TDIU Question

[Bhut]

Hello all,

 

I have been lurking on the board for a few years, a lot of good advice here for sure.  I received a letter a couple of days ago from the VA stating that I have been approved for TDIU.  I was rated at 80%, or still may be not sure.  Reading the letter it says the criteria for TDIU have been met, it does NOT say anything in the letter about being permanent and total.  I called the VA today but the lady on the phone seemed to have no idea what I was talking about.  My question is with my new TDIU award will my wife be eligible for any medical benefits, educational benefits, etc?  Thanks in advance for any input.

[brokensoldier244th]

Berta, I get (within chrome) that their site is secure- I run a lot of security stuff on my home PC since I work from home *shrug*

 

Here is their disclaimer- note they are not accredited with VA, are not a legal service, nor attorney's. Not sure what they could do for you, really- they can't act as POA and they can't litigiate for you. They advise on generalities (according to their disclaimer) and not any particular claim- so, no different than what we do here, already. They also make no guarantees, or assurances as to the accuracy or currency of their advice (4th line from the bottom). 

 

 

Edited April 14, 2021 by brokensoldier244th

[Mr cue]

Here is my tdiu cue maybe it will help. 

 

In December 2009, the Board remanded this appeal for additional evidentiary development.  In May 2011, the Board again remanded the claim for corrective action regarding the previous remand.  The appeal has since been returned to the Board for further appellate action.

In addition to remanding the claim listed above, in December 2009, the Board also granted service connection for a left elbow disability, granted an increased initial rating of 20 percent, prior to August 16, 2001, for the Veteran's service-connected cervical spine disability, and denied a disability rating in excess of 60 percent for a cervical spine disability since August 16, 2001.  In January 2010, the Veteran filed a motion for reconsideration of the Board's denial of an increased initial rating higher than 20 percent, prior to August 16, 2001.  In September 2010, the Board denied the motion.  Thus, there are no pending appeals regarding increased ratings for the cervical spine disability.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the appeal has been accomplished.

2.  The evidence for and against whether, from December 14, 1993 to August 16, 2001, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation is in equipoise.  



CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, from December 14, 1993 to August 16, 2001, the criteria for TDIU were met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011).  

As the Board is granting TDIU from December 14, 1993 to August 16, 2001, the claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

TDIU - Law and Regulations

It is the established policy of VA 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.  38 C.F.R. § 4.16.  A finding of total disability is appropriate "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."  38 C.F.R. §§ 3.340(a)(1), 4.15 (2011).

Substantially gainful employment is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).

A total disability rating 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.  If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider.  Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2011).

Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321.

For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (the CAVC) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the CAVC indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment.  The Board is bound in its decisions by the regulations, the Secretary's instructions, and the precedent opinion of the chief legal officer of VA.  38 U.S.C.A. § 7104(c) (West 2002).  In a pertinent precedent decision, the VA General Counsel interpreted the controlling VA regulations as generally providing that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  The VA General Counsel also interpreted "unemployability" as synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91.

Analysis of Entitlement to TDIU

During the period prior to August 16, 2001, two service-connected disabilities must be considered - cervical spondylosis with chronic muscle strain of the left neck, rated at 20 percent disabling, effective December 14, 1993, and residuals of a left elbow fracture with paresthesias, rated at 20 percent disabling, effective December 14, 1993.  Therefore, with respect to this period, the Veteran does not meet the schedular criteria for consideration of TDIU.  See 38 C.F.R. § 4.16(a) (2001-2011).  A TDIU is in effect since August 16, 2001, and this is based in part on the increase in the disability rating for the Veteran's cervical spine disability from 20 percent to 60 percent, effective that date.  The Board has specifically found that a rating in excess of 20 percent for the cervical spine disability is not warranted prior to August 16, 2001 on a schedular or extraschedular basis.  Therefore, the Board's decision here hinges on a finding that, irrespective of the above factual background, the combined effect of the Veteran's service-connected disabilities renders him unable to secure and follow a substantially gainful occupation.  

The current effective date for TDIU of August 16, 2001 is not based on a change in his physical condition on that date, but is based on the date the claim for TDIU was received at the RO; however, the Board found in its July 2009 decision that the claim for TDIU actually arose from the Veteran's January 11, 1994 original claim for compensation, as a component of the appealed initial rating for a left neck disability assigned in the resulting June 1994 rating decision.  In this context, the current effective date of August 16, 2001 has little to support it.  The Board's decision must be based primarily on the impairment resulting from service-connected disabilities before August 16, 2001, and whether such impairment precluded a substantially gainful occupation.  For reasons that will next be addressed, the Board finds that the evidence for and against such a finding is in equipoise.  

The Board is most persuaded by what appears to be a consistent level of overall occupational impairment over the entire period since service.  While the particular factors such as limitation of motion and attacks of intervertebral disc syndrome may have changed over this period, the evidence indicates that the effect on occupational impairment has remained largely the same.  A VA examination in April 1994 reveals that the Veteran was not working because of his injured neck and left arm at that time.  In that examination, and in a February 1997 examination, the Veteran reported decreased sensation and pain associated with most activities, and especially attempting to lift.  In a November 2000 physical therapy initial evaluation, it was noted that the onset of chronic pain was five to six years prior.  A June 2001 report indicates a five-year history of increased pain and neck stiffness.  

In May 2003, the Veteran's girlfriend stated that she had been in a relationship with the Veteran for 13 years.  She noted that, for this period, the Veteran could not play with his son or daughter because of his neck, that he was not able to hold his son because of the lack of feeling in his hand, and that he was not able to contribute to household chores such as mowing the lawn, taking out the garbage or even minor repairs.  Thus, regardless of the specific findings pertinent to the rating schedule that were present during this period, the overall effect of the disabilities on the Veteran's employment appears to be roughly the same as it was and is after August 16, 2001.  

Regarding the medical opinion evidence, this evidence is generally favorable to a finding that the Veteran's service-connected disabilities precluded a substantially gainful occupation from December 14, 1993 (the first day after service separation) to August 16, 2001.  A July 2003 VA examination includes the opinion that the Veteran had been unemployed since service separation.  The examiner felt that the likelihood of his returning to work was slim.  While this opinion is after August 2001, it deals with the entire period since service separation.  

In a June 2010 addendum to a January 2010 VA examination report, the VA examiner specifically commented on the Veteran's employability from April 1994 through August 2001.  The examiner opined that the Veteran could only stand one hour at a time.  He could only walk with a neck brace up to 45 minutes.  Without a brace, he could walk 20 minutes.  He had severe restrictions with any bending, lifting, and twisting, as well as reaching and grabbing with his left hand.  The examiner noted that the Veteran's skill set was that of a tanker, and that he could obtain employment with the above restrictions.  

There are other opinions indicating that only sedentary work would be appropriate for the Veteran, notably, a November 2003 private opinion.  A January 1995 vocational rehabilitation counseling summary notes that the Veteran had an impairment of employability.  It was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs he would qualify for.  It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint."  The counselor noted that the Veteran has not overcome the effects of the impairment of his employability and he does not have suitable job skills to offer the civilian job market, either from training or work history.  

A January 2001 counseling record for VA vocational rehabilitation notes that the Veteran has some employment impairments including that physical labor is difficult, overhead lifting and heavy lifting are precluded.  According to the January 2001 examiner, the Veteran could not do entry-level manual jobs.  The examiner recommended that the Veteran become trained to be a computer technician.  A narrative summary includes the assessment that the Veteran's service-connected neck condition limits him from doing any overhead or heavy lifting and that he lacks suitable skills to find employment that is not physically demanding.  The Veteran ultimately withdrew from vocational rehabilitation due to complaints of headaches, which he attributed to his neck.  

A March 2011 VA social and industrial survey notes that the Veteran's service-connected neck condition and non service-connected disabilities place him at a competitive disadvantage in obtaining employment when competing with jobs for the nondisabled, as he is not able to do any jobs that require excessive physical demands.  The examiner noted the findings in the vocational rehabilitation file, as well as the factors such as the Veteran's substance abuse.  The examiner provided the opinion that, with the Veteran's limited education and work experience, the type of work he could do would be primarily physical; this would be compromised by his physical disabilities, including service-connected disabilities.  The examiner continued that it is clear that the Veteran's service-connected disabilities disabilities had a notable impact on his ability to obtain and maintain substantially gainful employment prior to August 2001. 

The Board remanded the claim for an addendum opinion in light of the March 2011 examiner's apparent consideration of other physical disabilities in addition to service-connected disabilities in formulating the opinion as to unemployability.  An August 2011 addendum to the social industrial survey reveals that, in the reviewing physician's opinion, the Veteran's cervical spine condition from April 1994 to August 16,2001 caused the following limitations:  the Veteran could only stand one hour at a time; he could only walk with a neck brace for up to 45 minutes and without a brace he could walk 20 minutes; he had severe restrictions with any bending, lifting, or twisting; and the Veteran's elbow injury also restricted physical labor that required repetitive use of the left upper extremity.  In the physician's opinion, these limitations due to service-connected disabilities caused the Veteran to be unemployable in both physical and sedentary work during this time period.  The opinion was that the Veteran was not employable in any type of labor during this time period due to his service-connected disabilities.

The RO referred the case to the Director of the VA Compensation Service (Director) for extraschedular consideration decision in December 2011.  In a January 2012 opinion, the Director noted that, from April 1994 to August 16, 2001, the sole service-connected disability was cervical spondylosis with chronic muscle strain of the left neck, evaluated at 20 percent.  The Director found that physical examinations prior to August 16, 2001 do not support the contention that the Veteran's service-connected cervical spine disability was so exceptional or unusual, as to render the use of the regular rating schedule standards impractical.  The Director found that there are no medical statements or records indicating that the Veteran could not perform in any sort of occupational environment.  The Director also noted that May 18, 2001 was the first time employment functioning was mentioned in terms of the Veteran's neck disability, and this appears to be verbal history from the Veteran, not a professional medical opinion.  The Director noted that the Veteran stopped attending vocational rehabilitation due to headaches, which he claimed were due to the neck, but no link has been provided, and he is not service connected for a headache condition.  The Director acknowledged the recent VA opinion that the Veteran was unemployable due to his cervical spine disability prior to August 2001.  While this opinion was taken into consideration, the Director found that the objective evidence does not support the examiner's finding.  The Director concluded that, while available evidence demonstrates that the Veteran's cervical spine disability would have affected his ability to work prior to August 2001, evidence does not show it would have precluded all types of employment, such as sedentary employment.  

The Board notes that the Director only considered the Veteran's cervical spine disability as service connected during the period in question.  While this was technically true at the time, service connection was subsequently granted for residuals of a left elbow fracture with a 20 percent rating assigned effective December 14, 1993.  The service-connected left elbow disability must also be considered in determining TDIU entitlement, but apparently was not considered by the Director.  The Board also notes that the Director did not explain why the objective evidence does not support the examiner's finding.  In addition, the Director appears to have found that the evidence must show that the Veteran's service-connected disabilities would have precluded all types of employment, such as sedentary employment, in order to warrant TDIU on an extraschedular basis.  Such criteria appear stricter than what is provided in VA regulations.  

The Board finds most persuasive the fact that, as determined by the Veteran's vocational rehabilitation counselors, the Veteran 's service-connected neck disability limits him from doing any overhead or heavy lifting, coupled with the fact that he lacks suitable skills to find employment that is not physically demanding.  Indeed, regarding sedentary employment, it was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs for which he would qualify.  It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint."  The VA vocational rehabilitation counselor noted that the Veteran has not overcome the effects of the impairment of his employability, and he does not have suitable job skills to offer the civilian job market, either from training or work history.  

In Moore, 1 Vet. App. at 359, the CAVC discussed the meaning of "substantially gainful employment."  The CAVC noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Here, it is uncontested that the Veteran's service-connected disabilities would preclude any form of employment that is more than sedentary in nature.  Moreover, as a result of his inability to complete his education and his limited vocational experience, the Board finds that the types of sedentary occupations available to the Veteran would be quite limited.  The Board emphasizes that the test is not whether the Veteran would have been precluded from all types of employment, such as sedentary employment, but whether such employment was realistically within the physical and mental capabilities of the claimant.  On this question, the evidence in this case is at least in relative equipoise.

An additional factor considered by the Board relates to medication taken by the Veteran to treat his service-connected disabilities.  In a May 2003 RO hearing, the Veteran testified that he took pain medications and muscle relaxers for his service-connected disabilities.  A July 2003 VA examination reveals that he had been taking codeine for pain.  A June 2011 VA social and industrial survey shows that he was taking the muscle relaxant Cyclobenzaprine.  The effect of the Veteran's long-term use of pain medications and muscle relaxers to treat his service-connected disabilities cannot be ignored when considering his overall functional impairment due to service-connected disability.  See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability).

In sum, given the severity of the orthopedic disabilities affecting neck, cervical spine, and left upper extremity, the Board finds that the evidence for and against whether substantially gainful employment is realistically within the Veteran's 

physical and mental capabilities is in equipoise.  Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude him from performing substantially gainful employment.  38 C.F.R. § 5107(b).  Therefore, TDIU is warranted from December 14, 1993 to August 16, 2001.


ORDER

A TDIU from December 14, 1993 to August 16, 2001 is granted.

 

[Bhut]

Well I logged onto benefits today and clicked on the letter generator.  It says at the bottom of the letter that my disability is considered permanent and total, no future exams are scheduled.  So I am hoping this will qualify my wife to be eligible for educational benefits, she is half way through RN school and as many of you know it is quite expensive.  Hope they will start paying and possibly reimburse us what we have already paid in the last 18 months.

[GBArmy]

Bhut You should be good to go. Print out the letter that shows your full benefits. It is an official letter from the VA; that's what it is for. Your family will get full benefits. Congrats!

[Buck52]

Bhut

Congratulation ON YOUR WIN

I am not sure they will pay for your spouse schooling on what you guys have already paid?

but they will forward  it won't hurt anything to ask someone at your VAMC   SOCIAL WORKER or VSO  ...I know they will help with her education now that your service connected at 100% or TDIU.

SOME OF THE OTHER MEMBERS CAN CHIME IN ON YOUR QUESTION ABOUT  THE VA REIMBURSING YOUR WIFE EDUCATION FEES.

I AM UNSURE ON THAT?

[brokensoldier244th]

You can, if they would have been otherwise eligible, but then YOU will have to payback all of the benefits you received for having her on your award for that length of time from the effective date. Don’t let that scare you.  You can set up a payment plan for that after C a debt recovery contacts you, it’s pretty generous in terms, they don’t take it all at once.  You can’t both get a benefit for the same thing. If she elects to just start using it now you’ll still have to take her off your award, but you’ll have fewer months of over lap.