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What is the best way to file for an earlier effective date for TDIU based upon my situation?

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Havoc87

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I need some opinions on which claim of mine to appeal, and the best route to do so to file for an earlier effective date of my recent TDIU award. Here is the back story to base this upon...

In February of 2015 when I could no longer physically work due to my injuries in the military I went in and filed for VA Compensation. On July 15, 2015 I received my decisions back after my C&P exams and I was awarded service connection for the following things: 40% lumbosacral strain, 10% left foot injury, 10% bilateral tinnitus, 0% bilateral hearing loss. This ended up giving me a 50% rating. In this decision they did not service connect my cervical strain even though based upon the C&P exam, it warranted a 30% service connection. I quickly appealed this decision to the VBA as soon as it came in, asking for the cervical spine to be service connected properly as noted in the C&P examiners notes. I also included a buddy statement and pulled a medical record from my file showing the incident that caused the cervical spine injury in service and put that information with the appeal. SIX years later after filing the appeal, the VBA approved service connection and remanded the cervical spine issue back to the RO for rating. The RO rated my cervical spine injury with the 30% in August of 2020, effective back to 02/2015. When I filed the appeal, I also raised the question of TDIU in my appeal because I had to quit working in 2015 due to my back and neck and if the injuries would have been correctly rated all together in 2015, I would have been at 70% and eligible for TDIU. VBA noted this in the remand decision regarding TDIU: "As a final note, in his January 2016 Notice of Disagreement (NOD), the Veteran attempted to raise the issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). The Veteran and his representative are advised that claims submitted after March 24, 2015, must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1 (p), 3.155, 3.160."

On June 15, 2021 (less than a year after receiving the remand decision) I filed online for TDIU formally and it also put in increase requests for all of the disabilities I stated affected my ability to work. I went through C&P exams for each of those items and on July 19, 2021 was awarded the following additional disabilities effective, 6/15/21: radiculopathy left upper extremity 20%, radiculopathy right upper extremity 20%, radiculopathy right lower extremity 20%, and radiculopathy left lower extremity 20%. They also corrected my back injury to lumbosacral strain with lumbar disc herniation and degenerative arthritis and corrected my neck injury to cervical strain with degenerative disc disease. These increases brought me up to 90% and they approved TDIU at that time, effective 6/15/21.

In the first claim that I put in I listed that I had to cease working due to my injuries I was filing for (which were service connected between the first decision and at the end of the appeal). I still have a few days left to put in an appeal on the remanded decision from the first appeal, and then I have the option of appealing the decision that just came in on July 19, 2021. Do I need to appeal the older remanded appeal decision to keep the 2015 service connection date in play for a TDIU earlier effective date, or would it be sufficient to (appeal or ask for HLR) of the most recent decision that granted TDIU, but only with the 6/15/21 effective date? I should also note that when the first C&P exams were completed back in 2015 it was noted on my lumbar and cervical spine exams notes from the doctor that there was functional loss that affected my ability to work, as well as on the C&P conducted in June of 2021.

I appreciate any advice you can provide on this issue.

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6 answers to this question

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  • HadIt.com Elder

Have  you filed for social security disability.  You can often use that date of grant for SSDI to ask for EED on TDIU.  Just to be on the safe side I would appeal all the decisions. Have you worked at all since 2015?  Did you get some kind of disability retirement from your employer.  The VA should infer a claim for TDIU when you bring up the question at an exam.  They almost never do it.

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I went to apply for SSDI and because my appeal took so long, my work credits expired so I am unable to apply for SSDI. I am hoping to be able to fight with SSDI on the expired work credits, if I can get the VA to correct the TDIU effective date back to 2015 as should be. I have not worked since 2015 when I started the VA disability process because I couldn't physically work anymore. I did not get any disability retirement from my employer as I was never with them long enough. After leaving service I ended up going from job to job because of my injuries and time I had to miss work from each of my employments because of the injuries. 

The second claim, I can easily appeal since it was just a RO decision and so recently, and thought about doing so by brining up Rice v. Shinseki and my informal request for TDIU in the 2015 appeal. 

I am a little confused on the best action to take for appealing the VBA decision in August of 2020 that was a remand back to the RO and then granted the service connection for cervical spine at 30%, but failed to allow the TDIU at that time since I hadn't filled out the formal claim paper for TDIU. Should I file a supplemental claim to that RO decision with the TDIU approval information and ask for the earlier effective date, or can I actually submit an appeal back to the VBA? Or should I have filed to the CAVC and missed that opportunity to do so on the remand? 

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  • HadIt.com Elder

I wish you the best with SSDI, 

S.S.A. told me the same thing  I didn't have enough work credits based on the last ten years I never worked.

I retired to file with SSDI serveral times and I just gave up, first thing they mention I was denied due to not enough work credits paid into the system. second time they denied me there excuse to deny me was My service connected conditions did not meet the requirements for SSA Standards.

in other words my s.c. disability was not enough to make me total disabled for SSDI, although VA said I was total disable and P&T due to my service connected disability....I tried for 4 years to get SSDI   no cigar....

I wish you the best  keep applying for it  keep appealing it you should get it.

I went ahead and took early retirement  at age 62...some 11 years later, so I missed out on getting the SSDI FOR 11 YEARS.

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  • HadIt.com Elder

Usually, if you have enough credits and have PTSD or some other mental health condition it is easier to get SSDI than for physical condition.  I say any one with severe physical condition should establish a depression claim based on pain and disability. Neither the VA or SSDI can look inside your head and determine you disability level. Only a doctor can do that.  I got my SSDI within three months of application because I had good shrink write me a letter.  SSDI just rolled over because I told them I would be willing to take a second opinion for them.  If you have severe pain and disability you have a right to be depressed.  In this society they just throw you on the junk pile if you are disabled.

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Personally, I have not had one single effective date be correct, all of those I appealed were eventually granted, but not always using the entitlement theory I proposed. 

In short, we really can not identify "the best entitlement theory of an eed" based solely upon your post, it would take a complete review of the records (recommended).  

As an example, IDK if you "submitted new and relevant evidence" within the appeal period(s), which would mean you would get an eed based on 38 cfr 3.156 (b) or 3.156 (c).  

Therefore, my suggestions are:

1.  Contact a NOVA attorney experienced with effective date claims, and ask his advice.  You can then decide whether to "fly solo" (pro se), go with a VSO, or get an attorney.  

2.  Study the multiple exceptions of the effective date rules, to see which, if any, of these exceptions apply to you.

 

Some examples are if you applied within a year of exit from service, if you applied for an increase, if you informed VA of your "inability to work" prior to 2015, did not get notice of decisions, file, Cue, etc., etc.  (and more).

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

 

 

Edited by broncovet
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  • HadIt.com Elder

I got an EED based on a hospital admittance.  The VA looked at the hospital record and granted me an EED six months before I applied for TDIU.  As Bronco says there are many reasons to request an EED.  

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