In our practice, claims for a total disability rating due to individual unemployability (TDIU) are among the most common claims we handle. Our goal is always to obtain the highest rating possible for our clients, and that is often achieved through TDIU. As a result, we have had the opportunity to study the myriad of ways by which the VA denies TDIU claims. The purpose of this series is to walk through a few of those so that you can be better equipped to fight your own claim for individual unemployability (IU).
What is TDIU?
TDIU is a benefit to veterans who are unable to work due to their service-connected disabilities. This benefit pays the veteran at a 100% rating, even if the veteran’s service-connected disabilities—individually or in combination—are not rated at 100%. The VA looks at a veteran’s combination of disabilities in view of whether or not that veteran can work due to those disabilities. In order to qualify for TDIU, a veteran must be unable to secure or follow substantially gainful employment by reason of service-connected disabilities and meet the schedular requirements. If the veteran does not meet the schedular requirements, but still cannot work due to his/her service-connected disabilities, the veteran can request that the VA submit the case to the Director of Compensation Service for a special extraschedular consideration, under the provisions of 38 CFR 4.16(B).
There are a number of reasons why the VA might deny a claim for TDIU, even when the veteran meets all the requirements. The most common reason that the VA denies IU claims is due to a finding that the veteran is “not found to be unable to obtain or maintain substantially gainful occupation.” This, of course, is very vague, and oftentimes is the extent of the explanation that the RO will provide in their denials.
Negative C&P Examinations
In the instance stated above, the basis of the typical RO boilerplate denial for IU is usually the findings of a Compensation and Pension (C&P) examination. When a veteran with service-connected disabilities files a claim for IU, the VA will schedule an examination—or multiple exams, if the veteran is claiming IU based upon multiple service-connected disabilities—to evaluate the conditions under the lens of employability. One problem with this tactic is that the examiner reviews each condition and provides an opinion on whether or not that specific condition prevents the veteran from working. In most cases, veterans are unable to work due to the sum of their service-connected disabilities, rather than just one condition. Under this procedure, however, the examiners are not instructed to review the conditions as a whole, and instead render an opinion on each condition individually. In the same manner, the RO adjudicators review the results of each examination and conclude that the veteran’s disabilities are not severe enough to preclude him/her from working, and therefore the veteran is capable of gainful occupation.
The other problem with this tactic is that most medical professionals whom the VA hires to conduct examinations are not qualified, by way of training, education, or expertise, to render a determination on vocational limitations or lack thereof. The vast majority of examiners are nurse practitioners, physicians’ assistants, and medical doctors, who have been trained in the field of medicine, not the field of vocational analysis. Medical professionals are qualified to define the physical or emotional limitations extending from a condition but have no expertise in translating this information into opining on whether or not this degree of restriction or limitation, or both, prevents one from working. To make matters worse, they are given absolutely no guidance on what limitations to look for, what qualifications are required in the current job market, and how a veteran’s limitations impact transferable skills, if any. Particularly in orthopedic cases, examiners tend to concede that a veteran cannot perform physical labor, but think that he/she can perform a sedentary occupation, with no real understanding of what is actually required for sedentary jobs.
To combat this issue, it may be helpful to consult a vocational expert. If you have had a disability case with Social Security, you will be aware that Social Security utilizes vocational experts to assist in determining whether or not you are able to work. While the criteria for being considered unemployable differs between Social Security and the VA, vocational experts still have training and experience that can be applied to your VA claim for Individual Unemployability.
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