tdiu Inferred Claim Of Tdiu

[john999]

If an inferred claim of TDIU is raised in a claim and the TDIU is not addressed by the VA is this CUE?

What I am reading in the VBM 5.4.9 page 325 is that if a claim includes facts that indicate that the vet is unemployable, the VA is obligated to consider and adjudicate a TDIU claim. Also, in 5.7.2 of the VBM it states the VA must also adjudicate those issues which are reasonably raised in all documents or oral testimoney submitted prior to a final agency decision. In CUE claims the VA must give a sympathtic reading to the veteran's filing in the earlier proceeding to determine the scope of the claims.

In my claim my doctor said I was unable to work and frequently incapacitated and the VA never treated this like a inferred TDIU claim. They specifically stated that the IU regs did not apply in my case.

[Guest fla_viking]

Dear Jhon

I read some case law wherein the court ruled the VA's failure to address issues raised before them allows the case to remain open. I would say if you win a IU claim years latter and that IU claim was raised before the VA and appealed when denied and ingnored. That would be a CUE issue.

Terry Higgins

[john999]

Terry

It is tricky because the VA never addressed my inferred claim of TDIU back in 1972, but in 2002 I filed for TDIU and was denied TDIU and then appealed the denial and was granted IU in 2003. My retro date went back to 2001. In between I did work for a period but there was a long period in the 70's and 80's when I was under or unemployed.

[Objee]

Terry

It is tricky because the VA never addressed my inferred claim of TDIU back in 1972, but in 2002 I filed for TDIU and was denied TDIU and then appealed the denial and was granted IU in 2003. My retro date went back to 2001. In between I did work for a period but there was a long period in the 70's and 80's when I was under or unemployed.

John999,

I think Terry's right but you may have to fight the RO trying to bring up the new "deemed denied." (The Fed. Cir. held that "[w]here the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run." (citing Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005)).

Shouldn't apply to you for 1972, but with VA "law", you never know since you'd be CUEing after this case was decided.

Ralph

[Vike17]

The only way the VA can legally infer the issue of IU is if the claimant's record show he/she is unemployable due to their service-connected disability(ies) and meets the schedular requirements of IU according to §4.16. Take a look at M21-1MR, Part 3, subpart 4; M21-1MR, part IV, Subpart 2, §2.f.25; VAOPGCPREC 6-99; and Noriss v. West, 12 Vet, App. 304 (1999).

The only thing you may want to do is check to see want rules were in place in the early 1970's, but I'm willing to bet they were pretty much the same as now.

Vike 17

[Berta]

Andrews cannot be assessed without the context of Deshotel:

http://72.14.205.104/search?q=cache:8TEeiH...=3&ie=UTF-8

NVLSP and the AL have addressed this issue since the Andrews opinion was rendered:

http://72.14.205.104/search?q=cache:YrcjB5...=7&ie=UTF-8

In essense they are saying that a veteran or their vet rep has to NOD an undecided or inferred claim-

In Feb 2007- since I have a claim filed in Feb 2003 under Bonny V Principi regs-that I was promised "administrative decision" on twice by the VARO VSM-yet appears to be off their radar-

I will file a NOD as they suggest and also a Writ ogf Mandamus- and see how that goes-

I think these 2 decisions have to be read very carefully-

I filed 6 claims, and withdrew one-changed it into CUE-

Four -they have been working on- although the AO claim was denied first in 2004-still this does not reflect what the Fed Cir quote says-

However when I got the illegal transfer to the BVA that they remanded-

one claim that they added to the main appealed claim- has never been decided-

and I challenged that point in my remand request-

it sounded like an Andrews attempt=

They did not cite Andrews or Deshotel and that claim is now presently with the rating board.I dont think they could pulled that anyhow-on me-

Andrews and Deshotel involve specific scenarios that do not apply to all claims.

[carlie]

"If an inferred claim of TDIU is raised in a claim and the TDIU is not addressed by the VA is this CUE?"

John,

As far as I understand you can only call CUE on a final, unappealed decision. It sounds to me like your inferred TDIU claim would have still been pending.

Is there a difference in inferred and informal claims written somewhere ?

carlie

§ 3.155 Informal claims.

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

(b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

© When a claim has been filed which meets the requirements of §3.151 or §3.152, an informal request for increase or reopening will be accepted as a claim.

Cross References:

State Department as agent of VA. See §3.108. Report of examination or hospitalization—as claim for increase or to reopen. See §3.157.

[26 FR 1570, Feb. 24, 1961, as amended at 52 FR 27340, July 21, 1987]