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Mary Klements, Claims Advocate

Common Errors in VA Decisions Involving TDIU – Part One

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In our practice, claims for a total disability rating due to individual unemployability (TDIU) are among the most common claims we handle. Our goal is always to obtain the highest rating possible for our clients, and that is often achieved through TDIU. As a result, we have had the opportunity to study the myriad of ways by which the VA denies TDIU claims. The purpose of this series is to walk through a few of those so that you can be better equipped to fight your own claim for individual unemployability (IU).

What is TDIU?

TDIU is a benefit to veterans who are unable to work due to their service-connected disabilities. This benefit pays the veteran at a 100% rating, even if the veteran’s service-connected disabilities—individually or in combination—are not rated at 100%. The VA looks at a veteran’s combination of disabilities in view of whether or not that veteran can work due to those disabilities. In order to qualify for TDIU, a veteran must be unable to secure or follow substantially gainful employment by reason of service-connected disabilities and meet the schedular requirements. If the veteran does not meet the schedular requirements, but still cannot work due to his/her service-connected disabilities, the veteran can request that the VA submit the case to the Director of Compensation Service for a special extraschedular consideration, under the provisions of 38 CFR 4.16(B). For a more in-depth explanation on how TDIU works, see our blog post here.

There are a number of reasons why the VA might deny a claim for TDIU, even when the veteran meets all the requirements. The most common reason that the VA denies IU claims is due to a finding that the veteran is “not found to be unable to obtain or maintain substantially gainful occupation.” This, of course, is very vague, and oftentimes is the extent of the explanation that the RO will provide in their denials.

Negative C&P Examinations

In the instance stated above, the basis of the typical RO boilerplate denial for IU is usually the findings of a Compensation and Pension (C&P) examination. When a veteran with service-connected disabilities files a claim for IU, the VA will schedule an examination—or multiple exams, if the veteran is claiming IU based upon multiple service-connected disabilities—to evaluate the conditions under the lens of employability. One problem with this tactic is that the examiner reviews each condition and provides an opinion on whether or not that specific condition prevents the veteran from working. In most cases, veterans are unable to work due to the sum of their service-connected disabilities, rather than just one condition. Under this procedure, however, the examiners are not instructed to review the conditions as a whole, and instead render an opinion on each condition individually. In the same manner, the RO adjudicators review the results of each examination and conclude that the veteran’s disabilities are not severe enough to preclude him/her from working, and therefore the veteran is capable of gainful occupation.

The other problem with this tactic is that most medical professionals whom the VA hires to conduct examinations are not qualified, by way of training, education, or expertise, to render a determination on vocational limitations or lack thereof. The vast majority of examiners are nurse practitioners, physicians’ assistants, and medical doctors, who have been trained in the field of medicine, not the field of vocational analysis. Medical professionals are qualified to define the physical or emotional limitations extending from a condition but have no expertise in translating this information into opining on whether or not this degree of restriction or limitation, or both, prevents one from working.  To make matters worse, they are given absolutely no guidance on what limitations to look for, what qualifications are required in the current job market, and how a veteran’s limitations impact transferable skills, if any. Particularly in orthopedic cases, examiners tend to concede that a veteran cannot perform physical labor, but think that he/she can perform a sedentary occupation, with no real understanding of what is actually required for sedentary jobs.

To combat this issue, it may be helpful to consult a vocational expert. If you have had a disability case with Social Security, you will be aware that Social Security utilizes vocational experts to assist in determining whether or not you are able to work. While the criteria for being considered unemployable differs between Social Security and the VA, vocational experts still have training and experience that can be applied to your VA claim for Individual Unemployability.

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.