tdiu Is Total And Permanent Needed For Individual Unemployability?

[tssnave]

Is it necessary to have a “total and permanent” assessment verified to get Individual Unemployment?

The reason I ask is that I have a form from my POA for my doctor to complete. It has the rating schedule for mental disorders at 70% (where my symptoms fall out) and 100% (where, thankfully, they don’t). However, because of my symptoms, I am not able to hold down a job so we are going to go for 100% IU. I haven’t worked for the last several years other than a brief job that I got fired from due to my sc mental disability causing attendance and concentration problems.

In addition to the 70% and 100% rating criteria, this form also asks if the doctor believes that “In your opinion, is the veteran unemployable due to his service connected psychiatric condition (to include sedentary employment) Yes/No.”

OK, no problem with that one. I believe both my doc and psychologist will say yes to that one due to my problems and work history I am unemployable.

There is a second question that asks, “In your opinion, is the veteran’s service connected psychiatric condition permanent and total in nature? Yes/No”

I believe this last question will present a problem. Even though I have been treated for my mental disorder for over 25 years and have had severe reactions to psychotropic drugs, since there are new drugs on the market that I have not tried (and am afraid to try given the severe reactions I’ve had to other drugs) I do not believe either one of them will say yes, it is permanent and total.

No psychologist wants to say he can’t fix you with counseling and a referral to a psychiatrist for drugs. My primary care doctor refuses to prescribe any psych meds because of my past history with bad reactions and wants me to go to a psychiatrist as well for a med referral. At the present, I have not gone to a psychiatrist nor do I intend to (look, I’ve almost killed myself on psych drugs and at least when I’m not on drugs I don’t kill myself – call me crazy, I do have mental disorder – but I just don’t see the percentage in trying any more drugs).

So, while I believe they will check the rating schedule for 70% which is where my symptoms fall out and they will check yes for unemployable, I do not think they will check yes for permanent and total.

If they say that my psychiatric condition is not permanent and total in nature will it prevent me from being rated 100% for Individual Unemployability?

Thanks,

tssnave

Edited April 3, 2007 by tssnave

[tssnave]

Thanks, guys, for the clarification and information on T&P for IU.

Hoppy, thanks for the words of wisdom and kindness.

I appreciate your prompt replies.

Thanks,

ts

[tssnave]

TOG,

By DEA do you mean Dependent Education Assistance under 38 USC Chapter 35?

Thanks for the head's up.

ts

[spike]

My biggest apology. I have not been here a lot due to other obligations in the MCL, DAV, VMW, M4L, helping get the support for two bills to be passed in NY, vets, and establishing a localized Visiting Veterans Committee...Ugh...and my disabilities have been rough....Like I said my apology.

Here is what you will need for I/U:

-Evidence that your SC Disability/Disabilites are sufficient, without regard to other factors, to prevent you from performing the mental and/or physical tasks required to get or keep substantially gainful employment

AND

-Generally, you meet certain disability % requirements as listed in 38 CFR 4.16 (I.E. one disability ratable at 60% or more OR more than 1 disability with one disability rated at 40% or more and a combined rating of 70% or more)

IF You dont meet these above.....

-In order to support your claim for an extra schedular eval based on exceptional circumstances, the evidence must show that your SC disability or Disabilities present such an exceptional or unusual disability pciture, due to such factors as marked interference with employment or frequent periods of hospitization, that application of the reg schedular standards is impratical. The evidence must still show that you are incapable of substantially gainful employment solely becuase of your SC disabilities.

VA Determines Disability Ratings on:

-Nature of symptoms

-Severity *(here is where P/T comes into play)

-Impact of the condition and symptoms on employment.

-Disabilities can always get worse or in a few occasions better.(I've never seen the later). If evidence shows that the disability will never get better or is so bad that your disabilities meet 100% in reference to 38 CFR Part 4.

-The VA holds the right to change your disability rating if your condition changes.

-In addition, they can assign a disability level other than the levels found in the schedule for a specific condition if your impairment is not adequately covered by the schedule.

-Under no circumstances do you need P/T to achieve 100 % I/U.

-100% is 100 %. I have not been told differently, but I'm sure you don't need P/T to obtain benefits for your Dependents (ChampVA, Educational Benefits)

- If you have something lets say like a New PTSD claim and they have a Re-evaluation Date in 2 years scheduled, they can terminate your future exams for the condition if they evaluate you for higher increase or grant 100%. If you look at your I/U request it indicates it is an application for increase in benefits. The VA may schedule an appointment and then increase your already granted disability ratings, if they disagree with the rating previously given.

Sorry for the long delay, again. I hope this helps and isn't too off topic.

[theotherguy]

TOG,

By DEA do you mean Dependent Education Assistance under 38 USC Chapter 35?

Thanks for the head's up.

ts

Bingo :D

[sixthscents]

Good points Spike and theotherguy... I learned something, and thats what this is all about. I hadn't considered the rating decision and what it mentioned. I will in the future.

[Hoppy]

TS,

I got your message asking about your unemployability situation. This is my understanding of your progress. let me know if I got some thing wrong.

I do have some experience with this. I was given a IU status many years ago and can remember the process to some extent.

In my case I had not worked for 10 years due to my disability before I even applied. The record clearly showed this huge gap in employment. I also had a GAF of 40. I do not remember how it came about, somebody scheduled an appointment for me to see a specialist to determine if in fact I was unemployable. This appointment could have been scheduled because of the GAF or the 10 period of not working. The specialist determined that I could not work.

In your case you have a GAF of 40 and a service connected rating for this GAF of 50%. You also stated that you can not work because of your service connected disabilities. I take it you have some service connected medical conditions that are keeping you from working.

Your GAF of 49 might not be low enough for them to give you a 70% which is usually necessary for the IU evaluation. You claim that your service connected disabilituies keep you from working. However, consider that you are technically trying to get them to give you a higher rating than the schedule allows based on your complaint that you cannot work. Although there is a legal road open to get a rating that is higher than the schedule allows for, it appears the VA has no intention of giving the higher rating just becuase you claim you cannot work. The VA is resistant to extra schedular ratings.

There has to be some point in time where they will have to consider a long period of unemployment as being factored into the GAF. In my case it could have been the 10 years that got my GAF so low. What I am saying is to keep getting re-assesments of your GAF until it is low enough to get the 70%.

I can not be of any assistance in developing an argument to get them to give you a rating that is higher than the schedule allows. I do not know how to pull this off. I just cannot imaging that if you continue to stay out of the labor market that this will not effect the GAF at some point in time to be low enought to get to the 70% level.

One other suggestion that I have made before to other veterans is that when you submit evidence of unemployment that you take with you to your doctors appointments and submit to the RO a copy of your Social Security earnings statement. They do not have to believe you are not working just because you tell them you are not working. Take them documentation. Such as, the SS earnings statements or any letter from employers who have terminated your employment. Fortunately, in my case I was loaded for bear. I had letters from my employer (City Govt.) letters from attorneys, my SS earnings statement showing no income for 10 years and I had been on Social Security disability for 7 years when I filed my claim with the VA. It was hard for them to give me a GAF higher than 40.

This is my take. Hope it is of assistance.