Veterans Court: VA Errors Cause More Delays – TDIU Claim Remanded to Board When VA Decision Not Kept in File
In a recent case before the Court of Appeals for Veterans Claims (the Veterans Court), missing documents in a claim for Total Disability Based on Individual Unemployability (TDIU) became the major issue. James Sanders, a Vietnam era veteran who had been awarded both a Purple Heart and a Bronze Star, received VA ratings for PTSD and a shell fragment wound. Because his VA disability ratings did not combine to 100%, Sanders was pursuing a claim for TDIU as an extraschedular alternative to get paid at 100% because he was unable to work. The problem was that his Claim File (C-File) did not contain the VA rating decisions which were required to know if the claim had formally been denied. The VA said the TDIU claim had not been denied so it could not be appealed yet. The Veterans Court chastised both parties, because the decision was not in the Claim File.
VA Compensation Claims Must Be Denied by a Regional Office Before They Can be Appealed
As a general rule, an claim for VA compensation must be considered and decided by a VA Regional Office (RO) before an appeal may be filed. That is done in a Rating Decision in which VA must explain the reasons or bases for its decision. In Sanders’ case, a 2013 Board of Veterans Appeals decision stated that “entitled to TDIU was denied in December 2011. However, the 2011 RO decision was not in the veteran’s C-File. There were other references to an April 2012 and January 2013 Rating Decision, but those were not in the C-File either. The problem for the Veterans Court was that there was no actual documentation that the VA had decided the TDIU claim at the RO level.
VA Is Allowed to “Bifurcate” TDIU Claims From Other Claims in the Rating Process
Although TDIU is raised by any veteran as part of an initial application or a claim for increased compensation, the RO does not have to decide it as the same time as the initial application or claim for increase. VA is allowed to consider the Individual Unemployability claim separately – a process called bifurcating the claims. This makes logical sense, since the TDIU evaluation may require different personnel or other factors to be considered. In Sanders’ case, his attorney thought the RO had referred entitlement to TDIU, deferring it and not deciding it with his PTSD rating that was on appeal, but argued to the Veterans Court that this had been done in error. The VA claimed that it was still being considered, but because the documents in the file called that into question, it was not clear to the court what had happened.
The Veterans Court Requires a Complete Record to Consider an Appeal
Sanders’ claim had made it from the RO to the final Board of Veterans Appeals decision without anyone at VA realizing the December 2011 decision or the April 2012 or January 2013 documents were not in his C-File. A central dispute in Sanders’ case was whether TDIU was properly on appeal or whether it was still being considered by the RO (i.e., whether it was in “appellate status”). VA was contending that TDIU was still at the RO, and not in appellate status.
Because the Veterans Court may only consider claims that were properly decided by the RO and the Board, an undecided claim may not be considered under the Court’s jurisdictional rules.
When it decided Sanders’ appeal from the RO, the Board of Veterans Appeals did not address the missing evidence in its written decision. That failure to discuss the missing evidence was a key factor for the Veterans Court. The court held that it was “unable to effectively review [the Board’s] determination that the issue of TDIU was not in appellate status.” The Veterans Court vacated the Board decision that TDIU was not in appellate status, and remanded the claim to the Board to address the missing evidence and to resolve the discrepancy.
Sanders will get a better decision from the Board, but his appeal to the Veterans Court cost him an additional two years of delay in trying to get his benefits. His case will now go back to the Board, and possibly back to the RO, to sort out whether it was properly decided or not.
It is important for veterans to make sure they keep all of VA’s decisions on their claims and to make sure those are in the C-File. Asking for a copy of the C-File can help verify this. If a veteran has to appeal a VA decision, the claim can be delayed even longer than is normal with the VA without proof that the claim was actually decided by the RO or the Board.
Case: Sanders v. Snyder, No. 15-2926, 2017 WL 393985 (Vet.App. Jan. 30, 2017)
If your TDIU claim was denied by VA, call us to discuss your rights with one of our experienced VA service-connected disability attorneys at (866) 282-5260. The call is toll free nationwide, and there is no charge to discuss your case. You may also contact a VA Disability Attorney online.