tdiu Tdiu

[david walker]

I am combined 60%, and working is killing me due to the back pain & the meds I have to take. Can I file and keep working? May highest single rating is 20% but all may ratings come from the same accident?? I can't take care of my family on what I currently receive without working. This is eventually going to kill me. Thanks guys

[cloudcroft]

Yes, "TDIU newbies" should research the topic first...we have discussed all this many times over in other threads here, and not that long ago.

We've even covered the technical possibility of getting TDIU even with no rating yet, let alone not meeting the schedular requirements, even though this is extremely rare.

So more research by some posters would be very appropriate as well as being highly productive.

-- John D.

working + no single disability rated at 40 percent = No TDIU sorry. Please take a look at the TDIU requirements.

[Guest rickb054]

I am combined 60%, and working is killing me due to the back pain & the meds I have to take. Can I file and keep working? May highest single rating is 20% but all may ratings come from the same accident?? I can't take care of my family on what I currently receive without working. This is eventually going to kill me. Thanks guys

David,

No it is doubtful you would be awarded TDIU the regulations are clear. A veteran must be rated at least 60% for one disability or 40% for one disability with additional disability equal to at least 70%. While it is rare veterans rated less than 60%/70% can still be awarded TDIU in special cases, I suspect yours is not a special case. Also I have never seen nor heard of any veteran being awarded TDIU whil holding a job.

read:

§4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:

(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,

(2) Disabilities resulting from common etiology or a single accident,

(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,

(4) Multiple injuries incurred in action, or

(5) Multiple disabilities incurred as a prisoner of war.

It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))

( 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 and Pension 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.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]

[cloudcroft]

Rick,

I was! But it was marginal employment.

And I was told by a former member here (a VA employee) it's fairly rare that it happens....sort of like the rarity of getting TDIU without a rating or not meeting the minimum schedular requirements (I'm referring to the "extra-schedular" situation you cite in your post's last paragraph, §4.16b). I don't know which of those two is more rare: Getting TDIU while working (marginally) or getting TDIU extra-schedularly.

But it does certainly seem that in MOST TDIU claims, §4.16a is routinely applied whereas §4.16b hardly ever is.

Anyway, that's why we need to define what "working" means when we use the word...whether it is gainful or marginal employment. "Working" as most people use it here means a regular job with regular full-time hours and making decent money, but "working" can also mean working erratically (which would result in a very low income) or in a protected environment...i.e., marginally.

The OP is in the former category so despite some physical problems, they are not presently severe enough to preclude gainful employment...as he is demonstrating since he IS working gainfully. They MAY be, however, at some point in the future.

Again, the OP should look more into the subject, especially if he (or anyone else reading this) is looking at applying for TDIU now or some time down the road when their disabilities get worse. Of course, I am talking about SC disabilities only causing unemployability, not non-SC disabilities causing unemployability.

I would think that the OP also would not be able to get SSDI at this point due to their requirements being even stricter than the VA's.

-- John D.

Edited November 3, 2007 by cloudcroft

[john999]

When a vet applies for TDIU it is probably best not to even mention other NSC disabilites. You don't have to lie but don't volunteer that kind of information. They will use it against you. I know from personal experience. I was rated 70% and the VA still denied my TDIU based on some NSC medical conditions I had that did not even apply to my IU condition. When you give them that kind of information you give them a string to pull on. It just took me longer and involved another IMO to get it right. IMO's are the best tool to fight bad ratings. You can argue the law til you are blue in the face but evidence has to be refuted by them and us.