|Sr. Benefits Liaison|
Former U.S. Army, SGT (Combat Infantry)
Many VA Rating Specialists miss the legal obligation to infer claims for TDIU once the claimant becomes schedularly entitled (see 38 C.F.R. 4.16a) and there is evidence within the claims file of unemployability due to service connected disabilities.
It is the VA's burden once a veteran is schedularly entitled to TDIU, and there is evidence in the claims file of service-connected unemployability, i.e. evidence of a statement, assertions, or assessment from the veteran or his/her doctor that they are unemployable due to SC'd conditions, to comply with the Court's precedent as follows:
In Comer v. Peake (2009) the Court held, “[R]egardless of whether [a] claim is specifically labeled as a claim for TDIU,” the VA is obligated to “determine all potential claims raised by the evidence.” Accordingly, the VA must consider whether a TDIU award is warranted whenever “a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability.”
In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age , are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VA OPGC PREC 75-91 (O.G.C. Prec. 75-91).
With regard to TDIU, the Court of Appeals for Veterans Claims (Court) has determined that a TDIU claim is "merely an alternate way to obtain a total disability rating without
being rated 100 percent disabled under the rating schedule." Norris v. West, 12 Vet. App. 413, 421 (1999). Any evidence in the claims file or under VA control (see Bell v. Derwinski, 2 Vet. App. 611 (1992)(pertaining to constructive custody) submitted subsequent to an original increased rating claim that indicates that there is "current service-connected unemployability" requires adjudication of the "reasonably raised" claim for a TDIU. Norris v. West, 12 Vet. App. 413, 421 (1999).
***The Court's precedent to infer claims for TDIU begins with Norris v. West (1999) and has continued through Rice v. Shinseki (2009).***
The VA Form 21-8940, Application for Increased Compensation Based on Unemployability, is the
prescribed form for claiming individual unemployability (TDIU). Generally, the VA will require that a veteran complete and submit a VA Form 21-8940 before it will formally pay a claim for TDIU benefits.
***In some instances based on other Court decisions, namely Nehmer v. Secy' Department of Veterans' Affairs the internal directive has changed slightly.***
However, a veteran is not required to file this application form before the VA is obligated to consider and adjudicate a TDIU claim. When a veteran files an original claim for evaluation of a disability or a claim for an increase in the evaluation of a disability that has already been rated by the VA, the claimant is generally presumed to be seeking the highest benefit allowable. See AB v. Brown, 6 Vet. App. 35, 38 (1983); see also Roberson v. Principi, 251 F.3d 1378, 1383 (Fed. Cir. 2001); Norris v. West, 12 Vet. App. 413, 421 (1999).
Equally, when a claimant or the evidence of record reasonably raises a an informal claim for TDIU, the Secretary must furnish the claimant the form (VAF 21-8940) as prescribed by the Secretary. (38 C.F.R. 3.160)
***The VA Decision/Notification Letter should at least include a VA form 21-8940 as an attachment.***
If the VA has failed in compliance of any of the aforementioned on a failure to infer a claim for TDIU, then the veteran may have a basis to file a Clear and Unmistakable Error (CUE), these are very specific allegations of error, that are essentially a facial, and collateral attack on VA, and are given no deference via the VA's "duty to assist", nor is there ANY application of reasonable doubt doctrine (38 C.F.R. 3.102).
Clear an Unmistakable Errors are errors which are undebatable, in this context if the law at the time of the decision was incorrectly applied, and that the decision would have been “manifestly different but for the alleged error".
If you feel the VA may have failed to consider your claim for service connection/increased evaluation as an additional claim Individual Unemployability then you may want to confer with a National Service Officer or attorney-in-fact with a recognized and Congressionally Chartered Service Organization, who is accredited to represent VA claims.
These are errors we find sometimes weeks sometimes years after a claimant was awarded benefits which made him or her entitled to a TDIU award. This posting is made as a point of discussion and for members of military.com to discuss and explore.
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