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?

[JT24usn]

Byte I would have to agree if the conditions all work together. I've seen IU grant for vets that are rated on all sc conditions from diabetes. Dmii. Pn upper/lower. Nephropathy. HTn and cataracts/retinopathy. Dmii 20. Pn 2nd dmii10 per limb. HTn 2nd dmii. 10. Cataracts/ret 2nd dmii. 0. Neph 2nd dmii 20 All common issue and grant

Another. 40 dm and 30 PTSD. Jmho

Low back and bilateral radiculopathy with drop foot included? Possibility. Jmho

Edited September 7, 2014 by JT24usn

[broncovet]

The issue of whether these conditions share a common etiology is an issue of fact which will be decided by the VARO, and the BVA, if necessary.

Whether or not you will prevail, will likey turn on what the doc says. If the doc says they are the same etiology, then you should prevail. However, if the doc opines they are from a different etiology, your claim will likely fail.

This is part of the "nexus" and the CAVC, and other judges are forbidden to make this medical determination. If your records are ambigious or do not show whether or not this is a common etiology, then another C and P should be ordered.

All this said, the VA loves to just deny these and make you appeal, and get an IMO/IME to try to prove a common etiology, under 4.16 A.

For more on this, read this case:

http://search.uscourts.cavc.gov/isysquery/110b3d84-a144-4418-8c10-20506ef042e7/1/doc/

[Byte187]

Thanks to everyone for your answers. I sincerely appreciate the time you took. However, it looks like everybody read way more into my question than what I was asking.

This question really isn't about me or any actual veteran, it really is a hypothetical question about a situation where many veterans are getting bad/incorrect advice because VSOs are not correctly interpreting the CFR. It isn't about winning IU, It's only about the rating criteria in 38 CFR 4.16 paragraph (a) and about common etiology in sub-section (2).

Yes, I did use my own current rating to pose the question, and that probably lead people to believe I was referring to myself (and all the advice on how I might win my IU case -- which doesn't exist), but the rating used in this question could have been setup many different ways, I just used mine because it does fall into this category I'm talking about. The answer I'm looking for has nothing at all to do with winning an IU case, it's about a situation that many vets find themselves in, where their current rating appears to preclude them from even applying for IU, but only if their VSO doesn't read the CFR completely.

This question came up in a conversation I had with another veteran a couple years ago. He disagreed with me on my interpretation of the CFR, and I could never understand why. So, I asked several more people, and so far, everyone disagrees with me. I don't get it.

To me, it looks so simple, but obviously, it's not so simple to many people.

Thanks again, everyone.

[Byte187]

The issue of whether these conditions share a common etiology is an issue of fact which will be decided by the VARO, and the BVA, if necessary.

Whether or not you will prevail, will likey turn on what the doc says. If the doc says they are the same etiology, then you should prevail. However, if the doc opines they are from a different etiology, your claim will likely fail.

This is part of the "nexus" and the CAVC, and other judges are forbidden to make this medical determination. If your records are ambigious or do not show whether or not this is a common etiology, then another C and P should be ordered.

All this said, the VA loves to just deny these and make you appeal, and get an IMO/IME to try to prove a common etiology, under 4.16 A.

For more on this, read this case:

http://search.uscourts.cavc.gov/isysquery/110b3d84-a144-4418-8c10-20506ef042e7/1/doc/

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

[carlie]

Thanks to everyone for your answers. I sincerely appreciate the time you took. However, it looks like everybody read way more into my question than what I was asking.

This question really isn't about me or any actual veteran, it really is a hypothetical question about a situation where many veterans are getting bad/incorrect advice because VSOs are not correctly interpreting the CFR. It isn't about winning IU, It's only about the rating criteria in 38 CFR 4.16 paragraph (a) and about common etiology in sub-section (2).

Yes, I did use my own current rating to pose the question, and that probably lead people to believe I was referring to myself (and all the advice on how I might win my IU case -- which doesn't exist), but the rating used in this question could have been setup many different ways, I just used mine because it does fall into this category I'm talking about. The answer I'm looking for has nothing at all to do with winning an IU case, it's about a situation that many vets find themselves in, where their current rating appears to preclude them from even applying for IU, but only if their VSO doesn't read the CFR completely.

This question came up in a conversation I had with another veteran a couple years ago. He disagreed with me on my interpretation of the CFR, and I could never understand why. So, I asked several more people, and so far, everyone disagrees with me. I don't get it.

To me, it looks so simple, but obviously, it's not so simple to many people.

Thanks again, everyone.

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."

[carlie]

Examples - Common Etiology:

Here's some BVA cases that are not "hypothetical" these are tried and true decisions and

clearly address your theory in regards to - 4.16a, factoring in common etiology for a combined

60% disability, thus eligibility is established (in this regard only) for IU.

1)

http://www.va.gov/vetapp12/Files4/1225932.txt

"While the Veteran does not have a single disability rated at 40 percent and it does not appear at first glance that the requisite percentage standards for consideration of a TDIU for multiple disabilities under 38 C.F.R. § 4.16(a) are met, disabilities resulting from a common etiology or a single accident, or from multiple injuries incurred in action, or from multiple disabilities incurred as a prisoner of war, may be considered on a combined basis for the purposes of establishing one 60 percent disability, or one 40 percent disability rating. 38 U.S.C.A. § 4.16(a)(1).

Therefore, with application of the aforementioned provision in mind, the Board finds that the Veteran's six service-connected disabilities all arise from his service in Vietnam, including exposure to herbicides, and thus all result from a common etiology. The Board notes that these disabilities met the criteria for presumptive service condition for exposure to herbicides in the Republic of Vietnam as follows: carcinoma of the lung at 30 percent; coronary artery disease at 30 percent; diabetes mellitus at 10 percent; and for peripheral neuropathy of the lower extremities secondary to diabetes at 10 percent. Therefore, the Board finds that all of these disabilities may be combined and form the basis for the establishment of a disability rated as at least 60 percent disabling under 38 C.F.R. § 4.25, for purposes of a TDIU as having a common etiology. Thus, as the Veteran has one disability rated at 60 percent, he clearly meets the minimum percent rating requirement of 38 C.F.R. § 4.16(a). Consequently, the schedular standards for consideration of a TDIU under 38 C.F.R. § 4.16(a) are met."

2)

http://www.va.gov/vetapp13/Files5/1341275.txt

"TDIU

TDIU is a potential element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the instant case there is extensive evidence of unemployability related to the service connected right knee disability.

TDIU is granted when a Veteran's service connected disabilities render him or her unemployable; those disabilities are rated less than total, and there is at least one disability rated 40 percent or more and sufficient other service connected disability to yield a combined rating of 70 percent or more; or a single disability rated 60 percent or more. 38 C.F.R. § 4.16(a). For purposes of TDIU, disabilities of common etiology or accident, and injuries incurred in action will be considered a single disability.

In addition to the knee disabilities discussed above, the Veteran is service connected for posttraumatic stress disorder, rated 30 percent disabling since August 10, 2009; multiple rib scars, rated 10 percent disabling, a right great toe disability as secondary to the right knee disability, evaluated as 10 percent disabling. The combined rating would be 100 percent prior to July 1, 2009; and at least 60 percent since that date. These disabilities are all the result of injuries incurred in action and are of common etiology. Hence the percentage requirements are met."

3)

http://www.va.gov/vetapp08/Files5/0838043.txt

"But the regulations provide that for purposes of determining
eligibility for TDIU, disabilities of a common etiology are
considered one disability. 38 C.F.R. § 4.16(a)(2). When
service connection for plantar fasciitis was granted in
March 1999, the veteran's plantar fasciitis disabilities were
determined to be secondary to his bilateral pes planus
disability. Since his disabilities are of a common etiology,
this veteran is deemed to have one disability. As the
combined rating for that disability is at least 60 percent,
the veteran is eligible for TDIU.

The next step is to determine whether the veteran is
unemployable-that is, whether any service-connected
impairment of mind or body is present that is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1),
4.15. In evaluating a veteran's employability, consideration
may be given to his level of education, special training, and
previous work experience in arriving at a conclusion, but not
to his age or impairment caused by nonservice-connected
disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact
that a claimant is unemployed or has difficulty obtaining
employment is not enough. A high rating in itself is
recognition that the impairment makes it difficult to obtain
and keep employment. Rather, the question is whether the
veteran is capable of performing the physical and mental acts
required by employment, not whether the veteran can find
employment. 38 C.F.R. §4.16(a)"