To File Or Not To File?

[rese]

OK, my fellow Vets and friends, I need you insight as I hope to learn if IU is a realistic option to apply for or not. I am 30% sc for pain and scars from hemangioma (blood tumors) of dominant hand, wrist and forearm.

I filed a NOD as 2 MRIs now show condition as "very extensive" and worsened so that writing, typing, lifting and meds side effects are very problematic--all documented.

Also, the records clearly state the disease tumors as recurrent, active, progressive, debilitating, inoperable, permanent, degenerative and excruciatingly painful. what are my chances if I file for IU?

your thoughts on "loss of use"?

will they push Voc Rehab?

Thank you for your expertise

rese

[Guest DON20906]

Your chances of getting TDIU are nil until you have a single 60% rating or a combined multiple disability rating of 70% with one at least 40%. That's the bare minimum. Once you have the rating, VA is supposed to "invite" you to apply for IU. Actually, they are supposed to adjudicate the issue automatically, but seldom do.

I don't think VA really "pushes" VocRehab; at least not as an alternative to IU. You will qualify for VocRehab at 30% if one of VA's VocRehab counselors evaluates you and says you have an "employment handicap." Veterans awarded 100 percent disability compensation based upon unemployability may still request an evaluation. If they are found eligible, they may participate in a VR&E program and receive help in getting a job. VA continues to pay 100 percent disability compensation to a veteran who secures employment under the special program until the veteran has worked continuously for at least 12 months. Generally, veterans must complete a VR&E program within 12 years from their separation from military service, or 12 years from the date VA notifies them that they have a compensable SC disability.Depending on the length of program needed, veterans may be provided up to 48 months of full-time services or their part-time equivalent. These limitations may be extended in certain circumstances, such as veterans with serious employment handicaps may be granted extensions of eligibility termination date and/or additional months of benefits.

OK, my fellow Vets and friends, I need you insight as I hope to learn if IU is a realistic option to apply for or not. I am 30% sc for pain and scars from hemangioma (blood tumors) of dominant hand, wrist and forearm.

I filed a NOD as 2 MRIs now show condition as "very extensive" and worsened so that writing, typing, lifting and meds side effects are very problematic--all documented.

Also, the records clearly state the disease tumors as recurrent, active, progressive, debilitating, inoperable, permanent, degenerative and excruciatingly painful. what are my chances if I file for IU?

your thoughts on "loss of use"?

will they push Voc Rehab?

Thank you for your expertise

rese

[Berta]

I totally disagree will all due respect Don-

My husband had 30% PTSD and was awarded 100% PTSD P & T ,3 years after he died.

I helped a NSC vet get TDIU SC PTSD in an astonishing 4 months some time ago.

The private medical records he had were all that VA needed to make this award.

I believe that a vet should never wait for VA to determine when they will consider TDIU.

I have sent numerous TDIU forms for vets to attach to NODs regarding 30 or 50% ratings.

Regardless of their VA rating if their disabilities due to service prevent them from being substantially employed -I say- send in the TDIU form- and make sure VA knows of any side affects of VA meds that render one unemployable as well as if the VA has ever turned them down for Voc Rehab- ie: they are 'unvocrehabable' so therefore unemployable.

Also there are vets getting SSA solely for an SC condition and these vets should not hesitate -regardless of what their VA rating is- to ask for TDIU.

Years ago service officers- well they still do it -often tell vets they cant apply for TDIU if their SC rating is lower than 70. Guess they dont want to go to the trouble of giving the vet the TDIU form.The chances in many cases is that the vet should probably be rated higher anyhow.

This vet got TDIU with a 60%rating - a great example of a CUE claim:

http://www.va.gov/vetapp01/files02/0117428.txt

One of our members here- Flip- got a vet who they had proposed to reduce to "0"-from 40% I believe, Flip helped him and he got TDIU.

To get back to my husband- 30%-he applied for high rating in 1992. As I said the award came in 1997-

he had been dead for 3 years.

SSA had awarded him total disability due to PTSD as of Nov 1991.

Regardless what vet reps told us-( he was only 30%SC - so dont bother) I got a TDIU form and he filled it out. On the form we noted that he was 100% PTSD from SSA and we attached the award letter.

The VA at that time was going through a brouhaha over Washington V Derwinski and similiar cases at COVA.

These COVA decisions (precedental) clearly showed in the 1990s that SSA determinations were to be fully considered by VA.I sent the VA these decisions in support of his claim.

In Rod's case they refused to get his actual SSA records and then told 2 Senators and my Congressman that SSA refused to send them to the VA. This became an out and out battle for us-and the congressional inquiries took so long that he died and never saw his 100% VA award letter.

He also had significant medical reports from a VA psychologist, and VA psychiatrist, 6-7 results of

MMPI, Wexchler, Hand, etc- the whole shrink battery of tests, hospitalizations for PTSd, etc etc - a complete picture of 100% PTSD - GAF 26 or 34 I forget-from records dated 1983- He was one of first PTSD vets after they 'invented' the PTSD diagnosis due to severe anxiety reactions in returning Vietnam vets.

It was because of this miserable ordeal he had with the VA that I became a claims advocate-

what we did not know all this time was that the VA had malpracticed on him medically and he should have lived long enough to see his 100% award. He filed a Sec 1151 himself in 1992 predicting his own death but

they ignored that claim until I reopened it and filed under FTCA.

I have present claims and I still get angry when I read their internal reports when I filed FTCA for wrongful death. Those medical reports are chilling.

After the 100 SC % PTSD award letter came, the VA also awarded Section 1151 DIC to me because their crappy med care had "hastened" his death.

I had a NSO who told him he had no chance to get 100% because he only had 30%- WRONG- and the same NSO told me I would never succeed under FTCA or the Sec 1151 claim -WRONG-

At the DAV lawyer's office -when I wiped out my award letters -my NSO sure changed his tune-

I regret this long post- I have seen incorrect info here as to CUE claims lately-in spite of attempting to correct the information the person continues to state DTA and Benefit of Doubt can be used to support a CUE claim- this is incorrect and any CUE filed on those bases will fail.

I feel your advise regarding the criteria for TDIU is wrong and not supported by any know VA case law.Yes the 70% part is right -in that it should trigger VA to send the form-but a vet can apply for TDIU regardless of their rating and receive it- if the medical evidence supports it.

The 21-8940 form itself has absolutely no conditional statement telling a vet they must be a certain SC percentage before they can get a TDIU award.

I was prepared to fight them all the way regarding the NSC vet I had-as mentioned above-but his evidence was attached to the 21-8940 and they had no way not to award TDIU.I would have soundly made the point about the 21-8940 is not conditional to any SC rating nor is any VA case law--but I didnt have to fight this.

I have another one too- they recently gave him 40% -they owe him 100%.We recently attached the TDIU right to his NOD on the 40%.He WILL receive TDIU as his medical evidence -well beyond the 40% -totally supports that rating.They owe him SMC too and we spelled that out in the NOD.

Edited May 12, 2006 by Berta

[Guest DON20906]

Bertha:

Where did I say he shouldn't file for IU? The question was was he likely to get it at 30%? The answer to that is no. Paragraph (:( does give the RO the ability to petition for waiver of the minimums to the Director of C&P Service in Washington, but those cases are few and far between.

38 CFR 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)

(:( 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.

© [Removed. See 61 FR 52695, 52700, Oct. 8, 1996.]

Source

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990, as corrected at 58 FR 39664, July 26, 1994; 61 FR 52695, 52700, Oct. 8, 1996]

Notes

[EFFECTIVE DATE NOTE: 61 FR 52695, 52700, Oct. 8, 1996, which removed paragraph ©, became effective Nov. 7, 1996.]

I totally disagree will all due respect Don-

My husband had 30% PTSD and was awarded 100% PTSD P & T ,3 years after he died.

I helped a NSC vet get TDIU SC PTSD in an astonishing 4 months some time ago.

The private medical records he had were all that VA needed to make this award.

I believe that a vet should never wait for VA to determine when they will consider TDIU.

I have sent numerous TDIU forms for vets to attach to NODs regarding 30 or 50% ratings.

Regardless of their VA rating if their disabilities due to service prevent them from being substantially employed -I say- send in the TDIU form- and make sure VA knows of any side affects of VA meds that render one unemployable as well as if the VA has ever turned them down for Voc Rehab- ie: they are 'unvocrehabable' so therefore unemployable.

Also there are vets getting SSA solely for an SC condition and these vets should not hesitate -regardless of what their VA rating is- to ask for TDIU.

Years ago service officers- well they still do it -often tell vets they cant apply for TDIU if their SC rating is lower than 70. Guess they dont want to go to the trouble of giving the vet the TDIU form.The chances in many cases is that the vet should probably be rated higher anyhow.

This vet got TDIU with a 60%rating - a great example of a CUE claim:

http://www.va.gov/vetapp01/files02/0117428.txt

One of our members here- Flip- got a vet who they had proposed to reduce to "0"-from 40% I believe, Flip helped him and he got TDIU.

To get back to my husband- 30%-he applied for high rating in 1992. As I said the award came in 1997-

he had been dead for 3 years.

SSA had awarded him total disability due to PTSD as of Nov 1991.

Regardless what vet reps told us-( he was only 30%SC - so dont bother) I got a TDIU form and he filled it out. On the form we noted that he was 100% PTSD from SSA and we attached the award letter.

The VA at that time was going through a brouhaha over Washington V Derwinski and similiar cases at COVA.

These COVA decisions (precedental) clearly showed in the 1990s that SSA determinations were to be fully considered by VA.I sent the VA these decisions in support of his claim.

In Rod's case they refused to get his actual SSA records and then told 2 Senators and my Congressman that SSA refused to send them to the VA. This became an out and out battle for us-and the congressional inquiries took so long that he died and never saw his 100% VA award letter.

He also had significant medical reports from a VA psychologist, and VA psychiatrist, 6-7 results of

MMPI, Wexchler, Hand, etc- the whole shrink battery of tests, hospitalizations for PTSd, etc etc - a complete picture of 100% PTSD - GAF 26 or 34 I forget-from records dated 1983- He was one of first PTSD vets after they 'invented' the PTSD diagnosis due to severe anxiety reactions in returning Vietnam vets.

It was because of this miserable ordeal he had with the VA that I became a claims advocate-

what we did not know all this time was that the VA had malpracticed on him medically and he should have lived long enough to see his 100% award. He filed a Sec 1151 himself in 1992 predicting his own death but

they ignored that claim until I reopened it and filed under FTCA.

I have present claims and I still get angry when I read their internal reports when I filed FTCA for wrongful death. Those medical reports are chilling.

After the 100 SC % PTSD award letter came, the VA also awarded Section 1151 DIC to me because their crappy med care had "hastened" his death.

I had a NSO who told him he had no chance to get 100% because he only had 30%- WRONG- and the same NSO told me I would never succeed under FTCA or the Sec 1151 claim -WRONG-

At the DAV lawyer's office -when I wiped out my award letters -my NSO sure changed his tune-

I regret this long post- I have seen incorrect info here as to CUE claims lately-in spite of attempting to correct the information the person continues to state DTA and Benefit of Doubt can be used to support a CUE claim- this is incorrect and any CUE filed on those bases will fail.

I feel your advise regarding the criteria for TDIU is wrong and not supported by any know VA case law.Yes the 70% part is right -in that it should trigger VA to send the form-but a vet can apply for TDIU regardless of their rating and receive it- if the medical evidence supports it.

The 21-8940 form itself has absolutely no conditional statement telling a vet they must be a certain SC percentage before they can get a TDIU award.

I was prepared to fight them all the way regarding the NSC vet I had-as mentioned above-but his evidence was attached to the 21-8940 and they had no way not to award TDIU.I would have soundly made the point about the 21-8940 is not conditional to any SC rating nor is any VA case law--but I didnt have to fight this.

I have another one too- they recently gave him 40% -they owe him 100%.We recently attached the TDIU right to his NOD on the 40%.He WILL receive TDIU as his medical evidence -well beyond the 40% -totally supports that rating.They owe him SMC too and we spelled that out in the NOD.

[rese]

OK Berta, DON20906, Vets & Friends at HADIT,

Thank you for your rapid input and quality responses. I think the two viewpoints presented thus far have a high degree of contrast. On one hand, Berta, I believe, is looking at this question of IU primarily from a subjective perspective. On the other hand, DON20906 is primarily objectively quoting the Regs. The regulations are clear regarding the % qualification cutoffs; this is why I provided a combination of subjective and objective data for a weighing of the preponderance of the evidence given here. On balance, what I am trying to get at is an idea of what to may happen as they synthesize this documented subjective and objective evidence I presented here. Can you opine as you consider the evidence objectively and subjectively? I understand the reasonableness of extraschedular is, in fact, not too reasonable, therefore, as VA considers the NOD...

1. If I apply, might the evidence raise and promote a satisfactory rating for TDIU?

2. Your thoughts on "loss of use"?

3. If this was you, and you applied for and were denied TDIU, how effective do you think a VocRehab program could be?

Berta, your experience and ordeals are extraordinary!

Thank you for your expertise

rese

[Guest DON20906]

This thread is making me INSANE!

The preponderance of the evidence standard of proof applies to the evidence on the desk of the person(s) making the decision. In civil law that would be the trier of fact...a jury or a judge in a bench decision. In veterans law it is the Rating Veterans Service Representative or the Veterans Law Judge in an appeal.

Subjective and objective assesments of what you, Berta or I think is IRRELEVANT!

When all the evidence is in and the RVSR sits down and looks at it and holds it up to the law and sees that there are two medical opinions that say you should be SC for poor hygiene because you stink like tunafish now and you got a GI shower with bug spray at Fort Smeege in 1979 and two more that say in the service you smelled like roses on a warm summer day and today your privates* smell so good if you through them up in the air they'd turn into sunshine...that's EQUIPOISE! THEN the Benefit-of-the-Dobut Rule applies.

You don't understand the Benefit-of-the-Doubt principle. It's a legal standard, not what you and Berta and, no not me, would like it to be.

* Paraphrasing the late Redd Foxx He said "pusssy"...lhehehhehe...ook I'm relly drunk l mjy tiping is giuomg to to sht.

ITS FRIDAY!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

[rese]

DON20906,

What can I say? Well, I can say some here a sort of informal experts that opine within their expertise, not pretending to be RVSRs but contributors of positive or negative advice based on what they are given--no more, no less.

Thank you for your input.

rese