Gwv Has More Problems With Disabilities

[halos2]

Vet is rated @ 80% va math...140 or 150 regular math...Anyway vet has more problems regarding previous ratings, conditions of pain and limited mobility increased and noted since granted. Has IBS, Migrains, and Sleep Apnea,(not prev diag) along with some rated @ 10% and @ 0% that are much worse.

He wants to put in a NOD for an increase, however his VSO suggests to sit tight and keep what he has. The VAMC has been treating him and have evaluated him with more diagnoses since he has been receiving treatment for conditions. Constant pain, and joint problems worsening. He works and needs to still work, as he has expenses and family, however all joints have increased pain and ankles and knees much worse.

Diag with Fibro and CFS too and conditions are worse than 20% and 10% as awarded. He really feels the need to seek a higher rating, but with VSO reluctancy, he is worried. He is aware of putting in NOD and if decision is not favorable, can appeal it through the system and thereby protecting current rating while awaiting for decisions. (nod...C&P or decision, then accept or appeal, and go BVA, and as long as timely can protect current 80% while in appealing processes.)

Would like feedback from those who are familiar with GW syndrome and illinesses, and feels like he is more disabled than 80%. He went in @ 18 and came out @ 22, but did not put in claim until 06-07...was granted the 80% on 10 illinesses/diagnoses/conditions, and a couple more @ 0%.

Sometimes he used a cane but always uses leg braces, and they have told him his knees are shot with tears in meniscus bilaterally, yet got 10% for each knee. Chronic respiratory condition as noted in military with over 30 clinic visits and hospitalizations including some with pneumonia, but did not rate him for respiratory problems.

Looking for some definitive advice here for this vet. Thank you to all who may be able to offer him help/suggestions on path to follow with his claims. Was told he needed to have 260% in order to request schedular rating.(vso). Opinions??

[Guest]

The VSO is not helping the veteran. I don't know if it is stupidity or laziness or both but the veteran should file a NOD or file a claim for any condition he can relate to an in-service incident. What would the veteran do if he finds himself in a situation where he can no longer work? Especially any type of life threatening conditions like sleep apnea or a respiratory problem. As long as he is being treated and can prove his service connected conditions are getting worst he should get increases on his already service connected conditions. Also keep in mind that filing a NOD can take years to be resolved. Filing new claims can take months to a year so why wait until he can't work at all and then file and wait for VA to rate his conditions.

[Guest]

§ 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. 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)(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.

There is no set rating a veteran needs to request for an extra-schedular consideration but this is asking for TDIU and as long as he is working VA will most likely deny the claim. If the veteran's disabilities are rated around 230%, then he will most likely hit the magical mark of a combined rating of 95% and would be rounded up to 100% service connected.

[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]

[deanbrt]

This is my circumstance right now. I received a C&P exam on my service related leg injuries in late April where the VA examiner rated me 100% IU for those injuries alone. It went to the Director of C&P for extra scheduler consideration in mid June. It was remanded back to the VARO for completion of the secondary injury appeal first. It looks like that part is now going back to BVA and my c file is now back at the Director of C&Ps office for the extra scheduler consideration.

§ 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. 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)(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.

There is no set rating a veteran needs to request for an extra-schedular consideration but this is asking for TDIU and as long as he is working VA will most likely deny the claim. If the veteran's disabilities are rated around 230%, then he will most likely hit the magical mark of a combined rating of 95% and would be rounded up to 100% service connected.

[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]

[halos2]

I am so glad to receive feedback I can give to this veteran. I know he works so would not want to be TDIU as would have to pay it back, but some good info was received here, especially as we all know regarding the waiting months to years to receive determinations. Thanks again great vets!!

[halos2]

Looked at vets award letter and regular math was 160% with a couple or more 0%'s too. So he did file for the NOD. As previously stated vet is 80% rated, and does work although sporatically, and feels the need to work due to expenses...Is he making a mistake here??

[jbasser]

No mistake unless IU or PTSD is involved.

J