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
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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!
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Michaelreconscout
also , VA will no longer presume a claim for TDIU is a claim for increase in all service-connected disabilities. this was the ruling to force veterans to select a specific service connected disability
Michaelreconscout
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
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
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