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Kkp On Tdiu

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Berta, I posted a site last evening for you to go to get the information on unemployability we have talked about. I apologize but I gave you the wrong Internet address. I am referring to unemployability with

the 60% or a 70% in combination if there is more than one disability with one being at least 40%. Berta, I still think it would be a good idea for you to post this because many more people read your posts than mine.

You will find it under Electronic Code of Federal Regulations (e-CFR) Title 38:Pensions, Bonuses, and Veterans Relief. Article 4:16 Total Disability Ratings for Compensation based on Unemployability of the Individual. You will find an (a) and a (:D. You will find it under (:D. Authority 38:U.S.C.501.

10thFO, I am not a lawyer in training but with any luck I will start imaginary prelaw next year. Meanwhile, I will keep studying.

We are going to attempt to cut and paste it. Wish us luck.

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 nonservice-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.

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Those frikn smiley faces in the Citations are un-nerving!! Tbird, can you make the "emoticons" optional instead or standard ?! Not your fault KKP, it's the dang software !!

Yeah, the VA LOVES to ignore Part B. I think we should run a search on "extra-schedular consideration" at the BVA and Court . . . any takers lol!

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Search Terms: extra-schedular consideration

I searched by date preference and looked for the most "hits". ~Wings





No. 99-2264

Donald Ray Bowling,



Anthony J. Principi,

Secretary of Veterans Affairs,


On Appeal from the Board of Veterans' Appeals

(Argued February 1, 2001 Decided )

KRAMER, Chief Judge, concurring in the result: For the following reasons, I concur in the remand ordered by the majority opinion.

As to the appellant's claim for a total disability rating based on individual unemployability (TDIU) under 38 C.F.R. 4.16(b) (2000), the Board of Veterans' Appeals (BVA or Board) concluded that the evidence did not support an assignment of a TDIU rating because "[w]hile the veteran has lost some time from work due to his [post-traumatic stress disorder ( PTSD)], he has not lost his job and remains employed." Record (R.) at 28- 29. The crucial issue before the Court is whether the Board should have referred the TDIU claim to the Director, Compensation and Pension Service, as directed by 4.16(b).

The 4.16(b) standard for referral is whether the appellant is " unemployable," that is, "unable to secure and follow a substantially gainful occupation." 38 C.F. R. 4.16(b). The relevant evidence is as follows: The appellant, although technically employed, was on medical disability leave for which he was not receiving any payment at the time of the July 1999 BVA decision.

In a September 9, 1998, letter, a VA psychiatrist stated that, effective on that date and "until further notice," the appellant was unable to work due to his PTSD. R. at 664. The appellant's employer notified a VA regional office (RO) in November 1998 that the appellant was " on disability due to illness" and that he had last worked on August 1, 1998. R. at 674-75. In January 1999, a VA clinical psychologist noted that the appellant had been on medical leave since August 1998 and that he then received no income from his employment because he had exhausted his annual and sick leave. R. at 695-701. In a January 1999 VA social and industry survey report, the social worker noted that the appellant was currently on leave from his work and had been for the past six months due to his PTSD. R. at 703-06.

Based on this evidence, I find the following errors in the BVA decision. First, although the Board found that the appellant "remains employed," it neither made a determination as to whether that employment was "a substantially gainful occupation" nor provided any explanation as to why, in the Board's view, technical employment precluded a finding of unemployability pursuant to 4.16(b). Second, there is some evidence of record that appears to reduce the clarity of the appellant's employment status at the time of the Board decision (R. at 712-13), and the Board should have therefore clarified the appellant's employment situation. In light of those BVA errors, I would have remanded for further development of the evidence as to the appellant's employment status and readjudication of the matter to include an adequate statement of reasons or bases as to whether referral was required under 4.16(b).

As to the appellant's claim for a rating above 50% for PTSD, the Board held that a rating increase was not warranted because "the 50 percent criteria are more nearly approximated than the 70 percent criteria " (R. at 26). The evidence that best supports that decision is the January 1999 report by a VA clinical psychologist (R. at 695-701). That report, however, contains several significant omissions. First, the VA psychologist did not assess the appellant's symptoms according to the 1996 Rating Schedule, see Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991), apparently for lack of a request to do so by the RO. Second, the VA psychologist did not reconcile his opinion with other medical evidence, which tended to support a higher rating (R. at 526-28, 655-56, 664). Third, the VA psychologist did not support with a specific explanation of symptoms his opinion that the appellant's condition more closely matched the criteria of #4 than #5, which had been enumerated in a June 11, 1998, BVA remand of the PTSD claim (R. at 630-31; see also Ante __, at slip op. at 3-4). Therefore, because the Board depended heavily on an incomplete report, a remand to the Board is required.

I can't seem to master the COLOR, TEXT SIZE, ETC. Working on it LOL! ~Wings

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