Previously, we looked at what Total Disability Due to Individual Unemployability (TDIU or IU) is and how to apply for it. In this post, we will review the factors considered in making a decision on IU, the best evidence for an IU claim and how to appeal the denial of an IU claim.
FACTORS THE VA CONSIDERS IN DETERMINING IU
The VA determines whether the individual veteran is prevented from securing or maintaining a substantially gainful occupation because of service-connected disabilities. There are three important caveats to understand about this determination.
First, the age of the veteran is not a factor when qualifying for individual unemployability. So the VA cannot say that because the veteran is a certain age he or she would not be able to work due to the veteran’s age alone.
Second, the VA cannot consider non service connected disabilities when making a determination on individual unemployability. For example, if a veteran has a 70% service connected rating for PTSD and a non service connected back disability the VA must review the veteran’s ability to work solely as it pertains to the service connected PTSD. Even if the veteran is receiving worker’s compensation or Social Security Disability for the back injury, which would indicate that another governmental organization recognized that the veteran could not work due to his back, the VA cannot use this information against the veteran. After all, the veteran may not be able to work for more than one reason.
Third, having a job does not automatically disqualify a veteran from individual unemployability. The Veteran’s Court has held that substantially gainful occupation means an occupation that provides the veteran with an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works. The poverty threshold established by U.S. Department of Commerce, Bureau of the Census, for 2011 was $11,484.00. Under the current poverty threshold established by the U.S. Department Health and Human Services, marginal income for the year 2012 is $11,170.00 (2012 Poverty Guidelines for the 48 Contiguous States and the District of Columbia). Therefore, a veteran who is working, but whose income does not exceed the poverty threshold, may still qualify for individual unemployability.
Furthermore, marginal and sheltered employment is not considered substantially gainful employment. A job with a salary below the poverty level is called marginal employment. Sheltered employment includes, but is not limited to, employment in a protected or sheltered environment, such as working for a family business. Working in a sheltered workshop is also not considered substantially gainful employment, even if the veteran’s annual earnings exceed the poverty threshold. Basically, if a veteran is working in an environment where the veteran is protected from job requirements that someone else in that position would be expected to satisfy, the VA will not necessarily consider that veteran to be gainfully employed.
BEST EVIDENCE TO PROVE INDIVIDUAL UNEMPLOYABILITY
When it comes to proving to the VA that the veteran is eligible for individual unemployability, that is if the veteran is found to have met the rating threshold and employment criteria mentioned above, the best evidence is a professional opinion from a vocational expert or competent medical doctor concerning the veteran’s ability to secure or follow a substantially gainful occupation. The VA often times schedules a veteran for a C&P exam to get an opinion on IU. This report should include a rationale as to whether it is as likely as not (50/50 chance) that the service-connected disability or combined disabilities render the veteran unable to secure and maintain substantially gainful employment. Additionally, the report should also include and describe the functional impairment caused by the veteran’s disabilities and how that impairment impacts on physical and sedentary employment. Other evidence to support unemployability may include employment history, employer records, and any medical evidence that indicates that the veteran is totally disabled and unemployable.
HOW TO APPEAL A DENIAL FOR INDIVIDUAL UNEMPLOYABILITY
Rating decisions granting or denying entitlement to IU must provide enough explanation so that the veteran can understand the reasons and basis for the decision. As with any decision, the rating must list the evidence considered, a clear explanation of the basis of the decision, and an explanation of the effective date of entitlement.
To appeal the rating decision, the veteran must file a Notice of Disagreement (NOD) within one year of the date on the letter that accompanied the rating decision. If the veteran fails to file a NOD within one year, that decision becomes final and can only be “reopened” by submitting “new and material evidence,” or by demonstrating that the decision was the product of “clear and unmistakable error.”
The Notice of Disagreement can be submitted to the regional office on VA’s new standard form (VA Form 21-0958). The NOD must state that the veteran seeks appellate review and should identify the issues that are in dispute. It is best to keep the NOD short and simple.
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