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?

[Byte187]

Did you not read #8 post in this thread ?

"I completely agree with your common etiology theory - that part to me, is a no brainer."

No, I didn't see that post until you just pointed it out. I don't think I'm seeing some of these posts in their proper order. I don't know why I don't see some of them right away. Maybe has something to do with how they're moderated, I don't know. I also just noticed post #12 for the first time and GatorNavy agrees with me too.

Like you said, I see the common etiology in this scenario as a no-brainer, but I've had a lot of people argue against it -- including two professional VSOs.

[killemall]

My opinion is that the veteran is qualified for tdiu as long as the legs are secondary to the back and its all clear as day.

Im my case I b elieave I will soon be rated 50% for hearing loss and 10% for tinitus. This is 55% by VA math and rounds up to a 60% rating.

Since ringing of the ears and hearing loss are both from the same etiology I feel I am warranted to apply for tdiu and will do so.

Rather the va grants or not is a differant matter but I do feel that your situation and mine as well both warrant the Bear minimum for tdiu purposes.

With that stated...I feel that the back and legs equalling 60% will be a harder battle than a total of 60% coming from the same etoligy.

[Berta]

You have received superb Expert advise on this thread.

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

But I have a question for you....

What is the status of this claim you had:



Broncovert's reply was right on the mark.

It is not a stretch to consider that any type of DDD, etc, could potentially aggravate OSA, if not be a medical cause for it.

But any type of claim like that as well as TDIU involves a medical nexus and a strong medical rationale....and the OSA claim will certainly require an IMO
unless the VA doc made a full medical rationale.

TDIU can be an Inferred issue, when the evidence warrants it:



TDIU is considered , inferred, and adjudicated per M21-1MR...I have posted that link here many times...it is available under a search.
M21-1MR is the handbook for the Ros as to how to adhere to the regulations for all claims.



As you can see in this link Larry, a long term member here until his death, was tired of this issue being discussed over and over again,as in the 16 years I have been here.

It is possible that if the OSA claim succeeds, or the OSA is rated as "aggravated" by any of your SCs, they might consider TDIU at that time.or extraschedular.

So far I see nothing that indicates the VA could award you TDIU .

You want to be right. We ALL do.

But the best way to be right with VA is to have probative medical evidence to back up our position.

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

No....Because there is no medical evidence we are aware of here, that supports a finding of TDIU at this time.

If you obtain an IMO for the OSA that follows the IMO criteria here, and that claim succeeds, then I am sure the VA would have to at least consider TDIU as an inferred issue......
maybe.... I said if and we are not here to really develop hypotheticals.

However IF the IMO also makes strong statements with a full medical rationale, that your SCs hinder your ability to have gainful employment, then that is good evidence for TDIU or extraschedular 100% and your first couple of comp checks at those levels will probably cover the investment of the IMO fee.

[Byte187]

You have received superb Expert advise on this thread.

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

But I have a question for you....

What is the status of this claim you had:

Broncovert's reply was right on the mark.

It is not a stretch to consider that any type of DDD, etc, could potentially aggravate OSA, if not be a medical cause for it.

But any type of claim like that as well as TDIU involves a medical nexus and a strong medical rationale....and the OSA claim will certainly require an IMO

unless the VA doc made a full medical rationale.

TDIU can be an Inferred issue, when the evidence warrants it:

TDIU is considered , inferred, and adjudicated per M21-1MR...I have posted that link here many times...it is available under a search.

M21-1MR is the handbook for the Ros as to how to adhere to the regulations for all claims.

As you can see in this link Larry, a long term member here until his death, was tired of this issue being discussed over and over again,as in the 16 years I have been here.

It is possible that if the OSA claim succeeds, or the OSA is rated as "aggravated" by any of your SCs, they might consider TDIU at that time.or extraschedular.

So far I see nothing that indicates the VA could award you TDIU .

You want to be right. We ALL do.

But the best way to be right with VA is to have probative medical evidence to back up our position.

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

No....Because there is no medical evidence we are aware of here, that supports a finding of TDIU at this time.

If you obtain an IMO for the OSA that follows the IMO criteria here, and that claim succeeds, then I am sure the VA would have to at least consider TDIU as an inferred issue......

maybe.... I said if and we are not here to really develop hypotheticals.

However IF the IMO also makes strong statements with a full medical rationale, that your SCs hinder your ability to have gainful employment, then that is good evidence for TDIU or extraschedular 100% and your first couple of comp checks at those levels will probably cover the investment of the IMO fee.

Hi Berta. Thanks for the reply. But it seems that you, like several other respondents to this question, have taken it beyond its actual scope, and assumed that it's about me and an actual IU claim. It's not. All of the replies offering advice on how I might win an IU claim, while they might be superb, and I appreciate them, they are totally irrelevant to the question.

As I tried to clarify many times already, this really is a hypothetical scenario about a circumstance in which I believe many vets can find themselves. It's simply about the rating qualifier in the CFR, specifically regarding the "common etiology" clause that I found is so often misinterpreted.

I don't have an IU claim, nor do I plan an IU claim. This question arose a couple years ago, and I have since realized how important it is. Because of how often I see the CFR regarding common etiology being misinterpreted (or not read at all) I can see how many veterans who might actually qualify and deserve IU, could be turned away by a VSO, simply because they didn't read the CFR correctly.

Now, about my actual claim -- the one you point to in the other thread -- I answered both carlie and broncovet in that thread yesterday but, as of yet, my replies have not been moderated and posted.

[Byte187]

> So far I see nothing that indicates the VA could award you TDIU .

My question has nothing whatsoever to do with VA awarding me TDIU.

> You want to be right. We ALL do.

That's a really condescending remark. It reminds me of some of the remarks I got from two "professionals" when I had this "rating qualifier and common etiology" conversation with them. Conservations separated by several months, both professionals offered me the same raised-voice response: "Hey, I've been doing this for xx years! I know what I'm talking about!"

> But the best way to be right with VA is to have probative medical evidence to back up our position.

Again, my question was only to address the rating qualifier that must be met before a veteran can be CONSIDERED for IU, nothing beyond that -- not any medical evidence that would be required to WIN an IU case, but ony the rating qualifier that allows a veteran to be considered in the first place.

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

I don't know how else I could have asked it any clearer than that. If someone understands my question and has a better way to ask it, please do.

> No....Because there is no medical evidence we are aware of here, that supports a finding of TDIU at this time.

Medical evidence? Medical evidence comes in DURING the consideration process. Again, my question was only to address whether this veteran meets the rating qualifier to even begin the consideration process -- "qualified to be considered" -- it was never meant to address anything beyond that.

I tried my best to clarify the question. I'm sorry I failed.

[broncovet]

Thanks, Berta. Vets do this over and over.

Byte posted:

"broncovet, But isn't the common etiology already proven in this case?"

Broncovet says: No. The proof needed is medical evidence. We dont know if there is medical evidence to support the common etiology or not, but it must be there to "prove" it. It is not a "gimme" from VA.

" Remember, the back was determined, by the VA to be a result of a specific injury in the line of duty, and then the legs were determined, by the VA, to be a result of the back condition -- therefore, the back and legs share the common etiology of that single injury.

No?"

Broncovet says:

Again, "common etiology" is a medical determination. While I agree it is possible to "connect the dots", I can also say the VA wont do this absent a Doctors opinion of same. Its possible, for example, that the "back was a result of a specific injury in the line of duty" and "the leges determined by VA to be a result of the back", but they not share a common etiology.

Instead, this appears they do NOT have the same etiology, ie, the etiology of the back was an injury in the line of duty while the etiology of the legs was a result of the back. An injury "in the line of duty" is not the same as an injury "as a result of the back".

The VA never awards benefits on "what we think", but on what the doctor says in his report. Time and again the VA has said we are not competent to make a medical determination..and that a medical diagnosis or determination has to be made by a physician or other qualified medical personel. Like a nexus statment, a common etiology is a medical determination that has to be made by a doctor..not a guess from us.

Over and over, Vets expect VA to grant benefits absent medical evidence, and over and over, VA says we need medical evidence, and this never means the Vets opinion that his condition was caused by military service or the Vets opinion it was a common etiology.

NO medical evidence = No benefits.

To reiterate..if your doc says this is a common etiology..then you have the evidence. If your doc report does not opine as to whether or not this was a common etiology, then you will likely need to obtain said evidence before being awarded benefits, in this case, TDIU. If the doc says nothing, then the default is "no benefits" and you will need to get a favorable doctors opinion to get benefits. They wont assume the doc thinks this is a common etiology.

Edited September 7, 2014 by broncovet