Denied

[RSG]

Ok,

for the second time I was denied IU again and told to take my claim to the BVA...Why does the VA keep doing this. I haven't been able to work since 2001 and was retired for the same medical issues by SSD..

I can't understand this.......Tnx

RSG

[mobie16r]

RSG,thanks for your service that said the people on hadit have posted some very good information. Seems like when the va looks at a claim,everythings thats negative, va user against you, and in my opinion, on the statement your doctor Brewer wrote about you suffering with mood disorder and possible non combat ptsd,the ptsd was negative and possible play a big part in your claim being denied.Like everyone said your psychiatrist of psychologist need to state in detail that your major depression is the only disability that keep you from gainful employment.Good luck

[RSG]

tHANKS, i WILL TRY THAT...

RSG

You need to be assess by an Occupational Therapist supporting your physical limitations. Have your PCP give you a referral to see an Occupational Therapist, they will conduct a Physical Limitation test (push, pull, walk, etc) to support that you are PHYSICALLY unable to work. Once that is done, you will be referred to VR&E which will contact you for a ILS assessment (well this happened in my case). Usually this person is a VR&E counselor, so they can write a letter stating that you are unable to gain suitable employment. Once this is done, POOF, you have new medical evidence to support being awarded TDIU.

The statement above is EXACTLY what I did. Then a week later I was granted IU! PERIOD!

Good Luck,

B6

[carlie]

You need to be assess by an Occupational Therapist supporting your physical limitations.

Have your PCP give you a referral to see an Occupational Therapist, they will conduct a Physical Limitation test (push, pull, walk, etc)

to support that you are PHYSICALLY unable to work.

Once that is done, you will be referred to VR&E which will contact you for a ILS assessment (well this happened in my case). Usually this person is a VR&E counselor, so they can write a letter stating that you are unable to gain suitable employment. Once this is done, POOF, you have new medical evidence to support being awarded TDIU.

Good Luck,

B6

Sorry - but NO - NO - NO - in this case that will not work AT ALL in helping RSG get IU.

He is ONLY SC'd FOR MH Disability.

His physical conditions are NON SC'd, so just bringing that up will help VBA to continue a denial,by providing even more evidence

that his NON-SC'd disabilities are the reason for his inability to hold employment.

[mobie16r]

I agree with you carlie

[RSG]

Makes sense to me.....All I see in the decision is that it's the employment thing.... but there again maybe I just can't understand what I am reading. in either case.. I found this with help...maybe this is a clue....

tnx, RSG

The VA’s Individual Unemployability program

Did you know that you don’t have to be rated 100% disabled by the VA to receive

compensation at the 100% rate? Sounds counterintuitive, right? However, under

the VA’s Individual Unemployability program veterans may receive 100% rating

compensation if they are unable to maintain substantially gainful employment.

How does the VA define “substantially gainful employment?”

Substantially gainful employment is “employment at which non-disabled

individuals earn their livelihood with earnings comparable to the particular

occupation in the community where the veteran resides.”

That means, that even if you are not rated 100% disabled AND work but are not

gainfully employed as defined above, you may be eligible for 100% disability

compensation so long as your income does not exceed the poverty level.

Who is eligible for this special benefit?

Veterans with one service-connected disability rating of 60% or more OR veterans

with two or more service-connected disabilities so long as one disability rating

was at least 40% and you have a combined rating of at least 70%. Even if you

don’t meet these rating requirements, you may still be considered unemployable

and qualify for Individual Unemployability. Additionally, if you have evidence

of an exceptional or unusual circumstance where your disability interferes with

your job or requires frequent hospitalizations, you may be eligible for the

program.

and this....

Total disability based upon individual unemployability - TDIU - is an

extraordinary remedy available to veterans who do not meet the 100% disability

requirement, but who are otherwise unable to secure a "substantially gainful

occupation". In these instances a veteran may be awarded TDIU and receive

monthly disability compensation benefits as if rated 100% even though the

veteran has not received an 100% disability rating.

The TDIU Approach to Disability Compensation

The normal disability formula bases the dollar amount of monthly benefits on the

percentage awarded. This percentage is determined on an averageimpairment of the

ability to work. If a veteran receives a 30% disability rating for a service

connected medical condition, the VA had found an averageveteran suffering from

the same medical condition would be 30% disabled for VA purposes. It is an

analysis which looks at a broad spectrum of all veterans. From it an average

composite is created from which the disability regulations are based.

TDIU bases the monthly compensation on the specificveteran's ability or lack

thereof to work. To understand it another way, TDIU is an acknowledgement by the

VA that even though the veteran, because of his or her specific conditions

unique to the veteran, is not entitled to an 100% disability rating, overall

objectively, there are subjective reasons unique to the individual veteran which

allow the VA to assign to him a 100% disability rating. The VA focuses on the

veteran as an individual, and not on how his or her medical condition measures

up against an average composite of all other veterans.

Basic Requirements to TDIU

In order to qualify for TDIU consideration, the veteran must meet two threshold

requirements. These are:

1. Is the veteran unable to secure, or follow substantially gainful occupation

as a result of a service

connected disability or disabilities?

2. If the veteran has only one service-connected disability, is it rated at or

above 60%? Or, if the

veteran has a combined disability of 70% or more, is one of the disability

ratings at least 40%?

If so, the veteran is entitled to consideration for TDIU.

If it is awarded, a TDIU award may be temporary or permanent depending on the

facts involved.

Claims for TDIU are judged on a case by case basis. Each veteran's life is

remarkably different. Accordingly, the awards are as unique. They are entirely

fact specific.

Occasional lapses in employment due to incapacity caused by the disability /

disabilities often is not sufficient to trigger TDIU consideration. The VA

examines the veteran's employment history, current employment status, and annual

income from work amongst a host of other things.

A Substantial Gainful Occupation

The primary focus for an award of TDIU is whether the veteran can "secure a

substantial gainful occupation".

As a backdrop the VA reviews the veteran's earnings, his type of job skills, and

the area in which he lives. The VA then compares the veteran's earnings to the

earnings of a person likewise situated who does not suffer from the veteran's

disability / disabilities.

Marginal employment, which is normally defined as a job which generates an

income less than the poverty threshold as defined by the Census Bureau, is not

considered "substantial gainful employment". Accordingly, the veteran does not

have to prove he is 100% unemployable. Establishing a veteran earns less than

the poverty level is a significant step in establishing the first requirement.

[However, in some instances such a when the veteran works for a family business

or sheltered workshop - known as a "protected environment" - the veteran may

earn more than the poverty threshold amount and still qualify for TDIU

consideration.]

Extraschedular TDIU

In some instances the veteran may meet the first requirement [lack substantial

gainful employment], but yet fail to meet the second requirement [a single 60%

disability rating or 70% with multiple disabilities with one exceeding 40%]. In

such an instance, the veteran may still be entitled to consideration for TDIU.

This is based in the policy of the VA to rate all veterans as 100% disabled who

are unemployable because of their service connected medical disabilities

regardless of the percentage awarded.

Normally, the VA must find the specific case presents such an exceptional or

unusual disability picture the regular disability scheduler standards are not

practical. Normally, the veteran's disabilities markedly interfere with

employment or the veteran's frequent hospitalizations make employment not

workable. In such extremely rare instances, the claim is referred to the

Secretary's designated official to consider the claim on a special, unique

basis.

Non-Factors

Although the focus is on the unique characteristics of veteran's situation,

things which would seem reasonable to be considered are expressly not

considered. These include the veteran's age, whether elderly or youthful, as

well as the veteran's non-service connected disabilities.

Obviously a veteran's age and his non-service connected disabilities impact his

ability to have "substantial gainful occupation". However, the VA will not

consider such in its determination and the veteran's advocate must be able to

compartmentalize veteran's medical conditions in order to persuade the VA of

veteran's entitlement to TDIU. The VA, in fact, will have expressly to explain

in its decision a differentiation between the service-connected and non-service

connected disabilities.

Factors to be Considered

The VA will consider the veteran's level of education, as well as his

occupational history. However, a well-educated veteran who was recently employed

may not be denied TDIU simply because he or she is well-educated and recently

employed. The focus should be on the present status of the veteran's

predicament.

The VA additionally must examine the veteran's Social Security Administration

disability benefits records if the veteran is receiving those benefits. The

determination of disability for gainful employment by the Social Security

Administration is relevant to the award of TDIU.

As in every case, the "benefit of the doubt" always leans in favor of the

veteran's claim. This is equally applicable to distinguishing between the

effects of service-connected and non-service connected disabilities.

Maybe these will help you...

Sorry - but NO - NO - NO - in this case that will not work AT ALL in helping RSG get IU.

He is ONLY SC'd FOR MH Disability.

His physical conditions are NON SC'd, so just bringing that up will help VBA to continue a denial,by providing even more evidence

that his NON-SC'd disabilities are the reason for his inability to hold employment.

[Bravo6]

Sorry - but NO - NO - NO - in this case that will not work AT ALL in helping RSG get IU.

He is ONLY SC'd FOR MH Disability.

His physical conditions are NON SC'd, so just bringing that up will help VBA to continue a denial,by providing even more evidence

that his NON-SC'd disabilities are the reason for his inability to hold employment.

Great point.......I totally realized it after I wrote it. I actually realized it not more than 10 minutes ago, after remembering he has MH problems versas physical limitations!

So I came back to make a correction and see that I've been corrected! Awesome! Thanks Carlie, I was missing the boat on this one!!

B6