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david walker


I am currently a 50% combined and have two claims for reconsideration pending. MY PCP at the VA wants me to file for SS disability (said he would write me a good letter recommending).

I plan on filing for TDIU, I need some clarifiaction on part of the policy:

4.16 Total disability ratings for compensation based on unemployability of the individual. (a) For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (2) Disabilities resulting from common etiology or a single accident,

I have 40% combined on my back and arm from injuries I received in a MV accident. Is this what 4.16 (a)2 is asking for?

I'm not sure if I will receive an increase on my request for reconsideration. If not I will file NOD, how long does a NOD take?

More than likely I will leave work and file SSD before they are even settled. I have short & long term disbility at work but its offset by any money receviced by VA (st gov job) so money will be tight at home. I've tired my best to keep working, but now I'm to the point I'm gonna have to go. What do you guys think my chances are and about how long will it take to get TDIU?


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heres a link to the current code of federal regulations law on tdiu http://frwebgate.access.gpo.gov/cgi-bin/ge...PART=&TYPE=TEXT

Read part B


[Code of Federal Regulations]

[Title 38, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR4.16]

[Page 367-368]




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

[[Page 368]]

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)

(:mellow: 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]

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The way I read this is my combined 40% would be considered one disability under the TUDI rules, but sinec my total is 50% I am not eligiable for TUDI. In order to become eligible I will have to get my percentage up to 70% total. Will the letter from my VA PCP stating I am unemployable not help me in this matter?

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Good luck and enjoy retirement. I think Don Evans went through this senario and the VA granted 100% quickly.

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