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Comer: VA must assume Vet seeking the max benefit.


broncovet

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This may apply especially with TDIU.  Remember, before 2015, informal claims for increase were allowed. 

CCK law explains, in Ingram, below,  that the Va has a duty to consider both informal and formal claims:

https://cck-law.com/blog/10-court-of-appeals-for-veterans-claims-cases-all-veterans-should-know-part-1/

And, Comer vs Peake points out when a Veteran seeks a claim for increase, VA has to assume the Vet seeks the maximum benefit: 

https://casetext.com/case/comer-v-peake

Specifically, Comer says:

Quote

The Veterans Court has long held that an informal claim for an increased rating will be construed as a claim for the highest rating possible. See, e.g., Norris v. West, 12 Vet.App. 413, 419-20 (1999). Thus, as the board correctly acknowledged, Comer's appeal of the RO's rating determination was required to be construed "as an appeal for the maximum benefit allowable by law or regulation." 2005 Board Decision, slip op. at 2.

Remember, a claim for tdiu, if you already have one or more disabilites, is a claim for increase.  

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Posted (edited)

I agree completely with your post based upon my long experience with TDIU and other claims and appeals before BVA and the CAVC court that ruled in 2005 that the VARO and BVA committed due process error in failing to adjudicate me for an implied TDIU award.  Just to be safe I always ask for the highest rating for the disability I am claiming in both initial claims and appeals to the BVA.

There is always a however and here it is.  The VA gives themselves an out by saying now days that the veteran must still file claims using the proper form for that type of claim.  So there it is.

Edited by Dustoff 11
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Spot on, Dustoff.  I want to inform Vets "if there is documentation in the Cfile" that the Veteran indicated he was unemployed (while seeking an increase), BEFORE 2015, he may have retro coming.  This could mean he has an "informal claim for tdiu" pending, that has never been adjuticated.  

As always, if in doubt ask hadit members or consult with a Veterans law attorney.  

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