Jump to content
  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • Searches Community Forums, Blog and more

  • Ad Free Subscription.jpgOne Time Financial Gift.jpg

    Subscriptions and Gifts are NOT Tax Deductible. HadIt.com is NOT a Non Profit.

  • 0
Michaelreconscout

TDIU EFFECTIVE DATE

Question

This is a tricky brain buster.  I need all the help I can get, any recommendations are welcome!  

 

So this is a complex case.  I am about to receive a decision for a TDIU claim that I filed 3/2018.   I have alot of evidence, a good C&P exam for once, and a professional vocational evaluation, so I am thinking things are looking ok, but I know with the VA anything can happen, and ive seen it.  I am currently 80% combined (70% PTSD, 10%back, 10% knee, 10%tinnitus, 0%tbi) effective date 3/2005.  In 2008 I filled out a va form 21-8940, and filed for TDIU, (I was still 80%) combined.  This is what happened:

On November 8, 2007 my disability rating was a combined 80%(70%PTSD), I submitted a claim for increased evaluation based on individual unemployabilty.  “At the general rating exam the examiner said, you are prevented from working a position which would require long peroids of sitting or any lifting of any significant weight estimated at more than 10 lbs; however you could be employed in a sedentary position.  At the raiting for PTSD, the examiner said that you are unemployable due to your PTSD symptoms.  “(C-FILE).  My claim for increased evaluation based on induvial unemployabilty was denied. The VA proposed to reduce my PTSD disability from 70%-50% at the same time my claim for increased evaluation based on individual unemployabilty was made, this “proposal” was then used to make me “ineligible for making a TDIU claim”.  

“Based on your claim, we requested examination of your service connected disabilities for possible increased evaluation.  Based on the results of the examinations, we have proposed to reduce three of your evaluations for a combined evaluation of 60 percent.  Based on the results of the proposed reduction, you will not meet the criteria for entitlement to increased compensation based on unemployabilty in the absence of single disability evaluated 60 percent disabling, or a combined 70 percent disabling, with at least one disability evaluated 40 percent disabling. (C-FILE)”

On May 9, 2008, after closer review the VA proposed to continue my PTSD rating of 70%, with the original effective date June 5, 2005. Since the VA was required to, but did not forward to the veteran a TDIU application form 21-8940, the one year filing period for such an application did not begin to run. Thus, as a matter of law, the inferred claim submitted prior to the date of the formal TDIU application must be accepted as the date of claim for effective purposes. [38 C.F.R §3.155 (a)]

The VA will require that a veteran complete and submit a VA Form 21-8940 before it will formally pay a claim for TDIU benefits.  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.  [AB v. Brown, 6 Vet. App. 35, 38 (1983)] If either claim includes facts that indicate that the veteran is unemployable, the VA is obligated to consider and adjudicate a TDIU claim. [Collier v. Derwinski, 2 Vet App. 27=47, 251 (1992)]

 

After looking over my old claims files I found that the VA screwed me in 2008.  

Since the VA never sent me a form 21-8940 after they proposed to leave my PTSD at 70%,  and had knowledge from the C&P exam that I was unemployable,  my claim for TDIU was never properly adjudicated.  I believe this means that my effective date for PTSD/TDIU should go back to where the VA first learned I was unemployable due to PTSD.  They never sent me a form 21-8940. EVER

 

 

any suggestions/recommendations are WELCOME

 

Thank you for your service!

 

Share this post


Link to post
Share on other sites

Recommended Posts

  • 1
2 hours ago, Michaelreconscout said:

they said I was not eligible to make a claim for TDIU there was nothing to appeal. 

But that was an error, because the reduction never occured. This is CUE I believe. This is also why you need a lawyer on this, because the VBA will more likely run this into the ground than admit its error after 10 years back pay due. If the initial appeal to the BVA was rejected, it needs to go to the CVA. That requires legal council. To put together a CUE that will get there, you need a proper legal pleading.

  • Like 1

Share this post


Link to post
Share on other sites

Ad

  • 0

It might fly as a clear and indisputable error (CUE) because they denied the TDIU based on a reduction that never occured. I do not think they could give a valid response to a request for TDIU until your rating was determined. The basis for denial was clearly erroneous.

 

(see a lawyer, backpay on this should be enough to get them to carry this for you no charge)

Edited by pwrslm

Share this post


Link to post
Share on other sites
  • 0

Do you get SSDI and if so is that solely for the PTSD?

If so, when did the VA know you received the SSDI?

Did Voc Rehab ever turn you down, based solely on the PTSD?

You have " a professional vocational evaluation" so that sounds like great evidence.

There might be CUE in the older decision.

This stuns me:

 
"I am about to receive a decision for a TDIU claim that I filed 3/2018"

How do you know that decision is coming so soon?

 

Share this post


Link to post
Share on other sites
  • 0

I agree with Berta.  Another BIG issue is did the VA follow protocol on your reduction.  First they have to give you 60 days notice of a proposed reduction (PR)  AND give you an opportuntiy for a hearing on the PR.  If the VA reduced you without following protocol, the reduction should be reversed by the courts.  

Due to the amount of retro potential (TDIU since 2005) which is over 200,000 minus what you have received, you probably should consider hiring a lawyer.  At least send him your cfile to determine if you have a CUE.  

However, you may well be on the right track, here!  Filing for TDIU AGAIN is likely a great idea. 

1.  If awarded TDIU you can file a nod and dispute the effective date arguing for a 4.16 a and a 4.16 b TDIU.  

2.  If TDIU is denied, you can file a nod and, your claim is still pending so you have a shot at an earlier date if or when TDIU is finally awarded.  Remember, you can submit new and material evidence 38 cfr 3.156 B, on a pending claim and that goes back to the beginning of the appeal period.  

    Yes, yours is complicated, it sounds like you have had multiple decisions, a reduction that may not have been proper and, possibly CUE.  

Share this post


Link to post
Share on other sites
  • 0

Hi Berta

Do you get SSDI and if so is that solely for the PTSD? No I still dont have any SSDI

If so, when did the VA know you received the SSDI? None

Did Voc Rehab ever turn you down, based solely on the PTSD? No, Voc Rehab paid for me to goto school, but could never help me find a job.  

You have " a professional vocational evaluation" so that sounds like great evidence.

There might be CUE in the older decision.

This stuns me:

 
"I am about to receive a decision for a TDIU claim that I filed 3/2018"

How do you know that decision is coming so soon?.

I filed a Fully developed claim in March, and its now starting to move to decision phase, so Im only guessing that it will be with a couple months. the estimated completion date is July 2, 2018.  

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.


  • Our picks

    • Type 1 Diabetes recent onset!
      I was diagnosed with Type 1 diabetes in September 2017 OUT OF NOWHERE.

      i am a Navy Reservist and deployed in later 2009 to mid 2010 and again later 2014 to mid 2015; had a 2 year recall between those deployments.  

      Only healthcare received since commissioning in 2008 was from the Navy and no issues EVER.

      insulin dependent and have dietary restrictions and in a non deployable status.

      VA denied initial claim due to Type 1 not showing on active duty and now appealing.

      Anyone with successful experience getting a rating with my circumstances?  I live in Upstate New York.
      • 9 replies
    • Agent Orange Kadena Afb Okinawa
      I am looking for anyone who was on Kadena AFB, Okinawa or .Chanute AFB, IL. My dad was there from Oct. 68-April 70. He has ichemic heart disease, diabetes which has resulted in the amputation of his right leg below the knee and peripheral neuropathy. We were denied in 2002 AMVETS filed a claim on his behalf for heart condition, diabetes and back problems. I refiled in December 2011 and have just received the claim statements and medical release forms. I am familiar with filling out this paper work because my husband is a combat veteran of Iraqi Freedom. I have been reading articles from the Japan times and I am a member of the Agent Orange Okinawa facebook page. Another thing that helps make my dad's case is that he was on Chanute AFB, IL and it is on the EPA Superfund list and has PCBs/Pesticides and Dioxins/Furans listed as ground and water contaminants. I welcome any advice, tips or articles that I may have missed in my own research.
      • 15 replies
    • CBO Options for Reducing the Deficit: 2019 to 2028 Published Dec 2018
      CBO Options for Reducing the Deficit: 2019 to 2028 - This CBO Report has been making the news. This post includes parts relevant to veterans. Nothing has been decided as of yet and some seem very unlikely but you never know. Forewarned is Forearmed.

       

      https://www.hadit.com/cbo-options-for-reducing-the-deficit-2019-to-2028-published-dec-2018/
      • 8 replies
    • 2019 Veterans Benefits
      State Benefits, Space A and More ... https://www.hadit.com/2019-changes-to-veterans-benefits-state-and-federal/
      • 2 replies
    • Appeal granted and closed.
      My appeal was granted and closed on November 9.  I got an unofficial notification from the DAV on November 15 stating "appeal granted with an evaluation of 30%" which is great!  My question is this:  How long until I get the official notification from the va? Nothing on ebennies has updated since the appeal closed. Appeal is now in historical and just says complete and at originating va office. I understand no one knows va timelines to a tee but a general timeline would be great.  Thank you all! Hope you have a Merry Christmas!

       

      Edit:  This was my first time appealing and it was a VBA grant. 
        • Like
      • 6 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×
×
  • Create New...

Important Information

{terms] and Guidelines