Hello Everyone. I have read a number of VA denial decisions on TDIU claims that Veterans have posted on this board and others. A number of these denials are very similar in that VA applies 3.321((1) rather than 4.16(B). However, the manual that VA raters use, M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, to evaluate TDIU claims states:
b. Applying Apply the concept of average impairment in earning capacity to
the Concept determinations of the percentage of disability.
of Average
Impairment Do not apply the concept of average impairment in earning
in Earning capacity to determinations regarding IU.
Capacity
This is consistent with other important rulings regarding this question, in VAOPGCPREC 6-96, as follows:
The Board emphasizes entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(B)(1) and a TDIU extra- schedular rating under 38 C.F.R. § 4.16(B), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(B)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(B) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96.
So, as you can see, my question is "Does VA apply the incorrect 38 CFR regulation to TDIU claims?" It appears that the only thing the raters should do in TDIU claims is determine if a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilties. However, as in my denial for TDIU, the VA rater ignores important evidence that show I am unable to secure or follow a substantially gainful occupation by reason of my service-connected disabilities, only. And, only cites 3.321(B)(1).
It appears to me that VA uses the exceptional or unusual circumstances to make their decisions in every Extraschedular TDIU claim. This might explain why many TDIU claims are denied at the RO level and many Extraschedular TDIU claims never reach the Director of Compensation and Pension Services before going to the BVA and remanded for the Director of C&P's review, first. If VA followed the correct regulation many of these claims could be adjudicated a lot faster and more accurate. By creating this Merry-Go-Round by applying the incorrect regulation, VA has only delayed many of these claims.
How many have received a denial for TDIU, that stated no exceptional or unusual circumstances exists; or simply ignored the evidence that the Veteran is unable to secure or follow substantially gainful occupation by reason of service-connected disabilities?
It just appears to me that VA has created an unnecessary hurdle for Veterans to be granted TDIU. This is only my opinion.
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XVIIIAIRBORNE
Hello Everyone. I have read a number of VA denial decisions on TDIU claims that Veterans have posted on this board and others. A number of these denials are very similar in that VA applies 3.321((1) rather than 4.16(B). However, the manual that VA raters use, M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, to evaluate TDIU claims states:
b. Applying Apply the concept of average impairment in earning capacity to
the Concept determinations of the percentage of disability.
of Average
Impairment Do not apply the concept of average impairment in earning
in Earning capacity to determinations regarding IU.
Capacity
This is consistent with other important rulings regarding this question, in VAOPGCPREC 6-96, as follows:
The Board emphasizes entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(B)(1) and a TDIU extra- schedular rating under 38 C.F.R. § 4.16(B), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(B)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(B) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96.
So, as you can see, my question is "Does VA apply the incorrect 38 CFR regulation to TDIU claims?" It appears that the only thing the raters should do in TDIU claims is determine if a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilties. However, as in my denial for TDIU, the VA rater ignores important evidence that show I am unable to secure or follow a substantially gainful occupation by reason of my service-connected disabilities, only. And, only cites 3.321(B)(1).
It appears to me that VA uses the exceptional or unusual circumstances to make their decisions in every Extraschedular TDIU claim. This might explain why many TDIU claims are denied at the RO level and many Extraschedular TDIU claims never reach the Director of Compensation and Pension Services before going to the BVA and remanded for the Director of C&P's review, first. If VA followed the correct regulation many of these claims could be adjudicated a lot faster and more accurate. By creating this Merry-Go-Round by applying the incorrect regulation, VA has only delayed many of these claims.
How many have received a denial for TDIU, that stated no exceptional or unusual circumstances exists; or simply ignored the evidence that the Veteran is unable to secure or follow substantially gainful occupation by reason of service-connected disabilities?
It just appears to me that VA has created an unnecessary hurdle for Veterans to be granted TDIU. This is only my opinion.
Airborne!
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