Does anyone have any thought on this? I don't have a VSO near me.
I am rated 70% PTSD w/ a GAF of 43, 40% cluster symptoms (GWI), and 10% bilateral hearing loss for a total of 80%.
I was denied TDIU 15 APR 09 and reasons for decision states "Entitlement to individual unemployability is denied because the claimant has not been found unable to secure of follow a substantially gainful occupation as a result of service connected disabilities. The veteran is considered capable of gainful employment. {38 CFR 4.16}"
The DVA fact sheet on Individual Employability states that substantially gainful employment is defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.
http://www.vba.va.gov/VBA/benefits/factshe...onnected/iu.doc
In my NOD I have included,
It is also stated under "reasons for decision" for entitlement to individual unemployability that "ON VA examination, you report that you did work for some period of time at a nuclear power plant. However, you quit work in 2005 and state that you were not fired, but simply disagreed with your employer and it was a mutual decision for you to quit." Although it is a true statement that I did work for a period of time at a nuclear power plant (in addition to 14 other places of employment in the 16 years since active duty), the reason for leaving employment is inconsistent with my statement to the examiner. I left employment with the security firm in June of 2005 because I was in the process of divorce proceedings for a third time, and, due to thoughts of suicide, was not comfortable carrying a firearm which was a requirement to perform my duties as a nuclear security officer. I was also not able to maintain the schedule required for that position due to symptoms of service connected disabilities. I left a secure well paying job to seek a work environment more compatible with my symptoms. Subsequently, I was engaged in an employment arrangement as self employed contract labor from 2005 to 2007 which was mutually agreed upon between myself and the contractor to terminate due to excessive absenteeism and substandard work performance as a result of service-connected disabilities, I have not been employed, gainfully or otherwise, since March 30, 2007.
You have failed in your duty to assist in that the incorrect reporting of the examiner may have influenced the outcome of the rating decision as these facts are relevant to my claim and should be considered as evidence pursuant to 38 CFR 4.16(a). "Consideration shall be given in all claims to the nature of the employment and the reason for termination."
38 CFR 4.25 states that "...a person having a 60 percent disability is considered 40 percent efficient". By that established standard, it is contradictory to infer that I am still considered capable of earning a livelihood compared to non-disabled individuals with earnings comparable to the particular occupation in my community with an expectation to perform at 20 percent efficiency as a result of a combined service-connected 80 percent rating.
This logically raises the issue of reasonable doubt. Since it is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent with the facts shown in my case, is a substantial doubt within the range of probability and no evidence satisfactorily disproves the claim, 38 CFR 3.102 states that such doubt will be resolved in favor of the claimant.
I am requesting a "De Novo Review" by a new Decision Review Officer.
It seems that the code they hit me in the gut with is the same code that substantiates my claim.