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adjudication of an extra-schedular rating


blahsaysme2u
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Question

i have looked all over this forum for info on this and everything comes up about TDIU . i am not unemployed, though one could argue i probably should be. thats for another discussion. i dont want to sit on my but and have to keep busy...

anywho- i am not one to put all my eggs in one basket. so even though i really appreciate all of the help i get from here, i ask around at other places and try to find other angles to fight the VA. 

i am sure you are tired of hearing about CAPD by now as i have posted a lot the past few days on the topic, but the VA has a research department that studies CAPD and are the ones that linked JP8 as a possible cause of the disorder. VA RR&D National Center for Rehabilitative Auditory Research is located in Oregon. so i reached out to them(multiple emails to multiple people listed there in their directory 🙂 ) i said the below:

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Good afternoon,

I am a veteran seeking a va claim for my recent CAPD diagnosis by my independent audiologist. I am hoping that you might can help me locate the correct DBQ for this condition for my claim as well as the VBA's Schedule of Ratings Code for CAPD(or APD)

i didnt expect to get such fast response, but i guess when you blow up everyones email in the same department, squeaky wheel gets the grease 😉 i just got this response:

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Thanks for contacting me.  Presently, there is no policy or procedure for Compensation & Pension (C&P) exams for CAPD. CAPD is not listed under the Veterans Affairs Schedule for Rating Disabilities (VASRD), and there is no practical application to rate percent disability for CAPD under the U.S. Code of Federal Regulations (38 U.S.C. 1114(k)). However, if there are unique disability symptoms or expert evidence of interference to employment, the case may be referred to the VA Compensation and Pension Service director for adjudication of an extra-schedular rating.  Here is a link with a little more information about extra-schedular ratings in case it’s helpful: https://www.law.cornell.edu/cfr/text/38/3.321

 

BUMMER RIGHT?!?!?!?!

so what do i do next guys. what is this "adjudication of an extra-schedular rating"?  i have seen plenty of appeals cases that have CAPD listed(ie https://www.va.gov/vetapp03/Files/0300474.txt , and this was all the way back in 2003) so i know that people are submitting claims for this but i dont understand this extra-schedular? is she saying TDIU? if so thats not me and need another option. 

let me know what you guys think or point me in the direction of a thread that has discussed this topic before.

thanks guys

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You ask excellent questions, and this is a great one.  Since I went through it, I can tell you how I did it.  On another website, a person claiming to be an ex rater basically told me that VA doesnt do 38 CFR 4.16 b (extra schedular tdiu ratings). 

These are referred to VACO (VA Central office).  I asked him what I had to do to get a referral for VACO to do my 4.16b rating, and he did not have an answer BUT I DO.!!!  He essentially said that (extra schedular) ratings were "rare" and that if you did not meet the percenatage requirements in 4.16 a, you would not get tdiu.  However, in several law firm websites they pointed out THAT was not true, because of 4.16 b.  4.16 b uses the phrase "shall be rated totally disabled".    I have read later that the term "shall"  is a legal term indicating  its mandantory, as opposed to "may" where the decision maker has discretion.  The decision maker does not have discretion here, if I meet the criteria (before the phrase "shall" )  they must grant me the rating because its mandantory.  

Basically I had to "force" the issue.  How did I do that?   Well, I appealed the denial of my tdiu, and argued in my appeal that I was not considered for a 4.16 b (extra schedular tdiu) rating.  Now, you need to bring that issue up on appeal!!!   Otherwise there are not good ways to force the issue.  If you dont bring the issue up on appeal, then the Board does not consider it!!!

     I suggest you read 4.16 b, below, enough times that you virtually have it memorized like I do.

    Well, the board agreed with me, since my doctor opined I was unemployable.  So, they HAD to send my claim to VACO for extra schedular consideration, and, suprise, suprise, they denied it.  But, NOW I have a written decision to appeal!!!  You see, they would rather "gloss over it" and hope Vets dont catch it, and most of the time they would be right.  

But they did not know WHO they were dealing with!!!  They didnt know I could read, and, that I had access to some VEry smart people.  

    So, I made sure I had it covered in my appeal.  For tdiu, you need a doctors statement that "your service connected conditions at least as likely as not render you unable to maintain SGE (substantial gainful employment).   I looked in my file, and my favorite doctor had provided exactly such a statement.  So, I won at the BVA the second time.  

     There are 3 keys to winning this, and all claims:

1.  You either need to be a good reader, and, good with search engines, or know someone who is.  It can be a VSO, your wife, or an attorney friend.  

2.  You need either a Veteran friendly doctor, OR, money to buy your own IMO/IME, to provide a nexus.  

3.  You need persistence and determination to keep going until you win.  Oh, and yes, you also have to have a "winnable" claim.  Some are not winnable.  If you have a dishonorable discharge after 3 days in the service, and you are arguing they caused sleep apnea with no in service event you are going to lose no matter how persistent you are because you dont have a winnable claim.    However, my experience has been "most" claims are winnable.  But not all claims are won.  Why?  Mostly they give up.  Sometimes you have to talk to a half dozen attorneys (like I have), before you find one who "gets" your claim.  

     In 2003, my VSO (VFW) dropped me from repreentation.  They said my claim was not winnable.  I said "phoey".  I served 4 years, had an honorable discharge and good conduct medal.  I served just a few yards from an airport where jet planes roared by my barracks every 15 minutes, and had an audiologist who opined that my hearing loss was "at least as likely as not" due to excessive noise exposure in service.  Oh, yes, I had more favorable evidence too.  I won, altho it took me a long time through persistence and knowledge and some good people helping me, including those on hadit.  

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 4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(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.

 

Edited by broncovet
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Thanks man. i try!

as far as this question goes, maybe i wasnt clear...i am not trying to get TDIU. I like my job and they are very accommodating to my needs. now if i lost this job i dont know that i would find anohter one that i could work..why i said one could argue i probably should be TDIU. 

but until that day i am just trying to hit my 100 goal. and this CAPD is a big part in that. 

but just to clarify my question- the only way to get SC for something that isnt  in Veterans Affairs Schedule for Rating Disabilities (VASRD)? i thought i had read about analogous claims? cant they just SC it under something that is very similar(maybe under TBI or even hearing loss?)

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The VASRD is designed to compensate "the average Veteran" to the degree of work he or she is unable to complete.  That is, the loss of income from working.  100 percent (except for SMC) generally means your disabiitie(s) are severe enough that you can not work.  

So, if you are working, you wont be eligible, generally, for TDIU except under a few unusal circumstances such as a protected work enviornment.  

I am unfamiliar with CAPD, and a search was not meaningful.  

Generally, if you are working full time its difficult to obtain a 100 percent rating.  There are exceptions.  One example is Tammy Duckworth who lost her legs to an IED.  She is apparently rated 100 percent and works.  She has "overcame" her disabilities (no legs), and managed to use her wheel chair and earn a living.  However, the VASRD is for "the average person", and most people who have no legs cant very well get a job.  

My doctor at VAMC is legally blind.  But he still works as a doctor.  Its incredible.  If he was sc for vision loss, he could get 100 percent and work also.  

But, when you read the criteria for 100 percent for mental health disorders it states, "Total occupational and social Impairment".  How can one claim they are totally occupationally impaired if they are working full time?  This is why its exceptionally difficult for mental health disorder related VEts, such as PTSD Vets, to get 100 percent if they are still working.  

Again, I dont know what CAPD means.  In at least your case, it seems to mean what ever your symptoms, you are still able to work full time.  

Yes, there are analagous ratings, and, yes they "can" SC it under another DC.  But, if you are working full time, the evidence does not support a 100 percent mental health rating if you are able to work full time.  Again, read the criteria, where I posted it elsewhere.  

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Many years ago I had similar experience with an extra scheduler.  Veterans like me/us are not suppose to file a claim directly to VARO for extra scheduler but this rarely granted claim is submitted by the VA rater to central office if he or she thinks the vet is entitled to IU based upon a rating or combined ratings that is less than the required 60% single issue rating or a 70% combined rating according that is normally required for eligibility to obtain TDIU.

Broconvet has given you the 38 CFR regulations and good advice above.  Like him I also ask for extra scheduler IU for my 1985 to 89 50% PTSD rating and was denied but still I ask for it in a later CUE claim filed in 2000 and I then appealed on my own all the way up to the U.S. CAVC vet court where they agreed and said the 85 to 87 VARO decision should have adjudicated me for an inferred TDIU Claim and the court remanded the claim back to the BVA to adjudicate me for that TDIU.

I did receive TDIU P&T in August of 2000 and long before the court decision in my favor in 2005.

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Dustoff

    Exactly.  This is a classic example of the VA wanting to keep Veterans in the dark. They even have retired raters, on other sites, telling Vets "not to bother filing" for tdiu unless you meet the 50/70 percent "requirements" (that are not required) in 4.16 a.  

    If they can keep you from filing, then the lowball rating they gave you can be kept a lowball rating...even tho you cant work, the VA wants you to try to survive on 70 percent, 50 percent or even less.  Its inconsistent with the regulations, reminding you of 4.16 B which states:

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(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.

Instead of this regulation, they cite 4.16 a, which looks like you have to meet those minimum standards for tdiu.  Its just another lie VA tells us...and they get most Veterans to believe it, too.  

    I can not beleive that  retired rater "tried to make everyone believe" that you had to be at least 50 percent to get tdiu.  Its simply not true, and inconsistent with the regulations.  This guy said he trained raters, so now we know how VA "trains" the raters into believing much more strict criteria, than the regulations so state.  

    I wear the "badge of honor" for being banned from that website, because I DARE argue with a retired rater that Veterans DO NOT necessarily need to be at least 50 percent disabled to get tdiu.  4.16 a is designed to confuse Veterans, and NOT read 4.16b.  
 

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@broncovet I recently had to dig up the full definition of "total disability ratings" in my challenge to the S-DVI insurance waiver. I say 4.16 and believe that's where they were justifying denial of the waiver to veterans who were still employed. I ended up finding the complete definition of total disability ratings here. I had already known about 100% schedular and IU/TDIU, but didn't realize there were other ways to be classified as totally disabled.

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§ 3.340 Total and permanent total ratings and unemployability.

(a) Total disability ratings -

(1) General. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

(2) Schedule for rating disabilities. Total ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent evaluation or, with less disability, where the requirements of paragraph 16, page 5 of the rating schedule are present or where, in pension cases, the requirements of paragraph 17, page 5 of the schedule are met.

(3) Ratings of total disability on history. In the case of disabilities which have undergone some recent improvement, a rating of total disability may be made, provided:

(i) That the disability must in the past have been of sufficient severity to warrant a total disability rating;

(ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and

(iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation.

(b) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence.

(c) Insurance ratings. A rating of permanent and total disability for insurance purposes will have no effect on ratings for compensation or pension.

[26 FR 1585, Feb. 24, 1961, as amended at 46 FR 47541, Sept. 29, 1981]

 

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1 hour ago, broncovet said:

Generally, if you are working full time its difficult to obtain a 100 percent rating.  There are exceptions.  One example is Tammy Duckworth who lost her legs to an IED.  She is apparently rated 100 percent and works.  She has "overcame" her disabilities (no legs), and managed to use her wheel chair and earn a living.  However, the VASRD is for "the average person", and most people who have no legs cant very well get a job. 

I really have to disagree with this statement... getting a 100% rating has nothing to do with getting or keeping a job. Yes I know you said there are exceptions, but the example you use for the average persons contradicts reality.  I dare say anyone without legs could get a job if they  wanted one.  In my case I have a 100% rating for COPD, (which is considered stage 2), if not for my back injury I would still be working even at my age. Also I have separate ratings from the 100% rating that combine to 100%.... even if I only had those  rating I would still be working. I have many Vietnam buddies that have lost legs and arms... most were still working well into their 60's. My own brother who is 67, lost an arm  in Vietnam,  he is rated with at a combined 100%  he has never let it slow him down and works to this day.   Two years ago I was seeing a private doctor for my lungs, This guy had a stroke , was in a wheelchair and could barley move a limb, but his mind was clear and he could speak and think. He had a aid examine his patients and he would treat the person. 

Reality is,  many people want to work regardless of their medical conditions  and many will continue to work.  Frankly, even with my back injury,  if Civil Service had not medically retired me ,  I would have worked until I could no longer get around without my wheelchair, as I should have been reassigned into a sit down job in my field of Computer/ Lan specialist ... or they could have just given my a job that I could learn to do... but because of the forced retirement ,  I instead applied for TDIU. Over time lack of  work leads to loss of self respect and to this day, I regret that decision, and should have found something meaningful to do with my life. Over the last 20 years,. I have lost friends,  and  business contacts, once someone see you in a wheelchair  and on oxygen they stop associating with you...and you become a lonely old person quickly.     But many many people with 100% ratings or serious medical issues continue to work well into their golden years....and I dare say they live longer because they feel better about their selves,

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2 hours ago, broncovet said:

100 percent (except for SMC) generally means your disabiitie(s) are severe enough that you can not work.  

So, if you are working, you wont be eligible, generally, for TDIU except under a few unusal circumstances such as a protected work enviornment.  

sorry guys i dont think i am being clear here. i dont want to be TDIU. i want to work. i dont have any one claim over 50%(PTSD) but i have a bunch of things that are adding up to 100%. 

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3 hours ago, Richard1954 said:

I really have to disagree with this statement... getting a 100% rating has nothing to do with getting or keeping a job. Yes I know you said there are exceptions, but the example you use for the average persons contradicts reality. 

yeah my thought exactly. i dont want Unemployability. i just want my CAPD service connected. so can someone decifer my original post with the quotes from the emails i got? is "extra schedular" only for TDUI? or can i find another way to submit a claim for a disability that the Veterans Affairs Schedule for Rating Disabilities (VASRD) doesnt have a rating for schedule for?

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Richard:  

Feel free to try to get 100 percent VA disability while working, but good luck with that.  Dont try it with unemployabllity, unless you work in a protected environment or earn less than about 11,000 per year.  

Also dont try it with mental health disorders, because the 100 percent category specifically states that you have "total occupational and social impairment".  

For me, I have a difficult enough time getting to 100 percent WITHOUT being able to work, so I dont need to try to make it EVEN more difficult by raising the bar yet further and try to get to 100 percent while working.   

Again, the exceptions prove the rule, they dont invalidate the rule.  Tammy Duckworth gets 100 percent because the "average person" who is missing both legs has "little chance" in obtaining employment.  For most of the rest of us, its exceptionally difficult to get to 100 percent..only about 250,000 Veterans, out of 25 million Veterans, have achieved a 100 percent rating. That is about 1/10th of one percent.  

By eliminating both mental disorders And tdiu, you face an exceptional task getting to 100 percent while working.  Remember, with tdiu VA will share your records with social security and if you are earning from work more than 10,000 per year, you are subject to having your tdiu removed.  Further, if you are not "totally occupationaly impaired" with a mental problem, then you no longer meet the critieria for 100 percent and can be reduced "even if" you were able to make it.  

However, if you suceed getting 100 percent and still working, you are in a very small minority to have done so.  Remember the rating protection clause "under ordinary conditions of life"?  See 38 Cfr 3.344.  This means "while working" because "under ordinary conditions of life" means while working.  Disabled people generally dont work, while those NOT disabled generally have to earn a living and work.  

 

 

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Blahsaysme2u:

   You dont have to agree with me.   I do this as a volunteer service, I cant be fired.  

   If you expect compensation for CAPD, its going to take much work.  

1.  You are going to need a diagnosis.  

2.  You are going to need an "in service event" or aggravation that you allege led to CAPD.  

3.  You are going to need a nexus, or doc opinion that your CAPD is at least as likely as not due to  your event in service.  

That is for service connection.  Now, for compensation, you need to document your symptoms.  I dont know what your symptoms are, you said you can hear words but not understand them.  

There are literally millions of Veterans who have hearing loss at zero percent.  I was one.  The schedule for ratings for hearing loss are very very biased against the Veteran getting any compensation at all.  

CAPD has similiarties to  "speech discrimination".  With hearing loss, especially for an extended period, we lose the ability to interpret "spoon" into a device we use for eating.  

Its similar to maybe you hear "spoon" in Chinese, but just because you heard it, does not mean you have any clue what it means.  

Vets are compensated for speech discrimination, its built into the tables for hearing loss ratings.  A test for it is given by an audiologist, using Maryland CNC criteria.  

Now, the big thing about hearing loss is "does it affect your job".  Richard 1954 says it has nothing to do with working, but, well it does.  If Richard thinks its easy to get compensation for a disorder that is unaffected by work, then PM him and maybe he can help you..but I cant.  He says your rating has nothing to do with employment, so maybe he can help you.  

In my hearing loss exam, the audiologist made an opinion on whether or not, or the degree to which hearing loss affects my work.  The VA wanted that.  The VA isnt going to pay me for hearing loss if I can not play video games, or, even if I cant hear my grandchildren.  But they do pay me if I cant understand what my boss says, and cant work.  Being able to work or not is a deal breaker or deal maker for VA disability compensation.  Yes, you can get some benefits while working, and it appears you get that.  But you rarely get 100 percent while working especially with those "invisible" disabilities.  Those are the ones you cant see.  If you are missing arms or legs, people see that and they get it.  But if you have CAPD, or even PTSD, then its an invisible disability and those are rated based on your ability or inabilty to earn and income.  See 38 CFR for mental health disorders..I have posted that already and wont do it again.  The criteria is how much it affects your work.  

Now, there is something called "Central Sleep Apnea".  This is a nerve disorder that affects your sleep.  Poor sleep has its symptoms, even sometimes causing people to fall asleep at work.  This is not real good for keeping your job...if you cant stay awake.  

You are treading new ground, trying to get compensation for CAPD.  You are going to need to document your symptoms and how they affect your work.  Or, you can PM richard and maybe he can tell you how to get 100 percent while working, I can not.  

    

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12 minutes ago, broncovet said:

Feel free to try to get 100 percent VA disability while working, but good luck with that.

Again., can't agree....  Frankly getting my 100% rating was easier that getting my TDIU rating.  All I had to show was that I was on oxygen.  I have more trouble getting a compensable rating for my hearing loss, and that is even with the special considerations  because one ear is worse than the other....Some people can work while others can't, but be sure , with very few exceptions  ( unless a rating says a veteran can't work ) many with a 100% rating can work if they really want too even if its only answering a phone.   TDIU is different, the very nature of asking for TDIU is a statement that you cannot work under most conditions. I concede most with a 100% don't work, but  based on my experience its not because they can't its because they do not want to.

A lot of what you say is opinion,  I am just saying you should not paint with such a broad brush.

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Great, Richard.  You are on oxygen and are apparently able to work.  I saw someone in walmart (a greeter) who was on oxygen and apparently working.  I didnt "paint with a broad brush", I first applied for benefits in 2002, and have answered and read THOUSANDS of Veterans posts, as well as won benefits for myself.  

Being able to work on oxygen is truly incredible.  Kudos to you.  However, most people wouldnt.  

Maybe you can help the OP tell him how to win benefits for CAPD while working.  I cant, because the vast majority of 100 percenters are not working.  Only a rare few work and get 100 percent, you are in that elite group being on oxygen and still able to work full time.  

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2 hours ago, broncovet said:

For most of the rest of us, its exceptionally difficult to get to 100 percent..only about 250,000 Veterans, out of 25 million Veterans, have achieved a 100 percent rating. That is about 1/10th of one percent.  

I think this number is a lil scued...looks like that number according to the VA is not a grand total of all 100%:

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VBA regulations provide veterans a temporary 100 percent disability evaluation for service-connected disabilities requiring surgery, convalescence, or specific treatment. As of September 2009, we identified approximately 239,000 veterans who had at least one service-connected condition rated 100 percent disabling

 

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i guess i never thought that  VA ratings are based on how much your disability prevents you from working? i never read that anywhere. but i did a lil googling and found this on the VA website. who knew? you did i guess but i didnt hahaa

 

Quote

 

Benefit Description

Disability Compensation is a tax free monetary benefit paid to Veterans with disabilities that are the result of a disease or injury incurred or aggravated during active military service. Compensation may also be paid for post-service disabilities that are considered related or secondary to disabilities occurring in service and for disabilities presumed to be related to circumstances of military service, even though they may arise after service. Generally, the degrees of disability specified are also designed to compensate for considerable loss of working time from exacerbations or illnesses

 

https://www.benefits.va.gov/compensation/

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1 hour ago, broncovet said:

If you expect compensation for CAPD, its going to take much work.  

1.  You are going to need a diagnosis.  

2.  You are going to need an "in service event" or aggravation that you allege led to CAPD.  

3.  You are going to need a nexus, or doc opinion that your CAPD is at least as likely as not due to  your event in service. 

just to clarify. i have a dx, i was in an ied attack that caused a TBI, and my doc says yes CAPD is more likely than not caused by my TBI and exposure to JP8. i think i am good there. this would not be rated as hearing loss. i am actully thinking i should file the claim as secondary to my TBI. 

also, i am not really treading new water either. just not very traveled water. 

https://www.index.va.gov/search/va/bva_search.jsp?QT=capd&EW=&AT=&ET=&RPP=50&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

again, i am not trying to upset anyone. i am 90% and working. i have a CUE for sleep apnea, which should be 50%, i have 3 claims that i filed for some other injuries that medical records were lost and i just found. those 3 should be 10% each. i also was rated for my headaches secondary to my TBI but they gave me 0% when i know i should be getting at least 30 because of the frequency of it. i could go on but you get the point. all said and done i should have no problem hitting 100%. but i dont want TDIU. and i dont see why i would have to. 

all of that aside i think we have veared off course from my original question. 

15 hours ago, blahsaysme2u said:

what is this "adjudication of an extra-schedular rating"?

is this solely TDIU? is she saying the only way to submit a claim for CAPD is to go for TDIU? if so i know thats not the truth based on the above link for  Board of Veterans' Appeals Decision search results for CAPD. 

and i just want to say i do appreciate your volunteer spirit! you are very helpful and i have learned a lot from you

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The "extra schedular" rating in 4.16b, specifically applies to tdiu applicants who do not meet the requirements (for tdiu found in 38 cfr 4.16 a) but who are found to be unable to work due to SC conditions.  

If you are able to work, then you dont qualfy for "extra schedular" tdiu, found in 4.16 b.   The defination of tdiu (for VA purposes) is "unable to maintain substantial gainful employment due to sc conditions".  If you are working, then you do not meet the criteria for tdiu, either schedular (4.16 a or extra schedular, 4.16b). 

There ARE, however, subtle differences between "working" and "substantial gainful employment".  For example, cutting the neighbors grass and collecting 10 dollars a week is not "substantial gainful employment".  SGE is defined as earning the "poverty level wage" or above, which is about 11,000 per year.  You could work part time, and theoretically still get tdiu as long as you earned less than the minimum poverty level.  Further, the VA makes an exception to "working in a protected work environment".  This is often when a family offers you a job even tho you are "not really" working, its more of charity from your family.  

You have not mentioned your "symptoms" of CAPD.  Example:   I have hearing loss.  On the job, I was unable to understand my boss.  I was also unable to hear the phone ring.  Eventually I got fired, and ultimately got tdiu, extra schedular, as I did not have a 50 percent rating at that time.  My audiologist opined that my hearing loss significantly (and adversely) affects my employment.  

For example, if you did not speak English, if you could get a job here, it would likely be something like making beds or picking fruit.  You probably could not even work at MCDonalds..how would you be able to follow directions if you had no clue what your boss was saying?  While its true that your boss could "write down" your instructions its impractical and most bosses simply would not do that, and they simply would not hire you.  

As an example, I could not work at BVA as a judge.  How could I conduct hearings if I can not hear what they say?  

Now, I do use a close caption phone.  People simply dont want to put up with hard of hearing, it creates more work for others in the office, to do things like write down every instruction.  Therfore, I eventually got tdiu because:  1.  My audiologist opined my hearing loss was significant and adversley affected my employment and 2.  My voc rehab specialist opined that I was not suited for most jobs because I could not understand instructions.  He opined that it was impractical for me to work in an environment where I did not need to hear, I cant pick fruit, and I have no skills as a maid to make beds.  The board agreed, and awarded me extra schedular tdiu under 4.16b because the evidence showed I was hard of hearing and that hearing loss led to me being fired and an inability to maintain SGE.  

If you could demonstrate that your symptom of CAPD meant you were unable to work, then you could maybe get extra schedular tdiu, but this assumes you are not working.  

Now, as far as analogous ratings.  When there is no VASRD schedule for your disability, they use a "similar" diagnostic code, and rate you under that.  

However, your "similar" dc, seems to be hearing loss, and that does not apply.  

Most importantly, you have not listed "symptoms" of CAPD, especialy those which affect your employment.  

You need to remember, that, after you meet the Caluza elements (previously discussed), THEN you have to document "symptoms" especially those which have an effect on your work.  However, your CAPD symptoms apparently dont affect your employement, so its unlikely you will get compensation "unless" you have symptoms of pain (which often requres time off work to seek treatment) or loss of ROM of an appendage, such as your legs.  Being unable to move your legs would adversely affect employement for many many jobs. 

Often, VA denies tdiu because the Veteran has some sort of knee problem, for example.  The VA will suggest you are not unemployable because you could get a sedentary job, such as an accountant and still work.  Often, the Veteran needs to get a voc rehab IMO/assessment as to why sedentary work is not possible or feasable.  

Now, they dont usually insist on sedentary work if you have something like PTSD.  

If you have PTSD and you are a combat Veteran, well many places simply wont hire you because you are a potential threat.  Who wants to hire a guy with a mental disorder who is trained with weapons and may come guns a blazin if you decide he is not the best person to be promoted to supervisor?

You have not mentioned your symptoms of CAPD, and I, therefore can not be of much further service.  You see, if you posted your symptoms (example:  you cant use the telephone) then I may be able to figure out an analogous DC code.  However, absent symptoms, all disorders are rated at zero percent or denied.  

Example:  You have prostate cancer.  You get surgury and its cut out.  You have no more symptoms..but a blood test still shows you test positve for cancer.  This means its asymptomatic.  (no symptoms).  0 percent is the max you will get when you are asymptomatic.  

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So, no, the VA is unlikely to grant you a disability on CAPD if you have no symptoms.  They regurarly deny or rate at zero percent Vets with a disorder but no symptoms.  

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You dont "have" to file for TDIu.  But, if you want an extra schedular rating for tdiu, then you have to file for it.  

If you have sleep apnea, then you could well get an extra 50 percent and that would likely mean you have 100 percent and you can keep working.  (Tho, I think you will find significant resistance to granting you 100 percent while working.  Its possible, just not likely)  

I have asked you what your symptoms of CAPD are..you dont seem to want to say, and that is okay.  It does not matter that much to me.  But VA wont give you benefits unless your symptoms are documented.  Non symptoms=no compensation.

 

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Yes Broncovet you are completely correct about the extra scheduler and TDIU rating method VA raters ignore or dismiss.  As you know I too was banned from the other site for speaking up about many things and disagreeing with them on several important issues based upon my 35 years of myself filing claims and appeals.

I am still slow minded and it took me to long to realize the VB* website is nothing more than a VA Adjudicator's mouth piece and constantly gives out misleading negative opinions on many claims issues that discourages vets from filing claims and appeals such as for example CUE claims.

Having said that I have heard from several knowledgeable sources that extra scheduler IU ratings are very difficult to rare to obtain for vets with the less than 4.16(a) required minimums to obtain TDIU. However with nothing to lose I also asked for extra scheduler in my first two or three disability claims.

When my PTSD rating was finally reinstated to me in 1998 (effective date) it was at the 70% level and I was granted IU at same time of my new higher PTSD 70% level.  May be others can learn from our experiences posted here.

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