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Higher level review TDIU


Mikeoif

Question

I filed for tdiu and ptsd claim in Oct of 18, I didn't have all my medical files lined up and was given service connection for unspecified anxiety at 30% in March 19, and denied tdiu for failed scheduled rating needed and they mentioned that I had work experince and helped for a year with my niece , weird mention in the paperwork for why tdiu was denied but whatever. So I filed supplemental claim in april and had a highly regarded univeristy brain department and psychiatrist department diagnosis me for ptsd as a referral from the VA. So boom got another c&p in June and was given 70 % rating for ptsd but didn't file anything for the tdiu, at this time hired a va lawyer before I got my 70% rating thinking id have to appeal if they denied my ptsd again but they didn't so then I kept the lawyers on as they looked at my files for more things to be done and then they had me file tdiu paper work again but then on OCT 31st they filed a higher level review for my TDIU decision going back to march when it was denied. My two questions are how does HLR handle tdiu claims and cause I was denied originally for it for lack of rating and lack of medical evidence does my new c&p in June and my medical diagnosis with recommendation that got me to 70% now, will that evidence be included in the review of the tdiu or is the Review just of the evidence that was available at the time of the original denial back in march? I've been out of work for over a year as well but haven't kept a job down for a decade though I've tried for sure. OIF 08-09 1-22 INF, 1 BCT, 4th I.D. Also do granted my tdiu effective date should be Oct 2018 right as my intent to file date? Thanks

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It sounds like you have a lawyer, who should be able to offer better advice since they can see your file while we cannot.  

However, you asked, so, here goes my 2 cents:  (Again, you should take your lawyers advice over mine)

It sounds like their was missing evidence when you were first denied.  There are 2 types:  Service records (38 CFR 3.156 c) and regular relevant evidence 38 cfr 3.156b.  

If it was new service records you should always get the earlier effective date.  

However if it was new evidence, then its more complicated.   Is this what the lawyer is appealing, that your effective date should be the ITF??

Effective dates are so complex, that not all lawyers handle them.  Generally, your effective date should be the later of facts found or the date you applied.  Of course, I dont know the "facts found"..I have no idea the date the doc said you were unemployable due to sc conditions.    

There are multiple, multiple exceptions to the general effective date rule, such as was it within a year of exit from service, were there new service records, and more.  

I have no idea if, or which of the exceptions apply to you, I do know that the effective date is not always the date you applied or filed an ITF.  It sounds like your lawyers are on it tho.  

Unless a doc stated otherwise, it sounds highly likely you should get the date of an ITF.  However, its simply way more complicated than that, (isnt it always with VA?), so you can read the regulations if you so desire and see which, if any, applies to you:

https://www.law.cornell.edu/uscode/text/38/5110

 

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