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Question About Compensation And Voc Rehab?


Shalia

Question

I'm currently rated at 80%, majority being 70% for bipolar disorder. I'm listed as having a serious employment handicap, and have been enrolled in VR&E for far too long.

Last week, I was diagnosed with Rheumatoid Arthritis.

Now, I have nothing that ties military life to RA, but... I found this small blurb here: http://www.benefits.gov/benefits/benefit-details/289 Compensation may also be paid to certain veterans who were disabled from VA health care or while participating in our Vocational Rehabilitation program.

What I can't find in any search on Google is... how do they determine "certain" veterans? Because I was struggling to see myself working before I got hit by RA. Now I hurt so badly I can't stand it, I'm floored with fatigue, and yeah. I've tried for IU several times, but they don't consider my SCD's making me unemployable (hence me qualifying for VR&E.) But I now don't think I'll be able to finish.

I've put in an application for SSDI, but we all know how long that takes too.

So, does anyone know what "certain veterans while participating in VRE" means? Where can I find that info? Cause I've been googling for about 2 hours and I'm frustrated now.

Thanks. :)

Shalia

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I strongly believe that statement regarding "certain veterans" refers to Section 1151, 38 USC claims.

“Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of this title, awarded under any of the laws administered by the Secretary, or as a

result of having submitted to an examination under any such law . . . , and such injury or aggravation

results in additional disability to or the death of such veteran, disability or death compensation under [38 U.S.C. ch. 11] and dependency and indemnity compensation under [38 U.S.C. ch. 13] shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. “

In this lengthy OGC opinion they make 2 points that might help you-

Under# 20”

“Absent any statutory basis for distinguishing between physical diseases and psychiatric diseases for purposes of section 1151, we conclude that section 1151 authorizes payment of

compensation for disability due to psychiatric conditions which would ordinarily be considered “diseases” by VA for

compensation purposes. “

and under

#22.

“As stated above, 38 C.F.R. § 3.358(a) authorizes compensation for additional disability due to a disease or injury incurred or aggravated by one of the specified VA activities and does not state any distinction between physical disease or disability and psychiatric disease or disability. However, 38 C.F.R. § 3.358(b)(1) provides that, in determining whether “additional disability” exists, “[t]he veteran’s physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the

subsequent physical condition resulting from the disease or injury.”

This is from a Memorandum that Carlie posted here at hadit some time ago and this involved a OGC opinion on a different type of claim issue but ,after I read over the Memo ,I am going to suggest

that you file a Section 1151 claim because you have incurred a disease ( the rheumatoid arthritis) during

“the pursuit of a course of vocational rehabilitation under chapter 31 of this title, awarded under any of the laws administered by the Secretary,”

“Department of Memorandum

Veterans Affairs

Date: February 16, 1999 VAOPGCPREC 1-99

From: General Counsel (022)

Subj: Interpretation of 38 U.S.C. § 1151 and 38 C.F.R. § 3.358;

Psychiatric Disability Resulting from Assault During Examination or Treatment”

There is a template on 1151 claims here in our FTCA forum and you could highlight those portions of the OGC memorandum that apply to your situation (the parts I mentioned above) and use as evidence.

I would think you have a basis for the RA to be service connected under the Sec 1151 regulations, if it falls into a ratable level and the medical evidence shows ,when you began VocRehab, you did not have this condition.

I hope others chime in with their opinions too.

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Just to add- I could not find any documented example of how the 1151-Voc Rehab tie in would work,regarding a new disability.

I sure hope others will peruse the above OGC Memo and give their opinions.

Hopefully the BVA site will get back on line and could reveal some insight on how these "certain veterans" are identified and what they claimed ,while in Voc Rehab.

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Shalia

Have you appealed the TDIU denial(s)? If you are 70%, and not working, you should be "very close" to getting TDIU. What were their reasons and bases for denying TDIU?

If this denial was within a year, you should certainly consider filing a NOD, if you have not already.

If its been more than a year since your last tdiu denial, then there are other things you can try...such as reopening based on New and Material evidence. If a doc has opined you are unable to maintain substantial gainfull employment recently, then you can certainly try reopening on this basis. Of course, if docs did not do that, you can get an IMO/IME.

Your recent diagnosis of RA may be the "new and material" evidence you need, as RA substantially limits the work you can do.

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You can talk with your Voc Rehab counselor and have them write a letter stating that it is not feasible for you to complete your Voc Rehab due to your service connected disability. After you get the letter reapply for TDIU based on the not feasible letter.

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.

Your recent diagnosis of RA may be the "new and material" evidence you need, as RA substantially limits the work you can do.

I call this false hope...

First the RA must be show to have incurred in service or be secondary to a service connected condition.

Finally TDIU is only awarded based on Service connected conditions.. Since TDIu has been denied and since the OP indicates there is no service connection to the RA I don't see how RA would even be considered for service connection let alone TDIU.

Finally:

"Compensation may also be paid to certain veterans who were disabled from VA health care or while participating in our Vocational Rehabilitation program"

This statement means a veteran may be compensated under 1151 if the veteran received medical care that made worse or caused secondary medical issues. The only reason vocational rehabilitation is mentioned is for those in voc rehab that can get some dental care.. regardless they are refering to 1151 claims in a very vague way....

I don't see how an 1151 claim would even apply for RA, since this is a conditon that is caused by factors other than medical care.

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I still think the fastest and simplest way to try to get an increase is by getting a letter from your Voc Rehab Counselor. Keep in mind that Bi Polar is a mental disorder and there are many symptoms of mental disorders like; stress, fatigue, lack of concentration, low or no energy and many other symptoms that could cause problems with passing classes and class attendance. Maybe others will chime in.

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I do not understand why the rater did not grant the IU when you are down as having a listed as having a serious employment handicap. as per the CFR that would make you unable to find gainful employment. Do have your VSO work on the IU claim and do remenbe it is not that you cannot work. It is that you cannot find gainful employment. everyone can work, it is just how much do they make.

(Authority: 38 U.S.C. 3117)

(g) Serious employment handicap. This term means a significant impairment of a veteran's ability to prepare for, obtain, or retain employment consistent with such veteran's abilities, aptitudes, and interests.

I'm currently rated at 80%, majority being 70% for bipolar disorder. I'm listed as having a serious employment handicap, and have been enrolled in VR&E for far too long.

Last week, I was diagnosed with Rheumatoid Arthritis.

Now, I have nothing that ties military life to RA, but... I found this small blurb here: http://www.benefits....fit-details/289 Compensation may also be paid to certain veterans who were disabled from VA health care or while participating in our Vocational Rehabilitation program.

What I can't find in any search on Google is... how do they determine "certain" veterans? Because I was struggling to see myself working before I got hit by RA. Now I hurt so badly I can't stand it, I'm floored with fatigue, and yeah. I've tried for IU several times, but they don't consider my SCD's making me unemployable (hence me qualifying for VR&E.) But I now don't think I'll be able to finish.

I've put in an application for SSDI, but we all know how long that takes too.

So, does anyone know what "certain veterans while participating in VRE" means? Where can I find that info? Cause I've been googling for about 2 hours and I'm frustrated now.

Thanks. :)

Shalia

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