TDIU application mess

[slangpdx]

I received 70% SC decision after an appeal with IMO in Feb 2011, Portland Oregon. The case has not been reviewed since then. I passed the ten year mark in Feb 2021 making the SC determination permanent though the rating percentage could still be changed. Reason was aggravation of high functioning autism (there was psyche “counseling” and a potentially dangerous med prescribed on active duty on a remote desert air base when I was 18-19 yo). Was awarded SSD in July 2018 on first try with no appeal needed, reasons were high functioning autism (same as VA SC award reason) and “poor impulse control”, both conditions rated “Severe” by SS.

I filed an intent to file for TDIU in Feb 2019, then rolled it over to another intent to file in Feb 2020.

I contacted vet rep in October to file the TDIU. I asked him to mail me the docs for review to make sure they were accurate. Never arrived, I called and he said they were delivered by trackable mail on Nov 3, they weren’t (should have asked for the tracking number, I believe there isn’t one). I called the county vet rep supervisor. They reviewed the case and found that I had applied for TDIU after the 70% award which I did not remember doing and that I withdrew that request in July 2011. (I worked for the next six years averaging $60,000/year, high year was $107,000, have not worked for four years). That makes my current claim request an “appeal” even though no VA determination was made because I withdrew the TDIU request at that time, according to the supervisor. That means the intent to file in Feb. is not the date for an award increase therefore wiping out 9 months possible back pay. Supervisor instructed my rep to get on phone with me and I got him to email me the filing documents. I then saw that VA wants a list of all jobs applied for or training received since the date claimed as onset of 100% disability for TDIU. The date placed on the form was 5-1-2016, same as SS disability date. From May to Oct. 2020 I was in the VA voc rehab program where they were paying me to apply for 20 jobs a month, and I also took two VA-paid classes in 2017-2018 (easily discoverable since they were under VA auspices) . All of which would have to be included on the form since the TDIU date is listed being prior to the job apps and the training (or attachments of the scanned pages which I sent to voc rehab). Rep wanted me to send it through as is. Wording at bottom of form says I am certifying all to be true under penalty of prosecution for fraud to get government benefits. So I cannot agree to the application as is. This was the reason I wanted to check the docs to begin with, to make sure there were no such problems. Rep knew I was working with voc rehab though didn’t know the details. Part of the TDIU application is a letter from state voc rehab dated this year saying they have no more help available to offer (it was meaningless to begin with; at my last meeting with them the two employees couldn’t wait until I got out of earshot to start mocking me, I am sick of going anywhere or to anyone for help at this point).

I took my case to a psychiatrist retired from 20 years running the local VA regional office last year. After a $230 session (discounted non insurance price) he said he couldn’t make a determination on my chances of retaining the 70% rating (my concern on filing for TDIU) and wanted to charge me to review my hundreds of pages of docs for further analysis. Not going to do that. Point is, I have gotten all the help or advice possible. One useful comment was that it was “highly unusual” for my case to have gone unreviewed for 10 years. Likely indication my condition has been determined permanent and not likely to improve. He also said his office only did the comp exams, the ratings determinations were done elsewhere and were a mystery to him.

I believe waiting till past the 10 year point was the right decision for filing for TDIU for peace of mind purposes since I would at least retain the SC determination even if the rating is still vulnerable. My concern is the risk of a rating reduction.

Questions:

- Can we just list the date of TDIU as the current date, which will then be after the job applications and training, therefore no need to list them? Is there any benefit / requirement to listing TDIU date as same as SS disability date? Don’t know why vet rep did that. If this has to be an appeal with no back pay, there is no benefit to listing anything other than current date that I can see. Goes without saying I do not trust the vet rep at this point. (Only other option would be DAV, they will not let me past the receptionist unless I agree to change power of attorney and start over, not going to do that either.)

- do the job applications and training work for or against me for TDIU? That is, does looking for work show you are still trying to work and not “retired” or does it show you think you can work therefore should not get TDIU? I will be 65 in December, I was told by a different county rep that that age point helps in getting TDIU. Is the vet’s mind set a factor? At some point it seems to me it doesn’t matter, if you can’t work because you can’t find work or whether you have trouble functioning on jobs, whether you “think” you can work or not it would add up to the same thing.

- is the view that my current application would have to be an appeal accurate due to the prior TDIU application withdraw?

- vet rep asked if I had lost any time on job due to disability.  Answer no.  Is this a major factor? 

Thanks for any help. 

 

[Buck52]

NOT SURE I AM UNDERSTANDING YOUR QUESTION/QUESTIONS????

YOUR POST IS SOMEWHAT CONFUSING..SORRY.

***IF YOU FILED FOR THE TDIU BUT WAS NEVER APPROVED OR YOU REQUESTED IT BE WITHDRAWN FROM YOUR CLAIM  THEN IT IS THOUGH YOU NEVER FILED FOR IT,  BUT IS OF RECORD  AND PLACED IN YOUR C-FILE  BUT YOU CAN REFILE FOR THE IU AND THE DATE WILL BE WHEN YOU FILE FOR IT  NOT FROM WHEN YOU FIRST FILED  DUE TO YOU HAD IT WITHDRAWN.

Ues to a Veteran filing for increase  is filing for The TDIU and the VA WOULD FILE IT FOR YOU BUT NOT ANYMORE.  YOU NEED TO FILE FOR IT.

DID YOU FILE THE TDIU FORM 21-8940? AT ANY DATE? ...OR DID YOU OR YOUR REP FILE THE 21 -526 EZ? AND YOU WERE DENIED THE IU BUT WAS SERVICE CONNECTED FOR ? AT   %?

What are you service connected for ?what % ?   and was you ever denied the TDIU?

TO GET THE TDIU  YOU MUST FILE A CLAIM FOR IT   (21 -8940)  AND PROVE WITH MEDICAL RECORDS YOUR CURRENT SERVICE CONNECTED CONDITION KEEPS YOU FROM DOING ANY TYPE OF WORK...Any  type work to include sedentary work..

A QUALIFIED DR. needs to write his professional  medical opinion after he/she examines you and reads your medical records from the past as well as current , and he/she needs to state they have read your medical records and examined you and say something along these lines  ''due to this Veterans service connected disability/condition I have read this veterans medical records and I have examine this Veteran and due to his service connected condition/or conditions (describe your condition)

''it is likely as not this Veteran can not perform any type of employment to include sedentary type work due to his service connected condition/condition's

Also Veterans that apply for the TDIU apply for the VA Re Hab and if they can't find you any type work  (any type work) they usually will write the Veteran a nice letter letting someone know   (VA)that they have  Dismissed you from the VA Voc-Rehab because due to your service connected disabilities  this Veteran is unfeasible to retrain at this time due to his service connected disabilities.

However I may not be understand your post correctly.and I sure don't want to be giving you bad/or wrong advice.

OTHERS MEMBERS PLEASE CHIME IN HERE.

 

Edited November 9, 2020 by Buck52

[pacmanx1]

Your post is all over the place but please let me try to help you in some ways. If you file a claim any claim and then withdrew/withdraw it, that claim is closed and dead. If you reopen that claim the effective date will be the date of the new claim unless you can prove some kind of mental cognitive disability.

Now TDIU(TOTAL DISABILITY BASED ON INDIVIDUAL UNEMPLOYABILITY). This rating is awarded to veterans that can not work due to their service connected disabilities. It is not awarded to veterans that can not find work.  The criteria is that your service connected disabilities keeps you from maintaining substantial gainful employment. 

Now on a side note, it is possible for a veteran to file a claim/NOD and the VA miss/over looks it. I am currently in an appeal that VA just granted me a 1998 un-adjudicated effective date because I filed a NOD that VA never reviewed and or processed. So, I won an EED that way.

[broncovet]

First, I take my hat off to you, you were unwilling to sign off on a document you felt was in error, or that was not honest.  I agree with that, and VA has "their ways" of sorting out fact from fiction.  I dont ever suggest lying or trying to deceive VA. 

 

I do suggest you focus on "what is important"? You may well be "over thinking this". And, sometimes, to win benefits we have to do things "we would rather not do" to win.  Example:  It may mean you need to change your POA and get another representative "if" your representative is not meeting your needs.  I understand "why" you would not want to do that, but you may have to decide which is the priority:  Keeping your representative or winning your benefits.  Sometimes you may not be able to do both.  

   Question 1:  

Quote

Can we just list the date of TDIU as the current date, which will then be after the job applications and training, therefore no need to list them? Is there any benefit / requirement to listing TDIU date as same as SS disability date?

In regard to "effective date" for your TDIU, its gonna be the later of the date you applied, or "facts found" (the date the doc said you were unable to maintain SGE due to SC conditions.  The SSDI onset date is important to you and VA "if" the SS disability showed you were disabled "due to conditions to which you are service connected for".  

But, lets not get the cart before the horse.  First, is TDIU, THEN VA will determine an effective date, if awarded.  The VA does not determine an effective date and THEN decide you are TDIU.  If you get a letter awarding TDIU, you can then decide if you wish to appeal the effective date.  

My advice?  Apply for TDIU, let VA determine effective date, and appeal that if you think its in error.  Its kind of too early to discuss effective dates before you are awarded TDIU.  

Question 2:

Quote

do the job applications and training work for or against me for TDIU? 

The defination of tdiu is "unable to maintain SGE due to SC conditions".  I suggest you focus on that.  You "would not" be the first Veteran to seek work or training "even after" his doctor told him he is unable to maintain SGE.  "Individual Unemployablity" is a determination made by your doctor, and, sometimes a Voc Rehab specialist.  Just like you dont diagnose carparal tunnel syndrome and operate on yourself, you also dont get to decide unemployablity, the doc and your voc rehab specialist decide if you are unemployable due to sc conditions or not.  The VA does not really care "what" I self diagnose myself as.  I think I should be a TV movie star, but my doc says Im unable to maintain SGE and my voc rehab specialist agrees.   As always, refer to the Caluza elements, and focus on what is important.   

Lastly:  

Quote

 

is the view that my current application would have to be an appeal accurate due to the prior TDIU application withdraw?

 

No.    You "appeal" a previously denied claim, by filing a nod.  In that, NO, you were never denied, so its not an appeal per se.  

However, with the new system (previously called RAMP), a "Supplemental Claim" is sometimes recommended "if you have ever applied for that benefit before".  I read the form and it does not say that, it says to use it when your claim is denied and you have new evidence.  Read it yourself:

https://www.vba.va.gov/pubs/forms/VBA-20-0995-ARE.pdf

Remember, the Supplemental claim form is an "appeal".  Ditto for the HLR:

https://www.vba.va.gov/pubs/forms/VBA-20-0996-ARE.pdf

In both of these you have to list the decision date.  Well, you dont have one.  

EVEN VA is often confused on which form Vets use for some things, since the HLR/SCL are "new" in Feb. 2019, and they have not gotten the kinks out yet.  I dont see how you can appeal a decision that was never made.  Just apply again.  

 

[kanewnut]

This link to M21-1 should give you some good information about TDIU.

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014564/M21-1-Part-IV-Subpart-ii-Chapter-2-Section-F-Compensation-Based-on-Individual-Unemployability-IU

[Lemuel]

Watch for my BVA decision on an EFD for TDIU.  My former attorney filed a claim for an EFD based upon the difficulty maintaining employment up to the date of my last full time employment citing some hardship evidence in my file following my 1974 Discharge and in between employments.  Denied by a 10/27/2020 Rating Decision.  Waiting for CC&K to look at multiple issues after receiving a call back to get detail.  Former attorney dropped me because I was refusing non-compliant BVA Remand examinations being ordered.  Eventually got the DRO to change the orders for the exams quoting the Remand except for the first sentence which required obtaining missing medical documentation related to the remanded disabilities that are in the pre digitalization hard copy medical file and though indicated as once being in the C&P file did not make the scanning into the digitalized file.  (Probably in the 5+ mile high stack of documents waiting to be scanned by a VA contractor.) 

Detail includes an EFD for TBI based upon an unadjudicated Substantive Appeal of a 1992 Rating Decision on 1989 and 1991 claims.  The Substantive Appeal ask for a review by the Director of Compensation service of organic brain syndromes for myself and other veterans (next of friend claim opening for EFD for all veterans with documentation of TBI problems prior to 2008 back to the date of their first claim or back to 1988 whichever is later.

I was confirmed to have temporal lobe epilepsy while having SC organic personality disorder in 1990.  Head injury in 1969 while in the Navy with Nursing Notes indicating complex partial seizure episodes during the hospitalization for multiple trauma from an MVA.

This may go to the Director, Compensation Services first before the BVA.  I will post results when in.

[slangpdx]

Thanks for info, I will wait to see, please advise if you can when you get the ruling.