Need Experts For This One

[Dale Jr. 8]

I received my SOC today in the mail.I am appealing a Jan 08 decision. I sought a higher percentage for my lower back and received it. I also sought a 10% rating for my right ankle and received it. I sought a rating for my sciatica and it was denied. In the Jan 08 decision all 3 were denied. They also denied I/U. My question is that if I am 40% for lower back, 30% for neck, 10% for lt. ankle, 10% for rt. ankle and 10% for depression shouldn't they have awarded me I/U based on 1 didibility at 40% and a combined rating of 70%? Also I am currently receiving disability social security for only service connected disabilities. The VARO quoted some garbage about how the SSA decisions are not controlling for them. Am I way off base here? I am planning to ask for a hearing in hopes of clearing this up without having to go to the BVA and wait 3 years for the results of that. At least I got something positive out of the DRO review. Thanks

[john999]

No, I don't think you are off base at all. You are totally disabled due soley to your SC conditions. If you are rated 70% and have SSD then the VA is just stalling. They did the same thing to me. Did your doctor say that you were unemployable due to your service connected conditions? Why did they deny the TDIU? What were their exact reasons? With me it was because I also has a NSC condition, and although I was 70% the VA tried to say my unemployability was due the the NSC condition. I won in the end via a DRO.

[Dale Jr. 8]

Thanks John999, I thought I was on the right track.

[Dale Jr. 8]

No, I don't think you are off base at all. You are totally disabled due soley to your SC conditions. If you are rated 70% and have SSD then the VA is just stalling. They did the same thing to me. Did your doctor say that you were unemployable due to your service connected conditions? Why did they deny the TDIU? What were their exact reasons? With me it was because I also has a NSC condition, and although I was 70% the VA tried to say my unemployability was due the the NSC condition. I won in the end via a DRO.

They denied TDIU based on the fact that they only considered my lower back at 40% and my depression at 10%. They never even factored in the lt and rt ankle at 10% each and my neck at 30% On one page of the SOC they say that I have a combined 70% and on another page( conviently the TDIU page)after only considering the back and depression they say I don't meet the criteria because I am only 50%. I think the VARO Winston-Salem N.C. has to be one of the most screwed up VARO's around.

[rentalguy1]

You need to write a VA Form 21-4138 to them and tell them they need to CUE themselves immediately. Be sure to quote the appropriate TDIU regs, and the actual ratings and combined ratings that they have awarded you from your SOC.

[jbasser]

Cut and paste the text below as it will assist you in the 21-4138 as Shane suggested. They have a negative attitude and need it adjusted. The Regs are the adjusters.

Good luck and keep on hammering.

J

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§ 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)

( 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]

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