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Tdiu question


Remisdad
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I recently asked a question about my remand and would like to say thank you for the answers. Now I have more questions.  In my reasons for remand they highlighted what my c&p examiners said. One said that I have become more of a liability on the job and if I were in an accident my employer could be held liable and the 2nd one said my ability to work is impacted due to my inability to grip with my left hand if I need to lift something with both hands. My claim has been remanded to the director of compensation services for extraschedular consideration consistent with 38 cfr 3.321 b. I've only got 10% rating and am only asking for 10% more. Do I need to think about trying to get tdiu? Would it even be possible to get it?

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Yes.  Allow me to correct your regulation citation: 38 CFR 4.16 B

Quote

(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.

  There is no percentage requirement for 4.16b (extra schedular tdiu).  

Yes, its possible to get it, but VA will fight you every step of the way.  Source:  I won extraschedular TDIU under 38 CFR 4.16b.  I hired an IMO, suggested by my attorney.  (Cliff Parker, Voc REhab  specialist)  It cost me less than $1000.00   Consider an IMO, you are in remand, so you can submit it.  

    You need to tell your IMO what you posted:

 "One said that I have become more of a liability on the job and if I were in an accident my employer could be held liable and the 2nd one said my ability to work is impacted due to my inability to grip with my left hand if I need to lift something with both hands. "

    Now, here is the deal.  The VA wont tell you this, but I will.  You need to show you are not a good candidate for retraining in an occupation where you "dont need to lift something with both hands", such as a computer programmer.  

     Your IMO opinion should state, that in his professional opinion, you are not a good candidate for retraining and why.  Why would an employer want to hire you if it exposed him to "liability"?  That isnt gonna go away if you got retrained.  

     I think a great IMO from Cliff parker would do it, but you need to provide for him applicable records, including c and p exams, etc. etc. and why you think retraining would not be feasable for you.  (Maybe you are to old to learn programming, maybe your lack of experience in computers is too high of a barrier to learning, etc, etc, etc. )  

Edited by broncovet
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Thanks broncovet. I guess I'll give it a shot.  I retired from my job because of my va disability a few years back. Now I draw SS disability as well. Not all of my SS is service connected. But once again thanks. 

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On 3/13/2020 at 12:06 PM, broncovet said:

Yes.  Allow me to correct your regulation citation: 38 CFR 4.16 B

  There is no percentage requirement for 4.16b (extra schedular tdiu).  

Yes, its possible to get it, but VA will fight you every step of the way.  Source:  I won extraschedular TDIU under 38 CFR 4.16b.  I hired an IMO, suggested by my attorney.  (Cliff Parker, Voc REhab  specialist)  It cost me less than $1000.00   Consider an IMO, you are in remand, so you can submit it.  

    You need to tell your IMO what you posted:

 "One said that I have become more of a liability on the job and if I were in an accident my employer could be held liable and the 2nd one said my ability to work is impacted due to my inability to grip with my left hand if I need to lift something with both hands. "

    Now, here is the deal.  The VA wont tell you this, but I will.  You need to show you are not a good candidate for retraining in an occupation where you "dont need to lift something with both hands", such as a computer programmer.  

     Your IMO opinion should state, that in his professional opinion, you are not a good candidate for retraining and why.  Why would an employer want to hire you if it exposed him to "liability"?  That isnt gonna go away if you got retrained.  

     I think a great IMO from Cliff parker would do it, but you need to provide for him applicable records, including c and p exams, etc. etc. and why you think retraining would not be feasable for you.  (Maybe you are to old to learn programming, maybe your lack of experience in computers is too high of a barrier to learning, etc, etc, etc. )  

BRONCO how are you. Question for you?  For a veteran to apply for TDIU do they not need a combined total of 70% SC or one SC at 70%? From what I am reading from your advice your stating the veteran can apply for TDIU at 10%? Am I missing something?

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9 hours ago, Ddsr said:

For a veteran to apply for TDIU do they not need a combined total of 70% SC or one SC at 70%? From what I am reading from your advice your stating the veteran can apply for TDIU at 10%? Am I missing something?

38 CFR 4.16 has an a and b part. The a speaks about one disability rated at 60% or two disability’s or more that total 70% with at least one disability rated at 40%.

The b part speaks to extra scheduler rating for those that don’t fall under a.
 

§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.

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Ddsr

brocovet  Quoted

''Yes.  Allow me to correct your regulation citation: 38 CFR 4.16 B

  There is no percentage requirement for 4.16b (extra schedular tdiu)''. ''' 

I am not exactly sure what he means here?

According to what the CFR state below veteran must have a 60%rated disability,   if no 2 disability's are rating at 40% .

obviously they combined the two 40's to get the veterans eligibility for the IU...>   unless he has a 60% S.C. rating.

IF HE DON'T MEET THE 100% SCHEDULER RATING AND CAN'T DO ANY TYPE WORK DUE TO HIS  SC  CONDITION.

 VA will Interpret the Scheduler Requirements in 38 CFR 16 (b) to mean that a combined 70 % Rating is only Required if no Single Disability is rated at 60%

Edited by Buck52
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 broncovet ,Kanewnut put up the  CFR 38 4.16   (a) & 16(b)

CFR 38 16 (b)..>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.//

I don't see how that interprets broncovet interpretation? of the 38 416 (b)??

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8 hours ago, Buck52 said:

Ddsr

brocovet  Quoted

''Yes.  Allow me to correct your regulation citation: 38 CFR 4.16 B

  There is no percentage requirement for 4.16b (extra schedular tdiu)''. ''' 

I am not exactly sure what he means here?

According to what the CFR state below veteran must have a 60%rated disability,   if no 2 disability's are rating at 40% .

obviously they combined the two 40's to get the veterans eligibility for the IU...>   unless he has a 60% S.C. rating.

IF HE DON'T MEET THE 100% SCHEDULER RATING AND CAN'T DO ANY TYPE WORK DUE TO HIS  SC  CONDITION.

 VA will Interpret the Scheduler Requirements in 38 CFR 16 (b) to mean that a combined 70 % Rating is only Required if no Single Disability is rated at 60%

Yeah im confused as well. 

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Dang now I'm getting confused. I thought it said if your SC disability kept you from maintaining substantial gainful employment you are eligible for extraschedular tdiu not schedular. I have not filed for tdiu but my case has been remanded to the director of compensation for extraschedular rating increase I think. 

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3 hours ago, Remisdad said:

Dang now I'm getting confused.

What is confusing you? I am sure someone on here can help you.

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Its pretty simple.  The VA "makes you think" you MUST meet the percentage disability requirements so stated in 38 CFR 4.16 a.  So, many Vets "dont apply" if they are under 60 percent.  

BUT, when you read 4.16b, its crystal clear "you dont have to meet the percentage requirements" BUT..and this is a big but:

Quote

YOU HAVE TO GET VA TO ADJUTICATE 4.16b TDIU.  

They dont like to do that, they would rather deny.  WHEN YOU APPEAL BE sure to mention "Consideration for 38 CFR 4.16b" was not adjuticated.  They want you to look the other way, and if you do, they win.  READ 4.16b carefully (along with 4.16a).  You dont have to be rated at 60 percent or more for tdiu buy you still have to have your doc say that your are unable to perform SGE due to sc disabilities.  And, you have to sometimes "stir the pot" to get 4.16b consideration.  

SOURCE:  I was awarded tdiu with "less than" the minimum percentage requirements under 4.16a.  But, of course, I had to fight VA for it, for years, as always.  

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My remand from 2/26/20 to the director of c&p is done. I haven't received my SSOC yet. I found it on the computer and it goes back to the board as of today. What I read said they couldn't fully grant my appeal. I had 2 issues on my appeal. Does this mean they granted 1 but not the other?  I guess I should be patient and wait for my SSOC but I thought someone on here might had this same thing happen. 

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