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TOTAL DISABILITY RATING BASED ON INDIVIDUAL UNEMPLOYABILITY (TDIU OR IU)

Many veterans suffer from service-connected disabilities which are severe enough to cause marked impairment to their ability to secure or follow a substantially gainful occupation. But these veterans might not have a combined service connected rating of 100%, after all a 100% combined rating is difficult to get from the VA. In these situations, the VA may consider the veteran 100% disabled even though the VA has not rated his or her disability or combined disabilities at 100%.

A veteran may be assigned a total rating when he or she is unable to secure substantially gainful occupation due to service-connected disabilities. This is known as a total disability rating based on individual unemployability (TDIU or IU). The veteran is granted the equivalent of a 100% rating even if his or her schedular rating is less than 100%.

There is a lot to consider in claims for individual unemployability. This blog post will review what IU is and how to apply for it.

For example, if a veteran is rated at 60% for a single service-connected disability and that disability prevents the veteran from performing substantial gainful employment, then the veteran may be entitled to individual unemployability and considered 100% disabled.

The VA regulation authorizing individual unemployability requires that the veteran’s service-connected disabilities satisfy certain percentage rating requirements. The disabilities must meet minimum rating thresholds:

• Schedular – The veteran must have at least one service-connected disability rated 60% or higher. If the veteran has two or more service-connected disabilities, at least one of those disabilities must be rated at 40% or higher, and, after factoring in the ratings for the other disabilities, the veteran’s combined disability rating must be 70% or higher.

• Extraschedular – Even when a veteran does not meet the schedular requirements, TDIU may be awarded on an extraschedular basis because of an unusual disability picture or due to marked interference with employment. The VA regional office and the Board of Veterans’ Appeals are not authorized to make these awards, but either may refer the claim to either the Director of the Compensation and Pension Service or the Under Secretary for Benefits for consideration of an extraschedular rating.

Hill & Ponton focuses on individual unemployability claims. The firm assists most of our veterans with reaching individual unemployability based on the schedular rating system. According to the U.S. Department of Commerce, Bureau of the Census, 3.5 million veterans have a service-connected disability rating. Of this number, 810,245 have a rating of 70% or higher.

HOW TO BEGIN A CLAIM FOR IU

Once a veteran meets the schedular requirements for individual unemployability and has submitted to the VA evidence of not being able to work, the VA must consider individual unemployability. However, for the VA to grant individual unemployability the veteran must submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the prescribed form for claiming individual unemployability (TDIU).

A veteran may initiate a claim for individual unemployability by submitting a Statement in Support of Claim (VA Form 21-4138) to the regional office indicating the benefit being sought. This is considered an informal claim. If the veteran files an informal claim, the regional office must send the veteran a VA Form 21-8940 with instructions to complete and return it within one year in order to preserve date of receipt of the earlier communication as the date of claim. A signed and dated letter, clearly indicate the benefits sought, can also be considered an informal claim.

Although claims for individual unemployability are generally submitted by the veteran, they may also be reasonably raised by the evidence of record, including statements or evidence submitted by the veteran indicating unemployability. For example, if a veteran submits information regarding an award for Social Security Disability Benefits the VA has a duty to assist by requesting both the SSA (Social Security Administration) decision granting benefits and any supporting medical records. Although VA is not obligated to follow a determination made by SSA, these records may be relevant to the issue of the level of impairment of the veteran’s service-connected disability. The veteran should keep in mind that individual unemployability can only be awarded for service-connected disabilities. Whereas the SSA award may be for any disability the veteran may have, service-connected or not.

Additionally, if a veteran files a claim for increased evaluation, even without a specific individual unemployability claim from the veteran, it may also give rise to a claim for individual unemployability when associated with evidence of a worsened service-connected condition. For example, if the veteran has a current service-connected disability rating of 40 percent but their condition has worsened to meet the threshold for 60 percent evaluation, and the veteran can show that he or she has stopped working or has marginal employment secondary to the service-connected disability, the VA has the duty to evaluate the claim for individual unemployability as well.

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by Matthew Hill

January 23, 2013

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