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XVIIIAIRBORNE

Is Va Adjudicating Tdiu Claims Incorrectly?

Question

Hello Everyone. I have read a number of VA denial decisions on TDIU claims that Veterans have posted on this board and others. A number of these denials are very similar in that VA applies 3.321(:rolleyes:(1) rather than 4.16(B). However, the manual that VA raters use, M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, to evaluate TDIU claims states:

b. Applying Apply the concept of average impairment in earning capacity to

the Concept determinations of the percentage of disability.

of Average

Impairment Do not apply the concept of average impairment in earning

in Earning capacity to determinations regarding IU.

Capacity

This is consistent with other important rulings regarding this question, in VAOPGCPREC 6-96, as follows:

The Board emphasizes entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(B)(1) and a TDIU extra- schedular rating under 38 C.F.R. § 4.16(B), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(B)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(B) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96.

So, as you can see, my question is "Does VA apply the incorrect 38 CFR regulation to TDIU claims?" It appears that the only thing the raters should do in TDIU claims is determine if a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilties. However, as in my denial for TDIU, the VA rater ignores important evidence that show I am unable to secure or follow a substantially gainful occupation by reason of my service-connected disabilities, only. And, only cites 3.321(B)(1).

It appears to me that VA uses the exceptional or unusual circumstances to make their decisions in every Extraschedular TDIU claim. This might explain why many TDIU claims are denied at the RO level and many Extraschedular TDIU claims never reach the Director of Compensation and Pension Services before going to the BVA and remanded for the Director of C&P's review, first. If VA followed the correct regulation many of these claims could be adjudicated a lot faster and more accurate. By creating this Merry-Go-Round by applying the incorrect regulation, VA has only delayed many of these claims.

How many have received a denial for TDIU, that stated no exceptional or unusual circumstances exists; or simply ignored the evidence that the Veteran is unable to secure or follow substantially gainful occupation by reason of service-connected disabilities?

It just appears to me that VA has created an unnecessary hurdle for Veterans to be granted TDIU. This is only my opinion.

Airborne!

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I feel that very few Extraschedular TDIU claim are granted.

jmho,

carlie

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Hi carlie. Yes, very few extraschedular TDIU claims are granted; none by the ROs, since the ROs are precluded from granting extraschedular TDIUs. However, my post includes TDIUs covered under 4.16(a) that meet the required percentages, as well. It appears the only question VA should be concerned with is if the veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities when considering all TDIU claims. But, a lot of their decisions address exceptional and unusual circumstances (or the lack of) that make the regular rating schedule inadequate to compensate the veteran. These type of circumstances should be addressed when reviewing extraschedular claims under 3.321(:rolleyes:(1) and not TDIU claims as the raters' manual and regulations suggest. I am just wondering if VA is using the incorrect guidelines when adjudicating TDIU claims?

Extraschedular claims under 3.321(B)(1) can be granted any percentage up to 100%, where TDIU claims, when the veteran is found to be unable to secure or follow a substantially gainful occupation due to service-connected disabilities, are only rated at the 100% level. Therefore, it only makes sense that if a veteran is unable to work at any job, then the question of an exceptional or unusual circumstance exists and does not have to be addressed by the raters as both of the guidelines show (hence: the veteran has marked interference with employment if the veteran can not work at any job). Therefore, the only question that the evidence should show in TDIU cases is: Does the veterans service-connected disabilities, alone, preclude all types of employment to include sedentary?

I have researched most of the BVA cases this year and found no TDIU case was denied when no other factors were considered and when the evidence shows the veteran is precluded from all types of employment to include extraschedular TDIU cases. All the BVA TDIU cases that I have read this year that was denied always had other factors, such as, non service-connected disabilities, no evidence that showed the veteran was precluded from work, and/or the veteran was still working. Therefore, I would have to say that 100% of the cases that actually met 4.16(a) and (B) were granted by the BVA to include extraschedular TDIU claims. However, the BVA is also precluded from granting an extraschedular TDIU unless the Director of Compensation and Pension Services reviewed the claim first. Most of these cases were remanded as other TDIU cases that were questionable.

Again, it appears that VA is creating an unnecessary hurdle when adjudicating TDIU claims. This is only my opinion according to my research.

Airborne!

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If they are treating TDIU claims as extraschedular claims then yes they are not rating them correctly. For as indicated extraschedular only comes in in very unusal circumstances.

Extraschedular would apply in a situation for example if a vet had three disabilties lets say a 40, 10 and 10. If the disability that gained the 40 percent rating was truly the reason the vet could not work, however, the 40 percent rating was the max allowed by the rating schedule then the extraschedular requirements would apply and the claim should be sent to D.C. However, if the 40 percent disability had a max rating of 70 percent extraschedular does not apply. It would be a call by the local rater, based upon the evidence, to raise it to the level that would allow the TDIU claim to be approved.

I know you more than likely knew this already, I just ranted on it so those reading this post who did not know the difference could see the commonsense explaination. jmho any way.

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