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Rachel Cheek, Attorney

How the VA Rates Mental Disorders

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rating va mental disorders

How the VA Rates Mental Disorders

The VA determines ratings for hundreds of different disabilities according to very specific criteria based on federal law. If you are interested, you can access the schedule of ratings for yourself here at the Electronic Code of Federal Regulations. Today, we’ll look at the rating schedule for general mental disorders. Many physical disabilities have rating schedules that are based on objective, measurable criteria. For example, ankylosis (a term for a fusion of joint bones that causes immobility) of the knee can be rated anywhere from 30% (if the knee is able to be fully extended despite the ankylosis or if the knee can be flexed between 0 and 10 degrees of movement) to 60% (if the knee cannot be flexed past 45 degrees).  The rating criteria for general mental disorders are more subjective. This is due to the fact that the severity of mental disorders is usually not as easy to evaluate as the severity of physical disorders.

This schedule covers a variety of mental disorders from PTSD to obsessive-compulsive disorder. Eating disorders have their own specific schedule. The schedule ranges from 0% (non-compensable) to 100% (in which an individual is considered unemployable and entitled to receive the maximum level of compensation).

General VA Rating Formula for Mental Disorders

  • 0% – This category is for veterans who have the diagnosis but do not show enough symptoms to impair work performance or social functioning or to require regular medication. No compensation is awarded at this level.
  • 10% – In order to meet this rating, a veteran must have mild symptoms that impair work performance and social function only during times of high stress. This rating is also appropriate for veterans whose symptoms are managed by continuous medication.
  • 30% – This rating requires a generally regularly functioning veteran to have work and social impairment with occasional decreases in work performance due to symptoms from their diagnosed disorder. At times, veterans in this category may be unable to do certain tasks related to work due to their symptoms. These symptoms range from depressed mood, anxiety, suspiciousness, weekly or less frequent panic attacks, trouble sleeping, to mild memory loss.
  • 50% – This rating requires a veteran to have regular impairment of work and social functioning due to their symptoms. The symptoms may range from a flattened affect (not being able to show any emotion, good or bad); “talking in circles;” panic attacks that happen more than once a week; trouble understanding complex commands; poor short- and long-term memory; impaired judgment; trouble with abstract thinking; disturbances in motivation or mood; and trouble making and maintaining relationships.
  • 70% – In order to meet the criteria for this rating, a veteran must suffer from
    US soldier struggling with mental disorder

    “There are many symptoms that may cause impairment such as continuous depression and others.”

    impairment in most, if not all, of the following areas: work, school, family relations, judgment, thinking, or mood. There are many symptoms that may cause impairment, among them suicidal ideation (thoughts of suicide); obsessive rituals interfering with daily activities (for example, compulsive hand-washing); illogical, obscure, or irrelevant speech; continuous panic or depression affecting the ability to function on one’s own; impaired impulse control (for example, irritability with periods of violence in response to minor inconveniences); spatial disorientation (getting lost or disoriented); neglect of personal appearance or hygiene (intentionally or unintentionally not showering or brushing one’s teeth); difficulty adapting to stressful circumstances, including at work; and inability to make or keep up professional and personal relationships. Even if you do not have any other disabilities, a single mental condition rated at 70% means you may be qualified to receive individual unemployability benefits.

  • 100% – The highest possible rating. A veteran rated at 100% is considered totally disabled. As such, the requirements for this category are very severe.  A veteran who receives this rating must be totally impaired due to symptoms such as overall impairment in thought processes or communication; persistent delusions or hallucinations (believing things that are not true or seeing and/or hearing things that are not there); inappropriate behavior (for example, undressing oneself in public); persistent danger of hurting self or others (including suicide attempts); recurrent inability to perform activities of daily living (this includes feeding oneself, bathing oneself, dressing oneself, and using the toilet); disorientation to time (being unsure of time of day, date, or year) or place; memory loss to the degree of forgetting the names of close relatives, one’s own occupation, or one’s own name. This rating entitles you to the same benefits as an award of individual unemployability.

Why are mental disorders so hard to measure?

 

Rating VA Mental disorders

As discussed above, mental conditions are harder to measure than most physical conditions. It is not uncommon for a person to have symptoms that fit into two different rating categories.  Applicable law states that when a veteran displays symptoms that could fit into two different rating categories, the higher rating should be assigned if the disability overall fits the criteria for that rating.  Take the example of Mr. X, a veteran who has been diagnosed with PTSD.  Mr. X’s PTSD symptoms include trouble sleeping (30% category) and weekly panic attacks (30% category). He also gets lost very easily (70% category), which never happened before his diagnosis. Mr. X’s wife has to remind him to brush his teeth and take regular showers (70% category). Mr. X is retired from his former job as an office manager. He had to retire because dealing with employees and clients every day got to be too stressful (70% category). He also had trouble remembering to make calls, even if his secretary reminded him about them (50% category). Even though Mr. X has PTSD symptoms that could fall into three different rating categories, he should be assigned the 70% rating because he fits the overall criteria for that category.

Mental disorders are very common for veterans to experience, and can be just as disabling as a physical condition. If you have been diagnosed with a mental disorder and any of these symptoms sound familiar to you, you should apply for VA benefits to receive the compensation you deserve.

Mary Klements, Claims Advocate

Temporary Total VA Rating of 100%

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Temporary 100% Ratings

There are a few special cases in which the VA will provide a 100% rating for service-connected disabilities that do not otherwise meet the criteria for a 100%, be it via schedular rating or TDIU. These are situations in which the veteran is hospitalized for a specific length of time due to his/her service-connected disability. This rating is referred to as the temporary 100% rating.

Hospitalization for treatment or observation

A veteran can receive a temporary 100% rating for a service-connected disability that requires hospitalization for treatment or observation. The VA stipulation for this benefit is that the period of hospitalization must extend for 21 days or longer. The VA is strict about this stipulation and will not give a veteran a “grace period” for almost meeting the 21-day requirement. So a hospital stay of 20 days will not meet the criteria for a temporary 100% rating.

When determining the effective dates of the award of 100% for hospitalization, the VA assigns the effective date as the date of entry into the hospital and ends the award on the last day of the month following termination of hospitalization.

Temporary 100%

“The VA is strict about this stipulation, and will not give a veteran a ‘grace period’ for almost meeting the 21-day requirement. So a hospital stay of 20 days will not meet the criteria for a temporary 100% rating.”

Hospitalization can include a number of scenarios, but the important factor is that the hospital treatment must take place in a VA medical center or a VA-approved facility. For example, if a veteran is taken to the VA hospital for a stroke, but must be transported to a private community hospital due to lack of VA facility beds, the private hospitalization would meet the criteria for this rating, so long as the hospital stay meets the 21-day requirement as well.

Hospital treatment or observation may also include psychiatric hospitalizations. A veteran who has a service-connected mental health disorder, and who has been hospitalized for psychiatric symptoms for the required 21 days or more, is also entitled to a temporary 100% rating. Hospitalization may occur due to suicidal or homicidal ideation, or such exacerbation of symptoms that inpatient care is needed to stabilize the veteran’s condition.

In psychiatric cases, even after the veteran is discharged from hospitalization, he/she can still continue to qualify for the 100% rating, if the veteran immediately enters into a day hospital program following the inpatient hospitalization. The VA recognizes that admittance into a day hospital indicates that the veteran is still in need of treatment and would not be able to return to employment at that time.

If a veteran is a resident of a nursing home, a State Veteran’s home, domiciliary, or transitional program, he/she does not qualify for hospitalization ratings. There are two exceptions to this rule: 1) If the veteran is hospitalized for a service-connected disability in a medical facility located at a State Veteran’s home in excess of 21 days; or 2) If a veteran is living in a domiciliary and is receiving treatment that is consistent with hospital care for a service-connected disability.

Convalescence

A rating of 100% may be temporarily assigned when treatment for a veteran’s service-connected condition(s) requires or results in:

  • Surgery necessitating at least 1 month of convalescence

    Temporary 100%

    Convalescence may also include the necessity for continued use of crutches after a major surgery

  • Immobilization of a service-connected major joint by cast without surgical intervention
  • Surgery with severe postoperative residuals, such as:
    • Incompletely healed surgical wounds
    • Stumps of recent amputations
    • Therapeutic immobilization of one or more major joints
    • Application of a body cast
    • Necessity for home confinement
    • Necessity for continued use of wheelchair or crutches

The VA determines how long to extend convalescent pay on a case by case basis, as the facts of the case allow. The 100% rating can be extended to 6 months or longer, but the extension has to be approved by a Veterans Service Center Manager. However, the VA’s rating schedule does provide some conditions and surgical procedures that automatically have built-in periods of convalescence. For example, joint replacement with a prosthesis (such as for knees, shoulders, hips, etc) automatically include one year of convalescence.

While the concept seems simple, temporary total ratings are actually quite complex and easy to be applied incorrectly. If you are seeking a temporary total rating for hospitalization or convalescence, it is advisable that you seek competent legal advice, to make sure you are being compensated properly and accurately.

Amanda Dejesus, Veterans' Advocate

Different Types of VA 100 Percent Disability Ratings

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When it comes to VA disability compensation, the goal for most veterans is getting a 100 percent rating. The road to a 100 percent rating can be long and confusing.  There are also different ways to get to a 100 percent rating. Below we will discuss the different types of 100 percent disability ratings.

Total disability based on 100 percent scheduler rating: This is when a veteran’s single service-connected disability or alternatively, the veteran’s combined service-connected disabilities total to 100 percent.

Total Disability/Individual Unemployability:

Better known as TDIU or IU is a type of rating that can be a bit more complicated than just a regular 100 percent scheduler rating. TDIU is considered once a veteran has made a request to be paid at the 100 percent rate even though his or her disabilities do not combine to 100 percent. A veteran may file a claim for this rating when he or she is unable to maintain substantially gainful employment because their service-connected disability keeps them from doing so. Substantially gainful employment for VA purposes is defined by the amount of earned from an employed position. The total amount of earnings from a job is considered gainful if they are above the poverty level. It is also defined as competitive employment where a non-disabled individual may ear a comparable income to the particular occupation in the same area.

In order to qualify for TDIU or IU, a veteran must have one disability rated at 60 percent or one disability rated at 40 percent with enough additional disabilities that combine to a rating of 70 percent or above. It is important to keep in mind that just because the initial criteria for IU are met, does not mean that a 100 percent disability rating will be awarded. A veteran will need to provide medical evidence that shows that they are unable to work in both a physical and a sedentary work environment.

Temporary 100 Percent Disability Rating:

This rating is given to veterans who have been hospitalized for 21 days or longer or had surgery for a service-connected disability that requires at least a 30 day convalescence period. The VA will pay the veteran at the 100 percent rate for the extent of the hospital stay or convalescence period.

Permanent and Total Rating:

The permanent and total rating is given when the VA recognizes that a veteran’s service-connected disabilities have no probability of improvement. This means that the veteran will remain at the 100 percent rating permanently without the need for future examinations.

Veteran often times make the mistake of requesting a permanent and total rating because they want the Chapter 35 educational benefits for their dependents. It is important to keep in mind that whenever a permanent and total rating is requested, all service-connected disabilities will be subject for re-evaluation. If improvement is noted during a re-examination, a reduction from the 100 percent rating may be proposed. It is important to note that most ratings are not considered permanent and are subject to future review.

Amanda Dejesus, Veterans' Advocate

Understanding Individual Unemployability Benefits

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Often times, when a veteran is applying for VA disability benefits, they are unable to sustain a substantial gainful employment. This can be very frustrating combined with the fact the VA appeals process can be quite challenging. Individual Unemployability (IU) benefits or Total Disability based on Individual Unemployability (TDIU), is a benefit offered through the VA that allows them to pay select veterans at the 100% disability rate even through their service-connected disabilities are not rated as 100% disabling.

Eligibility and Required Evidence

It is important to note that there is a certain eligibility criterion that needs to be met before a veteran can be considered for IU. The eligibility criterion is as follows:

  • You must be a veteran
  • You must have at least one service-connected disability rated at 60% or higher
  • Or have two or more service-connected disabilities with one being at least one disability rated at 40% or more with a combines rating of 70% or more
  • You must be unable to maintain substantially gainful employment as a result of service-connected disabilities

Evidence:

A veteran must not only meet the eligibility requirements for IU to receive this benefit but they must also show certain evidence. The veteran must show evidence of at least one service-connected disability and the service-connected disability or disabilities have to prevent the veteran from performing any mental and/or physical tasks that are required to obtain or maintain substantially gainful employment. It is very important to note that marginal employment such as odd or side jobs are not considered gainful employment for VA purposes.

Substantially Gainful Employment and Sheltered Work

What is substantially gainful employment? It is employment that proves a wage greater than the poverty level. For a single person, as of 2016, the poverty threshold is close to $12,500. This comes from the U.S. Census Bureau. Simply put, if the veteran’s earnings are less then the threshold, then they are not considered to be gainfully employed.

It is possible to work and obtain IU benefits. The VA does recognize that some jobs are considered to be “sheltered work”. This is a protected employment or a “sheltered” work environment that would provide special accommodations to the veteran that would not be provided to any other employee. If you are a veteran wondering if you work in a sheltered environment, you can ask yourself if you were to leave your current position, would your employer replace your current position? Is your current position created just for you and your disabilities?

For veterans who are still working and do not work in a sheltered work environment, but still need to work for financial purposes, or for those veterans who do not want their employer to know about their disabilities, it may still be a good idea to apply for IU. Once the veteran is no longer able to work due to their service-connected disabilities, and they meet the other eligibility requirements, then that veteran would be covered so to speak and continue in the VA appeals process.

Something to keep in mind would be that this benefit is not for veterans who are going to temporarily out of work.

Applying for Individual Unemployability Benefits

The first step is to complete the VA Form 21-8940: Application for Increased Compensation Based on Unemployability. This form can be found here. Along with this form, evidence to help prove this claim should be submitted. This can be a letter or an opinion from the veteran’s doctor or an expert stating that the veteran is unable to maintain substantially gainful employment because of their service-connected disabilities.

Mary Klements, Claims Advocate

Common Errors in VA Decisions Involving TDIU – Part One

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In our practice, claims for a total disability rating due to individual unemployability (TDIU) are among the most common claims we handle. Our goal is always to obtain the highest rating possible for our clients, and that is often achieved through TDIU. As a result, we have had the opportunity to study the myriad of ways by which the VA denies TDIU claims. The purpose of this series is to walk through a few of those so that you can be better equipped to fight your own claim for individual unemployability (IU).

What is TDIU?

TDIU is a benefit to veterans who are unable to work due to their service-connected disabilities. This benefit pays the veteran at a 100% rating, even if the veteran’s service-connected disabilities—individually or in combination—are not rated at 100%. The VA looks at a veteran’s combination of disabilities in view of whether or not that veteran can work due to those disabilities. In order to qualify for TDIU, a veteran must be unable to secure or follow substantially gainful employment by reason of service-connected disabilities and meet the schedular requirements. If the veteran does not meet the schedular requirements, but still cannot work due to his/her service-connected disabilities, the veteran can request that the VA submit the case to the Director of Compensation Service for a special extraschedular consideration, under the provisions of 38 CFR 4.16(B). For a more in-depth explanation on how TDIU works, see our blog post here.

There are a number of reasons why the VA might deny a claim for TDIU, even when the veteran meets all the requirements. The most common reason that the VA denies IU claims is due to a finding that the veteran is “not found to be unable to obtain or maintain substantially gainful occupation.” This, of course, is very vague, and oftentimes is the extent of the explanation that the RO will provide in their denials.

Negative C&P Examinations

In the instance stated above, the basis of the typical RO boilerplate denial for IU is usually the findings of a Compensation and Pension (C&P) examination. When a veteran with service-connected disabilities files a claim for IU, the VA will schedule an examination—or multiple exams, if the veteran is claiming IU based upon multiple service-connected disabilities—to evaluate the conditions under the lens of employability. One problem with this tactic is that the examiner reviews each condition and provides an opinion on whether or not that specific condition prevents the veteran from working. In most cases, veterans are unable to work due to the sum of their service-connected disabilities, rather than just one condition. Under this procedure, however, the examiners are not instructed to review the conditions as a whole, and instead render an opinion on each condition individually. In the same manner, the RO adjudicators review the results of each examination and conclude that the veteran’s disabilities are not severe enough to preclude him/her from working, and therefore the veteran is capable of gainful occupation.

The other problem with this tactic is that most medical professionals whom the VA hires to conduct examinations are not qualified, by way of training, education, or expertise, to render a determination on vocational limitations or lack thereof. The vast majority of examiners are nurse practitioners, physicians’ assistants, and medical doctors, who have been trained in the field of medicine, not the field of vocational analysis. Medical professionals are qualified to define the physical or emotional limitations extending from a condition but have no expertise in translating this information into opining on whether or not this degree of restriction or limitation, or both, prevents one from working.  To make matters worse, they are given absolutely no guidance on what limitations to look for, what qualifications are required in the current job market, and how a veteran’s limitations impact transferable skills, if any. Particularly in orthopedic cases, examiners tend to concede that a veteran cannot perform physical labor, but think that he/she can perform a sedentary occupation, with no real understanding of what is actually required for sedentary jobs.

To combat this issue, it may be helpful to consult a vocational expert. If you have had a disability case with Social Security, you will be aware that Social Security utilizes vocational experts to assist in determining whether or not you are able to work. While the criteria for being considered unemployable differs between Social Security and the VA, vocational experts still have training and experience that can be applied to your VA claim for Individual Unemployability.

Cassandra Crosby, Claims Advocate

How Do I Prove Unemployability?

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A lot of veterans think that not being able to get or hold a job is enough for them to prove to the VA that they are unemployable. Unfortunately, this is just a myth. The reality is much more complicated. Another myth is that having a statement from a doctor, especially a VA doctor, saying that you cannot work, should be proof of unemployability. But again, this is not the reality. When it comes to proving unemployability, there is a certain level that the VA looks at to determine if a veteran is eligible for this benefit, regardless of their disability rating. This level of eligibility is functional impairment.

Functional Impairment

Functional impairment means that the veteran’s functional capacity is so impaired by his or her disabilities that he or she is unable to secure or maintain substantial employment. There are a few parts to this definition we need to explore to get the entire picture.

First is the functioning. Functioning is not based on what the veteran did before as a job. So if a veteran was a painter or a construction worker, having a back injury may not make him unemployable if he is found able to work at a sedentary job such as sitting at a desk. Unfortunately, for many veterans who have worked in a specific field for most of their lives, changing careers means new training if they are to transition from a physical to a sedentary position. While Vocational Rehab offers training programs and college education for those who qualify, it is often not a viable option for many veterans because they are not able to make that transition due to other factors that the VA does not take into account when looking at unemployability. Factors such as concentration, ability to retain and follow instructions, adaptability to change, dealing with people, dealing with pain, absenteeism due to sick days and medical appointments, etc. should all be taken into account when the VA is looking at a claim for unemployability.

Securing and Maintaining Employment

Second is being unable to secure or maintain employment. This means that the veteran may not only be able to get a job but may not be able to maintain employment either. Therefore, if a veteran gets hired but then loses his jobs often, this may make him eligible for unemployability if the reasons the veteran loses his jobs are related to his disability. Often employers have been known to shy away from hiring veterans due to the perception that they may be disabled. This, unfortunately, is not a case for unemployability. If a veteran is not hired simply because he has a disability, this is again, not a case for unemployability. If, however, a veteran is not hired or is terminated, because his disability keeps him from doing the job, then it becomes a case for unemployability. For example, Joe is rated as 70% disabled due to back and knee problems. He works as an engineer and is on his feet all day. His workplace allows him a redesigned space where he is able to sit and work. He is still able to do his job so he is employable. If his workplace did not make the accommodation, he would still be able to do his job just not in that environment,  and he is still considered employable. But what if Joe is unable to sit to do his job? After physical therapy and surgery, it is determined that Joe has to lay down several times a day and take strong painkillers that inhibit his concentration. Now Joe has possibly become unemployable.

Sustainable Employment

The last part is sustainable employment. Sustainable employment means that it pays above the poverty threshold for a single person with no dependents. This figure fluctuates each year, but for 2017 is $12,060. If a veteran is working but makes less than $12,060 in the year 2017 or less than the threshold for previous years, they may be eligible for unemployability.

Employment Rates for Disabled Veterans

According to the ADA Website that tracks employment data for the disabled, veterans are employed at a very low rate. Veterans with no service-connected disabilities are only employed at a rate of 72%; 68% for those with a 0-40% rating; 58% for those rated 50-60%; and only 25% of those with a 70% or higher rating are employed. Ensuring that these unemployed veterans have the income to sustain them is imperative and the least they deserve after giving so much to their country. While there are many programs out there designed to hire disabled veterans, there are not enough to employ every unemployed veteran who wants to work. Working with local employers to help make accommodations, educate them on how to work with disabled veterans, and designing work programs that work around disabilities is needed to ensure the vast growing number of disabled veterans will have a place in our workforce in the future.

You may also want to review our VA Unemployability Guide.

Robert Rivera, Claims Advocate

Five Most Prevalent Primary Service-Connected Disabilities for Women Veterans: 2015

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Women have served in the military from the American Revolution to the present. Unfortunately, women have been historically underrepresented in utilizing the benefits provided for them, and have often been quieter in claiming their veteran status. Women now make up 15% of active duty and 18% of Guard/Reserves service members. Based on the upward trend of women in all branches of service, the number of women Veterans and female VA users is expected to double again in the next decade. While the number of women VA users continues to grow, women comprise only six percent of VA’s total patient population. Women Veterans underutilize VA care and benefits, largely due to a lack of knowledge about VA benefits and available services. That being said, as women leave active service and convert to veteran status, certain common issues afflicting their mental and physical health are emerging.  The following are the top five most prevalent service-connected disability conditions claimed by female Veterans and accounted for 33 percent of all service-connected disabilities for women Veterans. Additionally, we will touch on Total Disability due to Individual Unemployability (TDIU or simply IU), a claim for total disability when a Veteran is not able to maintain substantially gainful employment as a result of their service-connected disabilities.

Post-Traumatic Stress Disorder

PTSD is a mental health problem that some people develop after experiencing or witnessing a life-threatening, traumatic, or terrifying event. Events such as combat, a natural disaster, a car accident, or sexual assault. It’s normal to have upsetting memories, feel on edge, or have trouble sleeping after this type of event. At first, it may be hard to do normal daily activities, like go to work, go to school, or spend time with people you care about. But most people start to feel better after a few weeks or months. If it’s been longer than a few months and you’re still having symptoms, you may have PTSD. In 2015, nearly 48,000 women Veterans received compensation for PTSD. PTSD accounted for roughly 12 percent of all service-connected disabilities for women Veterans. Symptoms of PTSD are tricky to characterize because the amount of time it takes for them to manifest varies widely.

Major Depressive Disorder

In 2015, roughly 26,500 women Veterans received compensation for major depressive disorder. Major Depressive Disorder is a common but serious mood disorder. It is often accompanied by low self-esteem, loss of interest in normally enjoyable activities, low energy, and pain without a clear cause. People may also occasionally have false beliefs or see or hear things that others cannot. Some people have periods of depression separated by years in which they are normal while others nearly always have symptoms that are continuously present. Major depressive disorder can negatively affect a person’s personal, work, or school life; as well as sleeping, eating habits, and general health. To be diagnosed with depression, the symptoms must be present for at least two weeks.

Migraine

In 2015, over 24,000 women Veterans received compensation for migraines as a disabling condition. Symptoms of a migraine can include nausea and/or vomiting, sensitivity to light and sound, and changes in vision. According to the Mayo Clinic, migraines often begin in childhood, adolescence or early adulthood. Migraines may progress through four stages: prodromal (subtle changes that warn of an upcoming migraine); aura (usually visual disturbances that may occur before or during migraines), headache (usually lasts from 4 to 72 hours); and post-drome (some may feel drained while others may feel elated after a migraine attack), though you may not experience all stages. People with a chronic migraine are more likely to be unable to perform the functions required of them at their job, and less likely to be employed full time than people who have migraines less frequently. Over a three month period, people with chronic migraines miss an average of 63 days of work, school, and time with family.

Chronic Back Pain (Lumbosacral or cervical strain)

Chronic back pain (CBP) changes everything. Things like driving a car, sitting at a desk, or even tying a shoelace become difficult tasks. The condition can be debilitating and, unfortunately, for as many as 40 percent of Veterans over 65 years old, it is a way of life. Untreated, CBP can contribute to depression, disability, and a poor quality of life. Unfortunately, the treatment options can seem only marginally better: Long-term opioid use or invasive procedures such as surgery are often the norm for those with CBP. In 2015, roughly 22,200 women veterans received compensation for lower back pain. According to the Cleveland Clinic, Center for Continuing Education, low back pain can best be described in terms of specific accompanying features. Low back pain is acute if it has a duration of about 1 month or less. Chronic low back pain is usually defined by symptoms of two months or more. Both acute and chronic low back pain can be further defined by the presence or absence of neurologic symptoms (a disorder of the nervous system) and signs.

Uterus and Ovaries, Removal of, Complete

In 2015, roughly 12,700 women Veterans had the complete removal of their uterus and ovaries. Roughly an additional 10,500 female Veterans had the removal of their uterus that included their corpus. (The main part or body of a bodily structure or organ). According to the U.S. Department of Health and Human Service, Office of Women’s Health, a hysterectomy is a surgery to remove a woman’s uterus (also known as the womb). The uterus is where a baby grows when a woman is pregnant. In most cases, the entire uterus is removed. The doctor may also remove the ovaries and the fallopian tubes during the procedure. The ovaries are the organs that produce estrogen and other hormones. The fallopian tubes are the structures that transport the egg from the ovary to the uterus. The surgery can be used to treat a number of chronic pain conditions as well as certain types of cancer and infections.

Individual Unemployability (IU) is a component of VA’s disability compensation benefits program which allows Veterans to receive financial compensation at the 100-percent level even though their combined service-connected disability rating is below 100 percent under the schedule for rating disabilities. In order to qualify, a Veteran must be unable to maintain substantially gainful employment as a result of her service-connected disabilities. In addition, the Veteran must have one service-connected disability rated at 60 percent or higher or two or more service-connected disabilities (at least one of which is rated at 40 percent) with a combined rating of 70 percent or higher. Veterans who receive IU compensation are allowed to work as long as that employment is not considered substantially gainful. In other words, their employment must be considered marginal employment. In 2015, about 6 percent of women Veterans who received compensation for a service-connected disability were receiving IU compensation.

As a nation we need to fully recognize the contributions and sacrifices that women in the military are making—we owe them this respect and opportunity to heal and successfully transition home. Our nation must address and change the culture that ignores or minimizes women’s’ service and their contribution to our military mission, so that they too can fully benefit from the array of services that have been established for veterans, including for those who served in combat theaters and other hardship deployments. Given the sudden increase in female Veterans and lagging adjustments within DOD and VA entities, women Veterans are often opposed and often denied entitlement to service-connected disability claims. Sometimes, an event that occurred in service may take many years to cause a disability.  In these cases, the veteran is entitled to bring a claim no matter how long it has been since he or she got out of the service. Just as important, a veteran has the right to reopen a claim that has already been denied by the Department of Veterans’ Affairs. In order to get another chance at proving her claim, all the veteran needs to do is produce New and Material evidence showing that her claim should be granted.

Shannon Brewer, Senior Attorney

I Filed a Claim for TDIU – Can I Still Work?

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In our VA practice, one question that veterans commonly ask is whether or not it is still “OK” to work, even if they are pursuing a claim for Individual Unemployability (IU). In many cases, distress of circumstances obliges a veteran to find work, while his or her case is being resolved by the VA.

The decision to go back to work is a difficult one, and certainly one that ought to be discussed with your representative, should you have one. The over-arching concern is that the VA will deny your claim for Individual Unemployability when they find out that you are working. Unfortunately, we see the VA do this time and again. However, the VA frequently adjudicates TDIU cases incorrectly, by using the wrong standard. Under the VA regulations, there are situations in which veterans can work and still be entitled to TDIU.

TDIU is not Social Security Disability

It is easy to equate the VA’s version of total disability with Social Security’s version. The important thing to remember is that IU is not structured in the same way as Social Security Disability (SSD). In many ways, the requirements to obtain IU benefits (being paid at the 100% rate) are more lenient than those of Social Security. In order to qualify for SSD, you must be found to be completely unable to work, under any conditions or circumstances. Typically, this finding is backed by the opinion of a vocational expert and/or a medical professional.

Substantially Gainful Occupation

Under VA regulations, however, the benchmark for IU claims is not whether or not the veteran is capable of working; it is whether or not the veteran can engage in substantially gainful occupation. According to the VA’s procedural manual, substantially gainful occupation refers to “an occupation that is ordinarily followed by the non-disabled with earnings common to the particular occupation in the community where the veteran resides”. In other words, substantially gainful occupation is a job that a non-disabled person can perform, with earnings above the poverty threshold. For example, “substantially gainful” might include a job as an office clerk, a bookkeeper, a flight attendant, or a sales associate. A substantially gainful occupation would require the employee to be competent, efficient, and reliable.

This is important, because “substantially gainful” is not the standard that the regional office raters use. Instead, they tend to drift toward the Social Security mindset, where the veteran has to prove that he or she is completely unable to work.

Marginal Employment

If a veteran’s earnings are below the poverty level, that job cannot be considered substantially gainful. Instead, it is considered marginal employment. Marginal employment can also include employment in which the veteran is making more than the poverty level, but is working in a sheltered environment, such as a workshop or family business. Under the regulations, if a veteran is engaging in marginal employment, the RO cannot automatically deny a claim for IU on that basis.

Sheltered Employment

In its effort to be sympathetic toward veterans, the government realizes that family members or friends might engage a veteran in employment which accommodates his or her service-connected disabilities. For example, a family friend might hire a veteran to assist with the payroll in his company, allowing the veteran to work in a separate office, away from other coworkers, so as not to exacerbate his PTSD. As another example, the employer might allow the veteran to take as much time off as needed when he has attacks of a migraine headache.  The important thing to remember is that, in the VA’s definition of “sheltered employment,” there is no monetary cap on how much a veteran can earn if he or she is employed in a sheltered environment. Therefore, a veteran can be making above—even significantly beyond—the poverty level and still be eligible for IU. While this might not seem exactly fair, it must be remembered that these veterans are being accommodated, and they would not be able to function as effectively in a competitive environment.

Oftentimes we find that the VA—and their medical experts—have a poor understanding of the concept of marginal employment when it comes to determining whether or not a veteran can engage in substantially gainful occupation. Because this is where the ultimate question of whether or not you can go back to work comes into play. If you are working part-time to make ends meet, and your earnings are under the poverty level, the RO has no basis to deny your claim on that alone.

If you do decide to go back to work, and the RO denies your claim for IU, do not be disheartened. The regional offices often deny IU claims for even the very best of cases. Your best course of action is to appeal that decision. We have found that the Board of Veterans Appeals renders more favorable decisions in Individual Unemployability cases.

Mary Klements, Claims Advocate

Why Vocational Assessments are Important for Your Case

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If you have worked with the VA long enough, you have probably come to realize that you and the VA often do not see eye-to-eye. Certainly, this difference of opinion is highlighted no better than by one of the most contentious issues: unemployability. We see this all the time. The realities of your service-connected disabilities impacting your ability to work are lost on the VA. Fortunately, there is a way to support your Individual Unemployability case, and this is by vocational assessments.

Why the VA has trouble with IU cases

Before we go into vocational assessments, let us first examine why the VA has trouble with Individual Unemployability (IU). The structure of the VA’s rating schedule lends to this issue. The rating schedule is built around each individual disability rendering the veteran impaired in some form or fashion. Therefore, the VA is accustomed to looking at disabilities as individual puzzle pieces, rather than how the puzzle pieces fit together as a whole. Without a doubt, the rating system is built to benefit the veteran. Unlike the Social Security system, which determines whether you are completely disabled or not, the VA system enables the veteran to obtain compensation even if he/she is not completely disabled. It also provides them a way of increasing their compensation levels, which Social Security does not allow.

The problem is that, when you file a claim for IU, the VA tends to look at each individual disability, and whether or not that individual disability prevents you from working. To compound the problem, the C&P examiners, when asked to render an opinion on IU, do exactly the same thing. The end result is a very high denial rate for IU. The VA is not supposed to evaluate IU in this fashion, nor would it make any sense to do it this way; but, it still happens.

The other problem lies in the lack of expertise and experience in the vocational field on the part of those who are rendering opinions and making decisions. There is no one in the VA system—medical or adjudicatory—who is a qualified vocational rehabilitation counselor and whose sole role in the VA is to handle IU cases. Such a position does not exist. Therefore, the adjudicators rely on the C&P examiners for an opinion on whether or not the individual can work due to his or her service connected disabilities. Such individuals are not equipped with the knowledge base or experience in workplace job placement needed to make a well-rounded, practical assessment of a veteran’s ability to obtain or maintain substantially gainful employment in the current job market—which, as anyone in the workforce can attest, is fast-paced, high-stress, and often physically and mentally draining.

In many cases, the best way to combat this problem is to adopt one of Social Security’s methods: using a vocational expert. In Social Security cases, the vocational expert reviews the claimant’s file and makes a determination on whether or not the claimant can obtain or maintain employment in the current market with his/her transferable skill set.

In VA cases, we can use vocational experts in much the same way. Vocational experts are not required to testify in court before the VA, as in Social Security cases. Rather, they review the veteran’s file and evaluate the veteran’s ability to work, based on physical or mental limitations, transferable skill set, and the availability of jobs in the current market that match the veteran’s skills and need for accommodations. The vocational expert then provides a vocational assessment report, which is submitted to the VA for consideration.

What the vocational expert considers in the report

When a vocational expert is reviewing a case, the expert will look at the following:

  • Prior education;
  • Past work experience: how the past work experience translates into today’s job market, especially related to basic technical skills (such as familiarity with computers, printers, word processing programs), and ability to pick up the necessary skills efficiently;

Example: a long-time truck driver might have difficulty learning how to use Word or Excel

  • The veteran’s current service-connected disabilities and the limitations involved;

Example: a veteran with a knee and back condition might not be able to sit for extended periods, or lift a certain weight, or might  take longer to walk from one location to another

  • The effect of pain & medication on ability to concentrate, focus, attend to verbal and written instructions, complete tasks in a timely and efficient manner;
  • The veteran’s ability to communicate with and respond appropriately to managers and supervisors, and get along with co-workers; or communicate appropriately with clients;
  • The veteran’s ability to adapt to stressful situations
  • Any accommodations which the disabilities might require.

The vocational expert takes all the above factors into consideration and then evaluates the veteran’s ability to function in a certain workplace environment. For purposes of vocational evaluations, the Bureau of Labor Statistics compiled a Dictionary of Occupational Titles which contains most job types. They are categorized by general educational development (GED), skill level, the strength rating, the specific vocational preparation (VSP), and the guide for occupations exploration (GOE). The expert takes the veteran’s past education and work history, and assigns a rating from each of the above categories to the jobs that the veteran has performed. At that point, the expert can assess what skills transfer from the past jobs to any future jobs. For example, if a veteran previously worked as an engineer, he might be able to transfer certain skills to a desk job. On the other hand, a veteran who worked as a mason for years would not have the skills to transfer to an office job.

Finally, the expert will evaluate the veteran’s service-connected disabilities in light of his or her transferable skills, if any. The expert may find that the veteran’s disabilities preclude the ability to work, in spite of transferable skills, however impressive they might be. The expert will provide a discussion of the findings of the evaluation, and give an opinion on whether or not the veteran is able to obtain and maintain substantially gainful employment on a regular and consistent basis.

In summary, a vocational expert’s report will typically include:

  • A review of the veteran’s medical record
  • Identification of the service-connected conditions
  • A break-down of the veteran’s past work experience
  • An evaluation of transferable skills
  • A vocational discussion

While it seems obvious to you that you cannot work due to your service-connected disabilities, the VA does not always see it that way. Obtaining a vocational expert’s report can help point out the obvious to the VA, and therefore improve your chances of being awarded individual unemployability.

Kylie Courtwright, Claims Advocate

What is Individual Unemployability?

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Individual Unemployability is often times the main goal for many veterans who are filing for disability.  Total Disability for Individual Unemployment (TDIU or simply, IU), is a disability rating granted by the VA where you receive compensation at the 100% rating level, even if your combined rating for service connected disabilities is less than 100%.  This rating is decided by the VA after considering a few different factors and determining that an individual is unable to maintain employment due to their service connected disability.

Am I Eligible for Individual Unemployability?

In order to begin receiving compensation for IU, there are certain requirements that must be met.

  • You must be a veteran
    • IU entitlement is not authorized for dependents receiving or filing a claim for DIC
  • You must have a service connected disability that you are currently receiving compensation for
  • If you only have one service connected disability, you must be rated at 60% or higher
  • If you have more than one service connected disability, your combined rating must be at least 70% with one individual disability rating of at least 40%
  • You must be found to be unable to maintain gainful employment due to your service connected disability
    • The VA will not take into account any issue that is not service connected when determining your eligibility

What is Gainful Employment?

Gainful employment is competitive employment in which your yearly earnings are greater than the national poverty threshold.  This threshold changes on a yearly basis and is dependent upon the size of your household.  If you are part of a single person or a double person household, your age is also taken into account.  For example, in 2016, for a single person household, under the age of 65, the poverty threshold was $12,486.  For a three person household, with one child under 18, the poverty level was $19,318.

So, am I not able to work at all to be able to receive IU?

With every rule, especially the VA rules, there is always some sort of exception.  Two exceptions to the strict requirements to obtain benefits based on IU are working in a sheltered environment and maintaining marginal employment.

  • Sheltered work environment
    • If you are working for a family member or another individual in which you are protected from being fired
    • If you are in a position where you are protected from certain requirements that other employees must fulfill for the same position
  • Marginal employment
    • You are working but are earning less than the national poverty threshold outlined for your household size

What if I am not Service Connected for a Disability or have a High Enough Rating?

One of the main requirements to be granted IU is that you must be service connected for the disability that is preventing you from working.  The VA, unlike Social Security, will only take into account any service connected disabilities.  With that being said, many veterans are currently in the appeals process to get their disabilities service connected or receive a higher rating.  If this is your situation, you should still submit your application for IU; VA Form 21-8940. We all know how drawn out the VA process can be for granting benefits.  Therefore, as soon as you become too disabled to work, submit your application to lock into place your effective date.  With the VA, it is all about maintaining your effective date of award, whether it is an initial claim or a claim for IU.

Say you filed a claim for service connection for a back condition in 2010 and were forced to stop working because of it, and could not obtain gainful employment.  You have gone through the appeals process and now, in 2017, you are finally being granted your service connection compensation at 80%, effective back to 2010.  If you had filed a VA 21-8940 within a year of becoming unable to work due to your back, and the VA agrees that your inability to work is due to your service connected disability, you may receive 100% compensation back to 2010, instead of only 80%!

The same is true if you are appealing for an increased rating.  Once you are at the minimum rating to be considered eligible for IU, as long as you have submitted a VA 21-8940, your effective date for IU may go back to the effective date of your increased rating award.  For some veteran’s however, they only have one service connected disability and the highest rating for the particular disability does not go to 100%. For example, migraines have a maximum rating of 50%. In situations like this, where your disability prevents you from working but you cannot reach the 70% rating level, your case should be sent to the Director of Compensation and Pension to allow them to determine your eligibility.

The VA 21-8940 can be a confusing form to fill out, so if you need any assistance, please refer to our two-part blog: Tips to Filling out the VA 21-8940 Part 1 and Part 2.