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What Affect Does Voc Rehab Have On Tdiu Claim

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ollieee6

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Greetings,

I hope that someone can offer me some type of advice. I have a service-connected disability rating of 10% (PTSD)(2007), which is grossly underated. Against advice from a local vet rep because she said I would surely be denied, I applied for Ch. 31, Voc Rehab. in 2009, I was found to be entitled to Voc Rehab, the counselor that assessed me, was very distraught at the fact that I was rated 10%.

While being assessed, she made extensive notes stating that I was unable to work due to my service connected disability, although rated at 10%, my condition presented a great barrier, and even though I was approved, I would require EXTENSIVE counseling and I may not even complete the program.

After reviewing guidelines, in order for a Veteran to be rated at 10% he must present MILD symptoms. Since being discharged in 2004, my symptoms have been severe, documented by doctors.

The Voc Rehab counselor told me to file for an increase IMMEDIATELY, which I did in March 2009. My claim is currently at the review board. I have done extensive research, reviewed medical records, and submitted solid evidence, with guidelines, and references which pertain to my case.

I recieve SSD, and have not worked since 2006. I know that there are certain requirements that must be met to qualify for TDIU, and currently my schedular rating is below. I also requested TDIU based on Extra Schedular considerations. I have a Medical Verification form, from the VA doctor stating that I am PERMANATELY unable to work due to my illness.

This is my first time applying for an increase. Do you think that the records from Voc Rehab will help my TDIU claim?

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TDIU’s regulation: , Ch 38 Chapter 1 part 3 ,§3.340 Total and permanent total ratings and unemployability:

(a) Total disability ratings—(1) General.Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent

36 CFR 4.16:

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 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. 

§ 4.19 Age in service-connected claims:

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension.

Lastly 38 CFR 21.53

(d)Vocational goal is reasonably feasible. Achievement of a vocational goal is reasonably feasible for a  veteran with either an employment or  serious employment handicap when the following conditions are met:

(1) Vocational goal(s) has (have) been identified;

(2) The  veteran's physical and mental conditions permit training for the goal(s) to begin within a reasonable period; and 

(3) The veteran:

(i) Possesses the necessary educational skills and background to pursue the  vocational goal; or 

(ii) Will be provided services by the Department of  Veterans Affairs to develop such necessary educational skills as part of the program.

(Authority:  38 U.S.C.  3104(a)(1),  3106(a))

 

M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, states

When a Veteran's claims folder indicates that he/she was seen by the Vocational Rehabilitation and Employment Service (VR&E), obtain and evaluate any records related to this contact."


The VR&E records may

  • document the Veteran's participation in a training program, or
  • show that training was not feasible or was unsuccessful

Read this Vet App. Case 

Leicher v. Derwinski, 2 Vet. App. 26 (1992)

. In denying the appellant a
total rating based upon unemployability, the BVA did little more than point
to appellant’s relatively advanced education and occupational experience
and opine that his disabilities did not “preclude all forms of substantially
gainful employment.” This clearly is insufficient in providing “reasons and
bases” for the decision. Hatlestad v. Derwinski, U.S. Vet. App. No. 90-103, slip
op. at 10 (Mar. 6, 1991) (BVA decision failed to explain the conclusion of the
BVA that appellant was not unemployable);

10/19/2018 Page 7 of 7
 ....Moreover, in its evaluation, the BVA failed to consider the 1988 VA
psychiatric examination report and the 1988 VA social and industrial survey,
both of which concluded that the appellant was incapable of securing or
maintaining employment. There is no evidence of record to the contrary. We
have previously held that the conclusion of an examining psychiatrist is a
medical conclusion which the BVA is not free to ignore. Willis v. Derwinski,
U.S. Vet. App. No. 90-27, slip op. at 7 (Aug. 21, 1991).

  •                     

Beaty v. Brown, 6 Vet.App. 532, 537 (1994): 

(“Where the veteran submits a . . . claim for a TDIU rating . . . the [Board] may not reject that claim without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.”).

@Jerribly!!!

 

Conclusion: Every Individual is Unique! A broad/bold statement that just because you are in school means you can't work is highly contradicting; that is the very reason why the VA pays for school within the Chapter 31 program-to eliminate the veteran's serious or non serious employment handicap. Courts will not allow the VA to deny Chapter 31 or TDIU based off of a Veteran's aspirations to find employment even if 4,6,8 years of school/training are needed, the VA will pay if feasible with your injuries! A lawyer can be paraplegic, blind, deaf, suffering from PTSD, etc. the employment is feasible, but only if they receive the proper education and certifications. I hope this helps you- I currently am 4 years into my Chapter 31 program myself, I've earned an AA, Master of Legal Studies, and now am in my last year of Law School. The VA has paid for it all. And still, if I please, I can apply for TDIU until I become a Lawyer as stated in my rehabilitation goal.

 @Jerribly, your terribly wrong. In fact, if a veteran is found to be TDIU, they are AUTOMATICALLY referred to Chapter 31 to analyze whether or not it is permanent. i.e. Chapter 31 enhances a disabled veteran's chances of being employable at a future date. This helps not only the veteran, but also the VA by ceasing payments once the veteran has established income above the federal poverty line. 

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Did VA put you into Voc Rehab or did they say it was not feasible due to your SC?

Is the SSD solely for PTSD?

. "I have a Medical Verification form, from the VA doctor stating that I am PERMANATELY unable to work due to my illness."

As long as he/she meant the PTSD this is prime evidence for TDIU-P & T.

As long as Voc Rehab hasnt turned you into a rocket scientist and "cured" your PTSD -the records should not impact negatively on your claim.

My husband went from 30 to 100% PTSD but prior to that-after one semester of Voc rehab they tried to lower his 30 to 10%.

He also had started working at the local VA part time-

they said his Substantial VA employment (he was former Nuke-VA was the worst paying job he ever had) and his ONE semester of college warranted a reduction of his comp.They dropped that idea when they got the NOD.

I think his Vietnam buddy (the VA Union Secretary) was right-VA didnt want a comp check, a VA pay check, and then a VA Voc Rehab stipend all going to the same veterah every month.

I dont think you have to worry about that at all. I just gripe about it every chance get.

Voc Rehab for some vets is a two edged sword.

If they do well in school, it still does not mean their disabilities got better.,

and the stress of Voc Rehab can often make PTSD worse.

Edited by Berta
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I don't know Berta. I would think if one is capable of doing school full-time why can't they work? You said below that "if they do well in school, it still does not mean their disabilities got better."

This would be the same as saying, "if they do well at work, it still does not mean their disabilities got better." Do you think this statement would fly with the VA? I think not. There are many jobs that require just sitting and I know that school was a lot more stressful for me than several of my past jobs.

Just saying

Voc Rehab for some vets is a two edged sword.

If they do well in school, it still does not mean their disabilities got better.,

and the stress of Voc Rehab can often make PTSD worse.

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  • HadIt.com Elder

The ability to successfully attend school does not equate to the ability to work 40 hrs a week. I believe the courts have ruled on this, tho I can't provide a specific link. This is from the late Alex Humphrey, an atty who posted regularly here.

pr

I don't know Berta. I would think if one is capable of doing school full-time why can't they work? You said below that "if they do well in school, it still does not mean their disabilities got better."

This would be the same as saying, "if they do well at work, it still does not mean their disabilities got better." Do you think this statement would fly with the VA? I think not. There are many jobs that require just sitting and I know that school was a lot more stressful for me than several of my past jobs.

Just saying

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When you say "work" do you mean "working in the fields" or "working behind a desk?" I would like to see that court ruling that says going to school full-time doesn't mean you can work 40hrs.

If a vet was awarded TDIU and a month later began school full-time this would bring up red flags in my opinion.

The ability to successfully attend school does not equate to the ability to work 40 hrs a week. I believe the courts have ruled on this, tho I can't provide a specific link. This is from the late Alex Humphrey, an atty who posted regularly here.

pr

Edited by jerrbilly
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  • HadIt.com Elder

You can certainly disagree but I'll go w/Alex. He also stated that you give him a claimant w/a GAF of 50 or lower and he could get them either 100% or TDIU. You can probably find it under this SSA link: http://www.ssa.gov/OP_Home/rulings/rulings.html

pr

When you say "work" do you mean "working in the fields" or "working behind a desk?" I would like to see that court ruling that says going to school full-time doesn't mean you can work 40hrs.

If a vet was awarded TDIU and a month later began school full-time this would bring up red flags in my opinion.

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