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Question About Tdiu


midnight340

Question

When I filed my original claim I was also advised to apply for TDIU (I am 65). I was denied SC so of course the TDIU was not considered.

My claim was re-opened with a request for reconsideration. It has now moved to "preparation for decision" but in the re-opened claim they are not considering the TDIU (according to ebenefits and my VSO)

My VSO says that I would not want to send anything in now... which I of course agree with, but that once I am SC'd I can then ask for TDIU. They tell me that the effective date for the TDIU will be whenever I can again ask for it (after SC is granted) and that the original request has nothing to do with it.

Is this correct?? That any retro, if granted TDIU, will only be back to when I reapply in a few months (or whenever)???

My VSO also tells me that it is not true that they will consider TDIU automatically since I am 65. ( I believe I have read otherwise on hadit...)

(I was granted 70% non-SC for pension purposes)

Edited by midnight340
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Here are the TDIU regulations:

A total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful

occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2010). A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more)). 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a).

If a Veteran does not meet the threshold rating requirements to establish eligibility for a schedular rating of TDIU, he or she may still be entitled to TDIU on an extra-schedular basis if it is established that the veteran is unable to secure or follow substantially gainful employment as a result of the effect of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b).

In determining whether a veteran is indeed unemployable, consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). Further, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. Indeed, a high rating in and of itself is a recognition that the service-connected impairment makes it difficult to obtain and keep employment. Rather, the relevant inquiry is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

However, regardless of any SC rating ,if a veteran is unemployable solely due to the established service connected conditions, then they should apply for TDIU.

Unemployablity due to service connection is a medical determination.

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You say your claim was "reopened". If you claim was appealed within a year of the denial then I think your original tdiu date would be good if you are granted SC. If your claim was not appealed within a year of the denial then you are reopening it with new evidence and you won't get your tdiu unless you asked for it again. Did you request reconsideration within one year of original denial?

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Berta,

"Unemployablity due to service connection is a medical determination."

Both my C&P and VA psychiatrists notes state that I am "unemployable" due to PTSD.

John,

I requested my claim be re-opened within about a month of the decision. It is listed on ebenefits under a new claim but there is a "re-opened" note. I did not request TDIU a second time with the request for reconsideration.

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With the PTSD diagnosis, was the denial due to a stressor issue?

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Berta,

Yes.... in a way. I was assigned to a squadron which was itself assigned to an aircraft carrier. My most notable stressor ocurred at an air base on land between deployments on the carrier.

After a year of waiting, they took a quick glance at my claim, saw the squadron was assigned to the carrier on the east coast and decided I could not be at the air station on the west coast where my squadron was home based at the time of the stressor. Due to this, they ignored two other valid stressors, and all other information and decided I was lying and denied SC.

With help from a fellow squadron member here on hadit, I got copies of the TAD (temp. assignment of duty) Navy orders for the squadron (with my name on crew list) and sent them along with a request for reconsideration (at the advice of my VSO.)

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It is good that you got those TAD orders.

You mentioned two other valid stressors, as well.

Do you feel your evidence of the actual occurrence of the TAD stressor is sound? Or for any of the other stressors you claimed?

Have you tried to get any buddy statements?

When the VA accepts a stressor,it is not necessarily the most serious incident, it is the one they were able to validate.

This past topic on stressors might help you:

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