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Matthew Hill

Video Blog – Individual Unemployability – When to File

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Matthew Hill: Hello and welcome to another Hill and Ponton video blog. I’m Matthew Hill.
Carol Ponton: I’m Carol Ponton.
Matthew Hill: Today we want to talk to you about individual unemployability and a big mistake we see, and that is the timing of the filing of the paperwork for that. A lot of times what we’ll see is somebody is not working and they’re filing for service connected compensation for their back or their headaches or their allergies, and they’re not service connected yet.
Carol Ponton: Right.
Matthew Hill: It’s those disabilities that are keeping them from working.
Carol Ponton: Right.
Matthew Hill: Even though they’re not service connected, once they get service connected they’re really going for 100%. What do you see mistake-wise on this?
Carol Ponton: Well, unfortunately, what happens is if you haven’t … First of all, it takes forever to get your claims evaluated and approved through the VA. Then if you wait until then to file a claim for unemployability, you have to start all over. Plus, the VA seems to think that you only became disabled the day you filed that form. You have a catch 22. You have to wait years more and then they will only go back to when you filed the form, and that’s not the law. We appeal all that, but that’s what you’re going to get from the VA. I feel whenever a veteran has what they think should be a service connected claim that keeps them from working, they should also file for unemployability.
Matthew Hill: One of the catches here is that they’ll get flack from veteran service officers or people at the VA saying, “Well, you’re not even service connected. You can’t file this yet.” The whole point is you don’t want just to be service connected, you want to be compensated at the correct rate. This is part of that. You want to get all your paperwork in there, because unfortunately if you don’t and you get fighting, that’s where people need us. They come in and we see all this paperwork is all over the place, and they need us to come in and basically force the VA to recognize the law that even though the form for unemployability wasn’t filed till three years, four years after the actual claim, it should go all the way back.
This is big money.
Carol Ponton: This is big money.
Matthew Hill: I mean, we’re talking tens of thousands of dollars that they want you to leave on the table by not appealing. Our hope is that if you do it all at once, that goes away, that they finally service connect you and they say, “Oh, wow. This is 100% rating.”
Carol Ponton: It’s really sad when I have a veteran who has been fighting for five or six years to get service connection. Now they get the service connection where they’re back in the radiculopathy and I hear from the decision review officer, but I can’t consider unemployability because the veteran didn’t file a claim, or he just filed it when he came to you and it’s still at the initial phase, it’s not an appeal.
Matthew Hill: Right. This is, unfortunately, one of those tricks, I’d call, to make there be a longer delay, or as I was saying earlier, tricks for the veteran not to grab all the retroactive compensation they’re entitled to. Again, you will hear people tell you that you can’t do this or you’re just clogging up the system if you file the unemployability form, and that’s the 218940 is the name of the form, if you file that form they’ll say, “Well, you’re not even service connected yet. What are you doing?” If you are filing for the disabilities that are keeping you from working, that should be your end goal.
Carol Ponton: That’s your answer. “My back keeps me from working and this form needs to be filed so that I can prove my case.”
Matthew Hill: Thank you for joining us today on the Hill and Ponton Veteran’s video blog. We look forward to seeing you on this space again soon.
Heather Staskiel, Attorney

Temporary 100 Percent VA Disability Ratings

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Many veterans have the goal of being awarded 100 percent disability rating due to the severity of their disabilities. Sometimes, a veteran may be incapacitated by his or her disability to a level that warrants a 100 percent disability rating, but, fortunately, may be able to recover enough to where the 100 percent rating no longer accurately reflects his or her current level of disability. In such case, the VA will award temporary 100 percent disability for the time period in which the veteran was totally incapacitated. There are three types of temporary 100 percent disability ratings that a veteran may be eligible for: pre-stabilization ratings; Convalescent ratings; and hospitalization ratings. We will discuss each of these in turn.

A 100 percent pre-stabilization rating may be assigned to a veteran who suffers from an unstabilized condition that was incurred in service if the unstabilized condition results in a severe disability that makes substantially gainful employment unfeasible (note: a 50 percent pre-stabilization rating may be assigned under certain circumstances as well). An example of an unstabilized condition would be residuals from a car accident or gunshot wound. The VA cannot assign a temporary 100 percent pre-stabilization rating where the veteran is immediately eligible for a 100 percent schedular rating or a 100 percent rating due to total disability based on individual unemployability (TDIU). Pre-stabilization ratings are in effect for the 1-year period immediately after discharge, and the VA is not able to change a pre-stabilization rating if it would reduce benefits to the veteran during the 1-year period. However, the VA is able to change the veteran’s pre-stabilization rating to a 100 percent schedular rating or 100 percent TDIU rating if so warranted. It’s important to remember that the VA must conduct a C&P examination for the veteran’s un-stabilized condition between 6 and 12 months after the veteran is discharged, but even if the examination shows that the veteran’s disability warrants a lower rating, a reduction cannot occur until the end of the 1-year period.

A veteran may also be entitled to a temporary 100 percent rating for periods of hospitalization for treatment or observation which are greater than 21 days. Note, the hospital treatment or observation must be related to the veteran’s service-connected disability, but if the veteran is initially admitted to the hospital due to a non-service-connected disability and receives treatment for his or her service-connected disability for more than 21 days during the hospital stay, he or she is still eligible for a temporary 100 percent rating for the period he or she was receiving treatment for the service-connected disability. This temporary 100 percent rating is effective from the first day of continuous hospitalization and ends the last day of the month of discharge from the hospital.

The third type of temporary 100 percent rating is available where a medical report establishes that a veteran needs time to convalesce following hospital discharge or outpatient release. In VA law, the term “convalesce” means “the act of regaining or returning to a normal or healthy state after a surgical operation, or an injury.” There are three circumstances under which a 100 percent convalescent rating will be issued: the veteran has undergone surgery that requires at least 1-month convalescence; the veteran has undergone surgery that has resulted in severe postoperative residuals, or one of the veteran’s major joints immobilized by a cast. Such benefits are effective from the date of hospital admission or outpatient treatment and may continue for a period of 1 to 3 months from the first day of the month following hospital discharge or outpatient release. Veterans are able to obtain extensions of convalescing ratings for up to 3 months, or 6 months in certain circumstances, if postoperative residuals are particularly severe. It is important to remember that medical evidence is necessary to establish entitlement to a convalescent rating, specifically a note from the veteran’s doctor stating how long he or she requires to recover.

Cassandra Crosby, Claims Advocate

Eligibility for Unemployability While Still Working

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In our blog about working and receiving Unemployability, we outline how Veterans can continue to be employed while receiving the VA benefit called Total Disability due to Individual Disability (TDIU). We outline how to file for this claim in several blogs including, Tips for Filling out the VA 21-8940; as well as provide Veterans with a guide to what TDIU is and how to determine if one is eligible for Unemployability in our Unemployability Guide.  One of the main things to know for Veterans who continue to work while filing for Unemployability is the rules concerning what is called “marginal employment.”

Marginal Employment

Marginal Employment is considered as “earned annual income that does not exceed the poverty threshold for one person as established by the US Department of Commerce, Bureau of the Census.” This means employment that pays at the level of, or below the standard poverty threshold based on the year you are applying as your effective date. For example, if a Veteran is applying for TDIU back to 2014, the Veteran would need to have made less than the poverty level in income for that year and the years after that that the Veteran continued to work. This is based on no dependents, whether the Veteran has any or not. If a Veteran exceeds the poverty threshold, he or she would not be eligible for VA benefits.

Sheltered Employment

Sheltered Employment is the other type of marginal employment eligible for TDIU. Sheltered employment means that a Veteran is given concessions due to his or her service-connected disabilities that would not normally be given to other employees. This is something beyond what would be legally provided through ADAAA accommodations. For example, a veteran with TBI works for a company that specifically hires Veterans with disabilities. The company provides the veteran with an office and duties that afford limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. Because the veteran’s job has been tailored to his individual needs (limited interaction with other people), his job is considered to be sheltered, and therefore falls under “marginal employment.” The VA cannot consider this job as being substantially gainful employment, and must not use it against him in determining IU.

Proving Sheltered Employment

Proving sheltered employment can often be difficult. Veterans must show that not only that their disabilities keeping them from working in sustainable employment, they must also show that the employment they do hold is sheltered by providing evidence in the form of documentation from their employer stating what accommodations have been made for the Veteran and verifying that these accommodations would not be made for other employees. As long as the accommodations are not considered “reasonable” and do not violate the ADAAA, they are not required to be provided to all employees. For example, providing someone with an ergonomic chair for a back injury would be an ADAAA accommodation and something reasonable to provide to all employees who had a back injury. A small business conducted a fundraiser to raise money to build a special entryway into their office for a Veteran in a wheelchair so he could have his old job back when he returned from service. This would not be considered a “reasonable accommodation” per the ADAAA as they normally could not afford to provide such types of accommodations, so therefore this would be considered sheltered employment.

Differences between Sheltered Employment and Reasonable Accommodations

Reasonable accommodations per the Americans with Disabilities Act Amended Act provides for accommodations that meet specific criteria per federal law. These criteria are:

  1. Dignity: Persons must be accommodated in a way that most respects their dignity, including their privacy, confidentiality, comfort and autonomy.
  2. Individualization: There is no set formula for accommodation. Each person’s needs are unique and must be considered afresh when an accommodation request is made. A solution may meet one person’s requirements but not another’s, although many accommodations will benefit many other people with similar needs.
  3. Inclusion: Achieving integration and full participation requires barrier-free and inclusive design and removing existing barriers. Preventing and removing barriers means all persons should have access to their environment and face the same duties and requirements with dignity and without impediment.

Sheltered employment does not have to meet these requirements. There are three ways to determine if employment is considered sheltered:

  1. If the Veteran were to leave the position, the accommodations would no longer be available to any other employee, in other words, they were specific to just the Veteran;
  2. The business plans to continue to accommodate the position and hire someone else similarly disabled;
  3. The business plans to eliminate the position completely if the Veteran was no longer working at the business.

Family owned businesses, businesses that specifically hire disabled veterans, non-profits who work with disabled veterans in “sheltered workshops” are usually where you are most likely to find marginal employment situations. Legal representatives or a vocational rehabilitation counselor can advise on whether employment can be considered sheltered. However, remember, falsely reporting employment income or accommodations as sheltered is a federal offense and can lead to criminal charges, so if a Veteran is filing for TDIU and is employed, make sure they are getting good counsel.

Robin Rosenblad, Claims Advocate

Can I combine ratings for TDIU?

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To even be considered for Total Disability based on Individual Unemployability (TDIU or IU) with the VA, you must have at least the following ratings for service-connected conditions:

  • You must have at least one service-connected disability rated at least at 60%, OR
  • Two or more service-connected disabilities with a combined rating of at least 70 % with at least one of those rated at 40 % or more.

(There are some other exceptional circumstances that might qualify you for TDIU but those are not the subject of this discussion.  See also our prior video on this subject.)

In order to meet the 60% or the 40%/70% percentage requirements, be aware that for certain disability conditions you can combine ratings to meet the “one disability” requirement if they fall under certain situations.  According to the law, CFR §4.16, the following would be considered 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.

Here are some examples that could satisfy the requirements of items (2) and (3) above:

  • Service connection for Diabetes with secondary conditions such as peripheral artery disease, diseases of the eye, kidney damage, cardiovascular disease, and foot damage. These all have a “common etiology” of Diabetes and so could be combined to fulfill number 2 above.
  • Another “common etiology” example would be Parkinson’s Disease with secondary conditions such as sleep disorders, cognitive difficulties, bladder problems, constipation and depression resulting from the Parkinson’s Disease.
  • Orthopedic conditions such as low back pain, cervical spine pain, and hip pain could all be combined to fulfill the requirement of number 3 above as they all affect a single body system.
  • Service-connected injuries received in a military accident (e.g., a motor vehicle accident) including traumatic brain injury, a fractured leg, and a cervical spine condition could be combined to fulfill the requirements of item 2 above if they all resulted from that single accident.

These are just a few examples of using combined ratings to meet either the 60% single disability requirement or the 40% single disability (with a total of 70%) requirement for a veteran to be eligible for TDIU.  Once you meet that requirement, there are other conditions that must be met in order to be granted TDIU such as being unable to maintain “substantially gainful” employment.  (You might also qualify for TDIU if you are still working but your income must be below a certain level or your job must be in a protected environment.)  Also keep in mind that TDIU is not restricted to certain age groups.  If you are 85 years old and meet the eligibility requirements of TDIU, you could still qualify for and be granted TDIU.

Kirsten Hirt, Claims Advocate

Exploring Marginal & Sheltered Employment for TDIU Benefits

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The means the VA utilizes to calculate your overall disability rating can make it difficult to reach 100%.  This is because they do not simply add each percentage together and often the closer your total gets to 100%, the harder it is to bump up your overall rating.  The good news is 100% can be achieved by other means.  Individual Unemployability can be filed as an additional claim if your service-connected disabilities keep you from securing and maintaining substantially gainful employment.

In order for TDIU (total disability based on individual unemployability) benefits to be awarded, you must first qualify based on your rating.  TDIU can be awarded once you have a single disability at 60% or if you have a total of 70% or higher with at least one disability rated at 40%.  Additionally, due to the nature of the benefit, most people are also unemployed when TDIU is awarded.  However, there are special circumstances that may still qualify you for TDIU while employed.  This is because VA Unemployability does not always equate to not working.

To understand whether you qualify, especially if you are working, it is important to be familiar with the definitions used by the VA when discussing individual Unemployability.  Substantially gainful employment is defined by the amount of earnings from an employed position.  The total amount of earnings from your job is considered gainful if they are above the poverty level.  It is also defined as competitive employment where a non-disabled individual may earn a comparable income to the particular occupation in the same area.  To determine if your earnings may be deemed gainful, the VA refers to the U.S. Department of Commerce which establishes the poverty level amount.   If you are employed and the earned annual income doesn’t exceed the poverty level, it may be considered marginal employment.  If that is the case, you can receive TDIU in some circumstances – assuming you qualify in terms of the minimum rating required for unemployability benefits.

You may also hear or see the term sheltered employment mentioned.  Sheltered employment involves holding a job but in a protected environment.  It involves maintaining a position where accommodations are made for your disabilities.  In other words, you would not be able to work at any job but rather are able to keep working because you have been given a flexible schedule or reduced duties because of your disabilities.  This may include diminished quotes, excessive time off, leave work at will, etc.

Sheltered employment essentially is a job where you are not working under regular expectations.  It may be a job where you are expected to do the most you can and whenever you are able.  Generally, with a sheltered employment position, you are held to a different set of standards due to any limitations you may have resulting from your service connected disabilities.  It also may have been developed specifically for you to allow you to keep working.  For example, you may have permission to go home due to a migraine or are allowed to work individually if you have severe anxiety.

There are many different circumstances that can be defined as sheltered employment but you must be able to submit supporting evidence if you are claiming unemployability. For sheltered employment, it is extremely important to try and obtain a statement from your employer.  Ask them to verify any accommodations made demonstrating to the VA that your current position is in a sheltered environment.  Similarly, the VA will require documentation of marginal employment if it is shown you are working but requesting TDIU benefits.  It can be very difficult to obtain TDIU benefits under these exceptions, so just remember to have all the documentation ready if you are working and your position falls into one of the above categories.  As a reminder, you will still have to file the VA Form 21-8940.  You can find a full TDIU guide with instructions on how to complete the required form here.

Matthew Hill

Video Blog – Common Mistakes – 100% vs Unemployability

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Matthew Hill: Hello I’m Matthew Hill from Hill and Ponton. This is our VA video blog. I’m here with Carol Ponton, and we’re doing a series on the big mistakes we see, or the misunderstandings that get in the way between a veteran and his benefits. Today we want to talk to you about unemployability versus 100%.
  The overwhelming number of clients we represent are so disabled that they can’t work, and we are trying to get them total benefits, be it 100% or unemployability. We are asked all the time …
Carol Ponton: What’s the difference? There’s a schedular 100%, that means you add up all of the ratings you have and they reach 100% …
Matthew Hill: Well, you don’t add them.
Carol Ponton: You combine them.
Matthew Hill: The VA does this percentage math, right.
Carol Ponton: Or you have 100% because you’re not working and you’re not working because of a service connected problem. They’re essentially the exact same thing except under unemployability, you can’t work. That’s the only difference, and you just have to, every year, say I’m not working, and the 100% continues.
Matthew Hill: Well you can work, and we have more information on this on our blog. Check it out. You can work only a little bit, but you are able to work.
Carol Ponton: Right. Basically, they are the same things, but our veterans are very confused about that. They are not sure why is one better than the other. If you want to work and be 100% disabled, then yes, you don’t want the unemployability. If you’re not working because of the service-connected problem, it makes no difference whatsoever if you’re getting unemployability or 100%.
Matthew Hill: Right.
Carol Ponton: That’s the confusion that we have with the clients.
Matthew Hill: If they are permanent and total, they get all the same other benefits: tax breaks …
Carol Ponton: That’s permanent and total. That’s not unemployability and 100%.
Matthew Hill: Right, but it applies to both.
Carol Ponton: Right.
Matthew Hill: You don’t have to be 100% schedular to get that.
Carol Ponton: Right.
Matthew Hill: As far as back to what we were saying as what schedular is and how you combine ratings, we have a VA disability calculator now that actually takes your ratings and combines them just to help. Because a lot of times, we’ll see veterans with ratings that add up to 210%, but they are getting paid 80% or …
Carol Ponton: Not.
Matthew Hill: We’ll link to that in these notes. It’s just important to know to have all options on board.
Carol Ponton: Exactly.
Matthew Hill: If you’re eligible, or you think you’re eligible for 100%, but you might be eligible for IU, we’ll put them out there.
Carol Ponton: IU is unemployability.
Matthew Hill: Unemployability. Don’t take them out just because you don’t think it’s going to be as good getting one benefit or the other because you’re basically tying one hand behind your back.
Carol Ponton: Right.
Matthew Hill: Well, thank you for tuning in on our Hill and Ponton VA blog. We are, again, talking about big mistakes we see that interfere with veterans getting the benefits they deserve.
Matthew Hill

Video Blog – When should you file for unemployability with the VA?

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Matthew Hill: Hello, this is Matthew Hill for the Hill and Ponton VA video blog. I’m here with Carol Ponton and we’re doing a series on what we consider the big mistakes that veterans make that we see again and again that can end up hurting your claim. Today, we want to talk to you about unemployability. There’s always a question as far as when to file unemployability. Just real quick, unemployability is essentially a way to get 100% rating when your combined ratings don’t go up to 100%, but essentially when the VA knows that you can’t work because of your VA disabilities, then they give you unemployability and pay you 100%.
Carol Ponton: You only need to have, you’re not working because of your service connected problem. You get exactly the same benefits as you would for the 100% if the VA, your ratings all added to 100%. It’s a really important benefit, but what we find is people don’t file that. They will file, say a veteran is trying to get a higher rating for PTSD and they can’t work because of the PTSD. As soon as they start filing for PTSD and they’re not working, they should file for unemployability. The unemployability, you file a form. It’s an 8940. You file that. It shows where you last worked and you’re not working now, and you’re not working because of what are the problems. Is it your back? Is it the PTSD?
Now, if you haven’t gotten service connected, say for the PTSD, then they’re going to deny you the unemployability, but when you win your case for PTSD, then that unemployability claim is before them and they have to make a decision. What we find is people wait until they’re service connected. Then they file unemployability and the VA, if they give them benefits, they start it when they file that claim.
Matthew Hill: Right, they do a couple of things. One, they started all over again, but two, they put that claim almost in the back of the line. What Carol’s saying is that if your back’s not service connected right now but you’re filing for it, and that’s what’s keeping you out of work and you file the unemployability, you’ll probably have people say, “Well, what are you doing? You’re not even service connected yet.” Essentially what you’re doing is keeping those two issues together.
Unemployability, according to the Veterans Court, is part in parcel of a claim. It would be part of the back claim implicitly in that it’s just part of the rating, so you were to get service connected and then that’s part of the rating, but what they do is that if you haven’t filed it as its own claim, then even when you get service connected, you file it, they’re going to treat it as a new claim, separate claim, so you wait, but then on top of that they give you the wrong effective date. They say, “Oh, you handed this on January 1, 2017.” Well, you filed the back claim on January 1, 2015. It should go back then. It seems almost counter-intuitive that you would file those two together, but in the long run if you’re saying that this disability, which you will be at service connected, makes it to where you can’t work. You need to file both.
Carol Ponton: You need to. So many times, a veteran will come to me and we’ll get them 70% for PTSD. That 70% automatically should trigger with the VA if the veteran isn’t working right to unemployability, but that’s not how they do it. Every veteran that comes to me and they’re not working, I file a claim for unemployability because it’s really sad to wait years to get 70% for PTSD and then they say, “Okay, now you can file the 8940 and we’ll get to that in a couple of years.” If you have the 8940, then they will handle both things at the same time and the veteran doesn’t have to wait all that time.
Matthew Hill: Right, and you get your benefits and move on with your life. Well, thank you so much for joining us. Again, this was part of our Big Mistakes series. It’s making sure you file you unemployability form when you file your form. Whenever you file any claim, whether it’s for service connection or for increased rating when you believe that claim’s keeping you from working. Thanks.

 
Veterans Unemployability IU Guide
Shannon Brewer, Senior Attorney

VA Disability Compensation: Answering Questions About TDIU

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Due to the VA’s method of combining, rather than adding together, a veteran’s disability ratings, it is sometimes difficult for a veteran with multiple, service-connected disabilities to reach a 100% rating.  The higher the combined rating is, the higher a new rating needs to be in order to add much of anything to the veteran’s combined rating.  A total disability rating based on individual unemployability (TDIU or IU) is just an alternate means for a disabled veteran to qualify for a 100% rating.  Under the TDIU regulations, a veteran is entitled to TDIU if a veteran’s service-connected disabilities prevent him from securing and following a “substantially gainful” employment.

What does substantially gainful mean?

The VA uses this term to mean employment for which the veteran is earning above the poverty level.  The poverty guidelines for 2016 indicate that a person earning less than $11, 880 is earning below the poverty level.  Of interest, VA regulations indicate that sheltered employment, such as self-employment or working for a family member in a position from which you cannot be fired, does not count as substantially gainful employment.

What does it mean to secure and follow a job?

Basically, these terms just clarify that a veteran is entitled to TDIU if his service-connected disabilities prevent him or her from getting a job and/or if those disabilities prevent him or her from keeping a job.  While some physical disabilities such as knee or back problems would be obvious at an interview and might prevent a veteran from getting a job, other disabilities, such as PTSD, might not show up at an interview.  A veteran with a service-connected mental disability might have no trouble getting jobs, but keeping a job, with symptoms such as impaired anger management, depression, or an inability to get along with others, is much easier said than done.  Both the inability to get a job and the inability to keep a job would qualify a veteran for TDIU.

If the Social Security Administration (SSA) has found me totally disabled, why doesn’t the VA do the same?

This is an issue which frustrates many veterans.  How can one government agency determine that a veteran cannot work while another says that he or she can?  VA and SSA are operating under different standards here.  For a veteran to qualify for TDIU from the VA, the issue is whether his service-connected conditions, alone, prevent the veteran from working.  SSA does not separate out service-connected and non-service-connected conditions in its considerations.  For example, a veteran who is service connected only for PTSD may also have other, non-service-connected conditions, such as a lumbar spine disability.  SSA might find that the veteran is disabled due to the lumbar spine condition only or due to the combination of the disabilities.  VA, however, cannot grant TDIU to a veteran whose inability to work is caused by non-service connected conditions.

A common mistake made by the VA, though, is that the VA sometimes recognizes that the SSA has determined total disability by considering non-service-connected conditions but forgets to complete the analysis and determine whether the veteran would still be totally disabled if he or she did not have the non-service-connected conditions.  Just because a veteran is totally disabled by his non-service-connected lumbar condition does not mean that he is not equally disabled by his service-connected PTSD.  The veteran could, and often does, have more than one condition which, on its own, would prevent the veteran from working.

How can VA expect an 85-year-old man to work?

Age is a factor which VA is not allowed to consider when determining if a veteran is entitled to TDIU.  Again, the only consideration is whether the service-connected conditions prevent the veteran from working.  So, if a 35-year-old man could work with a certain level of disability, VA assumes that an 85-year-old man could too.

I don’t meet the VA’s TDIU Percentages. Should I give up on qualifying for TDIU?

Definitely not.  VA regulations provide that a veteran who has a single disability rated at 60% or more should be considered for TDIU.  Similarly, a veteran who has a single disability rated at 40% or more, with a combination of disabilities totaling 70% or higher should also be considered for TDIU.  These percentages just mean that VA should automatically consider a veteran who reaches that level of disability and look at whether the veteran is unemployable.

There is a second part to the VA’s TDIU regulation.  If a veteran’s service-connected disabilities prevent the veteran from getting or keeping substantially gainful employment, even if those disabilities do not meet the 60% or 40/70% thresholds, that veteran can still be considered for TDIU and should request that consideration. Cases where the veteran does not meet the percentage requirements are more difficult to win, but that is no reason not to pursue them.

Matthew Hill

Video Blog – VA Disability Rating Threshold for IU

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Matthew Hill: Hello and welcome to the Hill & Ponton VA video blog. I’m Matthew Hill.
Carol Ponton: I’m Carol Ponton.
Matthew Hill: Today we want to talk to you about individual unemployability. We want to talk to you about a set of cases that most people don’t know about, and end up being very hard cases. Those are the cases where the veterans do not meet the rating threshold to receive unemployability benefits. We get this question all the time. What do I do when my rating is not high enough to get …
Carol Ponton: Let’s tell them, in order to get unemployability you have to show that you have one rating that’s 60% or a combination or ratings at 70% with at least one of them at 40%. Okay, so say you don’t meet that but you can’t work because of your service-connected problem. The thought comes to mind is migraines, headaches. The highest rating you can get for that is 50%. That’s the only rating you have.
Matthew Hill: At that point you can’t work, and a lot of times we see veterans like this who actually already receiving social security disability because of the migraines. If you can’t work and you’ve maxed out on your ratings, there is what I call a back door to unemployability. Carol just laid out what is necessary in the majority of the cases, those ratings. If you have one of those ratings, the 70% like she said or the 60%, you can be granted unemployability by your regional office. They can grant it right there or if they deny it you can go up to the Board of Veteran’s Appeals and be granted there.
Carol Ponton: They’re used to these cases. They work these cases. A lot of them are approved.
Matthew Hill: The other case we’re talking about, you only have that 50%. At that point, you have to keep on pushing your case. To win your case it has to go to the VA central office. The director of compensation has to sign off on this. These cases are a lot harder because your first battle is to get the person in the regional office to acknowledge that you are unemployable because of this 50% rating. Once that, I’ll call it a line adjudicator, makes that decision they have to give it to their supervisor and that person has to agree. From my understanding, there’s actually a third person that has to agree in the regional office. Well, unfortunately, the easier thing to do here is just to deny.
Carol Ponton: Right.
Matthew Hill: We see that all the time. We’ve handled quite a few of these cases, and I’ve never seen a regional office send it over.
Carol Ponton: On their own.
Matthew Hill: Then it goes to the Board of Veteran’s Appeals. The Board cannot grant this case. They too would have to send it to the director of compensation. By that time hopefully you have enough positive evidence; you’ve got your social security opinion, you’ve got your doctor’s opinion, whatever you have in there. Then really the only thing the Board can do is send it back to the regional office and tell them to send it to the central office. This takes an incredible amount of time. The shortest one of these cases I’ve seen is five years because there’s no direct person who’s going to grant this. Now, if it goes back to the director, it goes from the director of compensation and they deny it, then it can make it’s way back up to the Board of Veteran’s Appeals and they can grant the case.
  You can see from that chain of events, you know, seven, nine years is not out of the question. The VA will not tell you about this way to get unemployability, unfortunately, the majority of veteran services officers don’t know it. It’s just important to understand that if your service connected disability keeps you from working, whether it’s a 70% rating, 50% rating or even 30% rating, then you are entitled to unemployability compensation. The question is, what’s the route to take to get it? Carol mentioned the migraines. The other one we see all the time is back. If I see a veteran with a back disability rated at 40% that to me is really serious because the VA underrates backs. If I see someone at 40% then that tells me that they probably are not working because of that alone.
Carol Ponton: Right. I have a case right now that has done exactly what Matt said, it’s gone to the regional office, it’s gone up to the Board of Veteran’s Appeals, the Board of Veteran’s Appeals sent it back and said, “Even though he has a 40% rating for his back, so he doesn’t meet the regular IU, I am directing you to send it to the central office and have them decide whether or not this veteran could work because of his back.”
Matthew Hill: Again, just remember if you can’t work because of it you need to keep on pushing the case, but you also need to realize it’s not going to be a short and easy win.
Carol Ponton: Yes.
Matthew Hill: Thank you for joining us today and we hope to see you back on this space soon.
Matthew Hill

Video Blog – 100% vs Unemployability

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Matthew Hill: Hello, and welcome to the Hill and Ponton VA video blog. I’m Matthew Hill.

 
Carol Ponton: I’m Carol Ponton.

 
Matthew Hill: Today we want to talk about a question we get all the time, and it doesn’t seem there’s much information out there about it, and that is, “What is the difference between 100% and individual unemployability?”

 
Carol Ponton: The 100% is when you add all of your VA ratings up, and using VA math you get to 100%. Just so you know how VA math works, VA math says if you have a 60% rating, only 40% of your body is left, so the next time you get a rating, say it’s 20%, instead of adding 20 to 60 you say it’s 20% of the 40% left, which is 8%, which gives you a 10% additional rating, not the 20%.

 
Matthew Hill: It goes on and on like that. Essentially the closer you get to 100%, the harder it is to get 100%.

 
Carol Ponton: If you have 90%, you have to get another 50% rating to get 100%, so it’s really hard to get that knock, but you can, but it is. The VA- Go ahead.

 
Matthew Hill: I was going to say, as a side note, if you’re trying to put together your ratings, we have a disability rating calculator now on our website on the homepage under the VA Law. Check that out, because I spent the first five years of my career being utterly confused on how they put one thing and another together. Back to what you’re saying.

 
Carol Ponton: The VA realized it’s very hard to get 100%, and there are many veterans who cannot work because of their service-connected problems, so they have unemployability. This is identical to the 100% except for the veteran is not working and their rating doesn’t reach 100%. In order to qualify for unemployability, you have to be not working because of a service-connected problem and have one rating of 60% or more or a combined rating of 70% or more.

 
Matthew Hill: With one of those combined ratings being 40%.

 
Carol Ponton: Right. If you have that, then the VA should consider whether you are 100% disabled because of your service-connected problems. If they find that, they give you unemployability. You get the same benefits, everything is identical, except one thing: You can’t work. Every year they’re going to send you a form, “I find you 100%, permanently, and totally disabled under unemployability,” but there’s a catch. Every year you have to fill out the form they send you that says, “I haven’t worked.” If you don’t fill the form out-

 
Matthew Hill: Well, it asks if you’ve worked or not, and another thing people don’t realize sometimes is you can work. You can work and make up to the poverty line.

 
Carol Ponton: Well, the closer you get to the poverty line, the more I’d be concerned.

 
Matthew Hill: This is theory. I’m speaking in theory.

 
Carol Ponton: In theory, because remember, there’s no firm law as to exactly what working means as far as dollars. They say the poverty line, but I’ve seen people brought back in and questioned when it’s significantly less than that. I’m just saying, you can’t work, you make 2, 3, 4 thousand, I don’t think you’re going to have a problem, but if you get close to $12,000 a year, I would be concerned.

 
Regardless, every year you have to report to the VA. When they send you the form, send it back showing whether you’ve worked, how much you’ve worked. If you do that, your benefits continue if you haven’t worked. If you don’t, you’re going to get a letter saying, “We are proposing to reduce your benefits because you didn’t complete the form.” You don’t want to do that, because sometimes it takes two or three months for the VA to get the evidence that you’re sending in, and they’re going to go ahead and reduce you while they’re waiting, so send the form in.

 
Matthew Hill: Yeah, and this applies for the rest of your life if you never work again. You need to fill that out, say, “I’m not working.” You either do this online on their system, or you send it in certified mail, because as Carol said, this is terribly inconvenient.

 
Carol Ponton: It’s a real easy form. You pretty much just have to give them, if you haven’t worked, sign your name, and send it back, but the two types of … 100% and unemployability are utterly the same except for that.

 
Matthew Hill: As long as you’re permanent and total. Thank you for joining us today, and we look forward to seeing you on this space again soon.