tdiu Voc Rehab Tdiu

[cowgirl]

Started vocrehab once, evaluated and told my specialty skills didnt transfer to civilian work. Stressed by process, mdd, I did a health pause. If all else looks good for tdiu, will the pause affect claim? can't reopen been near 2 years.thanks,cg

Edited December 13, 2007 by cowgirl

[william n]

If you could hire a voc rehab specialist to say you can't work that would help your claim. You don't want to leave it to chance. When lawyers hire expert witnesses they know exactly what they will say. You are your own lawyer when you file a VA claim.

i agree with you..im fortunate where i live so close to St. Pete/ Bay Pines Fla. Hosp./Regional Office, that i scheduled a Voc. Rehab. appt. we discussed my limitations [mental/MDD] and [physical/??] and voc. decided that i was unemloyable at this time. Told them to put in in writing[they did] went to Release of Info, picked it up and sent in with my claim for TDIU/Service Connected. Can't hurt, only help..Evidence+Documentation=Results..Regards,Happy Holidays, Williamn

[cowgirl]

Thanks olenavy, john, william and 1968, the discussion you offer me sure helps me move the clouds away from an overworked brain here! Being more than a little stressed with issues lately, my husband asked if I really should apply. My reply, without hesitation, very sincerely, Yes. Not working is very difficult on me, him and the kids. Even temp jobs help a bit, meanwhile, I try to stay healthy for the family by tending to things I can. The way I see it, I can't wish myself better or totally change my condition 'cause thats not real; my job right now is live as healthy as possible, day in day out. I'm not giving up, I'm a goin' on!

For the moment, this is where I am at. SC mdd (also SC ortho,lumbar,..etc). Tried vocrehab, did extensive skills eval, afterwards stressed, met with counselor, their letter states 'You stopped rehab process...'. So, if needed, I can show vocrehab attempt even if incomplete. My TDIU request focus is my MDD (30%, no meds) increase requested and I've asked psych for statement. One step at a time. If needed, I can get board cert Pysch and voc rehab specialist on radar. cg'up!

[william n]

Happy Holidays, This time of year i agree with everybody..My MDD dx. was made by the Chief of Psychiatry[acting] Dr. Asher Gorelik..I was fortunate to have him follow my health after HE put me on the psyc.ward for ??. now MDD. still see him for psychotherapy/med. recipies..he carries alot of weight here at Bay Pines, Fla. I'm waiting and waiting.....push those claims now ya'll, hurry! regards, william n

[cowgirl]

Am applying for tdiu, doc letter, employment history, request for increased % all checked. Will see how it goes, been really tough week for me. ,

Don't be afraid to seek-out an IMO..... look at Berta, Pete, and John999....... all were successful in getting a good IMO.... and, they do not regret it. Do NOT delay, any further. Let your IMO do it for you. Otherwise, you loose.

[Wings]

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Don't forget Robinerson v. Principi . . .

VAOPGCPREC 12-2001 http://www.va.gov/ogc/opinions/2001precedentopinions.asp

Robinerson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29, 2001)

HELD -- The only holdings in Roberson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29, 2001) are the following:

Once a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the veteran is entitled to total disability based upon individual unemployability (TDIU).

A veteran is not required to submit proof that he or she is 100% unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3. 340(a).

See also http://www.ll.georgetown.edu/federal/judic...ns/00-7009.html

38 C.F.R. § 3.340(a)

Having found a claim for TDIU, we consider Roberson’s entitlement to TDIU under 38 C.F.R. § 3.340(a)(1), dating back to the 1984 rating decision. Roberson alleges that, in determining his eligibility for TDIU, the Court of Appeals for Veterans Claims misinterpreted section 3.340(a)(1). This section stated, at the time the RO evaluated Roberson’s claim, “[t]otal 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.” 38 C.F.R. § 3.340(a)(1) (1983) (emphasis added). Roberson asserts that the Court of Appeals for Veterans Claims misconstrued “substantially gainful occupation” to mean “100% unemployable.” Roberson bases his allegation on the court’s statement that “there was sufficient evidence of record at the time of the RO’s January 1984 decision to reasonably conclude that the veteran was not 100% unemployable.” Roberson v. West, No. 97-1971, slip op. at 6. Roberson asserts that the plain language of the regulation does not require the veteran to show 100 percent unemployability in order to prove that he cannot “follow substantially gainful occupation.” We agree.

Requiring a veteran to prove that he is 100 percent unemployable is different than requiring the veteran to prove that he cannot maintain substantially gainful employment. The use of the word “substantially” suggests an intent to impart flexibility into a determination of the veterans overall employability, whereas a requirement that the veteran prove 100 percent unemployability leaves no flexibility. While the term “substantially gainful occupation” may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.

Having concluded that proving inability to maintain “substantially gainful occupation” does not require proving 100 percent unemployability, we remand to the Court of Appeals for Veterans Claims for a determination of Roberson’s eligibility for TDIU in accordance with this opinion.

CONCLUSION -- We conclude that the Court of Appeals for Veterans claims erred in holding that Roberson failed to make a claim for TDIU, and erred in applying an incorrect standard for TDIU.

REVERSED and REMANDED

[Wings]

VERY INTERESTING. CAVC gets corrected by the Fed Circuit Court.... hmmmmmm. What does it mean that this court decision has been "SUPERCEDED" by another later court decision ???

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su·per·sede

1. To take the place of; replace.

2. To cause to be set aside, especially to displace as inferior or antiquated.

*Rulings may be superseded, modified, or rescinded by later legislation, regulations, court decisions, or Rulings. ~Wings