated as IU and continue to file comp claims and/or NODS. IU is always a temporary rating until you've held it for the 20Yrs or turned 70, even if the award state "Total & Permanent with no future Exams scheduled." If a IU Vet earns above the "GEI" for 12+ months, his IU rating is up for grabs. Can't recall ever reading about a 70+ Vet getting reduced. What happens if you get your 100% Scheduler rating while IU, from a NOD or new claim? The monthly comp check stays the same, you might get more RETRO if it's due to a NOD Decision.

While the SC rating of 70-90% indicate a serious disability picture, they don't automatically indicate Unemployability. A Vet could have a great number of low % SC Conditions that might not, by themselves be a job killer. That's why a claim has to be filed. The VA DRO I had, stated that a large number of Vets file for IU and get denied because their either simply currently unemployed or under- employed and not due to their SC conditions.

VA Vocational Rehab and IU. You won't get denied IU just because your in the Voc Rehab program but the rater is supposed to review your Voc Rehab File. Your Councilor's statements regarding your current SC conditions and how they are affecting your progress with the Voc Rehab Reemployment Program can greatly assist or possibly hurt your IU claim. The VA Rater's and C&P Drs are not employment specialists. The Voc Rehab Councilors are the VA's trained professionals "Masters Degrees minimum requirement" and their assessment of your being Individually Unemployable or not, can make or break a IU claim.

Do you live in a State that has a 100% or IU rated Vet Personal Property Tax Exemption??????????????

Semper Fi

Gastone

.

[iceturkee]

iceturkee

The rating board looked at your employment history and determined you could be not retrained and Inferred your clain to IU even though you were rated at 60%

They awarded you IU because you could not do the job you was trained for & because of your disability at 60% & if you filed for increase and with your new medical evidence must have shown your disability as got worse so since you can't do the job you was trained to do they award the 100% if they did not use the extra scheduler.

Normally if the veteran is rated 60% and they usually up the rating 90 % useing the extra scheduler, they rated you at the 100%rate.& IU because you met the VA criteria as being TDIU.

the ortho doc who did my c&p said my back cdisability was not going to get better, only worse and said it precluded me from working.

[carolinian]

I put in for IU back in May of last year and when everything was said and everything was finalized in December 2014. The VA granted me 100% scheduler as things were shocking but the outcome was good. They gave me increases for a few conditions that were claimed and gave me IU for the first 6 months of 2014. I am glad that things turned out this way because it just gives me more options for the future. Do you research and seek advice and help from the wise. Just my situation and claim. Good luck