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.

[john999]

An inferred claim for IU would be something raised in a claim that indicated the veterans was unemployable due to his service connected condition. No formal or informal claim needs to be filed if there is evidence in the VA's possession that the vet is IU. It is a lot easier if the vet files for IU, but the VA is supposed to adjudicate it anyway. If does not just affect IU but any condition where there is evidence of disability. For instance, a vet has a DMII claim but states that he also suffers from anxiety and depression. This could be an inferred claim for a mental disability. It is up to the VA to adjudicate this where there is evidence or oral testimony of a disability. This is what the VBM says. Just because the VSO's and VA does not adjudicate inferred claims very often does not mean they should not do it. I am not just making this up. It comes right out of the VBM under Inferred Claims and Claims for TDIU.

[LarryJ]

So, I've got a question:

If, when I filed my claim, I sent to the RO a couple of IMOs and my award letter/med records from the SSA and yet did not file a TDIU, would they not have to consider that I did, by sending them my SSA award letter/med records, that I was also applying for IU, for you cannot draw SSDI unless you are totally disabled?

Would it not be "inferred" that I expected the same "rating" from the VA as I had already proven that I had received from the SSA?

[Guest jangrin]

LarryJ,

Thats how it has been explained to me. I thought that the VA was supposed to consider TDIU without the form and without "tdiu" being officially applied for in the claim.

However, as we have heard horror story after horror story the VA gets away with ignoring the rules and regulations. Why? BECAUSE THERE IS NO PENALTY TO THE PEOPLE WHO SIDE STEP THE VA'S OBLIGATION TO THE VETERAN. Remember , in most cases it takes an act of congress for a government employee to loose their job.

I think it is easier to deny the claim than it is to award. Less work for the VA emoloyee.

Edited December 17, 2006 by jangrin

[Berta]

This is what gets me- the VA will usually not "infer" TDIU issues unless the vet already has 70%.

They dont even send the 21-8940 to many vets-

I whip them out like crazy and tell many vets to attach the 21-8940 to their NODs.

I think that only the receipt by VA of the TDIU 21-8940 form- in most cases will get them to consider TDIU.

As you all know I get pissed at vet reps who advise against filing these forms if the vet has less than 70 % SC.

The TDIU claims I have worked on prove this is not true and not at all is there any % criteria on the form itself.

I think it was 2 years ago this Christmas-

helped a vet get 100% and then he emailed me about a friend of his-never filed a claim before with VA.

The evidence was all current treatment records for PTSD from a private psychiatrist.

I sent him the TDIU form, told the vet how to fill it out, and then in less than FOUR months, this vet got TDIU and retro.

From the very same VARO who has refused to give me basic due process-and acknowledge my medical evidence for four YEARS!

The TDIU form protects the earliest date of entitlement-

if they infer TDIU and do eventually award -God knows what EED they would give-

[john999]

Larry

If your SSA records say you are disabled from all work then I believe that is an inferred claim for TDIU. I believe that the VBM addresses that very point. According to the VBM if the VA has to adjudicate issues that are reasonably raised in all documents or oral testimony submitted prior to a final agency decision. The VA will fight this, however. I know because I raised the inferred TDIU issue when I got SSDI and disability retirement. The VA side stepped it and granted IU for the same date but for a different reason. The reason for me was a hospitalization that was the same day as the day my disability began according to SSA. I have a diagnosis of DMII in my records and the VA granted me a effective date of the day I had my C&P exam after I filed a claim. They would never have granted me SC for DMII as an inferred issue. They just wait until the vet is dead.

[LarryJ]

"They just wait until the vet is dead."

That is such a sad statement. Sad because of the truthfulness of the statement.

I'm gonna try not to repeatedly repeat what I've already repeated, but:

I've got a disability.

I've got a documented incident "in service".

I've got a "nexus" between the two. A documented nexus that the VA ADMITS in their BVA remand.

I'm drawing SSDI because of this documented inservice incident and disability.

and, yet, I wait.......................three years now and counting......

who knows, maybe the United States of America and their VA minions will get lucky..............maybe with this depression that I suffer..............maybe I'll just go ahead and save them from having to put me off any longer and just simply put MYSELF outta my misery.

I'm SO proud to be a vet and SO proud of the excellent care that the USofA takes of us vets...........