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at 90%, no decision on remainging issues, TDIU?


retiredat44
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Question

So, I am at 90%, have no gotten a final rating, after years of the BVA wait... asked for TDIU, many years ago (their excuse was I was below 70%), then again filled out forms 2014. Filled them out again a few weeks ago. My POA said don't do anything until after they make a decision and if I have to file disagreement to go from 90 to 100% with BVA, if they refuse to move it up for the final rating. I filled out the forms. I have not worked since 1995. Could not fill in employer because they no longer exist. VA sends me a letter asking me for the employers. POA says the VA was really messed up bad with this virus thing and POA's working form home, so they are extremely slow and behind.

I just thought once more it shows the loony things the VA does.. asking again for a work record, with names and addresses from 30 years ago... and even so, I am not even in the same state from back then.

btw, there are exceptions to that more than 70% rule and many others, it is a guideline. I was totally disabled by 1990. But they jerked me around until later. And still doing it.

I know that many of you guys are in areas where that damned illness is hitting harder than where I am.... I am in a very small town away from the cities,,  but still think of the ones affected by this crazy world, virus and all.

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So, your POA suggests "waiting" on a 6 year old claim (2014)?  NO!  

The VA has sent a message they have "no intent" to adjuticate your TDIU..I wonder why the VA sat on their hands for 5 years "before" covid 19?  

This is my advice (in this order):

1.  Send a IRIS email inquiring "as to the status" of your tdiu claim filed in 2014.  You may mention 38 CFR 3.103, which states that every claimant is entitled to a written decision.   Put a copy of this email as well as their response on YOUR computer..do not depend on the VA to save it for you.  YOU save it..on your computer.

2.  Send a 21-4138 to Janesville, also reminding VA of their violation of 38 cfr 3.103, and further note that you plan to persue "all legal means" to get your claim adjuticated.  

3.  Call the white house hotline, and ask THEM why VA hasnt adjuticated your claim from 2014.  You want all of this documented, time, date, who you spoke with, etc. etc.  Keep it.  

    Again, keep a record of all of the above, as well as VA response to include time and dates.  Remember, tdiu is "not standalone" but rather is a part of a claim for increase which could include an increase to 100 percent or tdiu.  

4.      After you have done the above, and waited at least 30 more days, consider filing a writ of mandamus to compel VA to adjuticate your 6 year old tdiu claim "to include" extra schedular consiseration under 38 cfr 4.16 b, which states:

Quote

b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

Last I checked you are part of the group of "all".  You want to do this to establish tdiu "not just" back to when you were awarded 70 percent, but back to when you first applied.  This could mean tens of thousands of dollars to you:  Your effective date.  

      If your POA wont do this, fine, get someone else.  Inform them you are "not ok" with VA jerking your chain for 6 years.  You need a written decision and are so entitled.  Then, if unfavorable, you appeal it.  

Edited by broncovet
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I Totally Agree with broncovet

I Think they need to change the 90% veterans  to 100% schedule   if your 90% disabled  normal person can't work at 90% disable  so the IU thing they have ..if you can't work due to you being 90%   then your unemployable and should be inferred the IU but VA WANTS TO MAKE IT HARD ON ALL VETERANS AT 90%  AND Drag this out for years..I hope the veterans remember to be sure and fight for their correct EED when they do get the IU Award...

  like I said a veteran rated at 90% Cant'work if he wanted to  so they need to at least change this  to any veteran that reaches 90% should automatically qualify for the 100% scheduler rating and forget about the damn IU ..grrrrrr

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5 hours ago, retiredat44 said:

VA sends me a letter asking me for the employers.

Didn't you originally fill this out on VA FORM 21-8940 to apply for TDIU? Didn't the VA look into that in the past decisions? They had had it in my c-file and still spent time getting me to get them the address to the last place I worked at. All this information was already in the c-file. Many POA's don't seem to know squat!

You can search "M21-1 TDIU" and read up on TDIU. 

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