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Claims For Secondary Conditions And Tdiu

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Married to a Vet

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Hi to all,

I'm new here, as a member and this is my first post. I'm looking for your opinions on how best to help my husband handle his pending claim.

My husband is a USAF Gulf War veteran and was originally rated 0% for his back in 1996. He filed for an increase in 2006 and was granted 10% for DJD. He again filed in 2007 and was denied. The current claim was filed in Nov. 2010. He did not list individual symptoms but filed for the knee, hip and ankle in an effort to receive consideration of the entire right leg and foot. His V.A. medical records and the report from his C&P exam extensively document significant changes in the Service Connected DJD as well as Depression, Pain Disorder, and Radiculopathy which are all related (secondary) to the Service Connected DJD. At the time he filed the 2010 claim he did not know all of these medical terms and in some cases there was not yet a specific diagnoses.

So maybe a bit more to the point...

When filing claims which are secondary to an already existing SC condition are ALL secondary conditions found through the C&P exam or as a matter of record (V.A. medical records) considered and rated or will they be disregarded because he did not specifically file for those conditions?

I ask the next question because after reading the VA TRAINING LETTER 10-07

Adjudication of Claims for Total Disability Based on Individual Unemployability (TDIU) I think he could qualify because it states under the Background heading (see bold type)...

"VA has a longstanding and well-established policy of granting total disability

ratings to Veterans who, due to service-connected disability(ies), are unable to

secure and maintain substantially gainful employment even if a Veteran’s

combined disability evaluation does not result in a total schedular evaluation. The

provisions of 38 C.F.R. § 4.16(a) provide the minimal schedular standards for

TDIU consideration: if there is one disability, this disability shall be ratable at 60

percent or more; and, if there are two or more disabilities, there must be at least

one disability ratable at 40 percent or more and additional disability to bring the

combined rating to 70 percent or more. Alternatively, if these schedular

requirements are not met, but the evidence shows the Veteran is unemployable

due to service-connected disabilities, 38 C.F.R. § 4.16(b) authorizes VA to grant a

TDIU evaluation on an extra-schedular basis upon approval by the Director,

Compensation and Pension Service."

Should he file a VAF 21-8940 and submit a second copy of his letter from SSA granting his disability or wait and use it in an appeal if they 'overlook' the inferred TDIU? The letter would show that another Government agency has deemed him unable to maintain employment (based on his VA medical records). Our tax record could also show his earned wages to be less than the U.S. Department of Commerce, Bureau of the Census, poverty threshold for one person for at least the last 12 months.

Note: I found a link to the VA TRAINING LETTER 10-07 on this site. If I've done this right you can click here to find it. The file is in PDF format.

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  • HadIt.com Elder

When filing for a secondary condition you need a doctor's letter to draw the nexus between the primary SC condition and the secondary condition you are trying to get SC'ed. For instance, I have arteriosclerosis(spelling), and I have DMII. I wanted to get the artery disease secondary to the DMII. It is quite common for this to be the case but you still need a doctor who is qualifed to say it is at least as likely as not for it to be seconday. Even after I went for the C&P exam the exam doctor said I had just a 0% rating for artry secondary to dmii. I had to appeal and then I got 60% rating after taking two more tests. You have to establish something is secondary unless it is presumptive and then you have to show what the rating should be. I have never gotten a break that I did not have to prove.

John

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