Reasonably raised claims of IU

[Rivet62]

First let me say I am in the Legacy system and now dealing with the SOC in response to my NOD.

On the decision letter of my initial claim, granted 80% combined, it stated that my SC conditions "...interferes with work." It's acknowledged in the decision letter that granted me 80% combined.

Today I get an SOC (from the NOD we filed for increases and TDIU consideration) denying all issues, simply because the evidence and records they have stop at 2018, and simply no mention at all of TDIU.

So I call 1-800-Peggy and ask her what about the TDIU? The SOC shows all issues denied (for increases and additional service connects) but no mention of TDIU whatsoever. 

Peggy told me that raising the issue of TDIU should not have occurred on an NOD, that it should have been submitted as a new claim, and therefore I would want to file an Intent to File Claim for TDIU, meaning that my effective date would be the date of Intent to File (January 8, 2022) and not the last day of employment as the judge had noted in my BVA hearing.  Well I received a letter from the Board saying my hearing was improperly docketed as AMA, so the hearing I had in August 2021 is meaningless. I'm back to whether the issue of TDIU was reasonably raised on the NOD.

I searched the Hadit forum and I happened upon a post by Berta, dated March 5, 2021. that she had titled Identifying Reasonably Raised Claims of IU.

This causes me to wonder if my IU is a reasonably raised claim, when firstly the VARO had already recognized my SC conditions (at 80% combined) as "interferes with work" on my decision letter and secondly we state on my NOD that the VARO "...didn't consider TDIU" when it should have. Is Peggy right that I should have filed a separate claim for TDIU, or is my attorney right in following rules of Reasonably Raised Claims of IU when he used the NOD to do so?

Thanks in advance for all responses on whether or not I have a reasonably raised claim of IU as it stands now.

 

Edited January 7 by Rivet62
Updated info, greater clarity

[pwrslm]

The M21 Adjudication Procedures Manual states that the RO should be considering all "unclaimed subordinate issues and ancillary benefits". I would take that to mean that the issue of IU should be reviewed automatically. In every claim I have made the RO made the statement that I was not getting IU  appeared as if it were a built in step in rating decisions.

 

V.ii.3.A.1.a.  Recognizing Issues and Claims When Preparing a Rating Decision

When preparing a rating decision, the decision maker must recognize, develop, clarify, and/or decide all issues and claims, whether they are

expressly claimed

within scope of an expressly claimed issue, such as

complications of the claimed condition, or

unclaimed subordinate issues and ancillary benefits, or

compensation entitlement issues that arise based on the Department of Veterans Affairs’ (VA’s) review of evidence, such as

reductions of service-connected (SC) disability evaluation

clear and unmistakable errors (CUEs)

entitlement under the Nehmer stipulation, or

competency reviews.

(That section refers to this section. The table in this section, toward the end, directs:)

V.ii.3.A.2.b.  When to Address Subordinate Issues and Ancillary Benefits

"the schedular disability requirements for IU under 38 CFR 4.16(a) are met, and

there is evidence in the Veteran’s claims folder or under VA control that indicates he/she may be unemployable due to SC disability"

(So it should be part of the process, and also refers to this section)

 

 

M21-1, Part VIII, Subpart iv, Chapter 3, Section B - Individual Unemployability (IU) Claims Development

(Which is the step by step guide for IU development)

So if the RO failed to do this, and notice was not in your claim decision before this, then it was a mistake on the part of the RO.

These are the way problems are created that result in the denial of benefits. Regardless of the outcome of the entitlement to these benefits when any Vet is denied this step, it technically violates our due process rights.

 

Edited January 7 by pwrslm

[Rivet62]

3 minutes ago, pwrslm said:

The M21 Adjudication Procedures Manual states that the RO should be considering all "unclaimed subordinate issues and ancillary benefits". I would that that to mean that the issue of IU should be reviewed automatically. In every claim I have made the RO made the statement that I was not getting IU as if it were a built in step in rating decisions.

 

V.ii.3.A.1.a.  Recognizing Issues and Claims When Preparing a Rating Decision

When preparing a rating decision, the decision maker must recognize, develop, clarify, and/or decide all issues and claims, whether they are

expressly claimed

within scope of an expressly claimed issue, such as

complications of the claimed condition, or

unclaimed subordinate issues and ancillary benefits, or

compensation entitlement issues that arise based on the Department of Veterans Affairs’ (VA’s) review of evidence, such as

reductions of service-connected (SC) disability evaluation

clear and unmistakable errors (CUEs)

entitlement under the Nehmer stipulation, or

competency reviews.

(That section refers to this section. The table in this section, toward the end, directs:)

V.ii.3.A.2.b.  When to Address Subordinate Issues and Ancillary Benefits

"the schedular disability requirements for IU under 38 CFR 4.16(a) are met, and

there is evidence in the Veteran’s claims folder or under VA control that indicates he/she may be unemployable due to SC disability"

(So it should be part of the process, and also refers to this section)

 

 

M21-1, Part VIII, Subpart iv, Chapter 3, Section B - Individual Unemployability (IU) Claims Development

(Which is the step by step guide for IU development)

So if the RO failed to do this, and notice was not in your claim decision before this, then it was a mistake on the part of the RO.

These are the way problems are created that result if the denial of benefits. Regardless of the outcome of the entitlement to these benefits when any Vet is denied this step, it technically violates our due process rights.

Thank you so much!

[broncovet]

The court has ruled "a claim for tdiu" is a claim for increase.  That is important, because under the old "informal claims for increase" rules, your mention of being unable to work to a (VA doc) can be a claim for increase (tdiu) for effective date purposes.  

You see, if you go to the VA and tell the doc you cant work, well, it only establishes a claim "IF" you have already applied for benefits.  If you go to the VA, the Va does not consider it a "claim" until you file it.  Your going to the doctor is presumed to be for TREATMENT, not benefits, until/unless you apply.  

You are gonna need to look through your records.  Is there something there where you told your doctor you are unable to work?  That may suffice as an informal claim for increase.  

A SOC indicates that at least one or more issues was denied.  If benefits were awarded, then a SOC is unnecessary.  This means you should file an appeal to the denial, probably to the BVA, and do so within a year of the SOC.  

Yes, we have discussed reasonably raised claims for tdiu, those mostly apply to effective dates.  You need to be awarded tdiu FIRST to appeal your effective date of tdiu.  

While I dislike this immensely, you have to wait for the tdiu award before appealing the effective date.  This said, its certainly ok to address this issue in your claims/appeal for tdiu.  For example:

I would like to appeal the denial of tdiu.  This issue was first "reasonably raised" on a 1-15-2004 medical exam with Dr.  Jones, and was noted in his exam notes.  

[Berta]

I have been working an issue for a vet that is exactly within this topic.....

It is my undertadig that traditionally, if a vet was awarded 70% or more, and the VA knew they were unemployed, the VA would send them the TDIU form. But things have changed so much under the AMA- I need to see if I can find that regulation.... and if it still applies.

Regardless of a VA decision- if a veteran gets SSDI solely for an established VA SC disability, the VA must know of and then confirm the SSDI award and then consider the veteran is TDIU or 100% schedular for the SC disability.

Also if the veteran has been deemed by VA VocRehab as unfeasible for this program, solely due to their SCs, In documentation from Voc Rehab, that means the veteran should be awarded 100% SC for the SC condition. If one cannot be rehabilitated, they are unemployable.

 

[Rivet62]

I am in the legacy system.

20 minutes ago, broncovet said:

The court has ruled "a claim for tdiu" is a claim for increase.  That is important, because under the old "informal claims for increase" rules, your mention of being unable to work to a (VA doc) can be a claim for increase (tdiu) for effective date purposes.  

Ok

28 minutes ago, broncovet said:

You see, if you go to the VA and tell the doc you cant work, well, it only establishes a claim "IF" you have already applied for benefits. 

I believe this part applies to me. I had a claim in while I was trying to work part-time in food service (at the VAMC actually, under Schedule A hiring authority), then tried to do full-time in food service because my car engine went down (that lasted about 1.5 months then to emergency room at the VAMC), then medical transfer to a VAMC sedentary position, then lots of Dr appoints, then exhausted my sick leave, exhausted my PTO, exhausted unpaid leave limits, exhausted FMLA, and then finally submitted a medical resignation and long story short built up a lot of documentation that my own primary care doctor at the same VAMC had to sign off for. In other words, my primary care doctor was involved all along. But... I encountered problems in the form of 'information silos'. What occurred in employee records is not necessarily included in my patient records, so I'll have to check and see what extent information spilled over into my VA patient record.

41 minutes ago, broncovet said:

Yes, we have discussed reasonably raised claims for tdiu, those mostly apply to effective dates.  You need to be awarded tdiu FIRST to appeal your effective date of tdiu.  

While I dislike this immensely, you have to wait for the tdiu award before appealing the effective date.  This said, its certainly ok to address this issue in your claims/appeal for tdiu.  For example:

I would like to appeal the denial of tdiu.  This issue was first "reasonably raised" on a 1-15-2004 medical exam with Dr.  Jones, and was noted in his exam notes.  

Yes, I think I am realizing the caveats. And yes, "reasonably raised" would have my effective date much earlier than the last day I worked at the VAMC because all along it was proof of inability to maintain employment (maybe), with my doctor involved all along signing off.

[Berta]

This 2021 BVA decision might answer your questions:

https://www.va.gov/vetapp21/Files10/21063926.txt

In part:

"The assignment of an effective date for an award of TDIU is governed by the statutes and regulations governing the assignment of effective dates for an award of an increase in disability compensation. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010); 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. Prior to March 24, 2015, a claim was a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits)"

https://www.va.gov/vetapp21/Files10/21063926.txt

This is an unusual case-I hope many here read it.

Here is another:

"FINDINGS OF FACT 1. A TDIU claim was reasonably raised by the record as of July 28, 2012, as part and parcel of the initial claim for adjustment disorder with anxiety and PTSD for which the Veteran has continuously pursued a higher rating. This service-connected disability precluded him from securing and following a substantially gainful occupation from July 28, 2012 onwards. 2. The Veteran was not service-connected for any disability prior to July 28, 2012."

"In view of the foregoing, the Board finds that July 28, 2012 is the proper effective date for the award of the Veteran's TDIU.  The probative medical evidence of record demonstrates that the Veteran has been prevented from maintaining substantially gainful employment due to his service-connected psychiatric disability since his separation from service. Because an implicit claim for a TDIU was raised as part of the increased rating claim for service-connected connected adjustment disorder with anxiety and PTSD with an appeal period beginning on July 28, 2012, this earlier effective date is granted. However, under the applicable laws and regulations, there is no basis for finding an even earlier effective date. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400."

https://www.va.gov/vetapp21/Files6/A21011187.txt