tdiu Tdiu

[KamiKappa B]

Just got the white envelope from the VA today. IU denied.

"Entitlement to individual employability is denied because the evidence does not show you are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities."

I guess these guys wanna see how many times they can deny me before I finally give up. Looks like I may have to enlist the help of the DAV this next go-around.

Kappa

[Pete53]

Do you get SSD? If you do the VA should make your TDIU automatic. How long has it been since you worked?

Please hang in there you earned it.

[cowgirl]

So was this a first claim for IU or a nod? is appeal next? Sure wish you get whats needed soonest. My exams are ongoing for iu, probably be late summer before my nod is done.

If you have ssdi, is the major condition a sc issue? or secondary even?

Kammi, if you post the exam results of the claim, minus personal information, maybe we could work it out.

Best to ya, if iu or ssdi whats due you, keep at it!

Cg'up2009!

Edited July 3, 2009 by cowgirl

[Shark]

Do you get SSD? If you do the VA should make your TDIU automatic. How long has it been since you worked?

Please hang in there you earned it.

Getting SSDI is not an automatic for TDIU. I receive SSDI for PTSD and am 50% for PTSD, 80% total and received the same verbage in my denial. Because I have an MBA they are assuming that I can get some kind of work. I gave up on the DAV and got an attorney. Yes it will cost me 20% of the back pay, but with my PTSD I was getting so frustrated dealing with it that it is better that I have an attorney handle it. The attorney will evaluate your case and not go forward unless he/she feels that you have a good case. There are many fine attorneys out there, I am using Mark Lippman from the Veterans Law Center. If you filed your NOD after 6/1/07 then you can get an attorney. They take no money up front, in fact Mark Lippman will advance the costs for medical exams if necessary and if you don't win you do not have to repay it. I would guess that many attorneys do the same thing.

Hang in there, and keep on fighting!

[airborne18]

I got TDIU and the interesting part it this.. My single highest rating is for a mental disorder.. but for my TDIU award they didn't even consider it, they awarded it to me based on my physical disabilities. Also the fact that I could not keep jobs due to the disabilities helped.. I even had to give up jobs due to the mental disorder, and they didn't consider it in the decision.

Just thought it was odd.. My occupation is professional and not manual labor.. so me being able to sit at a desk was not an issue. Really both contibute to me not being able to work, but the mental disorder does interfere with being able to work.

The VA seems to have an issue with the mental disorder and IU.

[KamiKappa B]

Good afternoon all,

Thank you for your replies. I am going to try to answer a few questions and then post the part of my claim that has to do with the denial of TDIU. Please bear with me. I tend to get frustrated easily and it may lead to spelling errors.

From Pete53: Do you get SSD? If you do the VA should make your TDIU automatic. How long has it been since you worked?

Yes, I do get SSD. As a matter of fact I got in on your advice, THANKS! I haven't worked since June of 2007.

From Cowgirl: So was this a first claim for IU or a nod? is appeal next? Sure wish you get whats needed soonest. My exams are ongoing for iu, probably be late summer before my nod is done.

If you have ssdi, is the major condition a sc issue? or secondary even?

Kammi, if you post the exam results of the claim, minus personal information, maybe we could work it out.

This was the second time I submitted a claim for IU. The first time I submitted one when I had an attorney working on my NOD back in July or August of 2007. The attorney bailed on me but I got an increase from 50% to 70%, TDIU denied.

I filed for SSD with the same attorney based soley on my service connected disabilities and was approved on the first go 'round. Don't understand why the VA is giving me a hard time about it.

From Shark: Getting SSDI is not an automatic for TDIU....

It looks like I may have to get an attorney again for this as well. My original NOD was filed after June 2007, so I should be okay. Like you, the PTSD causes me to get too frustrated to handle this on my own as well.

Here a little history of my sc'd claims:

2004

PTSD 0%

Lumbar sprain with scoliosis 10%

Bilateral pes planus 10%

Sinusiti/allergic rhinitis 10%

Bilateral inguinal lymphadenopathy 0%

Total: 30%

2006 (Submitted Request for Increase)

PTSD 30%

Lumbar sprain... 10%

Bilateral pes... 10%

Sinusitis... 10%

Bilateral inguinal... 0%

Total: 50%

2007 (Submitted NOD, TDIU, applied for SSD)

PTSD 50%

Lumbar sprain... 20%

Bilateral pes... 10%

Sinusitis... 10%

Bilateral inguinal... 0%

Total: 70%

SSD approved December 2007, TDIU Denied September 2008

2009

6. Entitlement to individual unemployability.

Entitlement to individual unemployability is denied because the evidence does not show you are unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.

On your VA Form 21-8940, you stated your service connected disabilities resulted in you release from employment as a recruiter for __________ in Temecula, California. In our letter dated May 2009, we informed you that even though we asked you former employer for employment verification, it was you r responsibility to see we received it. We received a response from The Work Number that provided your pay information but did not provide a reason for termination. (the company is not allowed to give out that imformation, even i could not get it). Your social security records were reviewed, yet they did show an inability to work due to service connected disabilities. (is that a typo or does it say that SSD shows that my sc'd disabilities prevent me from working?)

Your VA examinations in May and June 2009 do not support your contention that your service-connected disabilities prevent you from securing or following any substantially gainful occupation. (i disagree, the exams were rushed, and the one with my sinuses, the doctor looked at the CAT scan and said that it was a BIG problem that should have been treated a long time ago, and sent me to get a consult from my pri. care. to see him. He didn't even examine me.)

Generally, entitlement to individual unemployability is warranted when you have been found unable to secure or follow a substantially gainful occupation as a result of service connected disabilities aside from non service connected factors. A high rating in and of itself does not support entitlement to individual unemployability. The question is whether or not you are capable of performing the physical and mental acts required by employment (which I cannot), not whether you can find employment (right here it sounds like they are calling me stupid or lazy). Usually, the evidence must establish that your service connected conditions have precluded employment continuously since the date of incurrence or the date the conditions reached a static level of disability. Additionally, the effects of extraneous factors such as age, non-service connected conditions, intercurrent injuries, availability of work, or voluntary withdrawal from the labor market are not determing factors in whether you are unemployable solely by reason of service connected disability.

The law provides that individual unemployability may be granted where there is one disability evaluated as 60 percent disabling, or two or more disabilities, one of which is 40 percent with a combined evaluation of 70 percent or more (i think that this applies to me). These percentage standards are set aside only when the evidence clearly and factually shows the veteran has been rendered unemployable solely due to service connected disabilities regardless of their individual and combined percentages. Such cases are submitted to the Director of the Compensation and Pension Service for extra-schedular consideration only if the evidence shows you are unemployable due to service connected disabilities.

The current evidence does not show your service connected disabilities prevent all forms of gainful employment, therefore, entitlement to individual unemployability is denied.

Is there something I'm missing here? I'd like your advice here at hadit before or regarding the involvement of advocacy groups or attorneys. Thanks for your help.

Kappa

[Pete53]

I said it should make it automatic. The VA is much better about granting it now. They don't give anything away you have to fight for it. I had SSD for 5 Years before the VA caved.