Retro pay after TDIU?

[allansc2005]

Afternoon folks, hope everyone is safe and healthy.

Back in January, 2017 I was awarded TDIU P&T, got all the back pay, goodies such as no taxes on vehicles, dwelling...

 

In December of 2019, I filed a secondary claim of overactive bladder-OAB in connection with spinal issues for which I was already awarded SC, and was denied.

I asked for a higher level review due to the denial, was granted the review, was sent to a C&P exam for that same OAB claim, and got a call yesterday from the C&P doctor telling me he concurs that my OAB "is connected to my SC spinal conditions", and that he would tell the VA the same thing on the DBQ.

 

So, my question is: Will there be any back pay from the time I was denied SC for the OAB back in December, 2019?  FYI, I'm 90% Scheduler.

 

Thanks

 

Allan 2-2-0 HOOAH!

 

 

[brokensoldier244th]

You claimed them when you filed your 8940  In Sec 1. Generally, though, the rules are:

 

The Individual Unemployability requirements are (1) you must be a veteran to get IU Benefits and (2) you must have one 60% service-connected disability or two or more service-connected disabilities with one rated at 40% and a combined VA disability rating of 70% to qualify for IU Benefits. 

[broncovet]

There are actually at least "2" ways to get to TDIU.  The first is the one broken soldier mentioned, sometimes called "schedular" tdiu.  Also known as 38 CFR 4.16 a, which is the most common. 

Sometimes overlooked, however, by Veterans, Vet advocates, and VA employees, is extraschedular IU, aka 38 CFR 4.16 b, which reads:

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.

Interestingly, several years ago, I brought this up to a former rating specialist, who is a moderator at another Veterans website.  He indicated, "there was pretty much no chance of getting tdiu under 4.16b".   

I did not listen to him, and was awarded 4.16b (extra schedular tdiu) in 2017, after a 15 year battle with VA.  Im so glad I did not listen to the "expert" who put me down, as I could not possibly know as much as a (former) DRO, who knew all the ins and outs.  

Well, no I did not know all the ins and outs, but I did know how to read, and 4.16 b clearly says  "ALL" Veterans, and not those who managed to finagle the VARO into 4.16b consideration.  

Of course, the VARO said, "ok, go ahead and submit a 4.16b, and see where it gets you".   The short answer was "denied", but the BOARD was required to interpret 4.16b

"AS WRITTEN ABOVE", and not the classic VARO rater who basically said, if you dont meet the percentage requirements, you are out of luck.  Period.  

 

[brokensoldier244th]

13 minutes ago, broncovet said:

There are actually at least "2" ways to get to TDIU.  The first is the one broken soldier mentioned, sometimes called "schedular" tdiu.  Also known as 38 CFR 4.16 a, which is the most common. 

Sometimes overlooked, however, by Veterans, Vet advocates, and VA employees, is extraschedular IU, aka 38 CFR 4.16 b, which reads:

Interestingly, several years ago, I brought this up to a former rating specialist, who is a moderator at another Veterans website.  He indicated, "there was pretty much no chance of getting tdiu under 4.16b".   

I did not listen to him, and was awarded 4.16b (extra schedular tdiu) in 2017, after a 15 year battle with VA.  Im so glad I did not listen to the "expert" who put me down, as I could not possibly know as much as a (former) DRO, who knew all the ins and outs.  

Well, no I did not know all the ins and outs, but I did know how to read, and 4.16 b clearly says  "ALL" Veterans, and not those who managed to finagle the VARO into 4.16b consideration.  

Of course, the VARO said, "ok, go ahead and submit a 4.16b, and see where it gets you".   The short answer was "denied", but the BOARD was required to interpret 4.16b

"AS WRITTEN ABOVE", and not the classic VARO rater who basically said, if you dont meet the percentage requirements, you are out of luck.  Period.  

 

I did not quote 4.16b because it has no bearing on my job or what I do- its a rating decision, or has to be brought up by a veteran. My lane deals with getting the veteran's claim in shape so that it is in the best possible light for the rater, but I don't make any suggestions or decisions regarding it's outcome.

I do bring items of note up for the examiner or the rater that I find, things like if you have had 8 WFH jobs in the last 4 yrs because thats what your PTSD allows you to do on good days but still have challenges with them do to (usually) medical appts timing, bad days, whatever, and I highlight the returned 4192's (when I get them back, which is rarely) sections where employers can comment (again, rarely), and I try to find things in the MH therapy notes under the Work History and Social history that might help contribute to a positive outcome. Its the best I can do, after that its out of my hands. 

 

[pacmanx1]

Yes Sir Mr. Broncovet is correct and beat me in his response. Here is another I agree and disagree, and VA and VSOs tell veterans this all the time, but I have helped several veterans get TDIU when they did not meet the rating criteria. When a veteran files the VA form 21-8940, it is a claim for an increase as well as a claim for TDIU. The VA can and has in the past increased some veterans rating percentages to help them meet those criteria but a look at the veteran’s current disabilities that veteran may not qualify but with medical evidence and a medical opinion it is very well possible to be granted TDIU.

[brokensoldier244th]

8940s are always processed as increases first- thats the only way to mark them in the system when they come in or they don't process as a new claim and they sit in limbo. Once they are classified, then they are considered for increases first before the IU decision comes into play. 

 

VIII.iv.3.B.1.e.  Veteran’s Responsibility to Specify a Disability or Disabilities That Cause Unemployability

II.iii.1.A.1.a.  Requirements for a Complete Claim Received on or After March 24, 2015(referred to above)

 

[pacmanx1]

3 hours ago, brokensoldier244th said:

The Individual Unemployability requirements are (1) you must be a veteran to get IU Benefits and (2) you must have one 60% service-connected disability or two or more service-connected disabilities with one rated at 40% and a combined VA disability rating of 70% to qualify for IU Benefits. 

This post is quoting 38 CFR 4.16a 

This post is only half true and is misleading because it is 38 CFR 4.16a but if you read a little further in 38 CFR 4.16b it states: 

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: 

(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.

Edited October 24, 2021 by pacmanx1