Denial for Individual Unemployability??
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  1. #1

    Denial for Individual Unemployability??

    Is it necessary/beneficial to file a claim for Functional Impairment covered under 38CFR4.10?

    I'm presently at 80% (70% PTSD, 40% cluster symptoms, 10% bilateral hearing loss all service connected) and was denied IU but according to all applicable codes I am eligible and meet the requirements. The first time I was denied because I didn't file the employment forms on time but I submitted those along with a request for reconsideration pending new evidence. They treated it like I had just opened a new claim and I had to do it all over again even though I was still within the one year deadline. Either way they denied it citing 38CFR4.16 as their reason for decision but in actuality it supports my claim. I have not engaged in any employment in over 2 years establishing that my earnings are below the "poverty threshold" requirement set forth in that code.

    38CFR4.25 states that with an 80% rating, if I could secure and maintain a job I would only be expected to perform at 20% efficiency which according to thier requirements, would still keep me below the "poverty threshold" even if I could find an employer who would allow me to work intermittently with no schedule.

    Now I admit I went high and to the right with my PTSD examiner and she shafted me in her report. She raise my GAF from 40 to 43 which is marginal for increase in benefits but is still "severe" and not "moderate" like the Reasons for Decision states and along with medical/employment history there shouldn't be grounds for denial.

    I'm hiring a lawyer 27 APR 09 but seems like maybe I'm not wording my claim right or something and trying to close every one of their little loopholes.

    I know, I know... just ignore that man behind the curtain. With the VA, the smoke and mirrors make things appear different than what they really are.
    (except for maybe the flying monkeys)

    Thanks in advance.


  2. #2
    Chris: Forget the lawyer.. get thyself to an accredited representative from the American Legion.. the legion will help you with your claim, and not take any of your back pay like an attorney would. Lawyers are in it for the money.... The Legion does it to help vets, and an accredited rep is usually more knowledgable in dealing with the VA than most attorneys.
    Although you meet the elligability requirements for IU, it is not an "automatic". What you will need to perfect your claim for IU is a letter from your Doc stating that: You are unemployable due to the severity of your PTSD, and that despite your compliance with all treatment regimens and medications, that your condition continues to deterioate". You can get such a letter from your psychiatrist, or from your treatment counselor if you have one.
    Good Luck

    Semper Fi

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