tdiu 80% And Struggling...

[maine1963]

Ok, started my claim for my back injury in oct 2007. In Feb 2008 I was awarded 60% Comp. (*of note I was also awarded my Social Security Disability in Jan 2008).

The money finally came in... But I am STILL not able to work.

I submitted an additional claim for my left and right legs (weakness, numbness, tingling...) and my left and right hip problems. Also in this claim I requested Unemployability.

I was awarded a total of 80% Comp disability from the VA, (started this second claim in March 09 and final decision came in June 09). BUT I was DENIED my Unemployability. Reason was that the VA could not figure out if there was something other than my back, legs and hips claims that was causing my not being able to perform gainful employment.

My question is: Do I appeal and fight for a couple of years?? Or - do I simply file another claim for increased back pain / leg weakness? Perhaps if I do file for added pain / limited movement I will receive 100% permanent and total Comp?? After all, I am at 80% now...

I fell down the engine room ladder and fractured one of my vertebrae back in 1985. It has taken its toll on me over the years and now (after two surgeries) I walk with a cane / walker at an angle!

Any suggestions would be great.

[vaf]

I wrote the following for a veteran I knew who had MS, and was initially rated 60%. He was denied IU, but we asked for a DRO review, which brought him to 70% (he had also applied for S/C for other conditions) and TDIU was awarded that was made permanent and total, back to the original date of claim two years before. The nature of the disability doesn't matter, I want to place the focus more on the legal arguments. You may want to use some or all of this, if it helps. Also, if any of your service connected disabilities forced your early medical retirement from the military, add that to your letter. In this gentleman's case, they did.

Dear Sir:

Please consider this a request for a DRO review of your decision to deny my application for Total Disability Individual Unemployability (TDIU). In the event the DRO upholds the denial, please consider this my formal Notice of Disagreement filed within one year of the decision to deny service connection.

I have (list your service connected disabilities) currently rated at 80% schedular in the aggregate, that qualified me for Social Security Disability because of my inability to work (I have requested that copies of my Social Security Disability Claims file be forwarded to your office). The evidence submitted to the Social Security Administration is the same evidence that was under consideration at the VA Regional Office (hereafter referred to as VARO), and which previously provided the grounds that forced my medical retirement from the military.

A total disability rating based upon individual unemployability (TDIU) will be assigned “when there is present any impairment in mind or body which is sufficient to render it impossible for an average person to follow a substantially gainful employment.” See 38 C.F.R. § 3.340 (a) (1995); Fluharty v. Derwinski, 2 Vet. App. 409, 411 (1992); Hatlestad (I) v. Derwinski, 1 Vet. App. 164, 165 (1991). The BVA must consider the effects of the veteran’s service-connected disability or disabilities in the context of his or her employment and educational background. See Fluharty, supra, at 412-13; Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Hatlestad (I), supra, at 168.

Regarding my claim for TDIU, I believe that that the VARO did not meet its obligation under 38 C.F.R., § 3.155 (a) which obligated it to consider me for TDIU status upon my initial date of claim. I point to the following as evidence that the VARO, when considering the totality of my disabilities, disregarded the following legal precedent in that a claim for TDIU does not require the veteran to ask for that specific claim, when evidence exists that should have brought that conclusion to the VA on its own:

Once 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 38 C.F.R. §3.155(a) is met and the VA must consider TDIU. Roberson v. Principi, 251 F.3d 1378, 1384 (2001) citing Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (mandating the development of a claim to the optimum, which requires the VA to determine all claims raised by the evidence, and to apply all relevant laws and regulations “regardless of whether the claim is specifically labeled as a claim for TDIU.).

 

I have not been able to maintain “substantially gainful employment” under 38 C.F.R. § 4.16 b as defined by the Court of Appeals for Veterans Claims as the ability to earn “a living wage.” Bowling v. Principi, 15 Vet. App. 1,7 (2001) quoting Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991. The Faust Court held that a person is engaged in a substantially gainful occupation” when that occupation “provides annual income that exceeds the poverty threshold

for one person.” Bowling supra, quoting Faust v. West, 13 Vet. App. 342, 355-56 (2000); see also Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (the substantially gainful employment language in 38 C.F.R. § 3.340 (a)(1) (1983) does not mean the veteran has to be 100% unemployable to qualify for TDIU). I believe that the medical evidence before the VARO at the initial date of claim provided ample justification for the VARO to implement the provisions of 38 C.F.R. § 3.340 (a) (1995).

Regarding any possible denial of this claim, I respectfully remind the VARO that a TDIU claim may not be rejected without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” Bowling v. Principi, 15 Vet. App. 1,9 (2001) (emphasis in text) quoting Beaty v. Brown, 6 Vet. App. 532, 539 (1994) citing see also James v. Brown, 7 Vet. App. 495, 497 (1995) (“Board ‘was not convinced that there were not some jobs he could do’ but no evidence supported that conclusion”).

In addition, “An unequivocal professional opinion… that the veteran was unemployable is not an evidentiary prerequisite to a … TDIU rating.” Bowling v. Principi, 15 Vet. App. 1, 9 (2001) quoting Beaty v. Brown, 6 Vet. App. 532, 537-39.

Finally, the Court of Appeals for Veterans Claims has held that while not binding on the BVA, the Social Security ALJ determination of unemployability must be considered with other evidence presented by the veteran. See Washington v. Derwinski, 1 Vet. App. 459, 465 (1991).

This concludes my statements regarding my claim for TDIU status.

[jbasser]

Brother, what is up with those Naval Ladders going below decks. I took the same trip you did many years ago with an assist from an enraged wanna be levanworth resident.

Here is how you turn the tide on your claim.

Your SSA disability. Get a copy of the medical conditions you are receiving benefits for. The BAck and legs, I take the legs are from radiculpathy from the efected nerves.

File a NOD, Do that now. State the VA erred because they did not consider the evidence listed as it is actually service conected conditions causing you to receive SSDI. Demand they reconsider it.

Show them the ssa conditions. Go see your family doc and show him the conditions you are scd for and get an opinion that SC conditions preclude you from employment. He needs to view both lists. have him state he reviewed your total evidence record.

When they send the SOC to youask for a DRO review. They are just yanking your chain just because they want to screw with your head and the plain fact that they can and will do this.

Dont get dejected, get motivated then get even.

J

Edited September 21, 2009 by jbasser

[Testvet]

needless to say the VARO's move in strange manners when it comes to SS records in my case the SS Agency used my VA medical records on my heart disease which was submittted in October 2002 after a heart cath supposedly the gold standard for cardiac medical tests it showed a 25% left ejection fraction and 2 bypasses closed off and not repairable with new surgery SSD was approved in 4 months based just on VA records, VA denies my claim in July 2003 and in April 2009 BVA awards the claim secondary to PTSD they then use the same records and rate me at 60% for CAD despite the fact I have been on SSD for the same thing since June 2002 when I quit working check started in Dec 2002 5 month waiting period.....it's a waste of time now to appeal since I am SMC S so there is no incentive to appeal to get the 100% as long as the CAD is rated when I die from heart problems my wife will get DIC and keep her CHAMPVA that is the only thing that really matters, but the VA Regional offices really suck when it comes to decisions involving the SSD and the same medical issues it is ludicrous they can't even make the same determination based off the same records and they wonder why the military and the VA have such a hard time with record swaps

[oldman273]

Hey VAF that was a great letter. I plan on running it by my Service rep in the Capital this next week as I go to try and get him to straighten out my current claim that has been monkeyed around with by 3 different clerks. I would ask of anyone there considering the letter you had what kind of chance do I have for TDIU when one of the 2 reasons I was disabled from SSDI was a SC condition? Just a question within a thanks for the letter. Have a good evening....

[vaf]

To try to answer your questions, this is my understanding (again, someone will chime in if I've got something wrong here):

The VA will consider to what extent the service-connected disability alone contributes to your inability to work, for compensation purposes (not means tested). If you suffer from two disabilities, one service-connected and one not service-connected, the service connected disability must normally be found to be at least 70% disabling to warrant a rating for TDIU, unless the veteran is granted TDIU on an extra schedular basis, according to the procedures set forth in 38 C.F.R. §4.16, for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a).

The VA should also look at the non-service connected disability for pension (not compensation) purposes, which of course is means tested. If the service-connected disability is enough in its own right to cause the veteran's unemployability, then he/she can better defend the TDIU application.

If, by chance, the non-service connected disability is caused by the service-connected disability, the veteran should apply for service connection for the disability that has not yet been granted service connection. This is especially true, for instance, when service-connected lumbar spine problems cause leg, knee and foot problems as secondary outcomes of the spine problem. These secondary disabilities should then be rated as service-connected, as well.

Regarding the letter, I hope this works for you. I know it did for one veteran. If it provides better ammunition to defend your claim than anything you've been given by your various VSO's to date, you may just want to send it in and make sure your rep gets a copy. Your call, of course.

[carlie]

Roy,

Being a new member, your post may not show up right away.

Wait a day or so before reposting about the same information.

Thanks,

carlie