I'm rated at 60% (jul '05), combined, and I filed for IU in Jan '07. I have 9 claims in the works, some NODed, one new, and one Request for Reconsideration. Thats why I filed for IU. There is no doubt in my mind that I will reach the schedular requirements (70%) for IU as a result of the other NODs and claims actions.
My 60% claim (50% for one disability, 10 and 10) was effective July 2005. WHY wasn't I considered for a Inferred IU Claim at that time? If I am successful, shouldn't I get an EED date on July 2005 instead of Jan '07 ?
Pls advise. Thanks.
Where do you find the regulation for an inferred IU claim?
There is another category of informal claims for increased ratings that the VA must consider that are referred to as inferred claims. Inferred claims for rating increases are claims that are implicitly raised by the veteran. The CAVC has held that the VA must not only adjudicate claims expressly raised by the veteran, it must also adjudicate those issues which are reasonably raised in all documents or oral testimony submitted prior to a final agency decision. A veteran does not have to specify with precision a particular statutory or regulatory provision under which he or she might be eligible for benefits in order to invoke the VA’s duty to adjudicate all issues reasonably raised. It is the VA’s responsibility to develop any claim “to its optimum.” This requires the VA to determine all potential claims raised by the evidence and apply all relevant laws and regulations raised by that evidence. Where there was evidence in the claims file that the veteran could not engage in gainful employment, there was an inferred claim for individual unemployability.
Reference: For more information on inferred or ancillary issues, see
M21-1MR, Part III, Subpart iv, 6.B.3 (TBD) or M21-1, Part VI, 3.10, and
M21-1MR, Part III, Subpart iv, 6.B.4 (TBD).
You are quoting from a operations manual not the regulations. This is not controlling. The Code of Federal Regulations is controlling. Also you seem to have picked pieces of rules and put them together.
An inferred issue is derived from the consideration or outcome of related issues. Often the primary and inferred issues share the same fact pattern.
If a total and permanent service-connected evaluation is established
Then infer entitlement to …
Dependents’ Educational Assistance.
• the schedular disability requirements for IU under 38 CFR 4.16(a) are met, and
• there is evidence in the veteran’s file or under VA control that indicates he/she may be unemployable due to SC disability.
Lets look at the CFR Title 38 Veterans Affairs
§ 4.16 Total disability ratings for compensation based on unemployability of the individual.
a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.
You could argue the second paragraph to the VA. You would have to make a strong case. You need to stop trying to find a case by creating law and regs and focus on the CFR.
Some basic principals of Federal Law.
You can not take to parts of the regulations and create a new one if they are not directly related within the regulation - one refers to the other.
Operations and training manuals are meant to help those doing the job understand how to apply the rules. They are not the rules. You can not tell a Federal Agency that they need to follow a guideline that they use to help them make decisions.
The RO and the BVA rely on the Code of Federal Regulations. When discussing the merits of the rules, please stay to quoting the CFR Title 38.
There is currently a suit in the US Courts on whether any other court has jurisdiction over the Relationship of a Veteran to the VA. Until the Courts rules and it will probably take the US Supreme Court, the only Court of Law that you can challenge the VA is the Court of Veterans Appeals. I have posted the court decision in reply to a previous post.
As I have said before this is not the course of discussion until you are at that point before the Court.
Post of this nature add no value to this forum. We have answered your questions. I consider posts like this in violation of our TOS. I have asked you not to get off topic in other threads and to restrict your discussion to a single thread so that we can keep track of the questions.
Please use the links as provided. Hwere is one on IU http://forums.military.com/eve/forums/a/tpc/f/3291921412/m/7130001860001/p/1
Sorry, I got off topic. Question is, as asked in my original post, above, what will be my EED date... if my claim for IU is successful? Will it be in 2005 or 2007 ? I filed for IU in Jan 2007, but my original SCed award was effective Jul '05.
Thanks for any and all advise.
It should go date of claim for IU consideration if granted. IU is usually a "new claim" with a new effective date unless otherwise stated in the original rating desicion. Or filed within the 1 yea period for a notice of disagreement however this is rare.
Greetings and special blessings to one and all.
Just for information, I submitted for my IU, first request was lost, I resubmitted again. Once approved some 4 years later, the effective date was from the beginning, which was my date of retirement from active duty.
Back in those days we did not receive any back pay, we could just refile our tax and get a refund. Since I was over 3 years, I could not file on 93 or 94.
May God richly bless and keep each of you.
In His Service,
as it happened with me, from date of claim.
Yes, for IU, you must have the schedular minimum ratings. In my case: I was:
* rated 50% on one rating
* rated 10% on two ratings
* denied on 4 other claims
* combine rating of 60%
I filed a NOD within one month of my rating for all claims submitted. Thus, I am saying the claims should have been given a higher rating, each.... and if they were, I would qualify for IU, no problem.... as far as the minimum schedular ratings requirement, that is. Then, the VA would have had to consider me for IU... even though I did not file specifically for IU back with the other claims in 2005. In Jan '07, I filed for IU, specifically.
So, for me, the question is.... if my NOD is successful and raises my rating to meet the minimum schedular ratings for IU, will I get an EED back to 2005, or not ?
Also, what is the VA requirement on mental disabilities rated at 70% or higher and the Vet is not working ? Is there special consideration in that situation as far as IU goes that the VA must follow ?
For Individual Unemployability (IU), its best to get a (written and signed) statement from your treating physician that addresses your service-connected disability, how it impacts your social and industrial (work) life, and, in his/her opinion, cannot work because of the disability and that your disability is not likely to improve in the future. NOTE: the physician must review your SMR (service medical record) and you must provide it to that doctor and tell hime to review your service-connected disability.
You cannot expect the VA to come to this conclusion because they will NOT on their own... it takes hard factual evidence... and the evidence must come from a doctor, private or VA doctor. Further, its best from a doctor that is specialized in your medical problem(s). But, you must "prove" to the VA that the docxtor is a specialist in that area of medicine. On their own, the VA will not make any conclusions such as that.
EVIDENCE is what wins VA claims. That's the bottom line.
PS. I received TDIU effective January 2007... because I did the work required as stated above. It took 3 years.... but, was worth it. DON"T give up.
I am 60% SC (50 and 10) and I am enrolled in the Vocational Rehab program. I am curious as to whether or not I am eligible for IU (still learning about it via the internet) and should even bother applying. If I need to provide more info please advise and I will. Thank you.
Requirements to TDIU
1. Is the veteran unable to secure, or follow substantially gainful occupation as a result of a service connected disability or disabilities?
2. If the veteran has only one service-connected disability, is it rated at or above 60%? Or, if the veteran has a combined disability of 70% or more, is one of the disability ratings at least 40%?
If it is awarded, a TDIU award may be temporary or permanent depending on the facts involved.
Claims for TDIU are judged on a case by case basis. Each veteran's life is remarkably different. Accordingly, the awards are as unique. They are entirely fact specific.
The primary focus for an award of TDIU is whether the veteran can "secure a substantial gainful occupation".
Excellent reply Dave, couldn't have said it better myself! Kudos.
"Building better lives for America's disabled veterans and their families." Ne Desit Virtus-Let Valor not Fail
Dave_M outlined the IU requirements (in this thread), but there are no guarantees... case-by-case basis. For IU, you need EVIDENCE. The best evidence is a physician's statement (in writing, private or VA doctor) that, because of your service-connected condition, you are not able to work and your condition is not likely to improve in the future.
Make sure you have the evidence before you file for IU... that requires the completion of a VA Form and sent to the VA Regional Office (VARO).
His combined disability is only 60%, so he does not qualify for IU.
I was wondering if being unemployed and collecting social security disability would be taken into consideration as evidence for IU but not having the required pecentage ratings. I am a combined 40% for various ailments but have been unemployed because of my service connected injuries since 2002. Or am I reading paragraph (b) wrong?
That is the rule, but the reality is that when discussed with a number of Service Officers and Regional Office employees who I have worked with, NONE has ever had a case approved this way. 40% is very low. I can say that from experience. I was at 30% for over 2 decades. One is a back injury.
If the disabilities are so great, then you need to start by asking for a reevaluation. This is not an appeal. This is saying you case is worse. Be aware that you must present new evidence that your symptoms have changed from when you were last rated. You need solid medical evidence.
You also should reconsider obtaining help from a VSO.
I'll put it simply, even migraine headaches rated at the maximum with 50 percent disability "based on frequent incapacitating episodes, productive of sever economic impairment" (38 C.F.R. 4.128a DC 8100) has to be sent to Central Office for extra schedular consideration, which requires:
Exceptional cases: "A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." (38 C.F.R. 3.321(b)(1))
"Building better lives for America's disabled veterans and their families." Ne Desit Virtus-Let Valor not Fail
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