tdiu Compensation Award Letter

[Josephine]

Ts and others,

You have ask to read a copy of the letter from the R.O as to why I received

10%

50%

70%

How do I get Unemployability?

Thanks,

Betty

[Guest Dataman]

Betty;

U have to apply for UI. If you can hold a job and work well that will disqualify you. They might contact your former employeer and have them fill out form.

I assume your not working.

Sorry to ask his but it appears you waited over 30 years to apply for VA Benefits or did they just play toss your file around that long? Or you did not want to apply? I know my Dad has done the same thing. Refused to apply for VA Disability Benefits (Hurt with Grenade USMC somehow?). I know a lot of Vets do not apply at all. Hopefully they are doing a lot better job with Iraq/War on Terror Vets (Current Mess).

To me they should auto ask if you have job if not and you qualify award 100 or TDIU and avoid the BS.

Wish you luck. Call the 800 number and have them send you out the forms. It should have been in your award package.

Good Luck

[mountain tyme]

Hello Betty,,,

I found this information http://www.geocities.com/Pentagon/1151/text27.html

VA

INDIVIDUAL

UNEMPLOYABILITY

(IU) DETERMINATION

"There are two ways for a claimant to achieve a total disability rating. The first possibility is to qualify for a 100 percent rating under the rating schedule set forth in part 4 of 38 C.F.R. The second possibility is to meet the standards of the regulations governing "individual unemployability" (IU). IU exists as a concept to cover the situation in which a service-connected disability makes the veteran unemployable, even though an average person with a similar impairment could secure and retain substantial gainful employment. Since the rating schedule focuses on the average person, the concept of IU is necessary to take into acount circumstances such as education and past employment history that are peculiar to the claimant and to implement "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."

On occasion the VA has denied claims for IU because it believes that the combined effects of the veteran's service-connected and non-service-connected conditions have made the veteran unemployable. However, this is not the legal issue to be resolved when a claim for IU is filed; the sole issue is the effect of the veteran's service-connected conditions(s) on the veterans' employability. Therefore, in support of IU claims, Veterans' and Advocates should isolate the service-connected conditions and then argue that, at least hypothetically, these could make an individual with the veteran's background unemployable.

Most veterans struggle heroically to work for years before constant pain and stress forces them to stop working. If a veterans' service-connected conditions remained static (that is, if if there was no change in the severity of the disability), they could not claim entitlement to IU benefits. But if they had given in to their disabilities and had not worked, it is entirely possible that the VA would have granted them IU benefits. This rule seems to penalize those people people that endure great pain in order to function in society.

A veteran suffering from a service-connected condition who has struggled for years to work may develop secondary condition, a neurosis, because of the service-connected physical disability. The advocate should tactfully explore this possibility and if medical evidence reveals the existance of a secondary mental condition, the advocate should file a claim for a secondary mental disorder, the advocate will have a stronger argument for total disability benefits.

In order to apply for IU, a calimant must file a VA form 21-8940, Application for Increased Compensation Based on Unemployability. Veterans' and Advocates should not wait to file claims for IU until the VA sends them this form. Simply send the VA a letter stating that he or she wishes to be considered for IU benefits and to please send all the appropriate forms so that the claim may be perfected.

[mountain tyme]

here is the CFR Title 38 Veterans Affairs

§ 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.

( 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.

[Josephine]

Betty;

U have to apply for UI. If you can hold a job and work well that will disqualify you. They might contact your former employeer and have them fill out form.

I assume your not working.

Sorry to ask his but it appears you waited over 30 years to apply for VA Benefits or did they just play toss your file around that long? Or you did not want to apply? I know my Dad has done the same thing. Refused to apply for VA Disability Benefits (Hurt with Grenade USMC somehow?). I know a lot of Vets do not apply at all. Hopefully they are doing a lot better job with Iraq/War on Terror Vets (Current Mess).

To me they should auto ask if you have job if not and you qualify award 100 or TDIU and avoid the BS.

Wish you luck. Call the 800 number and have them send you out the forms. It should have been in your award package.

Good Luck

Dataman,

No, I sure didn't wait 30 years to apply for compensation. The VA just didn't bother to acquire my " Psychiatric Records" from the St. Louis Archives.

I filed in 1978 and of course now those records are lost, but the re-filing of 1992 has been located, so the BVA Judge did award me back to that date. The counselor at the VA filled out that form when I went down to the R. O. Doesn't seem they locate this either.

I received two C&P's within 5 months of each other and both went into detail about my work history.

Dr. Lsxxx in the second one put it on thicker.

I received the Non- service connected Pension with unemployable back to 1983, now they wish to weasel out of it.

No, I have not worked since 1983, not because I chose to work at home.

Strange about this award. The last C&P that I had in 2005 goes into detail of my work history, but the R.O has failed to acknowledge this.

I received my retro check today. I will place it into one bank on Monday and transfer it on Tuesday.

Thanks,

Betty

[free_spirit_etc]

Amazing - the gruesome twosome and their punching holes in wall story got you a higher rating. ACK!

I would file an NOD for sure: both on the effective date and the rating. Effective date - AT LEAST back to 1983 - when they listed anxiety as one of the aspects of your pension.

For the TDIU claim - you might want to ask the RO to call a CUE on themselves - and see if that goes quicker.

http://www.va.gov/vetapp03/Files/0300890.txt

This situation is unlike that in Roberson v. Principi, 251

F. 3d 1378 (2001).

In Roberson, the United States Court of Appeals for the

Federal Circuit held that when a veteran submits evidence

of a medical disability and makes a claim for the highest

rating possible and additionally submits evidence of

unemployability, the "identify the benefit sought"

requirement of section 3.155(a) has been met and VA must

consider TDIU.

They had AMPLE evidence that you were unemployable - (i.e. your 1983 pension award). So they SHOULD have sent you a TDIU form to fill out. If they did not - the TDIU claim is still PENDING - as it was RAISED by the evidence of record - and they did not send you a form or decide it.

You could also ask them to make a decision on your TDIU claim and cite Roberson.

I would still add that to the NOD - that they did not decide your TDIU claim - but you could also see if it would be a quicker route to ask them to DECIDE it (i.e. remind them that it is still PENDING) or ask them to call a CUE on themselves for ignoring the evidence of record.

IF you send in the form - I would note on it - that the form is PERFECTING your PENDING TDIU claim - that was ALREADY raised in ___ by the evidence of record. (To try to keep them from just acting like the date they got the form was the date you "applied."

And again - with the 1983 thing -- isn't a claim for SC a claim for Pension and vice-versa? In that event - they should go back to AT LEAST 1983 - on the same Theory they went back to 1992 (they hid your records).

Free

[john999]

Remember Betty, you also have the time to hire a lawyer to fight for the early effective dates if the VA keeps throwing you curves. If we are talking about going back as far as the first time you filed a claim that could be big money. If it gets too much get the lawyer to do it. They failed to get records they should have gotten. Is not that a CUE if the VA knew there were records and failed to get them?

I would just do it one step at a time. Get the TDIU. Then start working on EED's and CUE's. You are getting good advice from the other vets here. If the holy man can't go to the mountain the mountain will come to him.