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Tdiu Inferred But Not Wanted.

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K9MAL

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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yes when a veteran has a sc disability rating 60% but does not meet the % standards for tdiu for rating purpose then the VA looks at the veterans disability and if that service connected disability keeps the veteran from having substantially gainful employment then they use the extra schedular 416 (b) to be total disable, since he is 80% current that is a crippling disability that could keep him from working so they award the IU. also voc rehab and a history of employment is factor in.

You can not NOD something if it has not happen! if he is awarded tdiu then if he don't want that rating yes NOD it..

This veteran wants to be rated at 100% and can still work without jeperdizing his compensation.

I am not sure on the 100% disability rating as to how much he is allowed to make? TDIU a Veteran is not allowed to work or he will be reduced back to 0%...I Think that goes for his currant ratings also? but again I am not sure? I am never sure with the VA. sometimes they make up their own laws.

just my opinion.

Note, I am not a attorney and take no resposability to be held liable for any information on these boards.

Edited by Buck52
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K9: Chasing the 100% Scheduler is a tough route. Ur at 80% and unless there is something "New & Material Evidence" wise regarding you currently rated claims, good luck. Even a New Condition rated at 50% would only get you to 90%.

You have to do what you think is right and are comfortable living with. All our opinions and $2.00 will get you a cup of coffee. File the claim for IU, you either are or aren't IU, right. It will take at least 6 months for a Decision and your DRO Request and all other claims will continue. If you get the IU Award and find you just can't live with it (UFB), fight through your SC Disabilities and find a $60K+ a year job. Just because the VA rates and pays you 100% rate, you can get the rating reduced back to your actual SC rating by earning in excess of the $12,???.00 Single person Poverty Level income for 12 months. As with everything regarding your VA claims, it's always up to you. Sometimes your right but on this I think your wrong. Just my opinion, next time I see you, I'll give you the $2.00 for the coffee.

Semper Fi

Gastone

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Gastone - The 2 NODs I have filed would bump one rating from 30% to 50% and another rating from 10% to 60% if everything works out right and that puts me at 100% schedular. I know it's a long shot and I know that it's highly unlikely but I do have the evidence that matches up with the CFR.

File the claim for IU, you either are or aren't IU, right. It will take at least 6 months for a Decision and your DRO Request and all other claims will continue.

What I'm trying to understand is if the 2 work concurrently. If they decide IU is appropriate then do the 2 NODs simply just vanish? What about the associated backpay? Do they grant someone IU and then look to see if it's appropriate for them to have their NOD contentions looked at or is it just simply swept under the rug?

I'm buying the coffee when this is resolved. ;)

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K9: i just got around to chking your previous posts, sorry could have saved some time. When you reach a certain SC Scheduler rating you get an "Inferred Claim" notification from the VA Rating Dept. This is usually in the form of an additional page being added to your recent Award. Just because you receive this "Inferred Claim" notification doesn't indicate that you are actually "Individually Unemployable" at that particular time. You may or may not be. All the VA is indicating to you is that with your recent award you are eligible to file for IU if you are in fact "Individually Unemployable" per VA Criteria. That's why you must file the claim if you think your eligible for IU. I'll have to look back at the IU reg, but as I recall if you had multiple ratings with a combined total in excess of 70%, 1 had to be at least 40% to qualify for the Scheduler IU Filing. That's not to say the Rater wasn't discussing referring your claim for extra-scheduler IU rating to the Director of Comp & Pension. Only time will tell on that. You may not have to file anything. You have a shopping list of SC problems which any one may or may not make you IU but when taken as a whole, in my lay opinion, your pretty screwed up. Even for a Squid.

As to your ? regarding what happens to your NOD's if you get IU. I was just awarded IU 06/14 from DRO Hearing req 2010 & IU 2012. All major issues from both NODs awarded. However, there were (2) insignificant NOD Issues from 2010 that I knew would not be reversed. The DRO said I could proceed to the BVA on those if I chose to do so. I knew they were losers from jump back in 2010. So I signed a VA Withdrawal of NOD on those 2 issues, made the DRO Happy. He had already told me he was awarding all major $$ issues from both NODS, making me VERY HAPPY.

You mentioned a SA DX. Unless you have an inservice DX or Sick Bay medical records regarding sleep issues, you need a SA Specialists to link (NEXUS) you SA to one of your current SC Conditions. I've had a SA SC rating since 2011 secondary to CAD. DXing Dr needs to do the old "more likely than not" due to your SC condition or your pretty much screwed.

Do you have a VSO-Rep? Even if you don't use them, the Main VSO office might be able to check on if your IU was Inferrred as Extra-Schedular and forwarded to the Director of Comp & Pension. Good Luck

Semper Fi

Gastone

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K9: i just got around to chking your previous posts, sorry could have saved some time. When you reach a certain SC Scheduler rating you get an "Inferred Claim" notification from the VA Rating Dept. This is usually in the form of an additional page being added to your recent Award. Just because you receive this "Inferred Claim" notification doesn't indicate that you are actually "Individually Unemployable" at that particular time. You may or may not be. All the VA is indicating to you is that with your recent award you are eligible to file for IU if you are in fact "Individually Unemployable" per VA Criteria. That's why you must file the claim if you think your eligible for IU. I'll have to look back at the IU reg, but as I recall if you had multiple ratings with a combined total in excess of 70%, 1 had to be at least 40% to qualify for the Scheduler IU Filing. That's not to say the Rater wasn't discussing referring your claim for extra-scheduler IU rating to the Director of Comp & Pension. Only time will tell on that. You may not have to file anything. You have a shopping list of SC problems which any one may or may not make you IU but when taken as a whole, in my lay opinion, your pretty screwed up. Even for a Squid.

As to your ? regarding what happens to your NOD's if you get IU. I was just awarded IU 06/14 from DRO Hearing req 2010 & IU 2012. All major issues from both NODs awarded. However, there were (2) insignificant NOD Issues from 2010 that I knew would not be reversed. The DRO said I could proceed to the BVA on those if I chose to do so. I knew they were losers from jump back in 2010. So I signed a VA Withdrawal of NOD on those 2 issues, made the DRO Happy. He had already told me he was awarding all major $$ issues from both NODS, making me VERY HAPPY.

This was very helpful. Thank you!

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yes when a veteran has a sc disability rating 60% but does not meet the % standards for tdiu for rating purpose then the VA looks at the veterans disability and if that service connected disability keeps the veteran from having substantially gainful employment then they use the extra schedular 416 (b) to be total disable, since he is 80% current that is a crippling disability that could keep him from working so they award the IU. also voc rehab and a history of employment is factor in.

You can not NOD something if it has not happen! if he is awarded tdiu then if he don't want that rating yes NOD it..

This veteran wants to be rated at 100% and can still work without jeperdizing his compensation.

I am not sure on the 100% disability rating as to how much he is allowed to make? TDIU a Veteran is not allowed to work or he will be reduced back to 0%...I Think that goes for his currant ratings also? but again I am not sure? I am never sure with the VA. sometimes they make up their own laws.

just my opinion.

Note, I am not a attorney and take no resposability to be held liable for any information on these boards.

having a total service connected disability at 60% (back and depression), the rating board looked at my educational history (college degree), employment history (news reporter) and determined i could not be retrained. they gave me IU but it wasn't determined to be extra schedular.

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