Unwanted TDUI app

[Rick33]

I was granted my claimed conditions in July by the BVA after close to 10 years of appeals. The VA regional office quickly got a decision letter together. 

1. They rated sinusitis 30 and GERD 10 (should have been 30) based on my personal physician DBQs from 2015. Both were deferred and said: entitlement to higher evaluation is deferred for VA examination. The Cp examiner deemed both worse and  VA increased but effective date was date of exam. It’s not my fault the VA neglected to give me an exam when claim started. 
Should the effective date be the date of claim? 

2. The VA also put down entitlement to individual unemployability is deferred for claims development 21-8940. Now I am receiving correspondence with these applications from VA. I did not apply for this at any time during appeals. Also, the VA deemed me 100 P&T based on a C&P exam for another disability in 2021 with an effective date in 2018. 
Why did VA put me in for something I did not apply for and not recognize the 100 P& T?
 

Thank You for your help

[pacmanx1]

3 hours ago, Rick33 said:

I was granted my claimed conditions in July by the BVA after close to 10 years of appeals. The VA regional office quickly got a decision letter together. 

1. They rated sinusitis 30 and GERD 10 (should have been 30) based on my personal physician DBQs from 2015. Both were deferred and said: entitlement to higher evaluation is deferred for VA examination. The Cp examiner deemed both worse and  VA increased but effective date was date of exam. It’s not my fault the VA neglected to give me an exam when claim started. 
Should the effective date be the date of claim? 

2. The VA also put down entitlement to individual unemployability is deferred for claims development 21-8940. Now I am receiving correspondence with these applications from VA. I did not apply for this at any time during appeals. Also, the VA deemed me 100 P&T based on a C&P exam for another disability in 2021 with an effective date in 2018. 
Why did VA put me in for something I did not apply for and not recognize the 100 P& T?
 

Thank You for your help

1. It’s possible but only if you file a new appeal and you can prove that your symptoms met the higher criteria for the entire time or that these were continued pursuit claims/appeals and request the higher rating for each issue.

2. If you are not working this could lead to either an (EED) Earlier Effective date of TDIU benefits or an SMC-S rating which pays a little more of $300 - $400 per month above the 100% or TDIU rating. Typically, a veteran would have to be rated 100% or TDIU for a single rating plus have additional rating(s) of 60% to be eligible for SMC-S.

 

 

[Dustoff1970]

Since you are already 100 P&T and did not ask for TDIU then just ignore the application forms they sent you.  It is best however to consult with an experienced accredited VSO found at VA Regional offices and hospitals.  Their services are free and you do not have to be a member of any vet organization for their help.

My comment is not legal advice as I am no lawyer, paralegal or VSO.

[broncovet]

Let me explain effective dates:

    Your effective date is the Later of date of claim or "facts found".  The facts found is the date the doctor said you were disabled.  

It gets a little more complicated from here.  When you get a c and p exam, usually its because one or more of the CAluza elements were not present, or you may not have had symptoms documented.  

    When the doctor does an exam, he "should" post a date.  For example, "The patient has a history of major depressive disorder first diagnosed on June 2, 1987."  

     When the doctor specifies a date, like this, that date can be used for the "facts found" part of the effective date.  Often, however, the doctor does not specify a date.  But, he dates the exam..Dec. 13, 2023.  So, with no date the rating specialist should try to find out, such as a new exam explaining the facts found, (date mdd began)..  

     The Veteran can submit new and relevant evidence, such as a new exam/doctor statement to the effect that your mdd began in 1987 not 2023, that he either saw you back then, or, he has reviewed the records of another doctor who diagnosed you in 1987. 

     The date of claim "will only be your effective date" if the doctor diagnosed you (prior to your benefit claim date), or if the date of diagnosis is noted in your medical records.  

     Now, onto your tdiu question.  VA "has a duty" to maximize your benefits.  VA gets to interpret their own regulations, so they conclude the VA has a duty to mazimize how long it takes you to get your benefits.  

     Further, the cavc has decided that "a claim for tdiu is a claim for increase".   Generally if the Veteran is not working, and he has applief for the max benefit, a claim of tdiu should be considered and va is requred to mail the Veteran the applicable tdiu form.  

That is, a claim for tdiu "is inferred" whenever you apply for benefits or an increase, and, you have disclosed you are not working.  

Prior to 2002, I would have no idea what tdiu meant.  

      My advice, therefore is:

1.  Appeal the effective date by filing a nod on the decision disputing the effective date and disability percentage you dispute.  

View your medical records and see if the facts found date is included.  If the date is included you could try a HLR or CUE because, it sounds like the VA did not read your file.  

If the diagnosis date (facts found) are not included in your records, you need to get it there.  One way to do this is an IMO, or, maybe your doctor would not object to documenting you had your disorder since..mm-dd-yy.  Then you can submit that as evidence (new evidence under 38 cfr 3.156).  

2.  Dont do anything, let your tdiu move forward.  Reason:  It can cost you money if you dont.  If you get 100 percent, (tdiu counts under Bradley vs Peake) plus an additional combined 60 percent seperate and distinct, you get smc S, which is about another 450 per month.  In other words dont shoot for 100 percent, shoot for smc s.