Spouse substitution and TDIU question

[Vync]

These questions are regarding a case of a retired military veteran in their 70s who just filed for AO issues including hypothyroidism, plus some head injury related issues and some other things.

1. If the veteran passes away before the VA can do their exams, can their spouse file for substitution and have the VA base ratings on medical evidence of record and their lay statements? Currently, the veteran is relatively stable, but the family is asking for advice just in case things go downhill fast.

2. After retiring from the Army, they continued to work as a security guard. A few years ago, side effects of Parkinson's-like symptoms and dementia (we think is related to AO, hypothyroidism, and the head injuries) resulted in forced retirement for their own safety. If he wins and has not yet passed away, would the VA potentially have to consider IU or TDIU? Does age factor into IU/TDIU consideration?

Thanks!

Edited September 6, 2022 by Vync
Clarified the IU/TDIU question

[brokensoldier244th]

Yes on the first. Depends on the second. I don’t know if they can get IU if they pass- maybe up to the deceased date if that happened. Afterwards, potentially DIC. I’ve not worked DIC and post death, though- I think thats a different group, or fiduciary, that works those. 

[Vync]

@brokensoldier244th He's currently not getting any worse, but was curious. The IU question was based on him still being alive. Wondered if the VA dismisses IU/TDIU consideration when the veteran is older...

[brokensoldier244th]

Well, IU is just 100% with strings attached. They may very well just make him 100%, too. Im not a rater, though, so I try not to wade too far into that murk.

 

 

[broncovet]

1.  Yes.  Substitution of claimant happens when the dependent files it after the Veteran is deceased, but the Veterans claim has not been fully processed or appealed.  It sounds like an IMO is possible also, because an IMO is an interpretation of the medical records available, and those interpretations can differ.    Of course, once deceased, the medical records stop being accumulated and the autopsy record applies also, if there is an autopsy.  

Sometimes autopsies are needed to verify a claim, especially with DIC.  

2. No.   Your age is not supposed to be a factor with tdiu.  TDIU is the inability to maintain Substantial gainful employment due to SC conditions.  This could happen at any age.  

Source:  38CFR 4.19 and for further information, CCK law, here:

https://cck-law.com/veterans-law/does-va-consider-age-as-a-factor-for-tdiu/#:~:text=The VA is not supposed,when making decisions on TDIU.