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]

I Never heard of a veteran turning down IU its so hard to get..

.but I suppose you can tell your RO what you told us that you want to stay in voc rehab and learn a good trade and work but you would like to file for increase on your current disability.

I don't think you can file NOD for IU if this claim has not been rated?

The reason why the RO DRO put in for IU is when you filed for increase on your current disability if it was 70% 80%currently then they have a duty to assist and giving you IU is a 100% rating using extra schdular they think that's is what your asking for to be rated 100% so they award the IU

to be rated 80% that is a highly rated disability that could prevent you from working.

This is just my opinion

Edited January 23, 2015 by Buck52

[ArNG11]

I will chime in as well on this. Mind you I know ebennies is the devil but I had something similar happen to me. I never asked for housebound or aid and attendance. Neither did I ask for SMC or IU, nor did I imply, however, ebennies is reporting the like. Now my claim states estimated completion date of May of 2016. The dates are really immaterial at this point because they are never right so no one should hold their breath on this information, I don't. I'm noticing that all the latests requests for information from the VA has been on ebennies, none have been solicited by mail or with a suspense date typical for these types of requests. Also I have an attorney. The VA should not be asking me for anything without going through my rain maker, this would be unethical and contrary to law would it not.??? It falls to the same old cliche, hurry up and wait. The phrase diversion, the ploy of divide and conquer is what comes to mind. Surely they would not blatantly blow off law and regs not that an attorney is involved would they. What did I step in because it sure doesn't smell right?

Edited January 23, 2015 by ArNG11

[ArNG11]

I Never heard of a veteran turning down IU its so hard to get..

.but I suppose you can tell your RO what you told us that you want to stay in voc rehab and learn a good trade and work but you would like to file for increase on your current disability.

I don't think you can file NOD for IU if this claim has not been rated?

The reason why the RO DRO put in for IU is when you filed for increase on your current disability if it was 70% 80%currently then they have a duty to assist and giving you IU is a 100% rating using extra schdular they think that's is what your asking for to be rated 100% so they award the IU

to be rated 80% that is a highly rated disability that could prevent you from working.

This is just my opinion

Buck I thought the IU was inferred if a single rating held at 60% or a combination of ratings held at 70% total it would be an inferred IU claim?

[ArNG11]

Oops found this:

§4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]

[ArNG11]

When I found this information I was hopeful, however, I think the VA has to go through the motions and if the ratings are close it has to be considered otherwise it would be contrary to law and regulation. In my case I am not a positive person, something smells off and now I am waiting for some type of trap to be sprung. I have been truthful with the VA so I am not concerned in that respect, however, I know the attack on credibility is coming and I am ready for it.

Do you or anyone else have updated information on the basis of IU and TDUI? Is there something different now or is this just the latest tactic finessed a little bit.

[K9MAL]

I Never heard of a veteran turning down IU its so hard to get..

.but I suppose you can tell your RO what you told us that you want to stay in voc rehab and learn a good trade and work but you would like to file for increase on your current disability.

I don't think you can file NOD for IU if this claim has not been rated?

The reason why the RO DRO put in for IU is when you filed for increase on your current disability if it was 70% 80%currently then they have a duty to assist and giving you IU is a 100% rating using extra schdular they think that's is what your asking for to be rated 100% so they award the IU

to be rated 80% that is a highly rated disability that could prevent you from working.

This is just my opinion

Thank you for the explanation. The bolded part you wrote is right on point. I'd like to be rated correctly per VA regs, and be able to work as much as I'm able to, not what the VA deems is acceptable.