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]

Be sure and check the SMP's if you are rated 100% IU or TDIU P&T another monthly benefit if you qualify !

lot of vets don't know about this benefit!

Also it's a good Ideal to keep your award letter in tact and all the benefits and letters of information that comes with it, keep it in a safe place, make copies or put on CD.

Those are very important papers!

Edited January 26, 2015 by Buck52

[iceturkee]

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?

i had a deferred IU claim at 60 percent, 40 for my back and 30 for depression. the shrink who did my depression c&p said my mental health condition would preclude me from working. four months later, i got IU.

[Gastone]

Carolinan & Ice: Did you get the T&P with no future exams Scheduled on your 100 or IU Award? My readings indicate that when the primary rating is a mental health issue, the raters are somewhat reluctant to go the extra yard on the T & P No Future Exam Route. Most PTSD Clinicians I've had contact with over the past 4 yrs, are of a general mind that they can improve a Vets symptoms with treatment.

Ice: Going from Doggie to Squid or vice Versa, definitely indicates a mental health issue. Probably untreatable. :-) In Jest only!

Semper Fi

Gastone

[iceturkee]

Carolinan & Ice: Did you get the T&P with no future exams Scheduled on your 100 or IU Award? My readings indicate that when the primary rating is a mental health issue, the raters are somewhat reluctant to go the extra yard on the T & P No Future Exam Route. Most PTSD Clinicians I've had contact with over the past 4 yrs, are of a general mind that they can improve a Vets symptoms with treatment.

Ice: Going from Doggie to Squid or vice Versa, definitely indicates a mental health issue. Probably untreatable. :-) In Jest only!

Semper Fi

Gastone

yes, i got p&t with my IU award.

[K9MAL]

Thanks to Gastone, several other posters, and a bit of research I'm going to let things roll with the IU. If it goes thru, great, and I continue school getting paid IU. If it doesn't, no harm, no foul I guess.

However, I don't like the fact that my NODs have disappeared from ebennies and the TDIU is listed as new with a date of 1/6/15. Does this mean the backpay is gone? Here's a screenshot of what I'm talking about. The original compensation and NOD is the comp dated 1/15/13.

[TiredCoastie]

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...

Edited January 26, 2015 by TiredCoastie