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Ken1

Do I Qualify For Tdiu?

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I just came across form 21-8940 / VETERAN'S APPLICATION FOR INCREASEDCOMPENSATION BASED ON UNEMPLOYABILITY

I last day to worked July 22, 2005. I went out on a medical leave of absent for Peripheral neuropathy and diabetes. In the process after 6 month of waiting I recieved mt medical records and made 22 claims on my 21-526 files Oct 2007 including peripheral neuropathy and diabetes.

My claim for the above was due to exposure to agent orange but not in country

On 10/08/2008 I file a 21-4138 with letter from the Social Security Administration granting disability for diabetes and peripheral neuropathy.Should I resubmit with form 21-8940?

What is you opinion ?

Thanks in advance

Ken1

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Individual Unemployability

Total disability evaluation assigned to an individual because of any service-connected impairment (or combination of impairments) of mind or body that fails to meet the criteria for a total disability rating under the Schedule for Rating Disabilities but that nonetheless renders it impossible for that person to follow substantial gainful employment (38 C.F.R. § 4.16 (2008)). Text of this is provided below:

38 C.F.R. 4.16 - [Code of Federal Regulations]

[Title 38, Volume 1]

[Revised as of July 1, 2008]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR4.16]

[Page 366]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4_SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart A_General Policy in Rating

Sec. 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.

(Authority: 38 U.S.C. 501)

(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.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989;

55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct.

8, 1996]

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If your 10% is for diabetes than you should be eligible for TDIU if Social Security found you disabled for it

Good Luck

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The 10% is from problems with left knee tat was broken in 1965

Thanks

Ken1

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I just came across form 21-8940 / VETERAN'S APPLICATION FOR INCREASEDCOMPENSATION BASED ON UNEMPLOYABILITY

I last day to worked July 22, 2005. I went out on a medical leave of absent for Peripheral neuropathy and diabetes. In the process after 6 month of waiting I recieved mt medical records and made 22 claims on my 21-526 files Oct 2007 including peripheral neuropathy and diabetes.

My claim for the above was due to exposure to agent orange but not in country

On 10/08/2008 I file a 21-4138 with letter from the Social Security Administration granting disability for diabetes and peripheral neuropathy.Should I resubmit with form 21-8940?

What is you opinion ?

Thanks in advance

Ken1

You have to be 60% disabled in one disability, or 70% with at least one over 40% to be eligible to start with. I think that you would have a hard time proving that you were unemployable with DM2 and PN unless you were in so much pain that you could not work. You would have to have a letter or medical evidence from a doctor stating that you could not work due to your DM2. Just because you are not working does not entitle you. I am 100% SSDI and with the VA I am 50% for PTSD, 80% total with the rest being DM2 and PN and have letters from my Psychiatrist and Psychologist saying that I cannot work and they still denied me! I am appealing now.

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Also your DM2 has to be service connected.

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