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!

 

[broncovet]

I pretty much agree what has been posted.  38 CFR 3.103 gives Vets certain rights, that is, the right to a written decision.  You also have a right to appeal, and, VA has a responsibility to give you notice of your appeal rights.  I think them not giving notice, tolls the time period to appeal.

However, you still have to deal with this bit about "you could perform sedentary work".  Did your doctor say you could do this??  If your doctor said you could perform sedentary work, then you are "not" unable to maintain substantial gainful employment due to sc conditions BECAUSE your doc suggests you can work if you change your career to do some type of sedentary work.  

However, social security has special laws  for disability applicants over 55.  Its not practical for a over 55 construction worker to go back to school and learn to be a computer nerd.  If you are under 55, then you have to do that, but over 55 you are given a presumptive that this is not practical.  

Did you get social security disability 1, and what were social securities reason for this?  That is, did social security give you disability for conditions that are service connected?  If so, you should get TDIU.  

Now, back to effective dates.  

Read this:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

Read number 3, beginning on page 24.  

[Michaelreconscout]

6 hours ago, paulcolrain said:

SO DOES YOUR ARGUMENT REST ON THE VA NEVER SENT THE FORM? AND YOUR REAL QUESTION IS HOW TO PROVE IT WHEN THE VA SAID THEY SENT A FORM BUT DIDNT???

ID LIKE TO KNOW HOW TO PROVE THAT AS WELL. SO I WILL KEEP LOOKING BACK AT THIS TO SEE OTHERS POINTS. 

ALL VA correspondence is logged and recorded you can access in your c-file, sometimes if the VA mails to the wrong address the date for appeal is still open.  

 

my argument rests on 1) the VA never properly evaluated me for TDIU, they also never sent me a form 21-8940.   2) they never denied me TDIU, they just said that I was not eligible because I did not have a SC that was 60%, all because they proposed to reduce.  I was 70% PTSD, they never reduced me, My PTSD effective date is 3/2005.  The VA had to evaluate my claim for TDIU because I was eligible, and they had knowledge of my unemployability 

[Michaelreconscout]

4 hours ago, broncovet said:

I pretty much agree what has been posted.  38 CFR 3.103 gives Vets certain rights, that is, the right to a written decision.  You also have a right to appeal, and, VA has a responsibility to give you notice of your appeal rights.  I think them not giving notice, tolls the time period to appeal.

However, you still have to deal with this bit about "you could perform sedentary work".  Did your doctor say you could do this??  If your doctor said you could perform sedentary work, then you are "not" unable to maintain substantial gainful employment due to sc conditions BECAUSE your doc suggests you can work if you change your career to do some type of sedentary work.  

However, social security has special laws  for disability applicants over 55.  Its not practical for a over 55 construction worker to go back to school and learn to be a computer nerd.  If you are under 55, then you have to do that, but over 55 you are given a presumptive that this is not practical.  

Did you get social security disability 1, and what were social securities reason for this?  That is, did social security give you disability for conditions that are service connected?  If so, you should get TDIU.  

Now, back to effective dates.  

Read this:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

Read number 3, beginning on page 24.  

 

The Dr did not specify wether it was sedentary or not at that time.  My current doctor and vocational evaluation say both.  The problem is that it doesn't matter, once the VA had knowledge of unemployability due to SC AND that SC is under TDIU criteria (ie 70%PTSD) then they have to send out the 21-8940 form and evaluate you.   This evidence of unemployability was from a C&P examiner for PTSD 2006.  

 

I dont get any SS disability. 

im not over 55

I read that entire pdf, thank you it cites Cases as well, I have a bunch of cases similar to mine that have gone to VC

 

[paulcolrain]

22 minutes ago, Michaelreconscout said:

2) they never denied me TDIU, they just said that I was not eligible because I did not have a SC that was 60%, all because they proposed to reduce.  I was 70% PTSD,

ok so i would agree with you that the TDIU seems as if it was never properly adjudicated in 2005 or 2006... 

did you appeal that after? 

or maybe what your saying is that when the ptsd exam stated you cant work then va should have granted you tdiu.

my question is then,,, could the va say that you filed the tdiu in 2005 and after it was closed you never asked for it to be reopened once the ratings didnt get lowered.?

Edited May 27, 2018 by paulcolrain

[paulcolrain]

On 5/4/2018 at 3:32 PM, Michaelreconscout said:

 In 2008 I filled out a va form 21-8940, and filed for TDIU, (I was still 80%) combined.  This is what happened:

this is what im pointing out. you state you did this. then it was closed for a bad reason. from there did you appeal or ask for it to be reopened? 

[Michaelreconscout]

I did appeal, but since they said I was not eligible to make a claim for TDIU there was nothing to appeal.   I appealed the proposed reduction for PTSD the VA proposed to reduce from 70%-50%, and made me ineligible for the TDIU claim, then I sent an appeal letter, the VA said that they made an error and that my PTSD would stay the same.  My claim for TDIU was never adjicuated, they never sent another 21-8940, even though they had evidence of unempolyability from the PTSD C&P exam