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Shannon Brewer, Senior Attorney

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

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

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

TDIU is not Social Security Disability

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

Substantially Gainful Occupation

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

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

Marginal Employment

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

Sheltered Employment

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

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

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

Kylie Courtwright, Claims Advocate

What is Individual Unemployability?

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

Am I Eligible for Individual Unemployability?

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

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

What is Gainful Employment?

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

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

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

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

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

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

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

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

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

Nicholas Simpson, Attorney

To What Types of Special Compensation Are you Entitled?

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You have been battling with the VA for months, if not years.  You have seen numerous Rating Decisions, filed Notices of Disagreement, submitted additional evidence, received Statement(s) of the Case, and sometimes even Supplemental Statement(s) of the Case.  Finally, you have a decision that awarded service connection and got the right disability percentage. Done Right? For many, the answer to the question presented is a resounding, “YES.”  But, for others, there may still be benefits left on the table to which you are entitled.  These additional types of compensation are available if you meet certain criteria.  They are as follows:

  • Total Disability based on Individual Unemployability (TDIU);
  • Combat Related Special Compensation (CRSC); and
  • Special Monthly Compensation (SMC).

This article will give a brief overview of what each is and how to begin the process of getting these benefits.

TDIU

TDIU is in the same vein as standard disability payments from the VA in that it is based upon their impact on your ability to work.  TDIU is easy to think of as disability “gap insurance.”   Unlike compensation for a particular disability, TDIU views the individual as more than the sum of their individual disabilities, and instead looks at their capacity to “maintain substantially gainful employment.”  Substantially gainful employment is a fancy way of saying that the veteran is able to earn more in a year than the individual poverty line as defined by the U.S. Census Bureau.  In 2016, the poverty threshold is $12,486.  If a veteran is working, but his earnings do not exceed that threshold, he is not maintaining substantially gainful employment for VA purposes.  It is worth noting, that there are exceptions to this rule.

The Court of Appeals for Veterans’ Claims has previously ruled that a request for TDIU is not a standalone claim for benefits, but is “part of an initial claim for VA disability compensation” or “a particular type of claim for increased compensation.” Rice v. Shinseki.  However, despite this ruling that TDIU should be considered, many times, a veteran must file a VA Form 8940 to start the claim for this increase in his benefits.

SMC

The second type of compensation in addition to the standard compensation schedule is Special Monthly Compensation (SMC).  There is a multitude of SMC types available, and today’s article will only discuss one, SMC(s).  SMC(s) is available to veterans who has (1) a 100 percent disability rating and another disability (or disabilities) at or combing to 60 percent or more.  (TDIU will count for this requirement, but the underlying disabilities cannot be used to reach the additional 60 percent needed.)  OR (2) The veteran is substantially confined to his dwelling or immediate premises as a result of a service connected disability.

The VA should not combine the housebound requirement to the “100 + 60” explained above.

As with TDIU, SMC should be considered with a veteran’s initial claim for the highest rating possible, but is often overlooked.  Therefore, there is no additional form on which to request SMC.  If you have a 100 percent rating and additional ratings totaling 60 percent, but have not been considered for SMC, you should probably appeal the decision.  Also remember, VA math is sometimes tricky.  We have a calculator that can help add things up properly.

CRSC

The final type of special compensation to discuss is Combat Related Special Compensation, CRSC.  CRSC was created for veterans with specifically “combat-related” disabilities.  It is a tax free entitlement that is paid along with any retired or disability pay a veteran may already be receiving.  Please note that CRSC is not a VA benefit and is provided by the Department of Defense.  To qualify for CRCS, a veteran must:

  • Be entitled to and/or receiving military retired pay (this includes those who have been medically retired)
  • Be rated at least 10 percent disabled by the VA
  • Waive your VA from retired pay
  • File a CRSC application with your Branch of Service.

When applying for CRSC, injuries which may be considered combat related are:

  • Incurred during armed conflict,
  • The result of hazardous duty,
  • Caused by instrumentalities of war, or
  • Incurred during simulated war.

If CRSC is granted, DFAS will audit the veteran’s account to determine if he has retroactive benefits due to him.

Hopefully you have found this article to be both informative and helpful.  Thank you for your service.

Heather Staskiel, Attorney

Temporary 100 Percent VA Disability Ratings

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Many veterans have the goal of being awarded 100 percent disability rating due to the severity of their disabilities. Sometimes, a veteran may be incapacitated by his or her disability to a level that warrants a 100 percent disability rating, but, fortunately, may be able to recover enough to where the 100 percent rating no longer accurately reflects his or her current level of disability. In such case, the VA will award temporary 100 percent disability for the time period in which the veteran was totally incapacitated. There are three types of temporary 100 percent disability ratings that a veteran may be eligible for: pre-stabilization ratings; Convalescent ratings; and hospitalization ratings. We will discuss each of these in turn.

A 100 percent pre-stabilization rating may be assigned to a veteran who suffers from an unstabilized condition that was incurred in service if the unstabilized condition results in a severe disability that makes substantially gainful employment unfeasible (note: a 50 percent pre-stabilization rating may be assigned under certain circumstances as well). An example of an unstabilized condition would be residuals from a car accident or gunshot wound. The VA cannot assign a temporary 100 percent pre-stabilization rating where the veteran is immediately eligible for a 100 percent schedular rating or a 100 percent rating due to total disability based on individual unemployability (TDIU). Pre-stabilization ratings are in effect for the 1-year period immediately after discharge, and the VA is not able to change a pre-stabilization rating if it would reduce benefits to the veteran during the 1-year period. However, the VA is able to change the veteran’s pre-stabilization rating to a 100 percent schedular rating or 100 percent TDIU rating if so warranted. It’s important to remember that the VA must conduct a C&P examination for the veteran’s un-stabilized condition between 6 and 12 months after the veteran is discharged, but even if the examination shows that the veteran’s disability warrants a lower rating, a reduction cannot occur until the end of the 1-year period.

A veteran may also be entitled to a temporary 100 percent rating for periods of hospitalization for treatment or observation which are greater than 21 days. Note, the hospital treatment or observation must be related to the veteran’s service-connected disability, but if the veteran is initially admitted to the hospital due to a non-service-connected disability and receives treatment for his or her service-connected disability for more than 21 days during the hospital stay, he or she is still eligible for a temporary 100 percent rating for the period he or she was receiving treatment for the service-connected disability. This temporary 100 percent rating is effective from the first day of continuous hospitalization and ends the last day of the month of discharge from the hospital.

The third type of temporary 100 percent rating is available where a medical report establishes that a veteran needs time to convalesce following hospital discharge or outpatient release. In VA law, the term “convalesce” means “the act of regaining or returning to a normal or healthy state after a surgical operation, or an injury.” There are three circumstances under which a 100 percent convalescent rating will be issued: the veteran has undergone surgery that requires at least 1-month convalescence; the veteran has undergone surgery that has resulted in severe postoperative residuals, or one of the veteran’s major joints immobilized by a cast. Such benefits are effective from the date of hospital admission or outpatient treatment and may continue for a period of 1 to 3 months from the first day of the month following hospital discharge or outpatient release. Veterans are able to obtain extensions of convalescing ratings for up to 3 months, or 6 months in certain circumstances, if postoperative residuals are particularly severe. It is important to remember that medical evidence is necessary to establish entitlement to a convalescent rating, specifically a note from the veteran’s doctor stating how long he or she requires to recover.

Cassandra Crosby, Claims Advocate

Eligibility for Unemployability While Still Working

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In our blog about working and receiving Unemployability, we outline how Veterans can continue to be employed while receiving the VA benefit called Total Disability due to Individual Disability (TDIU). We outline how to file for this claim in several blogs including, Tips for Filling out the VA 21-8940; as well as provide Veterans with a guide to what TDIU is and how to determine if one is eligible for Unemployability in our Unemployability Guide.  One of the main things to know for Veterans who continue to work while filing for Unemployability is the rules concerning what is called “marginal employment.”

Marginal Employment

Marginal Employment is considered 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.” This means employment that pays at the level of, or below the standard poverty threshold based on the year you are applying as your effective date. For example, if a Veteran is applying for TDIU back to 2014, the Veteran would need to have made less than the poverty level in income for that year and the years after that that the Veteran continued to work. This is based on no dependents, whether the Veteran has any or not. If a Veteran exceeds the poverty threshold, he or she would not be eligible for VA benefits.

Sheltered Employment

Sheltered Employment is the other type of marginal employment eligible for TDIU. Sheltered employment means that a Veteran is given concessions due to his or her service-connected disabilities that would not normally be given to other employees. This is something beyond what would be legally provided through ADAAA accommodations. For example, a veteran with TBI works for a company that specifically hires Veterans with disabilities. The company provides the veteran with an office and duties that afford limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. Because the veteran’s job has been tailored to his individual needs (limited interaction with other people), his job is considered to be sheltered, and therefore falls under “marginal employment.” The VA cannot consider this job as being substantially gainful employment, and must not use it against him in determining IU.

Proving Sheltered Employment

Proving sheltered employment can often be difficult. Veterans must show that not only that their disabilities keeping them from working in sustainable employment, they must also show that the employment they do hold is sheltered by providing evidence in the form of documentation from their employer stating what accommodations have been made for the Veteran and verifying that these accommodations would not be made for other employees. As long as the accommodations are not considered “reasonable” and do not violate the ADAAA, they are not required to be provided to all employees. For example, providing someone with an ergonomic chair for a back injury would be an ADAAA accommodation and something reasonable to provide to all employees who had a back injury. A small business conducted a fundraiser to raise money to build a special entryway into their office for a Veteran in a wheelchair so he could have his old job back when he returned from service. This would not be considered a “reasonable accommodation” per the ADAAA as they normally could not afford to provide such types of accommodations, so therefore this would be considered sheltered employment.

Differences between Sheltered Employment and Reasonable Accommodations

Reasonable accommodations per the Americans with Disabilities Act Amended Act provides for accommodations that meet specific criteria per federal law. These criteria are:

  1. Dignity: Persons must be accommodated in a way that most respects their dignity, including their privacy, confidentiality, comfort, and autonomy.
  2. Individualization: There is no set formula for accommodation. Each person’s needs are unique and must be considered afresh when an accommodation request is made. A solution may meet one person’s requirements but not another’s, although many accommodations will benefit many other people with similar needs.
  3. Inclusion: Achieving integration and full participation requires barrier-free and inclusive design and removing existing barriers. Preventing and removing barriers means all persons should have access to their environment and face the same duties and requirements with dignity and without impediment.

Sheltered employment does not have to meet these requirements. There are three ways to determine if employment is considered sheltered:

  1. If the Veteran were to leave the position, the accommodations would no longer be available to any other employee, in other words, they were specific to just the Veteran;
  2. The business plans to continue to accommodate the position and hire someone else similarly disabled;
  3. The business plans to eliminate the position completely if the Veteran was no longer working at the business.

Family owned businesses, businesses that specifically hire disabled veterans, non-profits who work with disabled veterans in “sheltered workshops” are usually where you are most likely to find marginal employment situations. Legal representatives or a vocational rehabilitation counselor can advise on whether the employment can be considered sheltered. However, remember, falsely reporting employment income or accommodations as sheltered is a federal offense and can lead to criminal charges, so if a Veteran is filing for TDIU and is employed, make sure they are getting good counsel.

Robin Rosenblad, Claims Advocate

Can I combine ratings for TDIU?

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To even be considered for Total Disability based on Individual Unemployability (TDIU or IU) with the VA, you must have at least the following ratings for service-connected conditions:

  • You must have at least one service-connected disability rated at least at 60%, OR
  • Two or more service-connected disabilities with a combined rating of at least 70 % with at least one of those rated at 40 % or more.

(There are some other exceptional circumstances that might qualify you for TDIU but those are not the subject of this discussion.  See also our prior video on this subject.)

In order to meet the 60% or the 40%/70% percentage requirements, be aware that for certain disability conditions you can combine ratings to meet the “one disability” requirement if they fall under certain situations.  According to the law, CFR §4.16, the following would be considered one disability:

(1)       Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,

(2)       Disabilities resulting from common etiology or a single accident,

(3)       Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,

(4)       Multiple injuries incurred in action, or

(5)       Multiple disabilities incurred as a prisoner of war.

Here are some examples that could satisfy the requirements of items (2) and (3) above:

  • Service connection for Diabetes with secondary conditions such as peripheral artery disease, diseases of the eye, kidney damage, cardiovascular disease, and foot damage. These all have a “common etiology” of Diabetes and so could be combined to fulfill number 2 above.
  • Another “common etiology” example would be Parkinson’s Disease with secondary conditions such as sleep disorders, cognitive difficulties, bladder problems, constipation and depression resulting from the Parkinson’s Disease.
  • Orthopedic conditions such as low back pain, cervical spine pain, and hip pain could all be combined to fulfill the requirement of number 3 above as they all affect a single body system.
  • Service-connected injuries received in a military accident (e.g., a motor vehicle accident) including traumatic brain injury, a fractured leg, and a cervical spine condition could be combined to fulfill the requirements of item 2 above if they all resulted from that single accident.

These are just a few examples of using combined ratings to meet either the 60% single disability requirement or the 40% single disability (with a total of 70%) requirement for a veteran to be eligible for TDIU.  Once you meet that requirement, there are other conditions that must be met in order to be granted TDIU such as being unable to maintain “substantially gainful” employment.  (You might also qualify for TDIU if you are still working but your income must be below a certain level or your job must be in a protected environment.)  Also keep in mind that TDIU is not restricted to certain age groups.  If you are 85 years old and meet the eligibility requirements of TDIU, you could still qualify for and be granted TDIU.

Kirsten Hirt, Claims Advocate

Exploring Marginal & Sheltered Employment for TDIU Benefits

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The means the VA utilizes to calculate your overall disability rating can make it difficult to reach 100%.  This is because they do not simply add each percentage together and often the closer your total gets to 100%, the harder it is to bump up your overall rating.  The good news is 100% can be achieved by other means.  Individual Unemployability can be filed as an additional claim if your service-connected disabilities keep you from securing and maintaining substantially gainful employment.

In order for TDIU (total disability based on individual unemployability) benefits to be awarded, you must first qualify based on your rating.  TDIU can be awarded once you have a single disability at 60% or if you have a total of 70% or higher with at least one disability rated at 40%.  Additionally, due to the nature of the benefit, most people are also unemployed when TDIU is awarded.  However, there are special circumstances that may still qualify you for TDIU while employed.  This is because VA Unemployability does not always equate to not working.

To understand whether you qualify, especially if you are working, it is important to be familiar with the definitions used by the VA when discussing individual Unemployability.  Substantially gainful employment is defined by the amount of earnings from an employed position.  The total amount of earnings from your job is considered gainful if they are above the poverty level.  It is also defined as competitive employment where a non-disabled individual may earn a comparable income to the particular occupation in the same area.  To determine if your earnings may be deemed gainful, the VA refers to the U.S. Department of Commerce which establishes the poverty level amount.   If you are employed and the earned annual income doesn’t exceed the poverty level, it may be considered marginal employment.  If that is the case, you can receive TDIU in some circumstances – assuming you qualify in terms of the minimum rating required for unemployability benefits.

You may also hear or see the term sheltered employment mentioned.  Sheltered employment involves holding a job but in a protected environment.  It involves maintaining a position where accommodations are made for your disabilities.  In other words, you would not be able to work at any job but rather are able to keep working because you have been given a flexible schedule or reduced duties because of your disabilities.  This may include diminished quotes, excessive time off, leave work at will, etc.

Sheltered employment essentially is a job where you are not working under regular expectations.  It may be a job where you are expected to do the most you can and whenever you are able.  Generally, with a sheltered employment position, you are held to a different set of standards due to any limitations you may have resulting from your service connected disabilities.  It also may have been developed specifically for you to allow you to keep working.  For example, you may have permission to go home due to a migraine or are allowed to work individually if you have severe anxiety.

There are many different circumstances that can be defined as sheltered employment but you must be able to submit supporting evidence if you are claiming unemployability. For sheltered employment, it is extremely important to try and obtain a statement from your employer.  Ask them to verify any accommodations made demonstrating to the VA that your current position is in a sheltered environment.  Similarly, the VA will require documentation of marginal employment if it is shown you are working but requesting TDIU benefits.  It can be very difficult to obtain TDIU benefits under these exceptions, so just remember to have all the documentation ready if you are working and your position falls into one of the above categories.  As a reminder, you will still have to file the VA Form 21-8940.  You can find a full TDIU guide with instructions on how to complete the required form here.

Matthew Hill

Video Blog – Common Mistakes – 100% vs Unemployability

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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%.
Matthew Hill: Right.
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.
Carol Ponton: Right.
Matthew Hill: You don’t have to be 100% schedular to get that.
Carol Ponton: Right.
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 …
Carol Ponton: Not.
Matthew Hill: We’ll link to that in these notes. It’s just important to know to have all options on board.
Carol Ponton: Exactly.
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.
Carol Ponton: Right.
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.
Veterans Unemployability IU Guide
Shannon Brewer, Senior Attorney

VA Disability Compensation: Answering Questions About TDIU

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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

Video Blog – VA Disability Rating Threshold for IU

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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.
Carol Ponton: Right.
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.
Carol Ponton: Yes.
Matthew Hill: Thank you for joining us today and we hope to see you back on this space soon.