tdiu Tdiu Quiz (Level: Expert)

[Byte187]

I've had quite a few people disagree with me on this particular question, so I want to ask here and see what the consensus is.

Consider this hypothetical veteran:

The veteran suffered a lower-back injury on active duty back in the 1980s. He received hospital treatment at the time so, years later, with his SMR, service connection was an easy matter. The VA attributes the veterans current lower back disability to his documented injury in the 1980s.

The veteran also suffers bilateral radiculopathy (legs), and the VA connected that, secondary to the SC back condition. The verterans current rating is as follows:

40% - lower back

20% - right leg

10% - left leg

60% - total

Question: Is this veteran qualified to be considered for TDIU? Why? or Why not?

[carlie]

I've had quite a few people disagree with me on this particular question, so I want to ask here and see what the consensus is.

Consider this hypothetical veteran:

The veteran suffered a lower-back injury on active duty back in the 1980s. He received hospital treatment at the time so, years later, with his SMR, service connection was an easy matter. The VA attributes the veterans current lower back disability to his documented injury in the 1980s.

The veteran also suffers bilateral radiculopathy (legs), and the VA connected that, secondary to the SC back condition. The verterans current rating is as follows:

40% - lower back

20% - right leg

10% - left leg

60% - total

Question: Is this veteran qualified to be considered for TDIU? Why? or Why not?

A vet can submit a claim for a benefit issue at any time and yes, it will be considered.

Whether the issue is granted or not is completely separate from the above.

Is the veteran in receipt of SSDI benefits due solely to SC'd conditions ?

Does the veteran have medical evidence from a licensed medical professional

and / or an occupational specialist

stating an opinion such as, due solely to the veterans SC'd condition they find

the veteran to be completely and totally unable to hold substantial gainful employment.

Has the veteran been denied or released from a voc rehab program due solely to their

SC'd conditions ?

Does the veteran have any letters to submit, from prospective employers stating something like,

unfortunately due to the demands of XYZ position they feel you are not a viable candidate

for employment with them, due to your medical conditions, etc . . .

Under 38 CFR 4.16a - the claim for IU will be denied.

Under 38 CFR 4.16b - the claim for IU can be submitted

but IMO - it will be denied.

jmho

http://www.ecfr.gov/cgi-bin/text-idx?SID=9a6e233ec8d4952ff91c5e038b8ace95&node=se38.1.4_116&rgn=div8

§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 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.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]

[Byte187]

carlie, thanks for that reply, but I'm looking for an answer without the extra variables like SSDI, Voc Rehab, etc. And maybe I asked the question wrong with "qualified to be considered." Of course any veteran can submit any claim they choose and of course it will be considered, even if that just means reading the claim and rubber stamping a DENIED on it.

I'm not trying to determine if this veteran is qualified to be awarded TDIU -- that's where all those other things would come in to play. I'm asking about the VA even considering an application for TDIU with that veteran's current rating.

You touched on the point I'm specifically looking for.

--> "Under 38 CFR 4.16a - the claim for IU will be denied."

What do you see in 4.16a that will cause this claim to be denied?

[RUREADY]

I've had quite a few people disagree with me on this particular question, so I want to ask here and see what the consensus is.

Consider this hypothetical veteran:

The veteran suffered a lower-back injury on active duty back in the 1980s. He received hospital treatment at the time so, years later, with his SMR, service connection was an easy matter. The VA attributes the veterans current lower back disability to his documented injury in the 1980s.

The veteran also suffers bilateral radiculopathy (legs), and the VA connected that, secondary to the SC back condition. The verterans current rating is as follows:

40% - lower back

20% - right leg

10% - left leg

60% - total

Question: Is this veteran qualified to be considered for TDIU? Why? or Why not?

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.

Right now you need another rating to bring the total up to 70% or 4.16(B) for extra-schedular concideration

I would file for depression due to pain and the inability to preform the things I once did. Experts advice

for VA claims even lawyers have no ideal of what the decision will be jmho

Edited September 6, 2014 by RUREADY

[Byte187]

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.

Right now you need another rating to bring the total up to 70% or 4.16(B) for extra-schedular concideration

I would file for depression due to pain and the inability to preform the things I once did. jmho

Thanks all, but let me just cut to the chase. I've had this conversation several times in the past two years, and so far, everybody has disagreed with me. Including two VSOs in the past 12 months, both of them even raised their voices at me, pee'd off that I had the nerve to disagree with them.

The specific point I make is this: according to 4.16a (as pointed out) veteran must have one single disability ratable at 60% or multiple disabilities rated a total of 70% with at least one of them being rated 40%. That's what everybody points out to me. But what I try to point out is subsection 2 or 4.16a:

For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:

(2) Disabilities resulting from common etiology or a single accident.

I contend that this veteran's multiple disabilities share a common etiology (the back injury in the 80s) and therefore, the VA considers them to be one disability, rated at 60%, which now qualifies the veteran to be considered, according to 4.16a.

This is my contention that so many people have disagreed with me about. I can't understand why they disagree -- nobody has offered an explanation -- but I'll be happy to stand corrected if someone can show me why I'm wrong. And not just loudly cut me off mid-sentence, like the two VSOs did recently.

[carlie]

carlie, thanks for that reply, but I'm looking for an answer without the extra variables like SSDI, Voc Rehab, etc. And maybe I asked the question wrong with "qualified to be considered." Of course any veteran can submit any claim they choose and of course it will be considered, even if that just means reading the claim and rubber stamping a DENIED on it.

I'm not trying to determine if this veteran is qualified to be awarded TDIU -- that's where all those other things would come in to play.

I'm asking about the VA even considering an application for TDIU with that veteran's current rating.

You have already acknowledged that "Of course any veteran can submit any claim they choose and of course it will be considered, so

I do not understand why you are asking the same question again.

Irregardless of the veteran's current rating, the "application for TDIU" would have to be considered.

You clearly already understand this.

You touched on the point I'm specifically looking for.

--> "Under 38 CFR 4.16a - the claim for IU will be denied."

What do you see in 4.16a that will cause this claim to be denied?

I do not feel the claim for IU will be warranted / granted because I do not feel that in the judgement

of the rating agency, they would adjudicate that SC at 40% lower back, 20 % left leg and 10% right leg,

would render the veteran unemployable.

Now, I do feel that if the veteran could submit the additional evidence I suggested, they would have

more of a chance in getting IU granted, but NOT without that additional supportive evidence.

jmho - carlie

[carlie]

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.

Right now you need another rating to bring the total up to 70% or 4.16(B) for extra-schedular concideration

I would file for depression due to pain and the inability to preform the things I once did. Experts advice

for VA claims even lawyers have no ideal of what the decision will be jmho

The OP has not made any mention of depression.