Hypothetical Question On Disability

[Hardtyme]

Supposing a veteran (me) has a total of cumulative disability of 92% disability most of which are related to strains/arthritis. with failed shoulder replacement plus a knee replacement, renal failure & hypertension.  Will the VA be somewhat lenient and feel that with all the associated aches and pain that they'll inch up the disability to 95-100%?  

[pacmanx1]

2 hours ago, Hardtyme said:

Supposing a veteran (me) has a total of cumulative disability of 92% disability most of which are related to strains/arthritis. with failed shoulder replacement plus a knee replacement, renal failure & hypertension.  Will the VA be somewhat lenient and feel that with all the associated aches and pain that they'll inch up the disability to 95-100%? 

If you are not service connected for a mental health disorder or if you have a low rating for a mental health disorder, you may want to consider filing a claim for depression secondary to your already service-connected disabilities. It was explained to me years ago that a lot of people who suffer from chronic pain also have some form of depression due to the fact that their disabilities limit their activities, and the VA can award a secondary disability rating for their depression. 

[john999]

Pacman....I have been telling vets to file depression claims for years.  I just about gave up because I did not think they understood what I was getting at.  If you have chronic pain or disability it would be strange if you were not depressed.  The mind and body cannot separated .

[broncovet]

I think it comes down to this:

Quote

38 CFR 4.16(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. 

Did you notice the phrase "shall be rated totally disabled"?  This is way different than the verb VA usually uses, "may be" rated....

"Shall" means its mandantory (for VA).  This is the regulation, for example, a well known former rating specialist on another forum "HATES".  He suggests if you dont meet the percenatage requirements defined in 4.16 A, to "forget it".  He also trains raters "NOT" to refer Veterans to the director of compensation service, when this applies, because, after all, if the the Veteran does not meet the percentage requirements, he doesnt deserve Tdiu, right? 

 

Some years ago I asked him that question on the other Vets website and he pretty much said, "be real..its not happening".  

The regulations say ""rating boards" should submit, not VARO raters.  This means Veterans have to appeal to the BVA, and then the judge will comply..but not the VARO.  

Its tough to fight for that last 10 percent so you need to use all weapons at your disposal.  VA often does award 100 percent schedular "in stead of" referring the Veteran to the director of comp services, so ask for an increase and tdiu. 

Of course, I dont know if you are working or not, nor do I know whether or not you meet the requirements of tdiu.  

I never recommend Veterans lie or deceive the VA to get benefits.  That is a terrible idea, and could easily backfire. Dont even think about it, "even if" you know someone who got away with it.  I know people who got away with driving drunk, also, but that does not mean Im gonna try driving drunk in hopes of getting away with it.    

 

 

 

Edited June 5, 2023 by broncovet

[pacmanx1]

The answer is no, you are going to need a service-connected disability and a medical opinion that your service-connected disability causes you to be unemployable. If you have a medical opinion, simply file the VA form 8940 and list the disability or disabilities you feel cause you to be unemployable and then let the VA do their job. I will say that the VA never gave a veteran anything and the veteran would have to medically prove that he/she could not work due to their service-connected disability or disabilities in order for the VA to grant any disability/claim/rating.

VA Form 21-8940

Edited June 4, 2023 by pacmanx1

[Hardtyme]

I thank you for your honest opinion.

[Tbird]

20 hours ago, broncovet said:

I think it comes down to this:

Did you notice the phrase "shall be rated totally disabled"?  This is way different than the verb VA usually uses, "may be" rated....

"Shall" means its mandantory (for VA).  This is the regulation, for example, a well known former rating specialist on another forum "HATES".  He suggests if you dont meet the percenatage requirements defined in 4.16 A, to "forget it".  He also trains raters "NOT" to refer Veterans to the director of compensation service, when this applies, because, after all, if the the Veteran does not meet the percentage requirements, he doesnt deserve Tdiu, right? 

 

Some years ago I asked him that question on the other Vets website and he pretty much said, "be real..its not happening".  

The regulations say ""rating boards" should submit, not VARO raters.  This means Veterans have to appeal to the BVA, and then the judge will comply..but not the VARO.  

Its tough to fight for that last 10 percent so you need to use all weapons at your disposal.  VA often does award 100 percent schedular "in stead of" referring the Veteran to the director of comp services, so ask for an increase and tdiu. 

Of course, I dont know if you are working or not, nor do I know whether or not you meet the requirements of tdiu.  

I never recommend Veterans lie or deceive the VA to get benefits.  That is a terrible idea, and could easily backfire. Dont even think about it, "even if" you know someone who got away with it.  I know people who got away with driving drunk, also, but that does not mean Im gonna try driving drunk in hopes of getting away with it.    

 

 

 

Hi Broncovet - Do you have a reference for the definition as it applies to VA decisions for the words "shall" and "may" if you do I'll add it to my references. Thanks.