tdiu Tdiu

[dolfanbls]

I am 40%SC but am recieveing a Medical retirement from OPM. I am a former VA Employee and was unable to perform my duties as a Biomedical Enginneering Specialist.

Pain Management doctor wrote:

Mr. XXXXX is a paitient who is being seen in my office for various medical conditions. These diagnoses include degenerative disc changes in the lumbar spine atl L4 and L5-S1, as well as chronic radiculopathy in the lumbar spine: low back pain: and deconditioning.

These conditions are permanent in nature and they are not expected to improve signifantly. He does take mediciations to try and with some of the symptoms related to these conditions.

Due to this patients condition, I would recomend that he avoid repetitive bending @ the lumbar spine and avoid lifting greater than 20 lbs. He should avaoid being on his feet 1-2 hours at a time.

I recieved my retirememnt due to Degenerative Arthritus of the spine whick I am service conected for.

Just wondering what my chances would be. I will be putting in for increases on some of my conditions and adding a one for Depresion due to chronic pain.

[rentalguy1]

You don't meet the minimum requirements for TDIU, and the claim would be denied. You need to get your ratings increased, or other conditions sc'd first. You need either a single condition rated at 60%, or a combination of ratings that equal at least 70%, with at least on single disability being rated at 40%.

[Teac]

I am 40%SC but am recieveing a Medical retirement from OPM. I am a former VA Employee and was unable to perform my duties as a Biomedical Enginneering Specialist.

Pain Management doctor wrote:

Mr. XXXXX is a paitient who is being seen in my office for various medical conditions. These diagnoses include degenerative disc changes in the lumbar spine atl L4 and L5-S1, as well as chronic radiculopathy in the lumbar spine: low back pain: and deconditioning.

These conditions are permanent in nature and they are not expected to improve signifantly. He does take mediciations to try and with some of the symptoms related to these conditions.

Due to this patients condition, I would recomend that he avoid repetitive bending @ the lumbar spine and avoid lifting greater than 20 lbs. He should avaoid being on his feet 1-2 hours at a time.

I recieved my retirememnt due to Degenerative Arthritus of the spine whick I am service conected for.

Just wondering what my chances would be. I will be putting in for increases on some of my conditions and adding a one for Depresion due to chronic pain.

I think you have a very good chance of getting TDIU because of your service connected back condition. By reason of you retirement You have already proven that you cannot maintain gainful employment due to your service connected back condition.

In May 199 I was in the same situtation as you. I was working for civil service and reinjured by back (L3-L4, L4-L5, L5-S1) I was already rated 40%. I was forced into a medical retirement, The medical retirement automatically qualified me for TDIU. If any one tells you different they are not reading the rules correctly. Of course the va is going to raise you to 60% before they award TDIU, but you will get TDIU. Be darn sure that you ask for TDIU and submit a copy of your retirement papers showing that you were retired for a servioce connected disability. In my case I was awarded TDIU in less than six months. Read the rules below paying special attention to the items in bold print.

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

[rentalguy1]

Teac, you are 100% correct, that they can award TDIU without meeting the minimum requirements laid out in the reg, but they hardly ever do it. If you were awarded TDIU without first meeting the requirements, then consider yourself lucky. You are the exception to the rule that the VA never gets it right the first time. You don't need to look any further than the BVA decisions to prove this fact.

[john999]

If the VA is going to grant TDIU they will bump you up to at least 60%. The thing is just because you can't do your federal job does not mean you cannot do any gainful employment. I went through this with OPM. I got SSDI which means you can't do any work. That seals the deal. I would apply for SSDI even if it means only 100 bucks a month.

[dolfanbls]

Thanks for the information. I will be checking into the SSDI and an increase in my SC disabilities. I will include the TDUI paperwork when I do this. I have requested a copy of my C File already to see what the VA has used to rate my SC.

[Teac]

If the VA is going to grant TDIU they will bump you up to at least 60%. The thing is just because you can't do your federal job does not mean you cannot do any gainful employment. I went through this with OPM. I got SSDI which means you can't do any work. That seals the deal. I would apply for SSDI even if it means only 100 bucks a month.

John,

My experience was different than yours.

I went through this with OPM and I had an insider at the VA (at the Fort Bragg office), that keep me abreast of everthing. The fact that civil service medically retiires someone and this retirement is due to a service connected disability means the va will have no choice but to decide everytime that the person cannot secure or follow a substantially gainful employment. Reading between the lines, this means that the VA will find that you cannot maintain employment at the same or equal pay, it does not mean that you cannot work. This rule is very specific and unique.

SSDI does not seal the deal. I didn't even get SSD until over a year after I was retired from civil service. And in the case of a force medical retirement if your under FERS you must file for SSD by law, as it will become "part of your retirement pay", if your retirement is under CSRS and you never worked outside of CSRS you will not even be entitled to Social Secirity because under CSRS you did not pay into the system.

TDIU and SSD have nothing to do with the other. I agree in some cases a award of SSD might make it eaiser to get an award of TDIU but it does not really seal any deal. Often times SSD is awarded many months or even years after TDIU. This is because SSD is much harder to get when compaired to TDIU.