tdiu Poll - Did You Get Tdiu With Depression At 30%?

[cowgirl]

Say a vet has several service connected issues depression already rated 30% and is on ssdi for SC physical conditions.

Tdiu is awarded due to mental health examiner opinion that all these do cause the vet to be unemeployable. No mention of ssdi, not sure if that is normal.

Question: Does the 50% in the rating schedule seem to say 'unemployable' basically unable to work?

thanks for your thoughts.

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial,

circumlocutory, or stereotyped speech; panic attacks more than once

a week; difficulty in understanding complex commands; impairment

of short- and long-term memory (e.g., retention of only highly learned

material, forgetting to complete tasks); impaired judgment; impaired

abstract thinking; disturbances of motivation and mood; difficulty in

establishing and maintaining effective work and social relationships ............... 50

Occupational and social impairment with occasional decrease in work

efficiency and intermittent periods of inability to perform occupational

tasks (although generally functioning satisfactorily, with routine

behavior, self-care, and conversation normal), due to such symptoms

as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or

less often), chronic sleep impairment, mild memory loss (such as

forgetting names, directions, recent events) 30

Edited February 10, 2010 by cowgirl

[jerrbilly]

Only 100% has total occupational disabled in it. Worded differently though. But at 70% he may be declared unemployable which essentially means he's totally disabled for work. Even at 50% he may be declared unemployable if he has another condition or conditions that brings his rating up to 70%.

50% is only reduced reliability in work even though I have heard of a few very rare cases a vet was award TDIU with 50%. It would take special consideration to achieve this though.

Say a vet has several service connected issues depression already rated 30% and is on ssdi for SC physical conditions.

Tdiu is awarded due to mental health examiner opinion that all these do cause the vet to be unemeployable. No mention of ssdi, not sure if that is normal.

Question: Does the 50% in the rating schedule seem to say 'unemployable' basically unable to work?

thanks for your thoughts.

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial,

circumlocutory, or stereotyped speech; panic attacks more than once

a week; difficulty in understanding complex commands; impairment

of short- and long-term memory (e.g., retention of only highly learned

material, forgetting to complete tasks); impaired judgment; impaired

abstract thinking; disturbances of motivation and mood; difficulty in

establishing and maintaining effective work and social relationships ............... 50

Occupational and social impairment with occasional decrease in work

efficiency and intermittent periods of inability to perform occupational

tasks (although generally functioning satisfactorily, with routine

behavior, self-care, and conversation normal), due to such symptoms

as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or

less often), chronic sleep impairment, mild memory loss (such as

forgetting names, directions, recent events) 30

[Wings]

x

x

x

The Two-Step Analysis to Qualify for a TDIU Rating

See http://www.lexisnexis.com/veteranslaw/imag...mplesection.pdf

[jbasser]

Great post Adora.

J

[jerrbilly]

According to this, part-time work is ok as long as it's under the poverty threshold. Not sure if I would take the risk though...Which VBM edition is this?

Nice post

In Roberson v. Principi,18 the Federal Circuit held that the Court of Appeals for Veterans

Claims misconstrued the term “substantially gainful occupation” to mean that the veteran had to

prove that he was “100% unemployable.” The Court concluded that the plain language of the

regulation does not require such a showing.19 The Court stated that:

[r]equiring a veteran to prove that he is 100 percent unemployable is different than requiring

the veteran to prove that he cannot maintain substantially gainful employment. The use of

the word “substantially” suggests an intent to impart flexibility into a determination of the

veteran’s overall employability, whereas a requirement that the veteran prove 100 percent

unemployability leaves no flexibility. While the term “substantially gainful occupation”

may not set a clear numerical standard for determining TDIU, it does indicate an amount

less than 100 percent.

x

x

x

The Two-Step Analysis to Qualify for a TDIU Rating

See http://www.lexisnexis.com/veteranslaw/imag...mplesection.pdf

Edited February 11, 2010 by jerrbilly

[cowgirl]

Wings excellent post for 'two step analysis to qualify for a tdiu rating' !

Sorry to the board for any confusion in my question.

Restated: "was awarded tdiu but with mental health rating 30%. Should this have been increased?" Decision for tdiu based on mental health examiner opinion.

difficulty in establishing and maintaining effective work and ............... 50

occasional decrease in work efficiency................30 (portions of mental health rating schedule)

Edited February 11, 2010 by cowgirl

[Tbird]

The Law on TDIU

http://edocket.access.gpo.gov/cfr_2008/julqtr/38cfr4.16.htm

[Code of Federal Regulations] [Title 38, Volume 1] [Revised as of July 1, 2008] From the U.S. Government Printing Office via GPO Access [CITE: 38CFR4.16] [Page 366] TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS PART 4_SCHEDULE FOR RATING DISABILITIES--Table of Contents Subpart A_General Policy in Rating Sec. 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]