tdiu Could This Be A Possible Cue?

[StreetWalker]

I was denied TDIU recently. One of the reasons listed for the denial was that I was receiving SSDI and was scheduled for a reevaluation therefor my disability can not be considered as permanent.

Been doing some legwork and research and here's what I have come up with.

I have obtained a copy of my SSA-831-C3 which is the Disability determination and transmittal.

In section 17 I have the following codes. Diary type - MRP, mo/yr - 07/2019, reason 7.

According to https://secure.ssa.g.../lnx/0426510020 these codes show that I'm "Medical Improvement Not Expected".

This directly conflicts the wording in my TDIU denial. Does this make the cut for a CUE?

[StreetWalker]

I'll have two DBQs filled out when I NOD the decision.

[Philip Rogers]

I think Carlie makes an excellent point here!!! jmo

pr

Quote

I do not see that VA has actually based the denial of IU on what SSA states.

I do feel that the decision maker at VA considered that in SSA stating you are subject to

reevaluation- the VA decision maker connected that to whether your "back and other osteoarthritic conditions"

were to be considered permanent or not.

It's what's stated by the VA C&P examiner that supports the denial of IU, the rest is just

filler crap.

I feel putting lots of energy into rebutting the SSA part is what they want you to do,

instead of concentrating on knocking down / rebutting what their C&P examiner states about

whether you meet the medical criteria (IU) to work or not.

I feel many times we are purposely lead down the wrong path (by VA) in our disagreements on

our VBA claim decisions -

Gotta keep your eye on the ball -

JMHO

[john999]

My denial for CUE for EED for TDIU was based on VA's contention that I was "not" on SSD at the time. They said that when I was granted SSD then I was eligible for TDIU. I think the VA uses SSD data however they want to when they want to use it.

[StreetWalker]

Ok, sitting here in my recliner (not able to do much else) while my wife is doing yard work.

Working on refining my NOD. I decided not to go down the CUE path.

I found something in CFR 404.1590 that piqued my interest.

Permanent impairment—medical improvement not expected—refers to a case in which any medical improvement in the person's impairment(s) is not expected. This means an extremely severe condition determined on the basis of our experience in administering the disability programs to be at least static, but more likely to be progressively disabling either by itself or by reason of impairment complications, and unlikely to improve so as to permit the individual to engage in substantial gainful activity. The interaction of the individual's age, impairment consequences and lack of recent attachment to the labor market may also be considered in determining whether an impairment is permanent.

Now my question is this. Is substantial gainful activity equivalent substantial gainful employment?

It would seem to be based purely on semantics that the SSDI standard is actually higher than the VA standard as activity is more inclusive than just employment.

[Berta]

YEAH...now I see what everone means here::::

The regulations for TDIU say “Substantial Gainful Employment”

That designation also can be used if VA denies a higher rating ( I already posted here how VA tried to drop my husband to 10% from 30% in 1988 when he got a job at the local VA.They also suggested he had become a rocket scientist after ONE semester in Voc Rehab.)

I focused on the VA lingo of substantial gainful employment ,that they used in the proposed 1988 reduction and pointed out to them in the NOD that this was a crap part time VA job, as he had been a former PHVAC Operator and also A Nuke. It was the lowest paying job he had ever had.VA had denied him an interview for a full time Fireman's position.We had the OPM proof that he was fully qualified when we went and raised hell with their Personnel Director (untimately canned) and the VAMC director only gave him the PT job so he wouldnt file a EEOC against them and said he would be considered for the next position in Engineering or Fire Department of the VA....yeah right....they even hired a non disabled non vet,over many qualified disabled vets for the next full time position in his department. OH well I digress.........it all still ticks me off....

This is a detailed analysis of this term 'substantial gainful employment' VA uses from Lexis Nexis:

http://www.lexisnexis.com/veterans/offer/images/vbm_sample.pdf

The examiner didnt state 'substantial' employment here and this might be a good point of contention.

Do you have a copy of the actual C & P to see,if in fact, this is what the examiner really said?

“he examiner opined that you are capable of sustaining and gaining employment in a sedentary environment “

[Berta]

But...

I am still concerned about your initial post:

"One of the reasons listed for the denial was that I was receiving SSDI and was scheduled for a reevaluation therefor my disability can not be considered as permanent."

We really need to see the "other" reasons.

Can you possibly scan and attach here, the Reasons and Basis and the Evidence list they used in that decision?

Cover any identifying info before you scan it.