TDIU EFFECTIVE DATE

[Michaelreconscout]

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!

 

[pwrslm]

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.

[pwrslm]

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 May 4, 2018 by pwrslm

[Berta]

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?

 

[broncovet]

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.  

[Michaelreconscout]

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.  

[Michaelreconscout]

41 minutes ago, broncovet said:

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.  

The Va gave 60 days, only proposed the reduction, I provided a Notice of Disagreement, they used this letter, along with another examination of my medical records to determine to leave me at the 70%, no REDUCTION, they never gave me a hearing, 

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.  

I know I have the CUE but I dont want to use until last option, I would like to file to re open the claim once I am receiving TDIU.

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.  THIS!!

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.  

THANK YOU!!