|Matthew Hill:||Hello, and welcome to the Hill and Ponton VA video blog. I’m Matthew Hill.
|Carol Ponton:||I’m Carol Ponton.
|Matthew Hill:||Today we want to talk about a question we get all the time, and it doesn’t seem there’s much information out there about it, and that is, “What is the difference between 100% and individual unemployability?”
|Carol Ponton:||The 100% is when you add all of your VA ratings up, and using VA math you get to 100%. Just so you know how VA math works, VA math says if you have a 60% rating, only 40% of your body is left, so the next time you get a rating, say it’s 20%, instead of adding 20 to 60 you say it’s 20% of the 40% left, which is 8%, which gives you a 10% additional rating, not the 20%.
|Matthew Hill:||It goes on and on like that. Essentially the closer you get to 100%, the harder it is to get 100%.
|Carol Ponton:||If you have 90%, you have to get another 50% rating to get 100%, so it’s really hard to get that knock, but you can, but it is. The VA- Go ahead.
|Matthew Hill:||I was going to say, as a side note, if you’re trying to put together your ratings, we have a disability rating calculator now on our website on the homepage under the VA Law. Check that out, because I spent the first five years of my career being utterly confused on how they put one thing and another together. Back to what you’re saying.
|Carol Ponton:||The VA realized it’s very hard to get 100%, and there are many veterans who cannot work because of their service-connected problems, so they have unemployability. This is identical to the 100% except for the veteran is not working and their rating doesn’t reach 100%. In order to qualify for unemployability, you have to be not working because of a service-connected problem and have one rating of 60% or more or a combined rating of 70% or more.
|Matthew Hill:||With one of those combined ratings being 40%.
|Carol Ponton:||Right. If you have that, then the VA should consider whether you are 100% disabled because of your service-connected problems. If they find that, they give you unemployability. You get the same benefits, everything is identical, except one thing: You can’t work. Every year they’re going to send you a form, “I find you 100%, permanently, and totally disabled under unemployability,” but there’s a catch. Every year you have to fill out the form they send you that says, “I haven’t worked.” If you don’t fill the form out-
|Matthew Hill:||Well, it asks if you’ve worked or not, and another thing people don’t realize sometimes is you can work. You can work and make up to the poverty line.
|Carol Ponton:||Well, the closer you get to the poverty line, the more I’d be concerned.
|Matthew Hill:||This is theory. I’m speaking in theory.
|Carol Ponton:||In theory, because remember, there’s no firm law as to exactly what working means as far as dollars. They say the poverty line, but I’ve seen people brought back in and questioned when it’s significantly less than that. I’m just saying, you can’t work, you make 2, 3, 4 thousand, I don’t think you’re going to have a problem, but if you get close to $12,000 a year, I would be concerned.
|Regardless, every year you have to report to the VA. When they send you the form, send it back showing whether you’ve worked, how much you’ve worked. If you do that, your benefits continue if you haven’t worked. If you don’t, you’re going to get a letter saying, “We are proposing to reduce your benefits because you didn’t complete the form.” You don’t want to do that, because sometimes it takes two or three months for the VA to get the evidence that you’re sending in, and they’re going to go ahead and reduce you while they’re waiting, so send the form in.
|Matthew Hill:||Yeah, and this applies for the rest of your life if you never work again. You need to fill that out, say, “I’m not working.” You either do this online on their system, or you send it in certified mail, because as Carol said, this is terribly inconvenient.
|Carol Ponton:||It’s a real easy form. You pretty much just have to give them, if you haven’t worked, sign your name, and send it back, but the two types of … 100% and unemployability are utterly the same except for that.
|Matthew Hill:||As long as you’re permanent and total. Thank you for joining us today, and we look forward to seeing you on this space again soon.
For veterans who have been approved for Social Security Disability Benefits and who are also seeking VA Disability benefits, it is very important to have some basic knowledge regarding the Social Security side of things, while navigating through the VA disability process.
Here are the basics, in a nutshell:
- Notify the VA Right Away: The VA should be notified right away if a veteran has been approved for Social Security Disability Benefits. Notifying the VA in writing is very important, because once the VA has knowledge that the veteran is on Social Security, then that triggers their duty to assist, which requires the VA to attempt to obtain the Social Security file. Veterans should never assume that the VA already knows that they have been approved for Social Security Disability. It is always better to notify them up front, so that way, the bases are covered.
- Obtain Your Social Security Earnings Record: Social Security keeps track of your annual earnings for each year that you have worked and paid Social Security taxes. If you are pursuing individual unemployability benefits through the VA, then it is critical that you obtain a copy of your SSA Earnings Record. The main reason you should get this document, is because the Earnings Record may show a pattern of decreased, unstable, and/or inconsistent earnings, which could help to support your VA claim that you are unemployable and unable to work on a gainful basis. In my experience, the VA never requests a copy of the Earnings Record on its own accord. Therefore, because this document could be invaluable to winning your VA claim, you should work on getting a copy of this document early on in the process. In most cases, the Earnings Record can be downloaded online, directly from the Social Security Administration’s website.
- Get a Copy of Your Complete Social Security Disability File: There is normally a treasure trove of information contained in the Social Security Disability file. Here is a list of the types of evidence that you should pay particular attention to:
- Disability Worksheets/Reports – Social Security always requests that claimants fill out forms regarding the extent of their disabilities. The questions that are asked in these forms are very comprehensive and cover many different topics that may be of relevance to the VA disability case. For example, Social Security will always have claimants fill out a worksheet called a “Function Report” regarding their activities of daily living. The Function Report asks the claimant to describe what they are like on a day-to-day basis, and asks the claimant to describe their limitations, both physical and mental, in their own words.
It is also very common for Social Security to have a third party, such as a spouse, close friend, or adult child, to also fill out a Function Report in order to give statements regarding any limitations that their loved one may have. In my experience, loved ones are often much more forthcoming about the full extent of limitations. This type of lay evidence, from both claimants and third parties, could later turn out to be key evidence when trying to win the VA case, because VA law requires the VA to consider lay evidence as a part of the decision-making process.
- Consultative Examinations – Most veterans know that when they file for VA disability benefits, the VA will normally send them to a Compensation and Pension (C&P) Examination to evaluate their disabilities. Social Security also has a similar process. In the Social Security world, this type of exam is known as a “Consultative Examination.” If a claimant is sent to a consultative exam, then there will be a report from that examination which will discuss the doctor’s opinions regarding the claimant’s limitations. If the Social Security doctor gave restrictions that would prevent or limit the claimant from being able to work, and if those limitations are relevant to the VA case, then that is favorable evidence that you should make sure the VA receives.
- Favorable Decision/Disability Determination and Transmittal Form – Once Social Security Disability Benefits have been approved, SSA will issue a written decision which explains the medical basis for the approval, and they will also make a decision regarding the date that they find you disabled. The date that you are found disabled is known as the “onset date of disability.”
If the Social Security claim is approved at the initial or reconsideration level, the rationale for the approval will be found in the “Disability Determination and Transmittal Form.” If the claim is approved by a Social Security Judge, then the Judge will issue a decision, also known as a “Fully Favorable” or “Partially Favorable” Decision, which will explain the medical and vocational basis for the approval. Make sure to obtain a copy of the Social Security decision and submit that to the VA for consideration.
Although the criteria for obtaining Social Security Disability Benefits is very different than the criteria for obtaining VA Disability Benefits, evidence from the Social Security case can still be very useful in a VA Disability case. For more information on this topic, please feel free to check out our video blog.
TDIU benefits are granted when you are considered unable to secure substantially gainful employment as a result of your service-connected disability. You are given a rating for each service connected disability, ranging from 0% to 100%, and each corresponding to a different monetary value. But even if your disability is not rated at 100%, you can still receive benefits as if you were rated at 100% through TDIU. The idea is to show that your service connected disability prevents you from securing substantially gainful employment. For more details on what that means, click here. Now let’s look at how one would qualify for TDIU.
There are two ways to qualify for TDIU. The first is the common and more accessible way of meeting the percentage requirements. The second option is far more rare and difficult to attain, and it is known as extraschedular consideration.
The first method has its own two-step analysis.
Step 1: Do you meet the percentage requirements?
The VA regulation authorizing TDIU requires that your service connected disability has to satisfy percentage requirements:
- If you have only one service connected disability, that disability must be rated at 60% or higher.
- If you have more than one service-connected disability, you must have a combined rating of 70% or higher, and at least one of those disabilities must be rated at 40%.
For the purposes of calculating the percentage requirements, there are rules to determine what it means to have “one disability” that could help you meet the required percentage.
The following are considered to be “one disability”:
- Disabilities of one or both upper extremities, or one or both lower extremities (including the bilateral factor);
- Disabilities resulting from a common etiology, or a single accident;
- Disabilities affecting a single body system (for example, orthopedic, digestive, respiratory, neuropsychiatric);
- Multiple injuries incurred in action, or;
- Multiple disabilities incurred as a prisoner of war.
An example would be if you suffer from several service-connected heart disabilities, such as congestive heart failure and hypertension, both of these would be considered one disability because they affect a single body system. So if together they are “one disability” rated at 60%, you qualify for TDIU.
Once you meet one of the requirements stated above, you move on to the second part of the analysis.
Step 2: Are you able to secure substantially gainful employment?
The second step is determining whether you are prevented from securing or following a substantially gainful occupation because of the service-connected disabilities that meet the percentage requirements stated above. Even if you meet the percentage requirements as stated above, if you are working, you show that you are able to secure substantially gainful employment, thus you do not qualify for TDIU. There are exceptions to this though, such as marginal and sheltered employment. But if you can show that you cannot secure substantially gainful employment, you are entitled to TDIU.
What if you are a veteran who does not meet the percentage requirements described above? Can you still qualify for TDIU? This is where that second far more rare method we mentioned earlier comes in. If you are a veteran who is unable to work due to service-connected disabilities but do not meet the rating requirements, you may still be awarded a TDIU rating on an extraschedular basis.
This second method exists because the TDIU regulation states that it is the established policy of the VA that all veterans who are unemployable because of service connected disabilities shall be rated totally disabled. This would mean that if you are able to show you that you cannot work because of your service-connected disability, but you don’t qualify for TDIU because of the percentage requirements, the VA may completely put the ratings aside and still grant you TDIU if they think you deserve it. What the VA is looking for to grant such a case is “a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.”
This, however, is not as easy as it sounds. Extraschedular cases are not handled by the VA regional office, like every other claim for compensation. Instead, the VA regional office refers these cases to the VA Central Office located in Washington D.C. Once there, the Director of the Compensation Service determines whether the veteran is entitled to the benefit in each case. This entire process is known as extraschedular consideration.
Extraschedular consideration has this special procedure in place because these types of cases are supposed to be very rare. The VA Central Office rarely grants benefits under these conditions. But if TDIU is at issue, and you do not qualify under the schedular rating by meeting the percentage requriements, the VA has to consider whether you are entitled to TDIU through extraschedular consideration.
Migraine headaches have become a growing problem for veterans as they return home from deployments. In fact, one study shows an increase of nearly 60% in migraine diagnoses in U.S. Army members between the years 2001 and 2007. Veterans suffering from migraines suffer from debilitating symptoms, and also face challenges when looking for jobs or trying to finish school. Studies have shown that migraines have a substantial negative affect on a person’s ability to earn a living. Individuals with migraines have reduced productivity at work and a greater number of missed workdays.
According to the Mayo Clinic, “a migraine headache can cause intense throbbing or pulsing in one area of the head and is commonly accompanied by nausea, vomiting, and extreme sensitivity to light and sound. Migraine attacks can cause significant pain for hours to days and be so severe that all you can think about is finding a dark, quiet place to lie down.” The VA rates migraines under the diagnostic code 8100.The rating percentages for migraines are assigned as follows:
- 50% – with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability
- 30% – with characteristic prostrating attacks occurring on an average once a month over last several months
- 10% with characteristic prostrating attacks averaging one in 2 months over last several months
- 0% – with less frequent attacks
The best kind of evidence to show that the veteran is suffering from migraines is medical evidence showing a diagnosis of migraines. For example, a diagnosis from a neurologist, migraine specialist, ophthalmologist, optometrist, or even a primary care doctor. However, in order to be accurately rated, there must be more than just a diagnosis. The rating criteria for migraines takes 2 things into account: frequency (how often the migraines occur) and severity (how bad the migraines are). VA regulations use the word “prostrating” to address the severity factor and define “prostrating” as, “causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities.” Regulations do not specifically define the terms “less frequent” or “very frequent”.” Assigning a rating for migraines is a factual basis and the VA is supposed to consider the following evidence:
- Medical progress notes
- Competent and credible lay evidence on how often the veteran experiences symptoms (as long as those symptoms have been competently identified as symptoms of migraine headaches)
- Contemporaneous notes, such as a headache journal
- Prescription refills
- Witness statements
Despite recognizing the possible debilitating effects of a migraine, the highest rating possible for migraines is 50%. A 50% rating is assigned when a veteran’s migraines cause “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” The VA defines “completely prostrating” as extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. In other words, a 50% rating is assigned when a veteran’s migraines are so severe that they are totally incapacitated often enough to render them unemployable. Despite recognizing the incapacitating effects of migraines, the VA’s rating criteria for migraines makes it impossible for a veteran with the highest migraine rating available meet the VA’s criteria for individual unemployability on a schedular basis (which requires a rating of at least 60% when there is one service-connected disability that affects a veteran’s ability to work). Also, VA regulations specifically note that “severe economic inadaptability” does not mean a veteran is incapable of any substantially gainful employment. Rather, the VA says that severe economic inadaptability means a veteran has substantial work impairment. It’s clear to see that the rating criteria for migraines is completely inadequate while also completely contradicting itself.
The VA says that migraines can render a veteran unemployable while at the same time saying the veteran does not have a high enough rating for individual unemployability. If you have been denied IU based on not meeting the rating requirements, don’t forget about extra-schedular IU. Extra-schedular IU allows a veteran to receive individual unemployability even when their service-connected disabilities do not meet the percentage requirements that schedular IU requires. It can be much more difficult to prove entitlement to IU on an extra-schedular basis. Because of that, it is important to carefully document your migraine symptoms and how they affect you in order to present a strong claim. One of the best ways to do this is by keeping a headache journal. It’s important to specifically include notes in your headache journal about how a migraine attack affects your ability to remain productive at work, or even remain in the office at all. For example, do you have to leave work every time a migraine attack occurs in order to go home and lay down in a dark quite room? How many days of the month does this occur? Don’t forget about including notes about how the migraine continues to affect you even after the initial onset. For example, include notes about how many days of work you miss when a migraine attack occurs due to prolonged pain, exhaustion, or medication side effects. Keeping track of how often migraine attacks happen and how they affect you will be valuable information for not only ensuring an accurate rating for your migraines, but also in showing that you are unable to work without special accommodations.
When you are entitled to compensation benefits for a service connected disability, the VA rates it to determine the amount of money you should receive, using the Schedule for Rating Disabilities. The ratings range from 0% to 100% and increase in increments of ten. The rating is based on how your disability impairs your occupational earning potential. The highest level of disability is 100%, which means the veteran is totally disabled. But there are cases where a veteran is unable to secure substantially gainful employment, but they do not meet the schedular rating percentage of complete disability, meaning their disability is not rated at 100%. That is when Total Disability based on Individual Unemployability (TDIU or IU) comes in.
TDIU is meant to consider the effect that service-connected disabilities have on a veteran’s ability to work. The VA uses TDIU to acknowledge that a veteran’s disability may not be at a 100% rating, but there are other factors that warrant assigning a 100% rating. This means that the VA is supposed to take an individualistic approach when it comes to TDIU, as opposed to the rating schedule. The rating schedule is designed to look at whether the average person would be capable of working under certain circumstances. TDIU looks at whether the individual veteran is capable of working under his particular circumstances. The determination of a veteran’s entitlement to TDIU is considered in the context of the individual veteran’s capabilities, regardless of what the average person would be capable of or if they would be rendered unemployable under the same circumstances.
The VA has to determine entitlement to TDIU on a case-by-case basis. The following factors are taken into account:
- Frequency and duration of periods of incapacity
- Time lost from work due to disability
- Veteran’s employment history
- Veteran’s current employment status
- Veteran’s annual income from employment, if any
The important thing for the veteran to prove is that they are unable to secure “substantially gainful employment”. That is the keyword here. Although not officially defined by VA regulations, substantially gainful employment is employment at which nondisabled individuals earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. So if a veteran is working and making as much as the average person in that location would be making for doing the same job, that would be considered substantially gainful employment and they would likely not qualify for IU.
There are instances, however, where the veteran may be working and still qualify for IU. An example of this is marginal employment. Marginal employment is defined as earned annual income that does not exceed the poverty threshold for one person, as established by the US Department of Commerce Bureau of the Census. You can find this year’s statistics for poverty threshold here. If a veteran is working, and they are single and under the age of 65, and their annual income is less than $12,331, that would be considered marginal employment. Another example where a veteran may be working but still qualify for TDIU is “sheltered employment.” Sheltered employment is when a veteran holds a job in a protected environment, such as a family business, where they are able to accommodate their disabilities, with either a flexible work schedule, or reduced quotas, for example. This could still qualify as marginal employment even if the veteran earns more than the poverty threshold.
If you have a job under one of these conditions, marginal or sheltered employment, you are not automatically disqualified from TDIU, but you will want to be careful because the VA will closely evaluate your employment. They will look to see if your work is proof that you have the capacity and ability to engage in a job that would produce an income above the poverty threshold, and thus constitute substantially gainful employment.
A few factors the VA may consider are:
- The number of hours per week you work
- If your claim is for a physical disability, they will consider whether you are able to perform the exertional activities required by the job, such as sitting, standing, or walking, to determine if you have the ability to engage and maintain substantially gainful employment.
- If your claim is a mental disability, they may consider skills such as communicating, remembering, following instructions, or dealing with people (supervisors, co-workers and the public) to determine whether you are able to engage in substantially gainful employment.
If you are working part-time, you may want to consider and point out to the VA that you would not be able to perform the same work with the regularity or for the duration that would normally be required for substantially gainful employment.
For more information on these issues, click here. Keep an eye out for the next blog that will discuss the process of qualifying for IU.
Many veterans find that it is incredibly difficult to qualify for a 100% rating based on the VA’s rating schedule. For some disabilities like migraines, the highest possible rating does not even reach 100%, and, for others, the symptoms the veteran must exhibit to qualify for a total rating are subjective and/or unreasonably high. If a veteran is trying to combine multiple disabilities to arrive at a 100% rating, he or she will find that the higher the base rating is, the harder it becomes to get up to 100%. For instance, if a veteran has a 70% rating for PTSD, another 70% rating for a different disability would combine with the first to give the veteran only a 90% rating (91% rounded down to 90%). Because of the difficulties in reaching a 100% schedular rating, an alternate route to 100% for veterans who have service connected disabilities is to establish entitlement to a total disability rating based on individual unemployability (IU or TDIU).
I find that most, though not all, of the veterans I talk to are at least aware of the possibility of TDIU, though many are not aware that the TDIU rating is not a separate claim from the underlying service connected disabilities but is only an alternate way of getting the ratings increased for already service-connected disabilities. I am often surprised, however, by how many veterans have been told by some advisor that they cannot qualify for TDIU unless they have a particular disability rating. The purpose of this blog is to explore some of the ways veterans without the required rating may still qualify for TDIU.
As an initial matter, to qualify for TDIU, a veteran must be unemployable solely on the basis of his service-connected disabilities. In other words, the VA can only consider the service-connected disabilities and whether they prevent the veteran from gaining and keeping gainful employment. The VA may not consider the effects of non-service-connected disabilities. Under the VA regulation, 38 CFR § 4.16(a), the VA must consider whether the veteran is entitled to receive TDIU benefits under 2 circumstances: when the veteran has one service connected condition rated 60% or higher; or when the veteran has a service-connected condition rated 40% higher and also has other disabilities which combine to a rating of at least 70%.
This requirement for a single disability (of either 40% or 60%, depending on which criteria the veteran is trying to meet) can be tricky. What some veterans (and regional offices) miss is that for purposes of determining what a single disability is, some types of disabilities can be combined. For instance, according to VA regulations, if the veteran has disabilities in both arms (or both legs), the two disabilities are considered one disability for purposes of a qualifying TDIU rating. Similarly, if the veteran has multiple disabilities that all have the same cause (an accident or a disease), those disabilities are combined into a single disability for this purpose. Other situations in which multiple disabilities combine to a single disability are where the veteran incurred multiple injuries in action or as a prisoner of war. So, there is a way around the rating criteria for a single qualifying disability.
Even if the veteran does not have multiple disabilities, there still may be a way to qualify for TDIU. There is another section of the VA regulation for TDIU which provides a second pathway to these benefits. Part A provides that when certain criteria are met, the VA must consider entitlement to TDIU. But Part B provides that any veteran who is prevented from getting and keeping gainful employment by his service-connected disabilities is entitled to a TDIU rating. For these veterans, the VA should send their case to the Director of Compensation and Pension to determine whether they are entitled to TDIU benefits. Consider a veteran who has a service-connected back disability that receives only a 40% rating, a common rating for back disabilities which can be very difficult to rate higher than 40% due to the criteria in the rating schedule. A back disability, even when rated only 40%, can prevent a veteran from sitting or standing or walking for any length of time. It may prevent a veteran from bending, twisting, lifting or moving in other ways required for almost any kind of employment. The rating criteria do not allow a higher rating than 40% unless the veteran’s spine is essentially unmovable. That kind of disability, however, can prevent a veteran from doing any kind of gainful employment. If the veteran’s condition does, in fact, prevent him from working, he should file for increased rating and TDIU.
Regional offices almost always deny claims for IU under § 4.16(b) without providing adequate consideration. It is important to appeal these denials to the Board of Veterans’ Appeals and, if necessary, to the Court of Appeals for Veterans Claims. These claims can be won if you don’t give up. Continue to appeal any denials, and provide the VA with medical and employment evidence showing that your service-connected disabilities prevent you from working. If you cannot work, due to your service-connected disability or disabilities, you are entitled to TDIU even if you do not meet specific rating criteria.
When a veteran applies for disability compensation benefits, the VA has to decide if the veteran is eligible and entitled to those benefits and how much they can receive. The VA’s initial decision is called a Rating Decision, where the veteran is assigned a percentage for their service-connected disability that determines how much monthly compensation they will receive.
In order to determine how much compensation the veteran is entitled to, the veteran is assigned a rating. The rating is a percentage, ranging from 0% to 100% and increasing in increments of 10%. The VA rates mental and physical conditions based on the average decrease in earning capacity due to that condition. The VA rating system is meant to be a way to compensate veterans for a loss they suffered in service that decreases their ability to earn a living for themselves and their families. The higher the degree of disability, the greater the compensation because the more severe the condition, the greater the impact it has on the veteran’s ability to earn a living.
The goal for most veterans is a 100% disability rating, also known as total disability rating. This rating entitles the veteran to the most amount of money (currently $2,906.83 per month) because they are considered totally disabled. If the disability would make the average person incapable of work, a total rating is assigned, even if the veteran is working. The other way to get total disability rating, without reaching 100%, is through individual unemployability.
On the other side of the spectrum, the VA can assign a 0% rating, or a noncompensable rating. 0% does not qualify the veteran for monthly compensation, but it does have its advantages. A noncompensable rating establishes service-connection, preserves the right to seek higher compensation if the condition gets worse, and entitles the veteran to other benefits such as preference in federal/state jobs. If the veteran has two or more separate noncompensable service-connected disabilities, the VA can grant a 10% disability rating.
The rating schedule, which can be found here, lists all types of diseases and conditions that tend to result from military service. The ratings are categorized by body system, with each system containing a series of diagnoses and each having its own numerical code. This numerical code is called a diagnostic code, which is then assigned a percentage, and each percentage has a designated compensation amount. For each degree of disability, there is a description of the symptoms the veteran must have in order to qualify for that evaluation. The degree of disability increases with the severity of the symptoms. The rating board will determine the severity of the symptoms and the appropriate rating for the veteran based on the evidence provided, such as service records, medical statements, buddy statements, and VA examinations. This is why it is so important to get the right evidence into the VA so they can make the right decision and assign the highest rating possible. The goal is to prove the highest level of severity in order to get the highest rating and receive the most compensation.
The VA is supposed to choose the diagnostic code with the highest evaluation under which the veteran qualifies, and avoid evaluating the same disability under different diagnostic codes. When there are two different evaluations to apply, the VA will assign the higher rating of the two if the disability meets the criteria for the higher rating (if not, the lower rating will be applied). Not all disabilities are listed in the rating schedule, so when the condition is not included, it will be rated under a closely related disease or injury. This is known as an analogous rating. The analogous condition should affect similar functions in the same part of the body and have similar symptoms.
When there are two separate disabilities, the overall percentage is determined by combining the individual ratings, not adding them together. The VA does this by considering each disability in order of severity, beginning with the highest evaluation, and subtracting that from 100%. The number that remains is what the VA considers the remaining healthy part of the veteran, so the next disability is subtracted from that remaining number. The result is then rounded to the nearest tenth. For example, if there are two disabilities rated at 50%, the first 50% is subtracted from 100%. The second disability of 50% is taken from the remaining 50%, resulting in 75%, which is then rounded to 80%. For a more detailed explanation with examples, click here and here. There is also an app that can help you calculate combined ratings called VetCalc that can be downloaded in the App Store.
If you do not agree with what the VA has decided and you think you are entitled to a higher rating, you can appeal your decision. Find out how to do so by clicking here.
When a veteran pursues a disability rating through the VA, his or her ultimate goal is usually to reach a 100% rating. In most cases, this is the highest rating at which a veteran can be paid, unless that veteran is so disabled that he or she needs a higher level of medical care. Unfortunately, the VA’s disability rating criteria make it incredibly difficult for a veteran to attain a 100% rating for a single disability. Fortunately, there is another way for a veteran to attain that 100% rating – through Total Disability based on Individual Unemployability (TDIU or IU).
TDIU 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 unemployable (unable to secure or follow substantially gainful employment) by reason of service-connected disabilities AND:
- Meet the schedular requirements of 38 CFR 4.16(a) OR
- Have an extraschedular IU evaluation, under the provisions of 38 CFR 4.16(B), approved by Compensation Service
If the VA determines that a veteran is unable to maintain substantially gainful employment for service-connected disabilities, the VA will pay that veteran at the 100% rate, even if the disability(ies) is not rated at/does not add up to 100%. This is a huge benefit to veterans. According to the schedular requirements, a veteran who is rated at 60% for a single disability, such as for a low back condition, would meet the requirements. Alternatively, a veteran who has several service-connected disabilities, with one condition rated at a minimum of 40%, and with all the conditions adding up to 70%, would also meet the requirements.
Substantially Gainful Employment
The VA defines substantially gainful employment as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides. Substantially gainful employment is competitive (not protected) employment, with earnings exceeding the amount established by the U.S. Department of Commerce, as the poverty threshold for one person. The poverty threshold in 2014 was $12,071 for a single person under the age of 65. So, for example, if a veteran works 35 hours a week at a local grocery store at $8.05 an hour, he would be making over the poverty level, and therefore would not automatically qualify for TDIU. However, there are exceptions to every rule, which we will discuss next.
Under certain circumstances, a veteran can be working and still qualify for TDIU. The VA recognizes that there are certain instances in which a veteran works here and there to make ends meet, but cannot work enough to make over the poverty line. Likewise, there are other instances in which a veteran has a job only because he or she is being allowed special accommodations in a family or friend’s business. The VA defines these types of instances as marginal employment. A veteran’s employment can be considered marginal if:
- His/her earned annual income does not exceed the poverty threshold as dictated by the US Census Bureau for one person; OR
- His/her earned annual income does exceed the poverty threshold BUT the veteran is working in a protected environment, such as a family business or a sheltered workshop. The VA reviews at these situations on a case-by-case basis.
The VA’s internal manual specifically points out that marginal employment is by definition not substantially gainful employment. Unfortunately, VA raters mess this up all the time. Particularly in protected employment cases, the VA will take one look at the veteran’s earnings and deny the claim for TDUI based on wages alone. This is not the correct VA procedure. In marginal employment cases, it is a good idea to obtain statements from one’s employer outlining what kinds of accommodations are being provided the veteran which permit him/her to continue working.
An area which the VA looks at very closely is the issue of self-employment. As a general rule, it is inherently difficult to pursue a claim for TDIU when one is self-employed. This is mostly because the veteran can control the amount of wages paid to him/herself. Therefore, the VA raters are not allowed to make a finding of marginal employment solely based on low wages. However, the VA’s manual specifically instructs the raters to “keep in mind that the issue for consideration is whether the frequency and type of service performed by the veteran equates to substantially gainful employment.” For example, consider a veteran who owns a plumbing company and now makes low wages because he was obliged to cut back on the number of jobs he works due to a service-connected back condition. The VA is supposed to consider the low wages in conjunction with the time he has lost working due to his back condition when they are reviewing the claim for TDIU.
No matter what employment situation a veteran may find himself, there is one simple constant that is imperative when filing a claim for TDIU—completing the application. The VA’s Form 21-8940 is the application for increased compensation based on individual unemployability. No matter how strong the claim, if the VA raters do not have this form on file, they are obliged to deny the claim. For tips on how to fill out this form, see our previous blog posts on this topic.
If a veteran who is unable to work due to service-connected disabilities does not meet the rating requirements discussed in part 1, they may still be awarded a TDIU rating based on an extra-schedular basis. The standard for granting TDIU based on an extra-schedular basis is a finding that the case presents “such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular requirements.” This means that the VA is looking for unique circumstances that show the veteran is unemployable due to their service connected disabilities even though they don’t meet the schedular rating requirements.
Extra-schedular TDIU involves the understanding of two separate VA regulations. The first regulation says that the VA is required to take certain actions when a veteran proves that the requirements of schedular TDIU are inadequate. However, this regulation is not a required element for extra-schedular TDIU. A veteran does not have to prove that entitlement to TDIU cannot be adequately decided on a schedular basis. So why is it relevant? The VA will often deny extra-schedular TDIU on the basis that the veteran did not show that their exceptional circumstances were outside of the rating requirements. If the VA denies extra-schedular TDIU on this basis, they have used the wrong analysis for their evaluation. The second regulation is what matters when dealing with extra-schedular TDIU. This regulation states that “all veterans who are unemployable because of service connected disabilities shall be rated totally disabled.” How is this different from the first regulation? The veteran does not have to show that the schedular TDIU criteria is insufficient in their cases.
There are certain factors that the VA may consider when making a determination of whether a veteran is entitled to extra-schedular TDIU. These factors include, but are not limited to the following:
- Social Security Disability: Typically, Social Security disability benefits will be approved for multiple conditions that might not be all service-connected conditions. So, just because a veteran is receiving social security benefits, does not mean they will also be entitled to receive TDIU benefits. However, if the veteran’s social security benefits are approved based SOLELY on their service-connected disability or disabilities, it will be a very relevant factor for the VA to consider.
- Non Service-Connected Disabilities: The VA may not consider non service-connected disabilities when they evaluate extra-schedular TDIU. However, it is important for a veteran to ask themselves whether a non-service-connected disability that affects their employability aggravates or is secondary to a service-connected disability. If the answer to that question is yes, then the veteran may want to consider looking into whether the non-service-connected disability can be service-connected based on a theory of aggravation or secondary service connection. This may allow the veteran to qualify for schedular TDIU, removing the need to fight for extra-schedular TDIU.
- Education and Employment History: When looking at a veteran’s education and employment history, the VA should look at the totality of the veteran’s current circumstances. This means that the VA should not speculate about whether the veteran’s situation is temporary. The VA should also not say that a veteran is employable based solely off their level of education.
- Frequent Hospitalizations: When frequent hospitalizations that are needed for a service-connected disability interferes with a veteran’s work or employability, these hospitalizations should be considered by the RO.
- Age: The VA may not consider a veteran’s age when evaluating entitlement to extra-schedular TDIU.
Keep in mind that the above five factors are not the only factors that are relevant in the consideration of extra-schedular TDIU. Also keep in mind that extra-schedular TDIU cases can be difficult to win. The VA does not typically like to grant TDIU on an extra-schedular basis.
There are two ways that a veteran can use to prove entitlement to TDIU (total disability based on individual unemployment). One way is referred to as schedular TDIU. The other way is referred to as extra-schedular TDIU. Today’s blog post will cover schedular TDIU.
There is a two-step analysis used to determine whether a veteran qualifies for TDIU on a schedular basis. First, the veteran must satisfy certain percentage rating requirements. A 100% “schedular” rating is achieved when a veteran’s combined disability ratings equals 100%. Getting a 100% can be hard to do. Oftentimes, a veteran does not have a 100% rating, but still suffers from a disability (or multiple disabilities) that makes it impossible for him to work. In these cases, a veteran can still receive benefits based on a 100% rating because he is totally disabled based on his individual unemployability. In order to do so, the veteran must meet the following rating requirements:
- If the veteran has one service- connected disability, the disability must have a rating of 60% or more.
- If the veteran has multiple service-connected disabilities, these disabilities must have a combined rating of at least 70% with at least one of the disabilities having a rating of 40% or more.
It is important to know that there are special rules for calculating the 60% requirement when one service-connected disability is involved, and for calculating the 40% requirement when there are multiple disabilities involved. The VA has developed a special definition of what qualifies as “one disability” for the purposes of the 60% and 40% requirements. The following are considered one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affected a single body system, for example orthopedic, digestive, respiratory, etc.; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war.
Let’s look at an example to illustrate the VA’s definition of “one disability.” A veteran has three separated service-connected orthopedic conditions: osteoarthritis of the right shoulder, degenerative joint disease of the left knee, and chronic lumbar strain. Each of these conditions is rated at 30%. At first glance it does not appear that the veteran would be entitled to TDIU. However, the veteran’s service-connected disabilities all stem from a single body system (orthopedic) so the veteran can combine all of the ratings to meet the rating schedule requirements for TDIU. The veteran’s combined rating for all of his service-connected disabilities would be 66%. Because the veteran’s service-connected disabilities affect a single body system, they will be treated as one disability. Now, the veteran has one disability with a rating of at least 60%. He meets the rating requirements to qualify for TDIU, and the first step of the VA’s analysis is complete.
If the veteran meets one of the rating requirements discussed above, the VA will move on to the second step of the TDIU analysis. The second step of the TDIU analysis is a determination of whether the veteran is prevented from securing or following a “substantially gainful occupation” because of his service-connected disabilities. This is a subjective determination that depends on the individual facts and circumstances of the veteran. For example, a veteran with a job that requires a lot of manual labor will be evaluated differently than a veteran with a job that has the veteran sitting down most of the time. The evaluation of entitlement to TDIU will turn on the various details unique to each veteran’s case. This makes it very important to have supporting evidence. The veteran should present solid evidence of their service-connected disabilities, employment history, educational and vocational attainment, and any other relevant factors.
Whenever a veteran reaches one of these two levels of ratings, the RO is supposed to automatically move on to the second step of the TDIU analysis. However, the RO frequently fails to do so. This makes it extremely important for a veteran to read their rating decisions. A veteran may have to raise the issue of entitlement to TDIU on their own initiative.
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