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%?  

[Dustoff1970]

File for a TDIU Claim (Total Disability based upon individual unemployability) and state all your service connected disabilities render you unable to work at a gainful employment.  TDIU pays the same as 100% rating. 

 

Furthermore, your combined service connected disabilities may cause you mental health issues such as depression that can be filed for as secondary to the physical issues and can also be used as additional argument for your TDIU claim. If you are presently gainfully employed then VARO will not approved the claim.

 

Many people suffer depression as a result of their physical disabilities pain, discomfort and limits to daily and sleep routines.  You must list each service connected disability causing you to be unemployable.  Non service medical issues do not count.

Broncovet can provide you with the proper VA form number to use for filing your TDIU or IU claim.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

 

Edited June 6, 2023 by Dustoff1970

[broncovet]

Unfortunately, Tbird, upon review, "shall" is somewhat ambigious, in legal terms,  in no small part because shall is rarely used in America.  

Its one of the many revisions of Veterans law that needs to be made.  While "shall" implies its mandantory, "must" is much better.  Its certainly stronger than the "may" in Veterans law.  

However, remember in Veterans law "the Veteran" is to be given the benefit of the doubt, and my guess is that would include a definition of "shall".  Its much stronger than "may".  

While I won TDIU citing 38 CFR 4.16 b, my decision did not discuss shall vs may controversy.  The Board simply ordered the VA to remand my tdiu claim "to include consideration under 4.16b", since I did not meet the percentage requirements of 4.16A.  This forced VARO to "submit my claim to the director of compensation services" for review under 4.16b. 

     Predictably, the director of compensation services wrote that my claim remains denied.  But I appealed that denial and eventually won.  It was a very long process..I started tdiu in 2002, and was not awarded it until 2020, 18 years later.  The good news was that I got retro back to 2002.  But, VA's delays resulted in losing my home, in 2004-2005, as I simply could no longer make house payments, as my savings ran out.  

I prefer to look at this issue (extra schedular tdiu, under 4.16b) in reverse.  In other words, its NOT TRUE that a Veteran "must" meet scheduler requirements under 4.16a to get tdiu.  

Trust me, I had to fight VA tooth and nail to get them to apply 4.16b, as I did not meet scheduler requirements.  I was advised to abandon my (4.16b) claim for tdiu by a former rating specialist, "as it does not happen in real life".  

    VA interprets "shall" to mean "shall not ever", at least some VA employees  do.  Remember, in Veterans law, Veterans need a nexus stating "at least as likely as not", or a few others like "is due to military service", but excludes terms like, "maybe, might be, could, could be" as speculative and insufficient to establish a nexus.  "Shall" is not on either list.  

[Lemuel]

3 hours ago, broncovet said:

Unfortunately, Tbird, upon review, "shall" is somewhat ambigious, in legal terms,  in no small part because shall is rarely used in America.  

Its one of the many revisions of Veterans law that needs to be made.  While "shall" implies its mandantory, "must" is much better.  Its certainly stronger than the "may" in Veterans law.  

However, remember in Veterans law "the Veteran" is to be given the benefit of the doubt, and my guess is that would include a definition of "shall".  Its much stronger than "may".  

While I won TDIU citing 38 CFR 4.16 b, my decision did not discuss shall vs may controversy.  The Board simply ordered the VA to remand my tdiu claim "to include consideration under 4.16b", since I did not meet the percentage requirements of 4.16A.  This forced VARO to "submit my claim to the director of compensation services" for review under 4.16b. 

     Predictably, the director of compensation services wrote that my claim remains denied.  But I appealed that denial and eventually won.  It was a very long process..I started tdiu in 2002, and was not awarded it until 2020, 18 years later.  The good news was that I got retro back to 2002.  But, VA's delays resulted in losing my home, in 2004-2005, as I simply could no longer make house payments, as my savings ran out.  

I prefer to look at this issue (extra schedular tdiu, under 4.16b) in reverse.  In other words, its NOT TRUE that a Veteran "must" meet scheduler requirements under 4.16a to get tdiu.  

Trust me, I had to fight VA tooth and nail to get them to apply 4.16b, as I did not meet scheduler requirements.  I was advised to abandon my (4.16b) claim for tdiu by a former rating specialist, "as it does not happen in real life".  

    VA interprets "shall" to mean "shall not ever", at least some VA employees  do.  Remember, in Veterans law, Veterans need a nexus stating "at least as likely as not", or a few others like "is due to military service", but excludes terms like, "maybe, might be, could, could be" as speculative and insufficient to establish a nexus.  "Shall" is not on either list.  

shall | Wex | US Law | LII / Legal Information Institute (cornell.edu)

Although law dictionaries define "shall" as the imperative (must), when writing regulations from U S Code it is frequently ignored and may is substituted as Bronco states.

Wonder why I am receiving so few notifications of posts?

[Lemuel]

The simplest way to get TDIU is to directly claim extra-schedular rating for TDIU.  I did so in 1987 with a 40% rating that was raised to 50% on the next rating on recognition of my tinnitus nexus.

At the time I had just taken a part time job being allowed to take naps at work when I had an enervation.  I worked the part time job at a pay well above the poverty scale at the time until an MVA in 1990 caused me to give up driving and making access to the part time job impossible for me.

I received SSDI from Social Security 6 years later with back pay to September of 1990.  The CAVES Report (Social Security investigation for SSDI or SSI is exhaustive covering interviews with friends and former employers as well as a very complete medical history and medical examinations which then present your case for TDIU.

For this reason, I highly recommend filing for SSDI of SSI on filing for TDIU.

My "extra-schedular" claim was ignored at VARO and was not discovered as unprocessed until I had a very good BVA judge find it in the file and remand it for development in my May of 2017 BVA Decision.  The BVA Judge granted me TDIU presumptively based upon my TBI rating that raised my combined rating to 70% in July of 2009 following the TBI change in veterans' disability compensation.

My last day of full-time work at permanent employment was September 16, 1985.  The DRO at the Central Office developed the claim and recommended TDIU.  The Director, Compensation Services granted TDIU back to my last day of full-time permanent employment, with an EED 2 years prior to my 1987 claim.

It therefore appears that one can ask for an extra-schedular EED per your medical records as I am doing now for temporal lobe epilepsy which was mistreated in 1990 following the September MVA that led to confirmation of temporal lobe epilepsy in my record.  I did not receive adequate treatment for my temporal lobe epilepsy until August of 2015.  Now with the additional evidence of successful treatment my extra-schedular claim is in.

I also have a current CAVC case on the Docket for a 1994 next of friend claim that should provide an EED for veterans with TBI prior to 2009 minimally to November of 1994 and possibly to 1987 based upon informal and formal filings for next of friend claims for the general veteran population. 

Question is how the court will handle the question of "class action" submissions to the District Court system which were denied under the Feres Doctrine given the filings are dated prior to the existence of the CAVC and that the CAVC did not have jurisdiction to grant class action decisions until recently.

Because my old class examples for TBI and Cerebral Malaria are no longer available to use I need new class examples.  These should be specific to the kind of TBI and in focal TBI the precise focal location of focal TBI.  Several classes will have to be identified to meet the Court requirements for class action cases to get the EED awards for the groups I initiated next of friend claims for.

Tbird, can you convert this to an article so it will show up on Feedspot Today or redirect me on how to post one on HADIT.  Need to have a meeting on possible repercussions for HADIT as I experienced them over the years as an individual fighting to "leave no veteran behind on the paper trail."

I do not know if I will be able to keep up with this and finish it.  I am represented at the CAVC by vetsprobono.org.  I have been assigned attorney Courtney Smith, Senior Director of Veterans Consortium Pro Bono Program at this point.  Waiting for the Record Before the Agency (RBA) at this point which is due to be provided by 6/14/23 after delay granted to the Appellee.

I am not clear yet on the direction the attorney will want to take in representing this case.  So far there are no filings other than the routine filings to open the case.

Good luck to anyone seeking TDIU.  Keep in mind that you do not have to be unemployed to receive TDIU.  You only have to have your employer make special exceptions for you, be employed in farming or fishing etc.

[broncovet]

A claim for tdiu is a claim for increase.  You can be awarded tdiu, or, the rater can decide, instead, to award 100 percent schedular.  When you apply, use the correct form (8940, if I recall), and also apply for increase,  

[jamescripps2]

On 6/3/2023 at 7:20 PM, 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%?  

Never expect compassion from the VA. Claims are impartial and are awarded based upon the evidence of the record and evidence provided. Also, you cannot reason with the VA.