tdiu Tdiu

[SLEDGE]

I keep running off at the mouth about how the percentages are not the only determining factor in a TDIU award.

When reading 416b we discover the percentages are really just a scapegoat, an excuse, not a reason.

My lawyer successfully argued this point in my case.

In the decision on my case the RO had expounded upon 416a and failed to mention 416b.

I received TDIU in the decision but, they used the wrong standard by failing to mention 416b, which overrules the (a) part.

416b trumps 416a and therefore controls.

Check it out below.

sledge

§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(a))

(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]

Edited June 3, 2010 by Pete53

[Pete53]

Sledge:

I edited your post to turn of the smilies )so that your B would be a B and not :;)

It has been my personal experience that the VA does not read the second part of a lot of regulations. The B gave me SMC S or 300 bucks more a month.

Sometimes I am ok with the VA but sometimes they just irritate the hell out of me and the sorry meatheads should love Veterans cause that is how they got their job.

Sorry for the rant

Edited June 3, 2010 by Pete53
Fix a typo

[dav_marine72]

Yes it's another way they don't impliment the grant the Veteran the most possible benefits under the law.

What would be interesting to see is if any Vet ever recieved TDIU under b without a lawyer. I'd tend to think not but who knows.

I keep running off at the mouth about how the percentages are not the only determining factor in a TDIU award.

When reading 416b we discover the percentages are really just a scapegoat, an excuse, not a reason.

My lawyer successfully argued this point in my case.

In the decision on my case the RO had expounded upon 416a and failed to mention 416b.

I received TDIU in the decision but, they used the wrong standard by failing to mention 416b, which overrules the (a) part.

416b trumps 416a and therefore controls.

Check it out below.

sledge

§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(a))

(;) 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]

[broncovet]

Great posts, and good information Sledge and Pete. I think you are right..the VA never reads "B", and even tho the "B" trumps the "A", they deny it because they never bother reading "B".

Sometimes I think the VA does that on purpose...kind of like when you google something, most people go to the top 1 or 2 hits, and dont bother with the rest. The Va knows that, so they "bury" favorable legislation in the regulations and "highlight" reasons to deny.

[broncovet]

Marine..

Using the regulation about the percentages for TDIU is one of the VA's "dirty tricks". While they are still supposed to submit your claim to the VACO for consideration under "B", they simply dont do that and the courts never enforce it.

End result for Veterans: The VA denies your TDIU claim by "lowballing" you, then whines that you dont meet the percentage requirements for TDIU.