What is an Unadjudicated Claim

[pacmanx1]

What Are Unadjudicated Claims And How Do They Affect The Amount Of Retroactive/Back Pay Benefits? 

An unadjudicated claim refers to a claim which remains open due to an oversight in VA system. 

This can occur during different stages of a claim. In the past, (before the VA instituted mandatory application forms), claimants would often file a morass of written submissions. 

Buried in these submissions might be statements requesting service-connected benefits, constituting informal claims. Overwhelmed by all the busy text, a VA adjudicator might overlook or even ignore these informal claims.

In theory, upon the claimant’s request, these claims can be activated at any time, with a potential effective date relating back to the filing of the claim.

Unadjudicated claims can also arise during the appellate stage.  For instance, a claim will remain unadjudicated if the VA fails to issue a Statement of the Case following the timely filing of a Notice of Disagreement.

Likewise, a claim will remain unadjudicated if the Board of Veterans’ Appeals fails to adjudicate a claim following the timely filing of a Substantive Appeal.

For effective dates, unadjudicated claims can be gold mines.  Recall that effective dates are usually determined by the date of the claim.  Therefore, if you find an unadjudicated claim in the file, which has remained dormant for years, maybe even decades, the entitled retroactive/back pay may reach as far back as the filing date of the unadjudicated claim. 

Simple Guide to VA Retroactive/Back Pay Benefits | Veterans Law Group

[Michele]

I may have an unadjudicated TDIU claim. I am studying about implied denials. Does anyone have any input on

John Fussell and Jonathan Hager's "The Evolution of the Pending Claim Doctrine."? 

 

[broncovet]

I highly suggest you fight VA for your benefits.  You will need documentation of this unadjuticated tdiu claim, such as in the form of a statement to your doctor that you were unemployed, after you had applied for benefits.  It is "NOT" a requiremnt of Veteans to fully understand every regulation in order to win benefits.  We also dont have to understand even what TDIU is, which can be somewhat complex, when you dig into it.  You simply need to have documented you told your doctor, or others, you were unemployed, after you sought the other benefits.   Perhaps this would be beneficial to your claim:

Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the "identify the benefit sought" requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU. The VA must consider TDIU because, in order to develop a claim "to its optimum" as mandated by Hodge, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for TDIU. Thus, we reverse the court's holding that Roberson failed to make a claim for TDIU before the RO at the time of its 1984 decision.

Source:  https://casetext.com/case/roberson-v-principi

I also suggest you read through the above case, because the Federal Circuit "spanked" the CAVC for not considering the claimant for TDIU.  It set a precedent, as all Federal Circuit cases do.  Lawyers often cite Roberson vs Principi because its HIGHLY Veteran favorable.  

Personally, I used Roberson vs Principi citations in my appeal, and eventually wont tdiu back to when I first claimed it.  

The case is rich in Veteran friendly requirements for VA, that VA often ignores.  

 

 

[pacmanx1]

12 hours ago, Michele said:

I may have an unadjudicated TDIU claim. I am studying about implied denials. Does anyone have any input on

John Fussell and Jonathan Hager's "The Evolution of the Pending Claim Doctrine."? 

 

Be forewarned that the VA will fight you all the way to the CAVC and then try their best to either low ball your rating percentage and or screw up your effective date or both.  

[Dustoff1970]

In about 2003 the U.S. CAVC veterans appeals court made a decision in the CUE claim I appealed  on my own to the court after denial by VARO and BVA.

In my CUE claim I stated  VARO and BVA committed clear and unmistakable error in failure to adjudicate me for among other issues a TDIU claim based upon my strong severe PTSD VA diagnosis and long term unemployment due to this long term Vietnam PTSD in their VARO 85 to 91 decisions. I never did file for a TDIU claim before 1998 when I was awarded TDIU after filling out the proper form and presenting evidence.

The court agreed with me that there was an implied claim and serious failure to assist error and remanded my claim to BVA/VARO for adjudication.  Before the courts decision the VARO (reading the tea leaves) awarded me P&T TDIU with 5 years back pay.

The Fed and CAVC courts have repeatedly ruled that the VARO and BVA must give a sympathetic reading to veterans claims for TDIU and to also automatically consider it as a claim for increase of present disability/s.

Also where there is evidence before the VA adjudicators of veteran unemployability due to their service connected disabilities then they should send you the application form for applying for this TDIU benefit.

HOWEVER!!!!!!!!!, It is up to the vet and his or her VSO to take responsibility and apply for this benefit on the proper form and present supporting evidence.  Do not rely on VARO raters to initiate this action.

As soon as you have medical and other evidence and meet the requirements for TDIU then apply immediately.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited July 14, 2023 by Dustoff1970

[Vync]

@broncovet

Was that the Hodge v. West decision from 1998?

I wish it applied to non-TDIU claims where new disabilities were diagnosed during the C&P exam, but never adjudicated by the VA. Of course, the VA never proactively notifies the vet of the newly diagnosed disabilities. The only way the vet would learn of them would be to formally request the C&P results or their claims file. By then, years may have passed so the vet is out of luck to get retro back to the date of diagnosis.

Edited July 14, 2023 by Vync

[Dustoff1970]

I have those TDIU court cases saved to my PC files and will search for them soon as it has been over 22 years since my involvement with the CUE TDIU claim and the CAVC court appeal.  It was a single judge decision by judge Green.