Byte187

Here's another angle to consider. As others have already stated: while on terminal leave, you're still a soldier on active duty. If the Army does a Line of Duty investigation, they may determine that, since you were injured in service to a contractor and not to the Army, putting yourself in harms way without authorization from the Army was "intentional misconduct" or "willful negligence" and any trauma you suffered as a result is "not in LD" and, therefore, not service connectable.

The only problem with this thread is, too many people tried to answer a question that was never asked. If the "hypothetical" veteran, created to illustrate the question bothers you, simply remove that part of the equation and the very real question remains. It has been my observation that many veterans fall into this category where they might qualify, and deserve, IU, but because of their current rating, and a VSO who doesn't understand the CFR properly, they are turned away before ever being evaluated. I see a very real problem with that. Maybe I made a mistake by creating a hypothetical veteran to illustrate it. My bad.

nevermind

broncovet, that was, by far, the best rationale offered yet, in opposition to my contention. I'm not above being corrected, but I'm still not convinced. I see flaws in your rationale. For example, you say "it's possible to 'connect the dots'" but I say, in this scenario, the dots have already been connected, and connected by the VA, not just the veteran's opinion. > Rating specialists have been very anal about what they accept as docs opinions. Do they accept their own opinions? In order to SC the radiculopathy in the first place, the VA rater had to determine that the cause was related to something in-service. If they're going to connect it, there is only one possible event to connect it to -- the same event the back is connected to. I see common etiology already determined by the VA raters. > Again, "common etiology" is a medical determination. Okay, but what additional medical determination could there be beyond that which already exists? Ie. the veteran has service connected back disability, with a documented injury determined to be the cause. The veteran's peripheral neuropathy is not a separate injury, but an additional painful symptom of the same injury. The pain in the back and the pain radiating from the back, down the legs, is all caused by one injury. Single injury, common etiology. Assuming that it's possible to have leg pain without a back injury, that's not the case in this scenario, and the VA has already made that medical determination when they granted SC for radiculopathy, secondary to the SC back condition. Even though the radiculopathy is rated separately from the back, as they are a separate body parts, they are still caused by the same event/injury. Common etiology. I think this is the very definition of "common etiology" and the VA has already made that medical determination when they granted service connection. What possible rationale could be given to determine that common etiology does not exist in this case, after the VA has already connected the leg pain to the same cause as the back pain? NOTE: I am using details from my own condition/rating to make this argument but seriously, this is not about me. I don't have an IU claim and don't anticipate one. I've discussed this many other ways with other people and I could make this case a thousand other ways, I just happen to fall into this category that I'm talking about and it's just easier to remember my own details.

> So far I see nothing that indicates the VA could award you TDIU . My question has nothing whatsoever to do with VA awarding me TDIU. > You want to be right. We ALL do. That's a really condescending remark. It reminds me of some of the remarks I got from two "professionals" when I had this "rating qualifier and common etiology" conversation with them. Conservations separated by several months, both professionals offered me the same raised-voice response: "Hey, I've been doing this for xx years! I know what I'm talking about!" > But the best way to be right with VA is to have probative medical evidence to back up our position. Again, my question was only to address the rating qualifier that must be met before a veteran can be CONSIDERED for IU, nothing beyond that -- not any medical evidence that would be required to WIN an IU case, but ony the rating qualifier that allows a veteran to be considered in the first place. > "Question: Is this veteran qualified to be considered for TDIU? Why? or Why not?" I don't know how else I could have asked it any clearer than that. If someone understands my question and has a better way to ask it, please do. > No....Because there is no medical evidence we are aware of here, that supports a finding of TDIU at this time. Medical evidence? Medical evidence comes in DURING the consideration process. Again, my question was only to address whether this veteran meets the rating qualifier to even begin the consideration process -- "qualified to be considered" -- it was never meant to address anything beyond that. I tried my best to clarify the question. I'm sorry I failed.

Hi Berta. Thanks for the reply. But it seems that you, like several other respondents to this question, have taken it beyond its actual scope, and assumed that it's about me and an actual IU claim. It's not. All of the replies offering advice on how I might win an IU claim, while they might be superb, and I appreciate them, they are totally irrelevant to the question. As I tried to clarify many times already, this really is a hypothetical scenario about a circumstance in which I believe many vets can find themselves. It's simply about the rating qualifier in the CFR, specifically regarding the "common etiology" clause that I found is so often misinterpreted. I don't have an IU claim, nor do I plan an IU claim. This question arose a couple years ago, and I have since realized how important it is. Because of how often I see the CFR regarding common etiology being misinterpreted (or not read at all) I can see how many veterans who might actually qualify and deserve IU, could be turned away by a VSO, simply because they didn't read the CFR correctly. Now, about my actual claim -- the one you point to in the other thread -- I answered both carlie and broncovet in that thread yesterday but, as of yet, my replies have not been moderated and posted.

No, I didn't see that post until you just pointed it out. I don't think I'm seeing some of these posts in their proper order. I don't know why I don't see some of them right away. Maybe has something to do with how they're moderated, I don't know. I also just noticed post #12 for the first time and GatorNavy agrees with me too. Like you said, I see the common etiology in this scenario as a no-brainer, but I've had a lot of people argue against it -- including two professional VSOs.

To be honest, I don't think my PCP wrote a very well though out nexus. He simply wrote that it is his professional opinion, but did not go into the reasons why it's his opinion. I still expect it to have some weight with the raters though, since he's been my only doctor for the past four years (except for the specialists now working on my pulmonary embolism), so he's more familiar with me and my condition than anyone else.

broncovet, But isn't the common etiology already proven in this case? Remember, the back was determined, by the VA to be a result of a specific injury in the line of duty, and then the legs were determined, by the VA, to be a result of the back condition -- therefore, the back and legs share the common etiology of that single injury. No?

Thanks to everyone for your answers. I sincerely appreciate the time you took. However, it looks like everybody read way more into my question than what I was asking. This question really isn't about me or any actual veteran, it really is a hypothetical question about a situation where many veterans are getting bad/incorrect advice because VSOs are not correctly interpreting the CFR. It isn't about winning IU, It's only about the rating criteria in 38 CFR 4.16 paragraph (a) and about common etiology in sub-section (2). Yes, I did use my own current rating to pose the question, and that probably lead people to believe I was referring to myself (and all the advice on how I might win my IU case -- which doesn't exist), but the rating used in this question could have been setup many different ways, I just used mine because it does fall into this category I'm talking about. The answer I'm looking for has nothing at all to do with winning an IU case, it's about a situation that many vets find themselves in, where their current rating appears to preclude them from even applying for IU, but only if their VSO doesn't read the CFR completely. This question came up in a conversation I had with another veteran a couple years ago. He disagreed with me on my interpretation of the CFR, and I could never understand why. So, I asked several more people, and so far, everyone disagrees with me. I don't get it. To me, it looks so simple, but obviously, it's not so simple to many people. Thanks again, everyone.

I never talked to them about a cause. In fact, I've never met the doctor who evaluated my test, only the tech who did the test. My primary care feels pretty confident of the cause though. Who knows how the VA raters will feel about that.

I'm sorry, but we got way off track here. I wasn't asking if this veteran would be granted IU. My question was only if the veteran qualifies to be considered/evaluated for IU, specifically with regard to the veteran's current rating. So yeah, we got way off track. Whether this veteran would be granted IU or not -- or what, if any, additional evidence this veteran would need to be granted IU, is all irrelevant to the original question. I'm sorry for the confusion, and maybe that's part of why I still have never gotten a clear answer to the question. I'll let the question stand and I hope to hear some more specific answers. Let me try to clarify the question this way: Based on 38 CFR 4.16, is this veteran qualified or disqualified for IU evaluation? Why? Nevermind whether or not you feel IU would be granted in the case.

Thanks all, but let me just cut to the chase. I've had this conversation several times in the past two years, and so far, everybody has disagreed with me. Including two VSOs in the past 12 months, both of them even raised their voices at me, pee'd off that I had the nerve to disagree with them. The specific point I make is this: according to 4.16a (as pointed out) veteran must have one single disability ratable at 60% or multiple disabilities rated a total of 70% with at least one of them being rated 40%. That's what everybody points out to me. But what I try to point out is subsection 2 or 4.16a: For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (2) Disabilities resulting from common etiology or a single accident. I contend that this veteran's multiple disabilities share a common etiology (the back injury in the 80s) and therefore, the VA considers them to be one disability, rated at 60%, which now qualifies the veteran to be considered, according to 4.16a. This is my contention that so many people have disagreed with me about. I can't understand why they disagree -- nobody has offered an explanation -- but I'll be happy to stand corrected if someone can show me why I'm wrong. And not just loudly cut me off mid-sentence, like the two VSOs did recently.

carlie, thanks for that reply, but I'm looking for an answer without the extra variables like SSDI, Voc Rehab, etc. And maybe I asked the question wrong with "qualified to be considered." Of course any veteran can submit any claim they choose and of course it will be considered, even if that just means reading the claim and rubber stamping a DENIED on it. I'm not trying to determine if this veteran is qualified to be awarded TDIU -- that's where all those other things would come in to play. I'm asking about the VA even considering an application for TDIU with that veteran's current rating. You touched on the point I'm specifically looking for. --> "Under 38 CFR 4.16a - the claim for IU will be denied." What do you see in 4.16a that will cause this claim to be denied?

I've had quite a few people disagree with me on this particular question, so I want to ask here and see what the consensus is. Consider this hypothetical veteran: The veteran suffered a lower-back injury on active duty back in the 1980s. He received hospital treatment at the time so, years later, with his SMR, service connection was an easy matter. The VA attributes the veterans current lower back disability to his documented injury in the 1980s. The veteran also suffers bilateral radiculopathy (legs), and the VA connected that, secondary to the SC back condition. The verterans current rating is as follows: 40% - lower back 20% - right leg 10% - left leg 60% - total Question: Is this veteran qualified to be considered for TDIU? Why? or Why not?

usn215, You should get 40% for ROM less than 30 degrees. The C&P examiner can consider your personal description of pain, as well as their own tests when determining your level of sciatica in each leg -- if both legs are rated, use the bilateral factor when calculating your total. For incapacitating episodes, the VA only considers doctor prescribed bed rest. The C&P examiner will note whatever the veteran tells them regarding incapacitating episodes, but if it's not prescribed by a doctor, it doesn't count. Now, if you do happen to have a prescription for bed rest for at least 6 weeks in the past 12 months, you can receive 60% rating for that, but you can't get that rating and the 40% ROM rating together. It's the same body part so you would only get the higher of the two ratings.

My initial claim was for my lower back only. I had the radiating leg pain at the time, but was not aware that I was able to claim it (I was new/ignorant and had poor assistance). That claim was successful, but got a low-ball 20% rating. About a year later, I filed for an increase plus added the legs as secondary. Filed the new claim FDC (fully developed claim) and in only six weeks, I received the increase on my back (40%) plus both legs were connected (right leg moderate 20% and left leg mild 10%). I had one c&p exam and it was very simple. Mostly just questions about the pain. The c&p examiners during both of my claims commented on my MRI. Both stated that the MRI showed my back was so bad, they didn't really need to do any other tests. Apparently the MRI made all the difference in my case.

Your thumbnail is referring to ROM measurements, but 5270 is referring to ankylosis. Two completely different things. ROM is range of motion, and ankylosis is the degree at which the ankle is stuck in a bent or crooked position.

Sounds like you may have a claim for peripheral neuropathy, secondary to the SC neck condition. Copied From: http://www.benefits.va.gov/WARMS/docs/regs/38cfr/bookc/part4/s4_124a.doc Diseases of the Peripheral Nerves The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The following ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Rating Major Minor Upper radicular group (fifth and sixth cervicals) 8510 Paralysis of: Complete; all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected ............................. 70.......... 60 Incomplete: Severe 50.......... 40 Moderate ............................................................................................. 40.......... 30 Mild .................................................................................................... 20.......... 20 I hope this helps.

I have a little different question regarding advice. My first claim for service-connection was made about four years ago. Knowing nothing about the process, I chose to use a state DVA rep to handle my claim. The rep was totally optimistic and helpful throughout the entire process and I ended up winning my claim. Now, four years later, I went back to the same rep to file a new claim and his attitude was polar opposite. From the moment I walked in his office and started speaking, he showed nothing but pessimism. I explained my current claim and it seemed like he was doing everything he could to talk me out of it. When I insisted that I wanted to file the claim anyway, his response was, "I'll file whatever you want, but you're not gonna get it." I should have walked out right then, but I didn't -- I let him file my claim. The following day, I asked my primary care doc for his professional opinion and he wrote a "more likely than not" nexus letter for me. That sorta blows the VSOs advice out of the water. My question is this: considering the completely (and unnecessary) negative attitude of my rep, are VSOs possibly being compelled in some way to discourage new claims right now?

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The VA service connected my lower back condition due to an injury I suffered many years ago in the line of duty (thank G*d for my SMR). They also service connected my leg pain (radiculopathy) secondarily to my service connected lumbar disability. Using the schedule below, they gave me a rating of 20% (moderate) for my right leg, and 10% (mild) for my left leg. I hope this helps. §4.124a Schedule of ratings—neurological conditions and convulsive disorders. Sciatic nerve. 8520 Paralysis of: Complete; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost........................................................................................................... 80 Incomplete: Severe, with marked muscular atrophy............................................................... 60 Moderately severe .............................................................................................. 40 Moderate............................................................................................................. 20 Mild ................................................................................................................ 10

Filed claim. Asked for advice. Moving on.