tdiu Awaiting Decision On Unemployability

[lueharbin]

Applied for unemployability...denied by RO...remanded by BVA for industrial survey....

results.....yes to problems with activities of daily living...no to total occupational and social impairment due to mental disorder...no to deficiencies in judgement, thinking, family relations, work, mood or school...yes to reduced reliability and productivity.

Currently rated at 90%....thrombophilia 60%...lumbar strain 30%...bursitis of the right shoulder 10%...meniscus tear of the right knee 10%...thoracic strain 10%...osteochondroma of the left hip 10%...retropatellar pain syndrome of the left knee 10%...and neuropathy of the upper extremities 10% bilaterally.

What are the chances for approval.

[Guest Dataman]

Gee with all that is wrong I would have approved. I know I only have 40 for back and 20 for wrist and enough for 80 and got approved in 6 weeks with no exam and no future exams.

What area of the Country? I am in WA

[Vike17]

lueharbin,

In order to be granted Individual Unemployability (IU), you must be able to show that you're unable to obtain and maintain a substantial gainful occupation due to your service-connected disabilities. You also noted that the industrial survey stated "no to total occupational and social impairment due to mental disorder...no to deficiencies in judgement, thinking, family relations, work, mood or school...yes to reduced reliability and productivity." Do you have a service-connecte mental disability? I didn't notice one where you listed your service-connected disabilities by percentage. What has you doctor said about your prospects of being able to work in relationship to your service-connected disabilities? Has he/she put anything in writing?

Also I noticed that you said you have a 30% evaluation for lumbar strain and 10% rating for thoracic strain. Are you sure that is correct? The reason why I ask is that the thoracic/lumbar spine is suppose to be rated as one disability, not seperately. If this is the case, the VA awarded you an extra 10% when they shouldn't have!

Vike 17

[lueharbin]

No, I am not rated for any mental disability, although it is now evident that I suffer from depression secondard to my secondary to my service connected disability. Yes, I am rated for both lumbar strain and thoracic strain. The ortho C&P said I may be unable to work at some type of job secondary to my service connected disabilities. It like everyone is on the fence.

lueharbin,

In order to be granted Individual Unemployability (IU), you must be able to show that you're unable to obtain and maintain a substantial gainful occupation due to your service-connected disabilities. You also noted that the industrial survey stated "no to total occupational and social impairment due to mental disorder...no to deficiencies in judgement, thinking, family relations, work, mood or school...yes to reduced reliability and productivity." Do you have a service-connecte mental disability? I didn't notice one where you listed your service-connected disabilities by percentage. What has you doctor said about your prospects of being able to work in relationship to your service-connected disabilities? Has he/she put anything in writing?

Also I noticed that you said you have a 30% evaluation for lumbar strain and 10% rating for thoracic strain. Are you sure that is correct? The reason why I ask is that the thoracic/lumbar spine is suppose to be rated as one disability, not seperately. If this is the case, the VA awarded you an extra 10% when they shouldn't have!

Vike 17

[sixthscents]

Study after study shows a link between chronic pain and depression. If you have been diagnosed with depression, you can file for compensation for it, if in fact you do have a service connected injury - back, or anything else which is chronic in nature.

So, from what I read you do have a service connected injury, lower back lumbar and cervical. At least thats what I took it to mean. If so, then I would certainly file for compensation for diagnosed depression secondary to this condition. Its a mood disorder, and can easily be rated as high as 30%.

Vike, my understanding has been that the Cervical, Thoracic, and Lumbar spine are all seperate elements,

Sec. 4.66 Sacroiliac joint.

The common cause of disability in this region is arthritis, to be

identified in the usual manner. The lumbosacral and sacroiliac joints

should be considered as one anatomical segment for rating purposes

Further and this is a LONG paste (sorry).......

General Rating Formula for Diseases and Injuries of the Spine

(For diagnostic codes 5235 to 5243 unless 5243 is evaluated

under the Formula for Rating Intervertebral Disc Syndrome Based

on Incapacitating Episodes):

With or without symptoms such as pain (whther or not it

radiates), stiffness, or aching in the area of the spine

affected by residuals of injury or disease

Unfavorable ankylosis of the entire spine............... 100

Unfavorable ankylosis of the entire thoracolumbar spine. 50

[[Page 391]]

Unfavorable ankylosis of the entire cervical spine; or, 40

forward flexion of the thoracolumbar spine 30 degrees

or less; or, favorable ankylosis of the entire

thoracolumbar spine....................................

Forward flexion of the cervical spine 15 degrees or 30

less; or, favorable ankylosis of the entire cervical

spine..................................................

Forward flexion of the thoracolumbar spine greater than 20

30 degrees but not greater than 60 degrees; or, forward

flexion of the cervical spine greater than 15 degrees

but not greater than 30 degrees; or, the combined range

of motion of the thoracolumbar spine not greater than

120 degrees; or, the combined range of motion of the

cervical spine not greater than 170 degrees; or, muscle

spasm or guarding severe enough to result in an

abnormal gait or abnormal spinal contour such as

scoliosis, reversed lordosis, or abnormal kyphosis.....

Forward flexion of the thoracolumbar spine greater than 10

60 degrees but not greater than 85 degrees; or, forward

flexion of the cervical spine greater than 30 degrees

but not greater than 40 degrees; or, combined range of

motion of the thoracolumbar spine greater than 120

degrees but not greater than 235 degrees; or, combined

range of motion of the cervical spine greater than 170

degrees but not greater than 335 degrees; or, muscle

spasm, guarding, or localized tenderness not resulting

in abnormal gait or abnormal spinal contour; or,

vertebral body fracture with loss of 50 percent or more

of the height..........................................

Note (1): Evaluate any associated objective neurologic

abnormalities, including, but not limited to, bowel or bladder

impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes,

normal forward flexion of the cervical spine is zero to 45

degrees, extension is zero to 45 degrees, left and right

lateral flexion are zero to 45 degrees, and left and right

lateral rotation are zero to 80 degrees. Normal forward flexion

of the thoracolumbar spine is zero to 90 degrees, extension is

zero to 30 degrees, left and right lateral flexion are zero to

30 degrees, and left and right lateral rotation are zero to 30

degrees. The combined range of motion refers to the sum of the

range of forward flexion, extension, left and right lateral

flexion, and left and right rotation. The normal combined range

of motion of the cervical spine is 340 degrees and of the

thoracolumbar spine is 240 degrees.The normal ranges of motion

for each component of spinal motion provided in this note are

the maximum that can be used for calculation of the combined

range of motion.

Note (3): In exceptional cases, an examiner may state that

because of age, body habitus, neurologic disease, or other

factors not the result of disease or injury of the spine, the

range of motion of the spine in a particular individual should

be considered normal for that individual, even though it does

not conform to the normal range of motion stated in Note (2).

Provided that the examiner supplies an explanation, the

examiner's assessment that the range of motion is normal for

that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest

five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is

a condition in which the entire cervical spine, the entire

thoracolumbar spine, or the entire spine is fixed in flexion or

extension, and the ankylosis results in one or more of the

following: difficulty walking because of a limited line of

vision; restricted opening of the mouth and chewing; breathing

limited to diaphragmatic respiration; gastrointestinal symptoms

due to pressure of the costal margin on the abdomen; dyspnea or

dysphagia; atlantoaxial or cervical subluxation or dislocation;

or neurologic symptoms due to nerve root stretching. Fixation

of a spinal segment in neutral position (zero degrees) always

represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar

and cervical spine segments, except when there is unfavorable

ankylosis of both segments, which will be rated as a single

disability.

5235 Vertebral fracture or dislocation

5236 Sacroiliac injury and weakness

5237 Lumbosacral or cervical strain

5238 Spinal stenosis

5239 Spondylolisthesis or segmental instability

5240 Ankylosing spondylitis

5241 Spinal fusion

5242 Degenerative arthritis of the spine (see also diagnostic

code 5003)

5243 Intervertebral disc syndrome

Evaluate intervertebral disc syndrome (preoperatively or

postoperatively) either under the General Rating Formula for

Diseases and Injuries of the Spine or under the Formula for

Rating Intervertebral Disc Syndrome Based on Incapacitating

Episodes, whichever method results in the higher evaluation

when all disabilities are combined under Sec. 4.25

SO, clearly the Lumbar, Thoracic, and Cervical can all be treated as major joints and rated seperately or they can combine the lumbar and thoracic, it seems at the raters descreation unless rated under IVDS....

It is curious that they have chosen to seperate the 2, but I have seen it before, its just more common for them to treat the thoracic, and lumbar together when rating under these codes.... and of course if the rate under IVDS then that section applies...

But... in answer to the original question I would THINK they'd grant IU, but I've seen them deny it before in very similar circumstances.... its hard to say, a year ago I'd have said you have a 100% chance, but more recently they seem to be tightening up on IU and denying it if at all possible.... thats what I have been seeing anyway....

Edited February 28, 2007 by sixthscents

[Berta]

Yes- Vike is correct-what has the doc stated as to your ability to be employed?

On the TDIU form did you tell them of any side affects of your SC meds that would render one unemployable- like can cause confusion, do not take and drive, etc-

I am a little familiar with thrombophilia and believe that this alone could cause a person to become unemployable -depending on type of work they do-when considered in regard to the other SC medical conditions-unless you are employed a substantial employemtn now- I am sure a strong medical opinion can connect the dots and generate a TDIU award for you.

90% is close to TDIU- and the fact that BVA remanded is a very good sign-here in my opinion-

Are you able to afford either an Independent medical opinion (or if you have private doc the cost might be very small or none at all)

And/or a vocational expert opinion?

If you are unemploed do you get SSA for the SC disabilities and if you do does VA know that?

[Berta]

forgot- has VA VocRehab ever turned you down?

If VA states that a person-due to their SC disabilities -is not able to handle Voc Rebah- meaning it is not feasible for them-due to SC- the VA has declared in essense that the vet is unemployable-

since they are unvocrehabable. I just made up a new word!