tdiu Tdiu As Inferred Issue

[Berta]

http://72.14.209.104/custom?q=cache:NH78zl...381742111066612

"h. Identifying Inferred Claims of IU The Rating Veterans Service Representative (RVSR) is responsible for identifying claims with potential entitlement to increased compensation based on IU even when no specific claim for the benefit has been made.

A claim of IU is reasonably raised or inferred when

the evidence shows that a veteran’s schedular rating meets the minimum criteria found in 38 CFR 4.16(a), and

evidence in the claimant’s file or under Department of Veterans Affairs (VA) control shows the veteran might be unemployable as a result of SC disability."

I have attached so many TDIU forms to NODs and also posted the 21-8940 form here over the years that I think my 3 1/2 with the TDIU pdf form will wear out.

I do this because of this part of the M21-1 guidelines-

a part that I think is unfair and yet the veteran CAN challenge the EED if they basis it this way:

" i. Processing Inferred Claims of IU When an inferred claim of IU is identified, VA will

send the veteran VA Form 21-8940 for completion

take the existing end product (EP) credit by award action or PCLR, if no other issues remain pending, and

establish a new EP 021, using the date VA Form 21-8940 is sent to the veteran as the date the claim."

They are saying the evidence determined to VA that there is likelihood of TDIU award so that EED would pressed the date of the claim-which they are saying to consider as date the veteran files the claim.

At least this is the way I interpret their double talk.

A vet could say- get the TDIU form from VA on April 3rd,2007, fill it out, send it back, etc, they award TDIU back to April 3rd------

yet clearly that is NOT the EED of TDIU.

Yet I really do not think they pull that much at all-but clearly they could based on the way this is written.

This part:

"requesting information from SSA, see M21-1MR, Part III, Subpart iii, 3.A, and

the effect of SSA decisions regarding unemployability on VA determinations, see Murincsak v. Derwinski, 2 Vet. App. 363 (1992)."

Tbird is developing links, asking for input-under Schedule of Ratings topic-

She already put Murincsak there and I have used this claim many times

as well as Washington V Derwinski-which I believe preceeded Murincsak.

Established precedential Case law from COVA and from the CAVC certainly is as prevalent today in M21-1 as it was years ago-

It is important that-when a vet gets SSA -VA gets those records-especially when the SSA is for the same condition that they want TDIU for.

[RockyA1911]

Ah Ha!!!!! So this is the game that the VA is trying to play on me right now! I refused to fill out and submit a new VA 21-8940 Form again and they stated they did not have one at all in my file. I resubmitted the one I originally filed dated 5 July, 2005.

Now they only have that one VA Form 21-8940 and it is dated 5 July, 2005!

The VA stated they received my claim for individual unemployability on 26 February, 2007!!!!!! But I never submitted anything with that recent of a date on it at all, only the I/U claim dated 5 July, 2005.

So this is what they must have been trying to do to me. Had I have submitted a new VA Form 21-8940 that they sent me to fill out and return with current date on it, they would have totally ignored the claim and EED of 5 July, 2005.

The combined 70% evaluation rating is ED 11 July, 2005.

From what I have just read, the VA can still do that to me it they want to and then make me fight for an EED.

[Berta]

I think the worse game of all is when a service officer tells a vet- look you got 50% or 70% or whatever -(and the veteran is not working and has possible potential for TDIU)

So just be happy with what you got, you cannot get anything more-

I think if the vet either comes here or somehow gets a hold of a TDIU form elsewhere and sends it in- then if the vet is awarded the VA might only give the EED to date of receipt of the form-(they might however give a proper EED based on the med evidence)

but maybe the SO has caused the vet financial damages.

It is very expensive to sue for a few thousand bucks in damages-

however when lawyers rep vets after June- I think a lawyer should look for this potential too-vet rep monetary liability.and CUES in past decisions.

Another thing- too- my reps are saying my 2006 IMO was "new and material " evidence -when in fact the 2004 IMOs that they ignore-support my claim.

In my case I dont think it matters but I saw a vet they repped at the BVA.

Apparently she was in same boat with this outfit as I am-

she got a remand too but hers took much longer than mine-

She too had an IMO that these state reps ignored or at least allowed the RO to ignore.

I wonder if this IMO she had-obviously obtained prior to the BVA transfer means she would get an EED somehow depending on date of receipt of "new and material" evidence when in fact-just like me- she had sent the IMO to the RO long before the BVA transfer and they ignored hers too.

Does all that make any sense or am I just looking at her situation the wrong way?

Of course a vet can NOD anything they dont do right.

But you would think they would attempt to do things right in the first place instead of adding years and years to many claims.

I was in my POAs office one day discussing a claim I was helping them with (I actually did volunteer work for these guys-while they were messing up my claim)

and one of the reps was looking all over for a TDIU form.

He asked the boss who I was talking to- what the number of the form is-I said 21-8940-the boss didnt seem to know-

finally he found one-

this form is always on a disk at my desk and also in my favorites link-

I was pretty startled realizing that TDIU seems to be so unimportant there and it took them time to find the TDIU form.

Edited April 13, 2007 by Berta (see edit history)

[Cammy]

Would the wording in the 50% diagnosis for headaches constitute infered TDIU? "With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability"

[Berta]

The 50% under DC code 8100 is the maximum rating:

"The veteran's headaches are evaluated under the criteria set

forth at 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under

this provision, migraine headaches with characteristic

prostrating attack averaging one in two months over the last

several months warrant a 10 percent rating. A 30 percent

rating is warranted for migraine headaches manifested by

characteristic prostrating attacks occurring on an average of

once a month over the last several months. A 50 percent

rating is warranted for migraine headaches with very frequent

completely prostrating and prolonged attacks, productive of

severe economic inadaptability. This is the maximum rating

available for migraine headaches pursuant to Diagnostic Code

8100."

from: http://www.va.gov/vetapp07/files1/0701643.txt

Therefore TDIU would not be an inferred issue for VA to consider-

do you have other service connected disabilties?

You can certainly apply for TDIU on the 21-8940 form and tell them of any other medical evidence you have that shows that your migraines are the cause of your unemployability.

Did the VA ever turn you down for Voc Rehab?

Do you have severe side affects of the migraine meds that cause secondary disabilities they have not considered?

Like some meds can cause GERD.

I dont think the VA can possibly award higher than the 50% for the migraines-their regs say they won't- but other secondary problems related to this disability could come into play- and support a TDIU claim.

Edited April 17, 2007 by Berta (see edit history)

[jbasser]

You have to have 1 disability rated at 60% or a combination totaling 70% with 1 at 40%.

However, special consoderation can be given in some cases( Extra Schedular)

50 percent is the max per rating schedule for HA.

[Berta]

John- I actually believe there is a 100% schedular award at the BVA for migraines.

If I find it I will post it- good to bring that point up.

[Cammy]

I don't understand your reasoning for saying that IU is not implied when there is a significant impact on the economic well being of a veteran with migraines. A "severe impact" to me says that the individual is less likely to earn a living than someone who does not have migraines. I know that this has been a topic of discussion before and is even mentioned in several court documents. Just throwing my 2 cents in.

My overall rating is 90%. 50% for Migraines, 50% for depression, 40% for lower back strain with siatica, plus others that bring the total to an actual of 92.168%. I find it hard to believe that IU would not be awarded based only on the 50% rating for migraines.

I'm not ready to play the IU card at this time and have recently applied for VOC-REHAB. I'm not holding my breath there as I attended college before retirement and have a Masters in Business Administration. My feeling is that they (VA) will tell me I have all the tools I need to get a $30K a year job. That coupled with my VA disability and retirement should be enough to live on.

[Philip Rogers]

I'll add something here. I've helped two vets get TDIU and both had been told repeatedly that 50% was the max for their condition. One had a skin condition and the other had to do with hearing. The point was that their s/c condition kept them from working. They both prevailed. When we requested extra-schedular consideration, the skin condition claim was sent to the Central office where they raised him to 60% (50% for the skin condition and 10% for the scarring it caused). He prevailed, even though his congressman couldn't get it increased years before.

pr

[betrayed]

I was told I would never get a PTSD claim won and I did, I was told that I should be happy with my 50% shut up and go away, Well I am now 100% Schedular P&T dont listen to anyone who tells you crap like they do.

[theotherguy]

Berta,

Regarding your earlier effective date scenario, I thought I'd point out that as long as the VA Form 21-8940 is returned in a timely manner, the effective date should go back to the date that the claim for benefits which caused IU to be inferred was received (so long as the vet had ceased gainful employment prior to the date of this claim; otherwise it would be the day after gainful employment was terminated).

The VA had a training letter on this very issue in the past couple months to clear up how this manual provision was to be interpreted. Because IU has been established as a "claim for increased compensation," the regulation governing effective dates to be assigned is 38 CFR 3.400(o)(2).

Edited April 18, 2007 by theotherguy (see edit history)

[jbasser]

Great post Phillip. I actually meant to say that the max HA ating per schedule is 50 percent, However a vet can be given extra schedular consideration if their condition warrants it. This must have very strong medical backing with rock solid opinions.

Edited April 18, 2007 by jbasser (see edit history)

[theotherguy]

Cammy,

Philip brings up a good point in that it may still be possible for someone rated at 50% for migraines to receive IU or increased compensation by getting the claim to be referred to CO under the provisions of 38 CFR 4.16(. I believe they would likely grant the claim at that level if there was clear evidence that the vet was incapable of maintaining gainful employment due to the headaches. I'm currently 30% for migraines myself, so I've been keeping pretty good track of how the veterans I help are rated for this disability.

I have seen some decisions which granted the 50% evaluation simply due to the amount of work the vet missed due to prostrating migraine attacks. I do understand where you are coming from in your belief that IU could be reasonably inferred based on the criteria for the maximum evaluation. However, I think that a degree of subjectivity could be placed on what exactly constitutes "severe economic inadaptability." Like many VA regs, there is a lot of room for interpretation and judgment on the rater's part. This could be that maybe the person is able to keep their job, but maybe can not get promoted since they miss so much work.

Personally, I would ask anyone I was helping to consider applying for IU benefit even if VA does not infer the issue.

[Cherie33]

Cammy,

Philip brings up a good point in that it may still be possible for someone rated at 50% for migraines to receive IU or increased compensation by getting the claim to be referred to CO under the provisions of 38 CFR 4.16(. I believe they would likely grant the claim at that level if there was clear evidence that the vet was incapable of maintaining gainful employment due to the headaches. I'm currently 30% for migraines myself, so I've been keeping pretty good track of how the veterans I help are rated for this disability.

I have seen some decisions which granted the 50% evaluation simply due to the amount of work the vet missed due to prostrating migraine attacks. I do understand where you are coming from in your belief that IU could be reasonably inferred based on the criteria for the maximum evaluation. However, I think that a degree of subjectivity could be placed on what exactly constitutes "severe economic inadaptability." Like many VA regs, there is a lot of room for interpretation and judgment on the rater's part. This could be that maybe the person is able to keep their job, but maybe can not get promoted since they miss so much work.

Personally, I would ask anyone I was helping to consider applying for IU benefit even if VA does not infer the issue.

Hi All,

I have received the VA form to file for TDIU and wanted to know who should I speak to about helping me fill it out. I was recently awarded 30% IBS which totals 70% combined. I haven't had gainful employmnet in about 4 years, however I attended school through Voch Rehab. I had to cease going to school because of my disabilities. How should I fill out this document.

Thank you, Any and all help is appreciated.

Cherie33