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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.

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.

Nicholas Simpson, Attorney

IU and You: What a Veteran Needs to Know

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Do you know what IU (also called TDIU) is?  IU is a VA acronym for Total Disability rating based on Individual Unemployability.  IU allows a veteran to receive compensation at a 100% disability rate from the VA when their service connected disabilities do not total 100%.

One way to think of IU is to think of it like “gap” insurance for your car.  If your car is totaled out when there is still a loan on it, and the totaled value of the car does not cover the loan, gap insurance will bridge the difference.  In the realm of the VA, when your disability rating does not equal 100%, but you are completely unable to maintain “substantially gainful employment” because of your disability, IU bridges the difference between your actual disability rating and 100%.

There are two ways in which a veteran can be granted IU:  schedular and extra-schedular.  Of these two, schedular is the more common and often times the easier to have granted.  There are two prongs for a schedular rating and two ways to meet the first prong.

The first prong is that the veteran must qualify for IU based on the VA’s rating chart.  There are two ways for a veteran to do this.  The first is that he has a single service connected disability with a rating 60% or higher.  The second way for a veteran to qualify is to have a service connected rating of 70% with at least one of the underlying disabilities rated at 40%.

Once a veteran meets the rating requirement, he must then meet the second prong for IU.  He must show that he is unable to maintain “substantially gainful employment as a result of his service connected disability or disabilities.”  It is important to remember the second part of the last sentence.  Just because a veteran has a qualifying rating and is not working does not automatically qualify him for IU.  The reason for not working must be those service connected disabilities.

Please note, unable to maintain “substantially gainful employment” does not mean the veteran is completely incapable of working.  Substantially gainful can be defined as a job that pays a wage greater than the poverty level.  A job paying less than the poverty threshold is not “substantially gainful,” and is known as “marginal employment.”  For 2016, the poverty threshold defined by the U.S. Census Bureau is $12,486 for a single person.  If a veteran’s earnings do not exceed this threshold, even while working, he is not considered to be gainfully employed.

In addition to marginal employment, a veteran may participate in “sheltered employment.”  Sheltered employment is a job in a protected or sheltered environment.  For example, a veteran is given special accommodations relating to his disability or is given lighter duty than a similarly situated individual in the same position.  A veteran working in a sheltered environment who earns more than the poverty threshold can still be eligible for IU.

Once both prongs of IU requirements have been met, what is the next step?  To receive a grant of IU, a veteran must file a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.  This form needs to be filed with the closest Regional Office to the veteran.

When filling out the 8940, the veteran will reach Section 17.  Section 17 of the form asks the veteran to “list all employment including self-employment for the last five years.”  This section sounds like it is asking about the work the veteran has done in the last five years, starting with the time period immediately preceding the filling out of the form (i.e.  if the 8940 were filled out today, using this example, it seems that the form is asking the veteran to list his work history starting from 2012 through 2017), but it is not that simple.  The 8940 form is actually referring to the last five years the veteran last physically worked.  For example, if the veteran last worked in 1998 as a mechanic, even though the veteran is filling out the form today (in 2017), the veteran would need to list his job(s) as a mechanic from 1993 through 1998 only.

IU is often difficult to get the VA to grant.  The best evidence that a veteran can submit is an expert opinion from his treating physician stating that he cannot work based on his service connected disabilities only.  If the doctor also considers non-service connected disabilities in this determination, the VA will more than likely deny the claim.

The second way in which a veteran can obtain IU is extra-schedular.  This is a significantly more difficult route to IU.  When a veteran does not meet the schedular requirements of the first prong but is nonetheless unable to maintain substantially gainful employment due to his service connected disability, the VA should send the veteran’s claim to the director of compensation in Washington D.C. for extra-schedular consideration.  More information on the process can be found here.  In most cases, the VA is highly likely to deny these claims.

Matthew Hill

Video Blog – How do I get a 100% disability rating?

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Matthew Hill: Hello and welcome to the Hill and Ponton Veterans 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 that is, how do I get 100% rating? We see vets who are frustrated. Either they have a single disability they’re trying to get up to 100%, or they have multiple disabilities that are combining together. The thing about the VA rating system is that it’s counterintuitive, let’s say. It’s not one plus one equals two. It’s 10% plus 10% equals 19%. The closer you get to 100%, your ratings combined, the harder it is to get 100%. We have a veteran who came to us and had a 90% rating and then a 40% rating on top that. Well, the way the VA math works, that actually only equals 94%. The 4% goes away and the veteran-
Carol Ponton: Rounds down to 90.
Matthew Hill: Rounds down to 90. It is a really hard, but we have some thoughts on what you could do.
Carol Ponton: Well, first of all, a lot of times veterans will have … Say they have a back problem, and they’re getting compensation for the back but not the radiculopathy, or they could have …
Matthew Hill: Radiculopathy is pain, loss of sensation, loss of muscle tissue.
Carol Ponton: Down either leg or both legs. Veterans don’t realize you can get ratings, very high ratings for each leg, and that will bring you up. The other thing … what if there’s incontinence? What if there’s erectile dysfunction? There are a lot of things that can go with just the one problem that they have including depression. A lot of times people are very depressed because the back limits him so much in ability to work or to do other things. That’s the first thing. Have you filed everything you should file in connection with your claims? These are for people on both sides, but if you’re working that’s your option. That’s what you have to do. If you’re not working, make sure you file the unemployability because once you file that, they have to consider whether the disabilities that you have keep you from working, and if they do, they’ll grant you 100% under unemployability.
Matthew Hill: Yeah. Going back to the back. You see this a lot with some of the bigger disabilities. Back, diabetes, I think heart, TBI in particular, but it will be … The main disability, they’ll have a rating for it. Parkinson’s is a huge one. Then, there’s all the problems that it causes and those can be higher ratings. You know, with the back, a pretty common rating, unfortunately, is 20%. A veteran with a 20% rating to me has a very severe back problem. It’s almost easier to get a 20% rating and another 20% rating for both legs for the radiculopathy than it is to get a rating on the back itself. As Carol said, you want to put everything out there that it might be causing so that you can get ratings for individual pieces and hopefully get you up to 100%. If you get stuck, say you have that back or it’s 20% and the two 20%s for the legs, don’t quote me on this but I think that’s 60%.
Carol Ponton: Right, because it’s one common etiology.
Matthew Hill: Yeah, so that would give you eligibility right there for unemployability. That’s a way to get out of this rat trap if you will of they put ratings together because you’re fighting tooth and nail for another 10% here, 20% there, and your rating doesn’t even go up. Again, that would be something. If your disability, service-connected disability, is preventing you from working, then that’s something to apply for there. As far as your ratings combining together, I’d invite you to look at our VA rating calculator essentially. It puts all the ratings together for you and let’s you know what your ratings combine to and what you might need as far as a further rating to get the higher rating you want.
Carol Ponton: Remember, this is complicated. The VA, first of all they’re … If you have a 40% disability, they consider that only 60% of your body’s left, so the next time you get a rating, the rating is 20% times 60%, not 100%. You’re left with 12 rounded down 10. Then, there’s another concept called … Say that both legs are impaired and they’re rated, then they give you a little extra for that. That’s why it’s really hard to do it without this table, this calculator that we have it. It will tell you where you are. Another thing I want to talk about, Matt, when you have … Say the person is still working. If they get Parkinson’s, a lot of times they’ll just give them 30%.
Matthew Hill: Right.
Carol Ponton: That’s for Parkinson’s, but they’re not considering weakness in your legs, difficulty walking-
Matthew Hill: Difficulty talking.
Carol Ponton: Difficulty talking, thinking, remembering. You want to make sure all of these individual problems are broken down and rated separately because that will give you a much higher rating. You don’t want to take just the 30% rating for Parkinson’s when you have all these other problems, and that goes with diabetes. Diabetes, you may get 40% if you’re on insulin and you have to regulate your activities, but you can get so much more from the peripheral neuropathy that may be in your hands, your legs, your feet. You need to make sure all of these things have been evaluated.
Matthew Hill: Well, thank you so much for that question. We ask you to send us more. This Matthew Hill with Carol Ponton on our Hill and Ponton Veterans Video Blog. Thanks so much.
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.