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. 

 

[slangpdx]

On 11/10/2020 at 8:49 AM, broncovet said:

Thanks for thoroughness of reply and wading through it.  Want to ask but forgot to note in original post, does recently getting the SSD for same reason as SC award better the odds for TDIU? Of course SSD still allows the possibility of trial work periods, so it is not an indication of complete unemployability.  How much weight does VA give SSD decision if for same reason as SC award?

My vet rep is using the Supplemental Claim form that you mentioned, 2900-0862, along with the TDIU form, 2900-0404.  My takeaway from your post is that I shouldn't expect to get all the t's crossed on this on the first try, there are too many issues and it involves multiple person's interpretation of the regs and the situation (me, vet rep(s), VA reviewer(s)).  

  But generally, is it better to go with an earlier filing date (SSD date) or just use the date I submit, therefore avoiding the need to send the list of 80 jobs applied for? 

Also, do I even need to be concerned about risk of reduction from 70% at this point?

Sorry for extra questions.

 

 

On 11/10/2020 at 8:49 AM, broncovet said:

On 11/10/2020 at 8:49 AM, broncovet said:

 

 

 

[Lemuel]

My suggestion for everyone seeking TDIU is to ask for "extra-schedular" if you have drawn state disability, SSI or SSDI even if you have had interim part time jobs or short term temporary employment and can justify by not having a "presumptive" right to TDIU.  The reason for my extra-schedular request at the time was that I had a combined rating of only 40% and a C&P exam that stated that because of my "spells" I would be unable to find gainful employment.

My extra-schedular TDIU request in 1987 while drawing California state disability was found by the BVA Judge in her 05/11/2017 Decision.  When decided by the Director, Compensation Services, she gave me back to my last day of full time employment even though I had worked part time making more than poverty level income for 3 years from later in 1987 until September of 1990.

The Director, Compensation Services recommended the TDIU and the DRO granted it in June of this year.

[Lemuel]

Also I would request an extra-schedular TDIU rating with an EFD prior to my "presumptive" rating if any of my above statements apply.

[Buck52]

48 minutes ago, Lemuel said:

My suggestion for everyone seeking TDIU is to ask for "extra-schedular" if you have drawn state disability, SSI or SSDI even if you have had interim part time jobs or short term temporary employment and can justify by not having a "presumptive" right to TDIU.  The reason for my extra-schedular request at the time was that I had a combined rating of only 40% and a C&P exam that stated that because of my "spells" I would be unable to find gainful employment.

My extra-schedular TDIU request in 1987 while drawing California state disability was found by the BVA Judge in her 05/11/2017 Decision.  When decided by the Director, Compensation Services, she gave me back to my last day of full time employment even though I had worked part time making more than poverty level income for 3 years from later in 1987 until September of 1990.

The Director, Compensation Services recommended the TDIU and the DRO granted it in June of this year.

They only use the //extra scheduler'' when a veteran don't meet the criteria for the 100% scheduler , if he can't work due to his service connected disabilities  and is rated under the 100% say 90%  then this is when they use the extra scheduler,

 a Veteran should not have to ask for it   especially if he files for the IU....WHAT HE CAN DO IS DOUBLE CHECK HIS NOW S,C, CONDITION AND IF THAT CONDITION HAS IN FACT GOT WORSE  HE CAN FILE AN INCREASE  AND NOW IT SAYS WHEN YOU FILE FOR INCREASE  THATS ASKING BASICALLY  FOR THE IU  BUT...DEPENDING ON WHAT HE IS RATING WHEN IF HE IS ON IU?  ** NOW DAYS VETERANS MUST FILE FOR THE IU,

EXAMPLE  IF HE IS RATED UNDER THE 100% ...>   SAY 90%AND WAS INFERRED THE I.U.  HE WOULD NEED HIS INCREASE TO BE 50%  TO GET TO THE 100% SCHEDULER...MOST VETERANS ARE SATISFIED WITH THE IU BEING PAID AT THE 100% EVEN THOUGH HIS TRUE RATING WOULD BE 90% OR WHATEVER, HE WAS RATED BEFORE THE IU   BECAUSE HE COULD NO LONGER WORK  DUE TO HIS S.C. CONDITION.

As I understand it   when they give the Veteran the IU they are suppose to use the SMC S  H.B.  AT THE TIME OF THE IU DECISION.

 Read Howell v Nicholson    if he can't leave home for work due to his sc disability   then  they are required to give the Veteran the SMC S.H.B

QUOTE FROM HADIT MOD BRONCOVET

''The VA had misinterpreted the law to be that you could not leave the home to get housebound.''  Some years ago, the VA denied Vets, who applied for housebound "if" they showed up to the c and p exam.  They reasoned you were not "housebound" if you went out of the house to the VAMC to get an exam.  ''ITS TOTAL BS.''  Howell set em straight, and VA has changed the M21 which now includes a reference to Howell. ''

Also if a Veteran is on IU  extra scheduler or not   if he files for another separate and distinct condition different from his original disability  and he gets a 60% rating or higher   then they are required by law to give that Veteran the SMC S. H.B.

Remember  being IU no matter how the Veteran recieved it is is consider to be 100%

[Lemuel]

4 hours ago, Buck52 said:

They only use the //extra scheduler'' when a veteran don't meet the criteria for the 100% scheduler , if he can't work due to his service connected disabilities  and is rated under the 100% say 90%  then this is when they use the extra scheduler,

 a Veteran should not have to ask for it   especially if he files for the IU....WHAT HE CAN DO IS DOUBLE CHECK HIS NOW S,C, CONDITION AND IF THAT CONDITION HAS IN FACT GOT WORSE  HE CAN FILE AN INCREASE  AND NOW IT SAYS WHEN YOU FILE FOR INCREASE  THATS ASKING BASICALLY  FOR THE IU  BUT...DEPENDING ON WHAT HE IS RATING WHEN IF HE IS ON IU?  ** NOW DAYS VETERANS MUST FILE FOR THE IU,

EXAMPLE  IF HE IS RATED UNDER THE 100% ...>   SAY 90%AND WAS INFERRED THE I.U.  HE WOULD NEED HIS INCREASE TO BE 50%  TO GET TO THE 100% SCHEDULER...MOST VETERANS ARE SATISFIED WITH THE IU BEING PAID AT THE 100% EVEN THOUGH HIS TRUE RATING WOULD BE 90% OR WHATEVER, HE WAS RATED BEFORE THE IU   BECAUSE HE COULD NO LONGER WORK  DUE TO HIS S.C. CONDITION.

As I understand it   when they give the Veteran the IU they are suppose to use the SMC S  H.B.  AT THE TIME OF THE IU DECISION.

 Read Howell v Nicholson    if he can't leave home for work due to his sc disability   then  they are required to give the Veteran the SMC S.H.B

QUOTE FROM HADIT MOD BRONCOVET

''The VA had misinterpreted the law to be that you could not leave the home to get housebound.''  Some years ago, the VA denied Vets, who applied for housebound "if" they showed up to the c and p exam.  They reasoned you were not "housebound" if you went out of the house to the VAMC to get an exam.  ''ITS TOTAL BS.''  Howell set em straight, and VA has changed the M21 which now includes a reference to Howell. ''

Also if a Veteran is on IU  extra scheduler or not   if he files for another separate and distinct condition different from his original disability  and he gets a 60% rating or higher   then they are required by law to give that Veteran the SMC S. H.B.

Remember  being IU no matter how the Veteran recieved it is is consider to be 100%

You can use "extra-schedular" for any defined rating.  For example, I could ask for extra-schedular tinnitus because the Navy denied me a forklift operator's permit because of tinnitus.  Tinnitus is not correctable by hearing aids.  And not being able to find employment in any job that requires you to hear beeps like a forklift backing up is a significant industrial limitation employability defined in my "organic personality disorder" as 30 % disabling but not for tinnitus.  

The point I was trying to make is that it was easier to get non presumptive extra-schedular TDIU than it was to get the presumptive TDIU in my case at a 70% combined rating with one rating at 40% or more.  Does not make sense.

The presumptive levels were supposed to make it easier by adding definition to the rating schedule and decreasing such claims.  I flew through the 3 year part time employment at over the poverty level with no problem.  Individuals with the same level of earnings at my ratings are routinely denied TDIU because of earning levels no matter what their employment is.  Sort of like showing up to get an exam in your example.  Was denied essentially by the BVA in 1990 at the hearing questioning but it was not reported as a denial in the record because it would have had to have been sent to the Director, Compensation Services.  The BVA did not have jurisdiction.  The DAV did not follow through and I was in too much of a fog to realize I had been screwed.  And taking it back 2 years before my claim, totally unexpected.  Who have you seen get more than a year of back pay added to their claim date?

 

[Buck52]

Lemuel mention

''The point I was trying to make is that it was easier to get non presumptive extra-schedular TDIU than it was to get the presumptive TDIU in my case at a 70% combined rating with one rating at 40% or more.  Does not make sense.''  yes it makes sense.

It just depends on the veteran rating,  if he is rated under the 100% and his conditions only meets a lower rating lower than the 100% , but he can't do any type work due to his service connected disabilities  ,So  under the 100%  the VA has the ''Extra Scheduler '' Regulation to use to give the veteran to bring him up to the 100% pay rate.

so if your combined rating is 70%    this rating is still under the 100% and because you could no longer do the work you were trained to do or any sedentary work they used the Extra Scheduler   so you can be paid at the 100% rate   although your ratings will reflect the combined 70% rating.

Now  for you to make the 100% scheduler rating and make your IU Moot  you will need another separate rating service connected at 90%  or and increase on your original rating  added in to your now 70% combined rating

This VA Math is really meant to screw the Vet.

Edited November 14, 2020 by Buck52