tdiu Going from VA Pension to TDIU

[broncovet]

Im currently in appeals for TDIU.  In 2005, I was awarded VA pension, along with 40% SC.  Because pension was more than the 40% compensation, I got pension.  You get the greater of pension or compensation, but not both.  

Now, the VA is trying to say IM NOT unemployable.  This seems to be a very bogus arguement, since THEY said I was unemployable in 2005, when they awarded pension, but that I was unemployable to NSC conditions.  

38 CFR 3.3 (eligiblity for pension) states:

A) Is age 65 or older; or

(B) Is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willfull misconduct. For purposes of this paragraph, a veteran is considered permanently and totally disabled if the veteran is any of the following:

(1) A patient in a nursing home for long-term care because of disability; or

(2) Disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; or

(3) Unemployable as a result of disability reasonably certain to continue throughout the life of the person; or

(4) Suffering from:

(i) Any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or

(ii) Any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled.

end 3.3 quote

My question is, when the VA granted me pension, this pre supposes I met the "unemployable" criteria above, considering that I was NOT over 65, not in a nursing home, and I was NOT on social security disability.  So, how can they now say Im not unemployable, when they already made the determination I was unemployable in 2005?

[Gastone]

Bronc, am I reading this right, you aren't actually Rated by the VA as currently being 100% SC Scheduler or Combined SC 100%? It sounds like you currently  have an old 40% SC Comp Rating and  Comp IU Denial Claim (From when?) on appeal.

At only 40% SC, you weren't Scheduler Eligible to File for IU. I think it requires (1) SC @ 60% or (1) @ 40 with additional SC's that combine to 60 or 70%.

Any chance you could post a redacted copy of your Original Denial Decision? Would definitely be interesting & informative, to see the Rater's rational for the IU Denial.

What exactly is your current VA Combined SC Rating? Are you still receiving VA Pension?

Semper Fi

[Gastone]

Bronc, any chance of you posting a redacted copy of your VA Pension Award?

What is listed as your qualifying criteria? Which (1) of the "ORs" listed in the 2005 38 CFR 3.3 (Pension Eligibility), did you meet? Was it specifically addressed in the Pension Award Letter?

Semper Fi

[Buck52]

Maybe a New IMO/IME would help, for a Dr to state your disability's  in his Pro opinion  this veteran can not work due to his disability's. But these disability's need to be S.C.

if you are on SSDI that would help  or maybe check out VocRehab,If they can't find you any type of employment that you can't do   b/c of your Disbilitys...then you need a letter stating  your not Feasible to Retrain at this time.

Medical Evidence Is the best way to win claims!

If VA said you were unemployable  they should have changed your NSC Pension over to Service Connection and rated you the IU back in 2005

[Gastone]

With VA Pension, IU can be due to any Non Service related Medical Condition and is Income based.

Bronc, you weren't 65 when Awarded VA Pension, what Medical Condition (Non SC Rated) made you unable to earn an income?

Any chance it may now be considered a Secondary Rated issue, to your original 40% SC Condition?

Unlike VA Pension, VA Comp IU can only be attributed to a Vet's SC Condition (s), non SC disabilities can not be factored in. You'll note that with VA Comp IU Ratings, age is precluded from being a determining factor.

Semper Fi

[Tyr]

It sounds like the issue is not so much of you are employable or unemployable, but the reason you are unemployable, but its hard to say without knowing exactly why you were denied.

Or did your examiner state that you had zero functional limitations, or what?  If so, it sounds like the easiest solution is for you to get your providers to write a statement about your functional limitations.  Not to sound snarky, but don't submit it if their comments are not in your favor. 

Its always important to remember that a claim for increase is a really a claim for reevaluation.  Things might not always go the way the veteran would like.  Not directed at you, but its good for everyone to keep in mind.

[Buck52]

broncovet,

Here is a post from( beloved  late) hadit elder member  Ms Carlie

It maybe beneficial to you?

http://community.hadit.com/topic/54309-va-compensation-and-pension-regulation-rewrite-project/#comment-325170