Jump to content
  • veteranscrisisline-badge-chat-1.gif

  • Advertisemnt

  • Trouble Remembering? This helped me.

    I have memory problems and as some of you may know I highly recommend Evernote and have for years. Though I've found that writing helps me remember more. I ran across Tom's videos on youtube, I'm a bit geeky and I also use an IPad so if you take notes on your IPad or you are thinking of going paperless check it out. I'm really happy with it, I use it with a program called Noteshelf 2.

    Click here to purchase your digital journal. HadIt.com receives a commission on each purchase.

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • 0
Sign in to follow this  
Sandy

Tdiu

Question

I was given a service connected combined rating of 80%. 20% for left knee limitation of extension, 50 % for right knee limitation of extension,

10% traumatic arthritis, right knee, 10% traumatic arthritis, left knee and 10% sinusitis.

I had bi-lateral knee replacements in October 2009. I applied for and received Temporary evaluation of 100% for 13 months.

Then the VA states I will be assigned 30% for left knee and 50% for right knee which equals 80%.

They did not mention the Sinusitis.

I have "new" knees but I still have swelling in the lower legs which becomes painful. I have mentioned this to my doctor and he stated it is due to the replacement surgury. I also have lower back arthritis and arthritis in both feet. My doctor stated it is probably due to how I was walking prior to the knee replacements. I still have difficulty getting up from a seated postion, bending, standing,etc. due to the arthritis pain in my back and feet.

I applied for TDIU and was denied. They stated "Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided, that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. Since you plan on having total knee replacements your service connected knee conditions are not considered permanent in nature and may improve."

I was granted a disability retirement from the federal government and social security disability.

I also have Narcolepsy - diagnosed in 1995, Hasimotto's thyroid disease initial found when I was in Navy reserves on a weekend that I was playing weekend warrior and diagnosed in 1985 by civilian doctor and Celiac Disease 2007. These are not related to my military service per VA. They are all considered an autoimmune disease. I was active duty Air Force from Mar 1977 to June 1983. Then I joined Navy reserves April 1985 to 1990.

So my questions are:

1. Should I try for TDIU again?

2. Can I submit a secondary claim for the arthitis in back and feet?

Share this post


Link to post
Share on other sites

Recommended Posts

If you are going to get TDIU it must be solely for service connected issues. You have to separate out the SC from the NSC to pursue the TDIU or the VA will just continue to say you can't work because of NSC. I been there myself. They will hang their hate on any NSC condition to try and say that is the reason you can't work. You need a medical opinion to say the SC conditions is why you can't work.

Share this post


Link to post
Share on other sites

Like john said but you need to appeal the TDIU denial and request an "extra-schedular rating" based on 38 CFR 4.16b. Also request a correction on the sinusitis.

pr

Share this post


Link to post
Share on other sites
Sandy,

I applied for TDIU and was denied. They stated "Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided, that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. Since you plan on having total knee replacements your service connected knee conditions are not considered permanent in nature and may improve."

Is this part of the rating (reason for) decision? Is it something someone told you? It sounds like part of the CFR 38 part 4 that deals with deciding a claim for P & T and not TDIU. I am confused and maybe others will chime in. A TDIU claim can be permanent or not but VA should have rated you for TDIU and not for P & T. Even though your conditions may not be permanent you can still be unemployable.

Share this post


Link to post
Share on other sites

I applied for TDIU and was denied. They stated

"Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided, that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.

Since you plan on having total knee replacements your service connected knee conditions are not considered permanent in nature and may improve."

I believe the VA is quoting from Part 4 -

4.15

Sec. 4.15 Total disability ratings.

The ability to overcome the handicap of disability varies widely among individuals.

The rating, however, is based primarily upon the average impairment in earning capacity,

that is, upon the economic or industrial handicap which must be overcome and not from

individual success in overcoming it. However, full consideration must be given to unusual

physical or mental effects in individual cases, to peculiar effects of occupational activities,

to defects in physical or mental endowment preventing the usual amount of success in

overcoming the handicap of disability and to the effect of combinations of disability.

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; Provided, That permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.

The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless permanently bedridden. Other total disability ratings are or scheduled in the various bodily systems of this schedule.

Share this post


Link to post
Share on other sites

Carlie that is exactly my point, the veteran conditions may not meet 4.15 but they do meet 4.16. The veteran did not file a claim for total and permanent disability, the veteran filed a claim for total disability rating for compensation based on unemployability of the individual. OK, you know me and my meds. So am I missing something here? The veteran already meets the TDIU criteria. At present the veteran's condition may warrant TDIU (unemployability)but not permanent and total.

§ 4.15 Total disability ratings.

The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; Provided, That permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person.

§ 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 non-service-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.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this  

  • Ads

  • Our picks

    • C-File: Requesting Your VA Claims Folder
      VA Claims Folders, the infamous C-File We can not stress enough how important it is to: View your VA Claims Folder at the Veterans Affairs regional office (find your Regional VA Office here) Call the VA at 1-800-827-1000 and request an appointment to view your C-File (VA Claims Folder).

      Ensure that all the records in your VA Claims Folder or C-File are yours.
      • 1 reply
    • VA Law
      Everything Veterans Affairs does with your service connected disability compensation claim, is governed by law. You may want to bookmark this page as a reference as you proceed with your claim.

      It can be a bit daunting. Just remember the U.S.C. is the law, the C.F.R. is how they interpret the law and last but certainly not least is the V.A. adjudication manuals that is how they apply the law. The section of the law that covers the veterans benefits is Title 38 in the U.S.C. in the C.F.R. is usually written 38 C.F.R. or something similar.

       










      U.S.C. United States Code United States Code is the law and the U.S.C. is the governments official copy of the code.


      U.S.C.A. United States Code Annotated U.S.C.A. contain everything that is printed in the official U.S. Code but also include annotations to case law relevant to the particular statute.


      C.F.R. Code of Federal Regulations The C.F.R. is the interpretation of the law


      VA M-21 Compensation and Pension Manual


      VA M-21-4 C & P Procedures


      VA M28-3 Vocational Rehabilitation


      VA M29-1 VBA Insurance Manual
      • 0 replies
    • Rating "Protections"
      The VA has several regulations governing various levels of "protection". The terms "permanent", "protection", and "total" are misnomers due to the various ways the VA has defined them.

      Here is some information on VA ratings protection (but the word "protection" has a different meaning to the VA). The exception to these rules is if they can prove fraud.

      5 years

      The key part to remember about the 5 year rule is found 3.327(a) indicating that these are guidelines which are not necessarily set in stone. The key takeaway for most veterans is reduction should not occur if there has not been material improvement over 5+ years or if the veteran is over the age of 55.

       

      10 years

      In brief, ratings in effect for 10 years cannot have service connection severed.

       

      20 years

      In brief, a disability rated for 20 years cannot be reduced below the lowest rating percentage it has held for the previous 20 years.

       

      P&T

       

      TDIU

       

       

       

      Disclaimer: I am not a legal expert, so use at own risk and/or consult a professional representative. The VA updates their regulations from time to time, so this information may become outdated.
        • Thanks
        • Like
      • 7 replies
    • HadIt.com Branded 11oz Coffee Mug for sale
      11oz Coffee Mug with HadIt.com Logo and Motto $12
      • 0 replies
    • Show your support with HadIt.com logo items. Only a few to start, t-shirts and ball caps coming https://hadit.com/shop/ Can holder, Coffee Mugs and Notebook currently come take a look and check back https://hadit.com/shop/

       
      • 0 replies
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×
×
  • Create New...

Important Information

{terms] and Guidelines