|Matthew Hill:||Hello I’m Matthew Hill from Hill and Ponton. This is our VA video blog. I’m here with Carol Ponton, and we’re doing a series on the big mistakes we see, or the misunderstandings that get in the way between a veteran and his benefits. Today we want to talk to you about unemployability versus 100%.|
|The overwhelming number of clients we represent are so disabled that they can’t work, and we are trying to get them total benefits, be it 100% or unemployability. We are asked all the time …|
|Carol Ponton:||What’s the difference? There’s a schedular 100%, that means you add up all of the ratings you have and they reach 100% …|
|Matthew Hill:||Well, you don’t add them.|
|Carol Ponton:||You combine them.|
|Matthew Hill:||The VA does this percentage math, right.|
|Carol Ponton:||Or you have 100% because you’re not working and you’re not working because of a service connected problem. They’re essentially the exact same thing except under unemployability, you can’t work. That’s the only difference, and you just have to, every year, say I’m not working, and the 100% continues.|
|Matthew Hill:||Well you can work, and we have more information on this on our blog. Check it out. You can work only a little bit, but you are able to work.|
|Carol Ponton:||Right. Basically, they are the same things, but our veterans are very confused about that. They are not sure why is one better than the other. If you want to work and be 100% disabled, then yes, you don’t want the unemployability. If you’re not working because of the service-connected problem, it makes no difference whatsoever if you’re getting unemployability or 100%.|
|Carol Ponton:||That’s the confusion that we have with the clients.|
|Matthew Hill:||If they are permanent and total, they get all the same other benefits: tax breaks …|
|Carol Ponton:||That’s permanent and total. That’s not unemployability and 100%.|
|Matthew Hill:||Right, but it applies to both.|
|Matthew Hill:||You don’t have to be 100% schedular to get that.|
|Matthew Hill:||As far as back to what we were saying as what schedular is and how you combine ratings, we have a VA disability calculator now that actually takes your ratings and combines them just to help. Because a lot of times, we’ll see veterans with ratings that add up to 210%, but they are getting paid 80% or …|
|Matthew Hill:||We’ll link to that in these notes. It’s just important to know to have all options on board.|
|Matthew Hill:||If you’re eligible, or you think you’re eligible for 100%, but you might be eligible for IU, we’ll put them out there.|
|Carol Ponton:||IU is unemployability.|
|Matthew Hill:||Unemployability. Don’t take them out just because you don’t think it’s going to be as good getting one benefit or the other because you’re basically tying one hand behind your back.|
|Matthew Hill:||Well, thank you for tuning in on our Hill and Ponton VA blog. We are, again, talking about big mistakes we see that interfere with veterans getting the benefits they deserve.|
|Matthew Hill:||Hello, this is Matthew Hill for the Hill and Ponton VA video blog. I’m here with Carol Ponton and we’re doing a series on what we consider the big mistakes that veterans make that we see again and again that can end up hurting your claim. Today, we want to talk to you about unemployability. There’s always a question as far as when to file unemployability. Just real quick, unemployability is essentially a way to get 100% rating when your combined ratings don’t go up to 100%, but essentially when the VA knows that you can’t work because of your VA disabilities, then they give you unemployability and pay you 100%.|
|Carol Ponton:||You only need to have, you’re not working because of your service connected problem. You get exactly the same benefits as you would for the 100% if the VA, your ratings all added to 100%. It’s a really important benefit, but what we find is people don’t file that. They will file, say a veteran is trying to get a higher rating for PTSD and they can’t work because of the PTSD. As soon as they start filing for PTSD and they’re not working, they should file for unemployability. The unemployability, you file a form. It’s an 8940. You file that. It shows where you last worked and you’re not working now, and you’re not working because of what are the problems. Is it your back? Is it the PTSD?|
|Now, if you haven’t gotten service connected, say for the PTSD, then they’re going to deny you the unemployability, but when you win your case for PTSD, then that unemployability claim is before them and they have to make a decision. What we find is people wait until they’re service connected. Then they file unemployability and the VA, if they give them benefits, they start it when they file that claim.|
|Matthew Hill:||Right, they do a couple of things. One, they started all over again, but two, they put that claim almost in the back of the line. What Carol’s saying is that if your back’s not service connected right now but you’re filing for it, and that’s what’s keeping you out of work and you file the unemployability, you’ll probably have people say, “Well, what are you doing? You’re not even service connected yet.” Essentially what you’re doing is keeping those two issues together.|
|Unemployability, according to the Veterans Court, is part in parcel of a claim. It would be part of the back claim implicitly in that it’s just part of the rating, so you were to get service connected and then that’s part of the rating, but what they do is that if you haven’t filed it as its own claim, then even when you get service connected, you file it, they’re going to treat it as a new claim, separate claim, so you wait, but then on top of that they give you the wrong effective date. They say, “Oh, you handed this on January 1, 2017.” Well, you filed the back claim on January 1, 2015. It should go back then. It seems almost counter-intuitive that you would file those two together, but in the long run if you’re saying that this disability, which you will be at service connected, makes it to where you can’t work. You need to file both.|
|Carol Ponton:||You need to. So many times, a veteran will come to me and we’ll get them 70% for PTSD. That 70% automatically should trigger with the VA if the veteran isn’t working right to unemployability, but that’s not how they do it. Every veteran that comes to me and they’re not working, I file a claim for unemployability because it’s really sad to wait years to get 70% for PTSD and then they say, “Okay, now you can file the 8940 and we’ll get to that in a couple of years.” If you have the 8940, then they will handle both things at the same time and the veteran doesn’t have to wait all that time.|
|Matthew Hill:||Right, and you get your benefits and move on with your life. Well, thank you so much for joining us. Again, this was part of our Big Mistakes series. It’s making sure you file you unemployability form when you file your form. Whenever you file any claim, whether it’s for service connection or for increased rating when you believe that claim’s keeping you from working. Thanks.
Due to the VA’s method of combining, rather than adding together, a veteran’s disability ratings, it is sometimes difficult for a veteran with multiple, service-connected disabilities to reach a 100% rating. The higher the combined rating is, the higher a new rating needs to be in order to add much of anything to the veteran’s combined rating. A total disability rating based on individual unemployability (TDIU or IU) is just an alternate means for a disabled veteran to qualify for a 100% rating. Under the TDIU regulations, a veteran is entitled to TDIU if a veteran’s service-connected disabilities prevent him from securing and following a “substantially gainful” employment.
What does substantially gainful mean?
The VA uses this term to mean employment for which the veteran is earning above the poverty level. The poverty guidelines for 2016 indicate that a person earning less than $11, 880 is earning below the poverty level. Of interest, VA regulations indicate that sheltered employment, such as self-employment or working for a family member in a position from which you cannot be fired, does not count as substantially gainful employment.
What does it mean to secure and follow a job?
Basically, these terms just clarify that a veteran is entitled to TDIU if his service-connected disabilities prevent him or her from getting a job and/or if those disabilities prevent him or her from keeping a job. While some physical disabilities such as knee or back problems would be obvious at an interview and might prevent a veteran from getting a job, other disabilities, such as PTSD, might not show up at an interview. A veteran with a service-connected mental disability might have no trouble getting jobs, but keeping a job, with symptoms such as impaired anger management, depression, or an inability to get along with others, is much easier said than done. Both the inability to get a job and the inability to keep a job would qualify a veteran for TDIU.
If the Social Security Administration (SSA) has found me totally disabled, why doesn’t the VA do the same?
This is an issue which frustrates many veterans. How can one government agency determine that a veteran cannot work while another says that he or she can? VA and SSA are operating under different standards here. For a veteran to qualify for TDIU from the VA, the issue is whether his service-connected conditions, alone, prevent the veteran from working. SSA does not separate out service-connected and non-service-connected conditions in its considerations. For example, a veteran who is service connected only for PTSD may also have other, non-service-connected conditions, such as a lumbar spine disability. SSA might find that the veteran is disabled due to the lumbar spine condition only or due to the combination of the disabilities. VA, however, cannot grant TDIU to a veteran whose inability to work is caused by non-service connected conditions.
A common mistake made by the VA, though, is that the VA sometimes recognizes that the SSA has determined total disability by considering non-service-connected conditions but forgets to complete the analysis and determine whether the veteran would still be totally disabled if he or she did not have the non-service-connected conditions. Just because a veteran is totally disabled by his non-service-connected lumbar condition does not mean that he is not equally disabled by his service-connected PTSD. The veteran could, and often does, have more than one condition which, on its own, would prevent the veteran from working.
How can VA expect an 85-year-old man to work?
Age is a factor which VA is not allowed to consider when determining if a veteran is entitled to TDIU. Again, the only consideration is whether the service-connected conditions prevent the veteran from working. So, if a 35-year-old man could work with a certain level of disability, VA assumes that an 85-year-old man could too.
I don’t meet the VA’s TDIU Percentages. Should I give up on qualifying for TDIU?
Definitely not. VA regulations provide that a veteran who has a single disability rated at 60% or more should be considered for TDIU. Similarly, a veteran who has a single disability rated at 40% or more, with a combination of disabilities totaling 70% or higher should also be considered for TDIU. These percentages just mean that VA should automatically consider a veteran who reaches that level of disability and look at whether the veteran is unemployable.
There is a second part to the VA’s TDIU regulation. If a veteran’s service-connected disabilities prevent the veteran from getting or keeping substantially gainful employment, even if those disabilities do not meet the 60% or 40/70% thresholds, that veteran can still be considered for TDIU and should request that consideration. Cases where the veteran does not meet the percentage requirements are more difficult to win, but that is no reason not to pursue them.
|Matthew Hill:||Hello and welcome to the Hill & Ponton VA video blog. I’m Matthew Hill.|
|Carol Ponton:||I’m Carol Ponton.|
|Matthew Hill:||Today we want to talk to you about individual unemployability. We want to talk to you about a set of cases that most people don’t know about, and end up being very hard cases. Those are the cases where the veterans do not meet the rating threshold to receive unemployability benefits. We get this question all the time. What do I do when my rating is not high enough to get …|
|Carol Ponton:||Let’s tell them, in order to get unemployability you have to show that you have one rating that’s 60% or a combination or ratings at 70% with at least one of them at 40%. Okay, so say you don’t meet that but you can’t work because of your service-connected problem. The thought comes to mind is migraines, headaches. The highest rating you can get for that is 50%. That’s the only rating you have.|
|Matthew Hill:||At that point you can’t work, and a lot of times we see veterans like this who actually already receiving social security disability because of the migraines. If you can’t work and you’ve maxed out on your ratings, there is what I call a back door to unemployability. Carol just laid out what is necessary in the majority of the cases, those ratings. If you have one of those ratings, the 70% like she said or the 60%, you can be granted unemployability by your regional office. They can grant it right there or if they deny it you can go up to the Board of Veteran’s Appeals and be granted there.|
|Carol Ponton:||They’re used to these cases. They work these cases. A lot of them are approved.|
|Matthew Hill:||The other case we’re talking about, you only have that 50%. At that point, you have to keep on pushing your case. To win your case it has to go to the VA central office. The director of compensation has to sign off on this. These cases are a lot harder because your first battle is to get the person in the regional office to acknowledge that you are unemployable because of this 50% rating. Once that, I’ll call it a line adjudicator, makes that decision they have to give it to their supervisor and that person has to agree. From my understanding, there’s actually a third person that has to agree in the regional office. Well, unfortunately, the easier thing to do here is just to deny.|
|Matthew Hill:||We see that all the time. We’ve handled quite a few of these cases, and I’ve never seen a regional office send it over.|
|Carol Ponton:||On their own.|
|Matthew Hill:||Then it goes to the Board of Veteran’s Appeals. The Board cannot grant this case. They too would have to send it to the director of compensation. By that time hopefully you have enough positive evidence; you’ve got your social security opinion, you’ve got your doctor’s opinion, whatever you have in there. Then really the only thing the Board can do is send it back to the regional office and tell them to send it to the central office. This takes an incredible amount of time. The shortest one of these cases I’ve seen is five years because there’s no direct person who’s going to grant this. Now, if it goes back to the director, it goes from the director of compensation and they deny it, then it can make it’s way back up to the Board of Veteran’s Appeals and they can grant the case.|
|You can see from that chain of events, you know, seven, nine years is not out of the question. The VA will not tell you about this way to get unemployability, unfortunately, the majority of veteran services officers don’t know it. It’s just important to understand that if your service connected disability keeps you from working, whether it’s a 70% rating, 50% rating or even 30% rating, then you are entitled to unemployability compensation. The question is, what’s the route to take to get it? Carol mentioned the migraines. The other one we see all the time is back. If I see a veteran with a back disability rated at 40% that to me is really serious because the VA underrates backs. If I see someone at 40% then that tells me that they probably are not working because of that alone.|
|Carol Ponton:||Right. I have a case right now that has done exactly what Matt said, it’s gone to the regional office, it’s gone up to the Board of Veteran’s Appeals, the Board of Veteran’s Appeals sent it back and said, “Even though he has a 40% rating for his back, so he doesn’t meet the regular IU, I am directing you to send it to the central office and have them decide whether or not this veteran could work because of his back.”|
|Matthew Hill:||Again, just remember if you can’t work because of it you need to keep on pushing the case, but you also need to realize it’s not going to be a short and easy win.|
|Matthew Hill:||Thank you for joining us today and we hope to see you back on this space soon.|
|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.
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