I just came across form 21-8940 / VETERAN'S APPLICATION FOR INCREASEDCOMPENSATION BASED ON UNEMPLOYABILITY



I last day to worked July 22, 2005. I went out on a medical leave of absent for Peripheral neuropathy and diabetes. In the process after 6 month of waiting I recieved mt medical records and made 22 claims on my 21-526 files Oct 2007 including peripheral neuropathy and diabetes.


My claim for the above was due to exposure to agent orange but not in country
On 10/08/2008 I file a 21-4138 with letter from the Social Security Administration granting disability for diabetes and peripheral neuropathy.Should I resubmit with form 21-8940?



What is you opinion ?

Thanks in advance



Ken1

Individual Unemployability
Total disability evaluation assigned to an individual because of any service-connected impairment (or combination of impairments) of mind or body that fails to meet the criteria for a total disability rating under the Schedule for Rating Disabilities but that nonetheless renders it impossible for that person to follow substantial gainful employment (38 C.F.R. § 4.16 (2008)). Text of this is provided below:

38 C.F.R. 4.16 - [Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR4.16]

[Page 366]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4_SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart A_General Policy in Rating

Sec. 4.16 Total disability ratings for compensation based on unemployability

of the individual.

(a) Total disability ratings for compensation may be assigned, where
the schedular rating is less than total, when the disabled person is, in
the judgment of the rating agency, unable to secure or follow a
substantially gainful occupation as a result of service-connected
disabilities: Provided That, if there is only one such disability, this
disability shall be ratable at 60 percent or more, and that, if there
are two or more disabilities, there shall be at least one disability
ratable at 40 percent or more, and sufficient additional disability to
bring the combined rating to 70 percent or more. For the above purpose
of one 60 percent disability, or one 40 percent disability in
combination, the following will be considered as one disability: (1)
Disabilities of one or both upper extremities, or of one or both lower
extremities, including the bilateral factor, if applicable, (2)
disabilities resulting from common etiology or a single accident, (3)
disabilities affecting a single body system, e.g. orthopedic, digestive,
respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple
injuries incurred in action, or (5) multiple disabilities incurred as a
prisoner of war. It is provided further that the existence or degree of
nonservice-connected disabilities or previous unemployability status
will be disregarded where the percentages referred to in this paragraph
for the service-connected disability or disabilities are met and in the
judgment of the rating agency such service-connected disabilities render
the veteran unemployable. Marginal employment shall not be considered
substantially gainful employment. For purposes of this section, marginal
employment generally shall be deemed to exist when a veteran's earned
annual income does not exceed the amount established by the U.S.
Department of Commerce, Bureau of the Census, as the poverty threshold
for one person. Marginal employment may also be held to exist, on a
facts found basis (includes but is not limited to employment in a
protected environment such as a family business or sheltered workshop),
when earned annual income exceeds the poverty threshold. Consideration
shall be given in all claims to the nature of the employment and the
reason for termination.


(Authority: 38 U.S.C. 501)

(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 and Pension 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.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989;
55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct.
8, 1996]

If your 10% is for diabetes than you should be eligible for TDIU if Social Security found you disabled for it

Good Luck

The 10% is from problems with left knee tat was broken in 1965

Thanks
Ken1

You have to be 60% disabled in one disability, or 70% with at least one over 40% to be eligible to start with. I think that you would have a hard time proving that you were unemployable with DM2 and PN unless you were in so much pain that you could not work. You would have to have a letter or medical evidence from a doctor stating that you could not work due to your DM2. Just because you are not working does not entitle you. I am 100% SSDI and with the VA I am 50% for PTSD, 80% total with the rest being DM2 and PN and have letters from my Psychiatrist and Psychologist saying that I cannot work and they still denied me! I am appealing now.

Also your DM2 has to be service connected.

Shark - please stop spreading that myth about having to be 60% or 70% to be eligible. It isn't true, as 4.16(b) states. Statements like that merely perpetuate the myth. Please read 38 CFR 4.16(a&b). Thanks.

pr

GruntDaddy - why wait? He will probably have to appeal, appeal, appeal, but if he wins it could go all the way back to when he first applied for TDIU. Waiting could only cost him money. The sooner he applies the better. I'd suggest applying for P&T, at the same time, also. jmo

pr

I agree with Phil.

Shark please be careful to qualify your advice if you are not sure.

Where were you exposed to agent orange?

Post follow up with some details



Yes I was exposed to AO in 1966 Ft Lewis, WA

I have re-occurring prostate cancer.

I have Peripheral Neuropathy granted SSD for this started in 2006.

I have type II diabetes granted SSD for this started in 2006.



I have two doctor’s (Both Dr’s are veterans) statements in my “C” file.

One doctor (My Urologist who is a Vietnam Vet) wrote a two page letter stating my prostate cancer was just as likely as not to be caused by AO

The second doctor (my Neurologist) wrote the same type of letter with basically the same statement that my peripheral neuropathy was caused by AO



I stared a claim in 1969 for problems with knee and lower back injury but due to bad experience on first C&P in 1969 I never pushed to move the case along. In 1969 with my 1st child on the way I was more concerned about providing for my family and keeping my job. In 1969 you did not have MRI’s that could show in detail ruptured disc. During my exit from Army in 1967 I logged to items that could be medical problems knee and back. I was very surprised in 2008 @Memphis VA Hospital a Veteran Service Officer pull up my old claim on a computer. In 1969 all forms were filled out in long-hand.



In addition I found a veteran that went thru basic training with me and he wrote a letter to VA in my “C” file stating he witness the back injury. His letter, written summer 2008. My 21-526 was files Oct 2007.



About 95% f the 21-4138 and 21-4143’s were completed by me I have had some help from another county VSO but my local county VSO is a waste of time.



Thanks Ken1

FYI

My VA contact sent the following email to me, I have 15+ defferred issues pending.

no sir -- you have to be Service Connected 70% with one issue 40%, or if you have only one disability it can be 60 -- WHEN YOUR DEFERRED ISSUES ARE DECIDED, then we can think about IU. Hopefully, you'll meet the criteria at that time. What will make it even more complicated, VA will use the date that the doctor says you met that criteria...

Thanks for the help
Ken1

You VA Contact is not telling you all that you need to know.

Isn't that the truth.

Please read 38 cfr 4.16 it says that if all your disabilities affect a single body system (such as orthopedic) and add up to the 60% that you qualify for IU.

NO _ NO _ NO

Read ALL of 38 CFR 4.16 to include part A & B.
I haven't seen it granted many times due to part B -
BUT pr has seen it granted a couple of times due to part B.

Ken1 - Your doctor's can state all they want that some disability is due to AO
BUT - your going to have to submit proof of exposure no matter what the doctors say
to get it SC'd.

http://ecfr.gpoaccess.gov/cgi/t/text/text-....11&idno=38


§ 4.16 Total disability ratings for compensation based on unemployability of the individual.
(a)
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities:
Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.
For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:
(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,
(2) disabilities resulting from common etiology or a single accident,
(3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
(4) multiple injuries incurred in action, or
(5) multiple disabilities incurred as a prisoner of war.

It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.

Marginal employment shall not be considered substantially gainful employment.
For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.
Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501) This is the part of the reg pr is pointing out here - he has seen IU granted due to part b a couple of times.

(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 and Pension 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.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]

ken, welcome to Hadit

I see you asked if you should 'resubmit' form 21-8940. Did you submit for Unemployability already? if so how long ago? and for what reason?

Just curious to see if I am reading correctly.

What does the VA say in regards to your deferred issues - did you get a future date or actions to take?


Carlie,Tbird, PR and Pete - solid advice. And of course Larry tells it like it is~truthfully!

All the best to ya,
Cowgirl'up2009!

I decided to wait, last week complete one C&P for hearing lost and tinnitus wait for result. I have another 18 claims deferred since completing 21-526 Oct 2007

Thanks to all for the information

Ken1

Ken,
I got my approval for 10% Tinninitis back about a month following my hearing test at Memphis VA. I rechecked and discovered I was my hearing came back at 0% disability.

Cavtrooper088

I asked for IU when I was rated 30%. If the evidence is there that you are IU because of a SC condition the VA will bump you up to 60-70% just to keep the myth going. I was bumped up to 70% and eventually granted IU. The only thing different about me was that when I was 30% I was employed, and when I got 70% I was unemployed and on SSD. My symptoms were actually worse when I first was rated 10% back in 1973. Then I was really bad off, but the VA just did their thing. I did not even know I could appeal. I got no appeal rights with my rating, and had no service officer that I know about at that time. Maybe some VSO came on the ward and put my name on an claim. I don't remember a thing.