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.

[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