Matthew: Hello, and welcome to the Hill and Ponton video blog. I’m Matthew Hill along with Carol Ponton. Today we want to talk to you about how the VA must determine your case if you’re applying for total disability due to individual unemployability.
Carol: “Unemployability” meaning you can’t work.
Matthew: Unemployability is another way to get 100%. Essentially, if you cannot work due to service-connected disabilities, the VA must pay you at 100%. As we’ve spoken to here before, it’s very difficult to get a 100% or for your ratings to combine for 100% in and of themselves. Unemployability is kind of the side door – or backdoor, if you will – to get the 100%.
What we want to discuss today is one of the errors we commonly see with VA making the decisions. There are things that the VA must consider and things that the VA is prohibited from considering.
We’ll start with the first one as far as what they cannot consider. One thing we see a lot is the VA denying a veteran total disability due to individual unemployability because the VA finds their non-service-connected disabilities are responsible for them not working.
A lot of times what we’ll see is they’ll point to proof from the Social Security disability decision. For example, if the veteran has a non-service-connected back injury that Social Security said, “Because of this you cannot work,” and then the veteran is applying for, say, PTSD at a 70% rating and the VA says, “No. This isn’t what keeps you from work. It’s that back injury.” Do you see those at all, Carol?
Carol: I see those all the time. A lot of times you’ll hear from the VA and you’ll see it on the decision they make that “Absolutely we cannot give you this because you’re disabled due to something else.” But that’s not true.
Matthew: It’s not a zero-sum game. The back kept the guy from working. That’s fine, but I’ve had vets where this has actually happened. They’re on Social Security disability for their back and they have a 70% PTSD rating.
I talked to one veteran and said, “How did that affect you?”
He said, “Well, I had over 150 jobs in my life because I really didn’t like it when my boss told me something I didn’t want to hear and I typically told the boss that.”
Even though the vet was service-connected for his PTSD and it wasn’t used in his decision for Social Security, it was very apparent that the vet could not work because of the Social Security, as well.
That’s a red flag for us. When we see a decision where the VA says, “Social Security found you disabled for other disabilities. Therefore, we aren’t service connecting you.” That’s a red flag because the VA is prohibited from doing that.
Carol: You need to remember, when you’re doing your claim, you file a claim to the Regional Office. If you’re denied, you appeal to the Regional Office. And then if you’re denied, you go to the Board of Veterans’ Appeals. One of the big problems I see is so many veterans don’t go there. A lot of times the Regional Office may not be approving the 70%. They’re going to stick with the issue of, “Your back keeps you from working.” We find the Board of Veterans’ Appeals will read your case. They will look at the law. We find we’re getting very favorable decisions from them. So please don’t stop at the Regional Office.
Matthew: Along those lines, unfortunately, we see some service officers telling their veterans not to appeal because it will be faster if they go back. The problem with that logic is that they’re going to go back to the same adjudicators who denied them in the first place. So, I agree with Carol.
Carol: Exactly. Not only are they going to lose all their past benefits, they’re going to have the same people deciding the same issues. You’re not going to get anywhere with that.
Matthew: One of the other things speaking to what the VA must consider is they must make this determination unique to the veteran, meaning they don’t apply a general objective standard to all veterans when it comes to unemployability. The VA has to look at what the person did for their lives and also what kind of educational history they have.
I have a veteran who did construction all his life and had a bad back disability from service, and then tries to go for unemployability. The VA said, “Sure, you can’t do your old job. You can’t do construction, but you could do a sedentary job.” The catch there is that might work for the average veteran, but this person did not have the educational history or the job history to be able to do a sedentary job.
It’s something we see way too often where they write a veteran off and don’t look at the particular circumstances of that veteran’s background.
Carol: The bottom line is if you think you can’t work and it’s related to your service-connected disabilities or disabilities that should be service-connected, keep pursuing your claim. Don’t give up.
Matthew: One other thing that I should have said earlier as far as things that are prohibited is age. We see a lot with our Vietnam era veterans where they are denied because of their age. They’ll say, “You can’t work because of your age, not because of your service-connected disabilities.”
The VAs on regulations state that this is not a consideration they can make. They have to look at the veteran. They don’t look at the age. If you are an older veteran and the VA said, “It’s because of your age and not your disabilities you’re not working,” that’s nonsense. And frankly, that’s prohibited under the law.
Carol: If you’re a younger veteran, we’ve got many veterans in their 20s and 30s 100% permanent in total. Age is not a criteria they’re supposed to look at.
Matthew: We hope that this was useful. We’ll see you next time on the Veteran Disability blog.
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