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.

[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

[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

[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.