Appeal or Supplemental Claim

[Smirak]

So I got my decision letter a week or so ago.  I was denied increase fro 70% PTSD to 100%, due to me not meeting the criteria for 100% according to the CFR.  I was also denied TDIU because my former employers would not send back the 21-4192.  I had an appointment with my local VA office and they were clueless.  They stated that since it was my responsibility to ensure that the 21-4192 were returned, and the employers didn't return, that is why my claim for TDIU was denied.  However, 

So, the question is, what's the better option?  Should I appeal the decision, or should I open a supplemental claim?  I have also read that if the 21-4192 is not filled out by the employer, it cannot be used negatively against the veteran in the decision making process.  

 

How should I proceed?

Thanks,

Kevin

[pacmanx1]

15 minutes ago, Smirak said:

So I got my decision letter a week or so ago.  I was denied increase fro 70% PTSD to 100%, due to me not meeting the criteria for 100% according to the CFR.  I was also denied TDIU because my former employers would not send back the 21-4192.  I had an appointment with my local VA office and they were clueless.  They stated that since it was my responsibility to ensure that the 21-4192 were returned, and the employers didn't return, that is why my claim for TDIU was denied.  However, 

So, the question is, what's the better option?  Should I appeal the decision, or should I open a supplemental claim?  I have also read that if the 21-4192 is not filled out by the employer, it cannot be used negatively against the veteran in the decision making process.  

 

How should I proceed?

It is really up to you, either way it will take a while for your claim/appeal to be decided. If you file an appeal to the BVA, their appeals are taking close to or longer than a year. If you file a supplemental or an HLR, those disagreements are taking about six months to a year, and you may still have to file an appeal to the BVA if your claim is still denied.

If you are not working, you can file a claim for SSDI (Social Security Disability Insurance) with the Social Security Administration Office. Not all but most Veterans get both. There is no way to tell you but a lot of times supplemental and HLR claims are just rubber stamp denials, but it is your call.

[Mr cue]

Ok isn't the va to maximize a veteran claim by law.

Isnt tdiu to be addressed if the evidence show the veteran is unemployed. By law.

So now the va can not even address tdiu unless a veteran has a doctor fill out a form for them and have a employer fill out something too.

I can't believe that one. Show me the law for all this.

I would appeal right to the board.

They will remand it to be addressed.

 

 

[pwrslm]

I did not see that an employers statement/form was required for TDIU. This issue is primarily based on the medical, not employment history. Employment history can be acquired through the SSA.gov website. If the previous employer is being a-holes and refuse to provide assistance, it does not preclude the VAs duty to assist. The Vet nor the VA has no authority over civilian sector entities like employers.

If the decision letter denying benefits only states that one reason for denial, you should fight it. Study up on 38 CFR 4.16. Requirements for TDIU state nothing about opinions from previous employers, but instead, states:

(38 CFR 4.16(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..."

M21-1R

VIII.iv.3.C.1.e.  Considering Occupational History in IU Claims

"Occupational history is a non-economic factor that must be considered in an IU determination.  A Veteran’s occupational history is not determinative of the outcome of a claim for IU unless the Veteran is currently gainfully employed... "

 

The duty to determine employability lies on the RO, NOT prior employers or occupational history. Reliance upon prior employers would be a hairy situation if the Vet were removed and there existed animosity between the two. In this case, refusing to provide the form for the Vet could well demonstrate animosity. The failure to fill out the form could also mean that they just don't care enough, and by law they cannot be compelled to provide this.

I would get lay statements on this as new evidence for a supplemental claim. Lay statements on why you left your past employer by others you worked with like friends, as well as your family/spouse on what they their experience was watching you try to work and what they actually saw less any medical diagnosis (that they are not qualified to give).

Also, talk to your primary, have them get a diagnosis for you on employability. Your primary can refer you for a functional capacity evaluation also. 

Note in a lay statement you provide with the supplemental claim the reason you no longer work as well (if this is not already part of the claim). Cite the CFR noted above, and point out that a form from previous employers are not a requirement for TDIU under the CFR.

Good luck, Supplementals are finished much faster than Appeals. IMO this is your best route at this time.

Edited January 1, 2022 by pwrslm

[broncovet]

That is a bogus, totally bogus denial reason.  There are many reasons why employer(s) may not return the form.  

A few reasons:

1.  They may have died.

2.  They may have moved, gotten out of the business and left no forwarding address.  

3.  They "may have" a company policy "not" to give out information regarding employees.  Example:  Your employer tells another employer you were fired, when you actually have a resignation letter.  There is a liability issue here; there can be some bad blood between employees and companies.   Employers could have been sued in the past for divulging "too much information", that, maybe the employee did not want released to the public.  

     They simply "can not" deny you "solely" based upon an employer not returning the form.  You should appeal it.  

Its not a criteria for tdiu:  "your employer must return the form".  

VA is required to rate you "on the criteria" not based upon whether you have purple hair, like the Beetles, or whether or not your employer returned the form.  

The criteria for tdiu is:  "Are you able to maintain substantial gainful employment?"  If you are not, and your doctor says so, did he say the reason was due to SC conditions?  

     THIS is the criteria.  The Board often says, "the criteria for (insert condition, including tdiu) have (or have not) been met." 

If the criteria is met, then you get the benefits, if not, you dont.  

    If your doctor says, "you are unable to maintain SGE due to SC conditions", you can still be denied, tho.  Why?  Well the doctor can opine you cant do your present job, but can you do another job?  Sometimes you need a voc rehab assessment..you see, its possible you cant do your present job, but you may be able to be retrained to do a different job.  Example:  Your bad knees means you cant lift over 50 pounds, and you can no longer perform your warehouse job.  But, a Voc rehab counselor may say, "yea, but I can retrain him to program a computer", and that has no stress on his knees, so he could do that job.  

    I had a voc rehab counselor opine that, I was not a good candidate for retraining, and he gave the reasons why.  Therefore, I was unable to perform any job due to SC conditions. 

    That was the winner, and I got tdiu.  

Edited January 2, 2022 by broncovet

[Smirak]

22 hours ago, broncovet said:

That is a bogus, totally bogus denial reason.  There are many reasons why employer(s) may not return the form.  

A few reasons:

1.  They may have died.

2.  They may have moved, gotten out of the business and left no forwarding address.  

3.  They "may have" a company policy "not" to give out information regarding employees.  Example:  Your employer tells another employer you were fired, when you actually have a resignation letter.  There is a liability issue here; there can be some bad blood between employees and companies.   Employers could have been sued in the past for divulging "too much information", that, maybe the employee did not want released to the public.  

     They simply "can not" deny you "solely" based upon an employer not returning the form.  You should appeal it.  

Its not a criteria for tdiu:  "your employer must return the form".  

VA is required to rate you "on the criteria" not based upon whether you have purple hair, like the Beetles, or whether or not your employer returned the form.  

The criteria for tdiu is:  "Are you able to maintain substantial gainful employment?"  If you are not, and your doctor says so, did he say the reason was due to SC conditions?  

     THIS is the criteria.  The Board often says, "the criteria for (insert condition, including tdiu) have (or have not) been met." 

If the criteria is met, then you get the benefits, if not, you dont.  

    If your doctor says, "you are unable to maintain SGE due to SC conditions", you can still be denied, tho.  Why?  Well the doctor can opine you cant do your present job, but can you do another job?  Sometimes you need a voc rehab assessment..you see, its possible you cant do your present job, but you may be able to be retrained to do a different job.  Example:  Your bad knees means you cant lift over 50 pounds, and you can no longer perform your warehouse job.  But, a Voc rehab counselor may say, "yea, but I can retrain him to program a computer", and that has no stress on his knees, so he could do that job.  

    I had a voc rehab counselor opine that, I was not a good candidate for retraining, and he gave the reasons why.  Therefore, I was unable to perform any job due to SC conditions. 

    That was the winner, and I got tdiu.  

Thanks for the info bronco (and others).  Would you mind telling me who did your box rehab assessment?

[pwrslm]

With VR&E, if they do not find that you are unemployable, they will (should) offer you CH31 rehab. Ch31 pays for everything, plus they gave me a stipend of around $1100/month that helped get through those years. I still have the laptop they gve me for school  

 

I got a 4 year psych degree from this. 3 months before I got the degree, the VARO found me 100% P&T. I was diagnosed w/ALS that same year, so I finished the degree and now I work with AA/NA locally and Vets. No regrets.

Edited January 3, 2022 by pwrslm