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).

[Gastone]

K9: E Ben is OK but I really don't rely on it for accurate up to date info. When did you file for PTSD? I just read yesterday that a new VA FDC claim program went into effect. Any FDC filed in 2015, no matter what the issue, will be awarded Retro for 12 months prior to the filing of the FDC. Their giving you a Retro Bonus for using the FDC program.

As for checking your status with your VSO-Rep. I've personally found that in order to get the most up to date info regarding your claims or appeals, you actually need to contact your VSO's main office at your VARO. The reps out in satellite offices, even at the VA Med Ctrs, don't have the same computer access as their main office. Not that your going to get any earth shattering News, but they'll show VA Diary dates on your appeal. That didn't help me much, for over a year, kept telling me that diary dates had been missed. Finally I file A formal Request for a DRO Conference, to discuss evidence 02/14. Never heard back regarding that request. Early 05/14 got VA letter giving me a date of 06/27/14 for a Hearing. No information regarding was it pertaining to my 2010 NOD, 2012 NOD or the Request for the DRO Conference from 02/14. As it turns out, it was for only the 2010 NOD. But it worked out.

Semper Fi

Gastone

[K9MAL]

Jumping in here late, but I'd be on the phone to your NSO faster than lightning asking for some sort of explanation, assuming that the VFW is actually representing you. This could be nothing more than some sort of administrative error within the RO that's showing up in eBenefits.

Too bad that new chat feature on eBenefits doesn't work yet...

I just fired them last week. The nicest way I can put it is that both VSO's I dealt with from the VFW sucked, and that's putting it mildly.

[K9MAL]

K9: E Ben is OK but I really don't rely on it for accurate up to date info. When did you file for PTSD? I just read yesterday that a new VA FDC claim program went into effect. Any FDC filed in 2015, no matter what the issue, will be awarded Retro for 12 months prior to the filing of the FDC. Their giving you a Retro Bonus for using the FDC program.

As for checking your status with your VSO-Rep. I've personally found that in order to get the most up to date info regarding your claims or appeals, you actually need to contact your VSO's main office at your VARO. The reps out in satellite offices, even at the VA Med Ctrs, don't have the same computer access as their main office. Not that your going to get any earth shattering News, but they'll show VA Diary dates on your appeal. That didn't help me much, for over a year, kept telling me that diary dates had been missed. Finally I file A formal Request for a DRO Conference, to discuss evidence 02/14. Never heard back regarding that request. Early 05/14 got VA letter giving me a date of 06/27/14 for a Hearing. No information regarding was it pertaining to my 2010 NOD, 2012 NOD or the Request for the DRO Conference from 02/14. As it turns out, it was for only the 2010 NOD. But it worked out.

Semper Fi

Gastone

Never filed for PTSD. I went to my DRO hearing on several NOD contentions and it appears that they switched everything out to a new TDIU claim.

As much as I hate it I think I'm stuck in a "wait and see what happens" mode.

[TiredCoastie]

I just fired them last week. The nicest way I can put it is that both VSO's I dealt with from the VFW sucked, and that's putting it mildly.

Excellent choice of manuevers! If it were me, then, I'd be on the phone with the #800 and see what kind of answer you get...may even be right. You could also try an IRIS request but may take a while to get a response.

[ArNG11]

Im sure you probably did this, but make sure you send a copy to the VA revoking their Power of Attorney.

[Gastone]

K9: Any info on how your DRO Hearing was conducted, would be excellent info for all Hadit Vets. Mine started off as a Formal Hearing to be Recorded and Transcribed. After which I would receive the DRO Decision at some point hopefully in the near future, no date specified. I could request a copy of the Hearing Transcription, only problem being that it would take about 14 months to get. Then we dicussed "Door 2, "the Informal Hearing." The DRO told me just a back and forth between he and myself, no recording or transcription. He said at anytime during the Informa that I chose to go back on the Forma Record, we could. I asked him if he began recording, could I. I already had my recorder out and he said no proble with my recording if we went back on the record. 35 min later, all issues awarded from 10 & 12 with a written DRO Decision in my hand by 430 that afternoon.

Was your DRO Hearing held as a Formal and how was the dialog between the DRO and yourself conducted. Very rare to see Vet's postings regarding exactly how their 1st and usually only DRO Hearing was conducted. Were you allowed to ask questions of the DRO or only present N&M Evidence. Did your VSO-Rep prepare for the Hearing and actually participate or was it all on you? Did the DRO offer any advice on your claim or give you any clue as to his decision. Have you received a Sup Statement of Case yet, if not that could indicate a good decision. Exactly how long since your Hearing?

Semper Fi

Gastone