ptsd Tdiu

[cballard]

Does anyone have any thought on this? I don't have a VSO near me.

I am rated 70% PTSD w/ a GAF of 43, 40% cluster symptoms (GWI), and 10% bilateral hearing loss for a total of 80%.

I was denied TDIU 15 APR 09 and reasons for decision states "Entitlement to individual unemployability is denied because the claimant has not been found unable to secure of follow a substantially gainful occupation as a result of service connected disabilities. The veteran is considered capable of gainful employment. {38 CFR 4.16}"

The DVA fact sheet on Individual Employability states that substantially gainful employment is defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.

http://www.vba.va.gov/VBA/benefits/factshe...onnected/iu.doc

In my NOD I have included,

It is also stated under "reasons for decision" for entitlement to individual unemployability that "ON VA examination, you report that you did work for some period of time at a nuclear power plant. However, you quit work in 2005 and state that you were not fired, but simply disagreed with your employer and it was a mutual decision for you to quit." Although it is a true statement that I did work for a period of time at a nuclear power plant (in addition to 14 other places of employment in the 16 years since active duty), the reason for leaving employment is inconsistent with my statement to the examiner. I left employment with the security firm in June of 2005 because I was in the process of divorce proceedings for a third time, and, due to thoughts of suicide, was not comfortable carrying a firearm which was a requirement to perform my duties as a nuclear security officer. I was also not able to maintain the schedule required for that position due to symptoms of service connected disabilities. I left a secure well paying job to seek a work environment more compatible with my symptoms. Subsequently, I was engaged in an employment arrangement as self employed contract labor from 2005 to 2007 which was mutually agreed upon between myself and the contractor to terminate due to excessive absenteeism and substandard work performance as a result of service-connected disabilities, I have not been employed, gainfully or otherwise, since March 30, 2007.

You have failed in your duty to assist in that the incorrect reporting of the examiner may have influenced the outcome of the rating decision as these facts are relevant to my claim and should be considered as evidence pursuant to 38 CFR 4.16(a). "Consideration shall be given in all claims to the nature of the employment and the reason for termination."

38 CFR 4.25 states that "...a person having a 60 percent disability is considered 40 percent efficient". By that established standard, it is contradictory to infer that I am still considered capable of earning a livelihood compared to non-disabled individuals with earnings comparable to the particular occupation in my community with an expectation to perform at 20 percent efficiency as a result of a combined service-connected 80 percent rating.

This logically raises the issue of reasonable doubt. Since it is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent with the facts shown in my case, is a substantial doubt within the range of probability and no evidence satisfactorily disproves the claim, 38 CFR 3.102 states that such doubt will be resolved in favor of the claimant.

I am requesting a "De Novo Review" by a new Decision Review Officer.

It seems that the code they hit me in the gut with is the same code that substantiates my claim.

[etihwr]

John,

If you have worked up claims or been an advocate for veterans you'd know that the DVA was doing it's job. Just because you say something is service connected doesn't make it so. If you have a NEXUS letter, the DVA has to grant SC for your unemployment, thus allowing you to get 100%.

The VA is playing games with you. Like Carlie says you need a statement from a doctor saying that you are unemployable solely due to your SC conditions. I went through something similar. What the VA did with me was to say "Yes, you are unemployable, but it is due to another conditions besides the one you are 70% SC." I used an independent medical examination to rebut this VA contention and got my TDIU. I had already gotten SSD for the SC condition and yet VA was claiming I could not work due to another condition. It seems obvious to me the VA is just going out of their way to deny your IU. They know if they approve you then that's it, so they will let you starve to discourage you, and drive you back into the labor market, and then claim that you are obviously not IU. If you do any work the VA will use this a sign that you are not IU. This is the rock and hard place the VA puts many vets. You might even get a lawyer to help you.

[Pete53]

Is the VA doing its job when it can take years instead of months?

Is the VA doing its job when Veterans have to wait months for routine Medical Tests and treatment?

Is the VA doing its job when there is a back log of many 100's of thousands of claims?

Is the VA doing its job when so many Veterans die before their claim is finished.

I don't think so.

[oldman273]

Hello I had pretty much the same denial letter with my claim as 1 of my SC conditions was the reason I was disabled from my civillian job. I had to take a deep breath as I understood it to be smae old thing over and over again. I wish you the best of luck with your claim...

[cballard]

Hello I had pretty much the same denial letter with my claim as 1 of my SC conditions was the reason I was disabled from my civillian job. I had to take a deep breath as I understood it to be smae old thing over and over again. I wish you the best of luck with your claim...

Thanks Leatherneck, I can use all of the luck I can get at this point. I don't make much of a garrison Marine and not too good at the admin stuff anymore.

Now that I can't work at all though, I don't have anything better to do but sit here and surveil their tactics. The whole process apparently hinges solely on semantics.

I hope all goes well with your claim also. Semper Fi!