tdiu Tdiu Initial Denial What Is Needed To Get Approved?

[ltllis1977]

Good Morning

I just received my letter with the decision on my claim. I applied for an increase in anxiety and got it, migraine headaches, not sure how that got in there but it got decreased, but I am not concerned with that portion. IT is the unemployability i am concerned with.

Long story short, I have not been able to find a job since I came to Tennessee in Jul 2013, with the exception as a driver helper at ups for christmas 2014. Started working at the USPS on 26 December 2014 then was terminated on 18 April 2015.

On 22 April 2015 I put in the claim above. I just told the above facts on ebenefits for my claim.

So my letter states May 1, 2015 $1839.48 compensation rating adjustment my increase for depression/anxiety from 30 to 50% effective date I filed

June 25, 2015 $1586.71 compensation rating adjustment decrease from migraine headache 30 to 0%

effective date of my compensation exam

Oct 2022 $1530.71 minor adjustment

So combined was 70 % Mar 21, 2013

80 % April 22, 2015

70 % Jun 25, 2015

Entitlement to individual unemployability is denied because the claimant has not been found unable to secure of follow substantially gainful occupation as a result of service connected disabilities. The Veteran is considered capable of gainful employment.

So my question is what do I need to prove my unemployability? I am preparing my appeal right now! and will get the proof that is needed, but have no clue what that is. They already have the termination from the post office. Please help!

[Gastone]

You May or May Not actually be IU qualified. Unemployed or under-employed really doesn't count. VA rater will look at your education and training and quite possibly decide your capable of some sort of Sedentary Employment that can provide you with $238.00 per week. X 52 = $12,376.00.

If your deemed capable of earning in excess of the $12,400 (Substantially Gainful Income) doing any type of job, your screwed. IU Denied!

Think about using the VA Vocational Rehabilitation Dept to either get retrained or to get a Professional VA Employment Councilor "Denial Letter." If a Voc Rehab Councilor were to write a "Denial Letter" indicating your SC conditions preclude you from a successful completion of the Retraining Program, a DRO would grant your IU Appeal.

The Voc Rehab Denial Letter would be the "New & Material Evidence," needed to win your appeal. Might even get an earlier Award with the VA required Automatic Review of your claim due to the "Receipt" of the N&M Evidence that wasn't available to the original Rater. Unlike a DRO Review, this review gives deference to the original rater's decision.

Semper Fi

[Matthew Hill]

Itllis1977,

What you need to prove that you are unemployable is that you cannot 'secure gainful occupation'.  That is the legal standard and, unfortunately, it has not been well defined by the VA.  What it is not is an review of whether you are able to do sedentary work.  That is a concept from Social Security law that has never been formally adopted by the VA.  Nevertheless, you see denials from ROs on this basis.  

 

What VA must consider is your educational and vocational background and how your disabilities affect you.  The key here is that the standard is a subjective standard--i.e. it is based on your situation not the average veteran standard, which is used in all other situations.  Your job at USPS was marginal employment and does not count against you.  If anything it shows that even when you try to work you cannot.  Furthermore, even if you are looking for work that does not preclude IU.  If you keep getting jobs and losing them this would be further proof of your claim.

If you are interested in working then I would recommend going through VA voc rehab.  This will result in one of two situations.  One VA trains you/ helps you find a job where you can work and then you can reenter the work force.  At that point, you don't need iU.  Two, after a good faith effort on your part it is determined that you cannot work then you have evidence from VA's voc rehab that you cannot work.  That is powerful evidence for your claim.

Good luck

 

[broncovet]

You have been given great advice.  It all boils down to evidence, and you need to review your file to see what is actually in there, which is often different from what the Veteran "thinks" is in his file.  Stuff gets lost and shredded and docs dont always write down what they tell you.  

If you have not filed the 21-8940, your claim will be "administrately denied".  

Its not enough you are unemployed.  

You have to be UNemployable due to SC conditions.  This is different than "unemployable" or even unemployed.  Lots of people are unemployed due to many many reasons..such as the company layed off half its workforce due to budget concerns.    

A doc needs to make an opinion that you can not work due to SC conditions.  Read in your cfile to see if one says that, or something close.  

If there is no nexus, then you need to get one or your claim will likely fail.  

[goaltender]

Good luck 1977.

[bracholi]

Itllis1977,

What you need to prove that you are unemployable is that you cannot 'secure gainful occupation'.  That is the legal standard and, unfortunately, it has not been well defined by the VA.  What it is not is an review of whether you are able to do sedentary work.  That is a concept from Social Security law that has never been formally adopted by the VA.  Nevertheless, you see denials from ROs on this basis.  

 

What VA must consider is your educational and vocational background and how your disabilities affect you.  The key here is that the standard is a subjective standard--i.e. it is based on your situation not the average veteran standard, which is used in all other situations.  Your job at USPS was marginal employment and does not count against you.  If anything it shows that even when you try to work you cannot.  Furthermore, even if you are looking for work that does not preclude IU.  If you keep getting jobs and losing them this would be further proof of your claim.

If you are interested in working then I would recommend going through VA voc rehab.  This will result in one of two situations.  One VA trains you/ helps you find a job where you can work and then you can reenter the work force.  At that point, you don't need iU.  Two, after a good faith effort on your part it is determined that you cannot work then you have evidence from VA's voc rehab that you cannot work.  That is powerful evidence for your claim.

Good luck

 

It feels like maybe I've fallen through the cracks here a bit. 
I was discharged in 2010. I haven't gotten too much worse than I was when I first got out. I did everything I could to provide for my family following my separation. I was working security for 10 bucks an hour, working 35 hours a week average. It was too much, but I had a newborn, and it wasn't like the VA was quick about my first disability rating. They service connected practically everything at 0%, and discovered a "non-service connected" Arnold Chairi Malformation (I placed that in quotes because it was never even a real consideration on their part, just a quick case closed assumption). The only thing rated service connected above 0% was my back, which netted me 10%. I put in an appeal coming up on a year later, but not knowing the system, only appealed for my back injury. That appeal didn't require a C&P exam, took some years, and netted 20% with 10% right leg and 10% left leg radiculopathy. Just to shorten the story a bit... I still haven't been tested for Sleep Apnea, I still have insomnia, and in fact at the time of writing this, I've been up all night. I'm now at combined 70%, haven't worked in a year, I was allowed to quit rather than being fired for inability to work. I was "let go" from the post office in early 2014 from being unable to keep up with the job. I guess it shouldn't be a surprise though considering I've been going on with a torn rotator cuff apparently. Still have yet to get MRI for the left shoulder, unsure why they didn't do both... 

Anyways I'm at 70% combined now. I haven't been able to work, but have managed to get into college through Voc Rehab. I hate the idea of doing nothing. I'd love to eventually be able to work, even if it is at my own pace as an engineer. I'm just not sure why the VA wouldn't consider me unemployable until that time. I feel like I have the choice of either choosing 100% IU and maybe never getting the opportunity to at least try to work... or continue living off of 70% (which is way better than the past few years living off of 700 a month with a family of 4). I tried looking at that form they expect me to fill out to request IU, and that form is 20 times more difficult than my hardest college class has been to date. I absolutely cannot recall all of the information they want me to recall. I know that I worked at the post office. I couldn't tell you when I started, how long I worked there, the name of anyone I'd worked with, the day I was fired, what I was even fired for, how I felt about it at the time... Now they want specific information that I'm not unwilling to give up, I'm just not capable anymore of remembering. So why is it such a convoluted process to try to establish temporary Individual Unemployability? 

I can understand how some people believe that there are people who just want to abuse the system. I just want what I'm pretty sure I should be able to get under those guidelines they've established. I want IU until I don't need IU, If that time never comes, then I've failed myself. Last time I checked VA employees don't, or at least aren't supposed to, earn bonuses for making a painful and honestly embarrassing process even more difficult...  I guess it works out for them though, because I'm ready to give up on IU, and I haven't even asked for it yet. That 21-8940 form made sure of that. 

This brings me to a question. I have read that I have 60 days since my last increase to file that form for IU consideration, is that true? Because I didn't know that and I flew out to be with family so I'm no where near my VSO to help me with this form. Then the next question is, how accurate and complete does the form really need to be? Should I sacrifice completeness for the sake of accuracy? I wish I could just mind meld folks to give them an accurate depiction of what's going on up in my grapefruit, because working so well. I'll try again later when I'm not flustered. Sorry for what must appear as total garbage here. 

I forgot to add something. Looking back at my records I exited the Army prediabetic. They waited 5 years to diagnose me. Also they keep mentioning my liver functions are abnormal and have been since I exited the Army as well. Apparently both of those conditions relate to sleep apnea. 

Again I'm sorry for posting this. But I want answers and hopefully someone can manage through well enough to see understand my questions. Maybe I'll be calmed down enough to focus and not come off as an imbecile later.

Edited December 14, 2015 by bracholi