tdiu Tdiu

[Sandy]

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?

[john999]

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.

[Philip Rogers]

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

[pacmanx1]

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.

[carlie]

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.

[pacmanx1]

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.

[carlie]

pete992,

I don't know the date of their denial for IU, but I hope a NOD was submitted.