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How To Get Earliest Effective Date For Tdiu?

tdiu inferred and deferred...

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8 replies to this topic

#1 Ethan'sGrandma

 
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Posted 27 July 2012 - 09:50 AM

After many years of walking what seemed like near the cliff with my claim, I am finally rated, with TDIU deferred. I am a bit confused about this and am requesting any thoughts on what I can do to get the earliest date possible, if TDIU were to be granted. The POA that I spoke with today confused me even more when I asked if TDIU were granted, would the date go back to when I submitted my VA application for service connection (2005). I was told that VA looks at when the TDIU was inferred, or mentioned in documents, which makes it more confusing in my mind. If in an actual rebuttal from me, it would have been in 2010 when I successfully disputed a C&P where it was inadequate, including the examiner "missing" that I was considered unemployable, receiving SSA benefits since 2000, which would clearly be in VA records since I'd noted it in my original VA disability application. I am aware that one agency's decision does not impact on the other's decision, but wouldn't that be inferred from the original VA application? Additionally, I will have to go to another C&P to determine TDIU which he said would open up the whole claim matter again, but if they tried to reduce, that there are no future exams scheduled, which further helps with the rating that I received? I don't understand why the last C&P exam didn't cover it, but I suppose that's not the way they have operated, at least not with my claim. I don't grasp why it would open up the whole rating decision when it's only recently that the decision was promulgated. Okay, so I can be a bit paranoid, but I've gotten to be very distrustful after years of the mishandling of my claim, so am wondering exactly what is it that they could be looking for. In 2005, I submitted the information that I receive SSDI since 2000, but VA never sent for those records until 2010. I know this because it's in a written document which made me suspicious that they were looking for what I receive SSDI since at the inadequate C&P exam, it was noted that I am insulin dependent diabetic. However, I was not diagnosed with diabetes until 2004, so my SSDI has nothing to do with any other illnesses, except for the mental category. So, can anyone give me any information of how to proceed? Thank you so much!!

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#2 broncovet

 
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Posted 27 July 2012 - 08:20 PM

There are 3 criteria for an informal claim:
1. It has to be in writing, that is there has to be a written record of it.
2. The Veteran has to "show intent" to file for benefits. Seeing a doc does not necessarily "show intent" because it is certainly plausable the Veteran is seeking TREATMENT for his malady, not necessarily benefits.
3. The Veteran needs to "specify the benefit sought".

An "inferred" claim is different. The VA can "infer" that you are seeking such and such a benefit. Some claims are "automatically inferred", such as if you have a 100% P and T plus an additional 60%, then the VA must "infer" that you are seeking SMC.

Once way to get an EED is to demonstrate to the courts, that you have met the criteria for an informal claim. There are other ways, too. 38 CFR 3.156 c, New service records is another.

For more on winning EED's see this article
http://asknod.wordpr...effective-date/

and
http://asknod.wordpr...e-date-part-ii/

#3 Ethan'sGrandma

 
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Posted 27 July 2012 - 09:42 PM

Thank you, broncovet...

#4 john999

 
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Posted 28 July 2012 - 02:06 PM

I got an EED based on a hospital admission. I had a GAF of 40 at admission. When I filed for TDIU about 6 months later that was the date I originally got as an ED. I appealed it based on my date of SSDI but the VA went with my hospital admission date which was the same as the SSDI date. You figure it. I filed for TDIU when I was 30%. I did not listen to those idiots at the DAV who told me I could not get TDIU unless I had 70%. I did get 70% 6 months later.

John

#5 Ethan'sGrandma

 
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Posted 28 July 2012 - 04:09 PM

Thank you, john999

#6 broncovet

 
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Posted 29 July 2012 - 06:00 AM

Of the criteria for an informal claim, listed below, number 3 seems to cause the most problems.

You see, the Veteran need not self diagnose his condition to apply for benefits. He does not need to specify
"I am seeking benefits for late stage DM11 with secondary peripheral neuropathy" and I meet the criteria for Total Disability Due to Individual Unemployabliity and seek that benefit as well." The doctor will confirm my diagnosis.


Instead, the Veteran can describe symptoms. Something more like, "I have pain in my feet and hands so severe I cant work, and I take shots for diabetics every day. I am in psychological counseling, and the doc will be making a diagnosis soon. I seek benefits for all these maladies"


The court wont tell you that you have to be able to pronounce, spell, or understand what peripheral neuropathy even is, tho many Vets are up on that.
You descibe the symptoms...you can even point to the body part that hurts.

Edited by broncovet, 29 July 2012 - 06:03 AM.


#7 Berta

 
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Posted 29 July 2012 - 07:33 AM

John stated the stupid mantra of many reps from many vet orgs over the years :


"I did not listen to those idiots at the DAV who told me I could not get TDIU unless I had 70%. I did get 70% 6 months later."


I heard that too from the DAV when my husband at 30% applied for TDIU.


The EED for most TDIU claims is the date they received the claim.


The regulation states:


“The effective date of an award of increased compensation
shall be the earliest date as of which it is factually
ascertainable that an increase in disability had occurred,
provided that a claim was received within one year from such
date. Otherwise, the date of receipt of the claim is the
effective date to be assigned. See 38 U.S.C.A. § 5110(b)(2);
38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10
Vet. App. 125, 126 (1997); Wood v. Derwinski, 1 Vet. App.
367, 369 (1991); VAOPGCPREC 12-98 (Sept. 23, 1998).”

What that confusing VAOLA means is that, once a higher rating is determined, then if the claim was received within a year of the 'factually ascertainable' increase in disability,then a more favorable EED can be given , due to the med evidence in the actual increase. Geez my explanation is worse than the reg is.


For TDIU claims-if a SSDI award solely for SC disability precedes the TDIU application within the year prior to receipt of the TDIU application, the VA will (should) award the SSDI date as date for TDIU EED.I have never seen them go back further than that year.


SSDI is actually an independent medical opinion.I would think any strong IMO that supports a EED,with a full medical rationale prior to the date of applying for TDIU could render a favorable EED.


Ethan's Grandma stated:


“I receive SSDI since 2000 “ If this was for the exact same sole disability that they award TDIU on, and nothing else , I think they would award an additional year retro for TDIU that preceeds the TDIU Application date.


EEDS are confusing.
VA gave me an EED date for my husband's IHD that corresponded with a VA C & P exam for PTSD.

NVLSP said it was a proper EED per the regs under Nehmer .

However the IHD was also the subject of both 1151 and FTCA cases and the medical evidence warranted a better 1151 EED,confirmed by all of the extensive documentation due to the FTCA matter.
But I still don't know if I will fight it. The very first diagnosis of his IHD came from me.. VA never diagnosed it in his lifetime.
I am more concerned about a new 1151 issue I have, since reading the Nehmer award.

The odd thing about award letters is that an award letter can certainly open a different door but I think many of us are so relieved it is over, we don't even want to fight over other issues.

#8 broncovet

 
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Posted 29 July 2012 - 10:55 AM

I agree with Berta, and add that we could make a whole post on "Stupid things our VSO's tell Us", like:
(what the VSO says is in text, and the why its stupid is in Bold.

1. Aw heck no, dont appeal...you can apply for an increase instead.
(This hurts your effective date).

2. You dont have a CUE (without reviewing the file). This is stupid because there are dozens of possible CUE's, and often an experienced lawyer or even someone good like Berta can find that CUE, and it could well be something the Veteran never considered.

3. At least you got your foot in the door (with 0%). You can apply for an increase later. Again, this will likely hurt your effective date.

...and there are many other stupid things VSO's tell us..that costs us money. Big money sometimes.

#9 Ethan'sGrandma

 
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Posted 29 July 2012 - 09:34 PM

Thank you all so much for all the helpful information. I don't know if any will apply in my case, but I've been researching info. on this and at least two cases seem similar...Norris v. West and Roberson v. Principi. I can't wait until I see the "official" version, hopefully this coming week, to determine how exactly VA has worded the decision.




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