tdiu § 4.16 Total Disability Ratings For Compensation Based On Unemployability Of The Individual.

[allan]

e-CFR Data is current as of April 28, 2009

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 4—SCHEDULE FOR RATING DISABILITIES

Subpart A—General Policy in Rating

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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) (b) 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]

Source: http://ecfr.gpoaccess.gov/cgi/t/text/text-....11&idno=38

[Berta]

I think you yourself are missing the boat here etihwr-Pete has been in the veterans community for over 20 years-

If the medical evidence warrants TDIU then- after receipt of the TDIU form 21-8940 the VA is supposed to consider and award TDIU as soon as they get the medical evidence.

I cannot stress this point enough because even many vet reps dont get it-

I have proof this is a fact-

It does not matter what % SC or whether VA has even awarded any % SC yet- if a vet is unemployable due to SC they can get TDIU.

[Berta]

Right Philip-thanks for the support here-

VACO can make extraschedular TDIU or 100% award but in my husband;s case and the NSC vet I helped-

The awards of 100% came from the VARO, not VACO.

If the medical evidence warrants TDIU (which could come from SSA award or private doctors statements and records,) the vet will get TDIU after formal appication with the 8940-

If VA Voc Rehab states on paper the vet's SCs whether even at 10% render him/her unable to be Voc Rehabable- the vet can apply for and get TDIU.

I believe this appears now in the annual VBM by NVKSP because I spoke to their lawyers in DC about this point some years ago. as to the voc rehab.

[Berta]

I mean NVLSP NAtional Veterans Legal Services Program-

they have provided my advocacy training since 1991.

[Philip Rogers]

Back around 2001 I assisted a vet in getting TDIU, for a skin condition. Since about 1988 he'd been getting denied for anything higher, including TDIU, w/the VA stating that the skin condition carried a maximum of 50%, which was correct. He'd even been to his congressman, twice, and the VA kept stating that 50% was the highest he could receive. I did his claim and about a year later he was awarded TDIU, w/retro 3 yrs, w/P&T, by the VACO. I wanted to appeal the decision, for the other 10 yrs or so, but he stated he was satisfied and didn't want to rock the boat and chance losing what he'd received.

pr

[Berta]

That is fabulous Philip-

NVLSP makes this point and I am pretty sure there are a few cases like this at the VA.

A skin condition or any facial disfigurement can be rated too low when the reality is that this type of condition can often prohibit employment and they need to award TDIU.

The first vet I met at the Vet center in NJ called me before I came in to meet the vets as he wanted me to know due to tanker accident in Vietnam his face injury was very startling (also 2 PHS)and also he walked funny. I felt like I already knew him by phone.

When I got there it was easy to know who he was-he did have a major facial disfigurement-

but he looked great to me- I gave him a big hug and we became good friends-

he took me to the mall a few times and people would stare and even pull their kids away from him-

how hurtful that was-a highly decorated Vietnam Veteran-this man is still special to me-

but even without the other TDIU disabilities this facial problem alone

would preclude any employment.

Thanks for helping this vet Philip- you do fabulous work-

I have learned alot from you.

[john999]

I read in VBM that a vet who has a foot problem that creates a foul smell even if he is only 20% could be considered IU if the foot smell makes it impossible for him to get employment. The VA always falls back on the percentages when they want to deny an IU claim even if the vet has proof he can't work. Then they turn around and tell a 90% vet that he can't get IU because he does not have indisputable evidence that he can't work. The whole thrust of the IU regs is that if you can't work due to SC condition you are entitled to IU. That is why IU regs were created to help the vets who are not 100% but because of their disabilies can't work.