TDIU question

[capitan]

I have a TDIU claim active. 11 months ago I received a VA letter saying part of the claim is deferred. Then another letter saying they are working on my claim. I don't think they got the memo Leave No Man Behind. Does anybody know how long I will have to wait? Or if there is anyway to check and see what gives?  I am 77 with some medical issues. USMC combat Vietnam vet.

Edited July 1, 2022 by capitan

[Phury & Rhage]

Sorry to do this piecemeal - it's been a very long day   I read some of your earlier postings and you said you received notification that your PTSD would remain 50% but that your claim was deferred for an examination.  Without seeing your notification/rating decision, that sounds like you were give a partial decision.  The PTSD was confirmed and continued at the current evaluation and they intend to get an exam to determine the current severity of your cancer residuals and ask the examiner to explain how they impact your functioning; particularly your ability to function in a work or work-like environment.  

I can tell you that your active claim would have been continued beyond the decision they issued and an exam request should have been submitted.  There are a couple things you need to do.  FIRST, you need to ask your VSO to check/verify that you have an active End Product (EP) in the system.  It does happen that pending claims get closed out erroneously, but this is can be fixed.  Once you determine that you have an active EP pending, you need to submit a VA Form 21-4138 Statement in Support of Claim.  You need to clearly state that you believe that your claim for unemployability is waiting for an exam of your cancer residuals.  Also, state that you haven't been contacted for an appointment (I assume you haven't).  Also tell them that you want to be schedule for an appointment ASAP.  

If you can easily attend an appointment at a VA medical center, you should state on the 4138 that you ONLY want to be seen there.  Their scheduling is typically more flexible.  It's your choice, but I would always "suggest" that Vets attend exams at VAMCs.  I've seen too many issues with outside examiner appointments fouled up - particularly since the Pandemic hit.

Then, gather every bit of medical evidence (particularly private) that shows the current severity of your cancer residuals.  If you have a private doctor, you can even have them fill out a Disability Benefits Questionnaire (DBQ) for you.  It's important that your evidence clearly shows how your symptoms affect your ability to function in a work environment.

If you find out there are any problems with your claim (accidently closed, etc) you can send me a direct message and I will try to give you more specific help.

Good luck,

Phury

[capitan]

Thank everybody, especially Phury. Happy 4th. I hear the fireworks already. I will take in advisement all comments and act accordingly. Here is a recent comment from my VSO...I had told him years ago I had been given the phone no. of the American Legion head at the Regional Office and asked if we could call him...this was his reply...discouraging to me that my claim could be sitting on a desk anywhere in the country...

The process the VA uses has changed over the years. It used to be that claims for veterans in South Carolina were handled by the VA Regional Office in Columbia. Back then, the American Legion reps could walk over and talk to the person assigned the claim. Now the VA uses a National Work Que, so the claim sits in a que and can actually be handled by any one at any Regional Office in the US.

 

The claim has not been forgotten and is still being worked as an active claim.

[broncovet]

"Old School" was that there "was only one paper claim", and that file was transferred to VARO's outisde of the AOJ in some cases.  Nowadays, most all Vets files are electronic, which means "the next available" rating specialist would work your claim after you became first in the QUE. (The Que is an electronic waiting list for claims to be worked). 

Your old VSO sounds like he is old school.  With a VSO "with electronic VBMS access" (granted by VA),  My personal opinion is that if you have an old school VSO who refuses to jump through the hoops to get VBMS access, you should consider changing to one who has VBMS access.  Its a terrific disadvantage to not having access, and your is a great example.    The idea is you/your VSO (or attorney with VBMS access) can look through your file and see if its "stuck" (such as was mentioned, the claim was deleted and no longer being worked), or, in some other way being unnecessarily delayed.  

Another example, is the page or pages where your nexus is, could be missing from your vbms file (aka efile).  This would mean you either re submit your nexus letter, or get denied.  Key evidence which was missing, happens enough there is an entire regulation on "what to do if evidence is lost/missing and then found".  38 CFR 3.156.  

There fore , my advice is to call your VSO back again and inquire if he has VBMS access.  

If he has no access, then you will need to make a decision on the usefullness of your VSO, and decide on whether or not a change is warranted.  

Of course, there are instances where you are very happy with your VSO, and he is old school and does not have VBMS access, but DOES have a network of people he can talk to and get things done with your claim, when it gets stuck.  

Edited July 2, 2022 by broncovet

[Phury & Rhage]

True that @broncovet.  Also, if you have appointed a national organization (like American Legion, VFW, etc.), your work can be handled by anyone in that organization.  You may have a long established relationship with a single person in the organization, but you are allowed to go to anyone.  This could be important if your local rep doesn't have VBMS access, but you can make a trip to the RO (regional office) where the reps likely DO have access...your call.

 

Phury

[capitan]

Phury, you are right, the letter gave me a partial decision. PTSD will continue at 50%. But I think I mispoke about the rest. To be clear... Service Connection for cancer gave me 30%, which gave me the needed 70% for TDIU claim qualification. I am not looking for additional exam appointments, as I have already had C&P exams for those residuals. When I applied for TDIU, I made sure I only gave the two SC disabilities which I believe prevent employability. One is PTSD. The other is AO caused tongue cancer with residuals, one of which is fatigue, which is SC. The letter says, "The issue of whether or not you are entitled to Individual Unemployability is deferred for the following: pending VA examination." I could be wrong, but I think that means the VA will examine my case and the exams I had. Not that they will give me more exams.  Maybe that explains why they have not sent me to more exams. I've had them all.  But it doesn't explain why they're dragging their feet about a decision.  That letter was 08/09/2021. A subsequent letter dated 12/22/2021 says, "We are working on your claim."    Semper Fi

[capitan]

Received this email from my VSO...

Yes, I have access to VBMS. The claim is still pending.

As for expediting due to advanced age, if it is a claim at the Regional Office level, then you must be 85 years old. If it is an appeal at the BVA, then you need only be 75 years old.