ANYONE GOT CITATIONS THAT SAY FAILURE TO MAXIMIZE IS CUE

[Otrgypsy]

Thanks to an anwer to my latest questions I just woke up to how the RO screwed me out of SMC-S. Due to my CNS issues (and all the boiler plate bullshit they fill decisions with), I never realized until tonight that they granted my claim for TDIU based in part on their verbal garbage saying that TDIU is based on my 70% CNS and all my other disabilities. The only problem with this is I have 4 or 5 separate legitimate medical opinions saying the CNS disability renders me unemployable. It is true the other disabilites render me further unemployable, But none of those are rated above 50%.  One or two medical opinions medical say that my sleep disorders with or without chronic fatigue are serious enough to render me unemployable without regard to cns issues.

HOW CAN THEY USE GREATER DISABILITY TO DENY SMC-S?????

[brokensoldier244th]

What did you, or your doctor,  write on the 8940 that you used to apply for tdiu?

[Rattler]

Until I learned how to read the letters I did the same thing you just did. Read down to the part where they piss you off and get lost in that.  If you could take a Sharpie and black out your personal information and post it here we can look at it and help you. brokensoldier244th works at the VA and is very good at reading between the lines with the letters, as am I, after 45 years. The VA is spose to tell you in the letter why did what they did.

From what you posted and my own experience you have said, "TDIU based in part on their verbal garbage saying that TDIU is based on my 70% CNS and all my other disabilities."  To get TDIU you have to have one rating of 60% (or more) and one rating of 40% or more. You stated, "But none of those are rated above 50%." So, if they rated you at 70% and 50%, you would qualify for TDIU.

The only other question I have for you is, did they give you T & P with it? (Total & Permanent) They sometimes will give you T & P with TDIU. This will help you from getting reviewed. 

[pacmanx1]

1 hour ago, Rattler said:

To get TDIU you have to have one rating of 60% (or more) and one rating of 40% or more. You stated, "But none of those are rated above 50%." So, if they rated you at 70% and 50%, you would qualify for TDIU.

This statement is a little off, while it is true, it only quotes part of the regulation 38 CFR 4.16(A) and not the most important part that states a veteran can be awarded TDIU if his/her disability precludes them from work and make them unemployable 38 CFR 4.16(B).

[Rattler]

21 hours ago, pacmanx1 said:

This statement is a little off, while it is true, it only quotes part of the regulation 38 CFR 4.16(A) and not the most important part that states a veteran can be awarded TDIU if his/her disability precludes them from work and make them unemployable 38 CFR 4.16(B).

No its not. The VA awarded me TUDI T & P 100% with a single 70% PTDS rating.

[pacmanx1]

 

The VA, VSOs and some veterans say that a veteran must be rated at least 70% or have one disability rated as 60% but that falls under part (A).  Here is part (B) and as you can see it does not list any rating percentage. When quoting the regulation, if you leave out part of it, the part you leave off will make the quote a little off. 

We have been trying to get veterans to understand 38 CFR 4.16(B) for decades and some still miss the point that a veteran can also not have a 60% for a single disability or a combined 70% but the VA can still grant them Unemployable based on their symptoms and 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. 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.

[Rattler]

38 CFR 4.16(B) does not always hold true, or the VA ignores it. In my case, they awarded me 70% PTSD and I had to go back and request the RO QUE itself because I filled VBA-21-8940-ARE -Unemployability. 

You and I know the VA never ignores anything in your file when it comes to your claim.