TDIU

[Combat eng]

John ask if I had SSDI before I filed for TDIU, I do. I was denied my first try. My attorney filed an appeal which includes a vocational expert opinion. Will the VA access my SSDI records. I sent them a copy of my decision letter on my first application, but it didn't show in the evidence on my denial letter. The reason I received SSDI is because of service connected disability exclusively. I was under the impression that they would consider the SSDI vocational expert also. I guess I was wrong.

[pacmanx1]

12 hours ago, Combat eng said:

John ask if I had SSDI before I filed for TDIU, I do. I was denied my first try. My attorney filed an appeal which includes a vocational expert opinion. Will the VA access my SSDI records. I sent them a copy of my decision letter on my first application, but it didn't show in the evidence on my denial letter. The reason I received SSDI is because of service connected disability exclusively. I was under the impression that they would consider the SSDI vocational expert also. I guess I was wrong.

Yes, they should. The VA is famous for not looking through the veteran's entire records but on appeal your lawyer should bring it up and the VA should review these records. Not sure how your lawyer appealed your claim as to a HLR or BVA, but the BVA should definitely catch it. 

Edited June 25, 2021 by pacmanx1

[Berta]

You might be able to file a Valid CUE claim on that situation.

An SSDI award, solely for SC conditions, should be considered as probative evidence for VA comp- because it will contain an independent medical opinion.

If the VA had the SSDI info and did not list it as evidence, and/or if they did they completely ignored it, that is a valid CUE under violation of 38 CFR.4.6.

A CUE claim can be filed years after a denial or award .(My initial DIC award letter contained CUE but my so called deficient vet rep told me my DIC ( under 1151) was different from regular CUE claims and the decision did not even warrant a NOD. He was wrong and I filed CUE years later when I re opened for direct SC death and they awarded the CUE.)

, or within the appeal period, some CUEs I filed the day after I got a decision.

Your lawyer should have jumped on that critical error- as I understand what you posted here.

 

 

[broncovet]

It looks like you got "top sheeted".  

Quote

TOP Sheet:  Defination  When rating specialists are way behind quota, they simply "top sheet" then next 10 claims to catch up.  They look ONLY at the first page, and the denial says, "We cant find evidence of (then they alternate between nexus, a diagnois, or an inservice event.  About one in 10 they use the excuse that you were "not" in the military, or, there is a problem with your records.  

Thus, the rating specialist is able to complete dozens of claims, quickly, and wrongly.  

Edited June 26, 2021 by broncovet

[Berta]

I posted something in the other TDIU thread- 

based on what I see here I will prepare a CUE template for you to use for their violation of 38 CFR 4.6.

The VA managed to violate this regulation in multiple claims issues I had with them after my husband died. They even did it to my daughter, a veteran, when she applied for Chapter 35.

"38 CFR § 4.6 - Evaluation of evidence.
CFR
prev | next
§ 4.6 Evaluation of evidence.
"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

This is a basic VA regulation and I bet they violate it , (by top sheeting or laziness) MORE that we will ever know.

"every element in any way affecting the probative value" etc.......

The VA even ignored the 6 page autopsy that was done on my husband-and thrn failed to send it  (I had sent them 12 copies of it hoping someone at my VARO  could read , and would consider it) and they even failed to send it to the OGC for my FTCA claim.

I fixed that when I learned VACO had the whole gamit of the veterans files they needed but 2 or 3 critical medical reports were missing.

They had also told my congressman and State Senators that SSA refused to release my husband's SSA records.

It was a bold faced lie. I raised hell and they got those records.

I believe you have a lawyer?

If so , they should have noticed this critical legal error right away.

It surprised me that they didn't- then again not all vet lawyers have expertise on CUE.

 

 

 

 

 

[Berta]

Based on how I understand your posts- this is a CUE I wrote that you can use as a draft, for your own CUE claim. Without the actual decision ( I understand you dont have a scanner), it is the best I can do but you would have the info needed as to the past decision, dates, etc.:

 

                                                                  Your name, address, date
VARO name address                                                                     Attention to: ( if the alphanumeric is                                                                                                          on the decision)
                                                                                                           C file # 

    This is a claim of CUE, Clear and Unmistakable Error, under auspices of   38 USC 5109A.                       
In your ( date) decision, as enclosed.
    The VA (     ) Regional Office violated basic VA case law, as within 38 CFR 4.6:
“38 CFR § 4.6 - Evaluation of evidence.
CFR
§ 4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.”
https://www.law.cornell.edu/cfr/text/38/4.6

    The VARO has been fully aware of my Social Security Disability Award, which is solely based on my service connected disabilities, and you have had receipt of that award since   (date) and I have enclosed proof of mailing it to you, ( or any other proof you have that they got it)

    Since my SSDI award was never properly acknowledged or considered in the above decision, it manifested an outcome which was highly detrimental to me.as It is highly probative evidence.

    I request that you immediately correct this legal error and provide me with a proper TDIU award letter with an appropriate earliest effective date.

I have enclosed:
Exhibit A Decision of ( date)                                                                                      Respectfully,
Exhibit B   SSDI award letter copy
Exhibit C ( any proof you have of mailing the SSDI info to them)                     (Your name signed)"

I feel your lawyer should support this CUE. Please give them th link to this thread, if you wish, and if they do not agree with it, you could PM me their email addy.

Again, I am basing this on what we know here without the actual decision.

Whether they listed the SSDI award as evidence or not, we dont know-but if they did not consider it at all in the decision, this is a CUE Beauty, because the SSDI was solely for your established SC disabilities.

Dont forget everyone, CUE can be filed on a very old decision as well as one you just got in the mail.

It must identify the exact legal error(s) they broke, and how and why that manifested an altered outcome-in the decision-  meaning- but for the CUE they would have owed you CASH.

 

 

 

 

[Berta]

Geez, as soon as I hit the Reply button I got an error message that the hadit site had moved or as down for other reasons, but I got back on line OK----

I couldn't edit the above- to say           Attention to: ( and then use the alpha numeric that is on the decision, put that over your C file number.

This holds the initials of the person  who last handled your claim. I think VA got used to me recommending that here on some claims because they dont seem to do that anymore.???

 

PS I always use Exhibit  Stickers but you can list the evidence any way you like-and the 'respectfully and your signature comes at the end of the claim- that too seemed affected by an error message I got.

I always total all of my enclosures as well ,on claims, and put my name, address, and C file # on everything I send to them.

 

Edited June 28, 2021 by Berta
added more.