Iris Inquiry

[kris]

So I understand the claim process for IU I need to ask you what this means from Iris.

Status of claim has been routed to VBA ----- office, comp & pension group.

Also what does VBA mean.

By the way I watch this board and you are all amazing. I have learned more from you all then from my SO. You are the one that have got me this far in my claims process.

Thank you

Kris

[Berta]

The claim could have been sent to the VBA in DC for extraschedular rating consideration.

From VBM:

"Minimum Schedular Rating LevelsA veteran who does not meet the percentage requirements under the rating schedule describedabove but who is unable to work due to service-connected disabilities may still be awarded aTDIU rating on an extraschedular basis.30The TDIU regulation states that “t is the establishedpolicy” of the VA that all veterans who are unemployable because of service-connected disabilities “shall be rated totally disabled.”31The governing norm for granting a TDIU rating on an extraschedular basis is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization as to render impractical theapplication of the regular schedular standards.32The regulation creates a special procedure for adjudication of these cases. Such cases arereferred by the rating activities in the VA regional offices (ROs) to the VA Central Office(VACO) located in Washington, D.C., where the Director of the Compensation and PensionService, or his or her designee, determines entitlement to this benefit in each case.33 Theregulation refers to the review conducted by the VACO as “extra-schedular consideration.”34Thereferral by the rating activity should include “a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all otherfactors bearing on the issue.”35**Advocacy Tip** Each case should be individually evaluated by the VA. Therefore,advocates should present factors such as work background, education, periods ofhospitalization, and evidence of dramatic impact on the individual veteran’s ability to work,to establish that a veteran should be granted an extraschedular rating of TDIU.36Inaddition, the authors of this Manual believe that a sympathetic veteran (i.e, decorated warhero, wounded in combat, etc.) may receive more sympathetic treatment from the VA intheir highly individualized assessment, thus having a greater chance of being granted TDIUon an extraschedular basis. Therefore, advocates are advised to emphasize individual thingsabout the veteran that make him or her sympathetic. 29. Id. 30. 38 C.F.R. §4.16(B) (2004); extraschedular ratings are discussed in Section 5.2 of this Manual.31. Id. 32. Brambley v. Principi, 17 Vet. App. at 20; see also 38 C.F.R. § 4.16(B) (2004).33. 38 C.F.R. § 4.16(B) (2004); see Brambley v. Principi, 17 Vet. App. at 24. 34. Id. Under the VA’s proposed changes to the TDIU regulations, the VA would continue to employ this specialprocedure of having the rating activity refer cases to the Director of Compensation and Pension for extraschedular consideration when it determines that a veteran who does not meet the percentage requirements for a TDIU rating is nevertheless unable to engage in substantial gainful employment. 66 Fed. Reg. 49886, 49888 (October 1, 2001).35. Id. The proposed regulations require that the extraschedular TDIU rating prepared by the rating activity for theDirector of Compensation and Pension’s approval “include a full description of the unusual circumstances that warrant an extraschedular rating and the factors that in the judgment of the rating activity prevent the veteran from engaging insubstantially gainful employment.”36. See MANUALM21-1, Part VI, ¶ 7.07.

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Presumably, this special procedure exists because these types of cases are so rare; and, in fact,the VACO rarely grants benefits under this provision. In appropriate cases, however, the advocateshould not hesitate to request that the RO send a claim to the VACO for consideration ofentitlement to a TDIU rating.37If TDIU is an issue in a case, and the veteran does not meet theminimum schedular rating, the VA is required to consider whether the veteran is entitled to TDIUthrough extraschedular consideration; and if not, the VA must explain its reasons or bases forwhy it is inapplicable.38**Advocacy Tip** The CAVC has recently held that it was premature for the Board todecline extraschedular consideration where the record was significantly incomplete as tothe issue of employability because extraschedular consideration requires a “completepicture” of the appellant’s service connected disabilities and their effect on hisemployability.395.4.4 Factors the VA Will Consider When Making Its Determination as to Whether aVeteran Is Unable to Engage in Substantial Gainful EmploymentUnder the proposed TDIU regulations, the VA indicated that a determination as to whether aveteran is unable to engage in substantially gainful employment due to service-connected disability or disabilities will be based upon the veteran’s ability to perform activities “normallyrequired for substantially gainful employment” with “the regularity and for the duration normally required for substantially gainful employment.”40The VA proposes to define the term “activities normally required for substantially gainfulemployment” to include both exertional and non-exertional activities. Exertional activities,includes, but is not limited to “the ability to sit, stand, walk, push, pull, use hands, reach, lift andcarry.41Non-exertional activities, includes, but is not limited to “the ability to communicate,remember, follow instructions, use judgment, adapt to changes and deal with people, includingsupervisors, co-workers, and the public.”42The VA is also requiring the award of TDIU benefits to be based, in part, on medical evidence.The VA intends to require specific: Medical evidence which describes the nature, frequency, severity and duration of symptomsof the service-connected disabilities and the extent to which the veteran’s ability to performactivities normally required for substantially gainful employment is limited solely due toservice-connected disabilities.43This change, if adopted by the VA, would have a significant impact upon the adjudication ofTDIU claims. Consequently, this means that in order to establish entitlement to TDIU benefits,37. 38 C.F.R. § 4.16(B) (2004); See Moyer v. Derwinski, 2 Vet. App. 289, 293-95 (1992) (BVA erred by failing toapply 38 C.F.R. § 3.321(B)(1) and refer claim to VA Central Office for “extra-schedular consideration,” given exceptional circumstances that rendered veteran unemployable).38. Shoemaker v. Derwinski, 3 Vet. App. 248, 255 (1992); Proscelle, 2 Vet. App. at 633-34; Mingo v. Derwinski, 2Vet. App. 51, 53-54 (1992). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the CAVC reversed a BVAdetermination that the veteran’s case was ineligible for consideration under Section 4.16(B) for referral to the C&P Director. The Court held that “where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where the Board has not relied on any affirmative evidence to the contrary, theCourt will reverse the Board’s determination, as a matter of law.” Id. 39. See Brambley v. Principi, 17 Vet. App. at 24. 40. 66 Fed. Reg. 49886, 49893 (Oct. 1, 2001) to be codified at 38 C.F.R. § 4.16(d).41. 66 Fed. Reg. 49886, 49893 (Oct. 1, 2001) to be codified at 38 C.F.R. § 4.16(3)(g)(2)(i).42. 66 Fed. Reg. 49886, 49893 (Oct. 1, 2001) to be codified at 38 C.F.R. § 4.16 (3)(g)(2)(ii). 43. 66 Fed. Reg. 49886, 49893 (Oct. 1, 2001) to be codified at 38 C.F.R. § 4.16 (d)(1).

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5.4.5 VETERANS BENEFITS MANUAL 8 Ch. 5. Settinga Veteran’s Service-ConnectedDisabilityRatingveterans would need to submit very specific statements from doctors that not only describe “thenature, frequency, severity and duration of symptoms of the service-connected disabilities” butalso discuss the impact that the service-connected condition(s) has on the appellant’s exertionaland, if relevant, non-exertional abilities. For example, a veteran who alleges that he is entitled toTDIU benefits because of a service-connected back condition would need to submit a doctor’sstatement that includes a description of the impact of the veteran’s service-connected conditionon the veteran’s exertional abilities, including “the ability to sit, stand, walk, push, pull, usehands, reach, lift and carry. A veteran who alleges that he is entitled to TDIU benefits because ofhis service-connected schizophrenia would need to submit a doctor’s statement that includes adescription of the impact of his schizophrenia on his non-exertional activities, including “theability to communicate, remember, follow instructions, use judgment, adapt to changes and dealwith people, including supervisors, co-workers, and the public.”44Additionally, a veteran seekingTDIU benefits should attempt to obtain a statement from a doctor that states that the veteran doesnot have the ability to perform the exertional or non-exertional activities normally required forsubstantial gainful employment with the regularity and for the duration normally required forsubstantial gainful employment. In addition to considering the impact of service-connected conditions on the veteran’s abilityto perform activities “normally required for substantially gainful employment,” the VA will alsoconsider other evidence “of unusual limitations imposed by service-connected disabilities,including but not limited to “the nature and unusual frequency of hospitalizations or otherrequired treatment, and unusual effects of required medication.”455.4.5 Age, Non-Service-Connected Conditions and TDIU VA regulations prohibit the VA from considering some factors that are difficult to separatefrom the analysis of whether a veteran is capable of substantial gainful employment. For example,the VA may not consider the veteran’s age,46or the veteran’s non-service-connected disabilities.47Each of these factors may without question contribute to the overall picture of the veteran’sunemployability; however, they must somehow be ignored in making the assessment. In adjudicating claims for TDIU, the VA must only consider the effects of service-connecteddisabilities on a veteran’s ability to work.48For example, if a veteran suffers from arthritis of thelower back that is service connected and a herniated disc in the cervical spine which is non-service-connected, the VA may only consider the affect of the arthritis on the veteran’s ability to44. This change would also have an impact on the way in which the VA develops a veteran’s TDIU claim. VAmedical examiners who conduct medical examinations for TDIU claims would need to provide medical opinions thatnot only include a description of “the nature, frequency, severity and duration of symptoms of the service-connecteddisabilities” but also discuss the impact of the service-connected condition(s) on the appellant’s exertional and, ifrelevant, non-exertional abilities.45. 66 Fed. Reg. 49886, 49893 (Oct. 1, 2001) to be codified at 38 C.F.R. § 4.16(d)(2). 46. 38 C.F.R. § 4.19 (2004); Fluharty v. Derwinski, 2 Vet. App. 409, 411 (1992). The VA’s proposed revisions tothe TDIU regulations continue the prohibition that the VA may not consider the veteran’s age as a factor in determiningwhether the veteran is unemployable. 66 Fed. Reg 49886, 49893 (October 1, 2001) to be codified at 38 C.F.R.§ 4.16(d)(e)(2).47. 38 C.F.R. § 4.16(a) (2004). The VA’s proposed revisions to the TDIU regulations continue the prohibition thatthe VA may not consider a veteran’s non-service-connected conditions as a factor in determining whether the veteran is unemployable. 66 Fed. Reg 49886, 49893 (October 1, 2001) to be codified at 38 C.F.R. § 4.16(d)(e)(1). 48. Id.

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work and it may not consider the effect of the veteran’s non-service-connected herniated disc.Therefore, in support of TDIU claims, advocates should isolate the service-connected conditionsand then argue that, at least hypothetically, these could make an individual with the veteran’sbackground unemployable. When the VA denies a TDIU claim on the ground that the veteran’s unemployability is not dueto the veteran’s service-connected disabilities, it cannot simply state that the veteran’sunemployability is due to non-service-connected conditions rather than service-connectedconditions. It is also insufficient for the VA to state that its denial of a TDIU claim is because theveteran’s unemployability is due to the “combined effects” of the non-service-connected and service-connected disabilities.49The VA must provide a clear explanation of the current degree of unemployability attributableto the service-connected condition as compared to the degree of unemployability attributable tothe non-service-connected conditions.50If the veteran suffers from both service-connected and non-service-connected disabilities and it is not clear the extent to which the veteran’s service-connected disabilities alone affect his employability, the VA should obtain a medical opinionregarding the degree of disability, if any, that is attributable, to the veteran’s service-connecteddisabilities.515.4.6 Consideration of Educational and Occupational HistoryThe VA must consider the veteran’s educational and occupational history when it isdetermining whether the veteran’s service-connected disabilities preclude him or her fromsecuring or following substantial gainful employment.52The VA may not “merely allude toeducational and occupational history, [without] attempt[ing] . . . to relate these factors to thedisabilities of the [veteran].”53The CAVC has stated: “[w]here the veteran submits a well-grounded claim for a TDIU rating . . . the BVA may not reject that claim without producing evidence, as distinguished from mereconjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.”54**Advocacy Tip** Almost all claims for TDIU would benefit from professional opinionevidence from a vocational expert concerning the veteran’s ability to secure or follow a substantially gainful occupation. This evidence is not required, but generally, a positivevocational opinion greatly increases a veteran’s chances of winning TDIU. Advocatesrepresenting veterans claiming TDIU benefits should routinely ask to review or requestcopies of the veteran’s VA vocational rehabilitation file. A VA vocational rehabilitationassessment that indicates that the veteran cannot be vocationally trained or retrained due to49. Fluharty v. Derwinski, 2 Vet. App. 409, 412 (1992). 50. Cathell v. Brown, 8 Vet. App. 539, 544 (1995); see also Vettese v. Brown, 7 Vet. App. 31, 35 (1994); Hatlestadv. Brown, 5 Vet. App. 524, 529 (1993). 51. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994) (BVA has duty to obtain a medical examination whichincludes an opinion on the effect the appellant’s service-connected disability, alone, has on his ability to work);Waddell v. Brown, 5 Vet. App. 454, 456 (1993) (in rating increase claim for PTSD, where physicians have diagnosedappellant as having several disorders concurrently, including PTSD, VA “must conduct a thorough examination todetermine the degree of appellant’s functional impairment attributable to PTSD”). 52. Cathell, 8 Vet. App. at 544. 53. Id.; see also Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991).54. Beaty v. Brown, 6 Vet. App. 532, 537 (1994).

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5.4.7 VETERANS BENEFITS MANUAL 10 Ch. 5. Settinga Veteran’s Service-ConnectedDisabilityRatinghis service-connected disability is positive evidence in a claim for TDIU benefits because itindicates that the veteran is unable to engage in substantial gainful employment.555.4.7 Other Factors That the VA Proposes to Disregard in Adjuducating TDIU Claims Under the VA’s proposed TDIU regulations, there are certain factors that the VA intends todisregard when adjudicating TDIU claims. These include: “a veteran’s training or lack thereof,unless the evidence establishes that the service-connected disability or disabilities would impedefurther training;”56“the state of the economy in the veteran’s community”57; and “the fact that the veteran’s previous employment has been eliminated due to such factors as technological advancesor employer relocation.”585.4.8 Static Conditions: Special Problems When a veteran has a service-connected disability such as an amputation or the residuals of abone fracture, “a showing of continuous unemployability from date of incurrence, or the date thecondition reached the stabilized level, is a general requirement” for convincing the VA that theveteran’s present unemployability resulted from his or her service-connected condition.59Some veterans struggle heroically to work for years before constant pain and stress forces themto stop. If their service-connected conditions remained static (that is, if there was no change in theseverity of their disabilities), they could not claim entitlement to TDIU benefits. But if they had given in to their disabilities and had not worked, it is entirely possible that the VA would havegranted them TDIU benefits. This rule seems to penalize those people who endure great pain inorder to try to function in society. However, two theories are available for an advocate whowishes to obtain IU benefits for this type of veteran:• The advocate may concede that the evaluation for the veteran’s service-connectedcondition has not significantly changed in many years and that the veteran is not entitled toa higher evaluation, then argue that these circumstances do not preclude the possibility thatthe condition has become more severe. For example, the veteran could state that he or shesuffers more pain now than before or that the amputation stump causes more difficultynow. Private medical evidence (or any other medical report) showing that the veteran’sservice-connected condition has increased, even ever so slightly, permits consideration ofTDIU.• In the alternative, the veteran suffering from a severe service-connected condition who hasstruggled for years to work may have developed a secondary condition, a neurosis,because of the service-connected physical disability. The advocate should tactfully explorethis possibility, and if medical evidence reveals the existence of a secondary mentalcondition, the advocate should file a claim for secondary service connection along with theclaim for TDIU benefits. If the VA service-connects the secondary mental disorder, theadvocate will have a stronger argument for total disability benefits. 55. See Foster v. Principi, 4 Vet. App. 35 (1993); Gleicher v. Derwinski, 2 Vet. App. 26, 27 (1991). 56. 66 Fed. Reg. 49886, 49893 (Oct. 1, 2001) to be codified at 38 C.F.R. § 4.16 (d)(2)(e)(3). 57. 66 Fed. Reg. 49886, 49893 (Oct. 1, 2001) to be codified at 38 C.F.R. § 4.16 (d)(2)(e)(4). 58. 66 Fed. Reg. 49886, 49893 (Oct. 1, 2001) to be codified at 38 C.F.R. § 4.16 (d)(2)(e)(4). 59. 38 C.F.R. § 4.18 (2004).

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If the veteran first becomes unemployable, not because of a service-connected disability but,because of a combination of service-connected and non-service-connected conditions, the veteranmay nevertheless qualify for a 100 percent rating based on TDIU if the service-connectedcondition later increases in severity. For example, if a veteran has to retire from his job as abricklayer because of a non-service-connected condition and ten years later his service-connectedhypertension causes a severe heart attack that would prevent a person with his education andwork experience from working, the veteran should be rated totally disabled based on entitlementto TDIU benefits.605.4.9 How to Apply for TDIU VA Form 21-8940, Application for Increased Compensation Based on Unemployability, is theprescribed form for claiming individual unemployability (TDIU).61The VA will require that aveteran complete and submit a VA Form 21-8940 before it will formally pay a claim for TDIUbenefits. However, a veteran is not required to file this application form before the VA isobligated to consider and adjudicate a TDIU claim. When a veteran files an original claim forevaluation of a disability or a claim for an increase in the evaluation of a disability that hasalready been rated by the VA, the claimant is generally presumed to be seeking the highestbenefit allowable.62If either claim includes facts that indicate that the veteran is unemployable,the VA is obligated to consider and adjudicate a TDIU claim.63For example, a veteran files aclaim for a rating increase for an anxiety disorder, included in the evidence in the veteran’sclaims file is a statement from a psychiatrist that the veteran’s mental disability precludes himfrom being able to work. This evidence constitutes an inferred claim thus, the VA is obligated toconsider and adjudicate the veteran’s entitlement to TDIU. Advocates should not wait to file claims for TDIU until the VA sends them the applicationform. The advocate can file an informal claim by simply sending the VA a letter stating that hisor her client wishes to be considered for TDIU benefits and asking the VA to send all appropriateforms so that the client’s claim can be perfected. **Advocacy Tip** Some veterans who have inferred claims for TDIU may be entitled toan earlier effective date for their TDIU benefits.64In Servello v. Derwinski,65the court heldthat the existence of an inferred claim for TDIU might have entitled the veteran to an earliereffective date because under 38 U.S.C.S. § 5110(B)(2), the effective date of an award ofincreased compensation shall be the earliest date as of which it is ascertainable that anincrease in disability occurred if the application is received within one year from such date.The court reasoned that because under 38 C.F.R. § 3.155(a), the VA was required to, butdid not, forward to the veteran a TDIU application form, the one-year filing period for such60. Id. 61. A copy of this form may be found in the Forms Appendix.62. See AB v. Brown, 6 Vet. App. 35, 38 (1983); see also Roberson v. Principi, 251 F.3d 1378, 1383 (Fed. Cir.2001); Norris v. West, 12 Vet. App. 413, 421 (1999). 63. See Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) (VA was obliged to consider issue of entitlement to TDIUbenefits despite the veteran’s not having filed the specific TDIU application form because “he has continually stated that he is unable to work due to his schizophrenia”); Roberson, 251 F.3d at 1384; Norris, 12 Vet. App. at 421.64. See Section 5.7.2 for a discussion of inferred claims. 65. 3 Vet. App. 196 (1992); see also Norris v. West, 12 Vet. App. 413, 420-21 (holding veteran filed an informal claimfor TDIU where evidence indicated veteran satisfied criteria under 4.16(a) and there was evidence of currentunemployability).

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5.4.10VETERANS BENEFITS MANUAL 12 Ch. 5. Settinga Veteran’s Service-ConnectedDisabilityRatingapplication did not begin to run.66Thus, as a matter of law, the inferred claim submittedprior to the date of a formal TDIU application must be accepted as the date of claim for effective date purposes. 5.4.10 Special Factors That Are Relevant to TDIU Determinations The following rules and other factors that are especially relevant to TDIU determinations: • When the VA has been put on notice that the veteran is in receipt of Social SecurityAdministration (SSA) disability benefits, it is obligated to obtain any relevant SSArecords, because SSA benefits, which are also based on a determination by SSA that theveteran is unemployable, are relevant to the determination of [the] appellant’s ability tosecure a substantially gainful occupation under 38 C.F.R. § 4.16;67• The simple fact that a veteran may be young, or may be highly educated, or may have beenrecently employed, or may have had a long work career are not decisive, and standingalone are insufficient justifications to deny a TDIU claim;68• If the veteran is taking medication to treat the service-connected disability, the VA shouldmake an assessment of the effects, or side effects, of the medication on the veteran’semployability;69and • Because the assessment of the cause of the veteran’s unemployability can be difficult incases in which non-service-connected disabilities and service-connected disabilities arepresent, the benefit of the doubt doctrine may be especially applicable to TDIU cases.705.5 SPECIAL MONTHLY COMPENSATION: STATUTORY AWARDS OFCOMPENSATIONSpecial Monthly Compensation (SMC) is a benefit established through statute that is paid inaddition to the basic rates of compensation payable under the Schedule for Rating Disabilities.71SMC is paid to compensate veterans for service-connected disabilities that involve anatomicalloss or loss of use, such as loss of use of a hand or a foot, or impairment of the senses, such asloss of vision or hearing. While the basic rates of compensation are predicated on the average reduction in earning capacity, special monthly compensation benefits are based on noneconomicfactors such as personal inconvenience, social inadaptability, or the profound nature of the 66. Servello, 3 Vet. App. at 196; see also Hamilton v. Brown, 4 Vet. App. 528, 544-45 (1993) (en banc); Quarles v.Derwinski, 3 Vet. App. 129, 137 (1992); but see Moody v. Principi, 360 F.3d 1306, 1307 (the effective date of a TDIUaward cannot be prior to the date that the first such formal or informal claim was made.)67. See Baker v. West, 11 Vet. App. 163, 169 (1998); Cohen v. Brown, 10 Vet. App. 128, 151 (1997); Hayes v.Brown, 9 Vet. App. 67, 73-74 (1996); Lind v. Brown, 3 Vet. App. 493, 494 (1992); Murincsak, 2 Vet. App. at 370-72;Masors, 2 Vet. App. at 187-88; Quartuccio v. Principi, 16 Vet. App. 183 (2002) (VA violated the duty to assist byfailing to obtain Social Security records when it had actual notice that vet was receiving Social Security benefits.) 68. See Gleicher v. Derwinski, 2 Vet. App. 26 (1992). 69. See Moyer v. Derwinski, 2 Vet. App. 289, 294 (1992); Mingo, 2 Vet. App. at 53. 70. Fluharty, 2 Vet. App. at 413.71. 38 U.S.C.S. § 1114. "

[Vike17]

Your claims folder may have also been sent to Washington. D.C. for a quality control review. Claims folders being sent to Washington, D.C. for consideration for IU when the claimant doesn't meet the schedular requirments almost never happens. I'm not saying it doesn't happen, I've seen it done a couple of times, but it is just very, very, very rarely done. I just don't want to get your hopes up with you hoping this is the case with your claim!

Vike 17