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?

[Buck52]

just my opinion,

I believe that byte187 is refering to bad judgment with the VSO'S that don't take the time to read the CFR's or understand them and his point is that many many vets that are qualified for IU under the CFR'S and are mislead and give up on there claim.

Under the said veterans current rating , my answer would be yes the veteran can be re evaluated to a higher rating under the CFR'S and be consider for IU.

this can be done at the RO level!

There's been expert advice on this subject... I agree with everyone here and its all great advise NO one is wrong here!

To me if veteran files for an increase on his/her current SC disability's like byut187 has mention and feels his/her current condition has got worse and prevents him /her from working or having gainful employment...then sure file a claim for IU based on new evidence from recent IMO Dr's Reports stating that ...''it is likely to as not that this veterans disability's prevents he/she from working''.

RO's should take this into consideration and if a new rating is an issue then the RS & DRO can expidite the ratings under the CFR's specs to award this veteran his/her claim as TDIU & depending on the nature of the said disability's if P/T is awarded.

With this all said the veteran can still be denied we all know that... but should still be consider for IU under the CFR's

Just my 2 cents.

Edited October 27, 2014 by britton

[Tbird]

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?

4.16 part b is where this would be allowed if your service connected conditions keep you from substantially gainful occupation it could be awarded as TDIU

(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.